Patna High Court - Orders
The State Of Bihar & Ors vs Rajendra Prasad Singh on 11 December, 2013
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.2029 of 2011
In
Civil Writ Jurisdiction Case No.1173 of 2009
And
Interlocutory Application No.8978 of 2011
In
Letters Patent Appeal No.2029 of 2011
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1. The State of Bihar.
2. The Principal Secretary, Education (Secondary Education), Govt. of
Bihar, Patna.
3. The Director, Secondary Education, Govt. of Bihar, Budha Marg, Patna.
4. The Regional Deputy Director, Education Saran Division at Patna.
5. The District Education Officer, Chapra, Saran.
.... .... Respondents-Appellants
Versus
Rajendra Prasad Singh, son of Bishwanath Singh, resident of Village -
Benout, P.S. - Rasoolpur, District - Saran. At present working as Incharge
Headmaster in Chandra Nayan Project Girls High School, Benout.
.... .... Writ Petitioner- Respondent
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Appearance :
For the Appellants : Mr. Roy Shivaji Nath, A. A. G.-3
Mr. Amarendra Kumar, A.C. to A.A.G.-3
For the Respondent : Mr. Suresh Prasad Singh, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
Patna High Court LPA No.2029 of 2011 (6) dt.11-12-2013
2/8
6 11-12-2013This Appeal under Clause 10 of the Letters Patent is preferred by the respondent-State of Bihar against the order dated 8th September 2011 made by the learned single Judge in CWJC No.1173 of 2009.
The dispute arises from the claim made by the writ petitioner for grant of higher pay scale on completion of 12 years‟ service from 12th February 1985 i.e. from 12th February 1997 pursuant to the order dated 26th June 1998 made by the Regional Deputy Director of Education, Saran Division, Chhapra under the scheme for time bound promotion (hereinafter referred to as the "Scheme") then prevalent in the State of Bihar. The claim has been denied by the State Government on the premise that as the writ petitioner had been conferred the status of a Government servant effective from 1st January 1989, the higher pay scale under the Scheme would be admissible on completion of 12 years from 1st January 1989 and not from 12th February 1985.
As early as in 1981, the Government of Bihar resolved to establish at least 4 High Schools (now known as "Project Schools") in each block during the Sixth Five Year Plan. It was also decided that amongst 4 High Schools, one should be a Girls High School. On perusal of various Circulars issued / orders made in this respect, it appears that the said Project was implemented in several phases. In furtherance of the said Project, under Circular No.108 dated 12th February 1985, some 75 Girls‟ High Schools in 75 Blocks in 27 Districts were identified for taking over as the "Project Girls High Schools". One of the said High Schools was the Chandra Nayan Girls High School, Benout, Block-Ekma, District-Saran. It is the claim of the writ petitioner that he was appointed in the said Chandra Nayan Girls High Patna High Court LPA No.2029 of 2011 (6) dt.11-12-2013 3/8 School, Benout, in 1981 and that the school was taken over as Project School on 12th February 1985. Under the Government Circular dated 30th August 1991 it was decided that the teachers and non-teaching employees be provisionally recognized from the date of their appointment or from the date of taking over, whichever may be the later. The writ petitioner, having been appointed on 27th December 1981 in the school taken over on 12th February 1985, he claims to have been recognized from 12 th February 1985 and claims right as a Government servant from 12 th February 1985.
In furtherance of its decision to establish four High Schools in each block as Project Schools, the Government of Bihar issued a Circular on 2nd August 1989. The said Circular provided, inter alia, that the employees of the Project Schools be recognized from 1st January 1989 for the purpose of salary and other service benefits. In other words all such employees, teaching and non-teaching, were conferred the status of a Government employee with effect from 1st January 1989 for the purpose of salary and other benefits.
The short question that arises for our consideration is which would be the date relevant for the purpose of benefits as a Government servant; the date the school was recognized as a Project School ( in the present case 12th February 1985) or the date determined by the Government for the purpose (1st January 1989).
At the outset, it will be worth noticing that the establishment of the Project Schools or taking over of the schools as Project Schools was not under a legislative enactment or some statutory Rules. The project itself was envisioned by a Government decision and took shape under various Government Patna High Court LPA No.2029 of 2011 (6) dt.11-12-2013 4/8 circulars, orders and letters. As a result, there is no uniformity in implementation of the project and regulation of the Project Schools. There have been inconsistencies and contradictions in the circulars/orders/letters issued by the Government from time to time. There is apparent non-application of mind in respect of various factors involving taking over of the High Schools. As a matter of fact, the phrase „taking over‟ is a misnomer. Without statutory force or mutual agreement, no private High Schools could have been taken over by the State Government without violating Article 300A of the Constitution. In fact, the State Government does not appear to have taken over these schools in lock, stock and barrel as one would understand by the term „taken over‟. What exactly is the intention of the State Government in taking over the High Schools is not reflected in any of the circulars/orders/letters brought to our notice. We may also note that not all the circulars/orders/letters issued in this behalf are before us.
