IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5168 of 2003 JAI RAM CHAUDHARY, son of late Laxmi Narain Chaudhary, resident of village + Post Office Basaha, P.S. Pipra, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Human Resources and Development, Government of Bihar, Patna 2. Director, Primary Education, Government of Bihar, Patna 3. District Superintendent of Education, Supaul cum Saharsa, District Saharsa ... Respondents with CWJC No.6747 of 2003 MD. ABUL HASSAN, son of late Md. Madari, resident of village and Post Office Beloubhara, P.S. Pipra, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR, through the Secretary, Human Resources and Development, Government of Bihar, Patna 2. Director, Primary Education, Government of Bihar, Patna 3. District Superintendent of Education, Supaul cum Saharsa, District Saharsa ... Respondents with CWJC No.6755 of 2003 SIYA RAM SUDHANSHU, son of late Rasik Lal Chaudhary, resident of village and Post Office Thumaha, P.S. Pipra, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Human Resources and Development, Government of Bihar, Patna 2. Director, Primary Education, Government of Bihar, Patna 3. District Superintendent of Education, Supaul cum Saharsa, District Saharsa ... Respondents with CWJC No.6774 of 2003 KUSUM LAL CHAUDHARY, son of Shri Baleshwar Chaudhary, resident of village and Post Office Thumha, P.S. Pipra, District Supaul.. Petitioner Versus 2 1. THE STATE OF BIHAR through the Secretary, Human Resources and Development, Government of Bihar, Patna 2. Director, Primary Education, Government of Bihar, Patna 3. District Superintendent of Education, Supaul cum Saharsa, District Saharsa ... Respondents with CWJC No.6899 of 2003 BADRI MANDAL, son of late Jamun Manda, resident of village Simaria, P.S. Tribeniganj, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Human Resources and Development, Government of Bihar, Patna 2. Director, Primary Education, Government of Bihar, Patna 3. District Superintendent of Education, Supaul cum Saharsa, District Saharsa ... Respondents with CWJC No.7101 of 2003 CHANDRANAN CHAUDHARY, son of late Rameshwar Chaudhary, resident of village and P.O. Korihar, P.S. Gamharia, District Madhepura ... Petitioner Versus 1. THE STATE OF BIHAR THE STATE OF BIHAR through the Secretary, Human Resources and Development, Government of Bihar, Patna 2. Director, Primary Education, Government of Bihar, Patna 3. District Superintendent of Education, Supaul cum Saharsa, District Saharsa ... Respondents with CWJC No.7137 of 2003 RAMDEO MANDAL, son of late Natal Mandal, resident of village Dhumgarh, P.O. Simaria, P.S. Tribeniganj, District Supaul ... Petitioner Versus 1. THE STATE OF BIHAR THE STATE OF BIHAR through the Secretary, Human Resources and Development, Government of Bihar, Patna 2. Director, Primary Education, Government of Bihar, Patna 3. District Superintendent of Education, Supaul cum Saharsa, District Saharsa ... Respondents ----------- 3 9. 8.11.2010 In all these cases a very short question is involved, inasmuch as there is a common prayer for payment of salary of the petitioners. Though in all these writ petitions the prayer for payment of such salary is of various period some extending from 1988 upto 1995 and others for the interregnum period but then Mr. Anil Kumar Mukund, learned counsel for the petitioners, at the outset had made it clear that the grievance of the petitioners now stands redressed in all respect except for payment of their salary for the period 20.2.1990 to 8.12.1992. Mr. Mukund in this respect has submitted that the petitioners of all these cases were earlier working in privately managed schools and their services were taken over in view of 1976 Take-over Act of Primary and Middle Schools. He has further submitted that there were a lot of controversy with regard to individual approval of the service but then ultimately it had boiled down that the order passed by the earlier Director of Primary Education giving provisional approval of the services 4 of the petitioners had been made subject matter of Consideration before District Education Establishment Committee, the competent authority having power of appointment/ absorption on the post of teachers in Primary and Middle school. In this regard he has highlighted that the petitioners’ salary was abruptly stopped in view of an order of the State Government dated 20th February, 1990 whereby and whereunder the Director, Primary Education had requested the Collector of Saharsa district, the Chairman of the District Education Establishment Committee, to go into fresh exercise before allowing payment of salary of teachers in terms of the decision taken by the District Education Establishment Committee in the meeting held on 13.9.1989 and till such exercise was completed the payment of salary of the teachers including the petitioners of Saharsa District, whose services were said to have been taken over in terms of 1976 Act, should be stopped. Mr. Mukund has further proceeded to explain that ultimately the State Government upon full enquiry made 5 by the Collector of Saharsa District and submission of all the relevant reports had resolved the issue by giving a clear direction to the Collector of Saharsa District vide letter dated 8.12.1992 wherein three conditions were imposed for verifying the services of the teachers whose services were said to have been taken over. Such conditions were: (i)The person concerned should be matriculate on or before 1.1.1971. (ii) The person concerned must have completed the age of 18 years as on 1.1.1971 and must be continued in service of the school since then to the date of issue of order i.e. 8.12.1992. (iii) The person concerned claiming to be teachers of such school must satisfy that they fall within the requisite prescribed staffing pattern to be decided on the basis of student teachers ratio of 1:40 or 1:30 for Primary and Middle School respectively after deducting the number of teachers whose services have already been approved by that date. Mr. Mukund in this regard is quite specific that these petitioners did fulfil all the three conditions and that is how 6 their payment of salary was resumed for the period 8.12.1992 onwards and that is how that their earlier grievance for future payment of salary after 8.12.1992 is no longer subsisting. Mr. Mukund has accordingly gone to submit that if the Government had stopped payment of salary for the period 20.2.1990 to 8.12.1992 only for holding enquiry and such enquiry has been favourably answered for the petitioners, there should now be no difficulty in at least allowing payment of salary of these teachers and that too for a limited period i.e. 20.2.1990 to 8.12.1992. Counsel for the State, on the other hand, has submitted that true it is that the petitioners’ services were found to be validly taken over and in fact their payment of salary has also been made after 8.12.1992 but then as Condition No.