IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5080 of 1999 Kumar Krishna Yadav, son of late Banwari Krishna Yadav, resident of village and P.O. Bisfi, P.S. Bisfi, District Madhubani, at present working as Assistant Teacher in High School, Ramdiri, Begusarai … Petitioner Versus 1. The State Of Bihar 2. The Director, Secondary Education, Govt. of Bihar, Bihar Secondary Education Office, Budh Marg, Patna-1 … Respondents ---------------------------------- 11. 11.8.2011 Heard Mr. Krishna Murari, learned counsel for the petitioner and the counsel for the State. In this writ application the petitioner has made the following relief: “That this is an application for issuance of a writ in the nature of mandamus and/or any other appropriate writ, order or direction commanding the respondents to treat the petitioner as the Headmaster of Vidyapati High School, Bisfi, Madhubani (hereinafter referred to as the School) with effect from 2.10.1980 since when the aforesaid school was taken over by the Govt. of Bihar in the Department of Education and to pay to the petitioner his, due salary of the post of Headmaster, and further to issue appointment letter of the petitioner of the post of Headmaster, which has been arbitrarily withheld by respondent no.2 even after obtaining the concurrence of the Vidyalaya Sewa Board, Bihar, Patna for the same.” During the pendency of this writ application the petitioner has also filed an interlocutory application wherein apart from the aforementioned relief the petitioner has also sought quashing of that part of the order passed by the Director, 2 Secondary Education dated 14.7.2001, whereby and whereunder the petitioner’s appointment by way of promotion on the post of Headmaster has been given approval with effect from the retrospective date i.e. 18.7.1998 in terms of the concurrence given by the Vidyalaya Sewa Board in its letter dated 18.7.1998. Mr. Krishna Murari, learned counsel for the petitioner, would submit that there is no dispute that the petitioner was the Headmaster of the School in question, namely, Vidyapati Uchcha Vidyalaya, Bisfi, Madhubani which came to be established on 2.1.1971 and has also received the Government approval for establishment on 19.1.1976. He has also pointed out that the School had received permanent recognition on 26.4.1978 but the petitioner was shown only as Assistant Teacher in such order of permanent recognition whereafter he had filed a representation to Madhyamik Shiksha Board and on such representation he was designated as Incharge Headmaster till appointment of a permanent Headmaster. Proceeding further Mr. Murari has pointed out that the School was taken over on 2.10.1980 in terms of the Bihar Non-governmental Secondary School (Managing and Taking Control) Ordinance, 1980 which later on was enacted as Bihar Act 33 of 1982. The petitioner claims that he had continued to work as Incharge Headmaster and ultimately the competent authority, namely, Director, Secondary Education, had recommended his case to the Vidyalaya Sewa Board vide his letter dated 4.12.1997 for giving concurrence for his being made 3 permanent Headmaster, whereafter the Vidyalaya Sewa Board by its order dated 18.7.1998 has granted such concurrence but the promotion of the petitioner was notified only on 14.7.2001 w.e.f. 18.7.1998 that too after filing of this writ petition on 26.5.1999. In this context he has laid stress on the aspect that it was only when the petitioner had filed this writ application that the Director, Secondary Education on 14.7.2001 had notified the appointment of the petitioner by way of promotion with retrospective effect i.e. 18.7.1998 in terms of the concurrence given by the Vidyalaya Sewa Board. According to Mr. Krishna Murari such promotion to the petitioner w.e.f. 18.7.1998 was in teeth of Government scheme, inasmuch as the petitioner’s services were to be deemed to have been taken over as founder Headmaster of the School with effect from 2.10.1980 in view of the provisions contained in Take Over Act read with the Government circular, contained in Memo No. 511 dated 20.11.1981 as also its modification made by the Education Department in its letter No. 1072 dated 9.11.1987. He has also in this regard placed reliance on the judgment of this Court in the case of Kamta Prasad Singh vs. the State of Bihar & ors., reported in 1997(1) PLJR 114, with an added emphasis on paragraph 7 thereof. Thus, he has submitted that the moment Vidyalaya Sewa Board had given concurrence for appointment/ promotion of the petitioner on the post of