IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5185 of 2001 1. 1 GULAB JHA son of Sri Rajbanshi Jha, resident of Village-Sarara, P.O.- Madheshwar Sthan, P.S.- Babubarhi, District-Madhubani. 2. Gopalji Jha son of Late Jeev Nath Jha, resident of village-Sarara, P.O.- Madheshwar Sthan, P.S.-Babubarhi, District-Madhubani Both Assistant Teachers in Primary Section of Sanskrit High School, Madheshwar Sthan, Madhubani. ……….Petitioners. Versus 1. THE STATE OF BIHAR. 2. The Commissioner, Human Resources, Development Department Govt. of Bihar, New Secretariat, Patna. 3. The Additional Secretary, Human Resources, Development Department, Government of Bihar, Patna. 4. The Special Director, Secondary Education, New Secretariat, Bihar, Patna. 5. The Chairman, Bihar Sanskrit Shiksha Board, Boring Canal Road, Patna. 6. The Secretary, Bihar Sanskrit Shiksha Board, Boring Canal Road, Patna. ……………Respondents. ----------- 5. 12.10.2010 Having heard learned counsel for the parties and taking into account that the following reliefs 1. (i) For issuance of a writ in the nature of a writ of certiorari for quashing the impugned letter dated 21.12.1995, bearing memo no. 1056 issued by the Additional Secretary, Department of Primary Secondary, Department of Primary Secondary and Adult Education Government of Bihar, Patna (Annexure-4) whereby the Government letter bearing memo No. 957 dated 18.11.1989 (Annexure-2) has been cancelled with effect from its date of issuance. And also for quashing the impugned letter bearing memo No. 102 dated 29.1.1999 (Annexure-4-A) issued by Special Director(Secondary Education) Bihar, Patna so far the petitioner’s School at Serial No. 25 is concerned. (ii) For a declaration that the petitioners are the duly appointed/adjusted and 2 approved teachers of the School vide in question working against the two sanctioned posts of Primary Section of the School vide letter of the education Department bearing memo No. 957 dated 18.11.1989 (Annexure- 2) and thereby entitled for payment of salary with effect from 18.11.1989 as held by this Hon’ble Court in the order dated 22.9.1995 passed in CWJC No. 9279/94 and order dated 3.1.1995 passed in C.W.J.C No. 12562/92. stands answered by a recent judgment of learned single Judge dated 16th September 2010 in CWJC No. 216 of 1998 ( Deo Shankar Jha and others vs. State of Bihar and others) and its analogous cases wherein it has been held as follows:- “On similar reasoning , a similar letter of the State Government being issued under memo No. 1056 dated 21.12.1995 which deals with purported cancellation of Primary Teacher posts which were sanctioned by letter No. 957 dated 18.11.1989 cannot also stand because the import of this letter is identical to that of the letter dated 14th December, 1995 which the Division Bench has already held to be a dead letter. This letter of 1995 is also a dead letter.” There would be thus no difficulty in allowing the prayer of the petitioners as contained in aforesaid quoted portion of paragraph 1 (i) and (ii) of the writ application in view of the law laid down in the case of Deo Shanker 3 Jha (supra) inasmuch as the same has not yet been assailed by the State or the Board. This Court also does not find any reason to differ with the reasonings and the conclusions arrived by the learned single Judge in the aforementioned case of Deo Shankar Jha (Supra) accordingly the prayer made in paragraph no. 1(i) and 1(ii) are allowed in terms of the judgment of this Court in the case of Deo Shanker Jha (Supra). The difficulty for the petitioners would, however, be in respect of relief in paragraph 1(iii) which reads as follows:- “1(iii) For issuance of a writ in the nature of a writ of mandamus directing and commanding the respondents to make payment of salary to the petitioners w.e.f 18.11.89 till date as they are duly appointed/adjusted and approved teachers working against the two sanctioned posts of primary section of the school in question.” Mr. Purushottam Jha would submit that the petitioners were appointed by the Managing Committee of the School in the year 1984 and since the posts was not sanctioned, the Managing Committee never approached Bihar Sanskrit Shiksha Board till such sanction of post was made by the State Government on 18.11.1989. He 4 would further submit that once the post was sanctioned, the Managing Committee had approached the Board and the Board had given approval to the appointment of the petitioners by an order dated 6.3.1990 as contained in Annexure-1 (A) which for sake of clarity is quoted hereinbelow; ^^iVuk] fnukad 6-3-90 vkns'k la0 896 @ v/;{k] fo0la0f'k0 cksMZ] iVuk ds vkns'kkuqlkj ,oa jkT; ljdkj ds i=kad 957 fnukad 18- 11-89 ds }kjk Lohd`r izkFkfed bdkbZ esa izcU/k lfefr la0m0fo0 enus'oj LFkku e/kqcuh ds izLrko la0&2 fnukad 31- 7-84 }kjk fu;qfDr Jh xqykc >k] 'kkL=h ,oa Jh xksiky th 'kkL=h dk vLFkk;h vuqeksnu fnukad 18-11-89 ls rhu ekg ds fy;s iznku fd;k tkrk gSA osrueku& ¼580&860½ ns; gksxkA lfpo fo-la-f'k0 cksMZ] iVuk** On the basis of the aforementioned approval, Mr Jha would commend for a direction to the State Government and the Board for payment of salary of the petitioners from 18.11.1989 onwards and till date. Noticing the said argument of Mr. Jha, this Court in its order dated 24.8.2010 while directing the parties to file their respective affidavits, had observed as 5 follows:- “In this writ application the only question involved is as to whether the petitioners would be entitled for payment of salary from the fund released by the State Government for the period the post, in question, was sanctioned and had remained existing. There