Rabindra Kumar and Others vs The State of Bihar and Others

S.J. Mukhopadhaya, J.—All the writ petitions relate to ''Project Schools'' of 2nd Phase (1984-85). The Petitioners of all the cases except one i.e. C.W.J.C, No. 6881/95, have prayed for almost same relief in directions on the concerned authorities for regularisation/absorptlon of their services in the Government and for payment of salary with effect from 1.1.1989. For the said reason, all the cases were heard together and are being disposed of by this common judgment.

The controversy relating to Project Schools of 2nd Phase. (1984-85) is pending before the Government since long. One of the dispute while related to the total number of sanctioned posts in such schools, other dispute relates to the fact whether a particular school is a Project School of the Government or not.

From the pleadings, as it appears that the Project Schools are schools established/taken over by the Government under a scheme to provide at least one girl''s Secondary/High School in each Block of the State and no specific Rule/Act was framed, but were so established/taken over in pursuance of different instruments like letters and circulars. This Court at the time of hearing directed the State of Bihar to file specific counter affidavit giving details relating to the nature of schools; number of posts created; and the orders under which schools, if any, taken over as Project School, which have been filed in C.W.J.C. Nos. 8634 of 1996 and 6881 of 1995. On the direction of this Court, the State of Bihar also produced relevant File No. 12/PA-65/87 related to Project Schools and payment of salary to its teachers.

After hearing the parties, pleadings made in different writ petitions, counter affidavits filed therein, original file placed by the State Government and Compendium of Circulars published in a book known as ''Bihar Madhyamik Shiksha Ka Ek Dashak'', I could trace out the history of Project Schools as mentioned hereunder.

The State of Bihar framed scheme under its sixth five year plan to provide at least four Secondary/High Schools in each of the Blocks, out of which one must be a Girls School. A total of 435 Blocks were found wherein there was no recognized Girls High Schools and so the State Government decided to open altogether 650 Girls High Schools in different Blocks during the following financial year:

Year No. of Blocks.

1981-82 150

1982-83 200

1983-84 200

1984-85 100

It appears that the target aforesaid to open Girls High Schools in different Blocks was not achieved. Initially, the State Govt. established 150 schools by Government Letter No. 24617 dated 3rd September, 1981 in the year 1981-82. These schools are commonly known as ''1st Phase Girls Schools (1981-82)''. No such Girls Schools was opened in the subsequent years 1982-83 and 1983-84. By Letter No. 12(C) dated 25th January, 1985, it was decided to open 300-schools in different Blocks f6r the year 1984-85. Initially, by letter No. 108 dated 12th February, 1985, 75. schools in different Blocks and districts were notified and established, followed by letter No. 142 dated 23rd February, 1985, whereby and where under, it was decided to take over 225 schools established by public assistance, after necessary recommendation of a three men Committee. The 300 schools were thereby established/selected in the second phase (1984-85) and these cases relate to some of them.

One of the questions to be determined is whether a Project School of 2nd Phase (1984-85) is established by State Govt. or taken over by the State Govt. on recognition? The other question relates to total number of sanctioned posts of Assistant Teachers in such 2nd Phase Project Schools (1984-85). This Court directed the State to obtain instruction and file additional counter affidavit on the aforesaid questions as well as ambiguity, if any, relating to sanction of posts an shown in letter No. 142 dated 4th February, 1989. Such counter affidavits have been filed by the State in C.W.J.C. Nos. 8634/96 and 6881/95, from which the stand of the State, is as follows:

(a) Relating to status of 2nd Phase Project Schools (1984-85):

The status of 2nd Phase Project Schools of 1984-85 are (i) there are schools established by public assistance but directly selected by Government; and (ii) there are schools established by public assistance but recommended by three Men Committee in terms with letter No. 142 dated 23rd February, 1985 to be taken over as Project Schools.

The above schools, all covered by one nomenclature i.e. ''Project Schools''. These schools are not like Zila Schools (Govt. Schools) or nationalized schools, but since established/selected by Government under a scheme aimed to provide at least four Secondary/High Schools out of which one must be a Girls Schools. These schools as per Government scheme would be established in most cases by taken over Private Schools which have been granting permission for establishment or at least a Project School in terms with the Government of Bihar Secondary Schools Board (See at paragraph 15 of the 2nd Supplementary counter affidavit filed by Respondents in C.W.J.C. No. 1996).

The schools are being run as Project Schools as envisaged in the scheme itself to promote girls education in such Blocks where there is no Girls Schools and as such it is a functional unit to attain the purpose without any institutional identity in terms of finality beyond that of Project School. (See 2nd supplementary counter affidavit filed by Respondent in C.W.J.C. 6881 of 1996).

