Patna High Court
Deo Shankar Jha vs The State Of Bihar & Ors on 16 September, 2010
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
C W J C No 216 of 1998
WITH
C W J C No 3314 of 1999
WITH
C W J C No 3457 of 1999
***
In the matter of applications under Article 226 of the Constitution of India.
***
Deo Shankar Jha, son of late Ram Lochan Jha, at present working as
Science Teacher in Saraswati Sadan Sanskrit Uchcha Vidyalaya,
Mounbehat, P S - Manigachi, District - Darbhanga - Petitioner
(In CWJC No 216 of 1998)
1 Rajeshwar Pandey, son of late Nand Kishore Pandey, resident of village
& Post - Kajaria, P S - Rajpur, Dist - Buxar, at present working as an
Assistant Teacher of Primary Section of Prathmik Sah Madhya
Vidyalaya, Kagaria, Dist - Bhojpur
2 Chatarbhuj Pandey, son of Sri Jag Narain Pandey, resident of village
and Post - Kajaria, P S - Rajpur, Dist - Bhojpur, at present working as
an Assistant Teacher in Prathmik Sah Madhya Sanskrit Vidyalaya,
Kajaria, Dist - Bhojpur - Petitioners
(In CWJC No 3314 of 1999)
1 Surya Nand Jha, son of late Ramanand Jha, resident of village -
Dhangari, P O & P S - Bardaha, District - Araria (Assistant Teacher in
Prathmik Unit of Prathmik Sah Madhya Sanskrit Vidyalaya, Dhangari,
District - Araria
2 Kashi Nath Jha, at present resident of Village - Dhangari, P S -
Bardaha, District - Araria, Assistant Teacher in Prathmik unit of
Prathmik Sah Madhya Sanskrit Vidyalaya, Dhangari, District - Araria
- Petitioners
(In C W J C No 3457 of 1999)
V E R S U S
1 The State of Bihar
2 The Secretary, Secondary, Primary and Adult Education Department,
Government of Bihar, New Secretariat, Patna
3 The Special Director (Sanskrit), Secondary, Primary and Adult
Education Department, Government of Bihar, New Secretariat, Patna
4 Bihar Sanskrit Shiksha Board, East Boring Canal Road, Patna through
its Chairman
5 The Secondary, Bihar Sanskrit Shiksha Board, East Boring Canal Road,
Patna - Respondents
(In C W J C No 216 of 1998)
1 The State of Bihar
2 The Commissioner, Human Resources Development Department, New
Secretariat, Patna
2
3 The Additional Deputy Secretary, Human Resources Development
Department, New Secretariat, Patna
4 The Special Director, Secondary, Primary and Sanskrit Education, New
Secretariat, Patna
5 The Chairman, Bihar Sanskrit Shiksha Board, Boring Canal Road, Patna
6 The Bihar Sanskrit Shikshal Board through its Secretary, Bihar Sanskrit
Shiksha Board, Boring Canal Road, Patna - Respondents
(In CWJC No 3314 of 1999)
1 The State of Bihar
2 The Commissioner, Human Resources Development Department, New
Secretariat, Bihar, Patna
3 The Additional Secretary, Human Resources Development Department,
Bihar, Patna
4 The Special Director, Secondary Education, New Secretariat, Bihar,
Patna
5 The Chairman, Bihar Sanskrit Shiksha Board, Boring Canal Road, Patna
6 The Secretary, Bihar Sanskrit Shiksha Board, Boring Canal Road, Patna
- Respondents
(In CWJC No 3457 of 1999)
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For the petitioners : M/s Durga Nand Jha, Purushottam
Jha & Upendr Kr Choubey, Advocates
For the S t a t e : Mr G P V
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P R E S E N T
THE HON'BLE MR JUSTICE NAVANITI PRASAD SINGH Navaniti Prasad Singh, J In all these three writ applications, the question involved is basically the same, based on the same set of historical facts and, as such, have been heard together with consent of parties.
Having heard the parties, in my view, three issues are involved which call for a decision by this Court. Firstly, what is the status of Teachers in Private Government Aided Sanskrit Schools of different standards in the State after the lapse of the Bihar non-Government 3 Sanskrit Schools (Taking over of Management and Control) Ordinance, 1992 which ordinance lapsed without being converted into an Act with effect from 01.05.1992. The second question involved is what is the rate at which payments have to be made to such Teachers after the lapse of the Ordinance and lastly, who are the persons who are to be paid after the lapse of Ordinance.
In order to appreciate these issues, it would first be necessary to point out three time phases which are relevant. The first phase is the period, pre-16.12.1989 when for the first time, the said Ordinance in the shape of Ordinance No 32 of 1989 was promulgated. The second period is the period between 16.12.1989 starting with Ordinance No 32 of 1989 to 01.05.1992 which ended with Ordinance No 26 of 1992 and the third period is post-Ordinance lapsing period.
