IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.755 of 2002 1.Indu Kumari, wife of Sri Jitendra Kumar Sharma, resident of village- Barkagaon, P.S. Pakri Dayal, District- East Champaran 2.Ranjeet Singh, son of Sri Ram Chandra Singh, resident of village- Suratha, P.S. Dhaka, District- East Champaran. ……. Petitioners Versus 1.The State Of Bihar 2.The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur 3.The District Education Officer, East Champaran …….. Respondents ----------- For the Petitioners : M/s V.R.P.Singh and Mritunjay Kumar, Adv. For the Respondents : Mr.Sunil Kumar Mandal, S.C.15 with Mr.Bipin Kumar,Adv. 8. 17/09/2009 Heard learned counsel for the petitioners and learned counsel for the State. Petitioners have filed this writ application for a direction to the respondents to adjust them in any other Government High School and for a direction for payment of their salary, arrears as well as current. Case of the petitioners is that they were appointed as Clerk and Peon respectively in Project girls High School, Ruphara in the district of East Champaran in 1990. Till April, 1996 they were paid their salary, but with the take over of the School by the Government in the third phase, their salary was stopped. After - 2 - take over of the School, the District Education Officer submitted a report to the Director, Secondary Education vide Annexure-2 dated 30.5.1997 in which he sought for guidelines with respect to transfer and adjustment of the petitioners in any other Government School for continuance of their services and payment of salary. Since guidelines were not received by the District Education Officer, he transferred the petitioners to High School, Jihuli, East Champaran, a Nationalised School vide Annexure-4 dated 10.7.1998 in anticipation of approval of the higher authority. For some time, petitioners were deputed in the office of the District Education Officer by the successor District Education Officer, which order was however cancelled and petitioners were directed to rejoin their place of posting i.e. Nationalised High School, Jihuli by order dated 5.2.1999. There they were paid their salary from May, 1999 to October, 1999, after which payment to them was stopped. Petitioners’ case is that they moved Lok Adalat, East Champaran, Motihari, where their case was registered as Case No.109 of 2001. Lok - 3 - Adalat vide order dated 5.3.2001, annexed as Annexure-8, directed the respondents to pay salary of the petitioners. However, when salary of petitioners was not paid in spite of order of Lok Adalat, petitioners moved this Court in C.W.J.C.No.8174 of 2001. when the said writ application was taken up on 4.7.2001, this Court found that the author of Annexure-3, respondent no.5 (namely, District Education Officer, who had passed the order of transfer of petitioners in anticipation of approval of the higher authorities vide Annexure-4 dated 10.7.1998) was not the competent authority to adjust the petitioner without prior approval of the higher authorities. This Court observed that the grievances raised by the petitioner before the Court should not be adjudicated upon and the petitioner, if so advised, may pursue the matter internally by way of representation. With the said observation, the writ application was dismissed by this Court vide Annexure-10. Accordingly, petitioners filed representation before the District Education Officer vide Annexure-11 dated 30.9.2001. The District Education Officer submitted a detailed - 4 - report to the respondent Regional Deputy Director of Education, Tirhut Division, Muzaffarpur vide Annexure-12 dated 11.11.2001. Since no further action was taken by the respondents and the matter remained pending at the level of respondent Regional Deputy Director of Education and the Director, Secondary Education, petitioners filed this writ application. It is stated that during the pendency of this writ application, petitioners were given detailed hearing by the District Education Officer and by Annexure-13 dated 21.3.2004, giving entire history of the matter, respondent District Education Officer has also sought for legal opinion from learned Government Pleader at Motihari. Learned counsel for the petitioners submits that Annexures-1, 3 and 14 show that the incumbents working in other Project Schools taken over by the Government in third phase have been adjusted and transferred to other schools for continuity of their services and payment of salary. He also submits that Annexure-9 will show that one Peon of this very School has been - 5 - transferred and adjusted in other School, whereas petitioners have been left out by the respondents. A counter affidavit has been filed in the case, in which respondents have taken a stand that this Project School was not taken over by the authorities of the State Government. It has been averred that recognition and grant of aid to this School was later on stopped, therefore, this School became non-existent in the eye of law. It is said that since the petitioners had been working in the said School and the said School had not been taken over, it was not obligatory on the part of the respondents to adjust them for continuity of their service and for payment of salary. In