IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12517 of 2005 1. HARENDRA KUMAR PANDEY, son of Shri Ramashish Pandey, resident of village- Banpura, P.S.- Rasulpur, District Saran. 2. Bimal Kumar Singh, son of Late Suraj Singh, resident of Village- Mahui, P.S.- Manjhi, District- Saran. 3. Shailesh Kumar Singh, son of Binda Singh, resident of village- Bajrahiyan, P.S.- Maharajganj, District- Siwan. ----- Petitioners Versus 1. THE STATE OF BIHAR, through the Secretary, Secondary, Primary and Adult Education Department, Government of Bihar, Patna. 2. The Special Director, (Secondary Education-Sanskrit), Government of Bihar, Patna. 3. The Bihar Sanskrit Siksha Board, through its Secretary, having its office at Boring Canal Road, East, Patna. ----- Opposite Parties ----------- 7 29.4.2009 Petitioners are the Assistant Teachers of Mahendra Nath Sanskrit Prathmik- sah-Madhyamik Vidyalaya, Rasulpur (Saran). Petitioner Nos. 1 and 2 were appointed on 1.8.1979 and 17.7.1979 whereas petitioner no. 3 was appointed on 15.4.1985. In 1981 the State Government came up with a resolution by which it fixed the strength of teachers in different types of schools. The sanctioned strength of teachers for Primary Sanskrit Schools was two. Initially the school was a primary school however, it became a primary-cum-middle school in the year 1983 vide memo no. 876 dated 15th September, 1983 when the Government recognized the school in question as Prathmik- sah-Madhyamik Sanskrit School which taught children from class I to class X and the State 2 Government accordingly sanctioned one post for the Science Teacher and nine posts for other teachers. In 1989 the State Government came up with the Bihar Non Government Sanskrit Schools (Taking Over of Management and Control Ordinance) 1989 by which the Government took over all the non Government Sanskrit Schools for the purposes of managing and controlling them and their better organization and development. The 1989 Ordinance lapsed and was replaced by the 1990 Ordinance. This Ordinance was promulgated on 13th August, 1990. By Clause 4 of the Ordinance, the State Government not only sought to take over the schools but also the services of the teachers and non teaching staffs working in such schools. The State Government also gave a schedule of schools which were recognized for the purposes of taking over the schools along with the sanctioned strength of teaching and non teaching staff each of those schools. The school where the petitioners are teachers finds place as item no. 171 of the schedule wherein the sanctioned strength of teachers is shown as 3 seven. The Ordinance of 1999 was challenged in a writ application vide C.W.J.C. No. 7399 of 1990 and analogous cases (Subhash Chandra and Ors.). The matter was decided by a Division Bench of this Court and at paragraph 106 of the said judgment, it has been held as follows: 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. Several contempt applications were filed for implementing the order passed by the Division Bench which were ultimately complied and teachers of approved schools received their salary. Ultimately the State Government filed a S.L.P. in the Supreme Court challenging the judgment of this Court. The Supreme Court while hearing the matter passed an interim 4 order allowing the prayer and directing the State Government to pay to teaching and non teaching staff of the recognized institution who are within the sanctioned strength their salary at the old rate prior to the promulgation of the Ordinance within two months. The effect of the interim order of the Supreme Court can only be interpreted to mean that those persons who were teaching in recognized Sanskrit Schools prior to the promulgation of 1989 and 1990 Ordinances would be paid their salary at the old rate if their services were previously approved by the State Government and they were within the sanctioned strength. Petitioners have not been paid their salary since 1995 and the reason given by the State Government is that they have challenged the judgment of Subhash Chandra’s case annexed as annexure-13 in the Supreme Court. True it is that they have challenged the judgment but the Supreme Court has at the same time permitted and directed the State Government to pay salary to the persons working against sanctioned strength and thus the stand taken by 5 the State Government would be in violation of the order of the Supreme Court. It would always be open to the State to seek clarification from the Supreme Court. I accordingly direct that the petitioners should be paid their salary at the old rate if they are still teaching in Mahendra Nath Sanskrit Prathmik-sah-Madhyamik Vidyalaya, Rasulpur (Saran). For this purpose the report may be called for from the Headmaster of the school aforesaid by the Special Director, Secondary Education, Government of Bihar, Patna within a period of one month from the date of receipt/production of a copy of this order and thereafter the current payment of the petitioners should be made within one month thereafter. The arrears of the petitioners should be paid in four equal installments within a period of one year. The writ application is allowed. Sanjay (Sheema Ali Khan, J.)