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2014 DIGILAW 659 (PAT)

Ramesh Chandra Yadav v. State of Bihar

2014-06-17

HEMANT KUMAR SRIVASTAVA

body2014
JUDGMENT : HEMANT KUMAR SRIVASTAVA, J.:–This writ petition has been filed on behalf of the petitioner for grant of full pension, full gratuity taking into account his date of appointment as 25-02-1974 and for grant of Ist & IInd Senior Pay Scale, Selection Grade Pay Scale, payment of difference of salary, for payment of arrears of salary for the period 01-01-1976 to 01-08-1976 and for payment of commutation of pension. 2. The case of petitioner is that he was appointed as Assistant Teacher on 25-02-1974 in Ras Bihari High School, Madhepura on sanctioned vacant post by the Managing Committee of the aforesaid school and his service was approved by Sub Divisional Education Officer, Madhepura vide Memo No. 2928 dated 05-11-1974 till the appointment made by Board. His salary was fixed by Sub Divisional Education Officer, Madhepura. Again, the petitioner was appointed by Bihar Secondary Education Board, Patna vide letter No. 7712-17 dated 29-11-1975 and he was posted at High School Athmaha, District-Bhagalpur but the then Managing Committee of Ras Bihari High School, Madhepura did not relieve the petitioner from the above-stated school and vide letter dated 09-12-1975, requested the Bihar Secondary Education Board, Patna to post the petitioner in Ras Bihari High School, Madhepura. The Sub Divisional Education Officer, Madhepura vide his Memo No. 4032 dated 09-12-1975 requested the then District Education Officer, Madhepura to post the petitioner at Ras Bihari High School, Madhepura. The case of the petitioner was considered by Secretary of Bihar Secondary School Board, Patna and vide Memo No. 28229-28 dated 31-07-1976, the petitioner was posted at Ras Bihari High School, Madhepura. The petitioner never joined in High School, Athamaha, district-Bhagalpur and he continued to work at Ras Bihari High School, Madhepura since 25-02-1974 but due to his fresh appointment by the Bihar Secondary Education Board, Patna, he did not get his salary from 01-01-1976 to 01-08-1976. Subsequently, Ras Bihari High School, Madhepura was taken over by the government w.e.f. 02-10-1980 and accordingly, services of the petitioner were also taken over by the government. The petitioner superannuated from service on 30-04-2005 and, thereafter, he made representation for payment of his arrears of salary for the period 01-01-1976 to 01-08-1976 and also for his retiral benefits. The provisional pension and provisional gratuity were fixed and, accordingly, the same was paid to the petitioner. The petitioner superannuated from service on 30-04-2005 and, thereafter, he made representation for payment of his arrears of salary for the period 01-01-1976 to 01-08-1976 and also for his retiral benefits. The provisional pension and provisional gratuity were fixed and, accordingly, the same was paid to the petitioner. Again the petitioner filed detailed representation before the Accountant General, Bihar for issuance of Pension Payment Order and Gratuity Payment Order, treating his initial date of appointment as 25-02-1974. The Accountant General, Bihar, Patna wrote letters to District Education Officer, Madhepura for sending details about the first date of appointment of the petitioner and also for payment of arrears of salary for the period 01-01-1976 to 01-08-1976. In receipt of letter of Accountant General, Bihar, Patna, the District Education Officer, Madhepura vide letter No. 695 dated 19-09-2005 directed the In-charge, Headmaster of Ras Bihari High School, Madhepura to furnish the details of services of the petitioner and thereafter, the concerned Headmaster informed the District Education Officer, Madhepura that the petitioner was initially appointed in Ras Bihari High School, Madhepura on 25-02-1974 and continued to work as Assistant Teacher from 01-01-1976 to 01-08-1976 and no payment for the aforesaid period has been made to him. The District Education Officer, Madhepura wrote a letter to Accountant General Bihar for issuance of PPO, treating initial date of appointment of the petitioner as 25-02-1974 but the Accountant General, Bihar found some cuttings in service book of the petitioner and returned the matter for clarification and again, the Headmaster of Ras Bihari High School, Madhepura sent his report to Deputy Director, Secondary Education, Bihar mentioning this fact that the petitioner had worked between 01-01-1976 to 01-08-1976 and his initial date of appointment was 25-02-1974 but nothing could be done and during pendency of this writ petition, the Director, Secondary Education, Bihar vide order dated 31-03-2008 as contained in Memo No. 1846 dated 02-04-2008, refused to regularize the service of the petitioner from 01-01-1976 to 01-08-1976 which has been challenged by the petitioner before this court by filing I.A. No. 4580 of 2008. 3. 