Upendra Mishra v. State Of Bihar — 1995 DIGILAW 336 (PAT)

Judgment S. K. Homchandhuri, J. 1. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has approached this Court for issuance of an appropriate writ or direction commanding the respondents, particularly respondents No.2, 3 and 4 to grant him the pay scale of I. A. trained teacher on and from the date of taking over of Shri Rajbanshi Mishra middle School, Jadupatti (hereinafter referred to as the school) under the provisions of the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 (hereinafter referred to as the act ). 2. The undisputed facts of this case is that the petitioner, was appointed in Rajbanshi Mishra Middle School by the Managing Committee of the school on 24-9-1978 and while he was working in the said school, the School was taken over by the Government under the provisions of the Act with effect from 4-4-1981 and that after taking over of the School, by the order dated 4-4-198 ( (Annexure 1), the petitioner was granted matric trained pay scale which he has been paid since then, 3. The petitioners case is that while working in the School, he being i. A. trained, of the Managing Committee granted him the scale of I A trained teacher on and from 1-7-1980 and he had been paid his salary in the pay scale of I A. trained teacher from 1-7-1980 till the School was taken over by the Government As such, under the provisions of sub-section (2)of Sec.4 of che Act, he is entitled to get his pay scale of I. A. trained teacher on and from the date of taking over of the School The petitioner made a representation to respondents No.3 and 4 for rectification of the anomaly and granting him the pay scale of I A trained teacher from the data of taking over of the School to which he is entitled under the provisions of sub-section (2) of Sec.4 of the Act the petitioners further case is that the representation was recommenned by the then Assistant Regional Officer, pupri (Sitamarhi) by his letter No.34 dated 2-2-1982 and thereafter by the district Education Superintendent, Sitamrrhi by hit letter No.341 dated 13-5-1982, copies of which are annexed to this petition and are marked as annexures 4 and 5 respectively, in those letters while recommending the petitioners case the Assistant Regional Officer, Pupri as well as the Distrct education Superintendent. Sitamarhi intimated that the petitioner had been getting the pay scale of 1. A. (rained teacher from the Managing Committee of the School with effect from 1-7-1980. Finding no response from respondents No.3 and 4 inspite of recommendations by the competent authorities, the petitioner has approached this Court in this writ petition. 4. Respondent No.4 filed counter affidavit on 23-11-1994 contending that the petitioner was a matric trained teacher at the time of taking over of the School and accordingly, pay was fixed in matric trained scale bv letter no 904 dated 4-4-1981. The petitioners contention that at the time of appointment, be was getting his pay in the pay scale of I. A. trained teacher has been disputed on the counter. It is contending that the petitioner was getting the pay of Rs.55/-per month. Thereafter it was raised to Rs 60/-per month At that time scale of I. A. trained teacher was Rs.190/-. It is contending that the petitioner was getting the pay of Rs.55/-per month. Thereafter it was raised to Rs 60/-per month At that time scale of I. A. trained teacher was Rs.190/-. Thus, the petitioner was never given pay scale of I. A trained teacher by the managing Committee It is stated in paragraph 4 of the affidavit-in opposition that from 1976 the scale of I. A. trained teacher was Rs.216-423 which was not allowed through the Managing Committee of the School to a teacher. 5. The petitioner filed a rejoinder and has annexed the photo copy of the relevant page of Service book wherefrom it appears that on and from 1-7-1980 the petitioners pay was Rs 296/-. On 28-6-1995 supplementary counter affidavit has been filed on behalf of respondent No.1 supporting the contention of respondent No 4 in the counter affidavit and in addition thereto in support of the order dated 4-4-1931 (Annexure 1) a copy of Goverment instruction is enclosed as Annexure d. 6. I have heard the learned counsel for the petitioner and the learned standing Counsel No. VIII. 7. As per direction of this Court, some records, namely. Acquittance rolls of the School before and after taking over of the School and the Service book, have been produced by the learned Standing counsel No. VIII. 8. Learned counsel for the petitioner has drawn my attention to the government letter dated 4th April, 1961 (Annexure 1) and the letter bearing memo No.2344 dated 26th April.1981 of the