State Of Bihar v. Deepak Kumar Mandal — 1998 DIGILAW 747 (PAT)

Judgment 1. Heard counsel for the parties. 2. In the facts and circumstances of the case, the delay in filing the review petition is condoned and the application (flag-C) is allowed. 3. The dispute relating to appointment of Assistant Teacher in the primary schools in the erstwhile district of Santhal Pargana has a long and chequered history. Opposite Party Nos. 1 to 8 (hereinafter referred to as the writ petitioners) have since been appointed and the controversy, so far as they are concerned, now lies in a narrow compass. The writ petitioners have obtained an order in C.W.J.C. No. 5704/95 for payment of arrear of salary and continuity of service with respect to break-in period. The State of Bihar and the Director of Primary Education, petitioners, herein, seek review of the said order. According to them the writ petitioners are entitled to reckon the period of break-in service but not exceeding one year without any arrear of salary. In order to appreciate the nature of the controversy and the point at issue, a few facts may be noticed. 4. An advertisement was made for appointment to the post of Science Teachers, among others, in the District of Santhal Pargana in the year 1981. On 22.5.1982, the writ petitioners were appointed but soon thereafter, on 15.12.1982, their services were terminated by a general order. C.W.J.C. No. 147/83 was filed. The order of termination was quashed but with liberty to pass fresh order after issuing show cause notice. The services of the petitioners and others were again terminated after show cause notice on 30.4.1987. A number of writ petitions including C.W.J.C. No. 227/88 were filed. By judgment and order dated 11.8.1989, direction was issued to the Department to fill up the vacancies by making fresh appointment. The judgement was challenged by the aggrieved persons in the Supreme Court. One batch of Special Leave petitions (S.L.P. (Civil) No. 11699/1990 and analogous) was disposed of by the Supreme Court on 7.2.1991. The Supreme Court did not interfere with the directions issued by this Court for making fresh selection. It however, clarified that in considering the suitability of the candidates, the rules which were in force at the time the teachers were recruitted should be taken into account and no disqualification should be imposed on the basis of any altered rule. The Supreme Court did not interfere with the directions issued by this Court for making fresh selection. It however, clarified that in considering the suitability of the candidates, the rules which were in force at the time the teachers were recruitted should be taken into account and no disqualification should be imposed on the basis of any altered rule. The State was given opportunity to consider the claim of teachers who came after the altered rules came in force. The bar of age was also relaxed. The court further observed that "those of the Teachers who have served in the past but there has been a break in service on account of termination shall have the credit of past service both in regard to the payment of salary as also seniority and other service benefits". The S.L.Ps. preferred by the writ petitioners (S.L.R (C) Nos. 15174-76 of 1990) were disposed of on 12.8.1991, following the aforesaid order in S.L.R (Civil) Ho. 11699/90. It would be useful to quote the order as hereunder: "These Special Leave petitions are dismissed but we make it clear that if the petitioners are selected pursuant to the order of the High Court they shall have the credit of past service both in regard to payment of salary and also in respect of seniority and other benefits as ordered by this Court in S.L.P. (C) No. 11699/90 Ashok Kumar Singh and Others V/s. State of Bihar and Others on 7.2.91." 5. According to the writ petitioners after the aforesaid order, their cases were considered afresh and eventually they were appointed on 31.8.1994. They were however, denied seniority as well as arrear of salary for the break-in period. They came to this Court in C.W.J.C.No. 5704/95. In the counter affidavit, the concerned Respondents took the stand that their cases are covered by the order of the Supreme Court in S.L.R (C) No. 11699/90. Accordingly, the writ petition was disposed of with a direction to the Respondents to pass necessary orders for payment of arrear of salary as well as seniority with respect to the break-in period. 6. The case of the petitioners-State is that the writ petitioners were not selected as they were not trained and accordingly, their claim was rejected. However, the Supreme Court later on 22.11.1991 in Contempt Petition Nos. 6. The case of the petitioners-State is that the writ petitioners were not selected as they were not trained and accordingly, their claim was rejected. However, the Supreme Court later on 22.11.1991 in Contempt Petition Nos. 236-40/91 and 263/91 arising out of S.L.R (C) No. 11699/90 and analogous cases, held that in terms of the relevant rules, the untrained teachers cannot be said to be disqualified on the ground of absence of training and if trained teachers are not available, they can also be considered for appointment. The court finally in S.L.R (C) No. 10051/90, after considering the various orders passed earlier including the aforesaid orders dated 7.2.1991 and 22.11.1991, summed up the position as follows: "All those untrained teachers who were employed prior to the date when the new rule came into operation were entitled to be continued in service provided no trained teachers were avaiiable and they satisfied the qualifications required for the posts. To examine the qualifications and their eligibility they were to be subjected to selection process1 and if found fit were to be appointed to the posts. Nothing has happened since then to change this situation and there is no need to make any alteration in the orders of this Court, in spite of what is stated in the counter-affidavit filed on behalf of the State." 