So far as the first time phase is concerned, that is pre- Ordinance stage, there were 429 Schools which had been picked up by the Government as Government Aided Sanskrit Schools. In these Schools, Government had set down a staffing pattern which was 7 + 2 or 8 + 2. This means that in some Schools, there were sanctioned seven posts of Teachers and two for office staff. In some Schools, where Science teaching was permitted/recognised by the Government, there was one additional Teacher. Thus, there were eight Teachers + two office staff. However, this number could increase depending on School to School by virtue of larger number of students considering which Government used to sanction additional teaching strength. To the extent of these sanctioned posts, Government had fixed the rate of remuneration and based on these 4 calculations, used to remit the money to the Sanskrit Shiksha Board for disbursal to the Schools concerned.
Now we come to the Ordinance period. By the said Ordinance, as referred to above, it was the management and the control of the Schools that were taken over. It is not advisable for this Court to deal in detail about the provisions and the effect of Ordinance as learned counsel agree that the matter is before the Constitution Bench of the Supreme Court from the Division Bench of this Court in the case of Subhash Chandra & Others -Versus- State of Bihar & Another since reported in 1994 (2) PLJR 359.
In the Ordinance period, by virtue of Ordinance, there was a schedule thereto which recognized for each individual School take over. The sanctioned strength which, in some cases, deferred from what was the sanctioned strength prior to Ordinance but as noted above, it is not necessary for this Court to resolve this dispute as the matter is before the Apex Court and secondly, it is not relevant for the present case. Under the Ordinance, the Teachers and the staff of the take over Schools were treated as Government servants and were paid accordingly which was much more than what they were getting in the pre-Ordinance stage.
Now we come to the post-Ordinance period where Ordinances were allowed to lapse and this is the period with which we are concerned. Petitioners' stand is that with the lapse of Ordinance, the status quo ante, as existing on the day of first Ordinance, is to be restored that is status as obtaining on 16.12.1989. Learned counsel for the State and Bihar Sanskrit Shiksha Board submit that on lapse of Ordinance, only 5 those staff, teaching and non-teaching as were recognized by the Ordinance, would continue to be aided but at the rate which would be pre- Ordinance. On the other hand, the learned counsel for the petitioners submits that the position pre-Ordinance would revive in full. It is further elaborated by the learned counsel for the petitioners that the only difference that took place in the Ordinance period was that people who fell within the staffing pattern (Manak Mandal) of the Ordinance were entitled to payment at a higher scale at the Government employee rate whereas the others who were on sanctioned post but beyond the Manak Mandal in fact continued to be paid at the pre-Ordinance rates on basis of grant-in-aid. Post-Ordinance would now be paid as grant-in-aid irrespective of Manak Mandal which lapsed with the Ordinance itself. It is upon consideration of these rival contentions would the three issues, as noted in the beginning, would stand resolved. In my view, the position is not open to debate and stands fully resolved by judgment/order dated 28.04.1997 of the Apex Court in Civil Appeal arising out of SLP (Civil) No 5375 of 1997. This order is Annexure-C to the counter affidavit of the State of Bihar in CWJC No 216 of 1998. By this order, while partly allowing the appeals, Supreme Court has noted various orders that were passed by it and by the High Court. At the cost of repetition, this order was passed on 28th April, 1997. the Supreme Court, in the aforesaid order, held thus :
"... ... ... As regards the post Ordinance period there is no dispute and the salary has to be paid on the basis of the order dated February 13, 1996. ... ... ..."
We do not have to search for order dated 13th February, 6 1996 because in the same order, the Apex Court has quoted the said order, which is the order of the Patna High Court in the contempt proceedings, which is quoted hereunder :
"... ... ... In our view, all the teachers, who have been appointed against sanctioned posts in the schools after following the normal procedure as also the non-teaching staff who were so appointed before the Ordinance of 1989 will be entitled to the payment of salary and allowances at the old scale to which they were entitled, as if the Ordinance was never passed. Even after the lapse of the Ordinance they will be entitled to payment of salary and allowances. During the period the Ordinance was in force the members of the teaching and non-teaching staff who came within the Manak will be entitled to the salary and allowances as Government servant. ... ... ..."
If we read the two orders, the position is crystal clear and leaves no ambiguity. The High Court has clearly held that on lapse of Ordinance, the pre-Ordinance status would revive that is the sanctioned strength and the approved services irrespective of the Manak Mandal as in the Ordinance. Thus both, with regard to Teacher and Science Teacher, the position would stand restored. The position that would emerge is we have to shut our eyes to the Ordinance and deem it that the position, as obtaining before Ordinance, continues. That is the order of the Apex Court.
