Patna High Court
The State Of Bihar And Ors vs Smt.Asha Sharma on 18 April, 2019
Equivalent citations: AIRONLINE 2019 PAT 434, 2019 LAB IC 2004, (2019) 2 PAT LJR 724, (2019) 4 SERVLR 864
Author: Anil Kumar Upadhyay
Bench: Ashwani Kumar Singh, Birendra Kumar, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1568 of 2011
In
Civil Writ Jurisdiction Case No.1046 of 2006
======================================================
1. The State of Bihar through the Commissioner-cum-Secretary, Department
of Secondary Education, Human Resources Department, Bihar, Patna.
2. Director, Secondary Education, Bihar, Patna
3. District Education Officer, Muzaffarpur
4. Headmistress, Project Girls High School, PO/PS - Minapur, District
Muzaffarpur
5. Accountant General, Bihar, Birchand Patel Path, Patna
... ... Respondents- Appellant/s
Versus
Smt. Asha Sharma, wfie of Shri Birendra Kumar Sinha, resident of Mohalla -
Majhaulia Road, At/PO/PS/District - Muzaffarpur at present retired
Headmistress Project Balika High School Mahadeoa, PO/PS Minapur in the
district of Muzaffarpur
... ... Petitioner-Respondent/s
======================================================
with
Letters Patent Appeal No. 1681 of 2013
In
Civil Writ Jurisdiction Case No.2638 of 2011
======================================================
1. The State Of Bihar
2. The Principal Secretary, Human Resources Development Department, Govt.
Of Bihar, Patna
3. The Director, Secondary Education, Govt. Of Bihar, Patna
4. The Regional Deputy Director Of Education Tirhut Division, Muzaffarpur,
Bihar
5. The District Education Officer, East Champaran, Bihar
... ... Appellant/s
Versus
1. SMT. RAJBALI DEVI W/o late Haribansh Ram Resident of Village and
P.O. Bairiya, Via P.S. Kesharia, District- East Champaran.
2. The Accountant General Bihar, Patna, Birchand Patel Path, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 3486 of 2008
======================================================
Birendra Narayan Singh, son of Shri Janak Prasad Singh, resident of Village
Saddiha, PS Simri Bakhtiarpur, District Saharsa
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019
2/46
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Human Resources Development
Department, Bihar, Patna
3. The Director, Secondary Education, Bihar, Patna
4. The District Education Officer, Jamui
5. Headmaster, High School, Chuan, Jamui
6. Accountant General (A & E), Bihar, Patna
7. Assistant Accountant General, Office of the Accountant General, Bihar,
Patna
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 13563 of 2006
======================================================
Bhola Prasad S/o Late Shukam Sah, resident of Village Mohammadpur, PO
and PS Kesria, District East Champaran at present retired teacher from High
School, Sahebganj, Muzaffarpur
... ... Petitioner/s
Versus
1. The State of Bihar through its Secretary, Department of Human Resources
Development, Bihar, Patna
2. The Director, Secondary Education, Bihar, Patna
3. The Accountant General, Bihar, Birchand Patel Path, Patna
4. Head Master, High School Sahebganj, District Muzaffarpur
5. Treasury Officer at P.O. /PS/Distt. Muzaffarpur
... ... Respondent/s
======================================================
Appearance :
(In Letters Patent Appeal No. 1568 of 2011)
For the Appellant/s : Mr.Anjani Kumar, AAG 6
Mr. Sarvesh Kumar Singh, AAG 13
Mr. Rajeshwar Singh, GA 10
For the Respondent/s : Mr.Tej Bahadur Singh, Sr. Advocate
(In Letters Patent Appeal No. 1681 of 2013)
For the Appellant/s : Mr.Sarvesh Kumar Singh, AAG 13
Mr. Shakib Ayaz, AC to AAG 13
For the Respondent/s : Mr. Tej Bahadur Singh, Sr. Advocate
(In Civil Writ Jurisdiction Case No. 3486 of 2008)
For the Petitioner/s : Mr.Manish Kumar, Advocate
For the Respondent/s : Mr.
(In Civil Writ Jurisdiction Case No. 13563 of 2006)
For the Petitioner/s : Mr. Tej Bahadur Singh, Sr. Advocate
Dr.M.P.Shukla, Advocate
For the State : Mr.Anjani Kumar, AAG 4
(Respondent nos.1, 2, 4 & 5: Dr. Mankeshwar Tiwary, AC to AAG 3
Mr. Ranjan Kumar, AC to GA 12
For the Accountant General : Mr. Arun Kumar Arun, Advocate
Ms. Subhi, Advocate
======================================================
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019
3/46
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE BIRENDRA KUMAR
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
C A V JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY)
Date : 18-04-2019
LPA No. 1568 of 2011
(1) The Division Bench in this appeal preferred by the
State of Bihar against the judgment of the Single Judge dated
23rd March, 2011, in CWJC No. 1046 of 2006, had noticed
conflicting judgments of two Division Benches - one reported in
2007 (2) PLJR 239 (Shyam Kishore Singh vs. The State of Bihar
& Ors.) and the other in the matter of Madho Sharma vs. the
State of Bihar & Ors. in CWJC No. 15725 of 2010, decided on 5 th
July, 2013 and, on consideration of Government Circulars dated
29th November, 1978 and 30th August, 1980 as well as the Bihar
Non-Government Secondary Schools (Taking Over of Control
and Management) Act, 1981 (hereinafter referred to as "the Act
of 1981") and Bihar Nationalized Secondary Schools (Service
Conditions) Rules, 1983 (hereinafter referred to as "1983
Rules") noted that there are three diverse opinions for
calculating the service for the purposes of pensionary benefits:
(a) to count service from the date of take over treating the non-
teaching employee as government servant (b) counting the
service from the date of grant of recognition of the non-
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019
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government school and (c) reckoning of service from the date of
grant of permission to establish the school.
LPA No. 1681 of 2013
(2) This appeal arises out of the judgment of the
same learned Single Judge, who accepted the contention of the
petitioner that service for the purpose of pensionary benefit
shall be reckoned from the date of grant of permission to
establish the school. Noticing the issue involved in LPA No. 1681
of 2013, the Division Bench referred the same for consideration
before the Full Bench and this was tagged with LPA No. 1568 of
2011.
CWJC NO. 13563 of 2006
(3) This writ petition was heard on different dates
by the learned Single Judge and, vide order dated 21.11.2013,
the learned Single Judge noticing the conflicting Division Bench
decisions directed this case to be listed before a Division
Bench. On 16.06.2014, this writ petition was admitted by the
Division Bench and it was directed to be heard along with LPA
No. 1568 of 2011. As such, the case has been tagged with LPA
No. 1568 of 2011 the subject matter before the Full Bench.
CWJC No. 3486 of 2008
(4) In so far as CWJC No. 3486 of 2008 is
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019
5/46
concerned, this writ petition was heard on different dates. The
learned Single Judge noticing the submission of the learned
counsel for the State that similar matter has been referred to
the Full Bench in LPA No.1568 of 2011, directed the case to be
heard along with LPA No. 1568 of 2011. Thus, CWJC No. 3468 of
2008 has been tagged in this batch of cases.
(5) It would be appropriate to note here that in LPA
No. 1568 of 2011 the reference precisely involves the issue of
counting of service for the purpose of grant of pension to a
teacher retired after the school was taken over under the 1981
Act and the 1983 Service Condition Rules framed thereunder.
