IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3173 of 2003 JANESHWAR PRASAD YADAV son of late Ram Lal Prasad Yadav, resident of village Tamout Parsa, Police Station Murliganj, District Madhepura. Versus 1. THE STATE OF BIHAR 2. The Director (Primary Education), Bihar, Patna. 3. The District Magistrate, Madhepura. 4. The District Superintendent of Education, Madhepura. ----------- 4 13.9.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(i)For issuance of a writ in the nature of certiorari for quashing of the order contained in Memo No.131 dated 5.02.2003 passed by the respondent no.2 by which the claim of petitioner for his arrear salary for the period between 01.01.1971 to 7.12.1992 has been rejected. (ii)For issuance of an appropriate writ directing and commanding the respondents to pay the petitioner his arrear salary for the period between 01.01.1971 to 7.12.1992 wit interest.” Mr. Dilip Kumar Tiwary, learned counsel appearing on behalf of the petitioner in support of the aforementioned prayer has submitted that when the State Government has taken over services of the petitioner in terms of section 4 of the Bihar Non Government Elementary Schools ( Taking over and Control) Act, 1976 w.e.f. 1.1.1971, he would be also entitled for payment of salary from 1.1.1971 and therefore the impugned order passed by the Director Primary Education rejecting prayer for payment of salary of the petitioner for the period 1.1.1971 to 7.12.1992 is wholly unsustainable. In this regard he has also submitted that 2 School of the petitioner in which he was appointed on 22.7.1969 by the Managing Committee of Basanti Middle School, Tamaut Parsa, was a government aided School and therefore upon its take over in terms of the aforementioned Act w.e.f. 1.1.1971 the petitioner will be deemed to have become government servant from 1.1.1971 and as such he is entitled for payment of salary from 1.1.1971. Counsel for the State, on the other hand, with the support of counter affidavit filed by him, has stated that services of the petitioner in the Government aided School was never recognized for the purpose of payment of salary and that is why the petitioner was not paid salary w.e.f. 27.6.1969 to 1.1.1971 or even thereafter. It has further been clarified that in the aided School there were certain sanctioned posts and therefore when the issue for payment of salary of the petitioner arose an order was passed by the Director, Primary Education, vide his order dated 31st December, 1988, and had directed for payment of salary on verification of service record of the petitioner only w.e.f. 31.12.1988. In this context he has also submitted that the retrospective operation of the date of take over under 1976 Act to be given effect in the cases of individual case under section 4 of the Act could arise only from the date of order of take over was issued. He would also place reliance on the communication dated 29.12.1989 of the Director, Primary Education to submit that the earlier order dated 31st December, 1988 of the same authority had 3 not only been watered down but the same had already been explained as with regard to fulfillment of the condition of payment of salary. In the considered opinion of this Court, there would be no difficulty in rejecting prayer of the petitioner for payment of salary for the period from 1.1.1971 to 30.12.1988, inasmuch as, the petitioner did not become a government servant only on promulgamation of the Act. The Act under section 3 had envisaged as follows:- “3.jkT; ljdkj }kjk xSj&ljdkjh izkajfHkd fo/kky;ksa dk xzg.k fd;k tkuk A ¼1½ ftyk cksMZ] ftyk ifj"kn] uxjikfydk cksMZ vkSj iVuk uxj fuxe }kjk izcfU/kr izkjafHkd fo/kky;] rFkk foLrkj ,oa lq/kkj Ldhe ds v/khu [kksys x;s izkjafHkd fo/kky; 1 tuojh 1971 ls jkT; ljdkj }kjk xzg.k dj fy;s le>s tk;saxsa] ¼2½ lgk;rk izkIr izkjafHkd fo/kky;] ftudh izca/k lfefr us fcuk fdlh ”RrZ ds LosPNkiwoZd fo/kky; dk fu;U=.k ljdkj dks lkSai fn;k gS] ml rkjh[k ls jkT; ljdkj }kjk xzg.k fd, tk;saxsa tks bl iz;kstukFkZ mi/kkjk ¼4½ fufnZ"V ftyk lfefr }kjk vo/kkfjr dh tk;sxh A ¼3½ yksd ;k izkbZosV midzeksa }kjk iz'kkflr izkjafHkd fo/kky;] jkT; ljdkj }kjk jkti= esa vf/klwpuk izdkf'kr djds ml rkjh[k ls xzg.k fd, tka,xsa] tks vf/klwpuk esa fofufnZ"V dh tk; A ¼4½¼d½mi/kkjk ¼1½ vkSj ¼3½ esa mfYyf[kr izkjafHkd fo/kky;ksa dks NksM+dj vU; izkjafHkd fo/kky;ksa ds xzg.k fd, tkus ds ckjs esa izR;sd ftys esa ,d ftyk lfefr gksxh] tks jkT; ljdkj }kjk ,sls fo/kky;ksa ds xzg.k fd, tkus dh laHkkO;rk dh tkWp djsxh A mDr ftyk lfefr esa fuEufyf[kr lnL; jgsaxsa& ¼i½ mi&fodkl;qDrk iz'kkld] ¼ii½ ftyk f'k{kk v/kh{kd& lfpo] ¼iii½ftyk f'k{kk inkf/kdkjh ¼iv½ ftyk fo/kky; fujhf{kdk] ¼v½ lEc) vuqeaMy dk vuqeaMy f'k{kk inkf/kdkjh vkSj ¼vi½ lEc) fo/kky; mi& fujh{kd A ¼[k½ jkT; ljdkj bl izdkj xfBr ftyk lfefr ds dkfeZd esa le;& le; ij ifjorZu dj ldsxh A” There is nothing on the record to show that when 1976 Act was promulgamated and came into force w.e.f. 6.2.1976 the School of the petitioner was immediately selected and in fact there is absolutel want of any material to show as with regard to the date of take over of the School in terms of section 3 of the Act, but then 4 this much becomes clear from the letter of the Director Primary Education dated 31.12.1988 (Annexure-1) that the School was taken over prior to 31.12.1988 and therefore the