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2012 DIGILAW 335 (PAT)

Shobhi Kant Jha v. State of Bihar

2012-02-27

MIHIR KUMAR JHA

body2012
ORDER Mihir Kumar Jha, J. Heard counsel for the petitioner and the counsel for Bihar Sanskrit Shiksha Board. No one appears for Respondents no. 1 to 4. 2. Though in this case the order of the State Government dated 29.1.1999 has been under challenge neither the counsel for the State has appeared nor any counter affidavit has been filed by Respondent no. 1 to 4 in defence of the impugned order. 3. Mr. Purushottam Jha, learned counsel for the petitioner, has submitted that the impugned order dated 29.1.1999 has been passed on a wholly extraneous material, inasmuch as there was no concept of reservation in private Sanskrit schools nor publication of advertisement in the newspaper was a condition precedent in making appointment in these private Sanskrit schools. He would accordingly submit that when the service of the petitioner had already been approved by the Bihar Sanskrit Shiksha Board in exercise of the statutory power by an order dated 8.1.1982, as contained in Annexure 3A, there was no reason for the petitioner being deprived from the benefit of payment of salary in view of the fact that the petitioner was continuing in school as an approved teacher since 1.4.1979. Mr. Jha has also highlighted that the petitioner was also paid his salary for the period 1.4.1982 to 31.3.1983 alongwith other approved teachers of the school and as such, either stopping of payment of salary of the petitioner or denying him such benefit was wholly unjustified. It has been also highlighted by him that the petitioner had remained conscious to his cause and had filed his earlier writ petition, C.W.J.C.No. 3379/1986 for payment of his salary which was disposed of on 13.8.1986 directing the respondents to consider the case of the petitioner. It has also been explained by Mr. Jha that when the petitioner did not get the substantial relief basically on account of take-over of the school by the State Government in the year 1989, he had filed another writ petition, C.W.J.C.No. 8584/1993 for payment of his salary which was disposed of by giving certain direction on 31.1.1995 and the impugned order introducing the plea of reservation or appointment not being made as per prescribed advertisement in the newspaper has been for the first time taken in the impugned order passed by the Special Director, Secondary Education on 29.1.1999. He has further submitted that the case of the petitioner stands squarely covered by a judgment of this Court dated 16th September, 2010 in C.W.J.C.No. 216/1998 (Deo Shankar Jha & ors. vs. the State of Bihar & ors.). 4. Mr. A.P.Sinha, learned counsel appearing on behalf of Bihar Sanskrit Shiksha Board, on the other hand, has only tried to defend the order passed by the Special Director, Sanskrit Education, and has submitted that when there was no advertisement made in the newspaper the petitioner cannot claim any right for either being paid his salary from the funds of the State Government or treating himself to be working on a sanctioned post. He would, however, submit that if the case of the petitioner is remitted back to the Special Director, Secondary Education the case of the petitioner can be reconsidered, inasmuch as even if the plea of reservation in non-governmental Sanskrit school is ignored, there would be a requirement of reconsidering the case of the petitioner on the basis of his individual facts. 5. In the considered opinion of this Court there being only three relief sought in this writ application reading as follows: “(i) For issuance of a writ in the nature of a writ of certiorari for quashing the impugned letter dated 21.12.1995 bearing memo no. 1056 issued by the Additional Secretary, Department of Primary Secondary and Adult Education, Govt. of Bihar, Patna (Annexure 9 and 9A) whereby the departmental letter bearing memo no. 957 dated 18.11.1989 has been cancelled with effect from its date of issuance (Annexure 6) and also for quashing the impugned letter bearing memo no. 102 dated 29.1.1999 (Annexure 9A) issued by Special Director (Secondary Education), Bihar, Patna so far the petitioner?s school at serial no. 210 is concerned. (ii) For a declaration that the petitioner is the duly appointed teacher of the school in question working against the two sanctioned posts of Primary Section of the school vide letter of the Education Department bearing memo no. 957 dated 18.11.1989 (Annexure 9) and thereby entitled for payment of salary with effect from 18.11.1989 as held by this Hon?ble Court in the order dated 22.9.1995 passed in C.W.J.C.No. 9279/94 and order dated 3.1.1995 passed in C.W.J.C.No. 12562/92. 957 dated 18.11.1989 (Annexure 9) and thereby entitled for payment of salary with effect from 18.11.1989 as held by this Hon?ble Court in the order dated 22.9.1995 passed in C.W.J.C.No. 9279/94 and order dated 3.1.1995 passed in C.W.J.C.No. 12562/92. (iii) For issuance of a writ in the nature of a writ of mandamus directing and commanding the respondents to make payment of salary to the petitioner w.e.f. 18.11.1999 till date as they are duly appointed. adjusted and approved teachers working against the two sanctioned posts of Primary section of the school in question.” the first of the relief has been already granted by this Court in the case of Deo Shankar Jha (supra) wherein it was held as follows: “ On similar reasoning, a similar letter of the State Government being issued under Memo No. 1056 dated 21.12.1995 which deals with purported cancellation of Primary Teacher posts which were sanctioned by letter No. 957 dated 18.11.1989 cannot also stand because the import of this letter is identical to that of the letter dated 14th December, 1995 which the Division Bench has already held to be a dead letter. This letter of 1995 is also a dead letter.” 