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2007 DIGILAW 68 (PAT)

Dhrub Roy, Uttam Lal Yadav v. State Of Bihar

2007-01-10

S.K.KATRIAR

body2007
Judgment S.K.Katriar, J. 1. Both the writ petitions raise identical issues and are being disposed of by a common judgment. 2. I shall first take up CWJC No. 10607 of 1999. It has been preferred for a direction to the respondents to treat the petitioners service to be continuous from 1.1.1959 to 14.2.1979 and to pay the post-retirement benefits after continuing the same. The petitioners post-retirement benefits have been computed after excluding the said period, and giving him the benefits with effect from 15.2.1979 in view of clause 2(ga) of the memorandum bearing memo no. 636/Patna, dated 18.7.92 (Annexure 10), issued by the Government of Bihar in the Department of Water Resources. The facts are not in dispute and are indicated hereinbelow: 1956 :The High School, Barhauna, in the district of Samastipur, was established as a private school. 1.1.1959 (Annexure 1):The petitioner had joined the High School, Barhauna, in the district of Samastipur as Assistant Teacher in 1958 which was then a private school. It was granted partial recognition with effect from 1.1.1959. 1.1.1960 (Annexure 2): The Barhauna school was granted full recognition with effect from 1.1.1960 vide order dated 28.10.1960 (Annexure 2). 1.3.1977 (Annexure 3): Circular of this date issued by the Bihar Secondary Education Board declaring that the date of permission to open the school will be deemed to be the date of appointment of teachers provided he was continuing from before. 1978 : Ashok Smarak High School, Banghara, Samastipur, was established as a private school. 30.11.1978 : The petitioner had resigned from High School, Barhauna, to join as Headmaster in the said High School, Banghara. 1.12.1978 : The petitioner joined as Headmaster in the High School, Banghara. 5.12.1978 (Annexure 4) : The High School, Banghara, was granted the opening permission. 14.2.1979 (Annexure 5) : The High School, Banghara, was granted full recognition. The petitioner continued as its Headmaster till the date he sought voluntary retirement. 25.3.1996 (Annexure 6) :The petitioners request for voluntary retirement was accepted, and he ceased to be in Government service with effect from 25.3.1996. 27.4.1997 (Annexure 7) : Government circular enabling a school teacher to seek voluntary retirement on completion of minimum of twenty years of qualifying service after giving three months notice. 25.3.1996 (Annexure 6) :The petitioners request for voluntary retirement was accepted, and he ceased to be in Government service with effect from 25.3.1996. 27.4.1997 (Annexure 7) : Government circular enabling a school teacher to seek voluntary retirement on completion of minimum of twenty years of qualifying service after giving three months notice. 31.7.1980 (Annexure 8) : Government circular which provided that cases of teachers occasioned by (i) resignation, (ii) dismissal or transfer from service, and (iii) break in service caused by participation in strike, will lead to break in service. It was further stated that break in service of teachers as result of any other circumstance or factor shall automatically be treated to be condoned. 15.1.1982 (Annexure 9) : Government resolution whereby Annexure 8 was modified and the break in service of teachers caused by resignation was deleted as a consequence of which it would not result in break in service. 18.7.1992 (Annexure 10) : This Government resolution modified Annexure 9 and provided that a teacher joining an unrecognized, non-governmental secondary school prior to getting recognition shall entail the consequence of break in service. 3. After the petitioners application for voluntary retirement was accepted by order dated 25.3.1996 (Annexure 6), the petitioner applied for release of his post-retirement benefits which has been granted on the footing that, in view of the circumstances indicated hereinabove, there was a break in his service and, therefore, the period of service from 1.1.1959 to 14.2.1979 cannot be counted for the purpose of post-retirement benefits. This had led to CWJC No. 9673 of 1997 at the instance of the petitioner which was disposed of by order dated 9.12.1998 (Annexure 13) with a direction to the Accountant General to consider and issue the authority slip in terms of the decision of the Finance Department contained in Annexures 5 and 10 thereto (Annexures 3 and 9 hereof). In view of the position that the respondent authorities have issued the authority slip after excluding the period of 1.1.1959 to 14.2.1979, the petitioner has preferred the present writ petition. 4. While assailing the validity of the impugned action, learned counsel for the petitioner has relied on various circulars of the State Government and has in substance submitted that the petitioner cannot be deprived of a vested right which accrued to him by operation of the circulars when the petitioner had joined the High School, Banghara, as Headmaster. 