Patna High Court
Shiv Murty Tiwary vs The State Of Bihar & Ors on 5 June, 2014
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15436 of 2008
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Shiv Murty Tiwary, s/o Sri Gobardhan Tripathi, resident of village and P.O.
Barahari, P.S. Karahgar, District Rohtas, at present Assistant Teacher, Baldeo
Sanskrit Uchya Vidhayalaya, Dinara, Rohtas.
.... .... Petitioner/s
Versus
1.The State of Bihar.
2.The Secretary, Department of Primary Education, Government of Bihar, Patna.
3.The Director, Department of Primary Education, Government of Bihar, Patna.
4.Special Director, Secondary Education, Department of Primary, Secondary and
Adult Education, Government of Bihar, Patna.
5.Bihar Sanskrit Shiksha Board, through its Secretary.
6.The Chairman, Bihar Sanskrit Shiksha Board, Patna.
7.The Secretary, Bihar Sanskrit Shiksha Board, Patna.
8.Head master Baldeo Sanskrit High School, Dinara, Rohtas.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : MR. DIN BANDHU SINGH, MR. SANTOSH
KUMAR & MR. SANDIP SINGH.
For the Respondent/s : MR. (GP15) MR. TEJ BAHADUR SINGH
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
ORAL JUDGMENT
Date: 05-06-2014
Heard learned counsel for the parties.
2. Relevant portion of the prayer of the petitioner in
this writ application reads as follows:-
"commanding respondents particularly the
Secretary Bihar Sanskrit Shiksha Board, Patna
to made the payments of arrears of salary since
21.12.1995till to-day to the petitioner for quashing the order dated 02.11.2007 as issued by Kameshwar Pd. Singh, through Gyapank Nos. 6973 dated 03.12.2007 and for issuance of direction for payment of salary month to month basis."
Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 2
3. The facts giving rise to this writ application lie in a narrow compass. The petitioner claims to be working as an assistant teacher in Baldeo Sanskrit High School, Dinara, Rohtas (hereinafter referred to as the School). The School is a private recognized Sanskrit School. According to the petitioner, he was appointed in the School on 01.02.1982 against the post of a teacher of Primary (Prathmik) Unit and his such appointment had also received approval of the Chairman of the Bihar Sanskrit Shiksha Board, Patna (hereinafter referred to as the Board) vide order dated 04.11.1982 but he was not paid his salary from the funds of the State Government by way of grant being released to the School only because the post of teachers in the Primary Unit was not sanctioned by the State Government. It is the case of the petitioner that the Government only on 18.11.1989 had sanctioned two posts for the Primary Unit of the School. The petitioner has also relied on an order of the State Government dated 11.05.1990, whereby and whereunder, as a follow up Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 3 measure of sanction of post, his services were approved with consequential relief of payment of his salary in the matric trained pay scale w.e.f 18.11.1989. According to the petitioner, even this order of the Government dated 11.05.1990 did not ennure to his benefit and his salary was not paid despite the Managing Committee of the School submitting the pay bill of the petitioner from time to time.
4. The further case of the petitioner, is that when his payment of salary was not made, he had moved this Court in C.W.J.C No. 6026 of 2005 which was disposed of along with several other writ petitions, all relating to payment of salary in relation to the recognized Sanskrit Schools. By common order dated 04.04.2007, whereby and whereunder, the Director, Secondary Education was directed to consider the grievance of the petitioner and others. The petitioner, however, had filed his representation to the Secretary to the Board and the Chairman of the Board by his order dated 03.07.2012 had Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 4 disposed of the representation of the petitioner holding that the petitioner would be entitled for payment of salary only for the period from 18.11.1989 to 21.12.1995 because from 21.12.1995 the Government had abolished two post of teachers of the Primary Unit of the School which were earlier sanctioned on 18.11.1989.
5. According to learned counsel for the petitioner, such an order passed by the Chairman of the Board is in teeth of the Government decision as also several judgments of this Court. In this regard, reliance has been placed on an order of this Court dated 25.06.1997 passed in C.W.J.C No. 112 of 1993 (Bindeshwar Nayak vs the State of Bihar & Ors) as also yet another order dated 16.09.2010 passed in C.W.J.C No. 216 of 1998 (Deo Shankar Jha & Anr vs the State of Bihar & Ors and its analogous cases).
