Patna High Court - Orders
Smt.Rani Kumari vs The State Of Bihar & Ors on 29 April, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15617 of 2010
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Smt.Rani Kumari D/o Chandeshwar Prasad Singh, R/o Vill-Manjhaulia-
Estate, P.S.Bathnaha, Distt-Sitamarhi, At Present Assistant Teacher , Neena
Sinha, Project Girls High School, Majhaulia Estate, Sitamarhi.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The Principal Secretary, Department of Human Resource Development
Government of Bihar, Vikash Bhawan, Patna
3. The Director, Secondary Education, Intermediate Council Building
Budhmarg, Patna1
4. The Regional Deputy Director of Education, Tirhut Division
Muzaffarpur
5. The District Education Officer, Sitamarhi.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Bishnu Kant Dubey, Adv.
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 29-04-2014Heard learned counsel for the petitioner and the State.
In the present petition, petitioner is seeking relief of quashing the Office order contained in Memo No. 237 dated 11th May 2010 issued under the signature of Director, Secondary Education whereby the representation of the petitioner for recognition of her services as Assistant Teacher, Neena Sinha Project Girls High School, Manjhaulia Estate, Sitamarhi (in short, the „School‟) has been rejected on the ground that petitioner was appointed below age and also for quashing Office Order contained in Memo No. 579 dated 22nd July 2008 issued under the signature of Director, Secondary Education whereby and Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 2/11 whereunder claim of the petitioner for recognition of her services as Assistant Teacher of the School was rejected on the ground of having been appointed by the Managing Committee below the minimum age fixed for appointment and also for giving direction for payment of salary in terms of Letter No. 142 dated 4th February 1989 as services of similarly situated persons have been recognized and, accordingly, they were paid their salary.
The School in question was established in the year 1980. As per the scheme of the Government, it was decided to open 200 Girls High Schools during the financial year 1984-85 in different Blocks in the State of Bihar which are called Project Girls School and for that in the first phase 75 Schools were identified, selected and declared Project Girls School, thereafter rest 225 Schools were to identified for Project Girls School in terms of letter vide letter No. 142 dated 23rd February 1985 by the 3-Man Committee constituted by State of Bihar.
The dispute arose with respect to condition of service and recognition of teacher of school. To resolve the dispute the matter placed before Full bench Project Uchcha Vidyalaya Sikshak Sangh Vs. State 2000(1) P.L.J.R. 287 (F.B.) This Court in the Full Bench decided different issues, including the persons who were working in the said School were Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 3/11 found to have been appointed by the Managing Committee below age prescribed by the State. The Court took the view, if the persons continued for such long period, it will be inequitable to expel them from service. The order of this Court was challenged before the Hon‟ble Supreme Court in the case of State of Bihar and others v. Project Uchcha Vidya, Shikshak Sangh and others, reported in (2006)2 SCC 545 and the judgment given by the Full Bench was affirmed and the Hon‟ble Supreme Court directed for constitution of 3-Man Committee for the purpose of screening the status and employees of the School. The Committee inspected the School in question where the petitioner vide Memo No. 579-P dated 22nd July 2008 (Annexure-6) was found to have been appointed by the Managing Committee below the minimum age fixed for appointment of teacher and along with two others, their cases were rejected.
In the said letter, liberty was given to her to file representation to the Director, Secondary Education. In pursuance of liberty petitioner filed a representation for recognition of her services but the Director, vide his letter No. 237 dated 11th May 2010 (Annexure-8) rejected the claim of petitioner reiterating the same ground of being below age at the time of appointment by the Managing Committee.
Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-20144/11
There is no dispute that on the day of appointment, petitioner was under age but it is also not in dispute that she continued to discharge her duties for 28 years without any interruption. This Court in the Full Bench has considered this aspect of the matter and has taken a view that when a person though appointed underage, it will be very hard to terminate her/his services after lapse of very long period. It will be relevant to quote para-22 of the judgment which is as follows:
22. That apart, this cannot be denied that at the time of initial appointment of these petitioners, there was no statutory rule or circular to prescribe the upper qualifying age for appointment of a teacher in privately managed school. It would also appear that the State Government while taking over the management and control of other privately managed schools under the provisions of the Bihar Non-
Government Secondary Schools (Taking over of Management & Control) Act, 1980, had granted age relaxation to the teachers and non-teaching staff of these schools up to the age of 35 years. Therefore, although the relevant circular of the State Government, whereby the maximum age was relaxed Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 5/11 to 35 years for the teaching and non-teaching staff of the Non-Government Secondary Schools, is not applicable to the teaching and non- teaching employees of the Project Schools as already held above but having regard to the facts that they have continued uninterruptedly for several years, it would be in fact too hard to reject their claim at such a belated stage simply because some of them had crossed the age of 31 years at the time of initial appointment by the Managing Committee before the take over of the schools as Project School. I am, therefore, of the view that in the background of the facts stated above, such petitioners are also entitled for the regularization/ recognition of their services against the posts within the aforementioned staffing pattern.
