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2004 DIGILAW 53 (JHR)

Mahesh Thakur v. State Of Bihar

2004-01-12

M.Y.EQBAL

body2004
JUDGMENT M.Y. Eqbal, J. 1. Heard Mr. A. Allam, learned counsel for the petitions and Mr. Pradip Modi, GP I. 2. The petitioner filed this writ petition challenging the order of his transfer as contained in letter No. 1750, dated 31.12.1998 whereby he was sought to be transferred as Assistant Teacher from Murma High School to Taimara High School and further for a writ directing the respondents to treat him as Head Master. Petitioners case is that on 7.1.1969 he was appointed as Founder Head Master by the Governing Body of the School namely, High School, Murma. On 26.2.1974, Government of Bihar accorded permission for the establishment of the said school and subsequently vide Memo No. 14721/26 dated 23.6.1977 the school was duly recognized and the petitioners services were taken over as Head Master. Again by Notification dated 20.11.1981 the school was taken over by the Government on 2.10.1980. Admittedly, ever after taking over to the school petitioner continued as Head Master and also Drawing and Disbursing Officer. Petitioner continuously worked on the post of Head Master till 30.6.1998 in the said High School at Murma when by general order of transfer dated 30.6.1998 petitioner was sought to be transferred from High School, Murma to High School, Katihar. Immediately, thereafter, another Office Order dated 22.7.1998 was issued staying the earlier order of transfer dated 30.6.1998. By another Office Order dated 31.12.1998 which is impugned in the writ application petitioner was sought to be transferred as Assistant Teacher to Taimara High School. The said impugned order was however, stayed by this Court in terms order dated 18.2.1999. In this way petitioner continued on the post of Head Master in the High School, Murma since 1969 till January, 2003 when he was superannuated. Learned counsel for the petitioner submitted that although petitioner did not complete seven years on the date of Notification dated 2.10.1980 from 26.2.1974 when the Government accorded permission for the establishment of the school but continuously worked on the post of Head Master even thereafter and thereby entitle to get the benefit of the post of Head Master particularly when he continued as such till the date of his superannuation. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of A.K. Pradhan v. State of Bihar and Ors., (1998) 2 SCC 411 . In this connection, learned counsel relied upon the decision of the Supreme Court in the case of A.K. Pradhan v. State of Bihar and Ors., (1998) 2 SCC 411 . Learned counsel also relied upon the decision of the Patna High Court in the case of Vyas Sharma v. State of Bihar, CWJC No. 5519/84. 3. Learned GP I on the other hand submitted that petitioner having not been regularized as a regular Head Master till the date of his superannuation he is not entitled to get benefit of the post of Head Master. Learned counsel submitted that he did not fulfill the requisite qualification in the terms of the Notification dated 2.10.1980 for being regularized/observed as Head Master from the date when the permission was accorded for the establishment of the School till the date of notification. 4. Before appreciating the submission of the learned counsel, I would like to consider the ratio decided by the Supreme Court in the case of A.K. Pradhan (supra). In that case appellant was Head master of an unrecognized High School which was taken over by Taking Over Act of 1981. The appellant represented the State Government for regularisation of service, which was not accepted. The appellant then approached Patna High Court which, relying upon the Full Bench decision dismissed the writ petition. The matter ultimately went to the Supreme Court. The Supreme Court while disposing of the appeal observed that since the appellant completed more than seven years of service and became eligible for being considered for regularisation and accordingly directed that his case for regularisation as Head Master shall be considered with effect from the date on which he completed seven years of service. Relying upon the decision of the Patna High Court in the case of Vyas Sharma (supra) held that petitioner was entitled to be regularized as regular Head Master of the School from the date when he completed seven years from the date of the establishment of the School. 5. In the instant case the claim of the petitioner, in my opinion, is on a stronger footing. Petitioner was appointed as Founder Head Master in 1969 and in 1974 when the Government accorded permission for establishment of the school he continued as a Head Master and in the letter dated 23.6.1977 when the school was recognized, his service was also taken as acting head Master. Petitioner was appointed as Founder Head Master in 1969 and in 1974 when the Government accorded permission for establishment of the school he continued as a Head Master and in the letter dated 23.6.1977 when the school was recognized, his service was also taken as acting head Master. In this way petitioner continued on the post of Head Master and also Drawing and Disbursing Officer since 1969 till 1998. In between, the status of the petitioner as acting Head Master and Drawing and Disbursing Officer was never disputed by the respondents rather by order dated 30.6.1998 he was sought to be transferred from Murma High School to Katihar High School as Head Master. However, that order was subsequently stayed by the Government without disclosing any reasons. Simply in the Office Order dated 22.7.1998 reference of fax dated 21.7.1998 has been mentioned. 6. In the counter affidavit the stand of the respondents Is that the school was accorded permission of establishment on 26.2.1974 and was fully recognized on 23.6.1977. Since the petitioner did not complete the tenure of seven years on 2.10.1980 which is the cut-off date he is not entitled to the relief for regularisation on the post of Head Master. 7. As noticed above from 1974 i.e. date of establishment of the school till 1998 or even in 1980 when petitioner did not complete seven years on 2.10.1980 he ought to have been regularised by the Government or a regular Head Master ought to have been posted. Curiously enough, even after 1980 petitioner was allowed to continue on the post of Head Master for 18 years and retired as such after completing 34 years of service on the post of Head Master of the School. It is therefore wholly improper and unjustified for the respondents to disown the claim of the petitioner on the post of Head Master merely because on 2.10.1980 he did not complete seven years of service as Head Master. In the light of the ratio decided by the Supreme Court I have no option but to hold that the impugned order of transfer of the petitioner as Assistant Teacher was wholly illegal. Since the petitioner completed seven yearss of service as Head Master in 1981 and even thereafter he continued on the said post till 2003 respondents must regularize his service as Head Master and to give him all benefits in accordance with law. 8. Since the petitioner completed seven yearss of service as Head Master in 1981 and even thereafter he continued on the said post till 2003 respondents must regularize his service as Head Master and to give him all benefits in accordance with law. 8. For the aforesaid reasons, this writ application is allowed and, the impugned order dated 31.12.1998 is set aside. Respondents are directed to take decision to regularize the service of the petitioner as Head Master with effect from the date when he completed seven years of service from 26.2.1974 and give him all the benefits. Such decision must be taken within two months from the date of receipt of copy of this order.