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2008 DIGILAW 274 (PAT)

Bhupendra Narayan Singh v. State of Bihar

2008-02-07

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ORDER Heard learned counsel for the parties. 2. This appeal is directed against the order of the learned Single Judge dated 21.5.2007 dismissing the writ petition filed by the appellant-writ petitioner. 3. The appellant has been appointed originally as an Additional Clerk with the Uchcha Vidyalaya, Triveniganj at the time when it was a Non-Government but recognized school and was in receipt of aid. 4. On 25.11.1978, the Managing Committee has recommended for his appointment as Assistant Teacher having found him to hold requisite qualification. The recommendation was sent to the District Education Officer for seeking necessary approval for absorption of appellant's service as Assistant Teacher. On 26.9.1979 the District Education Officer permitted the management to take the work of Teacher from the petitioner-appellant against the sanctioned post which became vacant on account of death of Shobha Kant Jha. 5. Vide communication dated 21.5.1982, the District Education Officer, Saharsa directed the Headmaster for payment of salary with increment to the appellant as Assistant Teacher. 6. Thereafter, after six years on 26.10.1988, the District Education Officer, Saharsa by his letter communicated to the Bihar Secondary Officer for absorption of the appellant's services as Teacher. 7. Meanwhile, in terms of Bihar Non-Government Secondary School (Acquisition of Management and Control) Act, 1981, the management and control of All India Government Private Schools, semi-recognised or fully recognized, was taken over by the State in terms of Section 3 thereof and the recommendation made by the District Education Officer to the Assistant Secretary of Bihar Secondary Board Office for absorption appears to be in pursuance of the provisions made in that regard under Section 3 of the Act of 1981. 8. The petitioner-appellant continued as such until 23.2.1995 when the Regional Deputy Director of Education, Kosi Division wrote to the Headmaster of the School that the petitioner-appellant's appointment was illegal and directed him to stop the salary. On his representation, vide letter dated 3.11.1995, the Director allowed the salary to be paid to the petitioner until final decision is taken against the show cause notice. 9. It appears that before the Director passed the order, the petitioner-appellant had approached this Court vide CWJC No. 4822/1995, which was decided on 30.9.1996 considering that the Director, Secondary Education has passed an order for payment of the salary to the petitioner. 9. It appears that before the Director passed the order, the petitioner-appellant had approached this Court vide CWJC No. 4822/1995, which was decided on 30.9.1996 considering that the Director, Secondary Education has passed an order for payment of the salary to the petitioner. The writ petition was disposed of fixing a time frame within which the order of the Director was to be complied with. Vide order dated 20.2.1907, the Director of Secondary Education order for payment of salary and for taking work of Assistant Teacher from the appellant-petitioner. After about nine years on 31.3.2006, the Director passed an order reverting the appellant-petitioner from the post of Teacher to the post of Clerk on finding that his appointment was not made by the competent authority in accordance with law at the relevant time. 10. This order dated 31.3.2006 was made the subject matter of the writ petition being CWJC No. 5868/2006, which has been dismissed vide the order under appeal. 11. The learned Single Judge has held that since the petitioner has no appointment letter appointing him as an Assistant Teacher through the then Board of Secondary Education Act, 1976, he is not entitled to hold the post of Assistant Teacher and his appointment being illegal, he is not entitled to any relief. 12. Before us it was contended by the learned counsel for the appellant-petitioner inviting our attention to Section 3 of the Act of 1981 that after the commencement of the aforesaid Act of 1981, the petitioner-appellant's case was required to be considered by a Board constituted for the purpose to examine his eligibility and suitability to be appointed on the post and, if he is found fit, he was required to be appointed on the post of Teacher with effect from the date of the take over of the school under the Act of 1981. 13. Learned counsel for the respondents urged that since the initial appointment was not in accordance with law, it could not fructify into a regular appointment and, therefore, the petitioner's reversion from the post of Teacher to the post of Clerk was justified. 13. Learned counsel for the respondents urged that since the initial appointment was not in accordance with law, it could not fructify into a regular appointment and, therefore, the petitioner's reversion from the post of Teacher to the post of Clerk was justified. In the process we were taken through the scheme of the Act of 1976 which was prevalent at the time the petitioner was required to discharge the functions of Assistant Teacher with effect from 26.9.1979 which he has continued to discharge until the passing of the impugned order dated 31.3.2006. 14. It was also pointed out by the learned counsel for the respondents that proviso to sub-section (3) of Section 3 of the Act of 1981 does not stand in its original form now and Section 3 stands amended vide Bihar Non-Government Secondary School Acquisition of Control and Management (Amendment) Act, 1987, clearly laying down that so far as the recommendation of Non-Government Education Institutions is concerned, the existing employees of the Institutions which have been taken over by the State, the services of all the employees of such Institutions shall stand transferred to the State with the corresponding names and they will become Government servants. In contrast, in respect of the Institutions which had not been in existence at the time of the commencement of the Act of 1981 but, for setting up of which, permission has either been granted or an application seeking permission has been made until the commencement of the act, their taking over shall be considered, provided within three years of the commencement of the Act such Institutions fulfil the requisite standards about the land, buildings, infrastructure, instruments and students' number. The State Government shall not be under an obligation to accept the services of those class of Institutions which had come into existence after the commencement of the Act in the light of sub-section (3) of Section 3 of the amended Act. 15. As a matter of fact, the unamended provision, prima facie, to us yielded to the same construction but as a result of the observations made by a Full Bench of this Court in the case of Ram Ballabh Prasad Singh Vs. 15. As a matter of fact, the unamended provision, prima facie, to us yielded to the same construction but as a result of the observations made by a Full Bench of this Court in the case of Ram Ballabh Prasad Singh Vs. State of Bihar & Ors., reported in 1986 PLJR 373 , wherein the Court has said that Section 4(2) is applicable to whole of Section 3 and cannot be held to be applicable only to Section 3(1), necessitated above amendment. 16. Be that as it may, in the light of the amended 'provision which takes away the very foundation of the aforesaid observations made in Ram Ballabh Prasad Singh's case (supra), the petitioner-appellant's case is not liable to be considered by the Committee constituted under sub-section (3) of Section 3 of the Act of 1981 for the purpose of offering him an employment under the Government as Teacher on finding him eligible and suitable for the post which is applicable only to the teachers of such Institutions which have been set up within three years of the passing of the Act of 1981 and in respect of which the sanction or application seeking such sanction has come into existence prior to the commencement of the Act. 17. From the available material on record it cannot be denied and disputed that the order of the District Education Officer permitting the appellant-petitioner to discharge the functions of Teacher against the post vacated by Shobha Kant Jha (since deceased) was not an order appointing him on the post of Teacher and his recommendation for absorption made in 1988 has not fructified in any order in his favour. As a matter of fact, under the scheme of the act under sub-section (3)(i)(b) only the services of such employees of the recognized institutions taken over by the State stood transferred to the State automatically, whose services have otherwise been engaged regularly in accordance with law and not otherwise. That being the case, the petitioner-appellant's appointment as an Assistant Teacher being a non-existing fact, the existing fact, merely because that he has been allowed to discharge the functions of Teacher without any appointment order since 1979 does not make him regularly appointed Teacher whose services can be deemed to have been transferred under the State Government by virtue of taking over of the management and control of the school where he was serving. Therefore, there is no infirmity in the order passed by the Director by considering his absorption only on the basis that he was holding no appointment order. 18. In view of the aforesaid observations, no interference is called for in the order passed by the learned Single Judge. The appeal fails and the same is dismissed. No costs.