Patna High Court
Smt.Kiran Sinha vs The State Of Bihar & Ors on 7 April, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18615 of 2008
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Smt.Kiran Sinha wife of Shri Birendra Pd. Singh, resident of village -Babhangama,
PS-Riga, District-Sitamarhi at present Assistant Teacher in Shahid Chandranath
Project Girls High School Gorhari, PS-Parihar, District-Sitamarhi.
.... ..... Petitioner/s
Versus
1. The State of Bihar.
2. The Principal Secretary, HRDD, Govt. of Bihar, New Secretariat, Patna.
3. The Director, Secondary Education, Govt. of Bihar, Intermediate Council
Building, Budh Marg, Patna.
4. The District Education Officer, Sitamarhi.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ram Sagar Singh, Adv.
For the Respondent/s : Mr. Kumar Manish, Adv.
Mr. Alok Kumar, Adv
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date: 07-04-2014 The petitioner has died during the pendency of this writ petition, leaving behind four daughters, an interlocutory application, vide I.A. No. 7053 of 2011, has been filed for their substitution, mentioned in paragraph 4 of the said interlocutory application.
Let the name of original petitioner be expunged from this writ petition and in her place, the name of persons mentioned in paragraph 4 of the said interlocutory application be treated to have been substituted and accordingly, this interlocutory application stands disposed of.
This Court is using word „petitioner‟ in place of mother petitioners for its convenience.
Patna High Court CWJC No.18615 of 2008 2/10 Heard learned counsel for the petitioner and learned counsel for the State.
In this case, the petitioner is challenging the Office order no. 581„P‟ dated 22nd July 2008 whereby and whereunder the claim of the petitioner was rejected on the ground of being over-age. In the said letter in terms of clause (ii), liberty was given to file an objection, if any, before the Director, Secondary Education and in pursuance thereof, the petitioner filed representation dated 11th August 2008 (Annexure-8) and the same was rejected vide letter no. 125P dated 19th April 2010 (Annexure-11), reiterating the same ground which has been brought in record vide Interlocutory Application No. 4595 of 2011.
It appears, one Shahid Chandranath Project Girls High School Gorhari, PS-Parihar, District-Samastipur was established where the petitioner was appointed as English Teacher on 25th July 1982 (Annexure-2) and accordingly, she joined there on 2nd August 1982.
The Government of Bihar vide letter no. 108 dated 12th February 1985 (Annexure-3) granted the permission for establishment of the said school, the school was later on selected as a Project school by the State Government, falls in 75 schools. The Government again Patna High Court CWJC No.18615 of 2008 3/10 issued a Circular vide letter no. 142 dated 4th February 1989 mentioned service condition of the teachers of the Project school and also provided, they would be paid salary with effect from 1st January 1989.
It is an undisputed fact that the age of the petitioner on the date of appointment was 33 years and 7 months. It appears that letter dated 22nd May 1993 (Annexure-6) was issued by the Director, Secondary Education and services of the some of the teachers were recognised but the name of the petitioner did not figure and later on, two Notifications were issued vide letter dated 27th March 1996 and 24th June 2008 by which the services of Bibha Kumari and Rama Shankar Sharma were recognised.
Altogether, services of five teachers were recognised but the total strength of sanctioned post was nine and as such, four posts are still lying vacant including English subject on which the petitioner was appointed.
As the petitioner could know that her services was not recognised on account of her over-age, she filed a writ petition vide CWJC No. 6293 of 1993 which was heard along with other cases and the Division Bench disposed of the same vide judgment/order dated 1st May 1995, reported in 1995 (2) PLJR 215 (Kumud Kumari Patna High Court CWJC No.18615 of 2008 4/10 Srivastava and 46 Ors. vs. The State of Bihar and others.). Against that judgment/order, some of the teachers moved before the Hon‟ble Supreme Court and the Hon‟ble Supreme Court remanded back the matter and directed that the case of teachers of the Project school be heard by a Full Bench and the same was heard, reported in 2000 (1) PLJR 287 (Project Uchcha Vidyalaya Shikshak Sangh vs. State & ors.) and the petitioner has placed reliance on paragraph 22 of the said judgment. Against that judgment and order, the matter went to the Hon‟ble Supreme, the Hon‟ble Supreme Court did not interfere with the order of the Full Bench and the same was disposed of with a direction to the Chief Secretary to constitute a Three-Man Committee to find out the status of the school as well as of the teachers, reported in 2006 (1) PLJR 483 SC (State of Bihar & ors. v. Project Uchcha Vidyalaya Sikshak Sangh & ors).
The Three-Man Committee submitted its report (Annexure-7) where in paragraph 7, it was found that certain persons who were appointed over-age and certain other persons were appointed under-age, in the case of over-age the Committee sent recommendation for condoning over-age as was done in past. It has been submitted that the Government has condoned case of over age of certain teachers and non-teaching staff in past. It appears that after Patna High Court CWJC No.18615 of 2008 5/10 the said report, the aforesaid two impugned orders were passed by which the case of the petitioners were rejected on the ground of being over-age.
