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2001 DIGILAW 894 (PAT)

State Of Bihar v. Smt. Shanti Devi

2001-09-21

NAGENDRA RAI, P.N.YADAV

body2001
Judgment 1. In view of the facts stated in the limitation petition and after hearing learned counsel for the parties, we find that a good ground has been made out for con doning the delay having occurred in filing this appeal and, accordingly, the delay in filing this appeal is condoned and the limitation petition stands allowed. 2. The State of Bihar and its officers are aggrieved by the order dated 20.7.2001 passed by the learned Single Judge in C.W.J.C. No. 7369 of 1989, by which he has set aside the order dated 11.4.1989, issued by appellant no. 2-Director of Primary Education, rejecting her claim for grant of B.A. trained scale, and also held that the petitioner-respondent was entitled to B.A. trained scale and the appellants were directed to pay her the arrear of salary and the retiral dues calculated on that basis. 3. Smt. Shanti Devi, the sole respondent (hereinafter referred to as the respondent) was appointed as an Assistant Teacher on 1.11.1961 by the Managing Committee in Janki Devi Theosophical Middle School, Chapra, a non-Government Elementary School (for short the School). Her case is that after appointment she improved her educational qualification by passing the B.A. in 1971 and Training examination in the year 1974. The Managing Committee of the School granted her B.A. trained scale from 11.7.1975.The School was taken over on 3.9.1981 with effect from 20.4.1977 under the provisions of section 3 (2) of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (for short the Act). Though she was entitled to B.A. trained scale but she was not being given the same and, thereafter, she filed a writ application being C.W.J.C. No. 4017 of 1983 for grant-of B.A. trained scale. The said writ application was disposed of by this Court on 27.9.1983 with a direction to the respondent to file.a representation before appellant no. 2 Director, Primary Education, within a period of two months. The said representation was rejected by order dated 11.4.1989 and it was held that she was entitled to only Matric tained scale and not B.A. trained scale. Thereafter, she filed the present writ application being C.W.J.C. No. 7569 of 1989. 2 Director, Primary Education, within a period of two months. The said representation was rejected by order dated 11.4.1989 and it was held that she was entitled to only Matric tained scale and not B.A. trained scale. Thereafter, she filed the present writ application being C.W.J.C. No. 7569 of 1989. Her claim is that by virtue of her having been granted B.A. trained scale by the Managing Committee of the School prior to its nationalisation by notification date 3.9.1981 with effect from 20.4.1977, she is entitled to the said scale in terms of the provisions contained under the Act and the circulars issued from time to time. 4. The stand of the appellant-State and its officers, on the other hand, is that the respondent was appointed in Matric trained scale on 1.11.1961. She passed the B.A. examination in 1971 and training examination in 1974. She was never granted B.A. trained scale by the Managing Committee of the School. She was in the Matric trained scale at the time of taking over of the School in 1981 and, therefter, she was granted I.A. trained scale vide order no. 109-14 dated 4.1.1983 and her name was included in the panel of B.A. trained teachers, but before her case could be considered, she retired in 1983. 5. The further case of the appellants is that the statement relating to the Committee managed schools and handing over charge, was submitted by the Secretary of the Committee, which was also signed by the respondent. The said statement is dated 19.12.1977. It is not mentioned- the said statement that The respondent was in the B.A. trained scale. The school was taken over by the notification dated 3.9.1981 with effect from 20.4.1977, which also shows that the respondent was in Matric trained scale and her service was taken over in the said scale. It is further mentioned in the notification that the appointment of Headmaster and the first senior teacher will be done on the basis of the panel prepared for the said purpose. 6. It is further mentioned in the notification that the appointment of Headmaster and the first senior teacher will be done on the basis of the panel prepared for the said purpose. 6. The learned Single Judge held that as the B.A. trained scale was given to the respondent by the Managing Committee, even if she was not being paid that scale at the time of take over of the school, she is entitled to the scale of B.A. trained from the relevant date in terms of the provisions contained in section 4 (2) of the Act. 7. Before adverting to the submissions advanced on behalf of the parties at the Bar, it is to be stated that the writ application, out of which the present appeal arises, was earlier heard by a learned Single Judge and in absence of the State the same was alfowed on 9.7.1998. Thereafter, a review application being Civil Review No. 278 of 1999, was filed by the appellants and the review application was allowed by order dated 25.4.2000 and the matter was again heard and disposed of by the impugned order. It further appears that the school in question was an Aided Elementary School. 8. The Act was enacted in 1976 containing provisions for the taking over of non-Government Elementary Schools under the State Control for better organisation and development of Elementary Education in the State of Bihar. Section 3 thereof contains a provision for taking over of non-Government Elementary Schools by State Government. Sub-section (2) of section 3 provides that after handing over of the control of the Aided Elementary School by the Managing Committee, such school shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) for the said purpose. 9. The school was not taken over and the matter came to this court in C.W.J.C. No. 315 of 1979 and in pursuance of the direction issued by this court, a notification was issued on 3.9.1981 taking over the school with effect from 20.4.1977. 10. 9. The school was not taken over and the matter came to this court in C.W.J.C. No. 315 of 1979 and in pursuance of the direction issued by this court, a notification was issued on 3.9.1981 taking over the school with effect from 20.4.1977. 