IN THE HIGH COURT OF JUDICATURE AT PATNA (Civil Writ Jurisdiction) C.W.J.C. No.11508 OF 2005 *** MISS SUSHESHA GHOSE------------------------------------------------------------------------(Petitioner) -:Versus:- THE STATE OF BIHAR & ORS--------------------------------------------------------------(Respondents) For The Petitioner : Mr. KALYAN KUMAR GHOSE, Advocate For The Respondent : STANDING COUNSEL - I ***** P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA M.K. Jha, J. :- This writ application has been filed by the petitioner for a direction to the respondent officials of the Education Department for payment of arrears of salary for the period 20.1.1997 to 31.8.1999. It is the case of the petitioner that she is an Assistant Teacher in the subject of Geography in Rabindra Balika Vidyalaya, Rajendra Nagar, Patna, a minority school wherein payment of salary is being made from the fund of the State Government as per the provision mentioned in Bihar Non-Governmental Secondary School Management and Control Take Over Act, 1981. The petitioner claims that she was appointed under the order of the Secretary of Rabindra Balika Vidyalaya dated 8.1.1997 in view of a decision of the Managing Committee of the school dated 12.8.1996. From the averments made in the writ application, it is clear that her such appointment made by the Managing Committee was approved by the Bihar Vidalaya Seva Board vide an order contained in Memo No. 348 dated 8.7.1999 and the District Education Officer, Patna in terms of the aforementioned approval given by the Bihar Vidalaya Seva Board had issued an order as 2 contained in memo no. 1732 dated 11.9.1999 fixing the salary of the petitioner in the pay scale of Rs. 1640/- to 2900/- by making it clear that actual payment of her salary would be made after verification of her certificate relating to educational/training qualification. The petitioner in this context has also stated that the Principal of her school had sent requisition for payment of salary to the petitioner on 27th of December, 1999 to the District Education Officer, Patna which was followed by a reminder dated 13th August, 2001 and when such arrear of payment of salary for the period 20.1.1997 to 31.8.1999 had not been paid to the petitioner, a reminder was again sent on 28.7.2004. Those communications by way of requisition and reminder having made no impact, the petitioner had also got a legal notice sent and served on the Director of the Secondary Education dated 17th February, 2005 and eventually when the said legal notice also did not yield any fruitful result, the petitioner had filed this writ application on 12.9.2005 for a direction for payment of her salary for the aforesaid period. The case was listed for the first time in the “Admission Matter” on 2.8.2006 on which day this Court had adjourned the matter for a period of three weeks i.e. 21 days for filing of the counter affidavit but such counter affidavit was not filed even in next 21 months and this Court accordingly by an order dated 17.3.2008 had again adjourned the matter for a period of four weeks to enable the official respondents to file their counter affidavit. A counter affidavit thereafter came to be filed before this Court on 22.4.2008 wherein it was stated that the grievance of the petitioner had been redressed by the District Education Officer, Patna vide letter as contained in memo no. 1988 dated 30.8.2006 by directing the Headmistress of the Rabindra Balika Vidyalaya, Rajendra Nagar, Patna to submit the pay bill of the arrear of 3 salary of the petitioner and the Headmistress of the school had submitted the bills of arrears of salary of the petitioner on 2.9.2006 whereafter the District Education Officer, Patna passed those pay bills and also made payment of arrears of salary to the tune of Rs. 1,70,035/- and cheque no. 36569 dated 11.9.2006 and Rs. 3185/- vide cheques no. 36570 dated 11.9.2006. In the counter affidavit, it has been stated that the grievance of the petitioner has been redressed and the writ application has become infrcutuous. The counter affidavit is also accompanied with a copy of the aforementioned two cheques and a letter of the District Education Officer dated 12.9.2006 informing the Headmistress of the school to make payment of salary through the aforesaid two cheques by getting them deposited in her bank account. There is a very significant endorsement in the letter of the District Education Officer dated 12.9.2006 made by the Headmistress of the school which reads as follows; “As this principal is made respondent no.6 and Managing Committee through Secretary No.5, in CWJC No. 11508 of 2005 without prejudice to the claim of the petitioner in the pending case. Received the cheque (No. 035569 dt. 11.09.06 for Rs. 170035.00 and cheque no. 036570 dt. 11.09.06 for Rs. 3185.00 of Central Bank of India, Frazer Road, Patna in favour of Branch Manager, C.B.I., Rajendra Nagar, Patna and Branch Manager, Bank of India, R.Nagar, Patna respectively. Sd./-Illegible Headmistress 13.09.06” Though the aforementioned facts of this counter affidavit have been not denied by the petitioner, but a supplementary affidavit on her behalf has been filed which has been sworn by one Manoj Kumar Sahni claiming to be Pairvikar of the petitioner wherein it has been stated that both the cheques dated 11th September, 2006 were drawn in favour of the Branch Manager of the Bank but the petitioner had received the 4 amount after certain deduction made by the school against the loan given by the school as also after making certain deposits in the provident fund account of the petitioner. In paragraph nos. 5 and 6, the petitioner has stated that on account of delay in payment of her salary, she should be held to be entitled to payment of interest to the tune of Rs. 2,15,793/- on the aforementioned amount of her salary of Rs. 1,73,220/- . In the same supplementary affidavit, the aforementioned Pairvikar of the petitioner has also made a grievance with regard to the