Ramchandra Matho v. State Of Bihar — 1993 DIGILAW 196 (PAT)

Judgment N. Pandey, J. 1. This is an application under Articles 226 and 227 of the constitution of India for an appropriate order and direction to the respondents to allow the petitioner to get pay and scale prescribed for trained graduate teachers, treating him as permanent Headmaster of the School with effect from the date of take over and also to quash the order of the District superintendent of Education (respondent No.4) transferring the petitioner to another school vide memo No.244a dated 29-6-1985 (Annexure 17 ). 2. Facts of the case lies in a very narrow compass and are not much in dispute. The petitioner being the founder Headmaster of the school was appointed in pursuance of the resolution of the Managing Committee, dated 25-12-1979. Later, on becoming trained graduate, he was given pay and scale of graduate trained on the basis of the decision of the Managing committee with effect from 1-7-1973. Thereafter, with effect from 1-4-1974, he was made permanent Headmaster of the school. He continued in the same capacity until the School was taken over by the Government in accordance with the provisions as contained in Sec.3 (4) of the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 (in short: the Act ). 3. This is not in dispute that the petitioner on the date of take over of the management of the school, was a trained graduate and getting the pay and scale of trained graduate. On the recommendation of respondent No.4 dated 12-4-1975, the Special Secretary to the Government-cum-Director, primary Education, vide his letter dated 25-7-1981, informed respondent No 41 that the school was being taken over by the Government under the provisions of Sec.3 (4) of the Act. Surprisingly, with respect to the petitioner, it was mentioned that he would get only the scale fixed for the trained matri-eculate teachers. Ultimately, with effect from 19-9-1981, vide Annexure 8, the] school was finally taken over. Having noticed that as per the taking over notification, the pay scale of the petitioner was reduced from the prescribed scale of trained graduate to that prescribed for matriculate trained, he filed a representation before the appropriate authority. The District Superintendent of Education vide his letter dated 16-3-1983 (Annexure 10), confirming the petitioners statement regarding his pay and status on the date of take over, recommended before the Director, Primary Education for sympathetic consideration. The District Superintendent of Education vide his letter dated 16-3-1983 (Annexure 10), confirming the petitioners statement regarding his pay and status on the date of take over, recommended before the Director, Primary Education for sympathetic consideration. The same view was reiterated by the successor District Superintendent of Education and he also vide letter dated 24-4-1984 requested the Director, Primary education that the case of the petitioner be considered sympathetically. Ironically, no order either rejecting or accepting the claim of the petitioner was passed. In the meantime, vide Annexure 17 on 29-6-1985, respondent no.4 transferred the petitioner from the present school to a Middle School, dayanagar, against the post of matriculate trained. 4. Mr. K. B. Sharma, learned counsel for the petitioner, contended that consequence of the taking over of the school, in terms of Sec.4 (3) of the Act would be that all such teachers or employees, who were holding any office or post in the school on the date of take over, shall be deemed to be a teacher or employee of the State Government and shall hold office on the same terms, remuneration and service condition as they would have held before taking over of such school. The provision further envisages that such employees shall continue in the same manner unless such tenure, remuneration or terms and conditions of service are duly altered by the State government. In order to appreciate the contention of Mr. Sharma, it would be advisable to notice the provisions of Sec.4 (2) of the Act as below : "4. Consequences of taking over. (2) Every officer, teacher or other employee holding any office or post in the school taken over by the State Government shall be deeemed to have been transferred to and become an officer, teacher or employee of the State Government with such designation as the state Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do so unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government. " 5. " 5. On the basis of the aforementioned provision, learned counsel for the petitioner, contended that from the phraseology used in sub-section (2)of Sec.4 of the Act, there is no reason why the impugned order should not be quashed and the petitioner be not paid his salary of a trained graduate with effect from the date of take over of the school. 