6. A question would, therefore, arise if the order dated 21.12.1995 goes away, what would be its effect on the case of the petitioner? Admittedly the petitioner was appointed by the Managing Committee in the primary unit of Kabishwar Chandra Jha Sanskrit Prathmik Sah Madhya Vidyalaya Tharhi (Madhubani) which was in the group of 429 old recognized Sanskrit schools taken over temporarily by the State Government by Ordinance No. 32 of 1989 dated 18.2.1989. The said school as per record enclosed with this writ application was recognized as Prathmik Sah Madhya Vidyalaya leaving nothing for speculation that there were 6 sanctioned posts of teachers, two for Prathmik (Primary) unit and four for Madhaya (Middle) unit. That is how this Court will have to read specific order of the Secretary of Bihar Sanskrit Shiksha Board dated 7.4.1982 acknowledging recognition of the school as a Prathmik Sah Madhya Vidyalaya with effect from 1.4.1982. That is how this Court will have to read specific order of the Secretary of Bihar Sanskrit Shiksha Board dated 7.4.1982 acknowledging recognition of the school as a Prathmik Sah Madhya Vidyalaya with effect from 1.4.1982. True it is that in the next letter of the Secretary of the Board dated 14th July, 1984 there is a reference of the Government decision of making payment of salary only of the four teachers and a recommendation of the Board dated 14.7.1984 seeking amendment in the Government order for approval of the school as a Primary cum Middle School but there is nothing on record to show that the Government had ever modified its decision. 7. It is here that the letter dated 18.11.1989 of the State Government sanctioning two posts each in 60 of the old recognized Sanskrit school for Prathmik unit becomes relevant and since the name of the petitioner also is included therein there would be no difficulty in holding that the primary unit in the school got official recognition only with effect from 18.11.1999. It is to be noted that the petitioner was a recognized teacher by the order of the Bihar Sanskrit Shiksha Board dated 8.1.1982 and was also paid salary for one year whereafter when he was subjected to stoppage of payment of salary on account of controversy of sanctioned post but he had remained conscious to his cause and had moved this Court in time. 8. Thus, the school with the sanctioned post of primary unit at least from 18.11.1989 and the service of petitioner having already been recognized and also paid salary he would be entitled for being given payment of salary at least from 18.11.1989, the date on which two post of Primary Teachers were sanctioned for the school in question. As noted above, the sanction and approval of the petitioner and also working in the school as acknowledged by the orders of the Bihar Sanskrit Shiksha Board is a fate accompli which cannot be changed only because of remand order passed by this Court. As a matter of fact this Court had in the order dated 3.1.1995 in the second writ petition filed by the petitioner only clarified the ratio of the case of Subhash Chandra & ors. As a matter of fact this Court had in the order dated 3.1.1995 in the second writ petition filed by the petitioner only clarified the ratio of the case of Subhash Chandra & ors. vs. State of Bihar & anor., reported in 1994(2) PLJR 359, when it was held that any teacher of a recognized Sanskrit school which was taken by Ordinance No. 32 of 1989 dated 18.12.1989 was entitled to receive payment of salary if he had been receiving prior to promulgation of the Ordinance period. Thus, on the basis of ratio of Subhash Chandra?s case and availability of sanctioned post at least from 18.11.1989 the petitioner was entitled for payment of salary and that is how this Court had in its reasoned order while remitting the matter back clarified the whole issue. It did not give any liberty to the Special Director, Secondary Education to introduce new reasons for denying payment of salary to the petitioner. 