Similar is the issue involved in LPA No. 1681 of 2013. But, on a
close scrutiny of the facts of CWJC No. 13563 of 2006 and CWJC
No. 3486 of 2008, it appears that in both the cases the issue
involved is slightly different. In both the writ applications
petitioners have challenged the decision of the Director,
Secondary Education, who rejected the claim of the petitioners
to count service rendered in the previous school in the light of
Resolution No. 636 dated 18.07.1992 whereby the State
Government noticing the abuse of liberalized scheme of
condoning the break in service vide Resolution No. 581 dated
15.01.1982decided to slightly amend the Resolution dated Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 6/46 15.01.1982. In the light of the decision contained in Memo No. 636 dated 18th July, 1992, the claim of the petitioners for counting past service rendered in the previous school was rejected. Of course, while rejecting their claim, one of the reasons assigned was that service rendered before recognition and after grant of permission shall not be counted. Thus, the fundamental issue for deciding the present reference is what should be the cut-off date for counting the service of a teacher whose service was taken over after non-government school was taken over under the scheme of 1981 Act. Prior to 1981 Act, the school was taken over under the scheme of Bihar Non- Government Secondary Education (Taking Over of the Management and Control) Ordinance, 1980. The Ordinance was promulgated on 11th August, 1980. However, the scheme with regard to take over of management and control contained Section 3 came into force from 2nd October, 1980.
(6) Before entering into the Reference it would be appropriate to examine the Law regulating the Secondary Education with emphasis on service condition particularly the right to receive pension. The very first legislative enactment in this regard is Bihar High School (Control, Regulation and Administration) Act, 1960.
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 7/46 (7) Prior to commencement of Bihar High School (Control, Regulation and Administration) Act, 1960, the Bihar Education Code was regulating the administration of the school. The Bihar Education Code was held to be non-statutory by the Constitution Bench of the Apex Court in the case of Dwarka Nath Tiwary vs. State of Bihar [AIR1959 SC 249].
(8) Under the scheme of the 1960 Act, the Board of Secondary Education was constituted. The Board was vested with the power and function necessary for regulating higher education including the power to grant recognition to school imparting instructions in secondary and higher secondary education. Under Section 8 of the 1960 Act, rule making power was vested in the State Government.
(9) After 1960 Act, Bihar Secondary Education Board Ordinance, 1974 was promulgated. Under the scheme of the 1974 Ordinance, District Secondary Education Fund was created. The fund was for the purpose of payment of pay, allowances and also for payment of gratuity, pension and provident fund. Under the scheme of the 1974 Ordinance, there was provision for rule making as well as for framing regulation. By the said 1974 Ordinance, 1960 Act was repealed. In the year 1976, Bihar Secondary Education Board Act was Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 8/46 enacted. For the first time, under the scheme of the 1974 Ordinance, in Section 28, it was provided that prior permission of the Board is essential for setting up secondary school. Section 29 of the 1976 Act retained the scheme of Section 28 of the Ordinance. It was made clear that secondary school cannot be established without prior permission of the Board. Under Section 36, the Board was vested with the power to take over control the management of the secondary education. Section 37 of the Ordinance provides for rule making power of the Board to regulate service condition.
(10) On the line of Section 53 and 59 of 1974 Ordinance, provision was made for creation of secondary education fund and its utilization. Section 57 of the 1976 Act and Section 58 of 1976 Act retained the scheme for constituting District Secondary Education Fund and its utilization. One of the purpose of utilization of the fund was for payment of pension, gratuity and provident fund of headmaster, teachers and other employees of recognized high school.
(11) Though the power to frame rules and regulation was vested with the Board but unfortunately no rule was framed by the Board for enforcement of the scheme of the Act.
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 9/46 (12) In the year 1980 an Ordinance was promulgated for take over of the recognized secondary school. This 1980 Ordinance is the most crucial legislation in the filed of regulating secondary education. The ordinance which was promulgated on 11th August, 1980 was subsequently replaced by the Bihar Non-Government Secondary School (Taking Over of Management) Act, 1981 (Bihar Act No.33 of 1980). The 1981 Act came into force on publication of the official gazette on 24.01.1982. However, the 1981 Act saved the action taken under the 1980 Ordinance vide repeal and saving clause under Section 21.
(13) Under Section 9 of the Act, the power of rule making and regulating service condition was vested with the State Government. The State Government framed 1983 Rules. Under the Act, recognized school was defined under Section 2(6) as recognized by the State Government. The Rule is conspicuously silent on the issue of pension to the teachers and non-teaching employees and entitlement of pension. The Rule is also silent on the point as to what should be the reckoning date of counting of service of teachers on taker over their service.
(14) The effect of take over is envisaged under the Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 10/46 Ordinance as well as the Act in as much as on take over under Section 4(2) service of all teachers and other employees stands transferred to the State Government and, thereafter, they be deemed to be State Government employees on the posts which they were holding. At this stage, it would be appropriate to refer that under 1974 Ordinance and 1976 Act, the power to grant recognition was vested with the Board and only in 1983 when the Rules were framed under Section 9 of the Bihar State Non-Government Schools (Taking Over Control and Management) Act, the power to grant recognition was vested with the State Government. It may not be out of place to mention here that under the scheme of 1960 Act also the Board of Secondary Education was vested with the power to recognize secondary or higher secondary school.
(15) Service condition is a very wide connotation and it include all the conditions of service before entry to post retiral benefits. The scheme of pension for teaching and non- teaching employee was introduced by the State Government as social security scheme right from 1st April, 1962.
(16) It appears that the State Government in order to wheel ahead the social security measures in furtherance of social welfare scheme framed scheme for grant Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 11/46 of pension. So far as the State Government employees are concerned, Pension Rules have been framed in 1950 and noticing the hardship, pension and family pension schemes were liberalized and various notifications, resolution and direction have been issued to make effective the scheme of pension and family pension. The benefit of pension was extended even to private sector. In the matter of private schools, Bihar Non-government School Employees' Provident Fund, Insurance, Pension (Triple Benefit Scheme) Rules was framed to extend the triple benefit scheme to the employees of recognized non-government school whether controlled by local bodies or private management. The benefit was extended to all primary schools, middle schools and such secondary schools including Sarvodaya multipurpose higher secondary school or such other schools as the State Government from time to time declared. Under rule -5 of the 1964 Rules, scheme for provident fund was incorporated. Rule- 6 takes care of insurance and pension and gratuity were also provided under Chapter-V of the said Rules. Pension was admissible to an employee on completion of ten years, gratuity was admissible on completion of five years of qualifying service. Calculation of pension was formulated under Rule-20 on completion of Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 12/46 qualifying service indicated therein. Rule-18 of the Rules is indicative of the fact that officiating service of employee when followed by permanency was entitled to count full service. Exclusion of counting service was enumerated in Rule-19, which is relevant for the purpose of deciding the present case and is reproduced hereinbelow for ready reference:-
"19. No claim to pension shall be admitted in the following cases:-
(a) When an employee is appointed for a limited time only, or for a special duty;
on the completion of which he is to be discharged.
(b) When an employee is appointed temporarily.
(c) When an employee is appointed part-
time.
(d) When an employee is dismissed or removed for misconduct, insolvency or inefficiency."
(17) This Rules was framed and notified on 4th September, 1964. The State Government noticing the purpose of benevolent scheme issued the notification for the benefit of employees of the non-government schools. The benefit was made available with effect from 1st April, 1962. Section -4 of the said Rules is relevant for the purpose of the present case and is quoted below :-
"4. (1) In these rules, unless there is anything repugnant in the subject or context:
(a) "Controlling Authority" means -
1. Inspectress of Schools in respect of all Girls Secondary Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 13/46 Schools;
2. District Education Officer in respect of the rest;
3. Any other officer declared by the State Government in that behalf.
(b) "School:" means a recognized elementary or secondary school;
(c) "Elementary School" means a non-Government primary or middle school or a junior basic or senior basic school recognized under rules framed by Government;
(d) "Secondary School" means a recognized school, now owned or managed by Government, imparting instruction in secondary or higher secondary education;
(e) "Employer' means the management running a school and includes its duly appointed representative;
(f) "Employees" means a whole-time employee belonging to the teaching or ministerial staff of a school who has been duly appointed;
(g) "Family" means the subscriber's wife or husband, legitimate children and step children, parents, sisters and brothers residing with and wholly dependent on him;
(h) "Government" means the Government of Bihar;
(i) "Insurance Company" means Life Insurance Corporation of India;
(j) "Emoluments" means the pay (including special pay, officiating pay and teaching allowances) to which an employee is entitled by virtue of the length of his service in the time-scale prescribed by Government;
(k) "Leave" means any variety of leave granted under rules approved by the State Government;
(l) "Year" means a financial year;
(m) "Local Body" means a duly constituted local authority and recognized by Government as such;
(n) "Management" means a person or body of persons, a local body, a Registered Association, a Managing Committee or Committees maintaining one or more schools registered and or recognized as such by the Government;
(o) "Proprietary" School means a school, the entire Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 14/46 financial responsibility of the running of which is borne by a private individual, a group of private individuals, a trust, an association or a corporate body;
(p) "Policy" means an Insurance Policy taken by an employee in the Life Insurance Corporation of India;
(q) "Pension" means the pension payable to an employee under these rules and includes a gratuity;
(r) "Salary" means the amount drawn monthly by an employee as -
(i)The pay, other than special pay or teaching allowances granted in view of his personal qualifications which has been sanctioned for a post held by him substantively or in an officiating capacity;
(ii) Special pay and personal pay; and
(iii) Any other recurring emolument which may be specially classed as salary by Government.
