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2007 DIGILAW 1358 (PAT)

Dhirendra Kumar Singh v. State Of Bihar

2007-08-16

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard counsel for the parties. 2. There are two petitioners in the present writ application. Petitioner no. 1 Dhirendra Kumar Singh is an Assistant and petitioner no. 2, Ashok Kumar Singh is an orderly. Both of them are working in Bhagwati Ganesh Sanskrit Madhyamik Vidyalaya, Kuwarigola in the district of Purnea. They want quashing of letter No. 1489 dated 17.11.1993/ Memo no. 1090 dated 4.12.1993 contained in Annexure-8 after more than 12 years of its issuance. 3. The impugned Annexure-8 has been issued by the Additional Secretary, Department of Human Resources, Government of Bihar, whereby and whereunder payment of salary to the non-teaching staffs of 26 recognised aided Sanskrit High Schools, which includes the school of these petitioners, have been stopped. Petitioners have not been paid their salary since 1.4.1990. Petitioners, therefore, want a direction upon the respondents to pay to them salary since 1.4.1990 till date. 4. Admitted position is that these petitioners are non-teaching staff in a recognised aided Sanskrit High School and have not been paid their salary since 1.4.1990. State has consistently taken a stand that they are not obliged to grant aid for payment of salary to non-teaching staff. Their obligation was limited to grant in-aid and assistance to teaching staff of these aided schools. A perusal of Annexure-8 would show that the Government after due enquiry and investigation found that in 222 Sanskrit High Schools there are no sanctions for payment to the non-teaching employees like Assistants and Orderlies but funds were being released illegally. Direction was issued to the Chairman of Bihar Sanskrit Shiksha board not to release funds for payments to such posts as they were not sanctioned post by the Government. 5. According to petitioners the school in which they are working is a non-government but recognised aided school. Somewhere along in the year 1985 the State Government as a matter of policy decided to grant financial aid to 205 non-Government Sanskrit Schools of different standards. This decision was taken to help the schools to impart education in Sanskrit. Government took a conscientious decision to grant in-aid for- the purpose of payment to the teachers of the schools as such. In the first go a sanction for 700 teachers units with effect from 1.1.1985 for 10 Prathamik and 169 Prathamik-sah-Madhya Vidyalaya against required 1312 units for all the 205 schools were made. Government took a conscientious decision to grant in-aid for- the purpose of payment to the teachers of the schools as such. In the first go a sanction for 700 teachers units with effect from 1.1.1985 for 10 Prathamik and 169 Prathamik-sah-Madhya Vidyalaya against required 1312 units for all the 205 schools were made. Subsequently, by yet another decision dated 20.11.1985 contained in Annexure-2 additional 612 units out of the 1312 required units for the 205 Sanskrit schools were also sanctioned. 6. The contention of the petitioners are that this sanction of 1312 units for the 205 Sanskrit schools included even nonteaching staffs because for recognition and for the assistance, which the Government had decided, two posts of non-teaching staff, (one Clerk and another Orderly) and eight posts for teaching staffs was a must. Submission of the petitioners are, therefore, that if this was the minimum standards which was set by the Government for recognition and aid then they were part and parcel of the approved strength and they were entitled to payment of salary like the teachers. Petitioners further submit that when the said recognition was accorded in terms of Annexure-5 dated 25.9.1985 name of these two petitioners figured in the list of staff. Thereafter it seems they have received some salary but then some dispute arose at the level of the Government and Education Department. They categorically directed stoppage of payment in terms of Annexure-8, which according to them is not only arbitrary but discriminatory. 7. One thing which this Court would surely like to record is that since the year 1990 despite all the efforts which the petitioners and their likes in representative capacity had made, it did not beget them any success. All along it seems that there has been a consistent stand of State that in terms of the policy decision, the aid which was to be extended to these aided schools, was limited to the teaching staff and not to the non-teaching staff. There are various correspondences which are there on the record by the Shikshak Sangh trying to impress upon not only the authorities of the Education Department but also the Minister of Education, Government of Bihar. Efforts have been made to explain by arithmetic that the total 1312 units which were sanctioned by the Government in two phases includes non-teaching staff. There are various correspondences which are there on the record by the Shikshak Sangh trying to impress upon not only the authorities of the Education Department but also the Minister of Education, Government of Bihar. Efforts have been made to explain by arithmetic that the total 1312 units which were sanctioned by the Government in two phases includes non-teaching staff. The break-up is sought to be shown and explained in a letter written by the then Chairman of Bihar Sanskrit Shiksha Board and is dated 21.1.2004, addressed to the Special Director, Secondary Education, Government of Bihar. This letter is Annexure-14 and a perusal of this letter would show that the Chairman has tried to impress upon the respondent Government that 26 Peons and Orderlies can also fit into the so-called sanctioned units of 1312. The Government has however not accepted the position because they still take a stand that 1312 units only relate to the teaching staff and not the non-teaching staff. Even as recent as on 28.8.2006 the communication for the Department of Education to the Secretary, Bihar Sanskrit Shiksha Board takes the same stand. They categorically state that there are no sanctioned post as such in the 26 Secondary High Schools and accordingly 26 Peons and 26 Orderlies are not entitled to release of funds from the Government for payment of salary. 