10. Learned counsel for the appellants submitted that the document, which was submitted at the time of taking over of the school and which was also signed by the respondent, shows that she was in Matric trained scale and there is no document to show that she was allowed B.A. trained scale at that time. The notification, taking over the services of the respondent, shows that she was in Matric trained scale and subsequently she was granted I.A. trained scale in 1983. The said documents are sufficient to show that the respondent was not getting B.A. trained scale at the time of the taking over of the school and the learned Single Judge having over looked all these facts wrongly allowed the writ application by misinterpreting section 4 (2) of the Act. 11. Learned counsel appearing for the respondent, on the other hand, submitted that in view of the fact that the B.A. trained scale was granted to her before taking over of the school in 1975, the learned Single Judge rightly held that she was entitled to the aforesaid scale from the relevant date. 12. The only question for consideration is as to whether the respondent is entitled to the B.A. trained scale from the date claimed by her or not? 13. Before coming to the question as to whether in terms of provisions contained in section 4 (2) of the Act, the respondent is entitled to the B.A. trained scale or not, certain admitted facts are to the effect that the notification dated 3.9.1981, taking over the school with effect from 20.4.1977 does not show that she was in B.A. trained scale, on the other hand, it shows that she was in Matric trained scale. She did not challenge the aforesaid notification. The document filed at the time of taking over of the school, which also bears the signature of the respondent, does not show that she was granted B.A. trained scale. She did not challenge the aforesaid notification. The document filed at the time of taking over of the school, which also bears the signature of the respondent, does not show that she was granted B.A. trained scale. After taking over of the school, in 1983 when she was granted I.A. trained scale, as mentioned above, she did not lay a protest, on the other hand, she accepted the benefit of I.A. trained scale. Thereafter, her name was included in the panel of the B.A. trained teachers but before her case for the grant of B.A. trained scale could be considered, she retired in 1983. 14. Thus, the claim of the respondent that she was granted B.A. trained scale prior to the taking over of the school is belied by the aforesaid documents. 15. The learned Single Judge has allowed the claim of the respondent by relying upon section 4(2) of the Act, which runs as follows: "4. Consequences of taking over: (2) Every officer, teacher or other employee holding any office or posts 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 the 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." 16. According to the said provision, the services of the officers, teachers or other employees of the school taken over under the Act shall be deemed to have been transferred and they will become the officers, teachers or employees of the State Government, with such designations as the State Government may determine and shall hold the office by the same tenure; at the same remuneration and on the terms and conditions of service as thev 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. The said provision does not help the case of the respondent in any way by virtue of the reason that admittedly she was not getting B.A. trained scale and the terms and conditions of service, as mentioned in the notification, do not show that she was in B.A. trained scale, on the other hand, they show that she was in Matric trained scale and later on in 1983, as stated above, she was granted I.A. trained scale by the competent authority. The circular bearing no. 1127 dated 23.2.1974, which has been relied by the respondent, also does not help her case as this letter provides that the salary, which was being paid to the Headmaster or Headmistress, will be paid after the nationalistion. At the time of nationalisation as mentioned in the notification, the respondent was in Matric trained scale and as such he was entitled to a Matric trained scale after nationalisation. 17. From the order of the Director, Primary Education, which has been set aside by the learned Single Judge, it appears that at one place he has mentioned that the relevant date of taking over of the school would be 1.1.1971 irrespective of the actual date of taking over and on that basis held that as the respondent was not B.A. trained on 1.1.1971, she was not entitled to the B.A. trained scale, but that was not the only ground for rejection of the claim of the respondent as observed in the order of the learned Single Judge. The Director has taken into consideration the factual aspect of the matter and disbelieved the case of the respondent that she was getting B.A. trained scale, which, at the relevant time, was the scale of Headmaster or Headmistress. The Director has mentioned all the relevant documents including the document submitted at the time of taking over of the school, which was signed by the respondent and then came to the aforesaid conclusion. He also disbelieved certain documents created by the respondent in support of her case. 18. Thus, the claim of the respondent of her having been given the B.A. trained scale prior to the taking over of the school was not accepted by the Director of Primary Education on consideration of materials on record and the same cannot be said to be arbitrary. 18. Thus, the claim of the respondent of her having been given the B.A. trained scale prior to the taking over of the school was not accepted by the Director of Primary Education on consideration of materials on record and the same cannot be said to be arbitrary. The said finding itself is sufficient to disentitle the claim of B.A. trained scale to the respondent. This apart, section 4 (2) of the Act and the Circular of 1974 do not support the stand of the respondent as aforementioned. Accordingly, the order dated 20.7.2000 passed by the learned Single Judge is set aside. 19. In the result, this appeal is allowed.