7. After observing as above, the Supreme Court directed that if there are vacancies and if there are no trained teachers available, the untrained teachers who were employed prior to the new rules came into operation, would be reinstated in service if after subjecting them to the selection process, they are found suitable. If there are no vacancy, they would be empanelled according to their seniority and would be appointed according to their Unless that panel is exhausted, no new appointment of untrained teachers will be made from outside. As to the consequential benefits in such cases the court clarified as follows:- "However, if there were no vacancies and all the appellants or some of them have to be appointed in the new vacancies which may be available thereafter, they will not be entitled to the salaries from 1st. July, 1992 till the date of their appointment. However, when they are appointed the period of break in service not exceeding one year will be taken into consideration for benefits other than salary." 8. July, 1992 till the date of their appointment. However, when they are appointed the period of break in service not exceeding one year will be taken into consideration for benefits other than salary." 8. It may be mentioned here that in the meantime several writ petitions had been filed in this Court also (C.W.J.C.No. 7000/92 and analogous) which were disposed of on 20.1.1993 in terms of the said directions. As a matter of fact the directions made by the Supreme Court in its aforesaid order dated 30.11.92 were reiterated. The definite case of the petitioners-State is that the petitioners have been appointed pursuant to the above said orders of the Supreme Court dated 30.11.1992 in S.L.P. (C) Nos. 10051/90 and the judgement and order of this Court dated 20.1.1993 in C.W.J.C.No.7000/92 and analogous. According to the State thus the rights of the petitioners have to be determined with reference to the orders of the Supreme Court in SLP(C) No. 10051/90 reiterated by this Court in C.WJ.C.No. 7000/92. In other words, the petitioners are not entitled to the benefit of the order of the Supreme Court passed in either S.L.P. (C) No. 11699/90 or S.L.P.(C) No. 15174- 76/90, referred to above. 9. The writ petitioners have filed a counter affidavit. Although they have traced the history of the litigations in detail, the assertion of the State regarding rejection of their claim on the ground of being untrained has not been controverted. They have also not controverted the fact that they have been selected and eventually appointed in the light of the orders of the Supreme Court in S.L.P. (C) No. 10051/90 and the order of this Court in C.WJ.C.No. 7000/92. As noticed above, it was in that order in which the Supreme Court issued direction to the State to consider the cases of such untrained teachers who were employed before coming into operation of the new rules provided trained teachers are not available. Earlier in contempt petition Nos. 236-40/91, the Supreme Court had clarified the position accordingly. In its order dated 7.2.1991 passed in S.L.P. (C) No. 11699/90 the Supreme Court had not issued any direction to consider the cases of untrained teachers as well. As noticed above, S.L.Ps. (Civil) preferred by the writ petitioners (S.L.P. (Civil) Nos. 15174- 76/90) were disposed of on 12.8.1991 in the same terms. 10. In its order dated 7.2.1991 passed in S.L.P. (C) No. 11699/90 the Supreme Court had not issued any direction to consider the cases of untrained teachers as well. As noticed above, S.L.Ps. (Civil) preferred by the writ petitioners (S.L.P. (Civil) Nos. 15174- 76/90) were disposed of on 12.8.1991 in the same terms. 10. In view of the uncontroverted position that the writ petitioners have been appointed pursuant to the order and direction of the Supreme Court in S.L.P.(C) No. 10051/90 (which is also evident from the forwarding memo dated 12.7.1994 by which the panel was published, and the office order dated 31.8.1994 by which the writ petitioners were eventually appointed), I have no hesitation in concluding that the writ petitioners were not entitled to the benefit of the observations and directions made in the order dated 7.2.1991 in S.L.P. (Civil) No. 11699/90 and therefore, the order of this Court dated 5.2.1997 in the connected writ petition, namely, C.W.J.C. No. 5704/95, directing the respondents to pass necessary order for payment of arrear of salary and seniority with respect to Break-in period, cannot be said to be correct. In fact, the order is contrary to the directions of the Supreme Court in S.L.P. (C) No. 10051/90. The order dated 5.2.1997 is, accordingly, recalled and it is clarified that the writ petitioners will be entitled to benefits of seniority of service and arrear of salary, if any, in accordance with the order of the Supreme Court dated 30.11.1992 in S.L.P. (C) No. 10051/90. 11. The review petition is thus allowed but without any order as to costs.