6. On a plain reading of sub-section (2) of Sec.4 of the Act, there is no difficulty in accepting the contention of Mr. Sharma that on the date of take over of the school, every officer, teacher or other employee holding any office or post in the school taken over by the State Government shall be deemed to have been transferred and become officer, teacher or employee of the State Government with such designation as the State Government may determine and shall hold office by the same tenure at the same remuneration and at the same terms and conditions of service which such employee would have held before the taking over of the said school. It further appears that all the conditions aforementioned shall continue unless they are duly altered by the State Government. This analysis of mine gets support from the judgment of the case of Smt. Pratibha Singh and another V/s. State of Bihar and others (1988 PLJR 646 ). It could be appropriate to quote relevant passage of the said report in paragraph 5, below :- "learned counsel further drew my attention to various documents, from a perusal whereof it appears that the authorities of the State of Bihar also recommended the case of the petitioners for being absorbed in the said school. The learned counsel for the petitioner in support of his contention placed strong reliance upon chandra Kumar Chakravarty V/s. The Deputy Director of School education reported in 1979 BBCJ 378 , Krishna Prasad V/s. State of bihar and others, reported in 1981 BBCJ 387 : 1982 P. L J. R.214 : smt. Mayo Raman V/s. The State of Bihar and others reported in 1984 BUR 651 : AIR 1984 Patna 99 : 1984 PLJR 328 : as also unreported decision Of this Court in Anant Kumari V/s. State of bihar and others (Letters Patent Appeal No.64 of 1983) disposed of on thr 11th January, 1985. Mayo Raman V/s. The State of Bihar and others reported in 1984 BUR 651 : AIR 1984 Patna 99 : 1984 PLJR 328 : as also unreported decision Of this Court in Anant Kumari V/s. State of bihar and others (Letters Patent Appeal No.64 of 1983) disposed of on thr 11th January, 1985. In the aforementioned decisions of this Court it has been held that, if any person had been working as a teacher at the time when the school was taken ever, he automatically becomes an employee of the Stare of Bihar in terms of the provisions of sub-section (2)of Sec.4 of the 1976 Act. " To notice the answer of the aforesaid proposition, reference can be made to the relevant findings recorded in paragraphs 84 and 88 of this report as under:- "84. The very fact that tenure, remuneration and other terms and conditions of services of officers, teachers and others employees of the schools were to remain the same to which be would have been entitled to hold before taking over of the said school and were entitled to continue to do even after the taking over thereof by the State Government clearly indicates that the officers, jeachers and other employees holding any office or post, upon take over of the school ipso facto an employees of the State government with such designation as the State Government may determine. The State Government is empowered to change the tenure, remmuneratipn or terms and conditions of the services only by framing rule in that regard but evidently the same cannot be done otherwise. " 88. I am, therefore, of the view that the State Government is not entitled to alter the remuneration or other terms and conditions of service of an employee of teacher or other officers under the garb of power of changing the designation of such officers. ? teachers and employees. " similar view has been taken by this Court in other cases as well. One of them is an unreported decision in the case of Smt. Sanoita Kumari V/s. State of bihar and others (C. W. J. C. No.644 of 1985 disposed of on 24-4-1991 ). 7 In the facts and circumstances of the present case, undisputedly, the petitioner, on the date of taking over of the school, was coninuing as headmaster of the said school on the pay scale of B. A. trained. 7 In the facts and circumstances of the present case, undisputedly, the petitioner, on the date of taking over of the school, was coninuing as headmaster of the said school on the pay scale of B. A. trained. In view of the provisions of Sec.4 (2) of the Act as also different decisions of this court, noticed above, it was not open to the State Government to alter his terms and conditions of service through an executive instructions vide annexures 7 and 8. It can only be done by altering the statutory provisions, framing rules by the State Government. Unfortunately, no counter affidavit has been filed in this case to controvert the statement of the petitioner made in this writ application. From the judgment of this Court noticed above, it appears that rules has not yet been framed by the State Government to alter the statutory provisions of Sec.4 (2) of the Act. In this view of the matter, the writ application is accordingly allowed and the respondents are hereby directed to treat the petitioner as Head Master in Government service with effect from 19-9-1981 (Annexure 8) on which date the school was finally taken over. The petitioner would thus be entitled to the same pay of B A. trained which he was drawing earlier before the take over of the school. Such arrears of salary, if any, shall be paid to the petitioner within a period of four months from the date of production receipt of a copy of this order by respondent No.4. 8. I have noticed, the petitioner has already been transferred to a different school pursuant to the order dated 29-6-1985 (Annexure 17 ). It may be possible, in the meantime, some one else might have been posted as headmaster in the present school. In that view of the matter, if no post of headmaster is vacant either in the school in question or in the school where the petitioner is presently working, it would be open to the respondents to transfer the petitioner in any other school against a post of Headmaster. This application is allowed to the extent as indicated above. Application allowed.