Mangal Sinha v. State Of Bihar — 1989 DIGILAW 153 (PAT)

Judgment S. B. Sinha, J and JJ. 1. This writ petition was initially filed by one Mangal Sinha (since deceased) and who after his death has been substituted by the present petitioners. 2. Initially the aforementioned Mangal Sinha prayed for the following reliefs:- " (a) That the petitioner be deemed to be continuing in service on the post of Assistant Headmaster in Rajkiya Krita High School marhowrah in the District of Saran from 28-1-1958 to 30-11-1980 and be declared to be entitled for full pay, provident Fund, Gratuity and pension by issuance of an appropriate writ, direction, order or orders, which may be deemed fit. " 3. However, the death of the origional petitioner an application for amendment of the writ petition was filed which was allowed by this court by an order dated 30th March, 1989. 4. In the said application for amendment the present petitioners sought deletion of the prayers as contained in paragraph 1 of the original writ petition and prayed for the following reliefs:- " (a) The original petitioner Mangal Sinha be declared to be continuing in service on the post of Assistant Headmaster in Rajkiya Krit High school Morhowrah in the District of Saran from 28-1-1958 to 30-11-1980 and be further declared to be entitled to full pay for this period together with the benefits of increments, promotion etc. provident fund, gratuity and full pension from 1-12-1980 to 21-12-1987. (b) The petitioner No.1 Smt. Sushila Dsvi wife of Late Mangal sinha and petitioner Nos 2 and 3 Bijoy Kumar Singh and Shiv kumar Singh respectively sons of Late Mangal Sinha be declared entitled to all the benefits which would accrue to the deceased original petitioner Mangal Sinha. (c) The petitioner No.1 Smt, Sushila Devi who happens to be the wife and dependent of late Mangal Sinha be declared entitled to family pension. (d) Such appropriate writ, direction, order or orders which may be deemed fit be issued on the respondents. 5. In view of the points involved in this writ petition it is not necessary to state the facts of the case in details. 6. (d) Such appropriate writ, direction, order or orders which may be deemed fit be issued on the respondents. 5. In view of the points involved in this writ petition it is not necessary to state the facts of the case in details. 6. Suffice it to say that the petitioner was initially appointed as an Assistant headmaster in High School Marhowrah, The petitioner was, however, discharged from service by the Managing Committee of the aforementioned school on 28th January, 1958, The petitioner challenged the aforementioned order of discharge by instituting a suit in the Court of Munsif, Chapra being title Suit No.54 of 1961. 7. By a judgment and decree dated 24-4-1965 Shri Dayanand Pradhan, 3rd Munsif, Chapra decreed the aforementioned suit and declared that the order of discharge of the detitioner from the said school was invalid, illegal and without jurisdiction and in law he would be deemed to be still continuing in service. 8. The defendants of the said suit, being aggrieved by and dis-satisfied with the said judgment and decree dated 24-4-1965, preferred an appeal in the court of District Judge. Chapra, which was registered as T. A. No.126 of 1965. 9. By a judgment dated 1-7-1978 the said Title Appeal No.126 of 1965 was dismissed. 10. According to the original petitioners thereafter he filed various representation before the District Education Officer through proper channel for permitting him to resume his duties but he was not permitted to do so. 11. According to the petitioners the said school became a Government aided school in the year 1974. The further case of the petitioner was that in view of the provisions contained in Bihar Non-Government secondary (Taking over of Management and Control) Act, 1981 (hereinafter referred to as the said Act) the said school was nationalised with effect from 2-10-1980, However, the original petitioner was not allowed to join his duties even after nationalisation oi the said school. 12. The original petitioner further contended that he however, reached the age of superannuation on 30th November, 1980. 13. On the basis of the aforementioned assertions the original petitioner mangal Sinha filed a writ petition for the reliefs, as mentioned hereinbefore. 14. 12. The original petitioner further contended that he however, reached the age of superannuation on 30th November, 1980. 13. On the basis of the aforementioned assertions the original petitioner mangal Sinha filed a writ petition for the reliefs, as mentioned hereinbefore. 