IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10866 of 1997 RAM KUMAR VERMA, Son of Ragho Prasad Verma, Assistant Teacher, Middle School, Affaur, P.O. Affaur, Via Khaira, District Saran (Chapra). Versus 1.THE STATE OF BIHAR 2.The Director, Primary Education Cum Special Secretary, Education Department, New Secretariat, Patna. 3.District Education Superintendent, Sadar Chapra. 4.Dy. Inspector of Schools (Area Officer) Sadar Chapra. 5.District Education Establishment committee, through District Superintendent of Education, Sadar, Chapra. ----------- 4 12.8.2010 Heard Mr. P.K. Verma, learned counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of appropriate writ/writs for quashing the order dated 9.9.92 passed by the Director, Primary Education (Respondent No.2) Annexure-9 rejecting the claim of the petitioner on untenable and unsustainable grounds and also in complete disregard to the facts and records and the specific report of the District Education Superintendent. Further for directions in the nature of Mandamus commanding the respondents to recognize the status of the petitioner as the Headmaster and to give him all the benefits of service with effect from the due date.” In support of the aforementioned prayer Mr. Verma, learned counsel for the petitioner has submitted that when there is no dispute as with regard to the appointment of the petitioner on 2 the post of Headmaster by the Managing Committee of the School on 21.12.1973 as would appear from the letter of the Secretary of the Managing committee addressed to the Sub. Inspector of Schools Sadar, Chapra, the decision taken by the Director, Primary Education in the impugned order holding the petitioner being not entitled for take over of his services as the Headmaster of the School, must be held to be both arbitrary and illegal. In this context Mr. Verma places reliance on the report of the District Superintendent of Education to contend that at the time of take over of the School of the petitioner a representation for recognizing his services as also payment of salary to the post of Headmaster was pending and therefore non payment of salary of the post of Headmaster to the petitioner by itself could not have been made a circumstance to deny the take over of services of the petitioner as Headmaster of the School. Reliance has also been placed on an unreported judgment of this court in C.W.J.C. No.991 of 1997 (Braj Bhushan Sharma Vs. State of Bihar & Ors) disposed of on 12.9.1971. Counsel for the State, on the other hand, in the light of the averments made in the counter affidavit as also the facts mentioned in the impugned order would submit that the School in question was recognized as a non government School prior to its take over by the State Government and therefore when the School was taken over with the assets and liabilities the service history of all the teachers were well known as they were already receiving 3 their salary from the fund of the government by way of grant in aid. He would, therefore, submit that when the petitioner‟s services was taken over only as a matric trained teacher and he was also paid salary of matric trained, the government was not bound to recognize services of the petitioner as Headmaster in B.A. trained scale of pay. In this context counsel has also made it clear that the case of Braj Bhushan Sharma (Supra) was absolutely different on the facts, inasmuch as, the school Mr. Sharma, the petitioner of that case, was not recognized as a Primary/ Middle School receiving grant in aid nor were services of Mr. Sharma ever recognized even as matric trained teacher. He would, therefore, contend that when the conditions of take over of Primary and Middle School by did not postulate the concept of takeover as is where is the petitioner would not be entitled for the relief of recognition of his service as Headmaster of the school wherein the State government had already some regulatory control in the form of making payment of salary by way of grant in aid to the employees of the school. In the considered opinion of this Court the petitioner by raising a wholly stale claim after more than 18 years of his alleged entitlement for taking over of his services as headmaster of the school, has sought to displace many admitted facts which could have surfaced that the petitioner filed his such claim immediately after taking over of the school on 23.04.1974. It has to be always kept in mind while deciding such cases that prior to 4 01.01.1971, the status of the Primary and Middle School of this State