(s) "Subscriber' means an employee who is required or permitted to subscribe to the Contributory Provident Fund and has been subscribing thereto.
(2) All words and expressions, used in these rules and not defined in these rules but defined in the Bihar Contributory Provident Fund Rules, 1941, the Bihar Education Code or the Bihar Service Code shall respectively have the same meaning as assigned to them in those Rules or Codes."
(18) As indicated hereinabove, under 1974 Ordinance, scheme was formulated for constituting District Secondary Education Fund and one of the objectives of the fund was to grant pension, gratuity etc. from the said fund. However, the 1974 Ordinance or 1976 Act has not in any Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 15/46 manner diluted the triple benefit scheme available to teaching and non-teaching employees of Private Secondary Schools.
(19) The next decision of the State Government which has direct bearing on this case is the decision dated 1.3.1977 whereby the Secondary Education Board issued letter no. 6764-6829 and circulated the same to all the District Education Officers, Sub Divisional Education Officers and District Inspectors of Schools informing them the decision of the Board in relation to recognition of service of the teachers appointed from the date of grant of permission to the date of permanent recognition. The letter dated 1.3.1977 is the most important decision of the Board in the matter of recognizing the service of the teachers and has direct bearing in the matter of adjudication of the present reference and as such the same is quoted below for ready reference:-
i=kad & 674+6 & 6829 fnukad 1&3&1977 izs"kd & Jh e`R;qat; >k] lfpo] fcgkj ek/;fed f"k{kk cksMZ] cq ) ekxZ& iVuk & 1A lsok esa jkT; ds lHkh ftyk f"k{kk inkf/kdkjh] voj izeaMy f"k{kk inkf/kdkjh ,oa ftyk fo/kky; fujh{kdkA fo'k; %& LFkkiuk dh vuqefr ls LFkk;h ekU;rk izkIr fo/kky;ksa esa f"k{kdksa dh fu;qfDr dh frfFk ls ekU;rk ds lEcU/k esaA mi;qZDr fo'k; ij bl dk;kZy; ds i=kad 23529 & 650 fnukad 2& 12& 75 ds Øe esa dguk gS fd ;g fo'k; cksMZ ds fnukad 7&1&1977 dh cSBd esa iqu% fopkjkFkZ j[kk x;k FkkA cksMZ ds i=kad 23529&650 fnukad 2&12&75 ds }kjk izlkfjr vkns"k dks lgh ekuk x;k rFkk mlh ls dk;kZUo;u ds fy, fuEufyf[kr Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 16/46 Li'Vhdj.k fn;k x;k gS & 1- LFkkiuk dh vuqefr ls LFkk;h ekU;rk izkIr fo/kky;ksa ds lHkh f"k{kdksa dh fu;qfDr dh frfFk] LFkkiuk dh vuqefr dh frfFk ls ekuh tk,xhA 2- ,sls f"k{kdksa dk osru Hkqxrku LFkk;h ekU;rk dh frfFk ls gksxkA 3- LFkkiuk dh vuqefr dh frfFk ,oa LFkk;h ekU;rk dh frfFk ds chp tks Hkh vof/k gksxh mldk dksbZ osru Hkqxrku f"k{kk fuf/k ls ugh gksxkA 4- LFkkiuk dh vuqefr dh vof/k ls LFkk;h ekU;rk dh frfFk rd okf'kZd osru o`f) dks tksM+dj LFkk;h ekU;rk dh frfFk ls mu f"k{kdksa dk osru fu/kkZfjr fd;k tk,xk] ysfdu mudh osru o`f) dh la[;k nks ls vf/kd ugh gksxhA 5- oSls LFkkiuk dh vuqefr izkIr fo/kky;ksa ij ftUgsa 1&1&74 ls LFkk;h ekU;rk iznku dh xbZ gS vkSj cksMZ ds iwoZ fu.kZ;kuqlkj 1&10&75 ls ykxw u;k osrueku fn;k x;k gS mu ij ;g vkns"k ykxw ugh gksxkA mi;qZDr funs"k ds vkyksd es u;s LFkk;h ekU;rk izkIr fo/kky;ksa dk osru fu/kkZj.k fooj.k i= izkfIr ds 15 fnuksa ds vUnj Hkstdj cksMZ ls osru fu/kkZj.k djk ysaA d`i;k bls vko";d le>saA (20) On 29.11.1978, another notification was issued extending the pensionary benefits to teaching and non-teaching staff of Non-Government Secondary School. For ready reference, the letter dated 29.11.1978 is quoted below:-
"vjktdh; ek/;fed fo/kky; ¼vc jktdh;d`r½ esa Hkfo'; fuf/k] isa"ku vkfn dh lqfo/kkA fcgkj ljdkj f"k{kk foHkkx] i=kad D;w ih 2&04@71 f "k0 4018] fnukad 29-11-78 izs"kd & Jh iz.ko "kadj eq[kksik/;k;] ljdkj ds fo"ks'k lfpo@ lsok esa & lfpo ] ek/;fed f"k{kk cksMZ] iVukA fo"k; % vjktdh; ek/;fed fo/kky;ksa ds f"k{kdksa ,oa f"k{kdsrj deZpkfj;ksa dks ljdkjh deZpkfj;ksa dh HkkWfr Hkfo'; fuf/k] ias"ku ¼ikfjokfjd isa"ku lfgr½ ,oa xzsP;qVh dh lqfo/kk nsus ds laca/k esaA mi;qZDr fo'k; ij funs"kkuqlkj eq>s lwfpr djuk gS fd vjktdh; Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 17/46 ek/;fed fo/kky;ksa ds f"k{kdksa ,oa f"k{kdsrj deZpkfj;ksa dh HkkWfr Hkfo'; fuf/k isa"ku ¼ikfjokfjd isa"ku lfgr½ ,oa xzsP;wVh dh lqfo/kk miyC/k djus ds laca/k esa ek/;fed f"k{kd la/k dh ekax jkT; ljdkj ds fopkjk/khu FkhA jkT; ljdkj us mudh ekax xaHkhjrkiwoZd fopkj djus ds ckn mUgsa orZeku f=fo/k YkkHk ;kstuk ds LFkku ij ljdkjh deZpkfj;ksa dh HkkWfr Hkfo'; fuf/k] isa"ku ¼ikfjokfjd isa"ku lfgr½ xzsP;wVh dh lqfo/kk nsus dk fu.kZ; fy;k gS o"krsZ fd %& 1- mudh lsok fuo`fr dh vk;q 62 o'kZ dh txg 58 o'kZ gksA 2- va"knk;h Hkfo'; fuf/k ds LFkku ij lkekU; Hkfo'; fuf/k dh lqfo/kk feysxhA 3- jktdh; deZpkfj;ksa dh rjg Hkfo'; fuf/k] isa"ku ¼ikfjokfjd isa"ku lfgr½ ,oa xzsP;wVh dh lqfo/kk fnukad 1-4-78 ,ao mlds ckn lsok fuo`r gksus okys deZpkfj;ksa dks miyC/k gksxhA 4-u;h ;kstuk dks Lohdkj djus ds fy, lacaf/kr f"k{kd@ f"k{kdsrj deZpkfj;ksa dks 31-12-78 rd vkI"ku nsus dh NwV jgsxhA 5- tks f"k{kd@ f"k{kdsrj deZpkjh orZeku f=fo/k ykHk ;kstuk ds varZxr jguk pkgrsa gS os orZeku fu;eksa ds vuqlkj 62 o'kZ dh mez rd lsok esa jg ldsaxsaA 2- jkT; ljdkj ds mi;Zdr fu.kZ; dk vk"k; ;g gqvk fd tks f"k{kd vFkok f"k{kdsrj deZpkjh fnukad 31-12-78 rd 58 o'kZ dh vk;q iwjh dj pqdsaxsa ;fn os orZeku f=fo/k YkkHk ;kstuk ds LFkku ij ljdkjh deZpkfj;ksa dh HkkWfr lkekU; Hkfo'; fuf/k] isa"ku ¼ikfjokfjd isa"ku lfgr½ ,oa xzsP;wVh dh ;kstuk Lohdkj djrs gS rks os mDr frfFk dks lsok ls fuo`r gks tkW,xsaA ;fn mDr frfFk dks os lsok fuo`r ugha gksrs rks ;g le>k tk,xk fd os orZeku f=fo/k ykHk ;kstuk ds varxZr gh jguk pkgrs gSaA mlh rjg tks f"k{kd@ f"k{kdsrj deZpkjh u;h ;kstuk dks Lohdkj djrs gS os 31-12-78 ds ckn 58 o'kZ dh vk;q iwjh djus ij lsok fuo`r gks tk;sxsaA 3- vkils vuqjks/k gS fd bldh lwpuk lHkh f"k{kdksa ,ao lEcf/kr deZpkfj;ksa dks vfoyEc ns nsa ftlls fu/kkZfjr vof/k ds Hkhrj mUgsa viuk vkI"ku lqfuf"pr djus esa dfBukbZ ugha gksA"