delay in the payment of salalry to the Teachers of minor school in the following words:- “7. That the petitioner is agitating that the State knows what fixed amount of salary will be needed for salary through out the fiscal year, accordingly the budget is prepared and amount is there from centre fund as well as State fund, yet always payments are delayed by four to six months, which should not be there. If others who receive monthly salary from state could be provided with, then why the teachers of the schools will not be provided?” Mr. Kalyan Kumar Ghose, learned counsel appearing on behalf of the petitioner in the light of aforementioned stand in the supplementary affidavit has submitted that though during the pendency of the writ application, the principal amount of salary had been paid but then as the petitioner had to survive by taking loan, this Court must direct for payment of interest on the aforementioned amount of salary paid to the petitioner after a delay of seven to nine years. The counsel submitted such interest should be paid at the rate of 18% per annum for which the calculation has also been given in the supplementary affidavit. Counsel further submitted that once the State has taken liability for making payment of salary and emolument of the teaching and non-teaching staff of the minority schools, it could not have adopted such a negligent and discriminatory attitude whereby and whereunder 5 the teacher of the minority school would be kept deprived of the same treatment in the matter of being paid salary as was being extended in the case of the teachers of the Government school and therefore, this Court should direct the Director of Secondary Education, In-charge of minority schools to lay down norms for ensuring regular payment of salary to the teachers of minority schools. The counsel for the State on the other hand had contended that the payment of salary to the teaching and non-teaching employees of the minority school is not being made on the basis of fund released by the Government on month to month basis rather the same is in form of grant and such grant of salary is not being made to the teachers of minority school but also to the teachers of Sanskrit School, Madarsas and other government aided educational institutions. It was further submitted that in the initial fixation of salary of a teacher of a minority school, it always consumes some time because of the fulfillment of the required procedure including approval of the Bihar Vidalaya Seva Board and approval of the fixation of salary under the order of Director, Secondary Education. The counsel for the State had further submitted that the annual grant to the minority schools for payment of salary is usually made either in one or two installments and in fact all the teachers of minority schools are being paid their salary through the District Education Officer who releases the fund upon its being made available to him from the Directorate of Education. Having given anxious consideration to the aforementioned submissions, this Court is of the opinion that so far as claim of the petitioner for payment of interest is concerned, there has to be a first determination as to whose lapse or latch led to delay in payment of salary to the petitioner. As noted above, the payment of salary of a 6 Teacher in a minority school like the petitioner is not being directly made by the Government as in the case of the Government servant rather the Government releases the grant in aid to certain types of aided institutions like minority school, Sanskrit School and Madarsas etc. and therefore once such grant, on the availability of fund, is released, the District Education Officer has to make distribution of the same by passing bill, submitted by the respective heads of the institutions. Thus, it cannot be said that only because the petitioner received her payment of salary for the period 1979 to 1999 in the year 2006, the Government must pay interest for the delayed payment of salary made to her. This Court cannot lose sight of the fact that even though the appointment of the petitioner was made by the private managing committee of her school on 8.12.1996, which was followed by her order of appointment dated 8.1.1997, the approval of the services of the petitioner by the Bihar Vidyalaya Seva Board was given only on 8.7.1999 i.e. after 2 ½ years of the appointment of the petitioner. For this period between 8.1.1997 to 8.7.1999, the State Government cannot be held responsible and saddled to pay interest to the petitioner. After the Bihar Vidyalaya Seva Board had approved the services of the petitioner on 8.7.1999, the District Education Officer, Patna by an order dated 11.9.1999 had fixed the salary of the petitioner and had made it clear that payment of salary of the petitioner would be made only after verification of the educational/training qualification of the petitioner. There is nothing on record to show that when in terms of the aforesaid order of the District Education Officer, Patna dated 11.9.1999 such verification of educational certificate/training certificate of the petitioner was offered by the petitioner and/or the Managing Committee of the school to the District Education Officer, Patna. In fact, from a letter of 7 the Headmistress of the school on 29.7.2004, it appears that the prescribed proforma (Form-Kha) was submitted by the Headmistress of the school along with the order/letter dated 29.7.2004 with an endorsement that earlier such prescribed proforma was also sent by the school on 28.12.1999. It thus remains a mystery as to whether all the required conditions for payment of salary to the petitioner were fulfilled by the Headmistress of the school on 28.12.1999 or on 29.7.2004. Unfortunately, the pleadings in this regard have also not been satisfactory specially when one peruses the counter affidavit wherein the District Education Officer , Patna has merely given details of the cheque and the amount of salary and has chosen to close the