Rabindra Prasad Sinha vs The State of Bihar

Hemant Kumar Srivastava, J.—This writ petition has been preferred by the petitioner for issuance of direction to the respondents to count the petitioner''s service since 25.03.1954 to 31.03.1997 for fixation of his post retiral benefits.

Petitioner joined as Assistant Teacher in the M.C. High School, Gidhour, Jamui on 25.03.1954. The above stated school was an approved school with effect from 11.04.1946. Petitioner served the above stated school from 25.03.1954 to 17.01.1979 and subsequently, petitioner was given an opportunity to join at Bihari Lal Sharsaf High School, Rikhia, Deoghar as headmaster. Petitioner joined the said school on 18.01.1979 as headmaster and worked there up to 17.01.1988 and later on, he was transferred to J.B.C. High School, Jamtara District Dumka where he joined on 18.01.1988 and worked there till the date of his superannuation i.e. 31.03.1997. After his superannuation he submitted relevant documents for grant of his post retirement benefits but his entire service period was not counted by the concerned respondents for grant of retirement benefits and, therefore, petitioner approached this Court.

Two separate counter affidavits have been filed. One counter affidavit has been filed on behalf of respondent No. 4, the District Education Officer, Dumka, State of Jharkhand whereas other counter affidavit has been filed on behalf of respondent No. 2, the Director, Secondary Education, Government of Bihar, Patna. In both the above stated counter affidavits respondents have taken plea that there was breakage in service of the petitioner and, therefore, according to memo No. 636 dated 18.07.1992, the service period of the petitioner from 25.03.1954 to 17.01.1979 has not been counted for pensionary benefits.

Learned counsel for the petitioner submits that admittedly, petitioner, initially, joined in a recognized school and worked there till 17.01.1979 and thereafter, he was relieved from M.C. High School, Gidhour, District Jamui by the competent authority to join at Bihari Lal Sharsaf High School, Rikhia, Deoghar as headmaster and soon thereafter he joined the said school on 18.01.1979. It is contended by him that Bihari Lal Sharsaf High School, Rikhia, Deoghar was recognized by the Board vide memo No. 21430-36 dated 13.11.1979 with effect from 01.01.1979 which is evident from perusal of Annexure-2 to the writ petition and, therefore, it is wrong to say that petitioner joined in an unrecognized school and there was breakage of service. It is further contended by him that the State Government issued a circular on 31.07.1980 which says that cases of teachers occasioned by resignation, dismissal or transfer from service and break in service caused by the participation in strike will lead to break in service. The aforesaid circular also provides that break in service of teachers as a result of any other circumstance or factor shall automatically be treated to be condoned. The aforesaid circular dated 31.07.1980 was, later on, modified by the State Government by issuance of circular dated 15.01.1982 and break in service of teachers caused by resignation was deleted as a consequence of which it would not result in break of service. Again the resolution dated 15.01.1982 was modified by the State Government by issuance of another resolution dated 18.07.1992 which provides that if a teacher joins an unrecognized, non governmental secondary school prior to getting recognition shall entail the consequence of break in service. Learned counsel for the petitioner submits that admittedly, petitioner joined Bihari Lal Sharsaf High School, Rikhia, Deoghar on 18.01.1979 and even if it assumed that above stated school was not a recognized school at the time of joining of the petitioner, then also, the break in service of the petitioner had already been condoned by the State Government by issuance of resolution dated 15.01.1982 as the resolution dated 31.07.1980 had already been modified by resolution dated 15.01.1982 and ground of resignation to treat break in service had already been deleted. It is further contended by learned counsel for the petitioner that it is well settled principle of law that valuable right accrued to a person cannot be snatched subsequently by issuance of administrative order unless the aforesaid right is not curtailed by legislative act. It is contended by him that resolution dated 18.07.1992 is not applicable to the petitioner because the aforesaid resolution dated 18.07.1992 does not have retrospective effect. Moreover, petitioner joined Bihari Lal Sharsaf High School, Rikhia on 18.1.1979 and the aforesaid school was recognized with effect from 1-1-1979. Therefore, resolution Dated 18.7.92 is not applicable in the case of petitioner.