Further stand of the State is that the 2nd Phase Project Schools of 1984-85 directly selected by Government will be deemed to be taken over schools from the date of issuance of letter No. 108 dated 12th February, 1985 and those schools established in public assistance but recommended by three Men Committee constituted vide letter No. 142 dated 23rd February, 1985 will be deemed to be taken over schools on and from the date of issuance of such a letter in favour of school concerned. (See Paragraph 18 of 2nd supplementary counter affidavit filed by Respondents in C.W.J.C. No. 8634/96).

(b) With regard to number of posts of Assistant Teachers sanctioned for 2nd Phase Project Schools of 1984-85:

According to the State, there are only five units of Assistant Teachers sanctioned by the State Govt. by letter No. 142 dated 4th February, 1989. There is neither any ambiguity nor any typographical error so far as the provisions laid down under letter No. 142 dated 4th February, 1989 as regards sanction of units are concerned. By letter No. 1047 dated 16th November, 1985, one post of Head Master and four posts of Assistant Teachers have been sanctioned for 2nd Phase Project Schools of 1984-85, which has been reiterated in Clause (ii) of letter No. 142 dated 4th February, 1989. So far as Clause (iii) of letter No. 142 dated 4th February, 1989 is concerned, it is an indicator of model requirement of posts that are necessary for a secondary level schools, that is to say, strength of a Project School may be Increased depending upon the financial resource of the State of Bihar. While the Head Master/Head Mistress is appointed by Department, the services of four eligible teachers are recognized against four units from amongst those working therein on the basis of qualification/seniority and utility. The utility aspect, in this context, aims at achieving the maximum advantage out of a teacher''s qualification vis-a-vis, various subjects of educations, other things remain the same. A teacher appears to be more useful if competent to teach more subjects than others in the light of his/her qualification subject to limited sanctioned strength of ''four units'' of teachers in totality. Those five units of teachers (one Head Master/Mistress and four teachers) stand sanctioned as per Clause (ii) of letter No. 142 dated 4th February, 1989.

According to the State, the Project Schools of the 1st phase of 1981-82 are guided by letter No. 705 dated 12th October, 1982, whereas Project Schools of the 2nd phase of 1984-85 are guided by letter No. 142 dated 4th February, 1989 so far as it related to sanction of units of teachers are concerned.

From letter No. 142 dated 4th February, 1989, prima facie, it appears that there is ambiguity in the said letter, there being contradictions in Clause (ii) and (iii) therein. In Clause (ii) of the said letter dated 4th February, 1989, when it has been mentioned that five posts of teachers have been created and to appoint teachers against those five posts, Clause (iii) speaks of staffing pattern which comes to eight posts of teachers apart from the post of Head Master/Mistress i.e. total nine posts. It Is for the said reason, I have gone through the File No. 12/PA-85/87 relating to creation of posts of 2nd phase Project Schools, payment of salary to teachers etc. From the office note, it appears that the schools which were earlier established after obtaining permission from the State Govt. by Private Managing Committee and subsequently taken over as Project Schools had nine posts of Teachers (including Head Master/Mistress) as was sanctioned by the State Govt. They made appointments in such private schools, accordingly, as against nine posts of teachers.

The schools taken over as Project Schools in the 1st phase of 1981-82, for that nine posts of teachers, including head Master/Mistress were sanctioned. However, while the question of taken over the services of teachers of 2nd phase Project Schools of 1984-85 was taken up, a note was given by the then Director on 19th December, 1988, wherein it was mentioned that total five posts of teachers (four Assistant Teachers and one Head Master/Mistress) have been created and at the stage of Minister, it was decided to pay salary against such five posts and to forward proposal for payment of honorarium of Rs. 500/- each to four other teachers, whose posts are to be created. Ultimately, the noting of the said file moved and one Sri K.K. Sinha gave noting to adjust five teachers against the sanctioned posts and as four more posts of teachers has not been sanctioned, for such decision, to obtain concurrence of Finance Department. Ultimately, letter No. 142 dated 4th February, 1989 was issued showing therein five sanctioned posts of teachers and for adjustment of existing teachers against the same. However, the matter relating to staffing pattern was also laid down in Clause (iii) of the said letter dated 4th February, 1989.

In the second supplementary counter affidavit filed by the Respondents in C.W.J.C. No. 8634/96, it is stated (at para 21) that the entire matter requires to be reviewed afresh by the State Govt. in the light of observations/directions of this Court in some other cases and for that some more time to the extent of three months will be needed as it can be decided only by the Cabinet after due examination of the matter by Personnel Deptt. Finance Department and the Law Department.