support of this stand, learned counsel for the respondents submits that this stand of the respondents in the counter affidavit stands supported from the facts mentioned in Annexure-13 in which respondent District Education Officer has given all the details with regard to this School for seeking legal opinion from the Government Pleader. It is true that Annexure-13 shows that after some extension, recognition of the School - 6 - was stopped later on by the Government. It also establishes that the School was not taken over. It also shows that the stand of the petitioner that the School was taken over by the Government in third phase has not been supported by the facts mentioned in the said letter of the District Education Officer. Hence, respondents are correct in their stand that in the eye of law the School did not continue to exist. However, one significant fact which has been mentioned in the said letter of the District Education Officer is that both the petitioners were appointed in the School under the orders of the higher authorities of the Government. At page 3 of the said letter it has been specifically mentioned that petitioner no.1 was appointed in the School on the orders of the Regional Deputy Director of Education,, Tirhut Division, Muzaffarpur vide office memo no.4288- 91 dated 22.9.1990 which was forwarded by the District Education Officer, East Champaran vide his letter dated 22.1.1991 to the Deputy Director, Secondary Education, Government of Bihar, Patna, who vide his letter no.3887 dated 30.10.1991 approved the same. Similarly, it - 7 - appears that petitioner no.2 was appointed by the District Education Officer vide his letter no.285-88 dated 27.3.1990 pursuant to the departmental letter no.705. On the orders of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur contained in memo no.8668 dated 17.7.1991, the District Education Officer through his memo no.4448 dated 28.8.1991 passed orders for payment of salary of the petitioners. Said orders were later on approved again by the respondent Regional Deputy Director of Education, Tirhut Division through his memo no.6801 dated 30.6.1993. Reference to these letters in the said communication by the District Education Officer to the Government Pleader prima facie shows that the higher authorities of the Government were instrumental in appointment of petitioners in the said Project School. In that fact situation, respondents cannot absolve of their responsibility in the matter of continuance and payment of salary of petitioners in the eventuality of the Project School becoming non- existent in the eye of law due to non-extension of its recognition by the State Government. The - 8 - State Government being a modal employer is expected to ensure the security of service with all consequential benefits to the incumbents, who are appointed by them in service validly and in accordance with law which is enshrined in Article 16 of the Constitution of India. Therefore, if it is established that petitioners were appointed by the respondents in accordance with law and validly, respondents are legally obliged to ensure continuity of service and payment of salary to the petitioners in accordance with law. Counter affidavit is silent about those letters and manner of appointment of the petitioners. Unfortunately, petitioners have also not brought on record those letters referred to by the District Education Officer in his communication to the Government Pleader, as noticed above. Therefore, instead of passing any positive order, this Court is of the opinion that the Director, Secondary Education should hold an enquiry with regard to manner of initial appointment of the petitioners with reference to the abovesaid letters and if he finds that the petitioners were appointed on valid orders of - 9 - the higher authorities of the Department, he shall consider passing other consequential orders in respect of their continuity in service by adjustment in any other Government Girl School with all consequential benefits. The Director, Secondary Education shall also take into account the fact that the petitioner has cited examples of other incumbents of other schools as well as some incumbents of the present School also, who, in similar circumstances, have been transferred and adjusted in other schools with continuity of their service. Petitioners are directed to file a representation before the Director, Secondary Education for the purpose within one month from today with a copy of this order. Upon receipt of the representation, the Director, Secondary Education shall complete the enquiry on the line indicated above and shall pass appropriate orders in accordance with law within a period of two months from the date of receipt of the representation. In case, the Director, Secondary Education finds that the petitioners were not appointed on the orders of the Government or the Government authorities were not involved in any - 10 - manner for their appointment in the School, he shall be at liberty to reject the representation of the petitioners after assigning reason for the same. This writ application is accordingly disposed of with the above observations and directions. Pradeep/ (J. N. Singh, J.)