Patna High Court - Orders
Shashi Nath Tiwary vs State Of Bihar & Ors on 6 July, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.4398 of 1996
SHASHI NATH TIWARY son of Sri Jagnnath Tiwary,
resident of village, P.O. and P.S. Dumraon, District-Buxar.
Versus
1.The STATE OF BIHAR.
2.The Commissioner, Education, Bihar Patna.
3.The Under Secretary Govt. of Bihar, Patna.
4.The Special Director, Secondary Education, Bihar Patna.
5.Sanskrit Siksha Board through its Secretary, Patna.
6.The Chairman, Sanskrit Shiksha Board, Patna.
7.The Headmaster, Dumraon Raj Prayag Sanskrit High School
Dumraon P.S. Dumraon, District-Buxar.
8.Shri Sidha Nath Kumar
9.Dr. Janardan Dwibedi
Sons of not known.
10.Shri Prabhu Narain Pandey,
Respondent nos. 8 to 10 are Teachers of Dumraon Raj Prayag
Sanskrit High School at Dumraon P.O. and P.S. Dumraon,
District Buxar.
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For the petitioner : Mr. Rajesh Kumar Pandey, Advocate.
For the State : Mr. S.P. Tripathy, S.C. VI.
For the Board : Mr. A.P. Sinha, Advocate.
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7 06.07.2010Heard the parties.
Prayer of the petitioner in this writ application reads as follows:-
"(a)That this application is being filed for issuance of writ in the nature of certiorari quashing the order contained in letter no.89/96 dated 1.2.96 issued by Respondent Headmaster.
(b)That the petitioner also prayed for issuance of a writ in the nature of certiorari quashing the order contained in Memo No.1132 dated 19.12.95 issued by Respondent Under Secretary in which it has been mentioned that the post of Science Teacher has automatically abolished after issuance of the Ordinance in the year 1989."2
Counsel for the petitioner in support of the aforementioned prayers would submit that the impugned order passed by the Under Secretary to the Government of Bihar in the Education Department dated 14th December, 1995 and the consequential order is patently unsustainable because if the Ordinance No.32 of 1989 and its replacement ordinances remaining in force from 18.12.1989 to 30.4.1992 had stood repeated on account of further promogulation of ordinance w.e.f. 1.5.92 there could be no question of adhering to its schedule regarding number of post of teachers as contained in the Ordinance. He would further submit that the decision communicated by the Under Secretary in the order dated 14th December, 1995 seeking to abolish the post of Science Teacher as a whole of all these 429 Sanskrit Schools is also illegal and in fact cannot be given retrospective effect w.e.f. 18.12.1989, specially when such posts of Science Teachers in the School in question was sanctioned by specific orders in terms of the earlier staffing pattern dated 29.6.1981, after making full enquiry and was also backed by the collective decision of the Board and the State Government.
No counter affidavit has been filed either by the State Govt. or the Board in this case despite expiry of a period of fourteen years from the date of filing of this writ petition.