6. Learned counsel for the petitioner has also brought on record yet another order of this Court dated 28.03.2011 passed in C.W.J.C No. 12887 of 2008 Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 5 (Janardan Prasad Singh & Anr vs the State of Bihar and Ors), wherein, the ratio of Deo Shankar Jha (supra) was followed.
7. On the basis of all these materials on record, learned counsel for the petitioner has submitted that not only the impugned order passed by the Chairman of the Board depriving the salary to the petitioner after 21.11.1995 is bad but the petitioner as a matter of right will be entitled for payment of salary for the work done from 21.11.1995 to this day as also in future.
8. In this case, a counter affidavit has been filed on behalf of respondent nos. 5, 6 and 7, officials of the Board, wherein, the Secretary to the Board in defence of the impugned order of the Chairman of the Board has explained that the School in question is one of the 429 old recognized Sanskrit Schools in which recognition of the Government is only for the High School and not for the Primary Unit till 18.11.1989. The Secretary to the Board has further explained that the Government decision was Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 6 taken for including the Primary Unit and two post of teachers for 60 such Sanskrit High Schools on 18.11.1989 but then the School was taken over by the State Government by ordinance no. 32 of 1999 w.e.f. 18.12.1989, wherein, the schedule of the post of teachers did not include the teachers of the Primary Unit and for the School in question only seven post of High School teachers were sought to be taken over by the State Government. In this regard, it has also been explained that after the School became again a Private School in view of the lapse of the ordinance w.e.f 01.05.1992, the Government by specific order dated 21.12.1995 had abolished sanction of two post of Primary School teachers vide its earlier order dated 18.11.1989 and as such the Board could have paid salary to the petitioner after abolition of the post. In this regard, reliance has also been placed by the officials of the Board in their counter affidavit on an order of this Court dated 13.02.1996 in M.J.C No. 1206 of 1994 (Sukhdeo Jha and Ors vs the Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 7 State of Bihar and Ors).
9. In the considered opinion of this Court, the payment of salary to the petitioner from the funds of the State Government would depend basically on the Governmental decision, inasmuch as, it was the State Government which had undertaken the liability for payment of salary of the recognized private Sanskrit Schools w.e.f. 01.04.1981. The Government in fact for making payment of salary by way of grant to these recognized Sanskrit Schools had also prescribed a staffing pattern. The School of the petitioner which is an old recognized Sanskrit High School was only for the High School level. In this School, the Primary Unit was sought to be run by the decision of the Managing Committee and therefore, when the appointment of the petitioner was made in the year 1982 and the Managing Committee had sought approval of the service of the petitioner, the Board had made it clear that the question of payment of salary or approval would only arise when the Government would Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 8 sanction the post of the teachers for the Primary Unit. To that extent it would be useful to extract the order of the Board dated 04.11.1982 which reads as follows:-
^^v/;{k] fcgkj laLd`r f'k{kk cksMZ dk dk;kZy;] iVukA dk;kZy; vkns'k iVuk] fnukad 4-11-82 vkns'k la[;k 35@82 v/;{k] fcgkj laLd`r f'k{kk cksMZ ds vkns'kkuqlkj cyns; laLd`r mPp fo|ky; fnukjk AjksgrklA esa izkFkfed bdkbZ dh Lohd`fr ljdkj us vuqjks/k u dh izR;k'kk esa nh tkrh gS rFkk muesa dk;Zjr fuEufyf[kr f'k{kdkas dks vuqeksnu LFkk;h :i ls bu 'krZ ij fn;k tkrk gS fd ljdkj ls Lohd`fr izkIr gksus rFkk osrukuqnku izkIr gksus ij gh osru Hkqxrku fd;k tk;sxkA 1- Jh mek'kadj mik/;k; & e0 f'k0 2- Jh f'koewfrZ frokjh & e0 f'k0 v/;{k ds vkns'k ls g0@& xksfoUnef.k f=ikBh lgk;d lfpo fcgkj laLd`r f'k{kk cksMZ] iVukA Kkikad&xks0 35@92] iVuk] fnukad 4-11-82 izfrfyfi& ea=h] cynso laLd`r mPp fo|ky; fnukjk jksgrkl dks lwpukFkZ ,oa vko';d dk;kZFkZ izsf"krA g0@& vLi"V fcgkj laLd`r f'k{kk cksMZ iVukA** Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 9
10. In view of the above, there would be no difficulty in coming to a conclusion that the Government could not be made liable for payment of salary of the petitioner because there was no sanctioned post for primary teachers of the Primary Unit of the School under the order of the State Government.