would be no difficulty in answering the aforementioned question at least on the settled principles of law, inasmuch as, when the additional posts were created only on 18.11.1989, the sanction and/or approval of appointment on them could have been made by the competent authority, which in this case was Board only up to 17.12.1989 and by the State Government from 18.12.1989, in view of the fact that the control of these 429 Sanskrit schools had vested in the State Government for the period 10.12.1989 to 30.4.1992, when the ordinance no. 32 of 1989 or its replacement ordinance remained in force. Admittedly, in this case the claim of the petitioners is based on an order of approval issued by the Secretary of the Bihar Sanskrit Shiksha Board dated 7.1.1990. On 7.1.1990, the Secretary of the Board had been left with no power as with regard to these 429 Sanskrit schools or approving the services of any teacher of those Sanskrit schools, inasmuch as, the ordinance no. 32 of 1989 had denude the power of the Board in this regard. Once this conclusion is arrived, it would not be difficult for this Court to hold that the petitioners’ claim, being based on a wholly void order of the Board, the petitioners would not be entitled for payment of salary because the payment of salary can only be made to the teachers of the recognized Sanskrit schools, if their appointment are duly approved by the competent authority. There would be also no difficulty in 6 understanding that the petitioners’ salary for the period up to 30.11.1995 will have one particular facet as with regard to availability of the post, inasmuch as, the abolition of the post with retrospective effect may not be wholly justified, still the question would be that if the post in question is treated to be existing up to 30.11.1995, could the petitioners be entitled for payment of salary for the period up to 30.11.1995? The only obvious answer would be in negative because the appointment of the petitioners had never got approval from the competent authority. The argument of desperation then flows from Mr. Purushottam Jha, learned counsel for the petitoners, who would submit that the school of the petitioners, so far it relates to the high school unit, was taken over and the primary school still remained under the control of the Managing Committee of the school and therefore, the primary unit portion of the school was under the jurisdiction of the Board. This aspect of the matter needs to be clarified by the petitioners by producing any document to show that the school’s recognition in the initial phase was of primary cum high school and that the teachers of primary unit were sought to be recognized by the Board. It is well known that in any Sanskrit school can be recognized in terms of Section 6(2)(i) of the Bihar Sanskrit Shiksha Board Act only with the prior approval of the State Government, which is a condition precedent for recognition. Now if the school of the petitioners had never been initially approved as primary-cum-high school and the post of primary unit came only on 30.10.1989, it would be farfetched to imagine that the petitioners will be deemed to be functioning in the primary unit of the school for which there was no approval of the State Government. All these aspects, however, would 7 take a back seat if the contention of the petitioners regarding discrimination is established. Neither the Board nor the Government have filed any counter affidavit denying the specific claim of the petitioners as with regard to the payment of salary of other teachers of 429 Sanskrit schools also receiving approval from the Board after 18.12.1989 as in the case of the two petitioners, such teachers of other school are said to have been made payment of their salary from the funds of the Government at least up to the period of abolition of the posts on 18.12.1995 though they also are covered by 120 posts by the Government in its order dated 18.11.1989. In that view of the matter, this Court would call upon the respondents State of Bihar and the respondent Board to file their specific counter affidavit as with regard to the position of payment of salary of the teachers named in the order dated 29.1.1999 concerning 41 schools including the school of the petitioners figuring at serial no.25.” Pursuant to the said order of this Court, a detailed counter affidavit has been filed on behalf of the Board wherein it has been stated as follows:- “5. That the instant writ application has been filed for quashing the letter contained in memo no. 1056 dated 21.12.95 by which the primary unit allotted to 60 schools has been cancelled as well as the letter contained in the Memo No. 12 dated 29.1.99 by which the state Govt. has rejected the payment of salary of the teachers appointed on the post of primary units. 6. That the petitioners claims to be appointed on the basis of the resolution of the managing committee of the school dared 31.7.84 and the appointment letter has been 8 annexed as Annexure-1 to the writ application. There is no mention in Annexure-1 that the appointment were made on the basis of Advertisement or the policy of reservation was followed in the appointment. 7. That Annexure-1 A has been annexed in proof of the approval of the appointment by the Board. From perusal of Annexure-1A it is evident that the approval of the appointment was only granted for three months on purely temporary basis and no further extension of the service of the petitioner was extended from 7.6.90 and they cannot continue their services after the fixed period of three months. 