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1993 DIGILAW 153 (PAT)

Abu Mukarim Md. v. State of Bihar

1993-04-06

N.ROY, S.N.JHA

body1993
Order The question being common in these five writ applications, they have been heard together and are disposed of by this common order. By reason of a resolution contained in the circular of the Human Resources Development Department bearing no. 2412 dated 29.10.90, the State Government has taken a policy decision, on the basis of an agreement with the teachers' association, to raise the age of superannuation, in the case of teachers of taken over primary schools retiring on or after 30.9.89 and in the case of teachers of taken over of secondary schools retiring on or after 31.10.89, from 58 to 60 years. The petitioners in these applications are teachers in schools other than taken over schools. The question for consideration is whether the aforesaid decision of the State Government is applicable to them. 2. There are different categories of schools in the State of Bihar. There are government schools including basic schools and teachers' training schools. There are now also projects schools for the girls in each block of the State. Besides them, there were schools which were run by local bodies such as, District Board, Zila Parishad, Municipalities or private managing committees, trusts, public or private undertakings etc. It is not necessary to go into the details of the rules and circulars applicable to the teachers working in the latter category of the schools. Suffice it to say that by virtue of the provisions of the Bihar Non Government Elementary Schools (Taking over and Control) Act and Bihar Non-Government Secondary Schools (Taking over of Control and Management) Act certain categories were taken over by the State Government. The Government has framed rules and issued instructions from time to time laying down the conditions of services of the teachers working in such schools. Although by reason of the take over, the teaching and non-teaching staff of such schools are now deemed to be Government servant, they continue to have distinct entity in many respects. 3. The petitioners in C.W.J.C. No. 2309 of 1992 (R), C.W.J.C. No. 3518 of 1992 (R) and C.W.J.C. No. 608 of 1993 (R) belong to the cadre of the Bihar Subordinate Education Service who were posted in various capacities in different training schools. The petitioners in C.W.J.C. No. 685 of 1993 (R) and C.W.J.C. No. 868 of 1993 (R), on the other hand, are teachers in basic school and cantonment board. 4. The petitioners in C.W.J.C. No. 685 of 1993 (R) and C.W.J.C. No. 868 of 1993 (R), on the other hand, are teachers in basic school and cantonment board. 4. In C.W.J.C. No. 2309 of 1992 (R), the State of Bihar has filed a counter affidavit. A specific plea has been taken that the cadre of the Subordinate Education Service comprises of' teaching branch and inspecting branch. The former includes the post of instructor in primary teachers' training school and the headmaster in the Government basic schools while the latter includes the post of Block Education Extension Officer at' the' block level and Sub-Inspector of Schools in municipal area etc. The aforesaid posts carrying the same scale of pay are transferable from one branch to other throughout the State. About the petitioner, it is stated that after his initial appointment in the cadre (of Subordinate Education Service) on 7.9.59, he was posted as additional instructor in Hansdiha Teachers' Training School in the district of Santhal Paragana and in course of time was posted on different posts in both the branches, the last being the post of Sub-Inspector of -the school, Hazaribagh from where he retired on 31.7.92 on completing the age of 58 years on 31.7.92. It is stated that unlike the persons belonging to the cadre of Subordinate Education Service, teachers of taken over or nationalised primary schools are not officers borne on the cadre of Subordinate Education Service and their posts arc not transferable to the inspecting branch. The teachers in taken over primary and middle schools have district cadre under the control of the District Superintendent of Education and they arc transferable within the district in the same capacity. 5. It is also stated that officers of the Subordinate Education Service have chance of promotion to the gazetted posts of the Bihar Education Service in -which 50 percent posts are reserved for being' filled up by promotion from the members of the Subordinate Services, which advantage is not available to the teachers of the taken over primary and middle schools. 6. 