(21) On 30.08.1980, the Education Department issued notification in continuation of the notification dated 4.9.1964 and 29.11.1978. In the resolution dated 30.08.1980, it was declared that the State Government has decided to grant benefit of general provident fund, pension (family pension) and gratuity to the teachers and non-teaching employees of Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 18/46 recognized school like the State Government employees with effect from 1.4.1978 and in order to give effect to the benefit of Bihar Pension Rules, Rule- 58, 60 and 79 of the Bihar Pension Rules have been relaxed. This benefit was available to all teachers and non-teaching employees, who opted for such benefit by accepting the reduced age of 58 instead of 62 years and also to all teachers appointed after 1.4.1978. The next decision in this regard is Memo No. 581 dated 15.1.1982, which was issued by the Finance Department for the purpose of condoning the break in service of teachers. For ready reference, resolution dated 15.1.1982 is quoted hereinbelow:-
fcgkj ljdkj foŸk foHkkx] ladYi Kkikad 581 fnukad 15-1-1982A fo"k; % jktdh;d`r ek/;fed fo/kky; ds f"k{kdksa@f"k{kdsŸkj deZpkfj;ksa dh lsok esa VwV dh {kkfUrA frfFk 21-5-74 ds iwoZ izR;sd vjktdh; ek/;fed fo/kky; ,d Lora= bdkbZ Fkk vkSj bu fo/kky;ksa esa dk;Zjr f"k{kd ,oa f"k{kdsŸkj deZpkjh mPPkrj inksa ij fu;qfDr gsrq vFkok lqfo/kktud fo/kky;ksa esa inLFkkiu ds gsrq ,d fo/kky; dh lsok NksM+dj ;k R;kxi= nsdj vU; fo/kky; es pys tk;k djrs FksA 21-5-1974 ls lHkh vjktdh; ek/;fed fo/kky;¼vYila[;d ek/;fed fo/kky;ksa dk NksM+dj½ ek/;fed f"k{kk cksMZ ¼vc fo?kfVr½ ds v/khu vk x;sA ek/;fed f"k{kk cksMZ }kjk ;g fu.kZ; fy;k x;k Fkk fd 1974 ds v/;kns"k ] iz[;kfir gksus ds iwoZ ;fn fdlh f"kf{kd dks ,d fo/kky; ls nwljs fo/kky; tkus esa lsok esa 15 fnuksa ls de dh VwV gks mUgsa lsok dh Øeo)rk ,oa fujarjrk iznku dh tk,xhA 2- frfFk& 1-4-1978 rd vjktdh; ek/;fed fo/kky;ksa esa dk;Zjr f"k{kd ,oa f"k{kdsrj deZpkfj;ksa dks f=fo/k ykHk ;kstuk izkIr FkhA ftlds varxZr isa"ku Lohd`r djus esa 24 ekg rd lsok Hkax dh vof/k dks {kkUr djus dk vf/kdkj Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 19/46 jkT; ljdkj dk FkkA 3- vjktdh; ladYi la[;k 1975 fnukad 30-8-80 }kjk 1-4-78 ls vjktdh; ek/;fed fo/kky;ksa ds f"k{kdksa@ f"k{kdsrj deZpkfj;ksa dks ljdkjh lsodksa dh Hkkafr isa"ku vkfn dh lqfo/kk iznku dh x;hA isa"ku vkfn dh lqfo/kk mUgsa mudh fu;qfDr dh frfFk ls nh x;h gS tSlk mUgsa f=fo/k ykHk ;kstuk ds vUrxZr izkIr FkkA 4-vjktdh; ek/;fed fo/kky;ksa dk jktdh;dj.k 2-10-1980 ls fd;k x;ka blds ifj.kkeLo:i jktdh;d`r ek/;fed fo/kky;ksa ds lHkh f"k{kd@ f"k{kdsrj deZpkjh 2-10-1980 ls ljdkjh lsod gks x;s gSaA 5- fcgkj ias"ku fu;ekoyh ds fu;e 105 ds vuqlkj ljdkjh lsodksa esa VwV dh {kfr Lohd`fr dh tkrh gSA vc isa"ku fu;eksa ds mnkjhdj.k fo'k;d for foHkkx ds ladYi la[;k 3014 fnukad 31-7-80 dh dafMdk 4 esa lsok dh VwV dh {kkafr ds laca/k esa Li'V izko/kkuksa dk lekos"k dj fn;k x;k gSA mu izko/kkuksa ds vuqlkj lsokiqLr@ vfHkys[k esa dbZ [kkl izfrdqy vkns"k dks izfof'V ds vHkko esa jkT; ljdkj ds v/khu dh nks lsokvksa dh VwV dh vof/k (i) in R;kx (ii) ljdkjh lsok esa foeqDr ;k gVk nsus ls vFkok (iii) gM+rky esa Hkkx ysus ds dkj.k VwV dks NksM+dj vU; lHkh izdkj dh VwV dks Lor% {kfr le>k tk,xk ,oa VwV ds iwoZ dh igyh lsok isa"ku iznk;h ekuh tk,xhA ijUrq VwV dh vof/k isa"ku iznk;h lsok ds :i esa x.kuk ugaha dh tk;sxhA 6- tSlk mij vafdr fd;k x;k] vjktdh; ek/;fed fo/kky;ksa es dk;Zjr f"k{kdksa@ f"k{kdsrj deZpkfj;ksa dh lsok esa VwV eq[;r;k R;kx Ik=] lsok eqfDr ds dkj.k gh gqbZ gSA bl izdkj for foHkkx ds ladYi la[;k 3014 fo0 fnukad & 31-7-80 dh dafMdk 4 ds mica/k dks vxj bu f"k{kdksa @ f"k{kdsrj deZpkfj;ksa ds ekeys esa dBksjrk ls ykxw fd;k tkrk gS rks ,sls f"k{kd@ f"k{kdsrj deZpkfj;ksa ds ,d cgqr cM+h leqnk; dks iw.kZ isa"ku izkIr ugha gks ldsxkA izdVr% blls muesa {kfr ,oa fujk"kk dh Hkkouk iSnk gksxhaA 7- vr% jktdh;d`r ek/;fed fo/kky;ksa ds dk;Zjr vFkok lsok fuo`r f"k{kd@f"k{kdsrj deZpkfj;ksa ds ekeys dks vU; ljdkjh lsod ds ekeys ls Li'Vr% fHkUu gksus ds dkj.k jkT; ljdkj us fcgkj isa"ku fu;ekoyh ds fu;e 203 ¼,0½ ds varxZr fo"ks'k ifjfLFkfr esa fu.kZ; fy;k gS fd frfFk 2-10-80 ds iwoZ vjktdh; ek/;fed fo/kky;ksa esa fu;qDr ,sls f"k{kd@ f"k{kdsrj deZpkfj;ksa dh lsok VwV dh {kkafr esa for foHkkx ds ladYi la[;k 3014 fo0 fnukad 31-7-80 dh dafMdk 4 ds izko/kkuksa dks ykxw djrs le; mDr ladYi ds "krZ ¼i½ in R;kx ds foyksfir le>kk tk,xk rFkk mrus va"kksa rd fcgkj isa"ku fu;ekoyh ds fu;e 101 ¼,½ Hkh f"kfFky le>k tk,xkA Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 20/46 (22) From the resolution dated 15.1.1982, it would be apparent that the State Government decided to condone the break in service in purported exercise of power under Rule-203(A) of the Bihar Pension Rules. Rule-101 of the Bihar Pension Rules provides for forfeiture of past service in case of resignation, dismissal or removal for misconduct, insolvency, inefficiency or on failure to pass examination. Rule 101(b) of the Pension Rules clarifies that resignation of an appointment with the approval of the appointing authority to take up another appointment, service in which counts, is not a resignation of the public service. Rule-105 confers power to the Provincial Government for condonation of interruption and deficiencies. It is noteworthy here that the State Government vide memo no. 1040 dated 13.11.1969 decided to condone the break in service. Clause (4) of Appendix-VI of the Bihar Pension Rules speaks about break in service, which shall not be counted as pensionable service. To dilute the scheme of forfeiture of past service and for condonation of break in service, the State Government is vested with the power under Rule 203 of the Pension Rules, which is quoted below for ready reference:-
"203. (a) The Provincial Government reserve to themselves the powers of interpreting the rules and of granting any indulgence not Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 21/46 provided for by the rules.
