IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3522 of 1995 MADAN PRASAD GUPTA, S/O SRI GANGA PRASAD GUPTA, ASSISTANT TEACHER IN PROJECT RANI BRAJRAJ KUMARI GIRLS HIGH SCHOOL, DEO, P.S.- DEO, DISTRICT-AURANGABAD. ……………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, PRIMARY, SECONDARY AND MASS EDUCATION, GOVERNMENT OF BIHAR, PATNA. 2. THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. …………RESPONDENTS. ----------- For the Petitioner : Mr.Rajendra Prasad Singh, Sr. Adv., Mr. Rajeev Kumar Singh, Adv. and Mr. Onkar Kumar, Adv. For the State : Mr.Sanjeev Kumar, Adv. --------------- 6 04.05.2010 Heard learned senior counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for a direction to the respondents to approve his services as Assistant Teacher in a Project School, namely, Rani Brajraj Kumari Girls High School, Deo, District-Aurangabad (for short ‘the School’) with effect from 1.1.1986 and for a direction for grant of consequential benefits of salary etc. As per the pleadings in the writ petition the School was established in 1972 by the Managing Committee and due permission to its Establishment was granted by the Bihar Secondary Education Board vide its order dated 9.3.1972. Petitioner was appointed in the School as 2 Assistant Teacher and he joined on 3.3.1982. At the time of his appointment he had already appeared in the B.Ed. examination which he passed on 24.6.1982. In 1981 the State Government took a policy decision to set-up 4 project Schools in each Block of the State, out of which one was necessarily to be a Girls School. The case of petitioner is that this School was selected in the second phase for being taken over as Project School in the year 1984-85 and a 3 Men Committee was constituted to screen the necessary infrastructure of the School and the service conditions of the teaching and non-teaching staff working therein for take over of their services. As per the decision of the Committee, the decision of take over of the School was formally communicated by the District Education Officer, Aurangabad vide memo no. 3171 dated 16.9.1989. It appears that some teachers of the school moved this Court for take over of their services and for payment of their salary. The writ application of the said teachers was disposed of by order dated 28.11.1991, vide Annexure-1, with certain directions. Thereafter, an order was issued from the office of the 3 Director, Secondary Education, as contained in memo no. 293 dated 23.11.1992, by which, the post of one Headmaster and two teachers were sanctioned in the school and the services of the incumbents holding those posts were taken over. The services of the petitioner were not taken over inspite of the earlier decision of the Government for take over of the services of 9 teachers of the schools taken over in the first phase. Petitioner claimed that he was working in the school and was within the first 9 teachers. Accordingly, he filed this writ application for a direction to the respondents to take over of his services in terms of the said policy decision. Counter affidavit and supplementary counter affidavit have been filed in this case on behalf of the respondents. In the counter affidavit the stand of the respondents is that in terms of letter no. 142 dated 4.2.1989 only 5 posts of teachers, including that of Headmaster, was sanctioned for Project Schools taken over in second phase in the financial year 1984-85. Since the present School was taken over in the financial year 1984-85 the services of only 5 teachers one clerk and two peons could be taken 4 over by the Government. It is stated that the petitioner was working in the School beyond the sanctioned strength and, therefore, his services could not be taken over. It is also stated that subsequently three teachers filed separate writ applications in this Court in 1994. Orders were passed in their favour on the basis of which their services were taken over. Thus, all the 5 sanctioned posts of teachers in the school were filled up and, therefore, the petitioner’s case could not be considered for take over of his services. It is also stated in the counter affidavit that the petitioner was untrained at the time of his appointment on 3.3.1982 and he passed his B.Ed. examination only on 24.6.1982. In the supplementary counter affidavit, it is stated that pursuant to the orders of the Hon’ble Supreme Court passed in Civil Appeal Nos. 6626-6681 of 2001 a Three Men Enquiry Committee was constituted which examined the case of the petitioner also. The case of the petitioner was rejected by the Committee and the same was communicated to the petitioner vide memo no. 584 dated 22.7.2008, a copy whereof is annexed as Annexure-A to the supplementary counter affidavit. It is also stated that in 5 terms of the decision of the Cabinet, the case of the petitioner is under consideration before the Director, Secondary Education. From the pleadings of the parties, it is apparent that the respondents have objected to the prayer of the petitioner on two grounds, namely, (i) that all the 5 sanctioned posts in the School stand filled up and the petitioner was found working beyond the said sanctioned strength and (ii) petitioner was not trained at the time of his appointment by the Managing Committee. Learned senior counsel for the petitioner submits that these two issues stand authoritatively decided by a judgment of Full Bench of this Court in the case of Project Uchcha Vidyalaya Shikshak Sangh Vs. the State of Bihar and Ors. (reported in 2000 (1) PLJR 287). From perusal of the said judgment, it is clear that exactly the same issue was under consideration before the Full Bench. The question which was noticed by the Full Bench in paragraph 10 of the judgment for consideration in this respect was as to whether ‘service conditions of the teaching and non-teaching staff of the Project Schools, selected during 6 the financial year 1984-85, commonly called as the Project Schools of the Second batch are the same and similar as prescribed and adopted for the selection/recognition of the teaching and non-teaching staff of 150 project Schools which were selected during the financial year 1981- 82.’ From the judgment, it is clear that the respondents had taken stand before the Full Bench also that in terms of the said circular no. 142 dated 4th February, 1989 the sanctioned strength of the teachers, including Headmaster, for schools taken over in second phase stood reduced. After elaborate discussion the Full Bench found that there was no rational behind such differential treatment between the schools taken over in the first phase in 1981-82 and the Schools taken over in 1984-85 in the matter of sanctioned strength of teachers in the said schools. Therefore, the Full Bench finally concluded that ‘such a decision or policy of the State has to be declared arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution not with respect to the instant employees only but also with respect to local people where the present schools have been 7 established.’ In respect of minimum qualification of teachers for consideration of take over of their services, the Full Bench also held that the qualification of a teacher for take over of his services had to be considered as on the date of consideration by the Screening Committee and not on the date on which he was appointed by the Managing Committee. Thus, it is clear that the said two objections raised by the respondents in the counter affidavit stood clearly answered by the said Full Bench judgment of this Court, pronounced on 7.12.1999. The said judgment of the Full Bench was challenged by the respondent State before the Apex Court. The Apex Court in paragraph 19 of the judgment (reported in 2006 (1) PLJR 483 (SC)) has noticed the findings of the Full Bench. It has also considered the said circular of the Government, namely circular no. 142 dated 4.2.1989, and found that the challenge to the said finding of the Full Bench in respect of sanctioned strength of the teachers in the Project Schools taken over in the financial year 1984-85 had become academic as realizing the anomaly the State Government had taken a decision, subsequent to the judgment of the Full 8 Bench, sanctioning 4 additional posts of teachers in the schools with retrospective effect. The observations of the Apex Court in this regard made in paragraph 60 are as follows: “The validity and/or legality of the said Government order dated 4.2.1989 was questioned before the High Court. The High court, as noticed supra set aside the said directions holding that 9 teachers were required to be appointed in each of the schools. This part of the order of the High Court does not require elaborate consideration as the State Government had now sanctioned 4 additional posts with retrospective effect.” The Apex Court also found that in view of its findings it was necessary for the respondents to constitute a Screening Committee and examine the individual cases. Therefore, by the said judgment dated 3.1.2006 the Apex Court directed the respondents to constitute a Screening Committee and get screened the individual cases of teachers of the schools for take over. In the supplementary counter affidavit the respondents have accepted that they had knowledge of the said order of the Apex Court. It has also been accepted that the case of the petitioner was considered by a 3 Men Committee 9 constituted as per the directions of the Apex Court. The Committee rejected the case of the petitioner on the ground that post was not available. This rejection of the case of the petitioner by the Committee is in 2008. Clearly the law laid down by the Full Bench and the Apex Court and the said subsequent decision of the Government increasing the sanctioned strength of teachers in the Schools with retrospective effect was not taken into account by the Committee. This is a sad state of affairs in the Government and a glaring example of the fact as to how authoritative pronouncements of this Court as well as of the Apex Court are overlooked and ignored by the Government functionaries in considering the cases of the concerned employees and incumbents and rejecting the same on the ground which had already become non est on the basis of the said authoritative pronouncements. It shows a clear non-application of mind by the respondents and their attitude of apathy towards judicial pronouncements. The objections of the respondents against the take over of the services of the petitioner, as raised in the counter affidavit and in the supplementary counter affidavit, are 10 clearly non est in view of the said judgments of this Court and the Apex Court. In the circumstances, the writ application is allowed. The respondents are directed to consider the case of the petitioner for his absorption in service as a teacher in the said School within the sanctioned strength of 9 teachers and give him all consequential benefits including salary at par with other teachers whose services have been taken over in the School. The orders of absorption as well as consequential benefits in respect of the petitioner shall be passed by the respondents positively within a period of three months from the date of receipt/production of a copy of this order. Arvind/ (J. N. Singh, J.)