Headmaster in the school the same had to date back w.e.f. 2.10.1980 and therefore, this Court should not only quash the 4 order of the Director, Secondary Education dated 14.7.2001 but also direct him to give the petitioner all benefits of his such promotion on the post of Headmaster in the school w.e.f. 2.10.1980. Mr. Anshuman, A.C. to AAG I, learned counsel appearing on behalf of the State, on the other hand, would submit that since the concurrence was given by the Vidyalaya Sewa Board only with effect from 18.7.1998 the Director, Secondary Education, could not have given such promotion to the petitioner with retrospective effect of 2.10.1980 and that there would be no question of take over of the services of the petitioner as a Headmaster of the School, inasmuch as he was not the Headmaster recognized by the Madhyamik Shiksha Board at the time of recognition of the School. In reply Mr. Murari would submit that there is no dispute that the petitioner was qualified to become Headmaster of the School with effect from 2.10.1980, inasmuch as he had fulfilled all the requisite qualification and conditions of founder Headmaster as laid down in the Government circular No. 511 dated 20.11.1981 which also got clarified by the subsequent amendment made by the Government letter No. 1072 dated 9.11.1987. In the considered opinion of this Court the whole issue as with regard to the petitioner being recognized as founder Headmaster would squarely remain dependent on his fulfilment of 5 the conditions laid down in circular No. 511 dated 20.11.1981, which reads as follows:- ^^laLFkkid izHkkjh iz/kkuk/;kidksa dh U;wure ;ksX;rk ,oa vgZrk fuEufyf[kr gksxh& ¼d½ fdlh ekU;rk izkIr fo'ofo|ky; ls dyk] foKku] vFkok okf.kT; esa Lukrd fMxzhA ¼[k½ fdlh ekU;rk izkIr fo'ofo|ky;] jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj ds f'k{kk foHkkx }kjk iznRr ch0,M0] fMi bu ,M0] fMi&bu Vhp] lh0 Vh0 vFkok jkT; ljdkj }kjk ?kksf"kr led{k f'k{kd izf'k{k.k dh ;ksX;rkA ¼x½ fo|ky; dh izLohd`fr dh frfFk dks] fo?kfVr ek/;fed f'k{kk cksMZ ;k jkT; ljdkj }kjk ekU;rk izkIr ek/;fed] jkT; ljdkj }kjk lapkfyr ek/;fed ;k dsUnzh; ljdkj }kjk ekU;rk izkIr cksMZ] laxBu }kjk jkT; ds Hkhrj lapkfyr izLohd`fr ek/;fed fo|ky; ¼orZeku fo|ky; lfgr½ Lukrd gksus ds ckn 7 o"kksZa dk f'k{k.k vuqHko c'krsZ fd orZeku fo|ky; esa LFkkiuk dh vuqefr dh frfFk ls izLohd`fr dh frfFk rd] mudh lsok mDr fo|ky; esa yxkrkj fcuk dze Hkax ds gksA** This portion was amended by the Government letter No. 1072 dated 9.11.1987 in the following manner: ^^fcgkj ljdkj] f'k{kk foHkkx i=kad 1072 ¼fof/k½ fnukad 9-11-87] izs"kd Jh fo|kuUn feJ] ljdkj ds fo'ks"k lfpoA lsok esa funs'kd ¼ek/;fed f'k{kk½ lg&la;qDr lfpo] f'k{kk foHkkx] fcgkj] iVukA fo"k;&2-10-80 rd izLohd`r jktdh;d`r ek/;fed fo|ky;ksa esa iz/kkuk/;kid ds fjDr inksa ij fo|ky; esa dk;Zjr laLFkkid iz/kkuk/;kidksa dh fu;qfDrA mi;qZDr fo"k;d jktdh; vkns'k la[;k 511 fnukad 20-11- 81 dh dafMdk 1 ,oa 2¼x½ esa laLFkkid iz/kkuk/;kid dh fu;qfDr gsrq mudk lsok vuqHko dh x.kuk fdl frfFk rd dh tk;sxh mlesa fojks/kkHkkl FkkA bl fcUnq ij ljdkj us leqfpr :i ls fopkj dj mi;qZDr jkT;kns'k la[;k 511 fnukad 20-11-81 dh dafMdk 2¼x½ dks fuEuor~ la'kksf/kr djus dk fu.kZ; fy;k gSA ^^2¼x½ fnukad 2-10-80 dks fo?kfVr ek/;fed f'k{kk cksMZ ;k jkT; ljdkj }kjk ekU;rk izkIr ek/;fed fo|ky;] jkT; ljdkj }kjk lapkfyr ek/;fed ;k dsUnzh; ljdkj }kjk ekU;rk izkIr cksMZ@laxBu }kjk jkT; ds Hkhrj lapkfyr izLohd`r ek/;fed fo|ky; ¼oRrZeku fo|ky; lfgr½ Lukrd gksus ds ckn 7 o"kZ dk f'k{k.k vuqHko gks] c'krsZ fd oRrZeku fo|ky; esa LFkkiuk dh vuqefr dh frfFk ls izLohd`fr dh frfFk rd mudh lsok mDr fo|ky; esa yxkrkj fcuk dzeHkax ds gksaA** Thus, from the reading of the aforesaid amended clause 2(ga) of the Government Circular it would be clear that in order of being declared a founder Headmaster, a teacher must possess seven years teaching experience after acquiring 6 qualification of graduate as on 2.10.1980 either in a secondary school recognized by the dissolved Secondary Education Board or being run by the State Government or in a secondary school of this State recognized by the Board/ Organization approved by the Central Government provided that he has continued uninterrupted service in concerned present school from the date of approval of establishment of school to the date of its recognition. Judged in this background if the recommendation made in favour of the petitioner for his being appointed as a permanent Headmaster in the letter of the Director, Secondary Education dated 4th December, 1997 is examined it becomes clear that while making such a recommendation