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1999 DIGILAW 774 (PAT)

Lakshmi Narayan Singh v. Union of India

1999-08-17

RADHA MOHAN PRASAD

body1999
Order In this writ petition the prayer on behalf of the petitioner is to quash the letter relating to pension and gratuity bearing P.P.O. No. 250881 dated 8.1.1998 and G.P.O. No. 14/98-99-8731 dated 23.4.1998, issued by the Deputy Accountant General (A&E) II, Bihar, Patna, whereby the service rendered by the petitioner in the earlier school during the period 9.12.1954 to 21.2.1992 has not been counted for the purpose of grant of pension and gratuity. 2. In short, the relevant facts are that initially the petitioner was appointed as Assistant Headmaster by the Managing Committee of Marachi High School, Patna, where he joined on 12.7.1954. The petitioner was promoted as Headmaster on 25.3.1956. The said School got permanent recognition by the Board of Secondary School Council, Bihar, Patna and was lastly nationalised on 2.10.1980. The petitioner was suspended by the Secretary of that School with effect from 14.7.1970 on some charges and thereafter he was discharged from service on 21.2.1972. The petitioner claims to have filed appeal against the order of his discharge from service before the District Appeal Committee, Patna. However, it is stated that while the appeal was pending, the petitioner was appointed as headmaster in the proposed "Ayodhya High School (Gyan Bharti), Begusarai, on 22.2.1972 and the said school got approval of establishment by the Bihar Secondary Education Council, Patna, vide no. 6461- 64 dated 2.3.1975. According to the petitioner, his service was also approved as Headmaster in the said school. Thereafter on 7.12.1976 the school got permanent recognition by the Board of Secondary Education, Patna and lastly it was taken over by the Government of Bihar with effect from 2.10.1980. 3. It is contended by Mr. Ganesh Prasad Singh, learned Senior Counsel appearing for the petitioner that the Director (Secondary Education)-Cum-Additional Secretary, Bihar, Patna heard and disposed of the appeal vide order dated 12.3.1985, contained in Annexure-1, allowing continuity of service of the petitioner since his appointment in the earlier school without any financial benefit. In the said order it was further directed that for the purpose of pension, gratuity and seniority, said service of the petitioner would be treated to be active service. In the said order it was further directed that for the purpose of pension, gratuity and seniority, said service of the petitioner would be treated to be active service. It is thus submitted that by virtue of the said order, the petitioner was entitled for getting the benefit of the service rendered at Marachi High School, Patna for the purpose of computation of his pension, gratuity and seniority and, according to him, the Accountant General by issuing the impugned authority letters has arbitrarily and illegally deprived the petitioner of the said benefits. 4. A counter affidavit has been filed on behalf of the Accountant General, Bihar, Patna in which it is stated that the period of qualifying service for calculation of full pension has been considered in conformity with the Government orders. The Education Department, Government of Bihar, vide letter dated 11.12.1997 has sanctioned pension and Death-Cum-Retirement Gratuity (D.C.R.G.) under the provisions of the Finance Department's resolution which specifically provides that breakage in service other than resignation, termination from service and strike only gets automatically 'dies non' and prior service breakage for the qualifying pension. Thus, according to the Accountant General, the service due to breakage, and strike are not counted as qualifying service for the purpose of pension except breakage due to resignation which has been condoned by the Finance Department letter no. 581 dated 15.1.82. Breakage due to termination has not been condoned and no authority, has been empowered to condone it. It is further stated that letter dated 18.7.1992 of the Education Department provides that any teacher working in recognised private high school joins in another non-recognised private high school and that school gets recognition after his joining, breakage in such cases should not be condoned and the service in the prior school should not be counted as qualifying service for payment of pension etc. It is, thus, submitted on behalf of the Accountant General that in view of the admitted fact that the petitioner was discharged from service on 22.2.1972 from Mamchi High School and joined as Headmaster in proposed Ayodhya High School, Begusarai on 22.2.1972, which was not approved at that time and admittedly got approval of establishment by Bihar Secondary Education Council Patna, vide letter dated 2.3.1976 and got permanent recognition on 7.12.1976, i.e., much after the joining of the petitioner, the qualifying service taken into account from 2.3.1976 to 31.1.1995 is in conformity with the Government orders. 