CIVIL WRIT JURISDICTION CASE No.3438 OF 1998 -------- IN THE MATTER OF APPLICATIONS UNDER ARTICLE-226 OF THE CONSTITUTION OF INDIA -------- 1. Ram Autar Singh, Son of Late Mosafir Singh, at present posted as Assistant Teacher, Primary School, Budhaule, Anchal-Pakribarwan, District-Nawadah. 2. Ram Lakhan Prasad, Son of Sri Bundi Prasad, at present posted as Headmaster, Primary School, Bahadurpur, Anchal Rajauli, District-Nawadah. –Appellants. WITH CWJC No.3437 of 1998 1. Mahendra Prasad Singh, Son of Sri Amit Singh, at present posted as Assistant Teacher, Primary School, Nisir Chak, Anchal Narhat, District-Nawadah. 2. Kamal Kumar, Son of Sri Ram Khelawan Singh, at present posted as Assistant Teacher, Middle School Sakra, Anchal Hasua, District-Nawadah. –Appellants. WITH CWJC No.3378 of 1998 1. Sachidanand Singh, Son of Late Indradeo Singh, at present posted as Assistant Teachers, Primary School Sirsa, Anchal-Narhat, District-Nawada. 2. Mathura Prasad, Son of Sri Kishun Prasad, at present posted as Assistant Teacher, Middle School Mohegain, Anchal Sirdalla, District-Nawadah. –Appellants. VERSUS 1. The State of Bihar. 2. The Director, Primary Education, Human Resources and Development Department, Government of Bihar, New Secretariat, Patna. 3. The District Superintendent of Education, Nawadah. 4. Sri Ramanand Singh, Son of Not known, presently posted as Headmaster, Middle School, Hasua, District-Nawadah. 5. Sri Satyanarayan Sharma, Son of not known, presently posted as Headmaster, Raja Bigha Middle School, Village-Rajabigha, P.S.-Nawadah, District-Nawadah. 6. Middle School, Village-Merhkuri, Anchal- Sirdala, District-Nawadah through its teachers. 7. Middle School, Village-Apsarah, Nepura, P.S.-Warasaliganj, District-Nawadah through its teachers. 8. Middle School, Village-Roh, P.S.-Roh, District-Nawadah through its teachers. 9. Middle School, Village-Rupauv, P.S.-Kawakole, District-Nawadah through its teachers. 10. Middle School, Village- Kawakole, P.S.-Kawakole, District-Nawadah through its teachers. 11. Middle School, Village-Sirdala, P.S.-Sirdalla, District-Nawadah through its teachers. 12. Middle School, Vill-Lawnd, P.S.-Sirdalla, District-Nawadah through its teachers. 13. Middle School, Village-Manjour, P.S.-Warsaliganj, District-Nawadah through its teachers. 14. Middle School, Village-Chakvay, P.S.-Warsaliganj, District-Nawadah through its teachers. - 2 - 15. Middle School, Village-Chandinawan, P.S.-Warsaliganj, District-Nawadah through its teachers. 16. Middle School, Village-Andharwari, P.S.-Rajauli, District-Nawadah through its teachers. 17. Middle School, Village-Bhadokhara, P.S. & District-Nawadah through its teachers. 18. Middle School, Village-Raja Bigha, P.S. & District-Nawadah through its teachers. 19. Middle School, Village-Aanti, P.S. & District-Nawadah through its teachers. 20. Middle School, Village-Biku, P.S.-Hasua, District-Nawadah through its teachers. 21. Middle School, Village-Kunj, P.S. & District-Nawadah through its teachers. 22. Middle School, Village-Amawan, P.S. & District-Nawadah through its teachers. 23. Middle School, Village-Targir, P.S.-Rajauli, District-Nawadah through its teachers. 24. Middle School, Village-Warsaliganj, P.S.-Warsaliganj, District-Nawadah through its teachers. 25. Middle School, Village-Madawa, P.S.-Pakribarawan, District-Nawadah through its teachers. 26. Middle School, Village-Dhamaul, P.S.-Rajauli, District-Nawadah through its teachers. 27. Middle School, Village-Koeri Bigha, P.S.-Akbarpur, District-Nawadah through its teachers. 28. Middle School, Village-Rebara, P.S.-Warsaliganj, District-Nawadah through its teachers. 29. Middle School, Village-Kalonda Chatar, P.S.-Akbarpur, District-Nawadah through its teachers. 30. Middle School, Village-Konanpur, P.S.-Pakaribarawan, District-Nawadah through its teachers. 31. Middle School, Village-Dadpur, P.S.-Akbarpur, District-Nawadah through its teachers. 32. Middle School, Village-Sughari, P.S.-Govindpur, District-Nawadah through its teachers. 33. Middle School, Village-Ohari, P.S.-Akbarpur Middle School, Village-Chandinawan, P.S.-Warsaliganj, District-Nawadah through its teachers. 34. Middle School, Village-Fatehpur, P.S.-Akbarpur, District-Nawadah through its teachers. 35. Middle School, Village-Meskaur, P.S.-Sirdalla, District-Nawadah through its teachers. 36. Middle School, Village-Phulichak, P.S.-Kawakol, District-Nawadah through its teachers. 37. Middle School, Village-Badgaon, P.S.-Sirdalla, District-Nawadah through its teachers. 38. Middle School, Village-Dumari, P.S.-Govindpur, District-Nawadah through its teachers. 39. Middle School, Village-Kochgawn, P.S.-Warsaliganj, District-Nawadah through its teachers. 40. Middle School, Village-Paingari, P.S.-Warsaliganj, District-Nawadah through its teachers. 41. Middle School, Village-Paharpur, P.S.-Akbarpur, District-Nawadah through its teachers. 42. Middle School, Village-Teyarr, P.S.-Akbarpur, District-Nawadah through its teachers. 43. Middle School, Village-Sahopur, P.S.-Sirdalla, District-Nawadah through its teachers. - 3 - 44. Middle School, Village-Rasalpura, P.S.-Narhat, District-Nawadah through its teachers. 45. Middle School, Diaura, P.S.