Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 296 (JHR)

The State of Jharkhand v. Ram Narayan Yadav

2009-02-25

PRASHANT KUMAR, R.K.MERATHIA

body2009
JUDGMENT : Prashant Kumar, J: This appeal is directed against the order dated 4.10.2005 passed in W.P(S) No. 705 of 2004 by learned Single Judge whereby and whereunder the writ application was allowed and the impugned order as contained in Annexure-11 of the writ application was quashed. The learned Single Judge further directed that the respondent/writ petitioner is entitled to be regularized as Headmaster of the school w.e.f. 02.10.1987 and is also entitled to get the salary in the scale of regular Headmaster of the High School. The learned Single Judge has further directed that the respondent/writ petitioner is entitled to get the arrears of difference of pay till the date of his retirement including all consequential benefits. The learned Single Judge further directed that the arrears of difference of pay and other pensionary benefits calculated on the said scale must be paid within a period of three months from the date of receipt/production of a copy of the said order. It is also directed that if the said arrears and other admissible benefits are not paid within the said period, the respondent/writ petitioner shall be further entitled to get an additional compensatory interest @ 5% per annum which shall be payable over and above the statutory interest admissible. 2. It appears that the respondent/ writ petitioner Ram Narayan Yadav had filed the aforesaid writ petition praying therein the following relief:- (A) For direction to the respondents to regularize and approve the service of the petitioner as Headmaster of Ram Lakhan Singh Yadav High School, Kokar, Ranchi w.e.f. the date he completed 7 years from the date of recognition of the school or take –over of the school ( i.e. w.e.f. 6.12.1985 or 2.10.1987). (B) For payment of the arrear salary admissible in law in the scale of Headmaster w.e.f. 6.12.1985 or 02.10.1987 along with all other admissible dues and benefits as admissible. (C)For any other appropriate relief(s) to which the petitioner may be found entitled in law. It further appears that during the pendency of the said writ application on the direction of this Court the representation of the respondent/writ petitioner was disposed of vide order contained in Memo No. 2276 dated 30.8.2005 (Annexure-11) which was also challenged by the respondent/writ petitioner through Interlocutory Application. 3. The case of respondent/writ petitioner is that Ram Lakhan Singh Yadav High School, Kokar, Ranchi was established in the year 1974. 3. The case of respondent/writ petitioner is that Ram Lakhan Singh Yadav High School, Kokar, Ranchi was established in the year 1974. It is further submitted by the respondent/writ petitioner that he has passed M.A. Examination from Ranchi University in the year 1973 whereas he obtained the degree of graduation from Bihar University in the year 1965 and he obtained the degree of B. Ed in the year 1970. It is further stated that he was appointed as Headmaster of the said school by the order of secretary dated 2.1.1974 and he joined on the post of Headmaster of the said school on 2.1.1974 itself. It is further stated that the school in question was given temporary permission for establishment on 26.3.1976 and on 6.12.1978 the school was permanently recognized by the competent authority. It is further stated that in the order of recognisation, the petitioner was shown as In-charge Headmaster. It is then stated that on 2.10.1980 the school in question was taken over by the government in pursuance of provisions contained in Bihar Non Government Secondary Schools ( Taking over of Management and Control) Ordinance,1980. It is further stated that as the respondent/writ petitioner was founder Headmaster of the aforesaid school, therefore, on completion of seven years from the date of take over of the school i.e. 2.10.1987 he made a representation to the concerned authorities for recognizing him as Headmaster of the said school and make payment of the salary prescribed for Headmaster. It is then submitted that the then District Education Officer, Ranchi had recommended the case of respondent/writ petitioner to the higher authority vide annexure-4 to the writ application. It is further stated that when the competent authority has not given any heed to the representation of respondent/writ petitioner, he filed a writ application bearing C.W.J.C. No. 2387 of 1990(R) for issuance of a writ of Mandamus commanding the competent authority to grant the aforesaid relief to the respondent/writ petitioner. However, it is stated that unfortunately the said writ application was dismissed vide order dated 02.07.1998 for non prosecution. It is further stated that thereafter the respondent/writ petitioner again filed representation before the concerned authority but in vain, thereafter the present writ application has been filed. 