IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1489 of 2010 ARUN KUMAR DEO S/O LATE RADHA PD. DEO R/O VILL- BIHRA, P.S. BIHRA, DISTT. SAHARSA. VERSUS 1. THE STATE OF BIHAR THROUGH THE SECRETARY HUMAN RESOURCES DEVELOPMENT DEPTT. GOVT. OF BIHAR, PATNA 2. THE DIRECTOR PRIMARY EDUCATION, GOVT. OF BIHAR, NEW SECRETARIATE, PATNA 3. THE DISTRICT SUPERINTENDENT OF EDUCATION SAHARSA ----------- For the Petitioner : Mr. Shiv Nandan Roy, Sr. Adv. & Pravina Kumari, Adv. For the State : Mr. Sanjeev Kumar, AC to AAG-IV. ------------ 03 28.07.2010 Even though details and controversy involved in the present case as noted in earlier order dated 02.07.2010 of this Court and counter affidavit has been filed, the facts need be revisited. At the cost of repetition it is to be recorded that this case shows a ridiculous extent to which the State can go to deny legitimate dues of a school teacher. The counter affidavit having been filed, with consent of parties, the writ petition is being disposed of at this stage itself. There is no dispute that the petitioner was employed in a private school prior to 01.01.1971. It is not in dispute that the school was taken over under the provisions of Bihar Non- Government Elementary Schools (Taking Over of Management and Control) Act, 1976. After the take over of the school, the list of teachers and non-teaching working at the time of take over was sent to the Government and the Director, Primary Education, Government of Bihar, Patna, in the year 1988, granted approval to - 2 - the service of the petitioner as teacher. Suddenly thereafter, petitioner’s salary was stopped. He represented to the Director but receiving no response, he moved this Court. This Court asked the petitioner to file representation before the Director, Primary Education. Representation being filed in 1994, Director, Primary Education now cancelled the approval earlier granted on the ground that petitioner was under 18 years of age at the time of appointment. The petitioner challenged this order before this Court. This Court set aside the order and remanded the matter for fresh consideration to the Director, Primary Education. Upon reconsideration, this time the Director held that it was not possible to sustain the stand that petitioner was a minor but once again cancelled the approval on a new ground that the petitioner was matriculate and untrained teacher, as such, his appointment was illegal in view of a circular of the State Government of the year 1969. In view of this cancellation of approval for the second time on a new ground, petitioner again moved this Court. This Court in C.W.J.C. No.390 of 1997 held that in view of later circular issued with reference to Section-8 of the aforesaid Take Over Act, the cut off date for the purpose of recruiting trained teacher was 01.01.1977 and, admittedly, the petitioner was recruited before that date, his appointment could not be termed as illegal. Thus, the shots fired by the Director, Primary Education failed to hit the target. The Director then preferred Letters Patent Appeal, which was dismissed in limine. For sometime petitioner was then paid - 3 - his salary but still someone for some reason was still “unsatisfied”. Petitioner then came to this Court for the third time seeking direction to regularize payment of his salary and clearing his arrears since the time of take over. This Court directed the authorities to consider the matter and pass appropriate orders immediately. Pursuant to orders of this Court, the matter of petitioner’s entitlement to salary from the Government and the arrears in relation thereto was examined at the district level where all records were available and after examining the records it was found that up to 1973 petitioner was liable to be paid by the Government. Detail calculations were made quantifying the demand and sent to the State Government so that money could be sanctioned for payment of petitioner’s long standing dues. Ordinarily, one would have expected that after getting this calculation verified and confirmed, the authorities would direct payment but, as noted above, someone somewhere remained “unsatisfied”. A fatal shot had to be fired, the Director then tells the petitioner to produce the notifications issued from the Directorate itself taking over the school. The tragedy is that the Directorate which took over the school, which issued the notification of take over, which approved the services of the petitioner, and which twice sought to terminate the services of the petitioner suddenly loses all records in the labyrinthin of Secretariat and the onus is put entirely up to pity village assistant teacher to discover, find and produce all those Government records - 4 - before the Government itself. This shows the ridiculous extent to which the Directorate of Primary Education has gone to harass the petitioner, as noted above, because someone somewhere was “unsatisfied”. The liability towards payment of arrears of salary was substantial. It is under these circumstances and noticing these facts, the Court had directed a comprehensive counter affidavit to be filed as even though six months had elapsed since filing of the writ petition, no counter affidavit from the Directorate, which is at Patna itself, was forthcoming. A counter affidavit has been filed. The less said the better as to its contents. It falls short, of course, contempt because all the ground that were negatived in the earlier writ petitions inter- party are being narrated for grounds denying