The counsel for the petitioner submits that as per letter dated 4/2/1989 issued by State of Bihar, Human Resources Department (Annexure-4), maximum age for appointment of trained teacher is 31 years and for untrained teacher, maximum age has been provided 30 years. The petitioner was over-age by 3 years and 7 months. He further submits that the petitioner should be given the relief in terms of paragraph 22 of the Full Bench judgment, reported in 2000 (1) PLJR 287 (supra), as this Court in identical cases granted the relief to those persons appointed at over-age and also to those who have died before recognition of service. He has further submitted that in some cases, the Government itself granted the relief of recognition to those who died before recognition and placed reliance on Annexure-20, serial no. 23, whereby services of Sonulal Barnwal died on 28th March 2008, was recognised. He has further submitted that in view of aforesaid facts and circumstances, the petitioner should also be granted the same relief.
It will be appropriate to consider that the petitioner continued to perform duty till her superannuation i.e. 31st January Patna High Court CWJC No.18615 of 2008 6/10 2009 and ultimately she died on 23rd July 2011. He has further submitted that the petitioner should be treated to be recognised with effect from 1st January 1989 and the payment should be made from the aforesaid date till the date of her death including the retiral benefit.
The State, in contra, has submitted that admittedly the petitioner was over-age at the initial appointment and as such, the Director on a valid reason, refused to recognise the services of the petitioner which cannot be held to be bad.
Having considered the rival contentions of the parties, the petitioner was appointed on 25th July 1982 as English Teacher and the school was identified for being taken over on 12th February 1985. Admittedly, the petitioner was over-age by 3 years and 7 months but it is an undisputed fact that she continued to work on the post of teacher and always discharged her duty and ultimately, she died after crossing age of superannuation on 23rd July 2011, though, her date of superannuation was 31st January 2009. The first issue that has to be considered, is the class of persons who were appointed in over-age were entitled to be regularized in service.
An identical issue came for consideration before the Full Bench in Project Uchcha Vidyalaya Shikshak Sangh v. State FB, 2000 (1) PLJR 287 and the Court has specifically dealt with the question in Patna High Court CWJC No.18615 of 2008 7/10 paragraph 22 of this judgment where the issue was raised about the status of the persons who were appointed in over-age but continued to work on the post of teacher quite for long period. The Court has held that the provisions related to the teachers taken over in pursuance of Bihar Non-Government Secondary Schools (Taking over of Management & Control) Act, 1980 cannot be made applicable where the maximum age of appointment has been provided of 35 years. The Court has also taken note that the State has issued a Circular thereby relaxed the upper age for teaching and non-teaching staff of Non- Government Secondary School but it has been held that those were not applicable to the teachers of Project School but considered the fact that teachers having been appointed at the over-age but 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 30 years at the time of initial appointment. It will be relevant to quote paragraph 22 of the said judgment, is as follows:-
Para 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 a privately managed school. It would also appear that the State Patna High Court CWJC No.18615 of 2008 8/10 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 upto the age of 35 years. Therefore, although the relevant circular of the State Government, whereby the maximum age was relaxed 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 regularisation/recognition of their services against the Patna High Court CWJC No.18615 of 2008 9/10 post within the aforementioned staffing pattern."
The aforesaid judgment applies squarely in the present case as has been provided paragraph 22 of the said judgment, this Court holds, in view of aforesaid para the petitioner is also entitled to relief recognition of service. Accordingly petitioner would be treated to have been recognised by the State Government in the service of the Project school, as it is not a case that the petitioner was appointed outside the staffing pattern.
Next question arises as on today, the original petitioner has already died but claimed, she had completed the whole tenure of service and after the age of superannuation she died. As this Court in different judgments has held that on account of the act of the State, the party should not suffer, as it will be travesty of justice to declare that heirs of the original petitioner would not be entitled to any benefit, though in paragraph 22, Full bench judgment has held that the original petitioners will be deemed to have been regularised in service from the date of its take over.
In this view of the matter, heirs of original petitioner would be entitled to the salary from 1st January 1989 to the date of her superannuation but before granting the monetary benefit, the Director of Education Department, Govt. of Bihar will examine the records of Patna High Court CWJC No.18615 of 2008 10/10 the school and will pass the order in favour of substituted petitioners. If it is found to be true that the original petitioner had worked for the whole of the period without any interruption, it goes without saying that heirs of the original petitioners would be entitled to the salary. The heirs of the original petitioner will have liberty to file an appropriate application for retiral dues before the authority concerned and in that circumstances, the retiral dues whatever would be payable to the original petitioner would be paid to her heirs.
Impugned letter no. 581(P) dated 22/7/2008 and letter no. 125(P) dated 19/4/2010 (Annexures-1 and 11) are hereby quashed with respect to petitioner and it will be treated, the original petitioner has been regularised and recognised from the date of her appointment. As the original petitioner has already died, it will be in the interest of justice, the Director, Education Department, Govt. of Bihar would be obliged to pass necessary order within six months from the date of receipt/production of a copy of this order.
Accordingly, this petition is allowed.
(Shivaji Pandey, J) Mahesh/-
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