In my view, learned counsel for the petitioners are correct that during Ordinance period, there were two types of employees, one Manak Mandal and would be entitled to payment at Government rates as Government servant and the other would be persons beyond the Manak Mandal but within the sanctioned strength in respect of pre-Ordinance 7 period who would be paid at the rate of Government grant-in-aid. Once Ordinance lapses then status quo ante is to be restored and everybody would get the payment as per Government grant-in-aid who may be Teachers and Science Teachers.
Two small sub issues arise, one in respect of some posts at the time when the Ordinance came into being they were not sanctioned. They were sanctioned by the State Government subsequently but with retrospective period that is prior to the Ordinance period. Learned counsel for the Board submits that these are invalid sanctions by the Government and are of no effect. I wonder how Board, which is a statutory instrumentality of the State, can take such a stand against the action of the State. Neither the State nor the Board could be permitted to challenge this action at all. State was conscious that it was granting sanction during the Ordinance period and was so granting it from a period prior to the Ordinance. The purpose was simple. The requirement of teaching post being there, Teachers having been appointed pending sanction, sanction takes time. Therefore, once post was sanctioned but had to be sanctioned retrospectively from the time it was applied for taking the view as advanced by the learned counsel for the Board would be like saying that Government was bound to sanction the post but it slept. Ordinance intervened. Now the right of the Teacher, who was on the post for which sanction was to be granted, losses his right. In other words, Government would be saying that I ought to have sanctioned but for my failure to sanction, you have lost your right. All I can say in this regard but only refer to what was said by Chief Justice Chagla in the case of All 8 India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 :
"But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default."
Thus, all those posts, which were sanctioned by the State Government in the period of Ordinance, over and above posts that were already sanctioned prior to Ordinance including those posts which were sanctioned with retrospective effect, would continue to be sanctioned posts for payment and other consequences even after lapse of Ordinance.
The other issue is with regard to the letter of the State Government, as contained in Memo No 966 dated 14.12.1995 (Annexure-
1) to CWJC No 216 of 1998. This letter tries to create a piquant situation.
It states that the Ordinance having recognized in its Manak Mandal, lesser sanctioned post, then what was sanctioned earlier for this 429 Schools, the difference between the two would be deemed to be cancelled post. I may first observe that as I have held above, the Ordinance does not say so as I have held above Ordinance creates two classes of Teachers, one who would continue to get grant-in-aid notwithstanding beyond the sanction (Manak Mandal) of the Ordinance and the other who fell within 9 the Manak Mandal (staffing pattern) of the Ordinance who would get Government rates. There was no question of cancellation of the sanctions. Learned counsel for the State submitted that at least this letter can be taken to be effective prospectively cancelling the post after 14th December, 1995. He states that upto this date, all Teachers whether Science or not, have been paid. Effectively, Science Teachers are to be excluded by operation of this letter. In my view, this letter assumes that the effect of Ordinance was cancellation of sanctioned post beyond the Manak Mandal which in fact is not the intention of the Ordinance. However, I may not be required to deal on this aspect any more as this issue has recently been set at rest by a Division Bench of this Court in the case of The Bihar Sanskrit Shiksha Board -Versus- The State of Bihar & Others (LPA No 656 of 2010) being judgment dated 08.04.2010. In that case, identical issue was involved. A learned Single Judge of this Court had granted similar prayer of that writ petitioner for payment of his salary as a Science Teacher after 1995. State and the Board resisted on basis of this very letter being Memo No 966 dated 14.12.1995. Learned Single Judge held the said letter to be ineffectual and in words of the Division Bench a dead letter as noted in paragraph-8 thereof. If it is a dead letter then nothing more is required to be done but to perform the last rites thereof and forget about it as if that letter never existed. If the letter did not exist then the position would be in view of the judgment of the Division Bench and what I have held earlier that all Science Teachers and all Teachers, whose services were approved being on sanctioned post prior to the Ordinance or whose posts was sanctioned and services 10 approved during the Ordinance period, would be deemed to be Teachers entitled to Government grant-in-aid at the rate that were being paid prior to the Ordinance subject to such increments which may be due.
On similar reasoning, a similar letter of the State Government being issued under Memo No 1056 dated 21.12.1995 which deals with purported cancellation of Primary Teacher posts which were sanctioned by letter No 957 dated 18.11.1989 cannot also stand because the import of this letter is identical to that of the letter dated 14th December, 1995 which the Division Bench has already held to be a dead letter. This letter of 1995 is also a dead letter.
The writ applications are, thus, allowed in the terms indicated above with the issues accordingly decided.
As the writ petitions have been pending before this Court for over a decade, it is expected that the petitioners would be paid their dues at the earliest but not late three months from today.
(Navaniti Prasad Singh) PATNA HIGH COURT, THE 16TH SEPTEMBER, 2010, N A F R, M E HAQUE/