In another case, in the case of State of Bihar v. Birendra Kumar reported in 2011(3) PLJR 18 where the Court was considering somewhat identical issue of appointment of a person underage and the same has been treated to be an irregular appointment and not illegal appointment. It will be apt to quote Para-10 and 11 of the judgment which are as follows: Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 6/11
"10. Normally, in a case of this nature after noticing that there was an allegation of respondent- writ petitioner obtaining his appointment on a forged matriculation certificate, we could have still allowed the Appellant-State to initiate a regular departmental proceeding but then what has really weighed upon us in not giving such liberty is that not only such opportunity given earlier in the year 2000 in L.P.A. No1049 of 2000 to the State and its official was squandered and wasted but also because respondent-writ petitioner even otherwise is armed with a matriculation certificate showing his date of birth as 30.6.1974 while declaring him to have passed his matriculation examination in the year 1988 vide Annexure-17 to the writ application. This matriculation certificate in course of enquiry has been found to be genuine even in the latest report of Bihar School Examination Board and therefore if the respondent-writ petitioner had a valid matriculation certificate at the time of his appointment, the only allegation of the appellants that on such matriculation certificate the respondent- Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 7/11 writ petitioner could not have been appointed in the year 1990 as he was only 16 years and 2 months on the date of his appointment would at best be a mere irregularity in his appointment for which he could not be proceeded and punished in 2009. Moreover it can also be not said with certainty and conviction that the appellant-writ petitioner was appointed on the basis of the forged matriculation certificate produced by the writ petitioner and not the other matriculation certificate which was found to be genuine and correct by the Bihar School Examination Board. As a matter of fact the Director, Secondary Education for this very reason in his detailed order dated 4.8.2008 while setting aside the order of termination dated 15.4.2007 had gone to hold that the appointment of the writ petitioner was based on a valid and genuine matriculation certificate.
11. One thing however which needs to be clarified here is that on the strength of the matriculation certificate as per Annexure-17 recording the date of birth of the Respondent writ petitioner as 30.6.1974 on the basis of which he Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 8/11 claims to have been appointed despite being a minor, he can continue in service for a maximum span of 42 years and therefore if he had taken advantage by entering in service before attaining 18 years of his age he has to be made to superannuate on completion of maximum 42 years of permissible Government service as per the policy decision of the State Government of the year 1998, also approved by a Full Bench judgment of this Court in the case of Ragiawa Narayan Mishra vs. Bihar Rajya Khadi Gramoudyog Board and Others reported in 2006(1) P.L.J.R. 410, even though he will not be completing 60 years of age i.e. the age of normal superannuation of a clerk in a secondary school governed by Bihar Shiksha Anusachivia Niyamabali, 1974."
In that judgment this Court has taken a view that appointment of persons at the age of 16 years and 2 months could best be a mere irregularity for which he could not have been proceeded and punished in 2009. The Court has taken a view that no person can be allowed to work for more than 42 years and the Court treated the first date of entry as „18 years‟. Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 9/11 Accordingly petitioner will not be allowed to work for more than 42 years and thereafter will be deemed to have superannuated from service.
In another judgment in CWJC No. 18440 of 2010 (State of Bihar v. Birendra Kumar) this Court has considered the aforesaid judgment and after due consideration has taken a view that after 30 years of service it will not be equitable to terminate the services of the petitioner on account of the fact that at the time of entry, she was below the minimum age of 18 years and that view has been affirmed by the Division Bench.
Counsel for the petitioner has submitted that though petitioner was underage at the time of entry i.e. first entry at the age of 15 years, at best on the day of recognition she would be treated to be 18 years. He has further submitted that petitioner on the day of first identification of the School for declaring as Project Girls School in the year 1985 had already completed 18 years of age. He further submitted that though the school was identified in the year 1985 but as per policy of the State every employee of the Project School will be paid salary with effect from 1989 and if 1989 will be taken, then certainly she had completed 18 years of service much earlioer.
Counsel for the State has relied on the Circular with Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-2014 10/11 regard to teachers of nationalized Schools which were taken over by the Government of Bihar, vide Non-Government Secondary Schools Taking over Management and Control Act 1981 and relying on Rule 6 where the minimum age for appointment of teachers has been provided ‟21 years‟. The Rule is not applicable with regard to teaching and non-teaching employees of the Project Schools and as such, argument of the State is rejected.
This Court in CWJC No. 19930 of 2012 (Rekha Kumari v. State of Bihar) had the occasion to consider this issue where this Court has given the view that even persons who have been appointed by the Managing Committee underage cannot be thrown out and it will be a travesty of justice that her service will not be recognized by the respondents after lapse of such a long period even though she appointed below the age of 18 years.
In such view of the matter, the letter contained in Memo No. 579 dated 22nd July 2008 and Memo No. 237 dated 11th May 2010 are hereby quashed and the writ petition is allowed but with a condition that her entry in service will be treated at the age of 18 years and she will superannuate e from service on reaching the age of superannuation as other employees and she will not be allowed to change her stand with respect to her age.
Patna High Court CWJC No.15617 of 2010 (5) dt.29-04-201411/11
With this observation/direction this petition is allowed.
Jay/- (Shivaji Pandey, J)