11. It is true, that on 18.11.1989, 120 post of teachers for running the Primary Unit in the 60 recognized High Schools were sanctioned in the prescribed pay scale of Rs. 500-860/-. The relevant portion of the Government order dated 18.11.1989 reads as follows:-
^^i=kad 13@nAA- 274@83 e0 la0 fo0 957 fcgkj ljdkj ekuo lalk/ku fodkl foHkkxA izs"kd] Jh ,e0th0 mik/;k;] ljdkj ds voj lfpo] fcgkjA lsok esa] egkys[kkdkj] fcgkj] iks0 fgUuw] jkaphA iVuk] fnukad 18 uoEcj 89 fo"k;& vjktdh; izLohd`r e/; laLd`r fo|ky; esa izkFkfed f'k{kk ds lapkyu gsrq nks nks f'k{kd bdkbZ dk vkoaVuA Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 10 egksn;] funs'kkuqlkj mi;qZDr fo"k; dh vksj vkidk /;ku vkd`"V djrs gq, dguk gS fd laLd`r fo|ky;ksa esa mi;ksx ds fy;s izkFkfed f'k{kk funs'kky; }kjk 1296 f'k{kd bdkbZ Lohd`r gSa rnuqlkj jkT; ljdkj esa layXu lwph esa vafdr dqy 60 AlkBA vjktdh; izLohd`r laLd`r mPp fo|ky;ksa ,oa laLd`r e/; fo|ky;ksa esa izkFkfed f'k{kk ds lapkyu gsrq izR;sd fo|ky; esa f'k{kd dh nks nks bdkbZ Adqy 120 bdkbZA vkns'k fuxZr gksus dh frfFk ls vkoafVr djus dh d`ik dh tk;A 2- bu f'k{kd bdkbZ;ksa dk osrueku 500&860 jgsxkA 3- fo'ks"k funs'kd Aek/;fed f'k{kkA] fcgkj iVuk dh lwfpr dj fn;k x;k gSA fo'oklHkktu g0@& ,u0 th0 cU/kksik/;k;
ljdkj ds voj lfpo] fcgkj Kkikad 957] iVuk] fnukad 18 uoEcj 89**
12. It is not in doubt that in the list of 60 Sanskrit Schools the name of the School of the petitioner also finds place and therefore, there would be no difficulty in coming to a conclusion that when the Special Director, Sanskrit Education by his specific order dated 11.05.1990 had not only approved the services of the petitioner but had also directed for payment of salary w.e.f. 18.11.1989, the petitioner became entitled for payment of salary from Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 11 the funds of the Government in terms of aforementioned order dated 11.05.1990, relevant portion whereof reads as follows:-
ekuo lalk/ku fodkl foHkkx] fcgkjA fo'ks"k funs'kd Aek/;fed f'k{kkA dk dk;kZy; vkns'k
-------------------------------------------------------------------------------------------------- la[;k 13@fo 17&0293@89 ek0la0fo0 jkT;kns'k la0 957 fnukad 18-11-89 ds }kjk cynso laLd`r mPp fo|ky;] fnukjk jksgrkl esa izkFkfed d{kk dk lapkyu gsrq nks izkFkfed bdkbZ dh Lohd`fr ds QyLo:i izkFkfed 'kk[kk esa dk;Zjr lgk;d f'k{kd dh f'koewfrZ frokjh ftudh ;ksX;rk eSfVzd] e/;ek rFkk mi'kkL=h gS dh lsok dk vuqeksnu fd;k tkrk gSA 2- f'k{kd dks eSfVzd izf'kf{kr dk osrueku ns; gksxkA 3- jkT;kns'k la[;k 957 fnukad 18-11-89 ds vuqlkj ;g vuqeksnu frfFk 18-11-89 ls izHkkoh gksxkA 4- ;ksX;rk ,oa vU; lwpuk vkfn esa fHkUurk ik;s tkus ij ;g vuqeksnu jn~n le>k tk;sxkA fo'oklHkktu g0@& jkejkt jke fo'ks"k funs'kd Aek/;fed f'k{kkA Kkikad 313 iVuk] fnukad 11 ebZ 90**
13. At this stage it has to be, however, taken into account that the School of the petitioner with other similarly situated recognized Sanskrit Schools, 429 in all, were taken over by the State Government by ordinance Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 12 no. 32 of 1989. Under the said ordinance there was a provision for making inquiry and issuance of formal order of take over of the services of the teaching/non-teaching employees. There was further provision that till such inquiry was over, the teachers would continue in service but their final absorption in the Government service would be subject to the decision of the State Government. It is also a matter of record that ordinance no. 32 of 1989 was replaced by a series of ordinances but ultimately the last ordinance envisaging take over of 429 Sanskrit Schools lapsed on 30.04.1992, whereafter all these Schools again became private recognized Schools.
