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2014 DIGILAW 164 (PAT)

Rekha Kumari v. State of Bihar

2014-02-03

SHIVAJI PANDEY

body2014
ORDER Heard learned counsel for petitioner and learned counsel for the State. 2. In the present writ petition the petitioner is seeking relief for quashing office orders as contained in Memo No.305P dated 10.6.2010 (Annexure-1) and Memo No.629P dated 22.7.2008 (Annexure-2) issued by the Director, Secondary Education, Education Department, Government of Bihar, Patna (respondent no.2) by which the claim for recognization of the service of the petitioner and payment of salary have been rejected only on the ground that he (petitioner) at time of appointment was under age in the Project Girls High School, Gokulpur Block, P.S.Krityanand Nagar, District- Purnea. 3. It appears from the record that the local public in general has established a Girls High School at Gokulpur Block, P.S. Krityanand Nagar, District- Purnea in the name and style of Girls High School. As per the scheme of the Government it was decided to open 300 Girls High school during financial year 1984-85 in different Block in the State of Bihar and for that in the first phase 75 schools were selected and identified as established School and thereafter rest 225 schools vide letter no.142 darted 23.2.1985 were identified by Three Men Committee constituted on the direction of the order of the Hon’ble Supreme Court in the case of Project Uchcha Vidyalaya Shikshak Sang Vs. State and others, reported in 2000(1) PLJR 287 . As claimed this Girls High School was also selected as Project High School. It has been claimed that petitioner was appointed by the Managing Committee on 16.3.1985 as Clerk in the school as being ward of land donor and accordingly she joined the school on 25.3.1985. She continued to work and enhanced the qualification up to graduation level. 4. In terms of report the Three Men Committee sent the name of teaching and non-teaching staffs working in the school on the day of its identification and selection and petitioner was one of the non-teaching staff. The services of other persons were treated as teaching and non-teaching employees of the aforesaid Project School but services of altogether eight persons were not recognized including petitioner on account of underage at the time of appointment is apparent from order dated 10.6.2010 (Annexure-1) and letter dated 22.7.2008 (Annexure-2). 5. The services of other persons were treated as teaching and non-teaching employees of the aforesaid Project School but services of altogether eight persons were not recognized including petitioner on account of underage at the time of appointment is apparent from order dated 10.6.2010 (Annexure-1) and letter dated 22.7.2008 (Annexure-2). 5. Learned counsel for the petitioner submits that as per Circular No.142 dated 4.2.1989 the Government has constituted Three Men Committee for identification of the school as a Project School and on the day of identification the petitioner has every qualification except she was underage as her date of birth is 5.3.1971 but in fact services of teaching and non-teaching staffs have been recognized from 1989. If that be taken starting point then certainly the petitioner cannot be said to be underage in the year 1989 and in support of his contention the petitioner has relied on the judgment of the Hon’ble Supreme Court passed in Civil Appeal No.182 of 1994 (Annexure-6). He has further relied on the judgment of this Court in the case of The State of Bihar Vs. Birendra Kumar, reported in 2011 (3) PLJR 18 (paragraph nos. 10 and 11). The order passed by this Court in C.W.J.C. No.18440 of 2010 has been affirmed by the Division Bench in L.P.A. No.1638 of 2011 where the similar point was raised about the engagement of the employee who was under age on the day of appointment by the Managing Committee but this Court has taken the view that after 30 years of service, it will not be equitable to terminate the services of the petitioner on account of the fact that at the time of entry she was below the minimum age of 18 years. 6. Learned counsel for the State has submitted that it is an admitted fact that the petitioner on the day of appointment was below minimum age i.e. 18 years and as per the circular in the year 1984-85 the school was taken over and on that day the petitioner was still minor and could not have entered into the School. He has further submitted that this issue has been addressed by Hon’ble Supreme Court in the case of State of Bihar and others Vs. Project Uchcha Vidya, Sikshak Sangh and others, reported in (2006)2 SCC 545 in paragraph nos. He has further submitted that this issue has been addressed by Hon’ble Supreme Court in the case of State of Bihar and others Vs. Project Uchcha Vidya, Sikshak Sangh and others, reported in (2006)2 SCC 545 in paragraph nos. 19, 38, 84 and 90 and affirmed the view of Full Bench of this Court in C.W.J.C. No.4783 of 1996 and analogous cases in the case of Project Uchcha Vidyalaya Shikshak Sang (supra) have dealt with the issue. 