was that of a non Governmental schools and in fact it was only enforcement of Bihar non Government Elementary Schools (taking over of control) Act 1976 (Bihar Act 30 of 1976 hereinafter referred to as the Act), five different types of school were sought to be taken over namely a school administered by the District Board and Zila Parishad under the provisions of:- (i) Bihar and Orissa Local Self Government Act. (ii) School established and administered by the Municipal Board under the provisions of Bihar and Orissa Municipal Act-1922. (iii) a school established and administered by the Patna Municipal Corporation under the provision of the Patna Municipal Corporation Act, 1951(Bihar Act XIII of 1952). (iv) aided Elementary School i.e. Private School which has been in receipt of Government grant prior of its being taken over by the State Government and which is administered by the Managing Committee and (v) Unaided Elementary School i.e. Private School (vi) recognized by the Government which is not in receipt of any Government grant. Thus, when the Act came into force was promulgated and published in the Bihar Gazette on 06.02.1976 giving it a 5 retrospective effect, it had also envisaged taking over of the non Government Elementary Schools by the State Government by making following provision in Section 3 reading as follows:- ‘Section 3. Taking over of Non- Government Elementary schools by State Government.- (1) Elementary schools managed by the district Board, Zila Parishad, the Municipal Board, and the Patna Municipal Corporation, and those opened under the Expansion and improvement scheme shall be deemed to have been taken over by the State Government with effect from the 1st day of January, 1971. (2) Aided Elementary School, the Managing Committees of which have handed over voluntarily the control of the school to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District committee referred to in sub-section(4) for this purpose. (3) Elementary schools administered by any public or private undertakings shall be taken over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein. (4) (a) With regard to taking over of Elementary schools other than those mentioned in sub- sections (1) and (3) there shall be a District Committee in each district which shall examine the feasibility of taking over of such schools by the State Government and which shall consist of the following members: (i) Deputy Development Commissioner/Administrator, District Board- Chairman. 6 (ii) District Superintendent of Education- Secretary. Members (iii) District Education Officer. (iv) District Inspector of Schools. (v) subdivisional Education Officer of the concerned subdivision, and (vi) Deputy Inspector of Schools concerned. (b) The State Government may, from time to time make changes in the personnel of the District Committees so constituted. From the reading of Section-3, therefore, it would be clear that so far the school of the petitioner is concerned it was an aided Elementary School, inasmuch as, it had been recognized as an aided school and in which the appointment of the petitioner having been made by the Managing Committee on 01.09.1972, its approval for the purposes of payment of salary by way of grant in aid was accorded by the order of District Superintendent of Education vide memo no. 11828/25 dated 15.09.1973 (Annexure- 1) w.e.f 11.06.1973 in the matric trained scale of pay of Rs. 50 as is evident from Annexure-1 to the writ application. The school, however, was taken over by the Government as a Government Middle School only w.e.f from 23.04.1974 and admittedly on that day his status was that of matric trained teacher. Thus in view of Section 4 laying down the consequences of taking over reading as follows:- „Consequences of taking over.- (1) All the assets and properties whether movable or immovable 7 owned or possessed by the schools taken over by the State Government under section 3 including lands, buildings, documents, books and registers relating to the schools shall stand transferred to and be deemed to have come into the possession and ownershipof the State Government. (2) Every officer, teacher, or other employee holding any office or posts in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of State government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government. (3) The service of employees of local bodies working on deputation in the office of the District Superintendent of Education, Subdivisional Education Officer cum Municipal Education officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over by the Government and such employees shall in case of their opting to Government service, be deemed to have become Government servants with effect from the date of enforcement of this Act. The petitioner‟s service was also deemed to have been taken over in terms of Section-4(2) of the Act only as a matric trained teacher. Normally, this could have been the end of the matter, as the petitioner had to, however, earn his promotion in the 8 I.A trained scale of pay and B.A Scale of pay as per the seniority of the teachers of the Government school but after 14 to 15 years of his working as matric trained teacher he had a stake to claim that his services ought to have been over as a Headmaster of the School in the year 1974 and when such claim was not allowed by the Director of Primary Education in his order dated 19.11.1990, he had filed writ application in this Court being C.W.J.C NO. 3308 of 1991, wherein, this Court by its order dated 25.04.1997 had quashed the order dated 19.11.1990, on the ground that no reasons were assigned therein for rejecting such claim of the petitioner, this Court had also accordingly directed the Director of Primary Education to examine the matter afresh and pass his reasoned order after considering the letter of District Superintendent of Education dated 03.10.1988, which was by way of not furnished to the Office of Director of Primary Education in relation to lawyers notice given on behalf of the petitioner. The impugned order in fact has been passed by way of compliance of the directions contained in the order of this Court dated 25.04.1997, memo no. 3308 of 1991, wherein, it had been held as follows:- ^^fnukad 22-8-97 dks vkosnd ,oa ftyk f'k{kk v/kh{kd mifLFkr gq,A ftyk f'k{kk v/kh{kd ,oa Jh jke dqekj oekZ dks lquk x;kA ftyk f'k{kk v/kh{kd us ,d izfrosnu Hkh lefiZr fd;kA ftyk f'k{kk v/kh{kd ds izfrosnu ,oa muds }kjk izLrqr rF;kas ds vk/kkj ij Jh oekZ ds laca/k esa fLFkfr fuEuor Li"V gksrh gSA Jh oekZ dh fu;qfDr fo|ky; dh izca/k lfefr ds }kjk lokksZPp e/; fo|ky; vQksj esa esfVzd izf'kf{kr osrueku esa fnukad 1-9-92 dks gqbZ ftldk foHkkxh; vuqeksnu ftyk f'k{kk v/kh{kd ds 9 i=kad 11823&25 fnukad 15-9-73 ds }kjk nh xgZA Jh oekZ dh fu;qfDr ds iwoZ ;ksX;rk ch-,M0 dh Fkh ijUrq mudh fu;qfDr eSfVzd izf'kf{kr osrueku esa gksus ds vuqeksnu eSfVzd izf'kf{kr in ds fo:n~/k gh fd;k x;kA mudk fu;qfDr fdz;k dks izca/k lfefr ds }kjk iqu% iz/kkuk/;id ds in ij fnukad 21-12-73 dh xbZ ijUrq mUgsa iz/kkuk/;kid ds in dk u rks vuqeksnu izkIr gqvk ugha osru dk Hkqxrku fd;k x;kA pwafd Jh oekZ fo|ky; ds vf/kxzg.k dh frfFk dks eSfVzd izf'kf{kr dk osrueku izkIr dj jgs FksA vr% mudh lsok dk vf/kxzgu esfVzd izf'kf{kr ds osrueku esa gh d;k x;kA Jh oekZ dks fo|ky; dk izca/k lfefr }kjk iz/kkuk/;kid ds in dk osrueku izkIr djus laca/kh lk{; miLFkkfir djus dk vuqjks/k fd;k x;kA muds }kjk osru Hkqxrku iath dh Nk;kizfr izLrqr dh xbZ ftlds voyksdu ls Li"V gqvk fd o"kZ 1974 esa e/; fo|ky; ds iz/kkuk/;kid in ds fy;s izpfyr osrueku 387&600@& ds osrueku esa dHkh osru Hkqxrku ugha izkIr gqvk gSA iz/kkuk/;kid ds :I esa mudh fu;qfDr dk vuqeksnu izkIr ugha gqvk gS bls Hkh mUgksaus Lohdkj fd;kA ;kfpdk ds lkFk layXu vuqyXud&6 tks ftyk f'k{kk v/kh{kd lkj.k Nijk dks Jh oekZ dks iz/kkuk/;kid in ij fu;qfDr dk vuqeksnu rFkk osrueku nsus laca/kh izfrosnu gS ds voyksdu ls Li"V gksrk gS fd Jh oekZ dk in ,oa osrueku ugha nsus ds fy, foHkkx ij /;ku ugha nsus dk vkjksi yxkrs gq, ;g fu"d"kZ fudkyk gS fd Jh oekZ dk nkok U;k;ksfpr gSaA ijUrq ftyk f'k{kk v/kh{kd us fdlh fu;e dk gokyk ugha fn;k gS fd fdl fu;e ds vkyksd esa Jh oekZ dk nkok U;k;ksfpr gSA mudk izfrosnu ,d rjQk izrhr gksrk gSA ;gka ;g mYys[kuh; gS fd vkbZ0 ,0 izf'kf{kr ,oa Lukrd izf'kf{kr osrueku ds in izksUufr vU; in gSaA bl in ij lh/kh fu;qfDr vFkok izksUufr ojh;rk lwph ds vk/kkj ij ns; gSA bl izdkj dk foHkkxh; funs'k i= la[;k 520 fnukad 9-2-1966] i=kad 616 fnukad 10-2-1960] i=kad 1430 fnukad 12-5-1972 ,oa 44 fnukad 5-2- 1972 fn;k x;k gSA mlds vuqwlkj izR;sd ikapkax o"kZ esa Lukrd izf'kf{kr ;ksX;rk izkIr fu;qDr@;ksX;rk c<+kus okys f'k{kdksa dks o"kZokj ojh;rk lwph rS;kj dj vkus okys o"kksZ esas miyC/k gksus okyh fjfDr ds fo:n~/k izksUufr nsus dk izko/kku fd;k x;k FkkA pwafd Jh oekZ dks fu;qfDr eSfVzd izf'kf{kr osrueku esa fnukad 1-9-1972 dks gqbZ Fkh vkSj ek= yxHkx lok o"kZ ds ckn fnukad 21- 10 12-1973 ls mUgsa Lukrd izf'kf{kr dk osrueku ns fn;k x;k tks fdlh Hkh n`f"Vdks.k ls fu;;ksfpr ugh gSA laHkor% blh dkj.k foHkkx }kjk Jh oekZ dks iz/kkuk/;kid ds in ij fu;qfDr dk vuqeksnu ugha fd;k x;kA mij vafdr rF;ksa ds vk/kkj