14. Thus, the petitioner also w.e.f 01.05.1992 in view of the Government decision dated 18.11.1989 had the justification of keeping his payment of salary alike all other teachers of the high School from the funds of the State Government. To that extent, neither the Government nor the Board can be heard to say that in view of the ordinance no. 32 of 1989 only the high School was taken Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 13 over by the Government for a temporary period of 18.12.1989 to 30.04.1992 and its Primary Unit was not taken over. As a matter of fact, this aspect of the matter relating to payment of salary was gone into at great length by a Division Bench of this Court in the case of Subhash Chandra Jha & Ors vs the State of Bihar and Ors reported in 1994(2) PLJR 359, wherein, it was held that those teachers who were appointed prior to 18.12.1989 and whose services had also been approved will be entitled for payment of their salary irrespective of the take over of the School and its action being reverted to its private recognized School. To that extent, it would be useful to quote paragraph no. 105 and 106 of the aforesaid Division Bench Judgment.
"However, there cannot be any doubt whatsoever that despite lapse of the Ordinance by efflux of time, the petitioners would be entitled to their salary which they have been getting prior to promulgation of Ordinance. However, the petitioners are also entitled to get the salary as Government servant till 31.4.1992 i.e. so long Ordinance No. 14 of 1990 was valid. As indicated hereinbefore that although in the counter affidavit the State has clearly come out with the statement that the petitioners of the writ Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 14 application hold the same position as existed prior to promulgation of the Ordinance on 18.12.1989 and despite assertion to the effect that directions have been issued to Sanskrit Shiksha Board for payment of salary to all teachers who satisfy the requirements thereof, we have been informed that no salary has yet been paid to the petitioners. The assertions of the petitioners if correct and we have been informed that no salary has yet been paid to the petitioners. The assertions of the petitioners if correct and we have no reason to disbelieve the same keeping in view the conduct of the State of Bihar in general and this case in particular, least that can be said is that the action of the State is condemnable.
There is absolutely no justification for non-release of the salary of the teachers who had been getting the same in view of the fact that even according to the State of Bihar they were entitled to the payment of salary in the same manner which was being paid to them when the Ordinance 32 of 1989 did not come into force.
Even so far as teachers for such schools against whom 'Pratikul' reports have been submitted would be entitled to salary in the same manner unless schools are derecognized or some other suitable orders in accordance with law are passed."
15. As a matter of fact, it was on account of the aforementioned observation that the Government had passed a fresh order on 21.12.1995 rescinding its earlier decision dated 18.11.1989 giving approval of the post of Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 15 Primary Teachers including the post of the petitioner. This order dated 21.12.1995, Annexure-A to the counter affidavit reads as follows:-
^^ls0 izk0 fcgkj ljdkj ,oa o;Ld f'k{kk foHkkxA izs"kd] Jh egkdkUr yky ljdkj ds vij lfpo] fcgkjA lsok esa] egkys[kkdkj] fcgkj iks0&fgUuw] jkaphA iVuk] fnukad & fnlEcj 95 fo"k;& 429 dksfV ds laLd`r fo|ky;ksa ds jktdh;dj.k gsrw fnukad 18-12-89 dks ikfjr v/;kns'k dh vuqlwph esa fu/kkZfjr f'k[kdksa ds ekud eaMy ds vfrfjDr Lohd`r izkFkfed f'k{kd bdkbZ dks jn~n djus ds laca/k esaA egk'k;] mi;qZDr fo"k; ds laca/k esa lwfpr djuk gS fd 429 dksfV ds vjktdh; laLd`r fo|ky; ds jktdh;dj.k gsrw ljdkj }kjk fnukad 18-12-89 dks ,d v/;kns'k la[;k 32@89 iz[;kfir fd;k x;k ,oa blds vuqlwph esa fo|ky; okj f'k{kd@f'k{kdsRrj deZpkfj;ksa ds fy, ekud eaMy Hkh fu/kkZfjr fd;k x;k gSA bl v/;kns'k dks ekuuh; mPp U;k;ky; }kjk lh0MCyw0ts0lh0 la0 7399@90 ,oa leq[k ds'kksa esa fnukad 09- 03-94 dks ikfjr vkns'k }kjk oS/k Bgjk;k x;k gSA 2- izklafxd