IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.656 of 2010 THE BIHAR SANSKRIT SIKSHA BOARD, THROUGH ITS SECRETARY, SRI OM PRAKASH SHUKLA, S/O SRI R.P.SHUKLA R/O MOHALLA- NEW COLONY, DISTT.- DEORIA (U.P.) … Respondent-Appellant Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY, SECONDARY, PRIMARY AND ADULT EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE SPECIAL DIRECTOR, (SECONDARY EDUCATION SANSKRIT), GOVT. OF BIHAR, PATNA 3. JWALA PRASAD SHARMA S/O LATE KRISHNA NAND SHARMA R/O VILL.- GOPALPUR, P.S.- NAUBATPUR, DISTT.- PATNA … Petitioners-Respondents. ----------- For the Appellant: Mr. Awadhesh Pd. Sinha,Adv. For the State : Mr. P.K.Singh, S.C.21. ------------ PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (8.4.2010) As per Mihir Kumar Jha,J. I.A.No.3432/2010 1. Having heard learned counsel for the appellant as also taking into consideration the facts and circumstances mentioned herein, the delay of 27 days in filing of this appeal is hereby condoned. 2. I.A.No. 3432/2010 is accordingly allowed. L.P.A.No. 656/2010 3. Since we have condoned the delay we are also inclined to take up the appeal for its disposal at the 2 admission stage itself. 4. In this intra-Court appeal the appellant- Bihar Sanskrit Siksha Board (hereinafter referred to as ‘the Board’) has assailed the order dated 25.1.2010 passed by the learned Single Judge in C.W.J.C.No. 13699/2009 allowing the prayer of respondent no.3- writ petitioner for payment of his arrears and current salary. 5. Mr. Awadhesh Prasad Sinha, learned counsel for the Board, has submitted that while it is true that the writ petitioner was a Science teacher whose services were also approved by the Board but his payment of salary for the period 14.12.1995 onwards could not have been allowed in view of the fact that such post of Science teacher had got abolished in view of Ordinance No. 32 of 1989. He has also placed reliance on a letter of the State Government dated 14.12.1995 by which the State Government had abolished the post of Science teachers with effect from 18.12.1989. A further reliance was placed by him on an order dated 13.2.1996 in contempt petition, M.J.C.No. 1206/1994. 6. In the opinion of this Court the aforementioned submissions of the learned counsel for 3 the appellant has been noted only for its being rejected. It is not in doubt that the appointment of the respondent- writ petitioner was made in Swami Basudevadharya Sanskrit High School, Taretpali, P.S. Naubatpur, District Patna (hereinafter referred to as ‘the School’) which is a very old recognized Sanskrit school functioning since 1960. In the said school the post of Science teacher in view of the order of the State Government dated 15.6.1970 was specifically created and accordingly, one Sri Awadhesh Kumar Sharma was the first Science teacher whose appointment made by the Managing Committee of the School was approved on 22.5.1971 under the orders of the Secretary, Bihar Sanskrit Siksha Parishad. In fact it was in terms of the direction issued by the said Bihar Sanskrit Siksha Parishad that the post of Science teacher was again advertised on 17.8.1971 whereafter the appointment of the respondent- writ petitioner was also approved by an order dated 2.5.1972 on completion of one year service. The services of the respondent- writ petitioner was also permanently approved as would be evidenced from the order of Sanskrit Siksha Parishad dated 29.5.1973. On the basis 4 of the said approval of service when payment of salary to the recognized teachers of Sanskrit school was started from 1.4.1981, the full salary thereof was being also paid to the respondent- writ petitioner without any interruption till 17.12.1989. The payment of salary of all the recognized Sanskrit schools, 429 in number, however, was suddenly stopped on account of promulgation of Ordinance No. 32 of 1989 on 18.12.1989 which had introduced the concept of a prescribed number of posts for each of the school. In this context it is to be noted here that the said ordinance was continued by replacement of one after another ordinance till 30.4.1992, whereafter the ordinance had lapsed and the schools which were sought to be made Government Sanskrit Schools in terms of Ordinance No.32 of 1989, were reduced to once again recognized Sanskrit private school receiving grant of salary from the funds of the State Government. The payment of salary for the period of ordinance in fact was made subject matter of a Division Bench Judgment in the case of Subhash Chandra & ors. vs. the State of Bihar & anor., reported in 1994(2) PLJR 359, wherein a large number of writ 5 petitions all pertaining