Jharkhand High Court
Drupadi Devi vs State Of Jharkhand & Ors on 9 October, 2009
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2962 of 2007
Draupadi Devi Petitioner
Versus
1. The State of Jharkhand through the Secretary, Department
Of Human Resources Development, Govt. of Jharkhand, Ranchi
2. Director, Secondary Education, Jharkhand, Ranchi
3. District Education Officer, Hazaribagh
4. The Accountant General (A&E), Bihar, Patna
5. Senior Accounts Officer, A.G., Bihar, Patna Respondents
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CORAM: The Hon'ble Mr. Justice D.G.R. Patnaik
For the Petitioner: Mrs. Rashmi Kumar, Advocate
For the Respondents: JC to SC-II and Shri S. Shrivastava, Advocate
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CAV ORDER
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Reserved on: 14.09.2009 Pronounced on: 09.10.2009
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8. 09.10.2009Heard Smt. Rashmi Kumar, learned counsel for the petitioner and JC to SC-II, learned counsel for the respondents.
2. Petitioner's prayer in this writ application:
For quashing the impugned order as contained in P.P.O. No. 017409 dated 15.01.2005 (Anenxure-9), issued by the Respondent No. 4, Whereby family pension payable in the account of the petitioners' deceased husband, has been fixed at Rs. 4,154/-
instead of Rs. 6,375/-, and also for quashing the letter no. PEN 2-1809 dated 7.11.2006 issued by the Respondent No. 5, whereby the petitioner was informed that the period for computation of pension of her deceased husband, has been counted with effect from 21.02.1983 instead of the date of initial induction in service i.e. 29.03.1967.
3. Facts of the petitioner's case:
Petitioner's husband late Sachidanand Singh was initially appointed as an Assistant Teacher in a Public High School, Kuju in the district of Hazaribagh on 17.3.1967.
4. He continued in service of the said school till November 1981. Thereafter, in response to an advertisement for filling up vacancy in the post of Headmaster in Shramic High School Topa, Pindra, Hazaribagh, he applied for and was selected. Upon being appointed, he joined the Shramic High School as Headmaster on 19.11.1981.
Shramic High School, which was private unrecognized school, got Government recognition on and from 20.02.1983. Upon such recognition being granted, the petitioner was confirmed as Headmaster of the school with effect from 20.02.1983, as affirmed by letter-dated 22.10.1984 issued by the Director, Secondary Education, Bihar, Patna.
He remained as Headmaster of Shramic High School, Topa, Pindra till 8.2.1996, where-after he was transferred to High School, Pandra, Dhanbad. He retired on the same post from K.B. High School, Lari, Hazaribagh on 30.06.2004.
5. Petitioner's claim:
2While he was working as an Assistant Teacher in Public High School, Kuju, Hazaribagh, he went on leave without pay from 13.3.1982 to 20.02.1983. However, leave was sanctioned by the District Superintendent of Education, Hazaribagh (Respondent No.
3) vide Memo dated 20.3.1992 (Annexure-3). Later, Sharmic High School, Topa, Pindra, Hazaribagh came to be recognized by the Government on 20.02.1983 i.e. the date of completion of the period of leave. Consequently, the entire period of 36 years of service commencing from his initial appointment as an Assistant Teacher in Public High School, Kuju, Hazaribagh on and from 17.3.1967, till the date of his retirement, he had remained a Government Teacher and he was entitled to pension on the basis of computation of the entire 36 years of service, which according to the petitioner, should be Rs. 6,375/- on the basis of the last pay drawn by her husband.
6. Petitioner's grievance:
Respondents have illegally and arbitrarily omitted to count the period served by the petitioner's husband in the school where he was initially appointed, from 17.3.1967 to 20.02.1983 and have illegally confined the period only from the date Shramik High School, where he was appointed as Headmaster, became a recognized school of the Government, till the date of his retirement.