8. From the communication and the correspondences it seems that the Government has been consistent in its stand that they do not have a financial obligation in so far as the non-teaching employees are concerned. They may be responsibility of the management of the school which are any way private schools but so far as the Government is concerned their liability to grant in-aid is limited to the teaching staff. 9. In the two counter affidavits filed on behalf of respondent no. 6 as well as respondents no. 1 to 5, they reiterate the position which has been indicated in the earlier part of this order. They have also brought a Division Bench order dated 16.3.1994 passed in C.W.J.C. No. 13041 of 1992. This was a case in which the Sanskrit Shiksha Sangh in a class action moved for similar relief and the submisions which have been made by the petitioners in the present case were also the submissions before the Division Bench. They have also brought a Division Bench order dated 16.3.1994 passed in C.W.J.C. No. 13041 of 1992. This was a case in which the Sanskrit Shiksha Sangh in a class action moved for similar relief and the submisions which have been made by the petitioners in the present case were also the submissions before the Division Bench. The Court taking note of the facts and the issues dismissed the writ application holding that they do not have a right to demand aid from the Government, it is dependent on the policy of the day and no right as such exists in this regard. For after all these are non-government schools being run by the various managing committees and the State had only limited responsibility for the teaching staff in this regard. The Court had further held that these sets of employees cannot even plead discrimination or arbitrariness because of the circumstances under which grant in-aid as a policy was decided. A review against this order was also filed but the same was dismissed as far back as on 1.3.1995. Counsel for the State has also brought to my attention another Division Bench order dated 12.1.2001 for an identical litigation in C.W.J.C. No. 9692 of 1989, Dilip Kumar Mishra & Ors. vs. The State of Bihar & Ors. In this case also the Court refused to issue any mandamus or direction upon the respondents for grant of recognition or financial aid. This order of the Division Bench came to be challenged in S.L.A. (Civil) No. 359/2002. Hon ble Supreme Court dismissed the S.L.R vide order dated 8.4.2005. In other words stand of the State with regard to their obligation to release funds in favour of similarly situated employees as the petitioners has been vindicated by judicial orders. Grant in-aid is not a matter of right and if any funds are released in terms of the policy then nobody can claim that the same should be extended to bring within its ambit such persons for whom the benefit had not been envisaged. 10. Learned counsel for the petitioner relies on two judgments rendered in the case of Chandra Kant Jha vs. Bihar Sanskrit Shiksha Board, 1991(2) PLJR 22 and in the case of Subhash Chandra vs. State of Bihar, 1994(2) PLJR 359 to reassert their claim. 10. Learned counsel for the petitioner relies on two judgments rendered in the case of Chandra Kant Jha vs. Bihar Sanskrit Shiksha Board, 1991(2) PLJR 22 and in the case of Subhash Chandra vs. State of Bihar, 1994(2) PLJR 359 to reassert their claim. In so far as the case of Chandra Kant Jha (supra) is concerned the question which was in issue in the case was the age of superannuation of the school teachers working under the Bihar Sanskrit Shiksha Board. The court in the given case has held that in absence of rules, non-statutory rules will occupy the field as legally acceptable instrument spelling out the terms and conditions of the service. The same is not applicable to the present dispute. The issues which were raised in the case of Subhash Chandra (supra) was the rights and liabilities accruing from take over of management and control of Non-Governmerit Sanskrit schools by virtue of an Ordinance brought into effect by the State. In the case of Subhash Chandra (supra) these were Schools whose management was take over by the State by promulgation of an Ordinance. In the present case it is not the contention of the petitioners that their schools were taken over under any legislation. The schools were only recognised for grant in-aid. The management and control remained with the managing committee of the respective schools and the Government had no role to play in their day-to-day affairs. Therefore, even the case of Subhash Chandra (supra) has no application to the facts and issues involved in the present case. In totality this Court is of the opinion that petitioners have no case for issuance of a mandamus upon the respondent State to release funds in their favour for payment of their salary. In the opinion of this Court the private management has an obligation to its employees especially non-teaching kind since they are in full control of the affairs and management of the school. 11. The writ application, therefore, is devoid of any merit and is accordingly dismissed.