-Pakribarwan, District-Nawadah through its teachers. -Respondents. ------------ For the Petitioners : Mr. S.B.K. Mangalam with Gopal Bohra, Advocates. For the State : Mr. Manoj Kumar Sinha, AC to GP-1. ------------- P R E S E N T THE HON'BLE MR. JUSTICE NAVANITI PRASAD SINGH ------------ Navaniti Prasad Singh, J. The petitioners in all these writ petitions are teachers of taken over schools and challenge the order of the Director, Primary Education, Government of Bihar dated 06.03.1998. By the aforesaid order, the Director has held that the petitioners were wrongly granted first time bound promotion from the date much earlier than the due date. Thus, the question arises is what is the due date for reckoning the date for grant of first time bound promotion. The facts are not in dispute. The petitioners were appointed as teachers by the Private Managing Committee of different schools undisputedly prior to 01.01.1971. As per the prevalent law, even though, they were appointed by Private Managing Committee, their appointments had to be approved by the District Superintendent of Education (D.S.E.). It is not in dispute that their appointments were approved in 1972/73 on various dates. At that time there existed basically three types of schools. The first were schools run by the Government. The other were schools run by the local self Government like the Municipality, the District Boards and the third were private schools. It appears that with - 4 - effect from 01.01.1971 large numbers of schools which were either run by the local self Government or were private were taken over. Subsequently, in 1981 pursuant to the recommendations of the Pay Revision Committee and the Finance Commission, which was accepted by the Government, was made with regard to grant of time bound promotion to Government employees. Basically, this was an ante stagnation measure where people otherwise qualified for promotion but could not get promotions because of lack of posts at promotional level and had completed 10 years of service, as such, were granted notional promotions with effective pay enhancement. Once this came up the question arose with regard to implementation of first time bound promotion in respect of teachers of schools that were taken over with effect from 01.01.1971. The matter was ultimately settled by Government decision and a trade agreement between the teachers and the Government wherein so far as the schools run by local self Government were concerned, their teachers given the services of those were recognized for the purposes of time bound promotion from the date they were appointed which could be prior to 01.01.1971, but so far as other teachers were concerned, of the private schools, it was decided that it would be 01.01.1971 or date of approval of their services whichever is later and, as such, the date of initial appointment by Managing Committee became irrelevant. It is not in dispute that the schools of the petitioners was not taken over in the first phase. They came to this Court. This - 5 - Court directed Government to reconsider the matter. Upon reconsideration of the matter, it is not in dispute that the schools of the petitioners and their services were taken over by the Government with effect from 14.07.1988. Apparently, consistent with the policy decision of the Government of granting of first time bound promotions as petitioners’ services had been approved by the D.S.E., as noted above, in the year 1972/73 and, thus, they had become entitled to first time bound promotion way back they were granted first time bound promotion with effect from 14.09.1989, which was approved by the Finance Department of Government of Bihar as well. In 1997 and to be precise under Memo No.1394 dated 24.04.1997 this time bound promotion as granted to them with effect from 1989 was cancelled by the D.S.E., which brought the petitioners to this Court. This time by judgment and order dated 20.08.1997 in C.W.J.C. No.4307 of 1997 and analogous cases this Court set aside the impugned order of the D.S.E. and remanded the matter to the Director, Primary Education, Government of Bihar to hear the petitioners and take fresh decision in accordance with the Government policy. It is pursuant to this order that the impugned order dated 06.03.1998 has been passed by the Director, Primary Education, Government of Bihar, which is impugned in these writ petitions. The Director in the impugned order has said that the mistake had earlier been committed. According to him, the mistake ought to be corrected. He recognized that large numbers of other teachers were enjoying the benefit of time bound promotion except - 6 - the group of these petitioners. Yet, he chooses to deprive these petitioners of this benefit. The ground taken by him is that as per the Government policy and the trade agreement, as noticed earlier, the first time bound promotion was to be granted with effect from 01.01.1971 or approval of services of the teachers, after take over, whichever is later. Mr. S.B.K. Mangalam, learned counsel appearing in support of the writ petitions submits that there is no warrant or the interpretation given by the Director that the approval relevant for the purposes of time bound promotion