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2009 DIGILAW 676 (JHR)

Laxmi Prasad Verma v. State of Jharkhand

2009-05-01

D.G.R.PATNAIK

body2009
JUDGMENT : Heard the learned counsel for the parties. The petitioner in this application has prayed for issuance of an order directing the respondents to re-fix the monthly pension of the petitioner reckoning and calculating the period of service from the date of his promotion as an Assistant Teacher by the Government upgraded school, Ragunath Pur which was later taken over by the Government. 2. The petitioner was appointed as an Assistant Teacher in the Raghnathpur High School from 31.1.1946 which was initially a private school managed and run by a Governing Body of the school. The school was taken over by the Government partially on 1.1.1961 and finally on 1.1.1962, together with its assets and liabilities whereafter the teaching and non teaching staff of the school were accepted as government employees/teachers. During the period of his service, the petitioner had passed the departmental examination conducted by the Government and his service condition was also treated to be at par with other Government employees. By treating the period of joining on the post of Assistant Teacher as on 24.1.1956, his pay scale was also fixed. After rendering services for more than 33 years, the petitioner superannuated from service on 31.12.1988. However, though his pension was fixed, but the same was calculated by treating his service tenure from the date of taking over of the school by the Government. 3. The grievance of the petitioner is that the respondents have wrongly taken into account the period of service for the purpose of assessment of pension only from the date of taking over of the management of the school by the Government instead of the date of his initial appointment in the school. Such claim is advanced on the ground that under the provisions of the Rajkiya Madhyamik Vidyalaya Taking over Ordinance 1981, the conditions of service of the teachers who were in service in the school prior to the date of taking over by the Government, they had continued to be governed by the original terms of conditions of service even after the taking over in respect of payment of provident fund, gratuity, pension etc, and as such, the length of service rendered in the school under the private management has to be treated as the total length of service in the Government school. 4. 4. Sri Jayprakash Jha, learned senior Advocate for the petitioner while relying upon the judgment of this Court passed in the case of Laljit Bhuiya Vs Bharat Coking Coal Limited & Others [ 2003(2) JLJR 112 ], would argue that since as per the Government ordinance and various circulars issued from time to time, service conditions of the employees/teachers of the private schools were to continue even after taking over of the management of the schools by the Government, the benefit of service condition including the length of service rendered under the private management has to be counted for the purpose of computing pension of the petitioner. 5. Per contra, the stand taken by the respondents is that while it is true that the petitioner was appointed in the Raghunathpur High School on 20.1.1956, but from the time of his joining the service and during the period when the school was managed by the managing committee till 31.12.1960, the petitioner was guided according to the conditions of service under the school management. On 1.1.1961, the school was taken over by the Government of Bihar, Patna and since after the taking over of the management, the petitioner and other employees of the school were acknowledged as Government employees and the service conditions applicable to Government employee were made applicable to them. On the petitioner’s retirement from service on 31.12.1988, his pension was calculated by the senior Accounts Officer, Bihar, Patna from 11.1961 to 31.12.1988 i.e. from the date when the management was taken over by the government and on such computation, pension was fixed on the basis of total 28 years service rendered by the petitioner. It is contended that the period prior to the taking over of the management of the school by the Government cannot be counted to assess the total length of service for the purpose of pensionary benefits. 6. Sri S. Srivastava, learned counsel for the respondents would submit that this issue is no longer res integra as because it has been settled by the judgment of the Supreme Court in the case of State of Bihar Vs. 6. Sri S. Srivastava, learned counsel for the respondents would submit that this issue is no longer res integra as because it has been settled by the judgment of the Supreme Court in the case of State of Bihar Vs. S. A. Hassan & another [ 2002 (2) JLJR (SC) 109 ] and also by the Division Bench of this Court in the case of Munshi Sharma Vs State of Jharkhand ( 2008(2) JCR 410 (Jhr) and others and also in the case of Urmila Sinha Vs State of Bihar ( LPA 530 of 1999R) that the employees would not be entitled to claim benefit of the period of service while they were under employment of the erstwhile Management for the purpose of calculation of pension and pensionary liabilities. 7. The judgment cited and relied upon by the petitioner in the case of Laljit Bhuiyan (supra) was considered by the Division Bench of this Court in the case of Munshi Sharma (supra). There is no material to show that the erstwhile management was liable for the pension and pensionary liabilities in relation to its employees who ceased to remain employees of the school Management when private school management was taken over by the Government . It was also observed that the view expressed by the learned single Judge in the case of Laljit may not be said to be the correct view as it is not in tune with the ratio of the decision of the apex court in the case of Direct Recruits Class II Engineering Officers’ Association Vs. State of Maharashtra and others ( AIR 1990 SC 1607 ). On the other hand, the Division Bench in the case of Munshi Sharma by placing reliance on the ratio decided by the Supreme Court in the case of Madalaimuthu and another Vs. State of T.N. & Others [2006 (6) SCC SCC 558) , has observed that a person who is appointed temporarily to discharge function in an upper post without recourse to recruitment Rules cannot be said to be in service till such time as his appointment is regularized. Therefore, it follows that it is only from the date on which his services are regularized or appointed in a substantive post, his service can be counted. In the present case, admittedly, the petitioner had joined the school on 21.1.1956. Therefore, it follows that it is only from the date on which his services are regularized or appointed in a substantive post, his service can be counted. In the present case, admittedly, the petitioner had joined the school on 21.1.1956. The school was a private institution, managed and run by the managing committee. The school was taken over by the government on 1.1.1961. Even though under the terms of conditions of contract between the petitioner and the managing committee of the school, certain benefits were available to the petitioner, but such benefits did not extend to pensionary benefits. Thus, even if the teacher/ employees of private school continued to be guided by the service conditions of the private school, during the ad hoc period when the take over of the school was finally confirmed, there was no rule or regulation under which the period of service rendered by the teachers prior to the date of taking over of the management by the government should be counted for pensionary benefits. In the case of State of Bihar Vs. S.A. Hasan & Another (supra), the ratio decided by the Supreme Court lays down that the employees were not entitled to claim benefit of service while they were under the employment of erstwhile management for the purpose of calculation of their pension and pensionary liabilities. The facts of the case in hand are almost identical to the facts in the case of Smt Babni Devi (WPS No. 3527 of 2005) and the case of Smt Shanti Devi ( WPS No. 3737 of 2005) Vs. State of Jharkhand in which reliance was placed on the judgment of the Supreme Court in the Case of State of Bihar Vs SA Hassan (supra). In the light of the above discussions and the law laid down by the Supreme Court in the above mentioned judgments, there is no scope for this Court to grant relief to the writ petitioner as claimed by him. Accordingly, this writ petition is dismissed. However, there will be no order as to costs.