(III) requiring the exercise of ascertaining the creation of post as per student teachers ratio had taken certain time and in such a situation when a decision as with regard to the petitioners could be taken only in the year 1995, the petitioners would not be entitled for 7 payment of salary on account of want of sanctioned post. In this context he refers to not only paragraph no.6 of the counter affidavit filed in C.W.J.C.No. 6774/2003 (Kusum Lal Chaudhary vs. The State of Bihar & ors.) reading as follows: “ That the prayer of the petitioner is to grant his arrear pay since the date of approval of service i.e. from 21.9.1988, whereas the sanctioned unit against the approval of the post of the petitioner has been made available for its sole purpose by Regional Deputy Director of Education, Saharsa vide their memo no. 2158 dated 13.6.1995 and it is for this reason the petitioner soon after receipt of sanctioned unit of post against the approval, payment was started with budgetory provision, which is justified, genuine and proper in the eye of law and in financial propriety. Hence, the claim of arrear pay of petitioner is fit to be rejected.” but also to an order of this Court in a similar case dated 23.4.2010 in C.W.J.C.No. 2888/2002 rejecting such prayer solely due to want of sanctioned post. In the considered opinion of this 8 Court there are two facets which have to be gone into individually in case of the petitioners of these cases. Firstly, it was to be looked into as to whether the three conditions imposed by the Government in the letter dated 8.12.1992 was fulfilled by the petitioners? As noted above, one of the three conditions was availability of a post as per teachers student ratio and therefore, it would matter little as to on which date in these taken over schools the Government would create post. If the school of the petitioners had the student teacher ratio as indicated in the order dated 8.12.1992 and if their payment of salary on that basis was made after 8.12.1992 there would be no difficulty in holding that the petitioners would also be entitled for payment of salary from 20.2.1990 to 8.12.1992. On the other hand, if it was found that the petitioners’ salary could not be paid even after 8.12.1992 and in fact as in the case of one Kusum Lal Chaudhary till 1995 as clearly asserted in the counter affidavit extracted above and not denied by the petitioners by filing any rejoinder 9 affidavit the petitioners of these cases also would be entitled for payment of salary from their date of creation of post and to that extent the order passed by this Court in the case of Siya Ram Yadav (supra) will have a binding precedent in view of the fact that this Court had held therein that no payment of salary can be made in absence of sanctioned post. Unfortunately the batch cases when they are filed or taken together there is no conscious effort on the part of the State to file either a clear comprehensive affidavit incorporating the facts of each and every case setting out a clear picture of the whole scenario or file separate individual counter affidavit. The counsel for the State in these cases claims that in all four cases i.e. C.W.J.C.Nos. 6774/2003, 6899/2003, 7101/2003 and 7137/2003, he has filed counter affidavit to the same effect wherein there is no denial to this aspect that the payment of salary of the petitioners of all these four cases even after 1995 has been made. Mr. Mukund has orally denied this 10 aspect though the petitioners have not filed any rejoinder affidavit controverting this aspect. This Court, therefore, would not like to get too technical on this issue, inasmuch as these petitioners ultimately have been found to be entitled to continue in service and their payment of salary at least has been started from various dates in between 1992 to 1995. In such a situation it would, therefore, be in the interest of justice to direct the District Education Establishment Committee to go into the individual cases of these petitioners for finding out as to whether for them the sanctioned post of teachers became available only after creation of post in 1995, as a result whereof their payment of salary was started after 1995 or their payment in fact was started immediately after 8.12.1992 on fulfilment of terms and conditions as incorporated in the order of the Government dated 8.12.1992 as indicated above. If it is found that the petitioners did not fulfil the requirement in the letter dated 8.12.1992 as with regard to availability of 11 post as per student teacher ratio indicated in that order or that their payment of salary could not have been made in absence of sanctioned post and such sanctioned post became only available for them from 1995 onwards, the petitioners’ claim for payment of salary would be rejected. On the other hand, if it is found that the petitioners were well covered by the student teacher ratio as incorporated in the order dated 8.12.1992 and that their payment of salary was also restored from 8.12.1992 onwards, they would be held to be entitled also for payment of their interregnum period i.e. 20.2.1990 to 8.12.1992. It is made clear that the touch- stone will be the payment of salary restored to them i.e. 9.12.1992 onwards because in that case if the payment of salary to them could be made even in absence of sanctioned post from 9.12.1992 onwards without awaiting for the Government order of sanction of post in the year 1995 that would mean that the petitioners were illegally deprived their payment of salary only on account of ongoing 12 enquiry emanating from the order dated 20.2.1990 and ending on 8.12.1992. The petitioners, therefore, are given liberty to approach individually with their separate representation addressed to the District Superintendent of Education, Saharsa who thereafter will place the matter in the meeting of the District Education Establishment Committee and obtain its order on individual cases of the petitioners. Such exercise shall be completed within a period of six months from the date of filing of the representation by the petitioners alongwith any contemporarious document and a copy of this order. With the aforementioned observation and direction, these applications are disposed of. (Mihir Kumar Jha,J.) Surendra/