From the aforesaid facts and stand taken by the State Govt. this Court comes to a definite conclusion and hold that (a) the second phase Project Schools of 1984-85 established with public assistance but directly selected by Govt. vide letter No. 108 dated 12th Feb., 1985 total 75 in number, as mentioned therein will be deemed to be taken over schools on and from the date of issuance of such a letter i.e. 12th February, 1985, (b) those schools established with public assistance but recommended by three Men Committee consisting of District Magistrate, D.D.C., and D.E.O. in terms with letter No. 142 dated 23rd February, 1985 will be deemed to be taken over schools on and from the date of issuance of such letter by the three Men Committee in favour of the concerned schools (about 75 in number), and (c) there are five units of teachers stand sanctioned, including the post of Head Master/Mistress, for second phase Project Schools of 1984-85, as shown at Clause (ii) of letter No. 142 dated 4th February, 1989 subject to increase of such strength as may be required in one or other schools in. terms with staffing pattern, as mentioned in Clause (iii) of letter No. 142 dated 4th February, 1989 and the matter is pending consideration before the State Government.

In the background of the aforesaid finding, now I would like to discuss the individual claim and counter claim as made by the parties in each of the writ petitions and its merit, as discussed hereunder.

Petitioners of C.W.J.C. Nos. 8634/96; 4618/96; 5353/96; and 9869/96 have made almost similar prayer for recognition of their services/absorption as Assistant Teachers in their respective Project Schools and for payment of salary with effect from 1.1.89 in accordance with the guidelines laid down by letter No. 142 dated 4th February, 1989.

(i) C.W.J.C. No. 8634 of 1996 (Rabindra Kumar-Petitioner):

The case of the Petitioner is that he graduated in the year 1981 and then appointed on 6th August, 1984 as Assistant Teacher by the then Managing Committee of Ram Swaroop Singh Girls High School, Barahaiya, Garauli in the district of Gopalganj. In the meantime, he completed B.Ed. course (1982-83) of which result was published on 23rd February, 1986. The school, in question, was taken over as Project School by letter No. 108 dated 12th February, 1985 where after the State Govt. also constructed the building. The State Govt. though came out with the guidelines Vide letter No. 142 dated 4th February, 1989 for recognition of services of teaching and non-teaching employees of 2nd Phase Project Schools of 1984-85, but no step was taken for recognition of services of employees of the school in question. In the aforesaid circumstances, the Petitioner along with other teaching and non-teaching employees preferred C.W.J.C. No. 7142/91, wherein this Court by its order dated 28th November, 1991 directed the Respondents to screen the cases of employees of the said school. Thereafter, in pursuance of direction given by the Director, Secondary Education, vide his letter dated 19th February, 1992 the D.E.O. Gopalganj submitted report on 27th April, 1992 giving details of employees working in the school including the Petitioner.

The grievance of this Petitioner is that while services of other teaching and non teaching employees have been recognized by memo dated 30th January, 1993 his service has not yet been recognized. Even recently, by one notification dated 7th August, 1996, the services of other teachers have been recognized. It is stated that one Birendra Kumar Singh who was appointed much after the appointment of Petitioner on 16th November, 1984, but while his services have been recognized, the Petitioner has been left out.

An intervention petition has been filed by one Smt. Bharti Singh being I.A. No. 562/96. According to her, she is functioning in the school as Assistant Teacher and being a lady, she has better right for absorption/recognition of service under the Respondents State over the Petitioner.

The stand of the State is that the services of four teachers have already been recognized against four sanctioned units, apart from the post of Head Master/Mistress. The four units sanctioned for a 2nd Phase Project School (1984-85) are (a) Language-one unit (b) Science/Math-one unit; and (c) Humanities-two units.

It is stated that the Petitioner cannot be considered against the sanctioned unit of Science Teacher for being senior to Birendra Kumar Singh, he being not qualified for the post of Science Teacher.

(ii) C.W.J.C. No. 4618 of 1996 (Pradip Kumar Singh-Petitioner):

The case of this Petitioner is that Rani Braj Kumari Girls High School, Bear in the district of Aurangabad was established in the year 1971 and used to be run by Private Managing Committee with the people''s help. The State of Bihar granted permission to establish the school on 9th March, 1972, whereinafter the Petitioner was appointed as Assistant Teacher on 28th February, 1982. The Petitioner joined the post on 1st March, 1982 and he was B.A. (Honours) at the time of appointment. He had already appeared in B.Ed. Examination by the time he was appointed of which result was published in June, 1983. The school, in question, namely, Rani Braj Kumari Girls High School was taken over as Project School in pursuance of Letter No. 108 dated 12th February, 1985, wherein after the school building was constructed by the State Government.

