IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7429 of 1999 KAMLESH MISHRA, S/O SRI UPENDRA NARAYAN MISHRA, CLERK, PROJECT GIRLS HIGH SCHOOL, NAUBATPUR NAGAWAN, P.S.-NAUBATPUR, DISTRICT- PATNA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY, SECONDARY, PRIMARY AND ADULT EDUCATION, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, SECONDARY EDUCATION DEPARTMENT OF SECONDARY, PRIMARY AND ADULT EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. ONKAR NATH, S/O SRI BRAJ BHUSHAN SHARMA, R/O VILLAGE AND P.O.-NAGWA, P.S.- NAUBATPUR, DISTRICT-PATNA AT PRESENT CLERK, PROJECT HIGH SCHOOL, NAGWA, NAUBATPUR, DISTRICT-PATNA. …………………RESPONDENTS. For the petitioner : Mr. Ashok Priyadarshi, Adv. And Mr. Manoj Kumar Sinha, Adv. For the State : Mr. Prabhat Kr. Choudhary, A.C. to G.P.-VII. For Private Res. No. 4 : Mr. M.P. Shukla, Adv. ----------- 9 25.11.2009 I.A. No. 7299 of 2009 Although the office order of the Director, Secondary Education, dated 21.7.2008, rejecting the recognition of services of the petitioner, was produced as Annexure-15 with the supplementary affidavit, petitioner had not challenged the same earlier in this case by proposing necessary amendments in the writ application. Petitioner has now filed this I.A. with a formal prayer to allow him to challenge the said Anneuxre-15 also. Respondents have filed 2 their counter affidavit to it. Since the document was on record from before, which inadvertently petitioner had not challenged in the case earlier, this I.A. is allowed and the petitioner is permitted to challenge the said Anneuxre-15 also in this case. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the private respondent no. 4. Petitioner has filed this writ application for quashing the order dated 28.11.1995, contained in memo no. 527 of the office of the Director, Secondary Education, annexed as Annexure-1, by which recognition of the services of the petitioner was refused on the ground that, on the date of appointment his age was 31 years, six months and 20 days and, therefore, he was over age for his appointment on the post of Clerk. Case of the petitioner is that he was appointed in the concerned Project School on 2.1.1981, which was, at that time, a privately managed school. Later on, in terms of the 3 Government decision, the school in question, along with many other Project Schools, was taken over by the Government. Thereafter Screening Committee was constituted to examine the services of teaching and non-teaching employees of such schools for take over of their services. As the Screening Committee, constituted for the school concerned, found that the petitioner was over age, in terms of the Government Rules for his appointment on class-III post on the date of appointment, it did not recommend for take over of his services. Accordingly, orders were issued by the Director, Secondary Education, vide Anneuxre-1, refusing to approve his services for take over and payment of his salary. Petitioner has pointed out that, in the process of take over of the Project Schools in the State of Bihar, large number of persons were denied approval of their services. Therefore, they moved this Court through various writ applications. The matters were finally referred to Full Bench and all the writ applications were considered together. After examining the legal position, a Full Bench of this Court, in paragraph 22 of the judgment (reported in 2000 4 (1) PLJR 287 (FB), held that, while the schools were under private management, no rules of the Government applied to it for restricting appointments of teaching and non-teaching staff of the schools on the basis of age. Therefore, the Full Bench found that, it would be, in fact, too hard to reject their claims, at such a belated stage, simply because some of them had crossed the age of 31 years at the time of initial appointment by the Managing Committee before the take over of the schools as Project Schools. For easy reference the findings of the Full Bench as contained in paragraph 22 of the judgment is reproduced hereinbelow:- “That apart, this cannot be denied that at the time of initial appointment of these petitioners, there was no statutory rule or circular to prescribe the upper qualifying age for appointment of a teacher in a privately managed school. It would also appear that the State Government while taking over the management and control of other privately managed schools under the provisions of the Bihar Non-Government Secondary Schools (Taking over of Management & Control) Act, 1980, had granted age relaxation to the teachers and non- teaching staff of these schools upto the age of 35 years. Therefore, although the relevant circular of the State Government, whereby the maximum age was relaxed to 35 years for the teaching and non-teaching staff of the Non-Government 5 Secondary Schools, is not applicable to the teaching and non-teaching employees of the Project Schools as already held above but having regard to the facts that they have continued uninterruptedly for several years, it would be in fact too hard to reject their claim at such a belated stage simply because some of them had crossed the age of 31 years at the time of initial appointment by the Managing Committee before the take over of the schools as Project School. I am therefore, of the view that in the background of the facts stated above, such petitioners are also entitled for the regularization/recognition of their services against the post within the aforementioned staffing pattern.” After such finding, against rejection of claim of approval of services of the incumbents of the taken over schools on the ground of being over age, the Full Bench issued following directions as contained in paragraph 35:- “In my view, it would be appropriate to mention that this Full Bench has only to examine the broad propositions regarding scope and applicability of different circulars of the Government in the matter regarding implementation of the instant scheme, and the service conditions regarding eligibility, qualifications, suitability etc. of teaching and non-teaching staff for regularization/recognition of their services in the Project Schools. Individual cases of the petitioners of course, shall be examined by the respondent authorities in terms of the findings of this Full Bench in 6 these cases as we have not been posted with the facts in detail by the respective parties. In some of the cases State has not even filed counter affidavit perhaps under the impression that once this Court decided the principle then the authority concerned would examine individual cases and dispose it of in the light of the said principle.” Learned counsel for the petitioner points out that against the said judgment of the Full Bench the State of Bihar moved the Hon’ble Supreme Court. The matter was considered by the Hon’ble Supreme Court and, by judgment reported in 2006 (1) PLJR 483 (SC), it disposed of the appeal of the State of Bihar with certain directions. In the judgment, the Hon’ble Supreme Court gave directions for constitution of a three-man committee and for consideration of individual cases. However, it