8. That the State Govt. allotted 2 primary units in each 60 non Govt. recognized Sanskrit schools vide memo no. 957 dated 18.11.1989 issued by the State of Bihar (Annexure-4A of the writ application). 9. That the earlier approved additional units were cancelled vide government order contained in letter no. 1056 dated 21.12.1995 and those additional units were not included in the Manak Mandal which is in the ordinance (Annexured as Annexure-5 of the writ application). 10. That the writ petitioner has claimed his salary on the basis of working on the post of Assistant Teacher on primary unit which has already been abolished vide order dated 21.12.1995, therefore, the salary of the petitioner cannot be paid for working on non sanctioned post. 11. That the additional post of Assistant Teacher upon which the petitioners claimed to be working has been abolished vide order dated 21.12.1995 and since then the post upon which the petitioners claimed to be working are non existent. Therefore, there is no question of granting salary to the petitioners on post which is not in existence. 12. That the power, to abolish a post which may result in the holder thereof ceasing 9 to be a Government servant is got to be recognized. Therefore the petitioners have no right to be continued in service of the Board. 13. That the present school is in the category of 429 Grade of schools under the control of the Managing Committee duly constituted and approved by the Bihar Sanskrit Siksha Board. Patna only the grant is being provided of such schools by the State Government. 14. That the 429 category of schools were taken over by the State Government vide ordinance no. 32/89 dated 18.12.1989 and the ordinance was promulgated from time to time at last lapsed on 1.5.1992 due to which the process of take over could not be completed. In this regard, the Civil Appeal No. 3533- 3595/94 is pending before the Hon’ble Superme Court which has not been disposed of till today. In the ordinance the no. of teaching and non teaching staffs for each schools is mentioned which is known as Manak Mandal. 15. That in the Manak Mandal the Additional units such as primary units were not included in the ordinance. 16. That the employees of those schools who were included in the Mank Mandal in the ordinance were legally appointed and actually working employees. 17. That the petitioner has claimed his salary on the basis of the order passed by the Hon’ble Court in I. A. No. 191-198 arising out of Civil Appeal No. 3533-3595/94 shall be applicable to the parties also. The interim order dated 26.4.1995 is “ That the employees shall be paid salary @ applicable on 17 December 1989”. Earlier the Hon’ble Supreme Court was also pleased to direct the state Government to pay the teaching and non teaching staffs of the recognized institution who are within sanctioned strength the salary at the old rate prior to the promulgation of the ordinance. According to the case of the 10 petitioner the primary unit of the school was sanctioned vide order dated 18.11.1989. Therefore the petitioner cannot be placed within sanctioned strength and the Manak Mandal of the school, before 18.11.1989 and according to direction of the Hon’ble Supreme Court only those employees are to be paid, who are within the sanctioned strength and Manak Mandal of the school on 17 December 1989. On this score the petitioner cannot be paid their salary after 18 December 1989. 18. That under ordinance no. 31/89 when the teachers of 429 Sanskrit schools including the schools of the petitioner were taken over, there was a specific clause that though the school have become Govt. Sanskrit Schools but the payment of salary would be made in respect of such teachers who is in service as on 18.12.1989 and who were earlier being paid salary from the funds of the State Government through the aegis of the Board only after completing the inquiry with regard to the existence of the functioning of the schools. This aspect of the matter was gone into at great length by a Division Bench of this Court in the case of Subhas Chand vs. State of Bihar reported in 1994(2) PLJR 359 wherein it was held that only such teachers of a non- Govt. Sanskrit Schools were entitled for payment of salary with effect from 18.12.1989 who were earlier being paid salary from the funds of the State Govt. from the aegis of the Board. The Division Bench did not allow payment of salary to any of such teacher whose payment of salary were earlier have not made from the funds of the Govt. Thus in terms of the Division Bench judgment also the petitioner is not entitled for payment of his salary. 19. That since the 429 category of schools were taken over by the state Govt. vide ordinance dated 18.12.89, therefore the power of approval of the services of the employees to the Board was only till 17.12.89 11 and since 18.12.89 to 30.4.92 the power of approval of services of the employees were to the state govt. The services of the petitioners are said to be approved on 6.3.90 by the Board, which is illegal and not sustainable in the eyes of law. 20 That Annexure 4A has been annexed in the writ application by which the salary of the petitioners has been rejected on the grounds that their appointments were not made on the basis of any advertisement nor the 1976 Rules or appointment were followed nor the policy of reservation was followed in appointment. 