Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1318 (PAT)

State of Bihar v. Asha Sharma

2013-11-20

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
Order This Appeal under Clause 10 of the Letters Patent is preferred by the respondent State of Bihar against the judgment and order dated 28th March 2011 passed by the learned single Judge in CWJC No. 1046 of 2006. 2. The matter at issue is the right to receive pension by the teachers in Non-Government Grand-in-aid Schools taken over by the State Government under the Bihar Non-Government Secondary Schools (Taking Over of Control and Management) Act, 1981 (hereinafter referred to as “the Act of 1981”). Reliance is placed on the Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983; particularly Rule 8 thereof, (hereinafter referred to as “the Rules of 1983”). 3. The learned single Judge has, considering the above referred Act of 1981 and the Rules of 1983 and the judgment of this Court in the matter of Shyam Kishore Singh Vs. The State of Bihar & Ors. [ 2007 (2) PLJR 239 ], held, “…the service of the petitioner has to be counted from the date of establishment of the school for the purposes of retirement benefit….” It is the aforesaid direction which is the subject matter of challenge before us. 4. Learned advocate Md. Anis Akhtar has appeared for the appellant State of Bihar. He has vehemently submitted that the Act of 1981 and the Rules of 1983 envisage the date of recognition of the school and not the date of establishment of the school. In the submission of Md. Anis Akhtar, the date on which the school had been recognized would be relevant for counting pensionable service and not the date of establishment. He has relied upon the Division Bench judgment of this Court in the matter of Madho Sharma Vs. The State of Bihar & Ors. (CWJC No. 15725 of 2010, decided on 5th July 2013). In the said judgment, the Division Bench of this Court has held, “We therefore hold that the service of the petitioner as a Government Teacher is to be calculated from the date of recognition i.e. 05.08.1977.” The reliance is placed on Rule 58 of the Bihar Pension Rules. Md. Anis Akhtar has, in the present Appeal, brought to our notice the Government Circulars dated 29th November 1978 and 30th August 1980. 5. Md. Anis Akhtar has, in the present Appeal, brought to our notice the Government Circulars dated 29th November 1978 and 30th August 1980. 5. Under its Circular dated 29th November 1978, the State Government has extended the benefits of the General Provident Fund, Pension and Gratuity to the employees of the Non-Government Grant-in-aid Secondary Schools effective from 1st April 1978 on the conditions mentioned therein. Thus, under the said Circular, the employees of the Non-Government Grant-in-aid Schools retiring on and after 1st April 1978 (the cut off date) have been extended the benefit of the General Provident Fund, Pension and Gratuity. The conditions mentioned therein do not refer to the service which would be treated as pensionable. In furtherance of the said Circular dated 29th November 1978, the State Government has issued the above referred Circular dated 30th August 1980. 6. Under the said Circular dated 30th August 1980, the State Government has clarified that for extending the benefit of pension scheme, Rules 58, 60 & 79 of the Bihar Pension Rules will be relaxed. Rule 59 of the Bihar Pension Rules requires, inter alia, that pensionable service would be the service rendered under the Government; employment is substantive and permanent and that it is paid by the Government. Rule 60 makes a similar provision in respect of the qualifying service. Rule 79 thereof provides, “Apart from any special provisions made under the following Rules, service paid from a local fund does not qualify for pension.” 7. Neither of the aforesaid Circulars has provided for pensionable service. However, on conjoint reading of the said Circulars, we are of the opinion that the entire service of a Non-Government Grant-in-aid Secondary School employee would be pensionable. In other words, the service rendered by an employee of the Non-Government Grant-in-aid Secondary School rendered prior to 1st April 1978 will also count for pension and other terminal benefits in case such employee has retired from service on 1st April 1978 or thereafter and such employee satisfies the other conditions mentioned in the said Circulars. It is but obvious that for extending the benefit of pension scheme for service not rendered under the State Government, the State Government had to relax the conditions mentioned in the above referred Rules 58, 60 & 79 of the Bihar Pension Rules. 8. It is but obvious that for extending the benefit of pension scheme for service not rendered under the State Government, the State Government had to relax the conditions mentioned in the above referred Rules 58, 60 & 79 of the Bihar Pension Rules. 8. It, therefore, appears that even prior to the non Government schools being taken over under the Act of 1981, the employees of such schools were entitled to the benefit of pension scheme under the above referred Circulars dated 29th November 1978 and 30th August 1980. Merely because the management and control of any school has been taken over by the State Government in exercise of power conferred by the Act of 1981, the employees of such school can not be worse of than what they were prior to the school being taken over. Thus, irrespective of the date of establishment of the school, if a Non-Government School were recognized and were in receipt of grant-in-aid from the State Government, the entire service of the employees of such school would be the qualifying service for the purpose of pension and other terminal benefits whether rendered prior to 1st April 1978 or after 1st April 1978. 9. In any case we feel that the date of establishment of the school can never be the relevant date. Take for example, a school is established in 1960, is recognized in 1963 and is in receipt of grant-in aid since 1963; employee joins the school in 1972. In such a case, if the date of establishment or recognition is treated as relevant date, the employee will receive pension for the years before he joined the service. No statute or rule or instruction can be construed so as to create such an anomalous situation. 10. Now, before us, are three diverse opinions in the subject matter. The matter, therefore, calls for scrutiny by a Full Bench of this Court. The Appeal is, therefore, referred to the Full Bench for a decision on the issue of the qualifying service of an employee of a Non-Government Grant-in-aid Secondary School taken over by the State Government in exercise of power conferred by the Act of 1981. 11. Learned advocate appearing for the State Government will furnish additional set of paper book within ten days from today.