4. The appellants who are respondents in the writ application had contested the claim of respondent/ writ petitioner by filing counter affidavit and supplementary counter affidavits. It is further stated that thereafter the respondent/writ petitioner again filed representation before the concerned authority but in vain, thereafter the present writ application has been filed. 4. The appellants who are respondents in the writ application had contested the claim of respondent/ writ petitioner by filing counter affidavit and supplementary counter affidavits. Their case in brief is that since the earlier writ application was dismissed for non prosecution, the present writ application is not maintainable after lapse of six years. It is also stated by the appellants that a Headmaster of a un-recognized school does not automatically become a government servant of a nationalized school on take over nor does he automatically become the Headmaster of the nationalized school. It is further submitted by the appellants that examination of qualification and suitability of a Headmaster is a precondition for appointment to government service or for Headmaster of the nationalized school. It is stated by the appellants that as per the government circular contained in memo no. 511 dated 20.11.1981 the founder Headmaster can only be recognized as a Headmaster of the school taken over by government if on the date of take over i.e. 2.10.1980 he possesses the qualification and other eligibility for holding the post of Headmaster. It is further stated that one of the eligibility for holding the post of Headmaster as per the aforesaid circular dated 20.11.1981 is minimum seven years teaching experience in a recognized school. It is further stated by the appellants that the respondent/writ petitioner have no such teaching experience on the date of take over i.e.2.10.1980 and therefore he is not entitled to be recognized as Headmaster of the concerned school. It appears that keeping in view the aforesaid circular, the appellants rejected the representation of writ petitioner vide Annexure11 of the writ application. 5. It appears that before the learned Single Judge the respondent/ writ petitioner had contended that since he had completed seven years of service as founder Headmaster of the school in question from the date of take over i.e. 2.10.1980 therefore he is entitled to be recognized as regular Headmaster and entitled to get the pay scale admissible to the Headmaster from 2.10.1987 till the date of his retirement i.e. 30.6.2004. It appears that the respondent/ writ petitioner in support of his aforesaid contention relied upon a judgment of Supreme Court in A.K. Pradhan Vs. It appears that the respondent/ writ petitioner in support of his aforesaid contention relied upon a judgment of Supreme Court in A.K. Pradhan Vs. State of Bihar and others reported in (1998)2SCC 411 and also the judgment of this Hon’ble Court in Mahesh Thakur Vs. State of Bihar & Ors. Reported in 2004(1) JCR 502 . 6. On the other hand, it is contended on behalf of appellants in the writ petition that it is admitted position that the respondent/writ petitioner has joined the school on 2.1.1974 and the school was taken over on 2.10.1980, thus the respondent/writ petitioner have no teaching experience for seven years. It appears that before the learned Single Judge it is submitted by the appellants that since on the date of take over the respondent/ writ petitioner have no experience therefore the authority had rightly rejected his representation by order dated 30.8.2005 (Annexure-11 to the writ application) by taking recourse to circular of the State Government contained in memo no. 511 dated 20.11.1981. 7. From the perusal of impugned order, it appears that learned Single Judge had come to the conclusion that in the Government decision it is not mentioned that the benefit is confined to the founder Headmaster who possess seven years experience till 2.10.1980. It further appears that learned Single Judge had further come to the conclusion that since the respondent/writ petitioner had completed more than seven years of service from the date of take over, therefore, he is entitled to be recognized as Headmaster of the school in question and accordingly allowed the writ application and granted the relief as stated above against that the present L.P.A. has been filed. 8. While assailing the impugned order of learned Single Judge, the appellants submit that learned Single Judge while rejecting the contention of the appellants has not taken into account the circular of the State Government contained in memo no. 511 dated 20.11.1981 in which it is categorically mentioned that if a founder Headmaster, on 2.10.1980 possessed minimum education qualification and eligibility for appointment on the post of Headmaster then only he can be appointed as Headmaster of the school in question. 