7. It is undisputed fact that the petitioner on the day of appointment was underage but it is also undisputed fact that she has continued in service for 28 years without any interruption. This Court in the case of Birendra Kumar (supra) has taken the view that the appointment below under age will be treated an irregular appointment not an illegal appointment which is apparent from paragraph nos. 10 and 11. It will be apt to quote paragraph nos. 10 and 11 of the said judgment:— “10. Normally, in a case of this nature after noticing that there was an allegation of respondent-writ petitioner obtaining his appointment on a forged matriculation certificate, we could have still allowed the Appellant-State to initiate a regular departmental proceeding but then what has really weighed upon us in not giving such liberty is that not only such opportunity given earlier in the year 2000 in L.P.A. No1049 of 2000 to the State and its official was squandered and wasted but also because respondent-writ petitioner even otherwise is armed with a matriculation certificate showing his date of birth as 30.6.1974 while declaring him to have passed his matriculation examination in the year 1988 vide Annexure-17 to the writ application. This matriculation certificate in course of enquiry has been found to be genuine even in the latest report of Bihar School Examination Board and therefore if the respondent-writ petitioner had a valid matriculation certificate at the time of his appointment, the only allegation of the appellants that on such matriculation certificate the respondent-writ petitioner could not have been appointed in the year 1990 as he was only 16 years and 2 months on the date of his appointment would at best be a mere irregularity in his appointment for which he could not be proceeded and punished in 2009. Moreover it can also be not said with certainty and conviction that the appellant-writ petitioner was appointed on the basis of the forged matriculation certificate produced by the writ petitioner and not the other matriculation certificate which was found to be genuine and correct by the Bihar School Examination Board. As a matter of fact the Director, Secondary Education for this very reason in his detailed order dated 4.8.2008 while setting aside the order of termination dated 15.4.2007 had gone to hold that the appointment of the writ petitioner was based on a valid and genuine matriculation certificate. 11. One thing however which needs to be clarified here is that on the strength of the matriculation certificate as per Annexure-17 recording the date of birth of the Respondent writ petitioner as 30.6.1974 on the basis of which he claims to have been appointed despite being a minor, he can continue in service for a maximum span of 42 years and therefore if he had taken advantage by entering in service before attaining 18 years of his age he has to be made to superannuate on completion of maximum 42 years of permissible Government service as per the policy decision of the State Government of the year 1998, also approved by a Full Bench judgment of this Court in the case of Ragiawa Narayan Mishra Vs. Bihar Rajya Khadi Gramoudyog Board and Others reported in 2006(1) P.L.J.R. 410 , even though he will not be completing 60 years of age i.e. the age of normal superannuation of a clerk in a secondary school governed by Bihar Shiksha Anusachivia Niyamabali, 1974.” 8. In that judgment the Court has specifically taken the view that the appointment of the person at the age of 16 years and two months would at best be a mere irregularity in his appointment and for which he could not be proceeded and punished in 2009. The court has taken the view that no person can be allowed to work more than 42 years and court treated first day of entry as 18 years and accordingly he will be allowed to work not more than 42 years and thereafter she will be deemed to have superannuated from service. The court has taken the view that no person can be allowed to work more than 42 years and court treated first day of entry as 18 years and accordingly he will be allowed to work not more than 42 years and thereafter she will be deemed to have superannuated from service. This Court in C.W.J.C. No.18440 of 2010 (Annexure-8) has also considered two judgments of the Hon’ble Supreme Court in the case of Project Uchcha Vidya, Sikshak Sangh (supra) cited by the other side and after consideration of this judgment the Court has taken the view that after 30 years of service it will be inequitable to terminate the services of the petitioner only because at the time of entry she was below 18 years and that view has been affirmed by the Division Bench. So far the judgment cited by learned counsel for the State in the case of Project Uchcha Vidyalaya Shiksha Sangh (supra) is concerned though in paragraph 38 issue was framed as to what will happen to those who were below 18 years of age, though the Court has considered the argument of the State about the person having been appointed below 18 years where services could be regularised and salary could be paid has not been answered in paragraph 84 the Hon’ble Supreme Court. However, in the Full Bench judgment from which aforesaid cases went to Hon’ble Supreme Court, and this Court has gone into the issue of underage and over age in paragraph nos. 21 to 23 in the following terms :— “21. In my view, having regard to the facts of these cases, there appears some substance in the submission. The respondents have also accepted that process for selection of such schools were complete in the year 1986 on the recommendation of the three-man committee. It is also not disputed that petitioners are working uninterruptedly for the last 16-17 years. The apex Court in the case of Delhi Recruit Class-II