In the considered opinion of this Court, the so called disputes between the petitioner and the School in question stands 3 settled by the earlier judgment of this Court dated 6th December, 1995 in C.W.J.C. No. 622 of 1995. Such judgment being inter- party judgment and having acquired finality, the respondents cannot take any stand against the petitioner so far it relates to his continuation in service and/or his payment of salary. In fact, this Court by a well considered judgment in C.W.J.C. No.622 of 1995 has already held that the post of Science Teacher of the School of the petitioner would continue and the petitioner would be entitled for payment of salary and to that extent the following finding conclusion of the interparte order dated 6.12.1995 in C.W.J.C. No. 622 of 1995 would bind the Respondents:-
"....... This Court on perusal of the order passed by a learned Single Judge on 3rd May, 1995 in C.W.J.C. No. 1117 of 1994 has found that after the expiry of the Ordinance on 30th April, 1992, the whole staffing pattern as laid down in the resolution of the State Government dated 29th June, 1981 would be deemed to be revived. It is also noted in that judgment that in the said resolution there is provision for creation of additional post of Science teacher in the schools where permission of Science teaching has been granted. the relevant portion of the said judgment containing the aforesaid finding is set out below:
"However the Ordinance expired on 30.4.1992. By reason of the expiry of the Ordinance, the whole staffing pattern as laid down in the resolution of the State Government dated 29.6.1981 would be deemed to have revived. The said resolution provides for creation of additional post of Science teaching has been granted.4
A division Bench of this Court in the case of Subhash Chandra and others Vs. State of Bihar reported in 1994(2) P.L.J.R. page 359 has stated in categorical terms as follows:-
"Despite lapse of Ordinance by efflux of time the petitioners would be entitled to their salary which they have been getting prior to promulgation of Ordinance;"
The aforesaid observation also supports the contention of the petitioner that after promulgation of Ordinance, the impugned order omitting his name from the list of approved teachers of the said School, disentitling him from the salary, is wholly bad in law and is without jurisdiction. Apart from the aforesaid finding, this Court is also of the view that after the expiry of the Ordinance, respondent no. 3 ceases to have any jurisdiction to pass the impugned order omitting the name of the petitioner from the list of approved teachers. The petitioner is no longer a government servant after the expiry of the Ordinance and as such the said respondent, namely, the Under Secretary, Human Resources Development Department, Government of Bihar, Patna has no jurisdiction in law to pass the impugned order in respect of the teachers of Sanskrit School. The view which I am taking is supported by an un-reported Division Bench judgment of this Court in the case of Rishideo Mishra Vs. State of Bihar (C.W.J.C. No. 1135 of 1993). It is, however, not disputed by any body including the learned counsel for the respondents authorities before me that the obligation of the State Government to pay to the teachers working against the sanctioned post of school in question remains and in terms of the said obligation, 5 the respondents are bound to pay the salary of the petitioner as he was being paid prior to the issuance of the impugned order.
For the discussions aforesaid, this writ petition succeeds and the impugned order in so far as it affects the petitioner's right to be paid his salary as he was being paid prior to the expiry of the Ordinance, is set aside. The petitioner must be treated to be continuing as an approved Science teacher of the said school and must receive his salary as he was receiving till the issuance of the impugned order. This Court accordingly directs the respondent concerned to pay the online arrears of the salary of the petitioner within a period of three months from the date of receipt/production of a copy of this order and his salary on month to month basis, as is being paid to other approved teachers of the said school, must also be paid to the petitioner. This writ petition is thus allowed to the extent indicated above."
That apart, the subsequent general order passed by the State Government on 14.12.1995 in the case of petitioner cannot be made applicable for the reason, that once Ordinance No.32 of 1989 had contemplated taking over Sanskrit Schools with specified number of posts, and that such ordinance had lost its life, if the State had to save those posts as specified in the ordinance it was required to take all these Schools as Government Schools. This question infact is yet to be decided by the Apex Court in the appeal arising out of the judgment in the case of „Subhash Chandra & Ors. Vs. The State of Bihar & Ors.' reported in 6 1994 (2) P.L.J.R. 359.
Thus when it becomes clear that there would be a post of Science Teacher in a duly recognized Sanskrit Schools which was created and sanctioned in terms of the earlier staffing pattern, its natural corollary would be that the petitioner‟s post of Science Teacher could not have been abolished as there is no denial to the fact that such post of Science Teacher was duly created under the specific Government order with prior approval of the Sanskrit Siksha Parishad which was the existing regulatory body before being replaced by the present Bihar Sanskrit Siksha Board.
Thus for all these reasons the impugned order contained in Annexure-10 so far it relates to the petitioner, is hereby quashed and the respondents are directed to ensure that the payment of salary of the petitioner on the basis of his work done and the absentee statement submitted by the Headmaster of the School, must be made to him within a period of three months from the date of receipt/production of a copy of this order.
With the aforementioned observations/directions this application is disposed of.
Abhay Kumar ( Mihir Kumar Jha, J.)