IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5037 of 1997 RAJDEO THAKUR, son of Sri Awadh Narain Thakur, resident of village Ahiari, P.S. Kamtaul District Darbhanga, at present working as the Assistant Teacher, Gautam Sanskrit High School, Ahilyasthan P.O. Ahiari P.S. Kamtaul District Darbhanga … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Human Resources Development Department, New Secretariat, Patna 3. The Additional Secretary, Human Resources Development Department, New Secretariat, Patna 4. The Special Director, Secondary Education (Sanskrit), New Secretariat, Patna 5. The Bihar Sanskrit Siksha Board through its Chairman, Boring Canal Road, Patna 6. The Secretary, Bihar Sanskrit Siksha Board, Boring Canal Road, Patna 7. The District Magistrate, Darbhanga 8. The Ad-hoc Committee, Gantam Sanskrit High School, Ahilyasthan P.O. Ahiari P.S. Kamtaul District Darbhanga through its Secretary, Block Development Officer, Jale Block District Darbhanga … Respondents. ----------- 7. 13.7.2010 Heard counsel for the petitioner and the counsel for the State as also counsel for Sanskrit Siksha Board (hereinafter referred to as „the Board‟). Despite service of notice no one appears on behalf of respondent no.8 the Ad- hoc Committee of Gautam Sanskrit High School, Ahilyasthan, Darbhanga. The prayer of the petitioner in this writ application reads as follows: “This is an application for issuance of a writ of mandamus, directing the respondents to pay 2 the petitioner who is a teaching staff of Gautam Sanskrit High School, Ahilyasthan in the District of Darbhanga, hereinafter to be referred as “the School” from 18.12.1989 onwards and also for payment of salary and other emoluments for the period 1.12.1988 to 31.3.1989 to the petitioner and also to pay the increased dearness allowance to the petitioner from 1.8.1983 for which he is legally entitled and also for issuance of an appropriate writ, order or direction, directing the respondents to pay the petitioner his salary and other emoluments regularly.” Mr. Viswanath Prasad Singh, learned Senior counsel for the petitioner, with reference to the aforementioned relief would submit that there is no iota of doubt that the school in question is an old recognized school wherein apart from the post deemed to have been sanctioned under the staffing pattern there were two sanctioned post while the school in question was Rajkiya Sanskrit Vidyalaya. The submission of Mr. Singh, therefore, is that when the services of the petitioner in the school were approved by 3 the Bihar Sanskrit Siksha Board by a specific order dated 9th May, 1985 and a dispute also raised in this regard his continuance and approval was resolved under the orders of the Chairman of the Board dated 19.11.1987, the view taken by the respondent State Government and the Board as with regard to abolition of the post of Science Teacher and the petitioner being continued against the post of Science Teacher only was absolutely based on an error of record. He would further submit that the State Government cannot insist at least for the school in question that the staffing pattern which was brought into existence by Ordinance No. 32 of 1989 dated 18.12.1989 would still remain in force despite lapse of Ordinance on 1.5.1992. In this context his submission is that either the effect of repeal of temporary statutes has to be understood as a whole, meaning thereby the school became a private school after lapse of the ordinance or if the school has remained a Government school even after expiry of the ordinance then alone the State government can insist for number of 4 teachers prescribed in the ordinance. He has also, however, made an alternative argument that even if it be assumed that there are only seven sanctioned post of teachers including the Headmaster out of which three has to go to Sanskrit Acharya, the remaining three will cover the case of the petitioner, inasmuch as he is one of the senior most teacher in the school who was appointed basically to teach the subject of Mathematics, and to that extent he has assailed the stand taken in the counter affidavit filed on behalf of the State Government wherein the plea for denying payment of salary to the petitioner is