511 dated 20.11.1981 in which it is categorically mentioned that if a founder Headmaster, on 2.10.1980 possessed minimum education qualification and eligibility for appointment on the post of Headmaster then only he can be appointed as Headmaster of the school in question. It is further submitted by learned counsel for the appellants that in the aforesaid circular it is also mentioned that for appointment on the post of Headmaster it is one of the essential eligibility condition that the incumbent have seven years of teaching experience in a recognized school. It is further submitted that learned Single Judge is wrong in coming to the conclusion that the Full Bench decision of Hon’ble Patna High Court in Ram Ballabh Pd. Singh & Ors. Vs. The State of Bihar & Ors. , which was affirmed by the Hon’ble Supreme Court have no relevance in the facts and circumstances of this case. It is submitted that in the said judgment Hon’ble Patna High Court had categorically held that as per section 3(3) of Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance, 1980 if a teachers including the Headmaster of a school, on scrutiny are found suitable on the date of take over of the school then only they are entitled to be recognized as a government servant. It is submitted that in the A.K. Pradhan case the Hon’ble Supreme Court has not given any direction for recognizing the petitioner of that case as Headmaster rather has observed that the case of petitioner be considered for regularization. It is submitted that the case of respondent/writ petitioner was considered by the competent authority and since he was not found eligible for appointment on the post of Headmaster on the date of take over, therefore he is not entitled to be appointed as Headmaster out of turn. 9. On the other hand, Mr. Sohail Anwar, learned counsel appearing for the respondent/writ petitioner submits that since the respondent/writ petitioner has completed seven years of teaching experience w.e.f. the date of take over i.e. 2.10.1980, therefore learned Single Judge has rightly allowed the writ application and granted the consequential benefits to the respondent/writ petitioner by the impugned order. It is submitted that there is no illegality and/ or irregularities in the aforesaid impugned order; therefore, the same requires no interference in this appeal. 10. It is submitted that there is no illegality and/ or irregularities in the aforesaid impugned order; therefore, the same requires no interference in this appeal. 10. Having heard the submissions, we have gone through the record of the case. Admittedly the school in question i.e. Ram Lakhan Singh Yadav High School, Kokar, Ranchi was taken over under the provisions of Bihar Non-Government Secondary Schools ( Taking Over of Management and Control) Ordinance, 1980. It appears that a question arose in the case of Ram Ballabh Pd. Singh & Ors. Vs. The State of Bihar & Ors., as to whether the Headmaster of the school taken over under section 3(3) shall automatically become Headmaster of the school after its take over in view of section 4(2) without any scrutiny in respect of his qualification and suitability. The said question was answered at paragraph no. 17. The relevant portion of which is quoted below:- “….…Second paragraph of section 3(3) meticulously provides for the closest examination of both the qualifications and the suitability of these teachers. This is to be done by a committee constituted by the State Government for this purpose. It is only if these teachers are found suitable that they are to be appointed in the Government service and not otherwise when the management of the school is taken over…...” Thus, in the aforesaid Full Bench decision, it is clearly held that on the date of take over if a teacher including the Headmaster is qualified and suitable for appointment on the post in question in a government service then only he is entitled to become government servant. It is not out of place to mention that the aforesaid Full Bench judgment of Hon’ble Patna High Court was up held by their Lordships of Supreme Court by order dated 5.5.1986 in S.L.P.