to payment of salary for the period 18.12.1989 came to be decided by a common judgment dated 3.3.1994, wherein the Division Bench had held as follows: “106. There is absolutely no justification for non- release of the salary of the teachers who had been getting the same, in view of the fact that even according to the State of Bihar they were entitled to the payment of salary in the same manner which was being paid to them when the Ordinance 32 of 1989 did not come into force. Even so far as teachers for such schools against whom „Pratikul‟ reports have been submitted would be entitled to salary in the same manner unless schools are derecognized or some other suitable orders in accordance with law are passed. 107. We may reiterate that in terms of the policy decision of the State of Bihar adopted in the year 1983 it undertook the financial liability to pay the salary to all the teaching and non-teaching staff who had been working within the sanctioned strength and staffing pattern of the school, unless it is held that salary paid to any of the teachers was illegal as they have been working beyond the sanctioned strength and/or were not entitled to the salary from the State. But others were certainly entitled thereto. We are not aware as to whether staffing pattern of all such schools have been determined by the State or not keeping in view the student-teacher ratio. Probably such action is now necessary. We, however, express no opinion in this regard. We further make it clear that the Ordinance did not envisage enforcement of 6 the reservation policy of the State.” 7. It is not in dispute that the aforementioned judgment of the Division Bench in the case of Subhash Chandra (supra) is still subject matter of a pending civil appeal before the Apex Court wherein the issue with regard to effect of lapse of temporary statute is pending consideration where the matter has been referred to seven Judges Constitution Bench. In the said civil appeal filed by the State of Bihar there is an interim order to make payment of salary to the teachers of recognized Sanskrit school which they were receiving prior to take over of the school i.e. on or before 18.12.1989. It is also not in doubt that the salary of the respondent- writ petitioner was also paid for the period up to 14.12.1995 but thereafter payment of salary has been withheld on the ground that the State Government had passed the order dated 14.12.1995 abolishing the post of Science teacher as also additional post beyond the staffing pattern for the recognized Sanskrit Schools vide Government order dated 29.6.1981. 8. In the opinion of this Court neither specifying of number of post in the ordinance No. 32 of 7 1989 nor the Government order dated 14.12.1995 could be used to the detriment of abolition of the post of Science teacher held by the respondent- writ petitioner. As noted above, the post of Science teacher for the school of the petitioner was specifically sanctioned by a separate Government order way back in the year 1970 and therefore, such sanctioned post of Science teacher could not have been curtailed or abolished especially when even in the prescribed staffing pattern laid down by the resolution of the Education Department in its letter No. 572 dated 29.6.1981 there was a specific provision for creation of post of Science teacher on approval of teaching of Science subject in the Sanskrit school. To top it all abolition of post of Science teacher with effect from 18.12.1989 as per the Government order dated 14.12.1995, an executive order giving retrospective abolition of post cannot be sustained and therefore, this Court must hold that the Government order contained in letter No. 966 dated 14.12.1995 is a dead letter. It is rather strange to find that the only reason in the said order dated 14.12.1995, for abolition of the post of Science teacher and/or additional post of teachers 8 of its being beyond staffing pattern, though specifically sanctioned by the separate orders of the State Government have, is based on Section 4 of Ordinance No.32 of 1989 dated 18.12.1989 when the life of such ordinance itself had come to an end on 13.4.1992. 