After such take over, in pursuance of guidelines contained in letter No. 142 dated 4th February, 1989, step was taken for recognition of services of teaching and non-teaching employees of the school. The D.E.O. Aurangabad submitted his Project report on 16th September, 1989 wherein the Petitioner was shown functioning and his name was recommended along with others for recognition of service. However, when no step was taken by the State, he preferred a writ petition, C.W.J.C. 7153/91 along with others, wherein this Court by order dated 29th November, 1991 directed to place the case of the Petitioner and others before Screening Committee and to take a final decision thereon. No action having taken on the said order of this Court, a contempt petition being M.J.C. No. 335/92 was preferred by the Petitioner and others, when Screening Committee submitted report and notification dated 23rd November, 1992 was issued whereby and where under, the services of two Assistant Teachers, and those who were non-teaching employees of the school were recognized and they were absorbed. The case of the Petitioner, however, was left out with an observation that the Petitioner passed the training after his appointment.

It is alleged that the person junior to the Petitioner namely, Jagnarain Pandey was absorbed but the Petitioner was left out. The Petitioner had to prefer another writ petition, C.W.J.C. 1604/94, which was disposed of by a Division Bench of this Court on 1st May, 1995 along with some other cases, with certain directions, as reported in 1995 (2) RLJ.R. 205 (Kumud Kumari Srivastava and 46 Ors. v. the State of Bihar and Ors. and analogous cases).

Thereafter, the Respondents Without considering the case of this Petitioner, issued another order on 20th May, 1995, by which services of other persons were absorbed. Subsequently, the case of the Petitioner was left out on 13th March, 1996 on the ground that he was excess to the strength for the purpose of absorption.

In the meantime, the Petitioner preferred a contempt petition being M.J.C. No. 1378/95 for non-compliance of the order dated 1st May, 1995, passed in C.W.J.C. No. 1604/94. On 25th March, 1996, a Bench of this Court taking into consideration the order of rejection dated 13th March, 1996, disposed of the contempt petition with observation that no case for contempt was made out with liberty to the Petitioner to prefer writ petition challenging the order dated 13th March, 1996.

In the aforesaid circumstances, the present writ petition has been preferred by the Petitioner.

In the counter affidavit, the stand of the Respondents relating to total sanction of strength is same as taken in the earlier case. They have given reference of the order dated 13th March, 1996 showing reason for rejection of the case of the Petitioner being beyond the sanctioned strength. The said order of rejection dated 13th March, 1996 having not challenged in the present writ petition, the Respondents have also raised the question of maintainability of the present writ petition.

(iii) C.W.J.C. No. 5353 of 1996 (Meena Mishra-Petitioner):

The case of this Petitioner is that she is working as Assistant Teacher in the Adarsh Girls High School, Pachrukhi in the district of Siwan which was established in the year 1981. The Petitioner was appointed as an Assistant Teacher of Geography and History (Humanities) on 19th March, 1983 by the then Managing Committee of the school. Since then the Petitioner is functioning.

The school, in question, was granted permanent recognition by order dated 12th May, 1983 and in pursuance of letter No. 142 dated 23rd February, 1985, the three Men Committee made recommendation to recognize the school as a Project School. Subsequently, by letter No. 145 dated 5th October, 1985, the school was recognized and taken over as Project School along with six other schools. It is stated that in pursuance of guidelines contained in letter No. 142 dated 4th February, 1989 and on the direction of the Director, Secondary Education, the D.E.O. submitted project report on 1st September, 1989, wherein the name of the Petitioner was shown and her case was recommended. Thereafter, the cases of teaching and non-teaching employees, including the case of the Petitioner was placed before the Screening Committee, which found the Petitioner and others eligible for absorption. However, no step having taken, the Petitioner preferred writ petition, C.W.J.C No. 637/92, which was disposed of on 31st July, 1992 by this Court with a direction to the Director, Secondary Education to consider the project report submitted before the Screening Committee, in accordance with law and after screening is done to refer the matter to the State Government for its approval. Thereafter, no action having taken, a contempt petition being M.J.C. 391/93 was filed, wherein specific time schedule was framed by this Court vide order dated 1st August, 1995.