v/;kns'k dh /kkjk&4 ijUrqd esa ;g Li"V :i ls mYys[k fd;k x;k gS fd oSls f'k{kd@f'k{kdsRrj deZpkfj;ksa tks v/;kns'k esa mfYyf[kr ekud eaMy ds vfrfjDr gS] fd Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 16 lsok Lor% lekIr le>h tk;sxhA blls ;g Li"V gS fd v/;kns'k esa mfYyf[kr ekud eaMy ds cgkj iM+us okys f'k{kd@f'k{kdsRrj deZpkfj;ksa dh lsok bl v/;kns'k ds }kjk iz[;kiu dh frfFk ls gh Lor% lekIr gks x;h gSA 3- foHkkxh; Kkikad 957] fnukad 18-11-89 ds }kjk 60 vjktdh; izLrhd`r laLd`r fo|ky;ksa esa izkFkfed 'kk[kk ds lapkyu gsrw izR;sd fo|ky; esa nks&nks bZdkbZ ;kfu dqy 120 izkFkfed bdkbZ Lohd`r gq, FksA bu inksa ij Hkh f'k{kd dk;Zjr Fks] ftudh lsok v/;kns'k ds }kjk fnukad 18-12-89 ls gh Lor% lekIr gks pqdh gSA 4- 429 dksfV ds vjktdh; laLd`r fo|ky;ksa ds jktdhdj.k ds izLrko ij fopkj djrs le; jkT; ljdkj us fofHkUu fo|ky;ksa ds ekud eaMy dh leh{kk dh FkhA leh{kksijkUr 429 dksfV ds fo|ky;ksa ds fy, ekud eaMy dk fu/kkZj.k fd;k x;k gS rFkk ;gh ekud eaMy gh v/;kns'k esa mfYyf[kr fd;s x;sA vr% tks bZdkbZ;ksa ekud eaMy ds ckgj gS os jkT; ljdkj }kjk 18-12-89 ls gh lekIr dj fn;s x;s gSA ijUrq dHkh dHkh ;g iz'u mBk;k tkrk gS fd bu bZdkbZ;ksa dks lekIr ugha fd;k x;k gS D;ksa fd bl laca/k esa jkT; ljdkj dk dksbZ vkns'k ugha gSa vr% bl ifjis{; esa fLFkfr dks Li"V djrs gq, i`Fkd :i ls ,d vkns'k fuxZr fd;k tk jgk gSA fo'oklHkktu g0@& AegkdkUr ykyA ljdkj ds vij lfpo] fcgkj Kkikad&1056 iVuk] fnukad 21&12&95** Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 17
16. From a bare reading of the aforementioned order dated 21.12.1995, it would become clear that the State Government had somehow misconstrued the provisions of the ordinance and the judgment of this Court in the case of Subhash Chandra (supra). There was no question of abolition of the post of teacher in Primary Unit in view of the number of posts specified in the ordinance. There could not have been a worst situation that when the Government itself on 18.11.1989 had sanctioned 120 posts for 60 high Schools for running the Primary Unit in the recognized Sanskrit High Schools, their continuation could have been questioned on the basis of the provision of the ordinance no. 32 of 1989.
17. As a matter of fact, the Government being conscious of running of the Primary Unit in those high Schools had specifically sanctioned 120 posts of teachers after making budgetary allocation from the total number of 1269 posts for the Government Primary Schools. Thus when the last ordinance had expired on 30.04.1992 the Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 18 concept of schedule to the ordinance prescribing only 7 teachers in the School in question had also automatically come to an end. The Government cannot have best of the both world, on the one hand it can take benefit of effect of repeal of temporary statute(ordinance) also by making these Schools once again non governmental private recognized Sanskrit Schools and at the same time limiting the number of post of teachers provided in the schedule to these ordinances which expired on 30.04.1992. It is this aspect of the matter which has been considered by the learned Single Judge in the case of Deo Shankar Jha (supra), relevant portion whereof reads as follows:-
"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 Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 19 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 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 Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 20 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, 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 Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 21 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 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 Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 22 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 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 Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 23 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 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 Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 24 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 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."