9. As is unfortunate in this State a writ application by an affected person is taken to be a confrontation by the officers. Since the petitioner had been knocking the door of this Court for payment of his salary, the Special Director having found himself to be bound by the order of this Court dated 31.1.1995 had conveniently invented his way to wriggle out and that is how it had ignored the specific finding recorded in the order dated 31.1.1995 in C.W.J.C.No. 8584/1993 wherein it was held as follows: “ This application has been filed for direction to the respondents for payment of salary and allowances. The petitioners are said to be working against the posts which were later sanctioned when primary section was added to the High School. It appears that they are not being paid salary for the reason that their appointment was beyond the standard strength sanctioned for the High School in question which consists of seven teachers including the Headmaster. In C.W.J.C.No. 12562 of 1992 and C.W.J.C.No. 9250 of 1993 and analogous cases I had occasion to consider the aforesaid grievance. I have held that by reason of the sanction of primary section to Sanskrit High School, the standard strength of the teachers must be deemed to have increased by two more teachers which is the standard strength of teachers of the Primary Sanskrit Schools. This application is covered by the orders passed in the aforementioned two cases. I have held that by reason of the sanction of primary section to Sanskrit High School, the standard strength of the teachers must be deemed to have increased by two more teachers which is the standard strength of teachers of the Primary Sanskrit Schools. This application is covered by the orders passed in the aforementioned two cases. This writ petition is disposed of with direction to the competent authority to take an appropriate decision keeping in view the observations made in the aforementioned two cases at the earliest. It would be desitable, as observed in one of the orders passed in the aforementioned cases, that a policy decision taken in regard to payment of salary in all such cases in respect of teachers who were appointed against the posts sanctioned for the primary section and those services were duly approved by the competent authority.” 10. The Special Director, Sanskrit Education, had conveniently forgotten that the case of the petitioner had to be considered in the light of an earlier order dated 3.1.1995 in C.W.J.C.No. 12562/1992 wherein it was held as follows: “The fact that two posts in the Primary section of the schools in question which otherwise is high school were sanctioned on November 18, 1989 is not in dispute. It is also not in dispute that the petitioners appointment as Assistant teachers against the said additional posts in the Primary section of the school has been approved by the Board. The counter affidavit of the respondents sworn by Smt. Ritambhari Devi, Special Director (Secondary Education), Human Resources Development Department, does not mention about the two additional posts sanctioned letter with respect to primary section. As would appear from the ordinance the schools have been classified as Uchcha Vidyalaya (High School), Prathmik Sah Madhya Vidyalaya primary cum Middle School) Madhya Vidyalaya (Middle School) and Prathmik Vidyalaya (Primary School). The school in question has been included in the category of Uchcha Vidyalaya, whose standard teaching staff is said to consist of seven teachers including the Headmaster. It appears from the schedule that the schools classified as Prathmik Vidyalaya have sanctioned strength of two teachers. If thus a Primary section was sanctioned for the school in question it is obvious that two additional posts of Assistant Teachers became available. It accordingly follows that the sanctioned strength of the school which otherwise comprises of seven teachers for the High School increased. If thus a Primary section was sanctioned for the school in question it is obvious that two additional posts of Assistant Teachers became available. It accordingly follows that the sanctioned strength of the school which otherwise comprises of seven teachers for the High School increased. As indicated above the respondents have not adverted to that aspect of the matter at all. No decision at appears to have been taken in regard to claim of the petitioners from that angle. It accordingly direct the respondents particularly the Special Director Secondary Education, to consider the claim of the petitioners in the light of the observation made hereinabove and appointment orders in the matter of payment of salary within two months from the date of receipt/ production of a copy of this order in accordance with law, keeping in view the judgment of this Court in Subhash Chandra and ors. vs. the State of Bihar & ors. (1994) PLJR 359) and in pertied the following observations as contained in paragraph 105 of the judgment. However, there cannot be any doubt whatsoever that despite lapse of the ordinance by efflux of time the petitioners would be entitled to their salary which they have been getting period to promulgation of ordinance.” 11. The impugned order which has been passed by the Special Director does not take into account any of the aforementioned observation into consideration and the same has been passed by introducing two different impermissible reasons, namely, non-observance of the Government policy of reservation as also non-publication of the advertisement in the newspaper. 12. As with regard to the first reason Mr. Sinha has tried to support that after the Reservation Act, Act 1 of 1992 came into force even aided private schools being covered by the word „institution? would be required to follow the Government policy of reservation. 13. This Court would not like to go into this issue for the present inasmuch as the Act 1 of 1992 has not been given retrospective operation. The case of the petitioner is of the year 1979 when he was appointed in the school and therefore, at that point of time such plea of reservation was not available. 