District Education superintendent, Sitamarhi (Annexure 2) and submits that it is apparent from the letters that the petitioner was the only I. A. trained teacher in the School at the time of taking over of the School, Learned counsel submits that the petitioners case is that he was appointed in the 1. A. trained teacher scale and was paid his salary in that scale from 1-7-1980, has not only been supported by the letter of Assistant Regional Officer dated 2-2-1982 (Annsxure 3)end that of District Education Superintendent deted 13-5-1982 (Annexure 5)but also by the acquittance roll of the relevant period. A. trained teacher scale and was paid his salary in that scale from 1-7-1980, has not only been supported by the letter of Assistant Regional Officer dated 2-2-1982 (Annsxure 3)end that of District Education Superintendent deted 13-5-1982 (Annexure 5)but also by the acquittance roll of the relevant period. July, 1980, onward and the entry in Service Book of the petitioner and that the respondents are spparently and arbitrarily denying the I. A. trained teacher scale to the petitioner on and from the date of taking over of the school in violation of the mandates of sub-section (2) of Sec.4 of the Act. 9. Learned Standing Couns 1 No. VIII, on the other hand, submitted that from the acquittance roll it appears that the petitioner was initially appointed by the Managing Committee at a pay of Rs.55/-per month which was raised to 60/-per month after a year. But from the acquittance roll it appears that in the month of June, 1980 the petitioners pay was shown at Rs.296/-for that month by interpolation of the original figure and that in the acquittance roll of subsequent months the pay of the petitioner was shown to be paid @ 296/-per month. Learned Standing Counsel submits that in absence of any letter of appointment issued by the Managing committee, the petitioner could not have been paid his salary in the pay scale of i. A. trained teacher and apparently a view to claiming the pay in the I A. trained teacher after taking over of the School, entries in the acquittance roll was manipulated showing payment Rs.296/-per month on the eve of taking over of the School although in fact the petitioner was not granted i. A. trained pay scale by the Managing Committee. If the petitioner was granted pay scale of I. A. trained teacher he could have easily produced the letter of appointment in the pay scale of I. A. trained teacher. The learned standing Counsel submits that what has been stated in the letter dated 2-2-1982 (Annexure 4) and the letter dated 13-5-1982 (Annexure 5) cannot he taken a fact since the petitioner has not produced the letter appointing him in the scale of I A. trained teacher by the Managing Committee on and from 1-7-1980. The learned standing Counsel submits that what has been stated in the letter dated 2-2-1982 (Annexure 4) and the letter dated 13-5-1982 (Annexure 5) cannot he taken a fact since the petitioner has not produced the letter appointing him in the scale of I A. trained teacher by the Managing Committee on and from 1-7-1980. Learned Standing Counsel further submits that the instant petition is liable to be dismissed on the ground of laches alone inasmuch as the School was taken over in 1981 and the petitioner was granted matric trained pay scale by the order dated 4th April, 1981, but he has approached this Court long after three years. 10. Learned counsel for the petitioner submits that there is no laches on the part of the petitioner inasmuch as it will be evident from Annexures 3, 4 and 5 that the petitioner pursued the matter by making representations before filing this writ petition. Learned counsal for the petitioner further submits that the Managing Commutes of the private school grants benefit of pay scale or any other benefit to tne teacher and other employees by way of resolution and the proceeding book of the Managing Committee is in the custody of the respondents but the proceeding book has not been produced. 11. I have considered the submission made on behalf of the petitioner and the learned Standing Counsel No. VIII and perused the materials on record. 