5. Mr. Singh, in reply has placed reliance on the order passed in CW.J.C. No. 3669 of 1981, pursuant to which the Director-cum-Additional Secretary passed the order contained in Annexure 1. The said order has been annexed as Annexure 6 to the supplementary affidavit filed on behalf of the petitioner. It is submitted that perusal of the said order would show that this Court remitted the matter to the Director (Secondary Education) cum-Special Secretary for examining the case of the writ petitioner Ram Udgar Singh of the said case and disposal of the appeal filed on behalf of the petitioner. 6. I find it difficult to accept the said submission of the learned counsel for the petitioner. This Court simply noticed the fact that the Director of the Secondary Education by the order impugned therein informed the petitioner of the said case that as the appeal filed on behalf of the present petitioner, who was respondent no.5 in the said case, was pending, the petitioner of the said case would be deemed to be an Acting headmaster. Despite service of notice, the present petitioner never appeared in the said case nor the learned counsel appearing for the State would make any statement in respect of the aforesaid appeal. Despite service of notice, the present petitioner never appeared in the said case nor the learned counsel appearing for the State would make any statement in respect of the aforesaid appeal. This Court also took notice of the fact that the fact asserted on behalf of the writ petitioner of the said case that the present petitioner had already joined another school and that he was no more interested in the school in question and that after joining of the petitioner as Headmaster in the new School at Begusarai on 2.1.1972 the appeal if at all filed on behalf of the present writ petitioner had become infructuous, considered it just and proper that the Director, Secondary Education-cum-Special Secretary should examine the case of the petitioner after looking into the records of the case. This Court also took notice of the fact that the present petitioner was dismissed in February, 1972 and for the last ten years there was no regular Headmaster of the said school and as such it was found that it was all the more important that a regular Headmaster should be appointed for the said school and the case of the petitioner of the said case be also considered in accordance with law. Nowhere in the said order, this Court directed for consideration of the appeal. 7. There is nothing in the order of the Director-cum-Additional Secretary, contained in Annexure 1, to indicate that the appeal was heard and considered by the Director as an appellate authority. On the contrary, in the sa1d order it is mentioned that the grievance of the petitioner was not against his discharge from service of the earlier school. His grievance was for grant of continuity in service. The Director held that in the light of the order of this Court, the appeal of the petitioner itself has become infructuous. The validity of the said order was never challenged by the petitioner. However, in the said order the Director allowed the continuity of service to the petitioner without financial benefit. By no stretch of imagination this order can be said to be a quasi-judicial order which would bind the authority. The validity of the said order was never challenged by the petitioner. However, in the said order the Director allowed the continuity of service to the petitioner without financial benefit. By no stretch of imagination this order can be said to be a quasi-judicial order which would bind the authority. Learned counsel for the petitioner has failed to show any law under which the Director could have allowed the continuity of service of the petitioner without setting aside the order of his discharge from service in the earlier school, namely, Marachi High School. 8. It was than submitted by the learned counsel for the petitioner that even if the order is treated to be an administrative order, it vested certain rights in the petitioner which cannot be taken away by denying the benefit of continuity of service. This Court does not find any substance in the said submission of the learned counsel for the petitioner. Unless there was/is any rule which empowers the Director to allow the continuity of service readered by the petitioner in the earlier school for the purpose of grant of pension, gratuity etc., in my opinion, it would not bind the Accountant General, who is required to act strictly in accordance with law. Once the service of the petitioner was discharged from the earlier school so long the order of discharge is not set aside, the Director did not have the authority to allow continuity of service to the petitioner. 9. Lastly, it was submitted by the learned counsel for the petitioner that in any view of the matter, if the appeal has not been disposed of vide Annexure 1, then the appeal is still pending. This Court fails to appreciate the said submission of the learned counsel for the petitioner. Even assuming that the appeal is pending, how that will help the petitioner in getting the benefit of continuity of service rendered by him in the earlier school. 10. Thus, this Court does not find any merit in this writ petition and the same is dismissed.