If any interpretation of the rules is involved, or if any indulgence not provided for by the rules is proposed, the head of department or the head of the office shall submit the case with his opinion and recommendation, to the Provincial Government in the Administrative Department concerned."
(23) After scrutiny of the aforesaid scheme of the Act, Rules and notifications issued from time to time in the matter of grant of permission to establish secondary school, provision for grant of recognition, the scheme with regard to counting of past service for the purpose of grant of pensionary benefits, break in service and its condonation and relaxation of the provision of the Bihar Pension Rules, now we have to examine the rival contentions of the parties.
(24) Mr. Anjani Kumar, learned AAG, appearing on behalf of the State in support of the appeal has drawn the line of distinction between the services rendered before take over and after take over of schools. He submitted that in terms of Section 4(2) of the Take Over Act, the teachers and non- teaching employees on their transfer shall be deemed to be State Government employees and in terms of rules-58 and 60 of the Bihar Pension Rules are entitled to pension as they are government servants and as such pension is their right as State Govt. employees. Rules-58 and 60 of the Bihar Pension Rules Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 22/46 contemplate conditions and qualification for grant of pension which are quoted hereinbelow:-
"58. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:-
First - The service must be under Government.
Second - The employment must be substantive and permanent.
Third - The service must be paid by Government.
These three conditions are fully explained in the following sub-sections."
"60. The service of a Government servant does not qualify unless he is appointed and his duties and pay are regulated by the Government, or under conditions determined by the Government. The following are examples of Government servants excluded from pension by this rule :
(1)Employees of a municipality, (2)Employees of grant-in-aid schools and institutions (3)Service on an establishment paid from the house hold allowance of the Governor or from his contract establishment allowance."
(25) Mr. Anjani Kumar would submit that the school was taken over under the scheme of the Act on 2.10.1980. As such, on take over of the school the teaching and non-teaching employees of the schools, on retirement, shall count their service from that date for the purpose of pension as they acquired status of State Govt. employees only on 2.10.1980 and not prior thereto. Adverting to the scheme of pension Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 23/46 formulated right from 1st April, 1962 onwards, Mr. Anjani Kumar submitted that pension payable under the 1962 Scheme and 1964 Rules and under the scheme of 1974 Ordinance as well as 1976 Rules is payable not by the State Government but from the District Education Fund. He placed heavy reliance on Section 58 of the 1976 Act for the proposition that the District Secondary Education Fund was a fund available for payment of pension, gratuity and provident fund and it was not the obligation of the State Government and as such counting of service for the purpose of grant of pension and gratuity from the date anterior to the take over is not the liability of the State Government and as such teaching employees are not entitled to payment of pension from the public exchequer for the priod they worked under the previous school prior to take over.
(26) In support of his contention, Mr. Anjani Kumar placed reliance on the judgment of the Apex Court in the case of Chander Sain vs. State of Haryana & Ors. [AIR 1994 SC 972]. On closure scrutiny, the decision in that case is not attracted in this case and it is distinguishable on fact. The foundational facts are quite different. In that case, prior to take over, there was no scheme of pension. The liability of the State Government was confined to 75% of the total deficit of the private college Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 24/46 relating to salary and gratuity. The Apex Court, in the aforesaid circumstances held that appellant is entitled to payment of gratuity and not payment of pension before the date of take over as there was no pension available to the employees of the non-government college.
(27) Mr. Kumar then placed reliance on the judgment of the Supreme Court in the case of State of Punjab & Ors. vs. Dev Dutt Kaushal & Ors. [1995 Supp (4) SCC 748]. Again, in this case, the foundational fact was different. In that case, service rendered in the private college was not counted for the purpose of grant of pension as there was no provision for pension in the private college. Paragraphs- 9 to 14 of the said judgment is relevant for the purpose of the present issue and are quoted hereinbelow for ready reference:-
"9. The facts of N.N. Swamy are the following: a private college known as "khallikote College" was taken over by the government on and with effect from March 9, 1971. A formal agreement was executed between the managing committee of the college and the Governor of the State recording the terms and conditions of transfer. They provided that the transfer of the college to the government was of all the assets of the college but without any liability. The managing committee continued to be liable for the outstanding liabilities, if any, of the college for which the government was not liable. The six writ petitioners, (who were respondents before this Court) were all Readers in different faculties in the said college on the date of taking over. They were in the pay scale of Rs.510-860/- Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 25/46 and were actually drawing pay less than Rs.600- per month on the date of take over. Two other, who were juniors (indeed one of them was only a lecturer and not even a Reader) were in the pay scale of Rs.600-1000/- and were drawing the pay of Rs.600/- or above on the date of take over. On March 23, 1971, the government issued a circular containing conditions governing the taking over of the services of the teaching staff of the said college. Para 5 of the said circular provided that "adhoc appointments shall be issued to all Professors and such of the Readers in position, who on the date of takeover were in receipt of pay of Rs. 600/- per month or more, in the scale of pay Rs.600-1000/- against posts of Readers. Readers who on the date of takeover were in receipt of pay of less than Rs.600/- per month and all lecturers in position on that date shall be given adhoc appointment against the post of lecturers in the scale of Rs.260-780/- with effect from the date of take over."
Pursuant to the said Para 5, appointment as Readers was denied to the said six petitioners on the ground that they were drawing pay of less than Rs.600/- per month on the date of take over. Since the adhoc appointment was not given to them as Readers on the said ground, their cases were also not referred to the Public Service Commission for regular appointment as Readers. The said six lecturers complained against the same by way of a writ petition in the Orissa High Court. Their claim was examined by the High Court, as also by this Court, only with reference to the circular dated March 23, 1971. This Court opined that the aforesaid Para 5 of the circular was arbitrary and void being violative of Article 14 of the Constitution. It was pointed out that the stipulation that Reader must be drawing pay of not less than Rs.600/- per month on the date of take over has no nexus with the object underlying the prescription of qualifications. It was pointed out that the pay scales in private institutions are generally lower than similar government Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 26/46 institutions and that disqualifying a Reader from appointment to the said category under the government only on the aforesaid ground was discriminatory. It was pointed out that another Reader who was junior to all the said six writ petitioners was appointed as Reader only because he was drawing a salary of Rs.660/- per month on the date of take over.