directed the Committee to deal with the individual cases as directed by the High Court in paragraph 35 of the judgment. Extract of paragraph 83 of the Hon’ble Supreme Court judgment is quoted hereinbelow in this context for easy reference:- “The Committee shall also deal with all such individual cases of the appellants, as has been directed in para 35 of the judgment of the High Court." Learned counsel for the petitioner 7 also submits that, although the petitioner had filed this writ application in 1999 challenging the said order of the Director, Secondary Education, due to some reasons the same could not be considered with the batch of cases considered by the Full Bench and, therefore, this writ application has remained pending. Counter affidavit has been filed in the case on behalf of the State functionaries. In the counter affidavit, it is stated that, in terms of the directions of the Hon’ble Supreme Court, three-man Committee considered the case of the petitioner and found petitioner over age on the date of appointment. Therefore, by memo no.351 dated 21.7.2008, his case for approval of his services and release of salary has been rejected. The said memo no.531 dated 21.7.2008 has been enclosed with the counter affidavit filed by the official respondents on 11.9.2009 without annexing it. Petitioner has also filed supplementary affidavit producing the said memo as Annexure-15 to his supplementary affidavit and has challenged it through the I.A which has been allowed hereinabove. 8 Learned counsel for the official respondents has also reiterated the stand in the counter affidavit to the effect that the case of the petitioner was considered by three-man Committee in terms of the directions of the Hon’ble Supreme Court and, as he was found over age on the date of his appointment, his claim for approval of his services, and release of salary, was rejected by the said memo no. 531 dated 21.7.2008. Learned counsel for the private respondent submits that petitioner was initially appointed as teacher, but later on, without taking steps for fresh appointment, his services were transferred on a class-III post, as he was found untrained and not qualified for teaching post. Thus, he has tried to raise some objection in respect of validity of the appointment of the petitioner itself. However, nature of the appointment of the petitioner, and its validity, has not been challenged by the private respondent in his counter affidavit. In the counter affidavit, filed in reply to the main writ application, as well as supplementary affidavits of the 9 petitioner, his only stand is that petitioner was over age on the date of appointment in the school and, therefore, his services could not be approved and salary could not be paid to him of the period subsequent to take over of the school. Apparently the only stand of the respondents in their affidavits reiterated by the learned counsel for the official respondents stands fully covered by the findings of the Full Bench as contained in paragraph 22 of the judgment quoted above. Admittedly the school in question was under private management at the relevant time when petitioner was appointed. Therefore, the maximum age limit prescribed by the Government, for appointment in Government service on class-III posts, was not applicable to the school in question and was not binding on the management of the school. This stands clearly held by the Full Bench in the above quoted paragraph 22 of the Judgment. The respondents therein were directed by the Full Bench to examine individual cases in terms of the findings and law laid down by it in its judgment. The same stands obviously approved by 10 the Hon’ble Supreme Court, as in paragraph 83, the Hon’ble Supreme Court, in very clear terms, directed the three-man Committee to consider the individual cases, in terms of the directions issued by the Full Bench contained in paragraph 35. However, thereafter also, the case of petitioner has been rejected by the respondents, by order contained in said memo no. 531 dated 21.7.2008 (Annexure-15), on the ground that the petitioner was over age on the date of appointment. This ground is clearly in teeth of paragraph 22 of the judgment of the Full Bench and, therefore, non est in the eye of law. Therefore, in view of the clear cut law laid down by the Full Bench, this Court has no option than to hold that, by Anneuxre-1 as well as by impugned Annexure-15, the respondents have illegally rejected the case of the petitioner for approval of his services and for payment of his salary of the period subsequent to take over of the school on a non est ground. In the result, Annexure-1 as well as Annexure-15 are quashed. The respondents are directed to consider the services of the 11 petitioner as approved from the relevant date. So far as consequential benefits are concerned, learned counsel for the petitioner submits that, inspite of Annexure-1, issued in 1995, petitioner continued in service and marked his attendance in the school. He submits that, it was only after issue of memo no. 531 dated 21.7.2008 (Annexure-15), and the appointment of the private respondent in the school on the post of Clerk by another memo no. 449 dated 24.6.2008, that he was stopped from working in the school and prohibited from marking his attendance. He submits that, since then, petitioner has also crossed the age of his superannuation on 31.7.2009. In the circumstances, respondents are directed to examine from the records of the school, as to whether, even after passing of Anneuxre-1, petitioner had continued in service in the school, and had marked his attendance regularly till the Anneuxre-15 was issued, or not. In case, the documents establish that he continued in service during the entire period till 21.7.2008, he will be entitled to his full salary with all consequential benefits. If on 12 the other hand, the documents do not establish that he continued in service in the school during this period, he shall be paid only 25% of his basic salary plus D.A. of the period till the date of his superannuation by the respondents. So far as his consequential benefits subsequent to 21.7.2008 are concerned, admittedly he is out of service. Therefore, he is not entitled for the same. But, for pensionary benefits, he shall be treated as having continued in regular service under the Government till his date of superannuation, that is till 31.7.2009, with all consequential benefits of salary, increment etc. on notional basis for this period and his pensionary benefits shall be calculated on that basis and will be paid to him accordingly. The respondents shall take steps in this regard within four months from the date of receipt/production of a copy of this order and the Director, Secondary Education shall be personally responsible for implementation of this order. This writ application is allowed with 13 the aforesaid observations and directions. It is made clear that this Court has not made any observation in respect of services of private respondent. Therefore, his service shall not get affected by this order in any way. Arvind/ ( J. N. Singh, J.)