IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 1651 of 2009 HARI SHANKAR PANDEY, SON OF LATE MAHABIR PANDEY, RESIDENT OF MOHALLA – BHAGWAN ROAD, GAYA LINE, MITHAPUR, PATNA-01 …………………… PETITIONER VERSUS 1. THE STATE OF BIHAR 2. SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA 4. THE DISTRICT EDUCATION OFFICER, PATNA 5. THE REGIONAL DEPUTY DIRECTOR, EDUCATION, PATNA 6. HEADMASTER, NAVEEN ADARSH UCHCH VIDYALAYA, ASHOK NAGAR, ROAD NO. 5, KANKARBAGH, PATNA- 20 ………………….. RESPONDENTS ----------- For the Petitioner: Mr. Ashutosh Ranjan Pandey, Advocate Mr. Ramanuj Tiwari, Advocate For the State: Mr. Tej Bahadur Singh, Sr. Advocate, AAG-7 Mr. S. S. Mishra, AC to AAG-7 ********** 06. 26.08.2011 Heard learned Counsel for the petitioner and the State. Counter Affidavit has been filed on behalf of Director, Secondary Education, Respondent No. 3. Petitioner’s prayer is for quashing of order contained in Memo No. 383, dated 19.05.2008, issued by the Director, Secondary Education, Government of Bihar, rejecting the claim of the petitioner with regard to regularization of his service from earlier date. Petitioner’s service has been approved vide Memo No. 819, dated 06.10.1994 with effect from the date of issuance of the order. He superannuated from 2 his service, while working on the post of Headmaster of Naveen Adarsh High School, Kankarbagh. On account of recognition of his service with effect from 06.10.1994, he did not complete 10 years of his service and the Director, Secondary Education, vide Memo No. 383, dated 19.05.2008 has held that petitioner is not entitled for any retirement benefits. Facts, which revealed in this Writ Application as well as in the impugned order is that School from which petitioner has superannuated, was established in the name of Naveen Adarsh High School in the year 1964, which was situated at Kankarbagh. This School was partially recognized on 15.01.1970 and was granted conditional recognition on 16.11.1970. Petitioner was appointed in this school by the Managing Committee of the School on 02.01.1969 on the post of Assistant Teacher. Some dispute arose in between the Teachers of the School and the Managing Committee and two groups started claiming the management of this School. In the name of Naveen Adarsh High School, another School was started at Chandmari Road, which started claiming to be the original School. Due to this dispute control over the management of Naveen Adarsh High School, Kankarbagh was not taken under their control by the 3 State Government. Since the School had not come under the control of Bihar Secondary Education Board, the grant which is allowed to such Schools for the purpose of payment of salary to its staffs was also not released by the Bihar Secondary Education Board in favour of the School. The management and control of such private non-governmental Schools was taken over by the Bihar School Secondary Board, vide Bihar Non-Government Secondary School (Taking Over of Management and Control) Act, 1981. The School, in question, was also taken over by the State Government, later on, in the year 1988. The Government also decided to run another School in the same name at another place. So far the School in which the petitioner was working, later on was considered for being taken over and finally taken over vide Memo No. 819, dated 06.10.1994. Services of teaching and non-teaching employees, working in this School were approved vide order contained in Memo No. 819, dated 06.10.1994. Petitioner, who had been was appointed as Assistant Teacher on 02.01.1969, his service was also recognized with effect from 06.10.1994. At the relevant time, petitioner did not raise any objection regarding recognition of his services at such belated stage. Subsequently, after his 4 superannuation, when his claim for pension and retirement dues was not being considered by the authorities, he approached this Hon’ble Court by filing C.W.J.C. No. 13827 of 2005. This application was dismissed for the reason that unless the order recognizing his service w.e.f. 1994 is not changed, petitioner’s service will not be pensionable and no direction can be issued for making payment of pension and pensionary benefits to the petitioner. Only when his services will be pensionable, he can claim for such relief. Petitioner could have claimed for his pensionable service, only in case his service would have recognized from an earlier date and he would have continued on the post for more than ten years and not from the date of issuance of notification for recognition of the School. On perusal of the impugned order passed by the Director, Secondary Education, I find that in the last paragraph of order, it has been mentioned that in the year 1988, a decision had been taken by the Board to run this School at a different place. At that time also, petitioner was working in this very School. On perusal of the records there are sufficient evidence to show that petitioner started discharging the duties of Incharge Headmaster since the year 1988. 5 Considering this finding, I come to this conclusion that there are sufficient evidence of this fact that right from 1988, petitioner was working in this School, which came under the control of the State Government. There is evidence that in the year 1991, he was working as Headmaster of the School. In this circumstance, there was no reason for recognizing his service with effect from the date of notification issued in the year 1994. Petitioner should not have been deprived of the benefits for which he became entitled on account of the School coming under the control of State with effect from 1988. For the reasons, stated above, I find that the impugned order holding petitioner, not entitled for pension and pensionary benefits, is not sustainable. Petitioner’s service should have been recognized with effect from 1988. Since the petitioner has already superannuated, even if his service is recognized with effect from 1988, he will not be entitled for any arrears of salary, but this period will be counted only for the purpose of pension / pensionary benefits. With these observations / directions, this application is allowed. The impugned order contained in Memo No. 383, dated 19.05.2008, passed by Director, Secondary Education is quashed. The Respondent, 6 Director, Secondary Education, will issue necessary orders regarding fixation and payment of pension as well as pensionary benefits to the petitioner, with effect from the date of his superannuation. SKM (Mridula Mishra, J.)