payment and the icing of the cake is once again it is stated that “inspite of hectic efforts unfortunately the said order whereby the school in question had been taken over could not be traced nor the same could be produced by the petitioner.” Thus, on the ground of non- availability of records, on ground of petitioner’s minority (which was already held to be unsustainable by the Director himself), on the ground of being untrained teacher (the ground which has already been set aside by this Court in earlier writ petition), petitioner’s legitimate claim is being denied. A suggestion is also made that when the Take Over Act came in 1976, how could there be a liability prior to that, forgetting that the Take Over Act was preceded by ordinances and as communicated by the Officers of - 5 - the district level itself while calculating the dues that had clearly mentioned that up to 1973 petitioner had been paid by the private governing body whereafter school had been taken over by the Government. The Government liability started, the liability is now being totally disowned. What happened to the records whereby in 1988 approval was granted by the Director himself, why selectively the records of petitioner in every aspect of the matter vanishes from the Secretariat remains unexplained and the entire onus is thrown on poor village assistant teacher who produced the Government records before the Government itself, rather produced the records of the Director before the Director himself. The ridiculous extent to which things happening appears to be happening in the Patna Secretariat. As all the grounds which have been raised in the counter affidavit have already been adjudicated and negatived in earlier proceedings, this Court cannot reopen the matter. In this connection, I may refer two judgments. First, what was said by Justice P.N. Bhagwati (as he then was) in the case of M/s Hindustan Sugar Mills Vs. The State of Rajasthan and others since reported in AIR 1981 Supreme Court 1681, which is quoted hereunder:- “…….We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen, and the State - 6 - should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand.” Then, I may refer to what was said by Chief Justice Chagla more than five decades back in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “…..But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default….” Thus, on all counts, I find that the stand taken by the respondent, in particular, the Director, Primary Education, Government of Bihar, Patna is not only unsustainable in fact and in law, it is ridiculous and designed to harass the petitioner and deny him his - 7 - legitimate dues. It is no where suggested in the counter affidavit that the petitioner is not discharging his duties or was not discharging his duties at any point of time. Having taken work from petitioner, now the State cannot be permitted to deny wages on any legal engineering for it is well established that no service is gratuitous. The petitioner would have to be compensated for the service as rendered by him to the State. Before parting, I would be failing if I do not notice one of the important Annexures to the writ petition itself which the respondent- Director, Primary Education though filed in counter affidavit, has himself not seen or having seen has sought to ignore the same. That is a letter from the office of the Accountant General, Bihar to the Treasury Officer, Saharsa enclosing letters of the State Government issued by the Primary Education Department itself in which the entire list of all schools taken over in Saharsa including petitioner’s being Middle School, Sinhoul has clearly mentioned and the date of take over also mentioned as 01.01.1971. What controversy remains, this Court is still unable to understand and in what manner remained “unsatisfied” remains a question, probably, not within the domain of this Court. In the result, the petitioner would be entitled to the payment as per calculations contained in Annexure-14 to the writ petition being a communication of the Headmaster to the District Superintendent of Education, Saharsa dated 11th March, 2008 by which the remuneration was calculated pursuant to directions passed in earlier writ petition. This payment of Rs.2,89,561/- has to be made to the petitioner within a period of one month from today and it shall be the responsibility of the - 8 - responsible Director, Primary Education, Government of Bihar to ensure the said payment. The said payment would also be along with interest @ 6% per annum from the time it was due till the time it is paid. State shall be liable to pay exemplary cost for uselessly and repeatedly harassing the petitioner and repeatedly wasting time of this Court by series of litigations induced by the State to the extent of Rs.50,000/- to the petitioner which also would have to be paid within the aforesaid period and the liability of compliance would be on the Director, Primary Education, Government of Bihar, Patna. It would be open to the State Government to realize the interest and the cost from the person who is responsible for the delay and the harassment caused but that would not delay payment to the petitioner. In the hope that this would end all controversies and miseries of the petitioner, the writ application is allowed with the direction aforesaid and, the order dated 11.12.2009 of the Director, Primary Education, Government of Bihar, Patna, as contained in Annexure-18, is quashed. Trivedi (Navaniti Prasad Singh, J.)