he had taken into account the services of the petitioner rendered in the school in question from the date of approval of establishment i.e. 19.1.1976 being 4 years 5 months and 13 days as also the previous experience of nearly two years for the period 10.7.1961 to 23.7.1963 in High School, NAWAS another recognized school which would only give him experience 6 years 5 months and 13 days but then Mr. Murari is of the view that the petitioner would also be entitled for counting five years teaching experience while he was working in the Armed Forces under the Army Education Corps as an Educational Instructor between 1.8.1963 to 29.5.1969. It is only by reckoning of these five years that it is submitted that the petitioner would qualify for being recognized as founder Headmaster. 7 In the considered opinion of this Court on a plain reading of the Circular dated 20.11.1981 and its modification made in the Circular dated 9.11.1987 a person employed in Armed Forces on the post of Educational Instructor by way of a member of Army Education Corps would not qualify to count the experience for the purposes of being made a Headmaster of a secondary school. In this context it has to be noted that such teaching experience has to be acquired by teaching in a secondary school recognized either by the Board/ Organization approved by the Central Government and that too the school in question must be functioning in this State. That is how the expression “dsUnzh; ljdkj }kjk ekU;rk izkIr cksMZ@laxBu }kjk jkT; ds Hkhrj lapkfyr izLohd`r ek/;fed fo|ky; will have to be read. In other words, if a teacher prior to joining the school in question in which he has a claim for being recognized as a founder Headmaster has worked in a dsUnzh; fo|ky; recognized by dsUnzh; fo|ky; laxBu or any school recognized by the Central Board of Secondary Education which is functioning in the State of Bihar, can tag up the experience but a person like the petitioner who was working in Army Education Corps on the post of Education Instructor cannot be said to be teaching in a secondary school recognized by the Board/ Organization of the Central Government. At this stage Mr. Krishna Murari, however, would submit that the petitioner had submitted evidence of his teaching in a secondary school while he was associated in Army Education 8 Corps and it is on the basis of that certificate that the Director, Secondary Education had made a recommendation for also counting the experience of the petitioner. Unfortunately neither such a clear statement has been made in the writ application nor any document in support of the aforementioned claim of the petitioner being associated in teaching work in a secondary school in this State while serving in Army Education Corps has been produced. Thus, this Court would not be in a position to accept the submission of the Mr. Murari that the petitioner had fulfilled the requisite criteria for being declared as a founder Headmaster in terms of the Circular dated 20.11.1981 read with the Circular dated 9.11.1987. At the same time as the respondents also have not clearly spelt out this aspect in their counter affidavit, this Court for meeting the ends of justice would feel it necessary that the Director, Secondary Education, should once again examine the claim of the petitioner of fulfilling the terms and conditions for being declared founder Headmaster in terms of the State Govt. Circular dated 20.11.1981 read with the Circular dated 9.11.1987. There is yet another aspect which will be required to be gone into in the case of the petitioner for deciding the effective date of his being promoted on the post of Headmaster of the school. The State Government in Circular No. 510 dated 20.11.1981 had laid down the manner to fill up the vacant post of Headmaster in the schools which were taken over on 2.10.1980. It is not in dispute that the post of Headmaster in the school in 9 question was vacant, inasmuch as Madhyamik Shiksha Board by an order dated 27.9.1979 (Annexure 1) had granted permission to the petitioner to work as In-charge Headmaster till the appointment of permanent Headmaster. Thus on 2.10.1980 the post of Headmaster of the school will be deemed to be vacant and the cases of all the teachers of that very school by treating that school as an unit will have to be considered for filling up the post of Headmaster by way of promotion. Thus, if the petitioner could qualify even under Circular No. 510 dated 20.11.1981, his such promotion could be made but then again the petitioner will be required to possess ten