3. The counter affidavit has been filed on behalf of respondent No. 5 in which, it has been pleaded that fresh appointment of the petitioner was made vide Memo No. 28222-28 dated 13-07-1976 and the petitioner joined in Ras Bihari High School, Madhepura on 02-08-1976 as a new incumbent and, therefore, the question of payment of salary to the petitioner, prior to his joining does not arise. It has also been pleaded that since fresh appointment of the petitioner was made and he joined on 02-08-1976 and, therefore, prior to 02-08-1976, the petitioner was not entitled for anything. It has also been pleaded that the petitioner did not get salary from 01-01-1976 to 01-08-1976 as he did not work for the aforesaid period and the service of the petitioner had already discontinued and, therefore, the respondents rightly fixed the date of appointment of the petitioner as 02-08-1976. It has also been pleaded that after promulgation of Bihar Secondary Education Board Ordinance 1974 on 21-05-1974, the arrangement and control of Non-government/Secondary School was vested in Bihar Secondary Education Board and, accordingly, since 21-05-1974 and onwards, the board was only competent authority for approval of the appointment but in the case of the petitioner, it is stated that approval of service of the petitioner was done by Sub Divisional Education Officer, Madhepura who was not competent to do so and, therefore, even if, the Sub Divisional Education Officer, Madhepura approved the service of the petitioner, then also, the aforesaid approval does not have any validity in the eye of law. It has also been pleaded that since fresh appointment letter was issued to the petitioner and he joined in pursuance of the aforesaid fresh appointment letter, the services of the petitioner, prior to 02-08-1976 was not approved by the board and, therefore, this writ petition does not have any merit. 4. Learned counsel, appearing for the petitioner submits that the petitioner was initially appointed in Ras Bihari High School, Madhepura on 25-02-1974 by the then Managing Committee of the above-said school and, subsequently, the appointment was approved by Sub Divisional Educational Officer, Madhepura vide Memo No. 2928 dated 05-11-1974 till approval of the board. 4. Learned counsel, appearing for the petitioner submits that the petitioner was initially appointed in Ras Bihari High School, Madhepura on 25-02-1974 by the then Managing Committee of the above-said school and, subsequently, the appointment was approved by Sub Divisional Educational Officer, Madhepura vide Memo No. 2928 dated 05-11-1974 till approval of the board. It is further submitted by him that at the time of initial appointment of the petitioner, the Bihar Secondary Education Board Ordinance, 1974 was not in existence and, the aforesaid ordinance was published in official gazette on 21-05-1974 and, therefore, the initial appointment of the petitioner on 25-02-1974 was made by the Managing Committee under the rules of Bihar High School Service Condition Rules, 1972 which had been framed under Section-8(1) of Bihar High School (Control & Regulation of Administration) Act, 1960. Furthermore, rule 4 of Bihar High School (Service Condition) Rules, 1972 prescribes procedure for appointment of Assistant Teacher in school and rule 8 of above-said rules 1972 says that if, competent authority fails to communicate his opinion or order to Managing Committee within a month from the date of receipt of recommendation of Managing Committee, it shall be presumed that the recommendation/appointment of the Managing Committee has been approved by the competent authority. Leaned counsel for the petitioner submits that in view of the aforesaid rules, it is apparent that the Managing Committee of Ras Bihari High School, Madhepura appointed the petitioner and recommended his name to Sub Divisional Educational Officer, Madhepura vide resolution No. 2 dated 25-02-1974, which is evident from Annexure-1 to the writ petition and admittedly, the Bihar Secondary Education Board Ordinance 1974 came into force on 21-05-1974 and prior to coming into force of the Bihar Secondary Education Board Ordinance 1974, the appointment of the petitioner had already been approved in the light of clause-8 of the above-said rules, 1972. Therefore, even if, the Bihar Secondary Education Board Ordinance 1974 snatched the power of approval from the concerned officials, then also, the service of the petitioner had already been approved. 5. He further submits that Clause 64(3) of Bihar Secondary Education Board Ordinance, 1974 says that till the framing of rules under Ordinance, 1974, the rules which were framed and prevalent prior to coming into force of the Ordinance, 1974, shall be in force, unless contrary to the ordinance. 