14. Learned counsel for the petitioners submitted that in view of the fact that a decree was passed by a competent civil court in favour of the original petitioner to the effect that the order of discharge passed by the Managing committee of the school in question dated 28th January, 1958, being illegal and invalid and further by reason of the said decree the original petitioner was to continue in services of the said school, his services must be deemed to have been transferred to the state of Bihar by reason of the provision of Sec.3 of the said Act. 15. According to the learned counsel it is now well settled that a decree passed by the civil courts has got to be respected and has got to be given effect to and in that view of the matter as the original petitioner continued as a teacher of the said school, the present petitioners after the death of the original petitioner are entitled to the same benefits to which the original petitioner would have been entitled to. As noticed here-in-before, according to the petitioners, the petitioner No.1 is also entitled to family pension. 16. In this connection learned counsel for the petitioners has placed strong relation upon Radha Ram V/s. Municipal Committee, Barnala and anothers, reported in 1982 LIC 1857 as well as a decision of the Full Bench of the punjab and Haryana High Court in Prakash Chand v S S, Grewal, reported in 1974 Vol.1 S. L. R.647. 17. Hard as it seems the case of the petitioner is but unfortunately in view of the statutory provision contained in Sec.3 of the said Act, it is not possible for this Court to grant any relief to the petitioners. 18. It is an admitted fact that prior to nationalisation of the said school in terms of the provisions of the said Act, the school in question was a privately managed school. A decree thus passed against the said school is binding upon the parties thereto only and not upon to the state of Bihar of its authorities. 19. 18. It is an admitted fact that prior to nationalisation of the said school in terms of the provisions of the said Act, the school in question was a privately managed school. A decree thus passed against the said school is binding upon the parties thereto only and not upon to the state of Bihar of its authorities. 19. The matter would have otherwise if the petitioner had a legal right to continue in service of the btate of Bihar in terms of the provision of the said act because of nationalisation of the said school but unfortunately Sec.3 of the said Act itself provides that the State is required to take the services of nine teachers only. It has not been contended nor could it be contended that the petitioner was one of those nine teachers whose services were bound to be recognised by the State of Bihar in terms of the provisions of the said Act, in view of the fact that admittedly the petitioner did not perform his duties since 1958. 20. As a matter of fact in the writ petition no such assertion has been made. It is now well known that it a person set up a legal plea, he is bound to plead the foundational fact therefore. 21. Apart from that has been stated hereinbefore it has since been held by two Full Bench decisions of this Court in Ram Ballabh Prasad Singh V/s. State of bihar, reported in 1986 PLJR 373 as well as in Ram Naresh Prasad Nirala V/s. State of Bihar and others, reported in AIR 1987 Patna 151 = 1987 BLJ 678 (FB)that a headmastor or for that matter a teacher, upon the take over of a secondary school, has no legal right to be automatically absorbed in the services of the state of Bihar. The decision of this Court in Ram Ballabh Prasad Singh has since been affirmed by the Supreme Court (See 1988 PLJR Page 70 SC ). 22. So far as the decision of the Full Bench of the Punjab and Haryana high Court in Prakash Chand V/s. S. S. Grewal, reported in 1974 Vol.1 SLR 647 is concerned, the same was rendered in different facts and circumstances of the case. The defendant of the said case was an employee of a Municipal committee which was a local authority. The defendant of the said case was an employee of a Municipal committee which was a local authority. In that case the conditions of services of the plaintiff thereof were being governed by statutory rules. 23. In that view of the matter it was held by the Full Bench of the High court that as the terms and conditions of a Municipality is governed by the provision of statutes, Sec.34 of the specific Reliefs Act, 1963 is not a bar in maintaining a Suit. In this case the position is not so. It is now well settled principle of law that a suit for enforcing a contract of personal service will not be maintainable as again against a privately manage School in terms of Sec.14 (b) of the specific Reliefs Act.1963, In any svent in this writ petition the aforementioned question does not arise for consideration at all. 24. So far as Prakash Chands case is concerned therein the Full Bench of Punjab and Haryana High Court was considering the executebility of a declaratory decree. There cannot be any doubt that a declaratory decree granted may also be executed if such a declaratory decree is passed as against the state. 25. However, as I have held hereinbefore that such a question is wholly irrelevant in this writ petition. 26. In view of my findings aforementioned I have no other option but to hold that there being no merit in this application, the same must be and is hereby dismissed. 27. However in the facts and circumstances of the case there will be no order as to costs. Writ Petition Dismissed.