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2014 DIGILAW 651 (JHR)

Brajendra Mishra v. State of Jharkhand

2014-06-20

APARESH KUMAR SINGH

body2014
Judgment Heard learned counsel for the parties. 2. Five petitioners were initially agitating against issuance of the letter dated 5th October, 2004 bearing no. 2801, Annexure12 of Joint Secretary, Department of Human Resources Development, Government of Jharkhand, whereunder the benefit of pay protection granted to the petitioner nos. 2 to 4 in their appointment under the Government schools from erstwhile Government Recognized Aided Minority School were withdrawn. The petitioner no. 5 later on sought to withdraw his case as his grievances have been redressed during the pendency of the case. He was permitted to do so vide order dated 27th November, 2012. 3. Mr. V.P. Singh, Learned senior counsel for the petitioners, during the course of hearing, has pointed out that the petitioner no. 1, who was only espousing the cause as a Secretary of the Jharkhand Secondary Schools Teachers' Association, Ranchi Branch, was not personally aggrieved and he also died during the pendency of the writ application. Therefore, the petitioner nos. 2 to 4 are pursuing this writ application at the present. 4. The question, which is to be decided in the present case on the basis of rival stand taken by the parties, is as to whether the benefit of pay protection, which was granted to these petitioners at the time of their entry in the Government Schools as Assistant Teachers in the year 1988 pursuant to selection exercise conducted by the Education Department of the erstwhile Government of Bihar after reckoning their previous services in the Government Recognized Aided Minority School, has been rightly withdrawn by the respondents as per the impugned letter dated 5th October, 2005 as contained in Memo no. 5900 dated 8th November, 2004, Annexure12 to the writ petition or not ? 5. The facts, which are not in dispute in respect of three surviving petitioners, are as follows: All these three petitioners were appointed in the Government Recognized Aided Minority Schools, namely, Don Bosco High School, Hesar; St. John's High School, Purlia Road, Ranchi and St. Alloysias School, Purlia Road, Ranchi in the years 1987; 1983 and 1984 respectively. The services of all these teachers were approved by the Vidalaya Seva Board under the provisions of Bihar Non-government Secondary Schools (Taking Over of the Management and Control) Act, 1981, more specifically Sections 10 and 18 read together. John's High School, Purlia Road, Ranchi and St. Alloysias School, Purlia Road, Ranchi in the years 1987; 1983 and 1984 respectively. The services of all these teachers were approved by the Vidalaya Seva Board under the provisions of Bihar Non-government Secondary Schools (Taking Over of the Management and Control) Act, 1981, more specifically Sections 10 and 18 read together. Upon approval of their services by Vidalaya Seva Board, the salaries of the petitioners were also fixed and approved by the State authorities in their respective scales. These three petitioners, however, chose to participate in the selection exercise conducted by the Respondent-Education Department of the erstwhile State of Bihar initiated in the year 1988 and were also appointed on being successful in different Government Schools, namely, Chotanagpur Raj School, Ranchi; K.B. Girls High School, Ratu Road, Ranchi and High School, Sisai, Mandar Ranchi. The pay fixation of these individual petitioners were made vide Government's orders contained at Annexure-3 dated 25th January, 1993 i.e. petitioner No.2, Annexure-6 dated 16th November, 1991 is in respect of petitioner no. 3 and Annexure-8 dated 25th November, 1993 is in respect of petitioner no. 4. In all these three orders of pay fixation issued by the District Education Officer, Ranchi as also one of them Annexure-6 by the Additional Director of Education, Ranchi, reference has been made to the departmental circular no. 852 dated 21st December, 1983 and letter no. 97 dated 25th February, 1991 under which such pay protection reckoning the previous services of the petitioners under Government Recognized Aided Minority Schools have been approved. All these three letters of approval also refer to the previous service of the petitioners in the aided minority schools and that they were drawing their higher salary to the post on which they were appointed in the Government School in the year 1988 by the respondents. In the wake of these admitted facts the petitioners also continued to draw their salary with pay protection till the impugned letter was issued under Annexure-12 by the respondents. 6. Learned senior counsel for the petitioners on the basis of these admitted facts and relying upon the provisions of the Act of 1981(Supra) has submitted that there was no reasons for the respondents to withdraw the benefit granted to these petitioners at the relevant point of time after due consideration of the relevant departmental circular in vogue which permitted grant of pay protection. It is further argued that once the service of all these petitioners were approved by the Vidyalay Seva Board and their pay fixation was made by the competent authorities of the State Government in the aided minority schools, the petitioners were entitled to the benefit of pay protection, otherwise they would have been seriously prejudiced under the new appointment in the government schools on having been made to work at a lower scale of pay, which is the entry level pay scale of the teachers in government schools. It is submitted that there was no illegality in the original order of pay fixation and the respondents have failed to show that there has been any breach of statutory rules or instructions while granting the said benefit to the petitioners. It is submitted that there has been no suppression or misrepresentation of the facts on their part as well. In these circumstances, it is therefore submitted that neither the refixation of pay as directed under the impugned order is proper nor the recovery of the salary paid to the petitioners for all these years was justified in the eye of law. 7. Learned counsel for the Respondent-State has defended the impugned order. According to him, the pay fixation of the salary of these petitioners were made by the regional offices of the Education Department, who were not competent to grant pay protection. The competent authority to grant pay protection is the Director, Secretary, Education, who can do so with the approval by the Finance Department. It is further submitted that the benefit of pay protection for the services rendered by these petitioners in the minority school is illegal in view of law laid down by the Supreme Court in the case of State of Bihar Vs. S.A. Hussan, reported in AIR 