12. I am unable to accept the contention of the learned Standing counsel that the petition is liable to be dismissed on the ground of laches: usually and quite righty a Government servant is to seek justice departmentally by making representations to the appropriate authorities. In the instant case, the petitioner rightly persued remedy by making representation to the appropriate departmental authority and his case was admittedly recommended by the Assistant Regional Officer as well as by the District Education superintendent in February, 1982 respectively and after waiting for a reasonable time he has approached this Court in this petition. As such, there is no laches on the part of the petitioner to pursue remedy. As such, there is no laches on the part of the petitioner to pursue remedy. I also find it difficult to accept the contentions of the learned Standing Counsel that the petitioner having not produced the order of the Managing Committee appointing him in the scale of I. A. trained teacher, his contention that he was appointed by the Managing Committee of the School in the scale of I. A. trained teacher on and from 1-7-1980, should be rejected despite the fact that the materials on records, namely, the acquittance roll and entry in the service book support the petitioners case. It is apparent from the entries in the acquittance roll of the School that from July, 1980 onwards up to taking over of the school by the Government in April, 1981 the petitioner had been paid his salary at the rate of Rs.296/- per month. It is difficult to accept the contentions of the learned Standing Counsel that the petitioner in amplicity with the school authorities manipulated the entries in the acquittance roll showing payment of salary on and from July, 1980 at the rate of Rs. /-296- per month. The entry in the petitioners service book discloses that the petitioners pay was fixed at Rs.296/- on 1-7-1980 Admittedly service book has been prepared after taking over of the School. That, apart, the letters of the Assistant regional Officer dated 2-2-1982 (Annexure 4) and that of the District education Superintendent dated 13-5-1982 (Annexure-5)clearly support the petitioners case that he used to get his pay in the pay scale of I, A trained teacher with effect from 1-7-1980. Whether the petitioner was granted pay scale of. I. A trained teacher on and from 1-7-1980 by the Managing Committee of the School could easily been ascribed from the proceedings book of the managing Committee which admittedly is in the custody of the respondents. But the respondent has not produced all the relevant documents inspite of granting time. From what are stated and discussed above, it is established that the petitioner used to get the pay in the pay scale of la, trained teacher at the time of taking over of the School. 13. But the respondent has not produced all the relevant documents inspite of granting time. From what are stated and discussed above, it is established that the petitioner used to get the pay in the pay scale of la, trained teacher at the time of taking over of the School. 13. Sub-section (2) of Sec.4 of the Act reads as follows : "section 4 (2)-Every , Officer, teaser or ether employee holding any office or post in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of 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 taking over of the said school and shall continue to do unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government " on a plain reading of the provision of sub-section (2) of Sec.4 of the Act it become apparent that after taking over of the School by the government, the petitioner is entitled to the same remuneration, terms and conditions of service which he used be enjoy at the time of taking over of the school. It having been established that the petitioner was granted the pay scale of I. A trained teacher on and from 1-7-1980 and he bad been paid his monthly salary in the said pay scale till taking over of the School, the petitioner is lawfully entitled to be paid his salary in the pay scale of I. A. trained teacher on and from the date of taking over of the School. Denial of the benefit of pay scale of I, A. trained teacher to the petitioner on and from the date of taking over of the School is, therefore, arbitrary and violative of the mandates of sub-section (2) of Sec.4 of the Act, 14 For the reasons stated above, the petition is allowed. . The respondents are directed to pass appropriate order granting pay scale of I. A. trained teacher to the petitioner on and from 4-4-1991, within three months frorn the date of receipt of a copy of this order. . The respondents are directed to pass appropriate order granting pay scale of I. A. trained teacher to the petitioner on and from 4-4-1991, within three months frorn the date of receipt of a copy of this order. The petitioner is also entitled to all consequential benefits, namely, the monthly salary and annual increments in the pay sclae of 1. A. trained teacher from 4 4-1981 as well as the benefit of revision of the pay scale of I. A. trained teacher, if any. The repondents are further directed to pay the consequent arrears of pay and allowances to the petitioner within six months from the date of receipt of a copy of this Order. Petition allowed.