ij ftyk f'k{kk v/kh{kd dk izfrosnu A;kfpdk dk vuqyXud&6A Lohdkj djus ;ksX; ugha gSA iw.kZ fopkjksijkUr esa bl fu"d"kZ ij igwaprk gWw fd pwafd Jh oekZ dh Lukrd izf'kf{kr osrueku esa fu;qfDr fu;;ksfpr ugha gksa] fu;qfDr dk foHkkxh; vuqeksnu izkIr ugha gS rFkk mUgsa fo}ky; ds vf/kxzg.k dh frfFk dHkh Lukrd izf'kf{kr osrueku dk Hkqxrku izkIr ugha gqvkA vr% fo|ky; ds vf/kxg.k dh frfFk ls Lukrd izf'kf{kr osrueku dk Jh oekZ dk nkok Lohdkj djus yk;d ugha gSA vr% mudh nkok vLohd`r fd;k tkrk gSA g0@& ,l0 ds0 usxh funs'kd] izkFkfed f'k{kk lg fo'ks"k lfpoA From the reading of the aforesaid order, it would be absolutely clear that even though, the petitioner was appointed as matric trained teacher and his approval of service was also given as matric trained teacher by the District Superintendent of Education, the claim of the petitioner that he was appointed as Headmaster by the Managing Committee of the school was not substantiated, inasmuch as, his such appointment made in the recognized aided school was never approved by the Government functionary enabling him to either hold the post of Headmaster or draw salary of the I.A trained or B.A trained teacher. The director, therefore, had gone to hold that since, the petitioner was in receipt of matric trained pay scale at the time of taking over of the school on 15.04.1974, he could not have been granted B.A trained scale from the date of taking over of the school. In this context, it would be also relevant to quote paragraph no.5 of the counter 11 affidavit shown by the Director of Primary Education himself which reads as follows:- ‘That the deponent further states and submits that at the time of hearing the petitioner himself admitted that his appointment to the post of Headmaster has never been approved nor the Managing Committee ever paid him in graduate trained pay scale.’ Once this aspect, therefore, would become clear that the petitioner‟s services were never approved on the post of Headmaster by the Competent Authority of the Education Department, the claim of the petitioner of his being given such promotion by the Managing Committee from the post of matric trained teacher to B.A trained teacher on 21.12.1973 would itself fall flat on the ground on 21.12.1973, the school was not only recognized aided school but it had to follow the Government norms for filling up the post of Headmaster by way of giving promotion in B.A trained pay scale. It has to be also kept in mind that the Government vide its departmental instructions contained in letter 520 dated 09.02.1966 , letter no. 616 dated 1.02.1968 and letter no. 1430 dated 12.05.1972 had clearly specified the post of B.A trained teacher to be the promotional post of matric trained and I.A trained teacher which was to be filled up only on the basis of seniority list prepared for the entire cadre of teachers of matric trained. It is in this respect that the reasoning of the Director of Primary Education in the impugned order and the petitioner being promoted on the post of B.A trained Teacher in a span of 15 12 months to be wholly unreasonable and in fact impermissible under the Government circulars has to be appreciated. The statutory woven by the petitioner that there was an instruction of the Deputy Inspector of school to the Managing Committee on 30.11.1973 requiring the Managing Committee of the school to fill up the post of Headmaster as a result whereof the petitioner was appointed on the post of Headmaster dated 21.12.1973 also does not inspire confidence. The over emphasized reliance by the learned counsel for the petitioner on the letter of the Secretary to the Managing Committee dated 21.12.1973 as contained in Annexure-2 is itself wholly misplaced and to appreciate this aspect, it would be relevant to quote the content of Annexure-2 in extenso, which reads as follows:- ^^lsok esa] vdkSj fo/kky; mi fujh{kd] 21&12&73 lnj Nijk A egk’;] vkids i=kad 2050 fnukad 30&11&73 fd fu;er%Lukrd izf’f{kr dks iz/kkuk/;kid ds in ij j[ksa ds vkyksd esa dguk gS fd bl fo/kky; us Jh jke dqekj ’ekZ Lukrd izf’{kd gSaA vkt fnukad 21&12&73 dks bUgsa iz/kkuk/;kid in ij fu;qDr fd;k x;kA budh fu;qfDr dk vuqeksnu foHkkx ’h/kz nsa A fo/kky; mi fujh{kd lnj Nijk ,oa Jh jkedqekj ’ekZ dks lwpukFkZ ,oa vko’;d dk;kZFkZ izsf"kr lfpo** would itself expose the falsehood in the case of the petitioner, inasmuch as, the aforesaid letter is said to be written by 13 the Secretary to the Deputy Inspector of School Sadar Chhapra and surprisingly its copy was also forwarded to the same authority. Moreover, on 21.12.1973 the date