based only on the assumption that the petitioner had been appointed as a Science Teacher and for that purpose reliance has been placed by Mr. Singh on the order of the Board, as contained in Annexure 2, dated 9th May, 1985. It would thus be necessary in the first place to look into the contents of the office order dated 9th May, 1985 for the purposes of finding out as to whether the appointment and approval of the petitioner was made against the post of Science 5 Teacher. The order dated 9th May, 1985 reads as follows: Þfcgkj laLd`r f'k{kk cksMZ iVuk A dk;kZy; vkns'k vkns'k la[;k 926 iVuk] fnukad 1 ebZ 85 Jh jktnso Bkdqj Lukrd ¼foKku½ lgk;d f”k{kd xkSre laLd`rksPp fo|ky; vgRFkk LFkku ¼njHkaxk tks fo|ky; esa fu;fer :i ls dk;Zjr gSa] dks izcU/k lfefr dh cSBd la[;k %& 2@81 fnukad 7&6&81 ds }kjk ikfjr izLrko ds vk/kkj ij dh xbZ fu;qfDr dk vuqeksnu muds ;ksxnku dh frfFk ls fd;k tkrk gSA lkFk gh vkns”k fn;k tkrk gS fd muds osru Hkqxrku dh dk;Zokgh 'kh?kz fd;k tk;A g0 jke ujs”k feJ] lfpo fcgkj laLd`r f”k{kk cksMZ] iVukAÞ From the reading of the aforementioned order of approval of the Board it would be more than clear that the petitioner was a Science graduate and was actually appointed on the post of Assistant Teacher by the Managing Committee by a resolution dated 7.6.1981 and his such appointment was approved by the Board only as an Assistant Teacher of the school. Under the staffing pattern prescribed for the Sanskrit School vide Government resolution dated 29.6.1981 (Annexure 10) there is a clear provision of there being three post of Assistant Teachers of other than Sanskrit subjects. It would, therefore, be difficult for this Court to approve the reasoning in the counter affidavit that the appointment 6 or approval of the petitioner was made on the post of Science Teacher. In fact this aspect of the matter also becomes clear from a subsequent order of the Chairman of the Board dated 9.11.1987, wherein on the basis of its enquiry and the report of the Headmaster of the School wherein it was held that the salary of only two teachers of non- sanskrit subject having graduate qualification was being made and the petitioner could be, therefore, also paid his salary as a third graduate teacher of the school. In view of the order of the Chairman of the Board dated 9.11.1987 specifically answering this very question, the plea of respondent State of Bihar of the petitioner being treated as a Science teacher must be and is hereby rejected. The only other plea in the counter affidavit of the respondents as with regard to the history of the school being taken over alongwith other 428 schools by Ordinance No. 32 of 1989 dated 18.12.1989 and the so called enquiry for finding out existence of the school has also now no merit because the said Ordinance No. 32 of 7 1989 after being substituted by repeated ordinance from 18.12.1989 to 30.4.1992 was ultimately allowed to expire on 1.5.1992. As a matter of fact now nothing is left for this Court to decide this question, especially when a Division Bench of this Court in the case of Subhash Chandra & ors. vs. the State of Bihar & anor., reported in 1994(2) PLJR 359, has already held that on expiry of the ordinance 429 Sanskrit schools became once again a private school. No doubt the said judgment of this Court in the case of Subhash Chandra (supra) is still subjudice before a Constitution Bench of the Apex Court but then there also there is no stay of the operation of the impugned judgment of this Court and therefore, the school in question of the petitioner has to be also treated as a private recognized Sanskrit school in which payment of salary to all such teachers has to be continued to be made who were receiving such payment of salary prior to promulgation of Ordinance No. 32 of 1989 i.e. on or before 18.12.1989. Mr. Singh would submit that the petitioner has already been paid his salary 8 Surendra/ upto 14.12.1995 and therefore, this Court would direct the respondents to pay the remaining arrears and current salary from 15.12.1995 within a period of three months from the date of receipt/ production of a copy of this order. With the aforementioned observations and directions, this application is finally disposed of. (Mihir Kumar Jha,J.)