9. Additionally this Court also cannot approve the double standard of the State Govt. in the matter of enforcing the same provisions of Ordinance No. 32 of 1989, inasmuch before this Court as also in the Supreme Court a plea has been consistently taken by the State of Bihar that the life of Ordinance No.32 of 1989 envisaging take over of 429 Sanskrit schools as Government Sanskrit School was only for a period of 18.12.1989 to 30.4.1992 and therefore, the schools in question have again reverted back to their old status of being private recognized schools and the teachers working therein are not the Government servant, but on the other hand the schedule given to the same ordinance as with regard to specifying the number of post of teachers in those schools have been sought to be continued even after lapse of the ordinance. Thus, the Government order dated 14.12.1995 (Annexure 2 to the 9 memo of appeal) cannot be made a ground for stoppage of payment of salary of the respondent- writ petitioner. 10. The reliance placed by the learned counsel for the appellant on an order of this Court dated 13.2.1996 in M.J.C.No. 1206/1994 as with regard to stoppage of payment of salary of the respondent- writ petitioner is equally misplaced. The said order was passed in relation to a contempt application arising out of the case of Subhash Chandra (supra), inasmuch as the Division Bench in that case also did not give liberty to cancel the post of Science teacher as a whole on the basis of staffing pattern of Ordinance No.32 of 1989. In any event the judgment of the Division Bench in a contempt case cannot be used to the detriment of the respondent- writ petitioner who was not a party of the said contempt proceeding. 11. Additionally, this Court would also hold the order of abolition of post of Science teacher as a whole by the Government order dated 14.12.1995 which in effect would lead to termination of the service of the respondent- writ petitioner and other similarly situated persons to be unsustainable as the respondents- writ 10 petitioners were never given any show cause notice prior to passing of such order. It has to be kept in mind that on account of earlier sanction of post not only the appointment of the respondents- writ petitioner made by the Managing Committee had led to his approval on the post of Science teacher way back in the year 1971 itself with the subsequent order of the Board for payment of his salary from the funds of the State Government and as such, his approved service could not have been brought to an end by an executive order of the State Government dated 14.12.1995 by giving a retrospective operation with effect from 18.12.1989 without complying the principles of natural justice. 12. This aspect of the matter stands well settled by the judgment of the Apex Court in the case of Basudeo Tiwary vs. Sido Kanhu University & ors., reported in 1999(1) PLJR (SC) 30, wherein it has been held that in the sphere of public employment, non- arbitrariness is an essential facet of Article 14 of the Constitution and that the rule of natural justice applies in such cases. In that context the Apex Court has also held that the conferment of absolute power to terminate the 11 service of an employee is an antithesis to fair, just and reasonable treatment and omission to impose the hearing requirement in the statute, under which the action is taken, does not exclude hearing. 13. Admittedly before passing of the order dated 14.12.1995 by the State Government seeking to abolish the post of Science teacher of all the 429 Sanskrit schools, including the school of the respondents- writ petitioners which in effect could have led to termination of the service of the petitioners, no notice and/or opportunity of personal hearing was given to the petitioners and as such, this Court must hold that the order dated 14.12.1995 cannot be used to the detriment of the respondent- writ petitioners and other similarly situated science teachers and/or teachers for whom there was specific approval of sanction of post with the resultant benefit of payment of salary even beyond the number of post covered by the staffing pattern. 14. As a matter of fact this Court has to deal with these aspects as the same were pressed by the learned counsel for the appellant Board inasmuch as this very issue has already been decided by this Court in the 12 case of Rabindra Singh vs. State of Bihar & ors., reported in 1996(1) PLJR 689, wherein it has been held that the Government cannot deny payment of salary by taking recourse to lapse of ordinance by referring to Manak Mandal mentioned in the ordinance because the life of such Ordinance came to an end to 30.4.1992. 15. Similarly this Court again in the case of Raj Mangal Roy vs. State of Bihar & ors. while dealing with an exactly similar case of a science teacher in a recognized Sanskrit School by its order dated 2.3.2000 in C.W.J.C.No. 8473/1999 had allowed the writ petition wherein it was held as follows: “4. Counsel for the Bihar Sanskrit Shiksha Board while opposed the prayer, produced the copy of letter no. 966 dated 14.12.1995. It was submitted that the State Govt. having cancelled the additional posts of science teacher sanctioned for Sanskrit schools, the petitioner cannot claim salary. 