consequences of taking over in the case of the petitioner for his payment of salary in the normal circumstances can be enforced at least from 31.12.1988. It has to be noted that the Director Primary Education by specific order dated 31.12.1988 had directed for payment of salary in the following terms:- “izs"kd] Jh jke flaxkj flag] funs'kd @izk0 f'k0@ lg voj lfpo A lsok esa] {ks=h; mi f'k{kk funs'kd] dks'kh izeaMy] lgjlk A iVuk fnukad 31 fnlEcj 88 fo"k;%& Jh tus’oj izlkn ;kno] ,oa Jh nhi ukjk;.k ;kno] f'k{kd olarh e/; fon~;ky;] rekSr ijlk] vapy& eqjyhxat] e/ksiqjk ds lsok vuqeksnu ds lEcU/k es A egksn;] miZ;qDr fo"k;d vkidk i=kad 501 fnukad 14&11&88 ds izlax esa eq>s dguk gS fd Jh tus’koj izlkn ;kno ,oa Jh nhi ukjk;.k ;kno] f'k{kd] olarh e/; fon~;ky;] rekSr ijlk vapy eqjyhxat] e/ksiqjk dk lsok vuqeksnu eSfVzd vizf'kf{kr osrueku esa U;qure osru ,oa vU; vuqekU; HkRrs ds lkFk i= fuxZr dh frfFk ls fuEufyf[kr ”'kRrksZ ds lkFk fn;k tkrk gS& 1& 1&1&71 ds iwoZ ls fof/kor :Ik ls fu;qDr gks A 2& 1&1&71 ds iwoZ dh ;ksX;rk eSfVzd vizf'kf{kr dh gks A 3& ;ksX;rk izek.k i= tkWpksijkUr lgh ik;k tk; A 4& fu;qfDr frfFk ls vc rd yxkrkj fon~;ky; esa dk;Zjr gks A 5& Nk= vuqikr esa buds in dh vko’;drk gks A fo’oklHkktu g0& vLi"V @jke flaxkj flag@ funs”d @izk0 f'k0 lg vij lfpo @ It is not the case of the State in the counter affidavit that any of the five conditions were not fulfilled or that any order 5 was passed by which the effect of such order was taken over. To that extent reliance placed on Annexure- B by the counsel for the State also seems to be misconceived, inasmuch as, by the said letter all that was sought to be conveyed by way of a general directions to the authorities, had to make verification as with regard to fulfillment of the conditions. One thing however which would distinguish the case of the petitioner is that even in the aided School the Government used to make contribution towards grant of salary only for the limited number of posts. As noted above, School of the petitioner was also an aided school and if the petitioner did not receive payment of salary from 1969 to 1992 for want of sanctioned post, there may be some justification in the submission of counsel for the State that condition no.5 was not being fulfilled by the petitioner, inasmuch as, it was one of the condition imposed for payment salary that there may be requirement of posts in the ratio of the students. This Court also is not aware as to what was the number of students in the year 1988 to 1992 nor this Court has been made aware of any order which was passed by the authority in terms of order dated 31.12.1988. Reliance placed by counsel for the State on the subsequent creation of posts of teacher in Madhepura district and its allocation from 8.12.1992 is also not very clear and therefore this aspect has to be once again gone into by the Director, Primary Education inasmuch the impugned order to say the least also does not in any way, while rejecting claim for 6 payment of salary to the petitioner for the period 1.1.1971 to 7.12.1992, deal with this aspect of the matter. Learned Counsel for the State has referred to on an un- reported order of this Court dated 23.4.2010 in C.W.J.C. No.2888 of 2002 but has not been able to produce a copy of the said order. He, however, submits that exactly in similar case claim for payment of salary of the writ petitioner in C.W.J.C. No.2888 of 2002 was rejected and was also affirmed by division bench of this Court. As the main issue with regard to fulfillment of terms and conditions as imposed in the letter of the Director Primary Education dated 31.12.1988 (Annexure-1) has to be the only basis for deciding the claim of payment of salary of the petitioner and the same has not been gone into by the authority, this Court would quash the impugned order and remit the matter back to the Director, Primary Education to examine claim of the petitioner afresh for payment of his salary only for the period 31.12.1988 to 7.12.1992. While deciding such claim of the petitioner the authority will be required to give reasons in respect of the alleged non availability of posts, but if it is found that the student’s ratio did require the post of teacher, payment of salary to the petitioner from 31.12.1988 will not be denied only because no order was issued in that regard by the Director Primary Education in between 31.12.1988 to 7.12.1992. In order to expedite the matter, this Court would give 7 liberty to the petitioner to approach the Director, Primary Education by filing a representation enclosing all the evidence with regard to number of students who were studying in the School between the year 1988 to 1992 and thus also fulfilling the condition no.5 of the letter of the Director, Primary Education (Annexure-1). Upon filing of such representation by the petitioner the Director, Primary Education will also make his own independent enquiry and would pass a reasoned order for payment of salary for the period 31.12.1988 to 7.12.1992 within a period of six months from the date of filing of representation. It goes without saying that if the petitioner is found entitled for payment of salary for the said period or part thereof the same will also be paid to him within the next two months of passing the such order. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)