(underlining for emphasis)
18. The same view has been taken by this Court also in the case of Janardan Prasad Singh (supra) .
19. This Court therefore cannot approve the order of the State Government dated 21.12.1995 and if that is coming in the way of the petitioner, as has been sought to be projected in the counter affidavit filed by the Board, that must be held to be bad in the light of the decision of this Court in the case of Deo Shankar Jha (supra). Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 25
20. For coming to such conclusion, this Court also gets support from the observation made by the Division Bench of this court in the order dated 13.02.1996 passed in M.J.C No. 1206 of 1994 (Sukhdeo Jha and Ors vs the State of Bihar and Ors). Let it be noted that the case of Sukhdeo Jha (supra) was passed in the contempt petition which arise out of the judgment of the Division Bench of this Court in the case of Subhash Chandra Jha (supra), after making threadbare analysis the whole scenario as with regard to payment of salary, it was held as follows:-
"2. The petitioners herein were teaching and non teaching staff of Sanskrit High Schools, which were taken over by the State under the provisions of the Bihar Non Government Sanskrit Schools (Taking over the Management and Control) Ordinance 1989. The aforesaid ordinance was repromulgated, but ultimately lapsed with effect from 1.4.1992. A question arose what would be the effect of the lapse o the ordinance. This Court heard a batch of writ petitions and disposed of the same by a common judgment and order dated 9.3.1994. The said judgment is reported in 1994 PLJR 359. In the said writ petitions the petitioners had prayed for payment of salary and other emoluments since they were teaching and non teaching staff of such Sanskrit Schools which were taken over under the ordinance. This Court allowed the writ petitions and it was held that the petitioners were entitled to get their salary as government servant till 30.4.1992 so long as the ordinance was in force. Thereafter they became entitled to the payment of salary in the same manner as was being paid to them before the Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 26 promulgation of the ordinance in the year 1989. It is not in dispute that the teaching and non teaching staff of the aforesaid Sanskrit Schools were being paid salary and allowances from out of the grants made by the State of Bihar to the Bihar Sanskrit Shiksha Board. Such salary and allowance were paid uptill 17.12.1989.
3. During the period when the ordinance was in force, the ordinance itself provided the Manak Mandal which is the sanctioned strength of the schools, the management whereof was taken over by the Government. The stand of the State is that under the ordinance only those teachers who come within the sanctioned strength are to be paid the salary and allowances and not others.
4. A question then arises as to who are the persons who are entitled to payment of salary and allowances pursuant to the judgment of this Court. Though the matter is pending before the Supreme Court, and an interim order had initially been passed , the same having been vacated, the judgment of this Court must be given effect. In fact, the Supreme Court has noticed the fact that a contempt proceeding is pending before this Court, and it has been observed that in view of the fact that the interim order has been vacated, the contempt proceeding may continue.
5. The stand of the state is that it has sanctioned the necessary fund for payment of salary and allowance to the teachers. The Board has taken the stand that all the teachers are not entitled to the payment of salary and allowances. The real question, therefore, is as to who are the persons who are entitled to the payment of salary and allowances pursuant to the judgment of this Court.
6. 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 ordinance they will be entitled to payment of salary and Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 27 allowances. During the period the ordinance was in force the members of the teaching and non-teaching staff who came within the Manak Mandal will be entitled to the salary and allowances as Government Servants. The above general rules are subject to the only following exceptions:
(1) Where the school has been derecognized or any additional post sanctioned has been cancelled, the teaching and non-teaching staff of that school or the incumbent of that additional post will not be entitled to the payment of salary under the judgment with effect from the date on which such an order of derecognition or cancellation is passed. In no case such orders be given retrospective effect for depriving the persons concerned of the salary and allowance to which they are entitled. This will be without prejudice to the right of the effected parties, to seek appropriate remedy in accordance with law. We make it clear that in-individual cases, if a court of competent jurisdiction has passed any interim order in the nature of an order of stay, that must be respected by the State.