10. Another aspect dealt with in N.N. Swamy related to the computation of the period of qualifying service, which contention appears to have been raised for the first time before this Court. The submission was this: on July 30, 1970,i.e., prior to the taking over of the said college by the government, the government had prescribed qualifications for appointment as a Reader. One of the qualifications prescribed was "at least eight years of teaching experience as a lecturer"; the service of the said writ petitioners in the category of lecturers rendered under the private management cannot be taken into account and, therefore, they cannot be promoted as Readers since they have not put in eight years service as lecturers under the government. With respect to this submission, the Court question, this Court (Bench comprising Goswami and Shinghal, JJ. ) made the following observations:
"When a fairly well-recognized institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution. The institution, with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progress in all respects. It is understandable that the employees had Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 27/46 to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants. But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Government service, for consideration for appointment as Readers is a seriously grim issue. We feel assured that such an argument had not been canvassed by the State in the High Court on the basis of the Rules of July 19, 1971. Since these Rules came into force after the take over for which a separate circular had already been issued to take care of the special exigency. Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court. The said circular took in recognition of the service in the private college in the case of two Readers (Nos. 9 and 10 in Annexure I).
The only differentia was, therefore, the salary drawn by the Readers on the date of take over. That action based on the salary aspect under the said circular had to stand the test of Article 16 in the High Court, as well as, before us. The argument in favour of complete evasion of the past teaching experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability." (Emphasis added)
11. It is evident from the above except that the contention relating to eight years' service as a prerequisite was urged for the first time before this Court and had not been urged before the High Court. This Court, therefore, observed that the circular of March 23, 1971 provided for appointment of only two Readers (juniors to the said six writ petitioners) only because they were in Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 28/46 receipt of pay of Rs.600/- or above and disqualified the said writ petitioners on the ground of drawing pay less than Rs.600/- and that once the said ground of distinction is struck down as violative of Article 16, the plea of lack of teaching experience, argued for the first time before this Court, should fail. It cannot, therefore, be said that this Court has ruled that the service rendered under the private management should be taken into consideration. All that it said is that denial of such service is "a seriously grim issue". But since there was no occasion for pronouncing upon the said contention, no final opinion was expressed. The said decision, therefore, does not support the case of the respondents herein.
12. Another case relied upon by the learned counsel for the respondents before us is the decision of this Court in Chander Sain v. State of Haryana & Ors. (1994 (1) S.C.C.750). Having regard to Para 10 of the conditions subject to which the private institution was taken over and particularly in the light of Para 3 of another memo dated March 28, 1979, this Court held that the government was bound to take into account the service rendered by the teachers under the private management for the purpose of calculating the gratuity payable. According to the orders in force prior to the taking over of the said institution, the teachers in private colleges were entitled to same gratuity as was payable to similar teachers in government service. Actually, the government was contributing seventy five percent of the total deficit of the private colleges relating to salary, gratuity, etc. for the posts approved by the government. The stand of the state of Haryana in that case was that teachers who had retired before the take over alone were entitled to gratuity calculated on the basis of the service rendered by them under the private management and not those who are absorbed in government service and retired thereafter. Such a plea was held to be unacceptable. Since the said decision turned on the particular facts and the language of the circulars concerned in that case, it is not Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 29/46 necessary to set out the facts of the said decision.
13. For the above reasons, these appeals are liable to be allowed and are accordingly allowed herewith. The judgment of the Division Bench is set aside and the judgment of the learned Single Judge is restored. There shall be no order as to costs.
14. Before parting with this case, we must refer to a circumstance brought to our notice. It is stated that in the year 1992, the Government of Punjab has framed a scheme under Rule 22-A of the Punjab privately Managed Recognized Schools Employees (Security of Service) Rules, 1981 under which scheme, it is stated by the learned counsel for the respondents, the teachers in the private Schools taken over by the government are entitled to count their service under the private management for the purpose of pension. We do not express any opinion on the said contention. It is enough to observe that if any of the respondents in these appeals is entitled to any benefit under the said scheme, he is entitled to claim the same according to law. It may also be in these appeals only, Civil Appeal No. 1104 of 1995 pertains to a teacher in a school while in all other appeals pertain to lecturers in colleges. The learned counsel asked us to clarify further that if in future the Government of Punjab frames a scheme with respect to lecturers similar to the aforementioned scheme, this judgment should not stand in the way. In our opinion, the said apprehension is wholly unfounded. This judgment does not preclude the government from conferring such benefits as they may think appropriate on the respondents and other similarly placed persons nor does this decision stand in the way of such persons claiming the appropriate reliefs under such scheme, as and when framed."
(28) Mr. Anjani Kumar next placed reliance on the Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 30/46 judgment of the Apex Court in the case of State of Bihar vs. S A Hassan & Another [2002 (2) PLJR (SC) 295]. It transpires from a close scrutiny of the said judgment that the judgment instead of supporting the submission of the State runs contrary to the basic arguments advanced by Mr. Anjani Kumar. Paragraphs- 7 to 11 of the said judgment are relevant and are quoted hereinbelow for quick reference:-
"7. Sub-section (1) of Section 6 of the Act provides in clear and explicit terms that from the date of the notification issued under sub-section (1) all members of the staff employed in the college shall cease to be employees of the college body. The effect of this provision is that the respondents ceased to be employees of the erstwhile management of the college. At the same time, the proviso to the said sub-section (1) declares that the staff employed in the college shall continue to serve in the college on an ad hoc basis till a decision under sub- sections (3) and (4) is taken by the State Government.
Therefore, both the respondents continued to serve the college on an ad hoc basis and as a result, whatever the contract of employment which the employees had with the erstwhile Management, came to an end. Thus, from the date of taking over the college, the respondents ceased to be employees of the erstwhile management and they became employees of the State Government on an ad hoc basis. This ad hoc appointment was subsequently regularized and, therefore, they became permanent employees of the State Government. As on the date of taking over the college, the terms of appointment between the erstwhile management and the respondents ceased to exist and they became employees of the State Government on an ad hoc basis, they cannot Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 31/46 claim any benefit for the service rendered by them in the college while it was under private management, there being no specific provision to count the previous service to any extent.
8. Mr. Raju Ramchandran, learned senior counsel appearing for the respondents has submitted that the private management was liable to pay service benefits to the respondents such as pension etc. and as the college was taken over by the State Government, this liability has passed on to the State Government. In this connection learned senior counsel has drawn our attention to sub- section (3) of Section 3 of the Act. The said sub- section reads as follows:-
"3.(3) All the liabilities and obligations of the College under any agreement or contract entered into bonafide before the date of taking over shall devolve and shall be deemed to have devolved on the State Government."
9. Sub-section (1) of Section 3 of the Act provides for the taking over of a private medical colleges by issuing a notification and according to sub- section (2) of the said section whatever assets and properties the college had, these would vest in the State Government and sub-section (3) provides for devolution of all the liabilities and obligations of the College on the State Government. This sub-section (3) would operate where the assets of the college were taken over by the State Government in terms of sub-
section(1). According to the learned senior counsel for the respondents, these liabilities would also include pension and other pensionary liabilities of the respondents while they were employees of the college before it was taken over. But there is no material on record to show that the erstwhile Management was liable for any pension or pensionary liabilities in relation to its employees. Moreover, Section 6 which deals specifically with the subject of determination of Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 32/46 terms and conditions of the teaching staff and other employees of the college, but it does not mention anything about giving weightage of past service for any purpose. There is also no order of State Government in this regard in terms of sub-section (3) of Section 6. We, therefore, do not find any force in the contention of Mr. Raju Ramachandran, learned senior counsel for the respondents.