The very project was the subject matter of scrutiny by a Full Bench of this Court in the matter of Project Uchcha Vidyalaya Shikshak Sangh &Ors. Vs. State & Ors. {2000 (1) PLJR 287} and by the Hon‟ble Supreme Court in the matter of State of Bihar & Ors. Vs. Project Uchcha Vidyalaya Shikshak Sangh & Ors. { (2006) (2) SCC 545}.
On perusal of these two judgments, we gather that the aforesaid decision of establishing 4 High Schools in each block was implemented by the State Government over a period of years. The identification of schools under the above referred Circular dated 12th February 1985 was neither the first phase nor the last phase. The process had commenced as early as in 1981.
Patna High Court LPA No.2029 of 2011 (6) dt.11-12-2013 5/8Several schools were identified and taken over as Project High Schools in the financial year 1981-82; several more in 1982-83; and the process went on even beyond 1984-85 up to 1988-89 or even thereafter. Thus, it is evident that not all high schools were identified and taken over as Project Schools on one single day.
We have also noticed that though the State Government has issued several circulars and made orders for implementation of the said project, no uniform policy decision or a specific decision in respect of the employees of such schools and their service conditions was taken by the State Government. The first ever reference we find is in the circular dated 22nd January 1982. It refers to the appointment of Assistant Teachers by the Department and that service of no untrained teacher shall be recognized. But then that circular refers to the new schools to be established under the project. Some provision in respect of the number of teachers in a Project School is found in the Government circular dated 12th October 1982. It also provides for recognition of service of a teacher by the School Services Board, payment of some honorarium to the untrained teachers, the training of untrained teachers and their absorption in the concerned pay scale on acquiring the training and passing the examination. No uniform provisions seem to have been made in respect of the existing teachers in the high schools taken over as a Project Schools, their qualifications, the pay scale, other service conditions and conferment of the status of a Government servant. The said decision has been taken for the first time under the above referred Circular dated 2nd August 1989. In our opinion, the Circular dated 2nd August 1989 being the policy decision of the State Government taken for the first time, it should prevail. It Patna High Court LPA No.2029 of 2011 (6) dt.11-12-2013 6/8 further appears to be just and proper that a common date is adopted for conferment of the benefit of the status of a Government servant uniformly upon all teachers and non-teaching employees of the Project High Schools. If the date of taking over were treated as the relevant date, it would create anomaly to the extent that the different schools having been taken over on different dates, the teachers and non-teaching employees in such schools will be treated differently insofar as the conferment of status of a Government servant is concerned. It is also not in dispute that such teachers and other employees including the writ petitioner have been given the pay scale prevalent in the State Government from 1st January 1989 and not earlier.
In the matter of Project Uchcha Vidyalaya Shikshak Sangh & Ors. (supra), somewhat similar issue had come up for consideration by the Full Bench of this Court. The petitioning teachers therein claimed that the establishment of the Project Schools in different Blocks in different years was one continuous process and that all the teachers in these Project Schools be regulated by one common set of rules. The Court did not agree that the Project High Schools were similar to the schools governed by the Non-Government Secondary Schools which were taken over by the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1980. We have noticed that the circular dated 2nd August 1989 which is under consideration before us, was not brought to the notice of the Full Bench. At the end, the Court disposed of the writ petitions with a direction to the respondent-authorities to examine the claim of the petitioners for recognition/absorption of their services in their respective schools.
Patna High Court LPA No.2029 of 2011 (6) dt.11-12-2013 7/8The above judgment of the Full Bench was the subject matter of challenge before the Hon‟ble Supreme Court. The Hon‟ble Court {(2006) 2 SCC 545} has considered the scheme of the Project Schools and its various facets in great details. The Hon‟ble Court also noticed that the term „take over‟ was loosely used; that there was no uniformity in implementation of the scheme and regulation of the „Project Schools‟. The Hon‟ble Court ultimately left the decision in the hands of the State.
Learned advocate Mr. Suresh Prasad Singh has appeared for the writ petitioner. He has vehemently submitted that many of the teachers mentioned in the above referred order dated 26th June 1998 have received the actual monetary benefits of the higher pay scale from the dates mentioned against their names. The appellant is singled out and is meted discriminatory treatment. The statement is vague and is not accepted.
Mr. Suresh Prasad Singh has also relied upon the common judgment dated 19th September 2011 passed by the learned single Judge in CWJC No.8816 of 2008 and other writ petitions in the same subject matter.
We may note here that in the said judgment, the learned single Judge has followed the judgment of 8th September 2011 impugned herein. It is the grievance of Mr. Suresh Prasad Singh that although a similar direction has been issued in respect of other writ petitioners, the State Government has not preferred appeal whereas in the present case, the State Government has preferred Appeal.
Learned Additional Advocate General Mr. Roy Shivaji Nath has submitted that he is not aware of this judgment Patna High Court LPA No.2029 of 2011 (6) dt.11-12-2013 8/8 dated 19th September 2011, nor he is aware whether the State Government has preferred appeals against the said judgment.
Be that as it may, the said judgment is not a binding precedent.
For the aforesaid reasons, we allow this Appeal. The impugned order dated 8th September 2011 made by the learned single Judge in CWJC no.1173 of 2009 is set aside. CWJC No. 1173 of 2009 is dismissed.
Interlocutory Application No.8978 of 2011 stands disposed of.
(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) AFR Sunil/-