13. This Court would not like to go into this issue for the present inasmuch as the Act 1 of 1992 has not been given retrospective operation. The case of the petitioner is of the year 1979 when he was appointed in the school and therefore, at that point of time such plea of reservation was not available. If necessary, this Court would go into this aspect as with regard to observance of the Government policy of reservation and roaster in other Sanskrit school in privately managed Sanskrit school in some other appropriate cases, but so far the case in hand is concerned, on the basis of facts as noted above it must be held that the Government policy of reservation could not have been made applicable to the school of the petitioner. 14. So far as the publication of advertisement in the newspaper is concerned, the appointment of the petitioner having made in the year 1979 and the Board being the competent authority to approve such appointment for the purposes of payment of salary having done so in the month of January, 1982, it was not open for the Special Director, Secondary Education to introduce this new aspect while passing the impugned order after 17 years by questioning the initial appointment of the petitioner in a privately managed Sanskrit school. 1976 instructions of the State Government also never contemplated publication of vacancy in the daily newspapers and in fact the Sanskrit schools which have always been hand to mouth and getting some financial support for the teachers and non-teaching employee as per prescribed staffing pattern cannot afford to publish vacancy for appointment in newspaper. In any event the selection and appointment of the petitioner made by the Managing Committee in 1979 was examined by the Bihar Sanskrit Shiksha Board and that order of 1982 having not been questioned much less cancelled, it was not open for the Special Director, Secondary Education to introduce a new reason for rejecting the case of the petitioner. 15. The school of the petitioner as noted above was taken over as a Sanskrit school in the lot of 429 Sanskrit schools. The school had already sanctioned primary unit prior to take over of the school. 15. The school of the petitioner as noted above was taken over as a Sanskrit school in the lot of 429 Sanskrit schools. The school had already sanctioned primary unit prior to take over of the school. The school continued as a Government school between 18.12.1989 to 30.4.1992 whereafter when the last ordinance had expired, the school alike all other similarly situated school became a private recognized Sanskrit schools and that is how the Division Bench in the case of Deo Shankar Jha (supra) had laid down that the rights of continuing teachers of receiving payment of salary prior to 18.12.1989 to remain unaffected. 16. In the present case the petitioner had received payment of salary for one year between 1982-1983 after sanction order was accorded by the Board. This fact having been not in controversy, this Court would find that the impugned order so far it denies payment of salary to the petitioner either on the ground of non-observance of reservation cum roaster policy of the State Government or on the ground of non-publication of advertisement in the newspaper is bad and accordingly, the impugned order is quashed. 17. As noted above, the post of primary unit of the school in question got sanctioned from 18.11.1989 and therefore, even if the petitioner may not be entitled for salary in the interregnum period he would be entitled for payment of salary from 18.11.1989 onwards. The order of abolition of those post by the order dated 21.12.1995 having been already quashed by this Court, sanctioning primary unit for the old recognized schools, there would be no difficulty in holding that such primary unit will continue for the petitioner?s school and therefore, he can definitely be paid his salary against one of the two posts of primary unit for the school in question. 18. That being so, this Court while quashing the impugned order as contained in Annexure 9A dated 29.1.1999 so far it relates to the petitioner, would direct the authorities of the State Government and the Board to make sure that the payment of arrears and current salary of the petitioner subject to verification of working of the petitioner in the school must be made within a period of four months from the date of receipt/ production of a copy of this order. 19. 19. It would be open for the Secretary to Board to call for a report from the Headmaster and if the Headmaster and the Secretary of the Managing Committee of the School of the petitioner would authenticate the working and continuance of the petitioner in the school in the period 18.11.1989 onwards the Board shall in keeping with this order of recognition of the service of the petitioner make payment of salary of the petitioner. If, however, for any reason the Board would find it impermissible in law to make such payment of salary it would record reasons for the same and also communicate the same to the petitioner within the same period. It also goes without saying that if the petitioner is still continuing in service, his current salary shall also be paid alongwith other teachers of his school. 20. With the aforementioned observation and direction, this application is disposed of.