Engineering Officers Association V/s. The State of Maharashtra ( AIR 1990 SC 1607 ) held that where the initial appointment was not made in the strict terms of the rule, but the temporary appointee continued uninterruptedly for a long period till regularisation of the service, the period rendered by him should be taken into consideration for the purpose of consequential benefits. Therefore, in my view, since such petitioners have continued uninterruptedly for a period of 16-17 years, they should not be removed from the job on a simple ground that they had crossed the age of 31 years at the time of initial appointment by the Managing Committee. Similar was the view taken by a Full Bench of this Court in the case of The Executive Engineer C.P.W.D. and Ors. Vs. R.L. Singh, Civil Engineer { 1997 (1) PLJR 509 } in which in the facts of that case, while approving the proposition that it is always open to the State Government to consider the validity of appointment already made for the purpose of grant or refusal of post factor approval. Thus having regard to the fact that appellants had continued uninterruptedly in service for more than 17 years, the State Government was directed to regularise their services against the post within the staffing pattern as applicable to those colleges. 22. That apart, this cannot be denied that at the time of initial appointment of these petitioners, there was no statutory rule or circular to prescribe the upper qualifying age for appointment of a teacher in privately managed school. It would also appear that the State Government while taking over the management and control of other privately managed schools under the provisions of the Bihar Non-Government Secondary Schools (Taking over of Management & Control) Act, 1980, had granted age relaxation to the teachers and non-teaching staff of these schools up to the age of 35 years. Therefore, although the relevant circular of the State Government, whereby the maximum age was relaxed to 35 years for the teaching and non-teaching staff of the Non-Government Secondary Schools, is not applicable to the teaching and non- teaching employees of the Project Schools as already held above but having regard to the facts that they have continued uninterruptedly for several years, it would be in fact too hard to reject their claim at such a belated stage simply because some of them had crossed the age of 31 years at the time of initial appointment by the Managing Committee before the take over of the schools as Project School. I am, therefore, of the view that in the background of the facts stated above, such petitioners are also entitled for the regularisation/ recognition of their services against the posts within the aforementioned staffing pattern. 23. I am, therefore, of the view that in the background of the facts stated above, such petitioners are also entitled for the regularisation/ recognition of their services against the posts within the aforementioned staffing pattern. 23. Now coming to the cases of such petitioners who have been refused regularisation of service on the ground of being underage, it has to be noticed that as per circular No. 142, dated 4th February, 1989, there is a prescription about the upper age limit. But no lower limit of age has been prescribed either in the instant circular or the previous circular No. 705 dated 12th October, 1982 nor anything is stated in the counter- affidavits filed on behalf of the respondents. The learned Counsel for the State also could not point out any statutory provision in which the minimum age limit has been fixed for the appointment of a teacher in a privately managed or even Government schools. It would appear from the ratio laid down in the case of Mokhtar Ahmad Vs. Bihar State Road Transport Corporation and Ors. [ 1995 (1) PLJR 183 ] that it was held that the minimum qualifying age for appointment was 18 years. Therefore, in absence of any other contrary provision, I fully agree with the views expressed by this Court in the abovementioned case.” 9. It is a fact that the petitioner at the time of entry in the service was belong 18 years but it will be very inequitable as has been said by this Court in the cased of Birendra Kumar (supra) the entry in service below 18 years is irregularity. Taking into consideration the judgment of Hon’ble Supreme Court, this Court is also of the view that after 28 years of service when the teaching and non-teaching employees project school have been paid salary 1989 it will be a travesty of justice that her service will not be recognized by the respondent as admittedly, in the year 1989 the petitioner was major. 10. In this view of the matter, office order as contained in Memo No.305P dated 10.6.2010 (Annexure-1) and memo no.629P dated 22.7.2008 (Annexure-2) are quashed and this writ petition is allowed but with the condition that her entry in service will be treated at the age of 18 years on the day of her appointment. 10. In this view of the matter, office order as contained in Memo No.305P dated 10.6.2010 (Annexure-1) and memo no.629P dated 22.7.2008 (Annexure-2) are quashed and this writ petition is allowed but with the condition that her entry in service will be treated at the age of 18 years on the day of her appointment. And would supersaturate from service on reaching the date of retirement as other employees, she will not be allowed to change her claim of age at later stage. ?