7. Having clarified the matter, we now expect the state to grant sufficient fund to the Board to make the payment of salary and allowances to the teaching and non-teaching staff of the Sanskrit Schools, who are entitled to their salary and wages. Since the petitioners and others have been waiting for so long for their salaries and wages. Since the petitioners and others have been waiting for so long for their salaries and wages, the opposite parties are directed to pay the arrears of salary and wages within a period of three months from today. However, i.e., the salary for the month of February shall be paid on or before 7th March, 1996."
21. The question therefore, would be that has the Government passed any order specifically cancelling the Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 28 sanction of two post of teachers for each of the Primary Unit of 60 recognized Sanskrit Schools vide its order dated 18.11.1989. The submission of learned counsel for the respondent-Board that the order dated 21.12.1995 has to be read as cancellation of the earlier order dated 18.11.1989 cannot be accepted because the reason given therein is absolutely unjustified. Such order in fact would also be in teeth of the observations made in the Division Bench judgment of this Court in the case of Subhash Chandra (supra), wherein, it was held that it would be in retrospective cancellation of the sanction of the post. Added to it, this Court also cannot read into the said decision dated 21.12.1995 as one abolishing the sanctioned posts from the Primary Units of these recognized Sanskrit Schools.
22. As a matter of fact the Government and the Board in view of the judgment of the Division Bench dated 08.04.2010 in the case of Bihar Sanskrit Shiksha Board vs the State of Bihar and Ors in L.P.A No. 656 of Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 29 2010 and in the case of Deo Shankar Jha (supra) and Janardan Prasad Singh (supra) cannot even contend that the letter dated 21.12.1995 of the State Government would amount to abolition of the post of the Primary Unit. The judgment of the Division Bench and the learned Single Judge has become final and binding.
23. In view of the above, this court will have no difficulty in holding that the order passed by the Chairman of the Board dated 03.12.2007 on remand made by this Court in the earlier writ application filed in this Court is also bad and the same is hereby quashed.
24. Let it be kept in mind that the judgment of the Division Bench of this Court in the case of Subhash Chandra (supra) is still under consideration before the Seven Judge Bench of the Apex Court, wherein, the issue of effect of repeal of temporary statute (ordinance) is under consideration. There is in fact an order of the Apex Court for making payment of salary in terms of the directions given by the Division Bench of this Court in the Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 30 case of Subhash Chandra (supra) and therefore, when it is paying salary to the teachers of other recognized Sanskrit Schools it will be also under obligation to pay the salary of the petitioner where services is still being continued for running of the Primary Unit of the School against two sanctioned post of teachers for also Primary Unit in the School of the petitioner.
25. The case of the petitioner in fact for payment of salary is also fully covered by the order dated 25.06.1997 passed in C.W.J.C No. 112 of 1993 in the case of Bindeshwar Nayak (supra), wherein, also the issue of payment of salary to the teachers of the Primary Unit and similarly situated of Sarvoday Gurukul Sanskrit Uchcha Vidyalaya, Ramruch Nagar, P.S. Bairgania in the district of Sitamarhi was involved. Let it be noted that this order in the case of Bindeshwar Nayak (supra) has become final and the State of Bihar which has not filed its counter affidavit in this case has not even claimed that payment of salary to the teachers of Primary Unit in other recognized Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 31 Sanskrit High School has been stopped.
26. Thus for the reasons indicated above, this Court will have no option but to hold that the petitioner would be entitled for payment of his full salary w.e.f. 21.12.1995 subject to confirmation from the Managing Committee as with regard to continuation of the petitioner in service and discharge of his duty as a teacher in the Primary Unit of the School in question.
27. This Court would, accordingly, direct the State Government to release fund for payment of salary of the petitioner within a period of one month from the date of receipt of this judgment and upon receipt of such fund the D.E.O. Rohtas, the present Drawing and Disbursing Authority must tender payment of such salary to the petitioner on presentation of the pay bills of the petitioner through the Headmaster of the School and on its being verified by the Secretary to the Board in next two months. The entire arrears and current salary as payable to the petitioner must be paid within a total period of three Patna High Court CWJC No.15436 of 2008 dt 05-06-2014 32 months from the date of receipt of this judgment by the concerned authorities.
28. With the aforementioned observation and direction, this application is allowed. There would be, however, no order as to costs.
(Mihir Kumar Jha, J) Patna High Court Dated the 05th June, 2014 A.F.R. Ranjan/-
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