4. While assailing the validity of the impugned action, learned counsel for the petitioner has relied on various circulars of the State Government and has in substance submitted that the petitioner cannot be deprived of a vested right which accrued to him by operation of the circulars when the petitioner had joined the High School, Banghara, as Headmaster. He further submits that the aforesaid Government resolution dated 18.7.92 (Annexure 10) cannot make a dent into the petitioners vested right of the benefit of condonation of break in service by virtue of the provisions of the previous circulars. He relies on the following reported judgments: (i) 1986 Suppl. SCC 584 (T.R. Kapoor vs. State of Haryana)(paras 5 and 16) (ii) (1997)6 SCC 623 (Chairman, Railway Board vs. C.R. Rangdhamaiya) (para 24) (iii) Judgment of a Division Bench of this Court reported in 1999 Vol. II PUR 216 (Gokul Prasad vs. State of Bihar) (para 38) 4.1 Learned counsel for the petitioner has also relied on the order dated 13.11.2006 of a Division Bench passed in LRA No. 1298 of 2005 (Shyam Kishore Singh vs. State of Bihar). 5. Respondent Nos. 1, 4 and 5 have placed on record their counter affidavits and have opposed the writ petition. It is stated therein that, in view of the provisions of the said resolution dated 18.7.92 (Annexure 10), the period from 1.1.1959 to 14.2.1979 cannot be taken into account for computing the post-retirement benefits of the petitioner entailing break in service. 6. I have perused the materials on records and considered the submissions of learned counsel for the parties. It is indeed correct to state that the petitioner had joined the Barhauna School as a teacher when it was an entirely private school. The 8th and 9th classes of this school were granted recognition with effect from 1.1.1959,, vide order bearing memo no. 624/Samastipur, dated 4.7.1959 (Annexure 1), issued by the District Superintendent of Education, Samastipur, subject to certain conditions stated therein. Neither the respondents have set up a case nor there is any material on record to suggest that the said conditions were not fulfilled which could have discredited or led to recall of recognition of the Barhauna School. 624/Samastipur, dated 4.7.1959 (Annexure 1), issued by the District Superintendent of Education, Samastipur, subject to certain conditions stated therein. Neither the respondents have set up a case nor there is any material on record to suggest that the said conditions were not fulfilled which could have discredited or led to recall of recognition of the Barhauna School. It appears to me that this part of the petitioners case is covered by the aforesaid circular dated 1.3.1977 (Annexure 3), issued by the Bihar Secondary Education Board, paragraph 1 of which is relevant in the present context and is set out hereinbelow for the facility of quick reference: (LOCAL LANGUAGE) Education for Class X and XI of the Barhauna School received recognition from the State Government with effect from 1.1.1960, vide order dated 28.10.1960 (Annexure 2), issued by the Bihar Secondary Education Board. 7. The petitioner had resigned from Barhauna School with effect from 30.11.1978 and had joined Banghara High School as Headmaster on 1.12.1978. The same had received opening permission of the State Government with effect from 5.12.1978 (Annexure 4), issued by the Bihar Secondary Education Board. Obviously, therefore, the petitioner had joined as Headmaster five days prior to the opening permission. This part of the petitioners case is covered by clause (4) of the Government circular no. H/Ba 9-0706/75 Shi. 2305, dated 25.7.1977, issued in purported exercise of powers under Sec. 63 of the Bihar Secondary School Board Ordinance, 1976, and is set out hereinbelow for the facility of quick reference: (LOCAL LANGUAGE) 8. The fact that the petitioner was appointed, and continued to function without any objection, till the date of his superannuation as Headmaster is an important circumstance to show that the petitioner was appointed as a Headmaster after having put in 10 years of minimum teaching experience in a secondary school duly recognised by the Board. 9. I must now notice the provisions of the said circular dated 31.7.80 (Annexure 8) which provided that all cases of break in service shall automatically be deemed to have been condoned except caused by (i) resignation, (ii) dismissal or removal from service, or (iii) by strike. The break in service caused by resignation was deleted by the State Government by the aforesaid resolution dated 15.1.82 (Annexure 9). The break in service caused by resignation was deleted by the State Government by the aforesaid resolution dated 15.1.82 (Annexure 9). Paragraphs 6 and 7 of the same are relevant and are set out hereinbelow for the facility of quick reference: 9.1 It is thus manifest that the earlier provision of break in service caused by resignation from service was found by the State Government to be very harsh and, on a thoughtful consideration of the matter, took a conscious decision to delete the same by resolution dated 18.1.82 (Annexure 9). The petitioners case is entirely covered by Annexure 8 as it stood modified by Annexure 9. Obviously, therefore, the five days break in service, i.e. from 30.11.78 to 4.12.78, caused by his resignation as a school teacher of Barhauna School stood automatically condoned by virtue of Annexure 8 read with Annexure 9. 