The grievance of the Petitioner is that thereafter a second contempt petition, M.J.C. No. 149/96 had to be preferred by the teaching and non-teaching employees wherein a show cause reply was filed by the Respondents enclosing therein a letter No. 135 dated 13th March 1996. By the said letter, the services of only four teachers were regularized including a dead person Late Natun Haider (sl.No. 3), who had already died.

According to the counsel for the Petitioner, in terms with the staffing pattern, total nine posts including Head Master/Mistress stand sanctioned and the division of the units, are as follows:

(a) Language Group - 3 Units;

(b) Humanities Group - 3 Units;

(c) Science Group - 3 Units; and

(d) Others - I units.

Further, according to the Petitioner, as her name was appearing at sl.No. 6 of the Project report and the report submitted by the Screening Committee, she is entitled for absorption under the Respondents-State. According to the Petitioner, Ms. Subhra Dey is at sl.No. 1 comes under the category of Language Group; Smt. Shashi Prabha, at sl.No. 2, appointed under the category of Humanities, Ms. Meena Singh at sl.No. 4, appointed in the category of Language Group; and Natun Haider, at sl.No. 3, is dead, as stated above. The only one teacher Ms. Padwaja Rai at sl.No. 5, above the Petitioner, is a teacher of Sanskrit, who cannot be absorbed against the post for which Natun Haider was shown to have been absorbed. This apart, said Ms. Padwaja Rai was found to be absent from the school right since January, 1992, which was pointed out in the report submitted by D.E.O., Siwan.

In the present case also, the stand taken by the Respondents relating to sanction of unit is same and similar as taken In the earlier cases.

So far as Natun Haider is concerned, It is stated that her service was recognised and it was ordered to pay salary since 1st January, 1989 and he died subsequently on 26th February, 1989 and thereby the question of secularisation of service of the Petitioner does not arise.

(iv) C.W.J.C. No. 9869 (Ganesh Choubey-Petitioner):

The case of this Petitioner is that he is working as an Assistant Teacher in Sanskrit in Ram Swaroop Singh Balika High School in the district of Gopalganj. He was appointed by the then Managing Committee as an Assistant Teacher and joined the school on 1st May, 1984 when his qualification was Acharya in Sanskrit. His services were approved by the Managing Committee vide Resolution No. 3 dated 15th June, 1984 and the school, in question, was taken over by Government Order No. 108 dated 12th February, 1985. The D.E.O. sent Project Report on 28th March, 1985 wherein the name of the Petitioner was shown and the State Government also constructed building of the school. Subsequently, another report was submitted on 5th August, 1989 giving details of the employees wherein the name of the Petitioner was shown.

Earlier, some teachers of the school preferred C.W.J.C. No. 7142/91 in which this Court passed certain directions for consideration of case for screening and absorption which was disposed of on 28th November, 1991. Subsequently, a contempt petition being M.J.C. No. 635/92 was filed by the employees of the school for non-compliance of the Court''s order. Thereafter, on 30th January, 1993 names of two Asstt. Teachers were approved, followed by another order dated 7th August, 1996, wherein the services of another Asstt. Teacher, Braj Kishore Singh were approved.

The grievance of the Petitioner is that Smt. Asha Kumari and Birendra Kumar Singh are junior to him and while their services have been recognized, the Petitioner has been left out from such recognition. Further, according to the Petitioner, in accordance with the staffing pattern, nine sanctioned posts stand created and the Petitioner is entitled for regularization of his service against one of such nine posts. It is stated that for another school, Thuna Devi Balika Uccha Vidyalaya, Parsona, names of nine teachers have been recommended for recognition/absorption, which benefit has been denied to the teachers of the Petitioner''s school, including the Petitioner.

So far as the Petitioner is concerned, it is stated that by letter dated 15th June, 1995, the D.E.O. was directed to verify the certificate of Degree of Acharya of the Petitioner and to send report, wherein after, the Petitioner''s mark-sheet and certificate was verified and favorable report was sent by letter No. 195 dated 19th June, 1995. It is alleged that the case of the Petitioner was not considered and he has not been regularised in the services under the Respondents-State on the ground that his certificate is to be verified and for that a post has been reserved.

In the present case, a counter affidavit has been filed on behalf of Respondents 3 and 4, wherein while same stand has been taken relating to sanction of posts i.e. five units for a second phase Project School of 1984-85, it is stated that the regularization is being made on the basis of seniority, utility and qualification. Further, according to the Respondents, a female teacher having adequate qualification is to be preferred over a male teacher in the matter of regularization and Smt. Asha Kumari being a female teacher, has been preferred and absorbed against the single unit post of Language Group.