on which the aforesaid letter had been written by the Secretary of the School for seeking approval of the appointment of the petitioner on the post of Headmaster allegedly made on 21.12.1973 itself. Such appointment of the petitioner in a recognized elementary school on the post of Headmaster with the facility of payment of salary could be made only after advertisement of the post by the Managing Committee and undergoing selection. There is however, nothing on the record to show that the Managing Committee in fact had ever appointed the petitioner on the post of Headmaster because the aforesaid communication of the Secretary dated 21.12.1973 which now is said to be in the form of an instant decision on that very day when a communication was made by Deputy Inspector of School to appoint Headmaster in accordance with the Rules. Thus the alleged letter of the Secretary of the school seeking approval of services of the petitioner, from Deputy Inspector of School would not inspire confidence because on an earlier occasion the District superintendent of Education, Saran had approved the service of the petitioner in the matric trained scale of pay vide his letter no. 1182 dated 15.09.1973 (Annexure- 1). In this context the letter dated 21.12.1973 addressed to the Deputy Inspector of Schools and a copy also to him goes a long way to explain the absurdity in the claim of the petitioner of being 14 appointed on the post of Headmaster. The petitioner was in fact never recognized as a graduate trained teacher despite the fact that even in the order granting approval of services of the petitioner as matric trained teacher dated 15.09.1973 his qualification of being B.A. trained was noted by the District Superintendent of Education, Saran. In that view of the matter, there is sufficient justification in the finding recorded by the Director, Primary Education in the impugned order that no one could have been given promotion or appointment on the post of Headmaster with only one year of experience on the post of Assistant Teacher. The other finding given by the Director, Primary Education with regard to payment of salary to the petitioner in matric trained scale is also not disputed, but Mr. Verma says that the District Establishment committee may not grant salary to the petitioner on the graduate trained pay scale for holding the post of Headmaster, but then as the work was taken from him in the capacity of Headmaster prior to take over of the School, the Government is bound to recognize the services of the petitioner at the time of take over as Headmaster of the School and also direct for payment of salary in the graduate trained scale of pay. It is however very difficult for this Court to accept this submission of the petitioner as the services of the petitioner was taken over only in the matric trained scale of pay. The petitioner in fact had woken up in the year 1991 by filing a writ application 15 C.W.J.C. NO. 3308 of 1991 and as there was sufficient delay in the matter of reopening of the whole issue, inasmuch as, he had accepted his services to be taken over in the matric trained scale of pay for a period of 17 years, he could not have successfully got relief for being recognized on the post of Headmaster of the school unless the take over notification of the school had also envisaged the automatic concept of take over of the employees on “as is where is”basis. There is however nothing on the record to show that the government had ever taken over the school with the services of the petitioner in graduate trained pay scale on the sanctioned post of the Headmaster. From the quoted portion of para no. 7 of the counter affidavit, it is clear that the Managing Committee had also not paid salary of the Graduate Trained Teacher to the petitioner which was also admitted by him in course of his hearing before the Director of Primary Education. In that view of the matter, this Court would not find any merit in this application especially when the petitioner has not produced even a chit of paper as with regard to actual grant of salary on the post of Headmaster even by the Managing Committee of the School. As a matter of fact, the Managing Committee of the School was wholly dependent for payment of salary on the Government and the Government, as noted above, had made payment of salary to the petitioner only on the post of matric trained scale of pay. In this regard it has also to be mentioned here that the copy of the said counter affidavit despite 16 being served on the counsel for the petitioner on