10. Learned senior counsel for the respondents has submitted that the High Court by various decisions has settled the position that the employees are entitled to get their pension and other retiral benefits after counting their past service in the College prior to its taking over by the Government and therefore on the principle of stare decisis this court may not reinterpret the Act and upset the settled position. This contention has no force inasmuch as from the judgments made available to us and the judgment of the learned Single Judge we find that there are conflicting decisions of the High Court as stated earlier and, therefore, the present appeal has been filed.
11. Learned senior counsel for respondents has submitted that as the Act is completely silent on the question of counting the previous service towards pension and in the absence of any specific provision, there is a legitimate expectation of respondents to get their pension and other retrial benefits after counting the past period of service in the college. There is neither factual nor legal basis for such principle. The legislature in explicit and unambiguous terms has laid down in Section 6 of the Act that after taking over of the college the employees shall cease to be employees of the erstwhile management and they shall continue as ad hoc employees of the Government till such time as they are absorbed in accordance with the procedure laid down in the Act. Therefore, this contention has no force."
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 33/46 (29) The aforesaid judgment does not help the appellant-State as it would be evident from the discussion in the preceding paragraphs that the State Government from time to time extended the benefits of pension, gratuity to the teaching and non-teaching employees of the erstwhile private high school on the line of State Government employee, particularly, in the light of letter dated 29.11.1978 and 30.8.1980.
(30) Mr. Anjani Kumar next relied upon the judgment of the Apex Court in the case of PEPSU Road Transport Corporation, Patiala vs. Mangal Singh & Ors. [2011(11) SCC 702] to contend that pensionary benefit admissible to employees shall be governed by the terms and conditions encapsulated in the regulation and thus he submitted that petitioners are not entitled to the benefit of pension counting the service from the date of grant of permission to establish the institution as there was no statutory rules which confers such benefit.
(31) Mr. Anjani Kumar has also placed reliance on the judgment of the Division Bench of this Court in the case of Madho Sharma vs. The State of Bihar & Ors. (CWJC No. 15725 Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 34/46 of 2010 decided on 5.7.2013). While rejecting the claim for counting pensionable service from the date of permission to establish the school the Division Bench in Madho Sharma's case held that benefit is admissible from the date of recognition and not from the date of grant of permission. The said decision of the Division Bench also weighed the Court while this matter was referred to the Full Bench. The Court has placed reliance on the interpretation of the Circular dated 25.11.1992 given by the learned Single Judge in the case of Arun Jha vs. The State of Bihar & Ors. [CWJC No. 10726 of 2004 decided on 11.05.2005]. The judgment of the Division Bench in the case of Madho Sharma (supra) was delivered on 5.7.2013 but that Division Bench has not considered the two previous Division Benches judgment, one in the case of Shyam Kishore Singh vs. The State of Bihar & Ors. [2007(2) PLJR 239] and another in the case of Gopal Jha vs. The State of Bihar & Ors. [2009 (4) PLJR 396]. In addition thereto, it is to be noted here that the learned Single Judge in the case of Arun Jha (supra) expressed contrary view in subsequent decision. In Arun Jha's case the learned Single Judge regretted to apply the decision of another Single Judge on the ground that provision of statutory circular were not brought to his notice. It is interesting to note here that the Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 35/46 same Single Judge, who is the author of the Arun Jha judgment interpreting the circular dt.15.1.1982 has take a different view after noticing the resolution dated 18.7.1992 in the subsequent decision dated 10.1.2007 in the case of Dhrub Roy vs. State of Bihar [2007(1) PLJR 769] and granted the benefit of pension from the date of grant of permission to establish the school.
(32) Mr. Anjani Kumar next placed reliance on the judgment of Full Bench of this Court in the case of State of Bihar & Ors. vs Bhagwan Singh [2014 (4) PLJR 229]. The judgment of the Full Bench on construction of rules-56, 58 and 61 of the Bihar Pension Rules held that service rendered as daily wage employees is not admissible as pensionable service. The aforesaid judgment is distinguishable on facts. Firstly, that was case of daily wager and not regular employees. Secondly, there was no issue that from the date of entry the service was pensionable one and there was no occasion for the Full Bench to decide the interplay of rules- 203, 105 and 101 of the Bihar Pension Rules in the light of the decision of the State Government dated 15.1.1982 and the letter of the State Government dt. 29.11.1978 and 30.8.1980.
(33) Mr. Anjani Kumar, learned AAG, after making submission that service from the date of take over should be Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 36/46 counted for grant of pension in terms of rules-58 and 60 of the Bihar Pension Rules as only the government employees who were receiving salary from the government exchequer are entitled to the benefit of pension practically conceded that the benefit of past service should be counted from the date of recognition as he has no answer to the decision of Madho Sharma which was the basis of reference to the Full Bench.
(34) Per contra, Mr. Tej Bahadur Siongh, learned Senior Counsel, appearing on behalf of the writ petitioners in CWJC No. 13563 of 2006 enlightened the Court about the entire scheme of the Act, Rules and Notifications issued from time to time regulating the service conditions and also the pension scheme. Mr. Singh submitted that it is true that no rule was framed under the 1974 Ordinance or 1976 Rules but in exercise of power under Article 162 of the Constitution of India notifications have been issued from time to time by the State Government extending the benefit of pension and counting of past service for the purpose of grant of pensionary benefit.
(35) Mr. Tej Bahadur Singh submitted that the Secondary Education Board under the 1974 Ordinance and 1976 Act was vested with the power of framing service conditions and in terms of the power vested to the Board on Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 37/46 1.3.1977 the Board took a decision to count service from the date of grant of permission to establish the institution. Mr. Singh explained the objective behind the grant of permission to establish educational institutions. He submitted that grant of permission to establish school was subject to fulfillment of conditions for grant of recognition and under the scheme of the Ordinance and the Act no school was allowed to be opened without prior permission of the State Government and one cannot comprehend existence of any school without infrastructure. He submitted that in certain cases schools were set up after appointment of teachers and then application was moved for grant of permission so that regular teaching may be imparted along with permission to start school. Those appointed teachers who were eligible for appointment in terms of existing norms continued in the school and on the strength of the infrastructure and teaching facilities the schools obtaining permission for establishment were granted recognition subsequently by the Board and as such they (Teachers) are entitled to count their service from the date of grant of permission to establish school and the benefit of past service is admissible from the date of grant of permission to establish the institution was in fact accorded by the Board vide Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 38/46 letter dated 1.3.1977 and as such there is no question not to count service of such teachers from the date of grant of permission as the Board has recognized the service from the date of grant of permission and two annual increments were also admissible to such teachers vide letter dated 1.3.1977.
(36) Adverting to the issue as to counting of service rendered in the previous school in terms of protection available under Resolution dated 15.1.1982, he submitted that the State Government was competent to relax the rules and condone the break in service and in terms of the rule 203 of Pension Rules and in terms of scheme dated 15.1.1982 petitioner was entitled to benefit of condonation in break in service. He submitted that petitioner of CWJC No. 13563 of 2006 is entitled to counting of the entire service rendered not only in this school but in the previous school. He submitted that once the benefit was available under the scheme dated 15.1.1982 the same cannot be subsequently withdrawn. He referred to the judgment of the learned Single Judge of this Court in the case of Dhrub Roy (supra) and also the judgment of the Division Bench in the case of State of Bihar vs. Mostt. Shyam Pyari Devi & Ors. (LPA No. 1989 of 2010 decided on 9.11.2011) as well as the judgment of the Division Bench in the Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 39/46 case of Shyam Kishore Singh (supra). The relevant part of the judgment of the Division Bench in LPA No. 1989 of 2010 is quoted below for ready reference:-
"On merits, the learned counsel for the appellants very fairly submitted that the view taken by the writ court is in accordance with the views taken by several Division Bench judgments of this Court. However, he tried to rely upon Rule 21 of the Rules of 1983 to submit that the writ court should not have placed any reliance upon the earlier circulars of 1975 and 1977 because Rule-21 makes a categorical provision for supersession of all the earlier Rules and Orders framed by the State Government from the date of coming into force of 1983 Rules covering the Nationalized High Schools in respect of service condition. The submission does not have merits because Rule 21 supersedes only the Rules or Circulars on the subject covered by those Rules. The issue decided by 1975 and 1977 circulars relates to recognition of service of teachers and employees of the High Schools before they had been taken over. For that purpose the date of grant of permission for establishment and date of recognition have been indicated which is relevant in the said circulars. This issue is not covered by the 1983 Rules and hence, it cannot be said that the circulars could not have been referred to and relied upon.