(v) C.W.J.C. No. 6881 of 1995 (Project Balika Uccha Vidyalaya, Thatopur and six others):

In this case, the Petitioners, who claimed to be the teaching and non teaching employees of the Balika Vidyalaya aforesaid, have challenged the report, contained in letter no 830 dated 10th November, 1992, order No. 350 dated 20th April, 1993, by which case of teaching and non-teaching employees of the school, in question, for absorption has been rejected in view of aforesaid report and the Notification No. 275 dated 21st July, 1995, by which Project School aforesaid has been transferred to Chainpur Block within the same district of Bhabhua.

The case of the Petitioners is that they are working as teaching and non teaching employees in the school at Thatopur. The Petitioner No. 1 is functioning as Head Master; Petitioner Nos. 2 to 6 as Assistant Teachers; and Petitioner No. 7 as clerk. The school at Thatopur was established on 5th January, 1984 with the people''s co-operation and subsequently it was taken over as Project School by Govt. vide letter No. 108 dated 12th February, 1985.

For the purpose of recognition of service/absorption of teaching and non teaching employees of the school, in pursuance of guidelines, contained in letter No. 142 dated 4th February, 1989, the D.E.O. Darbhanga submitted project report vide letter No. 1492 dated 5th September, 1989, whereby and where under, names of teaching and non-teaching employees including the Petitioners were shown and recommended.

Earlier the teaching and non-teaching employees of the school preferred C.W.J.C. No. 8587/91, wherein this Court by order dated 9th December, 1991 directed the Respondents to place their cases before the Screening Committee to consider the cases for absorption. The D.E.O. Darbhanga thereafter made enquiry and submitted a report by impugned letter No. 830 dated 10th November, 1992, wherein it was mentioned that no employee was working in the school and the appointments shown are mere paper transaction. It was on the basis of aforesaid report, the impugned Order No. 350 dated 20th April, 1993 was passed, whereby the Screening Committee declined to make recommendation.

Earlier some teaching and non-teaching employees of the school preferred contempt petition being M.J.C. 1034/92 for non-compliance of the Court''s order and it was pointed out that earlier favorable recommendation was made by D.E.O. on 6th April, 1991. The Secretary of the school also requested vide his letter dated 6th September, 1993 to reconsider the matter. Thereafter, a fresh'' report was submitted by D.E.O., Darbhanga vide letter No. 102B dated 26th October, 1994 and in the said report, it was accepted that the teaching and non-teaching employees are, in fact, working in the school. However, without consideration of their case, in the light of fresh report dated 26th October, 1994, the impugned order was passed, vide letter No. 275 dated 21st July, 1995, whereby and where under, the school at Thatopur was transferred from Bihari Block to Chainpur Block.

A counter affidavit and another supplementary counter affidavit have been filed on behalf of the Respondents.

In the counter affidavit, while the Respondents have highlighted the earlier report submitted by D.E.O. vide his letter No. 830 dated 10th November, 1992 to show that none of the employees were functioning in the school, it is further stated that the school does not have the permission to establish and there being poor attendance of students, taking into consideration the viability, the impugned order was passed and the school was transferred to Chainpur Block within the same district.

In the supplementary counter affidavit, the Respondents have given the details of Project Schools established/recognized and thereby taken over in different phases.

Details of first phase Project Schools and second phase Project Schools have already been given in the initial paragraphs, which are reiterated hereunder along with the details of third phase Project Schools taken over by the State Govt.

Phase No. of Schools Letters

1 1981-82 150 Schools (Boy�s and Girl�s) 1115 dt. 27.5.81 109 dt. 15.3.82 182 dt. 25.3.82 749 dt. 19.11.82 Memo No. 208/ C/Edn., dt. 14.4.87. Memo No. 212/C/ Edn., dt.14.4.87

2 1984-85 300 Schools (including those directly selected by Govt.) 108 dt. 12.2.85 142 dt. 23.2.85 142 dt. 4.2.89

3 1988-89 56 Schools 1003 dt. 26.8.88 1004 dt. 26.8.88

From the pleadings made by the parties, it will be evident that the services of the Petitioners of C.W.J.C. No. 8634/96 (Rabindra Kumar), C.W.J.C. No. 4618/96 (Pradip Kr. Singh); C.W.J.C. No. 5353 of 1996 (Meena Mishra); and C.W.J.C. No. 9869/96 (Ganesh Choubey), have not been recognized, nor their absorption have been made by the State Government, as, according to them, these Petitioners are excess to the total number of strength of Assistant Teachers sanctioned for one or other second phase Project Schools of 1984-85.