5. He further submits that Clause 64(3) of Bihar Secondary Education Board Ordinance, 1974 says that till the framing of rules under Ordinance, 1974, the rules which were framed and prevalent prior to coming into force of the Ordinance, 1974, shall be in force, unless contrary to the ordinance. He further submits that admittedly, the service of the petitioner was approved by the competent authority under the rule, prevalent before coming into force of Ordinance 1974 and, therefore, it cannot be said that the service of the petitioner was not legally approved. He further submits that no doubt, in the year, 1976, the petitioner was directed by Bihar Secondary Education Board to join at Athmaha school, district-Bhagalpur but he was never relieved from Ras Bihari High School, Madhepura and subsequently, having considered the request of the Managing Committee/officials of the school, the District Education Officer, Madhepura posted the petitioner in Ras Bihari High School, Madhepura and, therefore, it cannot be said that the fresh appointee of petitioner was made in the year, 1976. 6. On the other hand, learned counsel, appearing for the State submits that no doubt, prior to coming into force of the Bihar Secondary Education Board Ordinance, 1974, the Managing Committee of the concerned school had got power to appoint and recommend the name of Assistant Teachers and the competent authority had got power to approve the appointment/recommendation till the decision of the board but after coming into force of Ordinance 1974, the aforesaid power of competent authority was taken away as only the board was competent authority to approve the appointment/service and so far as the present case is concerned; admittedly, the service of the petitioner was never approved either by the Dissolved board or by the present board and therefore, claims of the petitioner for regularization of his service and for treating his first date of appointment as 25-02-1974 are liable to be rejected. 7. Annexure-1 to the writ petition reveals that the Sub Divisional Educational Officer, Madhepura vide Memo No. 2928 dated 05-11-1974 approved the service of the petitioner till the approval of the board and the aforesaid Annexure-1 also reveals that the first appointment of the petitioner was made by the Managing Committee of Ras Bihari High School, Madhepura vide its resolution No. 2 dated 25-02-1974. Annexure-9, the service book of the petitioner also reveals that the date of first appointment of the petitioner has been mentioned as 25-02-1974. Furthermore, the Annexure-2 to the writ petition reveals that the salary of the petitioner was fixed by Sub Divisional Education Officer, Madhepura vide his letter dated 19-11-1974 and in the aforesaid letter, the date of first appointment of the petitioner was shown as 25-02-1974. It is obvious from the aforesaid materials that the petitioner started getting his salary from Government Treasury since 25-02-1974 i.e. from the date of his first appointment by the order of Sub Divisional Education Officer, Madhepura. Admittedly, Bihar Secondary Education Board Ordinance 1974 came into force on 21-05-1974 and prior to coming into force of the aforesaid ordinance; the petitioner was getting salary from Government Treasury. It is also obvious from the aforesaid fact that the first appointment of the petitioner was made under Bihar Secondary School Service Condition Rules, 1972 and his appointment was approved by the Sub Divisional Education Officer, Madhepura in the light of above-said rules of 1972. Sub clause (8) of Rules-4 of above-said rules 1972 clearly stipulates that if competent authority fails to communicate his decision to Managing Committee about the recommendation of the Managing Committee within a month from the date of its receipt, it shall be presumed that the recommendation of Managing Committee has been approved. In the present case, it is apparent from the materials, available on the record that the appointment of the petitioner was made on 25-02-1974 vide resolution No.2 on the recommendation of the Managing Committee and the name of petitioner was sent for approval by the Headmaster of aforesaid school vide his letter No. 34 dated 01-10-1974 and, thereafter, Sub Divisional Education Officer, Madhepura approved the proposal of the Managing Committee vide Memo No. 2928 dated 05-11-1974. Therefore, it is apparent from the aforesaid fact that the name of petitioner for approval on the post of Assistant Teacher was sent to Sub Divisional Education Officer, Madhepura on 01-10-1974 and approval was granted on 05-11-1974. Therefore, it is apparent from the aforesaid fact that the name of petitioner for approval on the post of Assistant Teacher was sent to Sub Divisional Education Officer, Madhepura on 01-10-1974 and approval was granted on 05-11-1974. It is apparent from the aforesaid fact that the name of petitioner was recommended for approval after coming into force of Bihar Secondary Education Board Ordinance 1974 and recommendation was approved by Sub Divisional Education Officer, Madhepura after coming into force of the aforesaid ordinance and, therefore, in my view, learned counsel, appearing for the State has rightly submitted that Sub Divisional Education Officer, Madhepura