5. From the letter dated 14.12.1995 issued by the Under Secretary, Secondary, Primary and Adult Education, it will be evident that the order was passed giving reference of this Court‟s order dated 9.3.1994 passed in C.W.J.C.No. 7399/90 and the ordinances including Ordinance No. 32/89 as were promulgated. It was mentioned that the State has framed staffing pattern for such Sanskrit Schools; giving reference of aforesaid ordinance it was observed that the ordinance having lapsed, any unit 13 created out of staffing pattern, will be treated to have been cancelled w.e.f. 18.12.1989. It is further informed that in a particular case if no such order of cancellation has been issued, appropriate order be issued and the additional posts of science teacher created be cancelled w.e.f. 18.12.1989. Admittedly, the power to create/ sanction post of an added private Sanskrit school, prior to promulgation of 1989 Ordinance, was vented with the State. The posts were required to be mentioned on the basis of staffing pattern framed by the State from time to time as was framed vide resolution dated 29.6.1989. If a post is created/ sanctioned by the State in terms with staffing pattern, prior to issuance of 1989 ordinance, such posts are not affected on promulgation of 1989 ordinance of take over, nor stand cancelled on its lapse, having no nexus with the same. The staffing pattern as laid down vide resolution dated 29.6.1981 shows the posts which can be created. Under clause 4 to the note below of the said resolution, it has been stipulated that additional post of science teacher can be created if the school is gratned permission to teach science subject. Thereby, if any additional post of science teacher is created in a school granted permission to teach science subject, such post to be treated to be within the staffing pattern in terms with the resolution dated 29.6.1981 and cannot be said beyond the sanctioned strength. 6. In the present case, in terms with resolution dated 29.6.1981 additional post of science teacher was sanctioned by the Education Commissiner, Bihar on 11.12.1982. The service of petitioner was approved 14 against such validly created post on 13.4.1988. It is not the case of respondents that the school in question has not been granted permission to teach science subject or the school does not impart teaching of science to its students. There is no specific order issued cancelling the post created vide order dated 11.12.1982. So far as the letter no. 966 dated 14.12.1995 as reference the State is concerned, the same is not applicable to the posts created prior to take over. Those posts having created independent to 1989 ordinance, cannot be treated to have lapsed or lapse of ordinance, till individual order of cancellation is issued.” 16. It has to be noted that the said order of the learned Single Judge dated 2.3.2000 in C.W.J.C.No. 8473/1999 has since been affirmed by a Division Bench by an order dated 22.5.2008 in L.P.A.No. 715/2000 (The State of Bihar & ors. vs. Raj Mandal Roy) wherein it has been held as follows: “2. The stand of the appellants is that the judgment and order of the writ Court under appeal suffers from error of law inasmuch as the writ Court failed to consider that the Ordinance No.32 dated 18.12.1989 by which the State had decided to take over 491 Sanskrit schools including the school in question lapsed on 1.5.1992 and therefore, the liability of the State of Bihar to pay for the teachers of such schools also ceased. It has further been submitted that the learned Single Judge erred in not appreciating that the staffing pattern (Manak 15 Mandal) introduced through Ordinance No.32 dated 18.12.1989 stipulated only 7 teaching staff which did not include a science teacher and therefore no sanction could have been granted to the post of science teacher held by the writ petitioner. 3. We have gone through the judgment and order under appeal carefully and from the statement of facts as well as discussions made therein, particularly paragraphs 5 and 6 we find that the writ court has correctly appreciated the law applicable at the relevant period. The post of science teacher held by the petitioner was sanctioned by the Education Commissioner, Bihar on 11.12.1982 under the staffing pattern laid down vide resolution dated 29.6.1981. Thereafter the service of the petitioner was approved against such validly created post on 13.4.1983. The writ court noticed that it is not the case of the respondents that the school in question did not have permission to teach science subject. It also noticed that there was no specific order to cancel the post created vide letter dated 11.12.1982. Thus, although cognizant of the Ordinance dated 18.12.1989 and its lapse on 1.5.1992, the writ court has found the claim of the petitioner for his salary dues since December, 1995 to be lawful and has allowed such claim. 