2002 SC 1258 . Learned counsel has, therefore, submitted that the services rendered by these petitioners under privately Managed Minority School is not a service rendered under the Government and hence such service cannot be counted for pay protection. It is further submitted that when such benefit of illegal pay protection granted to teachers, who had joined government service were brought to the notice of Human Resources Development Department, the impugned circular dated 5th October, 2004 was issued , which is wholly proper and just in the eye of law. It is further submitted that when such benefit of illegal pay protection granted to teachers, who had joined government service were brought to the notice of Human Resources Development Department, the impugned circular dated 5th October, 2004 was issued , which is wholly proper and just in the eye of law. Therefore, the refixation of the salary of the petitioners is justified and the excess amount paid on the basis of such illegal pay fixation is liable to be recovered. 8. I have heard learned counsel for the parties at some length and gone through the relevant materials on record. The admitted facts have been indicated in brief in the earlier part of the judgment relating to the initial appointment of these petitioners in the Government Recognized Aided Minority School at the relevant point of time in the year 1980's and also approval of their service by the statutory body created for such purposes i.e. Vidyalay Seva Board in the relevant years. The pay fixation of these petitioners apparently were also done in the prescribed pay scale upon their services, which is also reflected in the orders of pay fixation at Annexures 3, 6 and 8 passed in the case of the petitioners upon their joining in the government service pursuant to an advertisement issued by the Respondent-State in the year 1988. The services of these petitioners in the erstwhile Aided Minority School were approved in terms of the Act of 1981 by the Vidalaya Seva Board, a statutory body which was functioning in the erstwhile State of Bihar. Section 18 of the Act lays down the yardstick/criteria under which such approval is to be accorded by the Vidyalaya Seva Board. A reading of the provisions of Sections 10 and 18 of the said Act clearly indicate that the Vidyalaya Seva Board while considering the approval of such teachers appointed in the Government Aided Minority Schools was to take into account factors like the availability of sanctioned vacant post approved by the State Government in the concerned minority schools. The fulfilment of all necessary eligibility/educational qualification by the concerned teachers, who are appointed in the said schools by the managing committee in terms of the government rules and as per the procedure prescribed for the said purpose. The fulfilment of all necessary eligibility/educational qualification by the concerned teachers, who are appointed in the said schools by the managing committee in terms of the government rules and as per the procedure prescribed for the said purpose. Apparently, there is no infirmity pointed out in the approval of their appointments by the Vidyalay Seva Board while they were serving in minority school in question. They were also accorded the benefit of prescribed pay scale in the minority schools in terms of the prevalent government circulars under which certain benefits of salary and post retirement dues are admissible to the teachers, whose services and pay fixation are approved by the State authorities. The order of pay fixation also refers to the departmental circulars bearing no. 852 dated 21st December, 1983 and letter no. 97 dated 25th February, 1991 under which such pay protection is admissible in the cases of teachers in the minority school. The respondents in their stand have not been able to show that there has been any violation of the departmental circular bearing no. 852 dated 21st December, 1983, under which such pay protection could have been granted. Perusal of Annexure-6, which is one of the orders of pay fixation, shows that the same has been issued by the Additional Director of Education, Ranchi, directing the District Education Officer, Ranchi to grant pay protection to one of the petitioners, namely, petitioner no. 3. The impugned order does not refer to any departmental circular under which such benefit could not have been granted to these petitioners at the relevant point of time. The whole concept of pay protection envisages that a new employer is justified in considering the grant of pay protection that whether the employee was appointed under a prescribed procedure and had the necessary qualification to be appointed in such post under the previous employer. The appointment and the pay fixation of these petitioners in the previous services were duly approved by the statutory body i.e. the Vidyalaya Seva Board and the concerned authorities of the Education Department. 9. The Act of 1981 provides for approval of service of teachers of Aided Minority Schools appointed by the Managing Committee against the sanctioned vacant post approved by the State Government in the respective schools upon fulfilment of necessary eligibility/criteria by such incumbent and upon following the necessary procedure of advertisement and interview etc. 9. The Act of 1981 provides for approval of service of teachers of Aided Minority Schools appointed by the Managing Committee against the sanctioned vacant post approved by the State Government in the respective schools upon fulfilment of necessary eligibility/criteria by such incumbent and upon following the necessary procedure of advertisement and interview etc. In the wake of facts that these petitioners had been duly appointed and their services and pay scale have been approved by the statutory body in the previous school in question, the orders granting pay protection at the relevant point of time in the year 1991 or 1993 in the individual cases do not appear to suffer from any violation of circular or rule or any misrepresentation or suppression of fact. On the other hand, the present stand taken by the respondent is not supported by any such departmental circular. The respondents have been unable to show that any Rule/Circular has been violated with regard to grant of pay protection to these petitioners. Therefore, the impugned order under which the benefit of pay protection has been withdrawn from these petitioners and the consequential orders issued for recovery of the same do not seem to be proper in the eye of law. 10. In the wake of aforesaid facts and reasons, the writ petitioners have succeeded in challenging the impugned order. This writ petition, therefore, deserves to be allowed. The impugned order dated 5th October, 2004 as contained at Annexure12 is, accordingly, quashed. Petition allowed.