The Petitioners who earlier moved before this Court in different writ petitions wherein certain orders were passed by this Court, are of no avail for the purpose of determination of issue in the present cases. In the four cases aforesaid, the sole issue to be determined relating to strength of Asstt. Teachers of a second phase Project Schools of 1984-85.

The question relating to recognition of services/absorption of teachers of second phase Project schools fell for consideration before a Single bench of this Court in the case of Smt. Manju Singh v. State of Bihar and Ors. in C.W.J.C. No. 4214/95, disposed of on 17th February, 1997. In the said case, this Court held that the teachers appointed by Private Managing Committee before selection of the school under the Project schools would not be entitled ipso jure to recognition of their services/appointments, if they fulfill the conditions of eligibility. The Court took into consideration the fact that the State Government has sanctioned a strength of only five teachers, including Head Master/Mistress for a second Phase Project school and held that this Court cannot issue any direction to increase the sanctioned strength, the same being policy matter and having financial implications. It is open to the State Government to accept/recognize the services of only such teachers who are considered suitable and useful. The Court also took into consideration the Clause (ii) of letter No. 142 dated 4th February 1989, wherein direction was given to recognize the services of five teachers, including Head Master/Mistress, keeping in view the Circular No. 705 dated 12th February, 1982 and Circular No. 1027 dated 2nd November, 1985 on the basis of "seniority, qualification and utility", as stipulated under Clause (iii) therein.

In the preceding paragraph, while I dealt the matter after taking into consideration the statement made in the counter affidavits, different circulars and the relevant office file, I also held that there are only five posts of teachers including Head Master/Mistress have been sanctioned for second phase Project Schools of 1984-85. Thereby, no positive direction can be issued by this Court for recognition/absorption of services of Petitioners of C.W.J.C. Nos. 8634/96; 4618/96; 5353/96; and 9869/96 at this stage.

Now one of the questions arise as to whether in accordance with staffing pattern, the State Government is required to sanction nine posts of, teachers to teach different subjects upto Secondary level? The guidelines issued under Circular No. 142 dated 4th February, 1989 is the only circular relevant for this purpose which lays down the manner in which recognition/absorption is to be made and the total number of sanction of posts. Under Clause (iii) therein, the staffing pattern has been laid down by the State which is as follows:

(a) Language Group- 3 (Hindi-1, English-1, Sanskrit-1);

(b) Humanities Group- 3 (Out of Home Science, History, Geography, Social Studies, Economics, any three on the basis of seniority and utility);

(c) Science Group- 2 (Mathematics-1, Zoology, Chemistry-1);

(d) Other Teacher- 1 (Out of Minority Language, Fine Arts, Commerce on the basis of seniority, eligibility and utility).

From the aforesaid staffing, pattern, it will be evident that three teachers are required for Language Group, one for Hindi, one for English and one for Sanskrit Language. Similarly, two teachers are required to teach Science Group, one Mathematics and one Zoology Chemistry. So far as teachers for Humanities Group and one other teacher is concerned, these four teachers are to be recognized on the basis of seniority, eligibility and utility and not the others. Thereby, at least nine teachers, including Head Master/Mistress are required for a Project School in terms with the staffing pattern.

Admittedly, there is difference between a secondary level Project School taken over in the first phase, second phase and third phase. The standard of teaching and classes in all these three phases Project Schools are same, except the manner and phase in which such Project Schools have been established/taken over. The teaching upto a particular standard/level (Secondary level herein) has got nexus with subjects to be taught upto such standard/level, number of classes available in such school and the total number of strength of students in such schools.

So far as the question of sanction of strength of teachers in one or other school is concerned, it is based on staffing pattern and the aforesaid factors, namely, standard/level upto which teaching is imparted, number of subjects taught in the school and the strength of students in different standards/classes, but it has no nexus with the manner in which such schools have been established/taken over and the year in which such school has been established/taken over.

Admittedly, on the basis of staffing pattern, the State Government has sanctioned nine posts of teachers including Head Master/Mistress for first phase Project Schools of 1981-82. This will be evident from letter No. 705 dated 12th October, 1982, wherein it has been stipulated that five teachers to be appointed in a school having three classes and nine teachers In a school having four classes. Similarly, nine posts of teachers, including Head Master/Mistress have been sanctioned for third phase schools of 1988- 89, on the basis of the same staffing pattern, which will be evident from letter Nos. 1003 and 1004, both dated 26th August, 1988. It is also accepted by the counsel for the State that while the schools were running under Private Managing Committee, permission to establish schools and their approval were granted on the basis of total strength of teachers which was nine in number, including Head Master/Mistress which was the basis on which the Private Managing Committee made appointments.