had got no power to give approval after coming into force of Bihar Secondary Education Board Ordinance 1974 and only, the board was competent to grant approval of service of the petitioner. Admittedly, the board never approved the services of the petitioner. So far as Clause 64(3) of aforesaid ordinance 1974 is concerned; no doubt, the aforesaid clause says that until rules and regulations are framed, the previous rules and regulations shall be deemed to be in force but one rider has been made in Clause 64(3) of the aforesaid ordinance that the previous rules should not be contrary to the ordinance 1974. Admittedly, Bihar Secondary Education Board Ordinance 1974 does not confer any power to Sub Divisional Education Officer, Madhepura to give approval of appointment of the Managing Committee and in this case, admittedly, Sub Divisional Education Officer, Madhepura gave approval of service of the petitioner till the decision of the board under rules 1972 which was prevalent prior to coming into force of Bihar Secondary Education Board Ordinance 1974. The Bihar Secondary Education Board Ordinance 1974 says that a board shall be established by the State Government from the date of publication of ordinance in gazette and admittedly, the Bihar Secondary Education Board Ordinance 1974 was published in official gazette on 21-05-1974 but there is nothing on the record to show that when the board was constituted. The Bihar Secondary Education Board Ordinance 1974 says that a board shall be established by the State Government from the date of publication of ordinance in gazette and admittedly, the Bihar Secondary Education Board Ordinance 1974 was published in official gazette on 21-05-1974 but there is nothing on the record to show that when the board was constituted. Furthermore, Ordinance 1974 prohibits procedure for appointment of teachers in the recognized schools and rule 43 of the aforesaid ordinance says that if, any vacancy of principal or teacher arises in a recognized school, the Managing Committee of the said school shall notify the aforesaid vacancy and send the request to District Education Officer for filling up the aforesaid vacancy and, thereafter, the District Education Officer will request the Regional Education Director for recommendation of the names of proper candidates for appointment on the vacant post and, therefore, in my view, Clause 64(3) of the ordinance, 1974 does not give any benefit to the petitioner because Ordinance 1974 did not adopt the procedure of appointment of teachers as given in the rules, 1972. 8. It is the stand of the State that the petitioner was appointed on the post of Assistant Teacher vide Memo No. 7712-17 dated 29-11-1975 and he was posted at Asthma, district-Bhagalpur, which is evident from Annexure-3 to the writ petition but subsequently, at the request of Managing Committee of Ras Bihari High School, Madhepura as well as Sub Divisional Education Officer, Madhepura, the board modified its previous order and posted the petitioner at Ras Bihari High School, Madhepura vide order dated 13-07-1976 which is evident from perusal of Annexure-6 of the writ petition and, thereafter, the petitioner joined his post. The service book of the petitioner reveals that his salary was stopped from 01-01-1976 to 01-08-1976 and again, he started getting salary from 02-08-1976. Therefore, it is apparent from the aforesaid fact that the petitioner started getting salary from 02-08-1976 after issuance of Memo No. 28222-28 dated 13-07-1976. Therefore, it is apparent that there was break in service of the petitioner and his fresh appointment was made and, therefore, he joined on 02-08-1976. Therefore, it is apparent from the aforesaid fact that the petitioner started getting salary from 02-08-1976 after issuance of Memo No. 28222-28 dated 13-07-1976. Therefore, it is apparent that there was break in service of the petitioner and his fresh appointment was made and, therefore, he joined on 02-08-1976. Therefore, I am unable to accept the contention of learned counsel for the petitioner that no fresh appointment of the petitioner was made because after coming into force of Ordinance 1974, the fresh appointment of the petitioner was made by the concerned board according to rules of appointment, prescribed in the Ordinance 1974 and thereafter, the petitioner was permitted to withdraw his salary from 02-08-1976 and, therefore, I am of the view that the concerned respondents rightly treated the date of appointment and joining of the petitioner as on 02-08-1976 and decided to, give retirement benefit to the petitioner from the aforesaid date. 9. On the basis of aforesaid discussions, I do not find any force in this writ petition and, accordingly, this writ petition stands dismissed. However, it is made clear that the concerned respondents must clear the admitted dues of the petitioner within three months from the date of receipt/production of copy of this order, if the same has not been cleared as yet. ?