10. There is yet another circumstance in favour of the petitioner to establish that there was no break in service and the period from 30.11.78 to 4.12.78 stood automatically condoned by virtue of the relevant circulars of the State Government. The State Government issued circular dated 27.4.1979 (Annexure 7) to enable the employee to proceed on voluntary retirement. Law is well settled that a case of voluntary retirement, either at the instance of the employer or at the instance of the employee, does not result in deprivation of the benefits of past services, Clauses 1 and 5 of the same are relevant in the present context and are set out hereinbelow for the facility of quick reference: (LOCAL LANGUAGE) 10.1 It is thus manifest that an employee of the State Government should proceed on voluntary retirement after having put in 20 years of service, and after serving three months prior notice. It is further clarified in clause 1 read with clause 5 that the duty to examine the employees eligibility to proceed on voluntary retirement was on the employer. The very fact that the petitioners application for voluntary retirement was accepted, which has been fully acted upon, he did proceed on voluntary retirement and ceased to be in the services of the Bihar Government with effect from 15.2.1979, also lends strong support to the circumstance that the petitioner had put in at least 20 years of qualifying service and no objection was raised at that time. Indeed the respondent authorities have not in their counter affidavit, nor during the course of submissions, raised the validity of the decision of the State Government with respect to voluntary retirement. 11. Learned counsel for the petitioner is right in relying on the aforesaid reported judgments which lay down to the effect that no person can be deprived of his vested rights except, perhaps, by a valid legislation. The question of legislative intervention does not arise in the present case and, therefore, it should not be taken to be an expression of the views of this Court. It is nobodys case that the respondent authorities have tried to intervene, and deprive the petitioner of the benefits, on the strength of an Act of the legislature, nor statutory flavour is sought to be attached to the aforesaid circular dated 18.7.92 (Annexure 10). Indeed the State Government has proceeded on the footing that it is a mere administrative instruction. 12. I must also deal with the order dated 13.11.2006, passed by a Division Bench of this Court in LPA No. 1298 of 2005, which does support the petitioners case. However, I must notice the two-fold objection raised by learned counsel for the respondents that it is not a binding precedent, nor the aforesaid circulars were brought to the notice of the Division Bench. I do not feel the necessity of adjudicating the correctness or otherwise of the objection for the reason that, on a consideration of the relevant circulars, I have reached the same conclusion. 13. I now take up CWJC No. 4070 of 1999. The petitioner of this writ petition had joined the Secondary School, Korahaya, in the district of Madhubani as an Assistant Teacher on 7.1.1960. It was a duly recognised school on that date. The Government of Bihar, vide notification dated 7.12.1975 (Annexure 4), had granted opening permission to Gangaur High School at Madhubani. The Gangaur High School was granted full recognition on 23.12.1978 (Annexure 6). The petitioner had joined the Gangaur High School on 8.1.1978 as Headmaster. He superannuated from the services of the Bihar Government on 30.11.1995 while functioning as Headmaster of the Gangaur High School on completion of 58 years of age. The Gangaur High School was granted full recognition on 23.12.1978 (Annexure 6). The petitioner had joined the Gangaur High School on 8.1.1978 as Headmaster. He superannuated from the services of the Bihar Government on 30.11.1995 while functioning as Headmaster of the Gangaur High School on completion of 58 years of age. The respondents have placed on record their counter affidavit, according to which, the petitioner has been deprived of the benefit of service for the purpose of post-retirement benefits for the period 7.1.1960 to 22.12.1978, on the strength of clause 3 of the aforesaid circular (Annexure 10). The service for the period 23.12.1978 to 30.11.1995 has been recognised for the purpose of post-retirement benefits. This petitioner did not move the court earlier. 14. It appears to me that the facts of this writ petition stand on a better footing than that of CWJC No. 10607 of 1999 because both the schools had already received recognition before the petitioner had joined one after the other. The Korahaya school had received opening permission on 17.12.75, final permission on 23.12.78, and the petitioner had joined the school on 8.1.78. In view of the foregoing discussion, he is entitled to count his service from 7.1.1960 to 22.12.78 for the purpose of computation of post-retirement benefits. 15. In the result, both the writ petitions are allowed. Let the post-retirement benefits of the two writ petitioners be computed without any break in service. This Court will be pleased if the entire procees is completed within a period of three months of the date of receipt and/or production of a copy of this order.