In the present case of second phase project school of 1984-85 the Respondents have not shown any reason to sanction only five posts of Teachers, while the staffing pattern stipulates at least nine posts.

It is not the case of Respondents that there is financial crisis for the present, which will be also evident from the fact that nine posts have been sanctioned for project schools subsequently taken over in the third phase.

Accordingly, the Respondents State and their officials, including the Commissioner and Secretary, Secondary Education; Director, Secondary Education; and Finance Commissioner and others are directed to consider the question relating to sanction of strength of teachers with respect to second phase Project Schools of 1984-85, which matter is pending since 1987, taking into consideration the staffing pattern, as laid down by the State Govt. under Clause (iii) of guidelines, contained in letter No. 142 dated 4th February, 1989; the number of teaching posts sanctioned for other Project Schools established/taken over in the first phase and third phase and the relevant factors of individual schools including the total number of class, subject required to be taught and the standard/level upto which teaching is imparted in one or other second phase Project Schools and to communicate such decision to the concerned Head Masters/Head Mistress of such second phase Project Schools immediately and not later than a period of six months from the date of receipt/production of a copy of this judgment. If on the basis of staffing pattern and other factors, further posts are sanctioned by the Stave Government, in that case, they will reconsider the cases of Petitioners of C.W.J.C. Nos. 8634/96; 4618/96; 5353/96; and 9869/96, for their recognition/absorption of services in their respective schools within a period of two months thereafter.

So far as C.W.J.C. No. 6881 of 1995 preferred by teaching and non teaching employees of Project Balika Uccha Vidyalaya, Thatopur is concerned, the issues involved in the present case are (a) whether the services of Petitioners i.e. employees of the then Balika Uccha Vidyalaya, Thatopur are to be recognized/absorbed under the State? and (b) whether a school already recognized Aaken over as Project School can be transferred from one Block to another Block?

From the pleadings made by the parties and the enclosures attached thereto, it appears that there is a disputed question of fact relating to appointment and functioning of teaching and non teaching employees of the school, including the Petitioners. The D.E.O. Darbhanga by impugned letter No. 830 dated 10th October, 1992 submitted report and found that none of the teachers are function in and the appointments are mere paper transaction. It was for the said reason, the Screening Committee declined to make recommendation as is evident from Order No. 350 dated 20th April, 1993. Similar stand has been taken by the State Government in their counter affidavit, wherein it is stated that the school, in question, does not have permission to establish, and there being poor attendance of students the viability of the school, in question, has been doubted.

In view of aforesaid disputed fact, no relief can be granted in favour of the Petitioners. However, in view of subsequent report submitted by D.E.O. Darbhanga vide letter No. 1028 dated 26th October, 1994, the Respondents are directed to reconsider the matter and decide the question whether they will accept such report or not. In this respect, a final decision to be taken within a period of six months from the date of receipt/production of a copy of this judgment.

As no relief is being granted in favour of the Petitioners at this stage and no specific finding can be given by this Court till the State of Bihar accepted the subsequent report of D.E.O. dated 26th October, 1994, this Court is not inclined to interfere with the impugned order of transfer of school from one Block to another, as made by letter No. 275 dated 27th July, 1995, at the instance of the present Petitioners.

At this stage, I may observe that one or other party relied on a Division Bench decision of this Court in the case of Kumud Kumari Srivastava and Others Vs. The State of Bihar and Others, , but I have not taken into consideration the aforesaid Division bench decision as the same stands set aside by Supreme Court''s order dated 23rd July, 1997 passed in Civil Appeal No. 10215 of 1996 analogous with other appeals (Usha Kumar v. State of Bihar and Ors.) and the matter stands remitted to this Court for hearing by a larger Bench.

As the issues involved in these cases, in hand, are not the issues raised in the case of Kumud Kumari Srivastava and Ors. (supra), no reference of the said case has been made by me In the present cases. One of the Petitioners, namely, Pradip Kumar Singh of C.W.J.C. No. 4618/96, though a party to an analogous case with the case of Kumud Kumari Srivastava (supra), but subsequent cause of action haying taken place after the decision of this Court, Kumud Kumari Srivastava (supra) and the impugned order dated 13th March, 1996 having issued by the State, which is not the subject matter in the earlier case, I preferred to decide the writ petition of Petitioner-Pradip Kumar Singh, without waiting the decision in the above cases.

Accordingly, ail the writ petitions stand disposed of in terms with the decision and direction, as mentioned above.