Learned counsel for the petitioner heavily relied upon a decision reported in Dhrub Roy Vs. The State of Bihar and Others, . in which in almost similar case a co-ordinate Bench of this Court allowed the prayer of petitioners of that case to count their entire period of service for grant of post retiral benefits condoning break in service. Learned counsel for the petitioner also cited decision of Division Bench reported in Shyam Kishore Singh Vs. State of Bihar and Others, in which it has been held that the pension is not a charity or a mercy of the master rather pension is a right of an employee.

On the other hand, learned counsel appearing for the respondents refuted the above stated submissions arguing that admittedly, petitioner joined, initially, in a recognized school but without getting any permission from competent authority left the aforesaid school and joined in an unrecognized school. It is further contended by him that vide resolution dated 15.01.1982 the State Government took decision to condone the break in service of teachers caused by voluntarily resignation but subsequently, when the State Government noticed that there was misuse of the aforesaid resolution, then the State Government modified the above stated resolution dated 15.01.1982 by issuance of another resolution dated 18.07.1992 and accordingly, it was decided by the State Government not to count the service of a teacher, if he resigns from a recognized school and later on, joins in an unrecognized school and in the light of aforesaid resolution, the respondents refused to count the service period of petitioner from 25.03.1954 to 17.01.1979. It is further contended by him that Bihari Lal Sharsaf High School, Rikhia, Deoghar was recognized by the Government from the date of issuance of notification dated 13.11.1979 and admittedly, petitioner joined the aforesaid school on 18.01.1979 when the aforesaid school had not been recognized by the State Government and, therefore, it is apparent that there was break in service of the petitioner.

Having heard the above stated rival contentions of both the parties, I went through the record. Admittedly, petitioner, initially, joined in a recognized school on 25.03.1954 and worked there till 17.01.1979 as Assistant Teacher. It is also an admitted position that petitioner joined at Bihari Lal Sharsaf High School, Rikhia, Deoghar on 18.01.1979. Annexure-2 to the writ petition shows that the aforesaid school was recognized by the State Government vide memo No. 21430-36 dated 13.11.1979 with effect from 01.01.1979 in respect of permission of appearance of students of the aforesaid school in examination and so far as the teachers of the aforesaid school were concerned, they were recognized from the date of issuance of letter of the State Government which had been issued on 13.11.1979. The above stated letter dated 13.11.1979 (Annexure-2) reflects that the aforesaid school was recognized in respect of students from 01.01.1979 whereas in respect of teachers from 13.11.1979. No doubt, the above stated letter dated 13.11.79 prescribes two different dates of recognition of the school for students and teachers but the crux of the matter is that the recognition was made in respect of school and admittedly, the school was recognized from 01.01.1979. Therefore, in my view, the above stated school was recognized from 01.01.1979 and admittedly, petitioner joined on 18.01.1979 and, therefore, the aforesaid fact clearly goes to show that petitioner left the recognized school and later on joined a recognized school and the circular dated 18.07.1992 is not applicable in case of the petitioner. The present case can also be looked through different angle. Admittedly, petitioner joined Bihari Lal Sharsaf High School, Rikhia, Deoghar on 18.01.1979 and after joining of the petitioner in the aforesaid school, the State Government having considered the harshness of resolution dated 31.07.1980 decided to modify the resolution dated 31.07.1980 by issuance of fresh resolution dated 15.01.1982 and the State Government condoned the break in service due to resignation and accordingly, modified the resolution dated 31.7.1980 and in case of resignation, it was decided that the resignation would not be treated as break in service. No doubt, again vide resolution dated 18.07.1992 the State Government decided to treat break in service of a teacher if he joins in an unrecognized school after resigning from a recognized school but, in my view, learned counsel appearing for the petitioner rightly submitted that the resolution dated 18.07.1992 is not applicable in the case of the petitioner because in view of resolution dated 15.01.1982 a valuable right had already been accrued in favour of the petitioner and the aforesaid right could not have been snatched by issuance of another administrative order which had no force of valid legislation. Therefore, in my view, the respondents committed error in not counting the entire service period of the petitioner for pensionary benefits.

Accordingly, this writ petition stands allowed and the respondents are directed to count the entire service period of the petitioner i.e. from 25.03.1954 to 31.03.1997 for pensionary benefits and ensure the payment of entire dues of the petitioner within three months from the date of receipt/production of a copy of this order.