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2006 DIGILAW 82 (PAT)

Bindeshwar Prasad v. State Of Bihar

2006-01-20

NARAYAN ROY

body2006
Judgment 1. Heard counsel for the parties. 2. This writ application is directed against the orders as contained in Annexures 1 and 2 dated 11.11.1998 and 23.9.1998 respectively whereby and whereunder claim of the petitioner as Headmaster since 30th June, 1974 has been rejected. Annexure 1 is the communication of the order passed by the Director dated 23.9.1998. 3. It appears from the writ application that the petitioner earlier had come to this court in C.W.J.C. No. 1117 of 1987 wherein he had prayed for issuance of a writ of mandamus commanding upon the respondents to grant him B.A. trained scale as well as to treat him as duly appointed Headmaster of Middle School, Karanja in the district of Patna and also for quashing of part of the order dated 18.3.1987 whereby and whereunder respondent no. 4 was appointed as Headmaster in the said school. The writ application, however, was disposed of by this court vide order as contained in Annexure 15 directing the Director, Primary Education to re-consider the matter and decide the controversy raised by the parties pertaining to appointment of the petitioner as Headmaster of the school in question. The Director, pursuant to order passed by this court has issued the order as contained in Annexure 2 rejecting the claim of the petitioner for the post of Headmaster of the school. 4. It is submitted by learned counsel for the petitioner that the petitioner was appointed on the post of Assistant Teacher pursuant to an advertisement on 4.7.1967 in the matric trained scale. He thereafter passed intermediate examination and also B.A. examination and keeping in view his qualification he was appointed as Headmaster of the School with effect from 30th June, 1974. His appointment made by the Managing Committee, however, was approved by the Sub-Divisional Education Officer. The petitioner thereafter, passed diploma in teaching and having got the diploma certificate he applied before the Managing Committee for grant of B.A. trained scale which was granted with effect from 10.4.1977 vide order dated 12.4.1977 and subsequently, the school was taken over under the provisions of Bihar Non-Government Elementary Schools (Taking Over of Management and Control) Act, 1976 (hereinafter referred to as the Act) with effect from 1.4.1978. At the time of taking over of the school service of the petitioner was acknowledged as the Headmaster of the School in B.A. trained scale. At the time of taking over of the school service of the petitioner was acknowledged as the Headmaster of the School in B.A. trained scale. Subsequently, vide order dated 18.3.1987 one Ram Naresh Sharma was appointed as Headmaster of the school in question and the petitioner consequently thereto, was demoted to the post of Assistant Teacher which, ultimately, was challenged by him before this court in the earlier writ application as referred to above where the order passed by the authorities appointing Ram Naresh Sharma as Headmaster was stayed. The petitioner, by virtue of the interim order, continued as Headmaster of the school and till date he is functioning as Headmaster of the school in B.A. trained scale. Learned counsel further submitted that the fact that the petitioner continued throughout as Headmaster of the school in question in B.A. trained scale would be evident from the earlier order passed by this court as contained in Annexure 15 and also the subsequent order passed by the authorities directing recovery of excess payment vide order as contained in Annexure 23 dated 17.10.2005. It is also submitted by learned counsel for the petitioner that when the matter was remanded to the Director by this court, the real issue was not decided nor the Director recorded a finding as to whether initially the petitioner was appointed in the matric trained scale and thereafter in B.A. trained scale and he continued to function as Headmaster of the school. The Director has also not recorded a finding as to whether after coming into force of the Act by virtue of which the school was taken over, the services of the petitioner were acknowledged as Headmaster of the school in B.A. trained scale. 5. Learned G.P. No. 8 appearing on behalf of the respondents, on the contrary, submitted that though the petitioner is said to have continued to work as Headmaster of the school, his continuance subsequently was found to be de hors the provisions of law. It is also stated by learned counsel for the petitioner that the petitioner was never recognized as B.A. trained Headmaster of the school. 6. The facts as disclosed in the writ application about the appointment of the petitioner firstly as matric trained scale and subsequently as B.A. trained scale has not been controverted in clear terms. It is also stated by learned counsel for the petitioner that the petitioner was never recognized as B.A. trained Headmaster of the school. 6. The facts as disclosed in the writ application about the appointment of the petitioner firstly as matric trained scale and subsequently as B.A. trained scale has not been controverted in clear terms. From Annexure 15, the earlier judgment of this court, it is manifestly cleafthat demotion of the petitioner to the post of Assistant Teacher was stayed and he continued to function as Headmaster of the school in B.A. trained scale. This court, while disposing of the writ application, did not record a contrary finding rather reiterated that the petitioner was appointed as Headmaster of the school in B.A. trained scale. The school was taken over by virtue of the Act with effect from 1.4.1978 but no contrary facts have been brought on record by learned counsel showing that at the time of taking over, the petitioner was never acknowledged as Headmaster of the school in B.A. trained scale rather it appears from Annexure 23, the letter issued by the State authorities in 2005, that the petitioner drew his salary in the B.A. trained scale and, therefore, necessary directions have been issued to recover the excess amount paid to him. 7. The controversy, which actually has arisen in this case, could have been set at rest by the Director who had examined the matter in detail but he has not recorded a finding as to whether after taking over of the school, the petitioners service was recognized as Headmaster of the school in B.A. trained scale or even otherwise. Service of the petitioner, however, appears to have been recognized althrough even after taking over of the school as Headmaster in B.A. trained scale and had it been otherwise, there could not have been any occasion for the authorities to issue Annexure 23 for recovery of the amount paid to the petitioner for B.A. trained scale. The factum as to whether the petitioner is B.A. trained or not, is not in dispute. It is also not in dispute that the petitioner till date is continuing on the post of Headmaster of the school even after issuance of the order as contained in Annexure 23 whereby and whereunder his status as B.A. trained Headmaster has not been accepted. 8. It is also not in dispute that the petitioner till date is continuing on the post of Headmaster of the school even after issuance of the order as contained in Annexure 23 whereby and whereunder his status as B.A. trained Headmaster has not been accepted. 8. For the reasons aforementioned and in view of the facts stated above, it is held that the petitioners appointment as B.A. trained Headmaster has been recognized by deeming fiction as the school in question was taken over alongwith the services of the petitioner. The finding recorded by the Director, as contained in Annexure 2, thus, is held to be wholly without jurisdiction and based on non est facts. 9. Regard being had to the facts and circumstances of the case this writ application is allowed. Orders as contained in Annexures 2 and 23 are set aside.