chapter by saying that the grievance of the petitioner has been redressed. There may be substance in the submission of Mr. Ghosh that the fund for such payment of salary of the petitioner was throughout available with the District Education Officer, Patna and yet he did not choose to make payment of salary of the petitioner. If that be so, the Government cannot be saddled with payment of interest of salary rather it is the individual District Education Officer in between December, 1999 to September, 2006 who would become individually responsible for making payment of interest. Again if it was the lapse or latch on the part of the Headmistress of the school in causing delay in submitting the salary bills of the petitioner in prescribed proforma, the Managing Committee and the Headmistress have to share the burden of payment of interest as then the delay in payment of salary to the petitioner was caused by them. Counsel for the State in this regard has correctly drawn attention to the averments made in the counter affidavit which have not been controverted by the petitioner by filing rejoinder affidavit that on 8 30.8.2006, the District Education Officer, Patna had written letter to the Headmistress of the school to submit the pay bills of arrears of the salary of the petitioner and when the same was submitted in next three days by the Headmistress on 2.9.2006, its payment was made within 10 days by the District Education Officer on 11.9.2006. Consequently, if the Headmistress of the school had not submitted the salary bill of the petitioner for all this period and such salary bills for the first time came to be submitted only on 2.9.2006, the officials of the State Government including the District Education Officer, Patna cannot be held to be responsible for causing delay in payment of the salary of the petitioner and in that event, the petitioner has to be compensated only by private managing committee or Headmistress of the school who had sent the salary bills after such a long lapse of period. It has to be noted that even when this writ application came to be filed on 12.9.2005, there was no grievance with regard to the payment of salary of the petitioner for the subsequent period of 1.9.1999 onwards which would mean that the petitioner like all others counter part teachers of the school in the same minority institution was receiving payment of salary. Thus the cause of delay in making the payment of salary of the petitioner for the period 20.1.1997 to 31.8.1999 has to be first found out before any responsibility on any particular person can be fixed for holding him liable to pay interest to the petitioner for delayed payment of her salary. In such view of the matter, this Court directs the Director, Secondary Education (Respondent No.3) to hold an enquiry and fix responsibility after looking into the records of the school and the office of the District Education Officer. In case, the Director, Secondary Education (Respondent No.3) comes to a conclusion that such delay in payment of salary was caused by the District Education Officer, Patna, 9 he will pass an order for payment of such interest at the rate of 6% per annum payable to the petitioner after making its recovery from the concerned District Education Officer in between 11.9.1999 to 11.9.2006. On the other hand if the Director, Secondary Education finds that it was the Headmistress of the school who was responsible in causing delay in payment of salary by submitting the delayed pay bills of the relevant period of the petitioner, such payment of interest will be made by realizing the amount from the salary of the Headmistress of the school. On the other hand if the Director, Secondary Education comes to conclusion that it was the petitioner who had not submitted her educational certificate and training certificate for verification to the office of District Education Officer as was directed in the order of the District Education Officer on the eve of fixing her salary, he would exclude the aforementioned period consumed by the petitioner in calculation of interest. The Director, Secondary Education accordingly is directed to conduct such an enquiry and pass appropriate order in terms of his enquiry report fixing the responsibility for delayed payment of salary and also to pass a consequential direction for payment of such amount of interest at the rate of 6% per annum to the petitioner which is to be realized from the concerned District Education Officer(s) and/or Headmistress(es) of the school. Coming now to the last submission of Mr. Ghosh, learned counsel for the petitioner that there is no fixed mode and criteria for payment of salary in the minority schools, this Court would direct the Principal Secretary to the Human Resources Development Department to look into this grievance of the petitioner. It would be in fact necessary for the Principal Secretary of the Human Resources Development 10 Department to lay down a firm policy with regard to the mode and manner of making payment of salary of all such educational institutions including minority school, Sanskrit school, Madarsas where the Government has to make allotment of fund for payment of regular salary to its teaching and non-teaching staffs within the prescribed sanction strength. The Principal Secretary to Human Resources Development Department therefore after examining all aspect of the matter must come out with a clear decision as to how and in which way the payment of teaching and non-teaching of all the institutions of the State of Bihar would be made in future. Such a decision must be taken by the Principal Secretary within a period of six months of the receipt/production of the copy of this order so that at least in future the teaching and non-teaching employees of aided institutions are ensured monthly payment of their salary. With the aforementioned observations / directions, this writ application is disposed of. PATNA HIGH COURT (Mihir Kumar Jha, J.) Dated, The 20th August, 2008 Rsh