IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6614 of 2009 MANI KANT JHA, S/O LATE HEMANT JHA, R/O VILLAGE- CHAINPUR, P.S.-BANGAON, DISTRICT-SAHARSA AT PRESENT HEADMASTER, NEEL KANTH BALIKA MADHYA VIDALAYA, CHAINPUR (SAHARSA) ……………… PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA 4. THE DEPUTY DEVELOPMENT COMMISSIONER, SAHARSA 5. THE DISTRICT MAGISTRATE, SAHARSA 6. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, KOSI DIVISION, SAHARSA 7. THE DISTRICT SUPERINTENDENT OF EDUCATION, SAHARSA ……………….. RESPONDENTS For the Petitioner: Mr. Tara Nath Jha, Adv. For the State: Mr. Prasoon Sinha, G.A.-3. ----------- 07. 21.06.2011 Heard learned counsel for the petitioner and the State. Initially this application was filed by the petitioner for a direction to the Respondents for making payment of his arrears of salary in Headmaster Scale for the period in between 18.04.1995 to October, 2007. Petitioner though holding the post of Headmaster of Neel Kanth Balika Madhya Vidyalaya, Chainpur (Saharsa) was not being paid his salary in Headmaster’s pay-scale w.e.f. 18.04.1995 till October 2007. During the pendency of the Writ Application, some decision was taken by the Education 2 Department in view of the recommendation of the Establishment Committee and by Order, dated 09.01.2011, a letter was issued by the District Superintendent of Education, Saharsa, whereby the pay-scale of the petitioner was fixed in the Matric Trained Scale and excess payment earlier made to the petitioner in the Headmaster Scale was directed to be recovered in 24 installments. I. A. No. 680 of 2011 was filed by the petitioner for amending the prayer and the amended prayer was for quashing of order, contained in Memo No. 186-11, dated 19.01.2011, issued under the signature of Respondent No. 7, whereby an order of recovery has been passed of the amount paid to the petitioner in B.A. trained Scale, and also for fixing his salary in the Matric Trained Scale. Petitioner had earlier filed C.W.J.C. No. 2286 of 1985, challenging the transfer order of one Mahavir Jha, who was transferred and posted as Headmaster in the Neel Kanth Balika Madhya Vidyalaya, Chainpur (Saharsa) i.e, the School in which the petitioner was posted as Headmaster. This School had been taken over by the State on 16th of March, 1983. At the time of taking over of the 3 School, the petitioner was working as Headmaster being appointed under the resolution of the Managing Committee of that School. Petitioner was working as Headmaster of the School, since 12th of August, 1972. Even after taking over of the School, he continued on the post till 1985, only when a transfer order was issued on 15th of April, 1985 in favour of Mahavir Jha, the question regarding eligibility of petitioner for the post of Headmaster was questioned. This transfer order was challenged by the petitioner and impugned order of transfer was stayed till disposal of the Writ Application. The Writ Application was finally allowed, quashing the transfer order passed in favour of Mahavir Jha and the State Government was directed to consider the case of the petitioner for holding the post of Headmaster in the light of the decision of High Court in case of Anandi Kumari, preferably within a period of six months. In view of the High Court’s Orders, petitioner continued on the post of Headmaster. No decision was taken by the Respondents within the time specified in the Order. However, since the salary in the Headmaster Scale was not being paid to the petitioner, he filed present Writ Application for a direction to the 4 Respondents for making payment of difference of salary in the Headmaster scale to him for the period 18.04.1995 to October, 2007. The Respondents took final decision regarding eligibility of petitioner for holding the post of Headmaster as well as his entitlement for Headmaster’s pay-scale during the pendency of the Writ Application. The order passed by the Respondents is under challenged in the present Writ Application. In case of Anandi Kumari also, similar question was under consideration before the High Court. The case of Anandi Kumari was decided, considering the provisions under section 4 (2) of Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976. Section 4 (2) of the said Act, reads as follows: “Every Officer, Teacher or other employee holding any office or post 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 the 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 5 service as he would have held before the taking over of the said School and shall continue to do so unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government.” Considering the fact that Anandi Kumari was holding the post of Headmistress, prior to taking over of the School as appointed by the Managing Committee of the School, it was held that she will continue on the post of Headmistress in view of section 4 (2) of the Act. In case of the petitioner, the facts are similar. He was appointed by the Managing Committee of the School as Headmaster, prior to taking over of the School. He was continuing on the post since 1972. At the time of the taking over of the School, he was a graduate, untrained Teacher, holding post of Headmaster. In the year 1995, he got himself trained. Considering his continuation on the post of Headmaster, since 1972 and being a graduate trained Teacher, he had all eligibility for holding the post of Headmaster. He continued to the post of Headmaster till 1985 without any interruption or objection. In the year 1985, when 6 some objection was raised by posting another person as Headmaster in the School, it was challenged by the petitioner. Again he continued on the post by virtue of stay order passed in his favour in the Writ Application. Even after disposal of the Writ Application, he continued and was still continuing on the post of Headmaster. He started getting the pay-scale in the scale of the Headmaster w.e.f. October, 2007, but for the period in between 18.04.1995 to October, 2007, he had not been paid his salary in the pay-scale of Headmaster. Petitioner claimed Headmaster’s pay-scale w.e.f. the date he become trained, i.e., 18.04.1995, as prior to that he was graduate untrained Teacher, holding post of the Headmaster. The question for consideration is that when the petitioner had all eligibility for being appointed to the post of Headmaster. He continued on this post from the year 1972. He was qualified for the post and under the provisions of section 4 (2) also unless any alteration is brought by the State Government in the tenure, recommendation of the School, taken over by the State under the provisions of the Bihar Non-Government Elementary Schools (Taking over 7 Control) Act, 1976, the employee will continue on the same post, holding at the time of the taking over of the School. Counsel for the petitioner has also drawn my attention towards legal opinion sought for in this regard by the authorities and also the recommendation of the RDDE in favour of the petitioner’s continuation on the post of Headmaster, in the light of the decision in Anandi Kumari’s case. I do not find any reason for fixing petitioner’s salary in the pay-scale in the Matric Trained, when he was Graduate at the time of the taking over of School and got himself trained in the year 1995. In this view of the matter, he was entitled for B.A. Trained scale since 1995 and on continuing on the post of Headmaster, for such a long time, his entitlement for fixation of salary in the pay-scale of Headmaster with effect from 18.04.1995. The impugned order, annexed as Annexure- 10 with the Interlocutory Application of the petitioner and Annexure-E with the Counter Affidavit filed on behalf of the Respondent State, is completely arbitrary, passed, ignoring the provisions of section 4(2) of the Bihar Non-Government 8 Elementary Schools (Taking Over of Control) Act, 1976 as well as the recommendation of the higher authority. The Regional Deputy Director of Education, considering the legal provision and statutory provision, has recommended for Headmaster’s post and for fixation of salary in Headmaster scale. Petitioner was a trained Teacher, holding the post of Headmaster, even prior to taking over of the School. He was entitled for holding the post and also for sanctioning Headmaster’s scale. He was entitled for the pay-scale, attached to the post of Headmaster. Accordingly, the impugned order is quashed. The Respondents are directed to fix petitioner’s salary in Headmaster scale w.e.f. 18.04.1995 and make payment of difference of salary to the petitioner with effect from 18.04.1995 till October, 2007. Since the petitioner is continuing on the post of Headmaster, he will continue so. This application is allowed. SKM (Mridula Mishra, J.)