7. Mrs. Rashmi Kumar, learned counsel for the petitioner, would argue that admittedly, the school where the petitioner's husband was initially appointed, was a Government recognized school and it was during the tenure of his service in the said school, that he was sanctioned leave without pay from 13.03.1982 to 20.02.1983. Thus, the period of leave has to be counted as the period of service under the initial school and since the second school namely, Shramic High School was admittedly recognized on and from 20.02.1983, the petitioner's husband whose service was confirmed as Headmaster of the school, had continued to remain as a Government Teacher without any break in service. Learned counsel argues further that the contention of the respondents that since the petitioner's husband had quit the recognized school and had joined an unrecognized school on 13.03.1982 and, that the school where he had subsequently joined, came to be recognized only on 20.02.1983 and therefore the period from 13.03.1982 to 20.02.1983 spent in an unrecognized school, constitutes a break in service and hence the period of service prior to the date of the recognition of the school on 20.02.1983, was not counted for the purpose of computing pension, as per Rule 103 of the Bihar (Jharkhand) Pension Rules, is totally misconceived and misleading. Learned counsel explains that Rule 103 of Bihar (Jharkhand) Pension Rules though provide that interruption in service of Government servant entail forfeiture of his past service, but this would not be applicable in the case of authorized leave of absence. Since in the present case, leave of absence from 13.3.1982 to 20.02.1983, was duly granted by the Respondent No. 3 who was the competent authority, vide sanction letter dated 23.12.1992 (Annexure-3), the past service of the petitioner's husband cannot be forfeited. Furthermore, by a notification issued by Government of Bihar in the Department of Finance vide Resolution dated 15.11.1982 (Annexure-5), the provision of the earlier Government Resolution dated 31.07.1980 and the provision of Rule 101A of the Bihar Pension Rules were declared as not applicable in 3 respect of teachers, non-teaching staff of Government Middle School, therefore even if there was break in service due to resignation, it will not affect in counting the past service as continuous service for the purpose of computing pension.
Referring to Clause-2 (kha) of the Resolution (Annexure-5) and also to another Resolution dated 18.07.1992 (Annexure-8), learned counsel adds further that the break in service due to resignation is to be neutralized if the break in service during the entire service tenure is not more than two years. Learned counsel argues further that the respondents cannot deny and dispute the leave sanctioned by the Competent Authority since the same was acknowledged and accepted even by the office of the Accountant General who had calculated the Earned Leave of the petitioner's husband for encashment with effect from 2.10.1980 to 21.02.1983 i.e. the date when the petitioner's husband was posted in the first school namely, Public High School, Kuju, Hazaribagh as Assistant Teacher.
8. Counter-affidavit has been filed on behalf of the respondents whereby the entire claim of the petitioner's husband has been denied and disputed. The stand taken by the respondents is as follows:
1. Admittedly, the petitioner's husband had joined as an Assistant Teacher in the Public High School, Kuju, Hazaribagh on 17.3.1967, which was a Government recognized school. He continued in service in the said school till 12.3.1982. Thereafter, he joined the Shramic High School on 13.3.1982, which was an unrecognized school under a private management. Thus, his service in the earlier recognized school was limited up to 12.3.1982.
2. Shramic High School was taken over by the State Government on 21.02.1983 and since then, he was working as Headmaster of the school. His service was recognized as a Government Teacher on and from the date of recognition granted to the school i.e. from 21.02.1983.
3. The period from 13.03.1982 to 20.02.1983 was thus spent by him in an unrecognized school and this period has to be treated as a breakage period in service as a Government Teacher.
4. The purported sanction of the leave for the period from 13.03.1982 to 20.02.1983 cannot be accepted since it was passed by the concerned authority without having jurisdiction and obtained by the petitioner's husband after more than 10 years in 1993, obviously by suppressing the material facts. On the basis of such illegal sanction of leave, the information was conveyed to the office of the Accountant General and pursuant to such wrong information, leave encashment was allowed for the aforesaid period of absence. The leave encashed was not in accordance 4 with the relevant Rules, the same cannot offer any right of claim to the petitioner.
5. Circular no. 636 dated 18.07.1992 (Annexure-8) by which the earlier Circular No. 581/B dated 15.01.1982 has been amended, declares vide clause-2 (ga) that if a teacher gives his joining in an unrecognized Government Secondary School and such school is recognized after joining of the concerned teacher, then the service rendered earlier would not be counted for the purpose of pension.