(Civil) No. 4828-30 of 1986 reported in 1988PLJR70 by saying that :_ “We affirm the view taken by the High Court to the effect that a Headmaster has no right to be automatically absorbed as a government servant in case of un-recognized school being taken over by the government. The Special Leave Petitions are dismissed with these observations.” Thus, the Full Bench of Hon’ble Patna High Court in the aforesaid decision delivered in Ram Ballabh Pd. The Special Leave Petitions are dismissed with these observations.” Thus, the Full Bench of Hon’ble Patna High Court in the aforesaid decision delivered in Ram Ballabh Pd. Singh case had categorically held that teachers (including the Headmaster) are not entitled to become a government servant unless on the date of take over they possess requisite qualification and are suitable to hold the said post. 11. It is worth mentioning that for recognizing a founder Headmaster, the minimum qualification and eligibility was prescribed by the State Government in a circular contained in memo no. 511 dated 20.11.1981 ( Anexure-6 to this appeal). From the plain reading of the said circular, it is clear that if a founder Headmaster on 2.10.1980 possess minimum qualification and eligibility for appointment on the post of Headmaster then only he can be appointed on the post of Headmaster in the school which has been taken over on 2.10.1980. In the said circular itself, in paragraph no. 2, the minimum qualification and eligibility for the post of Headmaster is mentioned. The said circular further prescribed that if a teacher possess seven years teaching experience in a recognized school then only he is eligible for appointment on the post of Headmaster. It appears from Anexure-11 to the writ petition, which has also been annexed in this appeal as Annexure-8, the Director, Secondary Education has rejected the representation of respondent/writ petitioner considering the aforesaid circular of the State Government contained in Annexure-6. From the perusal of impugned order, it manifest that the learned Single Judge has not considered the aforesaid circular, though the same was brought on record in the writ application as Annexure-C by the appellants/ respondent through a supplementary affidavit. Under the circumstances, the finding of learned Single Judge at page 5 of the impugned order that “in the decision of the Government it is not mentioned that the benefit is confined to the founder Headmaster who possess seven years of experience till 2.10.1980” appears to be against the record. 12. It is admitted by the respondent/writ petitioner in the writ petition itself that he was appointed in Ram Lakhan Singh Yadav High School, Kokar, Ranchi on 2.1.1974 as a founder Headmaster, therefore, it is manifestly clear that on the date of take over i.e. 2.10.1980 he did not have seven years of teaching experience. 12. It is admitted by the respondent/writ petitioner in the writ petition itself that he was appointed in Ram Lakhan Singh Yadav High School, Kokar, Ranchi on 2.1.1974 as a founder Headmaster, therefore, it is manifestly clear that on the date of take over i.e. 2.10.1980 he did not have seven years of teaching experience. Therefore, in our view the Director, Secondary Education has rightly rejected the representation of the respondent/writ petitioner by Annexure-11. 13. It appears that the learned Single Judge had heavily relied upon the judgment of Hon’ble Supreme Court in A.K. Pradhan case reported in (1998)2 SCC 411 . From perusal of the same, I find that in the said judgment Hon’ble Supreme Court has not given direction to the authority to regularize the service of concerned Headmaster because he has completed seven years of service from the date on which the Institution was taken over rather from perusal of the aforesaid judgment, we find that only observation was given by the Hon’ble Supreme Court for considering the case of concerned Headmaster. In this case, we find that representation of respondent/writ petitioner was considered by the concerned authority after giving him full opportunity of being heard and thereafter the representation of respondent/writ petitioner was rejected by reasoned order as contained in Annexure-11 to the writ application. As discussed above, the reason given by the Director, Secondary Education is based on government circular as contained in Annexure-6 to this appeal. It further appears that learned Single Judge has also relied upon the judgment of this Court in Mahesh Thakur Vs. State of Bihar & Ors. reported in 2004(1)JCR 502. It is not out of place to mention that against the aforesaid judgment a Letter Patent Appeal was filed by the State of Jharkhand vide L.P.A. No. 303/2004. From the perusal of order dated 13.12.2005 passed in L.P.A. No. 303 of 2004 it appears that the said LPA was allowed and the impugned judgment of the learned Single Judge passed in C.W.J.C. No. 401 of 1999( R) was set aside. Under the said circumstance, the ratio decided in Mahesh Thakur case, now have no relevance. 14. In view of findings and discussions made above, I find that the impugned order cannot be sustained in this appeal. 4.15. Under the said circumstance, the ratio decided in Mahesh Thakur case, now have no relevance. 14. In view of findings and discussions made above, I find that the impugned order cannot be sustained in this appeal. 4.15. Accordingly, this appeal is allowed and the impugned order of learned Single Judge dated 4.10.2005 passed in W.P.(S) No. 705 of 2004 is set aside. Consequently the writ application is dismissed. However, we further direct that the parties shall bear their own costs.