21. That the matter of payment of salary to the teaching and non-teaching staffs of those schools whose additional posts were cancelled was considered by a division bench of the Hon’ble Court and the Hon’ble Court was pleased to hold that the teaching and non teaching staffs of those schools will not be entitled to the payment of salary with effect from the date on which such an order of cancellation is passed.” Though the petitioners have not filed a rejoinder to the counter affidavit but they have filed a supplementary affidavit wherein copies of certain orders passed by this Court have been annexed. In the opinion of this Court, the orders produced by the petitioners in their supplementary affidavit would not govern their case as they are in respect of such teachers whose services were already approved by the Board prior to the take over of 429 Sanskrit Schools on 12 18.12.1989. It is not in doubt that said school is one of the 429 Sanskrit Schools which were taken over by the State Government by Ordinance No. 32 of 1989 w.e.f. 18.12.1989 (wrongly recorded in the judgment in the case of Deo Shankar Jha (Supra) as 16.12.1989) and the Bihar Sanskrit Shiksha Board had been left with no authority whatsoever in law to pass an order either approving or disapproving any proposal of the Managing Committee of such schools which were taken over w.e.f. 18.12.1989. Mr. Jha however makes a very interesting submission that though the school was taken over, only High School part was under the control of the State Government during life of ordinance in between 18.12.1989 to 30.4.1992 and the Primary Unit of the school was still a private school in which the Board had full power and authority to approve the proposal of the Managing Committee and as such the order dated 6.3.1990 cannot be held to be without jurisdiction. There would be a great difficulty in accepting the said submission inasmuch as the recognition of the School which was given by the Board in terms of Section 6 of Bihar Sanskrit Shiksha Board Act, 1981,( hereinafter referred to as the Act) with 13 the approval of the State Government was for the whole high school which was having teaching upto Class X. When the school was taken over, there was no concept of its being taken over in part but it may be possible that the Government had only undertaken the liability for payment of salary of the teachers as per Manak Mandal prescribed. That however would not mean that the school was taken in two parts and the Primary Unit of the school had remained under the control of the Board. That cannot be read into even from the ordinance no. 32 of 1989 in question or from the provision of the Act. This Court however for taking this argument to its logical conclusion would for the time being accept such submission of Mr. Jha that the Primary unit of the school had remained under the control of the Board even after 18.12.1989 but then a question would arise that if the Board itself had for good or bad reason given approval of the appointment of the petitioners only for the period of three months and that period of three months came to an end on 18.2.1990. Can the petitioners claim payment of their salary from 1984 onwards even when the school had no recognition in respect of its primary unit with two posts 14 of teachers which as noted above was given only w.e.f. 30.4.1989 and was also cancelled on 21.12.1995. Thus on 18.12.1989 the date when the school became a government school its primary units had no approved teacher under the order of the Board and therefore the government was under no obligation to release fund for payment of salary of the petitioners as their services were never approved by the Board on or before 18.12.1989. As noted above, the petitioners services by way of approval of appointment was made by the Board on 6.3.1990 for a period of three months only w.e.f. 18.11.1989 with the benefit of salary for a period of three months. The question therefore would be, can this writ Court direct for payment of salary of 20 years of such persons including the petitioners whose services were not approved by the Board even as per own their showing on or after 18.2.1990 in view of the order of the Board dated 7.3.1990. An answer obviously would be in negative. That being so, the prayer of the petitioners for grant of payment of salary despite existence of post will not be available till the Board makes a fresh application of mind on the claim of the petitioners of continuing in 15 service in the Primary Unit of the School. It would be therefore open for the Managing Committee of the School to reconsider the whole issue as with regard to continuation of the petitioners and if the Managing Committee makes the payment of salary from its own funds for the period 1984 onwards on the basis that it had allegedly taken work from the petitioners, neither the Government nor the Board will have no objection but the moment the petitioners would come out to press their claim for payment of salary against the Government, they must be a recognized teacher under a specific order of approval of their appointment by the Board. It is made clear that such approval of the services of the petitioners by the Board if at all permissible in law will be given with prospective effect and consequently the liability of making payment of salary of the petitioners through the funds of the Board will only be from such prospective date of approval of their service. Recording the aforementioned findings, this Court would only give liberty to the petitioners to approach their Managing Committee and through the 16 Managing Committee to the Board for their fresh approval of service and the Board will thereafter take a decision strictly in accordance with law. With the aforementioned observations and directions, this writ application is disposed of. kanchan/- ( Mihir Kumar Jha, J.)