6. We have taken pains to briefly refer to the different aspects of service conditions of the teachers of Government schools as against those who are working in taken over schools for the purpose of showing that despite the latter becoming Government servants by reason of take over of the school and their services, they cannot be treated at par with the former for all purposes. The petitioners are Government servants since their very appointment. They arc subject to different rules, applicable to the other categories of Government servants including Bihar Service Code, which provides for the age of superannuation at 58 years. Unless the relevant rule of the Code is suitably amended, they cannot claim that they should be allowed to continue beyond age 58 years and the Court cannot issue any such direction. So far as the resolution dated 29.10.90 is concerned, in terms, it is applicable to the teachers working in taken over primary and secondary schools. In this application, it is not necessary to consider whether the Government could raise the age of retirement in respect of such teachers on the basis of resolution without amending the rule. However, since the teachers working in the taken over schools form a separate class as against their counterparts appointed to the Bihar Subordinate Service under the State Government, they cannot claim parity of status or equal treatment. 7. The petitioners have based their claim on several orders of this Court, the first one being the order passed on 28.10.91 in C.W.J.C. No. 1999 of 1990 (R). The other orders passed in C.W.J.C. No. 51 of 1992 (R) disposed of on 18.2.92, C.W.J.C. No. 207 of 1992 (R) disposed of on 4.3.92, C.W.J.C. No. 1622 of 1992 (R) disposed of on 28.2.92 and C.W.J.C. No. 3895 of 1992 (R) disposed of on 17.3. 93 have been passed following the order in C.W.J.C. No. 1999 of 1990 (R). A perusal of the aforesaid order shows that the distinction between taken over schools and the Government schools was not noticed. No counter affidavit appears to have been filed, the point was not canvassed. It may be stated, in this connection, that the Supreme Court has stayed the judgment of this Court in C. W. J. C. No. 612 of 1990, which according to the State Counsel involved identical point, vide order passed on 19.2.93 in SLP (Civil) No. 376 of 1993. It may be stated, in this connection, that the Supreme Court has stayed the judgment of this Court in C. W. J. C. No. 612 of 1990, which according to the State Counsel involved identical point, vide order passed on 19.2.93 in SLP (Civil) No. 376 of 1993. In our opinion, the order passed in the case and other cases following that must be held to be per incurium and, therefore, not binding. 8. Mr. N. N. Tiwary, learned counsel for the petitioners in some of the cases placed reliance on letter no. 458 (date not mentioned) included in the compendium of rules and regulations relating to primary education in the State of Bihar, a private publication, in support of his contention that the cadre is joint. He also place reliance on a decision of the Supreme Court in M. G. Pandke v. Municipal Council, Hinganghat (AIR 1993 Supreme Court 142). In our opinion, neither the circular nor the decision aforesaid helps the petitioner in any manner. The stand of the respondents as to the teachers belonging to different cadres has already been noticed above. There is no rejoinder to the State's counter affidavit. So far as the decision is concerned, it would appear that the retirement age of teachers in Vidarbha was 60 years as per M. P. Secondary Education Act. After Vidarbha became part of Maharashtra State in course of time, the Maharashtra Government framed Secondary Schools Code in terms of which teachers of Vidarbha region were permitted to superannuate on attaining the age of 60 years. The Code was given statutory effect. However, later, a Municipal Council in Vidarbha by framing bye-law purported to reduce the age of superannuation to 58 years. On these facts, it was held that the age of superannuation of Vidarbha teachers being 60 years by reason of a statutory provision, the local Municipal Council could not frame byelaw to the contrary. The facts of the instant cases are entirely different and, therefore, the decision has no application, 9. The cases of the petitioners in C.W.J.C. No. 868 of 1993 (R) stand on even weaker footing inasmuch as they are employees of Cantonment Board and are only entitled to the same scale of pay as their counterparts in the State run schools. 10. The cases of the petitioners in C.W.J.C. No. 868 of 1993 (R) stand on even weaker footing inasmuch as they are employees of Cantonment Board and are only entitled to the same scale of pay as their counterparts in the State run schools. 10. We are satisfied that the petitioners are not entitled to the benefit of the Government Resolution dated 29.10.1990, which is applicable to the teachers working in the taken over primary and secondary schools alone who form a separate district- class. 11. These writ applications are devoid of merit and are, accordingly, dismissed.