Learned counsel for the appellants also placed reliance upon Section 9 of the 1981 Act providing for taking over of Management and Control of certain categories of Secondary Schools. That Section reserves a power in the State Government to determine the service condition of Head Master, teachers and non-teaching staff of taken over Secondary School. Such power has no relevance so far as the issue of length of service of teachers and the employees is concerned."
(37) Mr. Sharad Kumar Sinha, learned counsel appearing on behalf of the petitioner in CWJC No. 3486 of 2008 Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 40/46 has broadly adopted the submission advanced by Mr. Tej Bahadur Singh and contended that benefit of condonation of break in service once granted under the scheme dated 15.1.1982 cannot be taken away subsequently without compliance of the principles of natural justice and fair play.
(38) In the conspectus of the discussion hereinabove, the Court has to ascertain the logic behind the cut-off date. There is no dispute that every teacher and non- teaching employee became government servant by operation of law under Section 4(2) of the Act with effect from 2.10.1980 or the date of take over of the school. There is no dispute or discordant judicial pronouncement contrary to the proposition that service of teachers and non-teaching employees have all pensionary benefits admissible from the date of grant of recognition. The only rub in the instant case is whether service should be counted from the date of grant of permission to establish the educational institution or not. This concept of grant of permission to establish the educational institution was coined for the first time in the 1974 Ordinance. Prior thereto, there was no provision of opening any school without prior permission. It was open for the private player to establish educational institution to impart education. This scheme of Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 41/46 1974 Ordinance was subsequently retained in Section 29 of the 1976 Act. It may be relevant to mention here that under the Ordinance as well as under the Act there was specific condition enumerated for grant of permission to establish high school and permission was only granted on fulfillment of the condition for establishment of the school. Section 29 of the Ordinance which was retained in 1976 Act as Section 31 is quoted below:-
fo/kky; [kksyus ds fy, vuqefr & ek/;fed fo/kky; rc rd ugh [kksys tk;saxsa vkSj u lapkfyr gksxsa tc rd bl la;kstu ds fy, cksMZ ls iwoZ vuqKk izkIr u gks tk;A (39) It would be appropriate to note here that the scheme of pension was introduced by way of triple benefit scheme with effect from 1st April, 1962. The benefit of pension was admissible to all non-government schools whether run by local bodies or private management. Therefore, with the grant of permission to establish educational institution a teacher or non-teaching employee was entitled to the benefit of pension as a matter of course under the 1962 triple benefit scheme and 1964 triple benefit scheme. In the Notification dated 4th September, 1964 while extending the benefit of pension by improving the service condition, the State Government framed Rules in this regard and benefit was also extended to the permanent members of the ministerial staff serving in non-
Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 42/46 government elementary school other than proprietary school whether run by local body or by private management would not only be entitled to contributory provident fund but also pension and gratuity. Under the 1964 Rules, there was no requirement that the school must be recognized school and thus the teachers of the school obtaining permission to establish educational institution were entitled to the benefit of pension in terms of the Rules framed by the State Government for triple benefit. As indicated, hereinabove, on 29.11.1978, the State Government decided to grant benefit of pension, family pension, provident fund and gratuity on the line of the employees of the State Government whose earlier age of retirement as 62 years by reducing to 58 years with effect from 1.4.1978, this benefit was available to those teaching and non- teaching employees, who opted for benefit of the pension scheme of 29.11.1978 by exercising option up to 31.12.1978. By subsequent Resolution dated 30.8.1980, the State Government in continuation of the triple benefit scheme launched vide notification dated 4.9.1964 and 29.11.1978 has decided to relax Rules- 58, 60 and 79 of the Bihar Pension Rules. This aspect of the matter was not considered by another Full Bench in the case of State of Bihar vs. Bhagwan Singh (supra) on which Mr. Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 43/46 Anjani Kumar, learned AAG, has placed reliance.
(40) On careful scrutiny, the Court finds fallacy in the submission of Mr. Anjani Kumar, learned AAG, that pension admissible under the 1962 scheme or 1964 scheme as well as after coming into force of the 1974 Ordinance and 1976 Act was not the liability of the State Government but it was a private arrangement from the District Secondary Education Fund. However, Mr. Anjani Kumar failed to explain the position that when the school was taken over and fund was retained by the State Government then how the pre -2.10.1980 liability to pay pension, gratuity and provident fund can be disowned by the State Government. While confronted on the scheme, on the definition under 2(anga) and Section 12 of the 1981 Act that the district secondary education fund is raised in similar manner as District Secondary Education Fund used to be raised in 1974 Ordinance and 1976 Act and there is no corresponding provision that the District Secondary Education Fund shall be used for payment of pension, gratuity and provident fund in 1981, Mr. Anjani Kumar has no explanation to the absence of statutory scheme of payment of pension from District Education Fund under the 1981 Act.
(41) Considering the totality of the fact, we are of Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 44/46 the considered view that the contentions advanced by Mr. Anjani Kumar that liability to grant pension to employees of private school under the 1962 and 1964 scheme or 1974 or 1976 Ordinance and Act does not pass on to the State Government and there is no liability of the State Government to grant pension, gratuity and provident fund to the teachers covered under the triple benefit scheme prior to take over are misconceived. The Court on careful consideration of the entire scheme of the Act and the notifications issued from time to time either for the purpose of counting service or for extending the benefit of triple benefit scheme and pension, as indicated hereinabove, is of the considered view that pension is admissible not only from the date of take over but from the date of grant of permission to establish in view of the fact that the Board took a conscious decision to count service from the date of grant of permission for establishment of the school. The decision of the Secondary Board to count service from the date of grant of permission to establish secondary school is saved by operation of Section 21 of the repeal and saving clause of the 1980 Ordinance and once the action of the Board is saved it follows as a matter of corollary that service is to be counted from the date of grant of permission to establish secondary Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 45/46 school for the purpose of pensionary benefits.
(42) Accordingly, we hold that teachers appointed prior to grant of permission shall reckon their service from the date of grant of permission for establishment of the institution and their service should be counted from that date for the benefit of pension.
(43) So far as the factual issues involved in CWJC No. 13563 of 2006 and CWJC No. 3486 of 2008 are concerned, the Court is of the view that directly the issues have not been referred for adjudication but it has been referred to Full Bench as one of the issue was counting of service from the date of permission to establish secondary education. We refrain to decide the other issues raised in these writ applications as it would cause prejudice to either party and there is no conflicting decision on the issue of condonation of break in service. Since there is no decision of the writ court, this Court deems it fit and proper to remit CWJC Nos. 13563 of 2006 and 3486 of 2008 to be adjudicated by the learned Single Judge in the light of our discussion and decision that service shall count from the date of permission to establish secondary school in terms of 1974 Ordinance and 1976 Act.
In the result, LPA No.1568 of 2011 and LPA No. Patna High Court L.P.A No.1568 of 2011 dt.18-04-2019 46/46 1681 of 2013 are dismissed. All the decisions contrary to the view we have taken stand over ruled.
(44) Before we part with, we hasten to add that the plethora of notifications issued from time to time regulating service condition and lack of assistance in most of the cases led to conflicting decision of the Benches. Divergence of opinion is also due to ignorance of notification occupying the field. In our view, it would be appropriate for the State Government to frame exhaustive Service Condition Rules instead of issuing one after another notifications so that conflict in the decision making and adjudication may be obviated.
( Anil Kumar Upadhyay, J )
Ashwani Kumar Singh, J. I agree.
(Ashwani Kumar Singh, J.)
I agree.
Birendra Kumar, J.
( Birendra Kumar, J)
mrl./-
AFR/NAFR NAFR
CAV DATE 05.03.2019
Uploading Date 19.04.2019
Transmission Date N.A.