4. Learned counsel for the appellants has placed reliance upon a Division Bench order dated 13.2.1996 passed in a contempt matter bearing MJC No. 1206 of 1994. The said order has been annexed as Annexure 2 with memo of this Letters patent appeal. Paragraph 6 of the said order also holds that teachers like the writ petitioner will be entitled to the payment of salary and allowances at the old 16 scale to which they were entitled as if ordinances were never passed. The judgment under appeal does not decide the scale in which the writ petitioner should be paid. Hence, there is no conflict between the aforesaid order of the Division Bench and the judgment under appeal. 5. We have been informed by the learned counsel for the appellants that cases of many teachers of taken over Sanskrit schools affected by the lapse of Ordinance of take over on 1.5.1992 are pending in the Apex Court and some interim orders have been passed in those matters directing payment of salary to the affected employees. We have not been taken through those orders but it appears that the writ court has noticed that the State of Bihar has preferred Civil Appeal Nos. 533-3594/94 against relief granted to the teachers of Sanskrit schools by the High Court and vide interim order dated 26.4.1996 the Supreme Court clarified an earlier interim order dated 9.1.1995 to order that the employees shall be paid salary at the rate applicable on 17th December, 1989 i.e. just before the promulgation of Ordinance No.32 dated 18.12.1989 and will continue to get their salary till further orders of the Supreme Court.” 17. In the aforesaid background the impugned order passed by the learned Single Judge recording the following reasons: “It has been submitted by the petitioner that the State Government created the Science Teacher‟s post for the school in question in the year 1970 vide order no. 340 dated 20.3.1970 and for that aid was also given by the State Government. Petitioner‟s 17 appointment was within the sanctioned strength and he was paid his salary from 1973 to December, 1995. He is still working but after December, 1995 he is not being paid his salary. It has been submitted by the petitioner‟s counsel that the case of the petitioner is identical to the case of petitioner in C.W.J.C.No. 9322 of 2009. I find that similar issue has been decided by this Court in C.W.J.C.No. 9322 of 2009, where it is held that “On perusal of the earlier judgments of this Court passed in C.W.J.C.No. 8437 of 1999, and the order passed by the L.P.A. Bench, in L.P.A.No. 715 of 2000 as well as the latest decision (Annexure 10) passed in C.W.J.C.No. 12517 of 2005, it is apparent that case of the petitioner is fully covered by these judgments. Petitioner‟s appointment was made in the year 1974 much before the 1989 Ordinance. The Supreme Court also in such cases, has directed to make payment of salary in the old rate prior to the enforcement of the Ordinance i.e. in the 1989 scale. Petitioners in the earlier writ petition were also not paid their salary 1995 for the reasons that the State Government has challenged the judgment passed in Subhash Chandra‟s case before Supreme Court. In the judgment annexed as Annexure 10, this issue has been considered and a direction has been issued to the State Government to pay salary to the persons working against sanctioned posts and since the Supreme Court had also issued same direction to the State Government even though the matter is before the Supreme Court and pending for final disposal.” Case of the petitioner is identical, as such, it is allowed giving direction to the State respondents as well as Bihar Sanskrit Shiksha Board to make 18 payment of salary to the petitioner in the old rate with effect from January, 1996 till date. Arrears of salary since January, 1996 till date should also be paid and the current payment on continuation basis must be paid to the petitioner within eight weeks from the date of production/ communication of this order.” does not suffer from any error and we respectfully concur with the same. 18. Thus, for the reasons indicated above, we find no merit in this appeal and the same is, accordingly, dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court The 8th April, 2010 A.F.R./Surendra.