9. From the rival submissions, the petitioner appears to have relied primarily upon the purported order of sanction of leave granted by the Respondent No. 3 to the petitioner's husband for the period from 13.03.1982 to 20.02.1983 and, upon the Government Circular dated 18.7.1992 (Annexure-8) under which certain modification in the earlier resolution of 1982, was made for condoning the break of service if it does not exceed more than two years and is applicable to such teacher also who had submitted his voluntary resignation.
10. Referring first to the purported order of sanction of leave (Annexure-3) which was issued on 20.3.1993 i.e. after almost 10 years and relates to the period from 13.03.1982 to 20.02.1983 purporting also to the period of absence during the service tenure of the petitioner's husband in Shramik High School, Topa, Pindra, Hazaribagh, it reveals two significant features.
1. It purports to sanction leave from 13.02.1982 to 20.02.1983 i.e. the period when admittedly the school namely, Shramik High School was an unrecognized school.
2. It affirms that the petitioner's husband had joined service in an unrecognized school either on 13.03.1982 or earlier.
3. The sanction of leave does not indicate that the period of service of the teacher was counted with reference to his service in the initial school i.e. the Public High School, Kuju, Hazaribagh.
11. On the face of it, the leave sanction order confirms that the Sanctioning Authority had acted beyond his jurisdiction as because, he could not have sanctioned leave of the teacher in respect of the service rendered in an unrecognized school. It may be noted that the Shramik High School was taken over by the Government on and from 20.02.1983 and prior to that date, the school was an unrecognized school under a private management. It is apparent that the sanction of leave for the aforesaid period was granted without proper verification of the records relating to the service of the petitioner's husband. It is also obvious that on the date when the petitioner's husband had quit the first school and joined the later school, he had not obtained prior permission either by way of leave or otherwise and had joined the second school knowing fully well that the school was a privately managed unrecognized school. The above facts amply demonstrate that the petitioner's husband did not tender his resignation from the first 5 school for the purpose of joining another Government recognized school. Had the second school been also a Government recognized school on the date of his joining and if in the process, there was break in service between the date of his resignation from the earlier school and his joining in the second Government recognized school, then such period could have been condoned as per the revised Government Circular of 1992 (Annexure-8).
The revised Government Circular of 1992 does provide for condonation of break in the period of service of Government servants upto a maximum period of two years for the purpose of computing pension and such benefit has been extended even to such Government servant who had tendered his voluntary resignation resulting in break in service. But clause-2 (ga) of the Circular creates an exception by referring to specific circumstance and declares that where a teacher employed in a Government Middle School during the period of his service, joins in non-Government unrecognized middle school, and if the unrecognized Government school is granted recognition subsequent to the date of his joining, then the break in service will not be condoned and the period of his past service as a Government teacher will not be added for the purpose of computation of his pension.
12. The facts of the case of the petitioner's husband undisputedly invite prohibition as declared in clause-2 (ga) of the Government Circular (Annexure-8). Admittedly, while in service in a Government recognized school, the petitioner's husband discontinued his service in the school and took up his service in an unrecognized school on 13.03.1982. The period till 20.02.1983 i.e. the date on which Government had taken over the second school, constitutes a break in service as a Government teacher which, according to the amended Rules (Annexure-8), disentitles him even from claiming pension of the break- in-period and forfeiture of his past service rendered in the initial school.
It may be noted that interruption in service was on account of the voluntary act of the petitioner's husband and not for the reasons beyond his control and neither did he tender his resignation nor obtain prior approval of the Appointing Authority to join another service. The period from 13.03.1982 to 20.02.1983 cannot be accepted as authorized leave of absence, since there was no valid and legal authorization of such purported leave. The decision of the respondents vide the impugned orders by which the past service rendered by the petitioner's husband in the first school was not counted for the purpose of computation of his pension and by which they refused to condone the period of interruption in service on account of his joining an unrecognized school, is in consonance with the provisions of Rules 103 and 105 of the (Bihar) Jharkhand pension Rules, 1950. I find no error in the impugned order.
13. In the light of the above discussions, I find no merit in this application. Accordingly, this application is dismissed.
(D.G.R. Patnaik, J) Ranjeet/A.F.R.