would be only approval after take over. He submits that the policy is that the time bound promotion is to be granted to those teachers whose services recognized and whose existence is known to the Government from the time it so became known. He submits that petitioners’ appointments initially were made with the approval of the D.S.E. which fact is not in dispute and that they were so approved in the year 1972/73. Thus, applying the Government policy of treating service from the 01.01.1971 or date of approval, whichever is later, the period would run in case of petitioners from 1972/73 and the 10 years period would be over long before 1988, when the school was taken over and, thus, had correct interpretation of policy in the year 1989. They were rightly granted the first time bound promotion, which was approved by the Finance Department of the Government as well. On behalf of the State, it is submitted that services of - 7 - the petitioners after take over were approved from the date of take over, that is, 1988 and for the purposes of grant of time bound. The period of 10 years would start to run from 1988 irrespective of when they were appointed. According to State, the cancellation of the granted time bound promotion was correct and the order of the Director, Primary Education, Government of Bihar requires no interference. Having considered the matter, in my view, the writ petitions must succeed. First in order to seek the entitlement of teachers one must see to the policy of grant of time bound promotion. The purposive interpretation has to be adopted. The whole purpose of time bound promotion was an ante stagnation measure. It is well known that if no promotions are granted then an employee looses the incentive to work. It is upon consideration of this aspect that the Pay Revision Committee and the Finance Commission had recommended for grant of time bound promotion where other promotions was not available. That being the intent. Let us now examine the case of the petitioners. It is not in dispute that they were appointed by the Private Managing Committee much prior to 01.01.1971, when for the first time the schools both run by the local self Government and the privately managed were taken over. For some curious reasons, petitioners’ schools were left, which was pursuant to the directions of this Court and upon reconsideration of the matter ultimately taken over by the Government in the year 1988. It is not in dispute that right from the - 8 - beginning in the year 1972/73, the petitioners’ appointments were duly approved by the D.S.E. Thus, the fact that the petitioners were duly appointed and working as teachers was in the Government records since 1972. The school was taken over in 1988 and they became Government servants for all purposes in 1988. Now, if we see the policy of the Government, as applicable to the teachers in particular, the time bound promotion is to be granted with effect from 01.01.1971 or date of approval of their services, whichever is later. Significant it is note that policy nowhere talks of date of approval of service after take over. This is a concept introduced by the Director, Primary Education. The concept of approval of service is for the purposes of Government to determine the service of a teacher as per the records of the Government. In the present case, it is not in dispute that though the petitioners were appointed prior to 01.01.1971, their appointments were duly approved by the D.S.E. in the year 1972/73, thus, the later date for commencement of period for calculating the time bound promotion would be the date when their appointments were approved by the D.S.E., for the first time, even though, the appointments were made by the Managing Committee, which dates are obviously after 01.01.1971. That being so, it is that date which would be material and keeping in view in mind if we see then the decision first taken to grant the petitioners the first time bound promotion with effect from 1989 was in fact a correct decision. That decision had undisputedly the approval of the Finance - 9 - Department as well. That decision should stand and accordingly the impugned order of the Director, Primary Education, Government of Bihar cancelling that decision and taking away the time bound promotion granted to the petitioners cannot be sustained. It must be remembered that the Government is a welfare State. If the view taken by the Director, Primary Education is sustained that would be contrary to the very principle for which time bound promotion scheme was enacted. It would deprive ante stagnation incentive to the petitioners who for two decades had received no promotion and had no promotional avenues. Thus, the order of the Director, Primary Education, Government of Bihar rejecting the claim of the petitioners and affirming the withdrawal of first time bound promotion as granted to the petitioners cannot be sustained. It is, thus, held that the petitioners are entitled to first time bound promotion as was originally granted to them. With the aforesaid observations and directions, the writ petitions are allowed. Patna High Court The 18th November, 2010 NAFR/ Trivedi/ (Navaniti Prasad Singh, J.)