years of teaching experience in a recognized secondary school as on 2.10.1980. The petitioner’s case of his serving a recognized High School, namely, High School, Nahas, Khangraitha in between 10.7.1961 to 30.11.1961 and again from 3.1.1962 to 23.7.1963 would give him a teaching experience of nearly two years and therefore, unless it is proven by him that he was teaching in a secondary school recognized by the C.B.S.E. in this State while serving Army Education Corps on the post of Educational Instructor in between 1.8.1963 to 29.5.1969, he cannot qualify either under Circular No. 510 dated 20.11.1981 or under Circular No. 511 dated 20.11.1981 which are the only two provisions made for recognizing the services of a person working in a taken over school as Headmaster because in other cases the post of Headmaster in a taken over school had to be filled up from the combined seniority list of all the teachers of 10 taken over schools of the State. There would be no difficulty in accepting the submission of the learned counsel for the petitioner that the ratio laid down by this Court in the case of Kamta Prasad Singh (supra) would qualify a duly recognized founder Headmaster to reckon his service on the post of Headmaster with effect from 2.10.1980 but then the crucial question would be whether the petitioner could be recognized as a founder Headmaster. As noted above, the petitioner’s case of being recognized as founder Headmaster would fully depend on his fulfilment of the terms and conditions of Clause 2(ga) in the amended circular dated 9.11.1987 already quoted above. Thus, the Director, Secondary Education will have to come to a conclusion that the services rendered by the petitioner while serving Army Education Corps would qualify by way of adding teaching experience for which he will have to go into the question as to whether the petitioner was teaching experience in any Army secondary school recognized by the C.B.S.E. situated in this State. In other words, if the petitioner was serving out side the State of Bihar while being associated in Army Education Corps and even had acquired teaching experience in Army secondary school, that would not qualify in terms of Circular No. 511 dated 20.11.1981 as modified by Circular No. 1072 dated 9.11.1987. Since this aspect of the matter has not at all been gone into by the Director, Secondary Education and now the power of Vidhyalaya Sewa Board of giving approval has also been vested in the 11 Director, Secondary Education, this Court would find it necessary that a full-fledged enquiry is conducted by the Director, Secondary Education for deciding the claim of the petitioner for being recognized as a founder Headmaster of the school in question with effect from 2.10.1980. ” In that view of the matter, this writ application is disposed of with a direction to the Director, Secondary Education to re-examine the case of the petitioner and if it is found that the petitioner was working in a Army secondary school in the State of Bihar recognized by the Central Government/ the Board recognized by the Central Government including C.B.S.E. while he was serving as Instructor in the Army Education Corps he will reconsider his decision contained in the impugned order dated 14.7.2001 as with regard to grant of promotion/ appointment on the post of Headmaster of the School w.e.f. 2.10.1980 but if it is held by him that the petitioner while serving the Army was not associated with the teaching in secondary school in the State of Bihar he would pass an order rejecting such claim of the petitioner of being founder Headmaster and leave the matter at rest by allowing the petitioner to continue with the promotion w.e.f. 18.7.1998. It is also made clear that if the claim of the petitioner as founder Headmaster is allowed his such promotion would date back to the date take over of his school i.e. 2.10.1980, inasmuch as the circular No. 511 dated 20.11.1981 had envisaged recognition of such founder Headmaster from the date of its take over. It is this 12 aspect of the matter which also stands settled in the judgment of this Court in the case of Kamta Prasad Singh (supra). In view of the fact that the petitioner has already retired in the year 1999 and his claim for enhanced retirement benefit may undergo a radical change if he is allowed the benefit of founder Headmaster with effect from the take over of the School, such exercise by the Director, Secondary Education, must be completed within a period of six months of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/