Rabindra Sharma vs The State of Bihar

Hemant Kumar Srivastava, J.—Both the above stated writ petitions have been filed for issuance of a direction to the respondents to reckon their services from the date of their initial appointment for grant of pensionary benefit and other consequential benefits. Since the common issue was involved in both the above stated writ petitions, accordingly, the above stated writ petitions were heard together and common judgment is being passed.

CWJC no. 6333/2009

Petitioner Rabindra Sharma was appointed on 01.08.1974 as assistant teacher in Ram Ratan High School, Sachai, Kurtha, Gaya. At the time of his appointment, he was not a trained teacher. The above stated Ram Ratan High School, Sachai, Kurtha, Gaya was established by the villagers of Sachai village and permission for establishment of the aforesaid school was granted by the State Government on 01.01.1970. The recognition of the aforesaid school was granted on 06.07.1976 and later on, the above stated school was taken over by the State Government under the provision of the Bihar Non-government Secondary School (Taking over Management and Control) Act, 1981 with right and liabilities including services of the employees. The service of the petitioner was taken over by the State Government with effect from 02.10.1980. The services of the teachers of the privately managed schools before their taken over were being guided under Circulars and Notifications issued from time to time by Bihar Secondary Education Board and vide letter no. 6746-6829 dated 01.03.1979 the then Secretary of the Bihar Secondary Education Board issued circular regarding recognition of services of teachers appointed in a school prior to recognition of the school and it was decided that date of the initial appointment of a teacher will be recognized for all purposes except payment of salary after the date of final recognition. After issuance of the aforesaid circular, Bihar Non-government Secondary School (Taking over Management and Control) Act, 1981 came into force and according to section 4(3) of the aforesaid Act, service condition of the teachers and other employees of taken over schools shall remain the same as it were before taking over till the State Government makes any change in these conditions by the procedure prescribed.

Petitioner was transferred to another school vide memo no. 286 dated 31.01.1987 and again, he was transferred to High school, Mohanpur, Gaya vide memo no. 894 dated 29.06.1998 and lastly, he was transferred to Praveshika Vidvalaya, Sakurabad, Jehanabad from where he was superannuated from service on 31.01.2006 as assistant teacher. Petitioner served for a total period of more than 30 years but his pension was fixed at Rs. 6014/- which is 40% of the basic pay and similarly, gratuity amount of the petitioner was also fixed much less than actual amount for which petitioner was entitled. Similarly, proper rate of interest on GPF amount was also not paid to the petitioner. Petitioner made representation against fixation of his pension but of no avail and hence, he filed this writ petition.

CWJC no. 6988/2009

Petitioner Md. Zafar Imam was also appointed on 16.01.1971 as assistant teacher in above sated Ram Ratan Sachai School, Kurtha, Gaya which was taken over by the State Government with effect from 02.10.1980. Petitioner-Md. Zafar Imam was transferred to High school, Arthua, Aurangabad in the year 1995 and again, transferred to High School, Kinjar, Jehanabad in the year 1999 and, thereafter, he was superannuated from service on 30.09.2005 and accordingly, he served for near about 34 years but his pension was fixed only 42% of the basic pay whereas he was entitled for 50 % of the basic pay. He made representation but went in vain.

Three separate counter affidavits have been filed in CWJC no. 6333/2009. One counter affidavit has been filed on behalf of the respondent no. 6, Accountant General, Bihar, Patna mentioning therein that the petitioner in CWJC no. 6333/2009 was appointed as untrained teacher on 01.08.1974 and he became trained on 23.09.1979. The concerned school was recognized on 06.07.1976 and the Education Commissioner, Bihar vide letter no 2313 dated 27.06.1978 directed that services of untrained teachers working in such schools which had been recognized between 25.05.1974 to 18.06.1977 would be approved with effect from 24.02.1978 and in the light of the aforesaid direction, pensionary benefits of the petitioner have been calculated on the basis of his qualifying service from 24.02.1978 to 31.01.2006.

A separate counter affidavit has been filed on behalf of the respondent no. 3, the District Provident fund officer, Jehanabad in CWJC no. 6333/2009 mentioning therein that the petitioner has not raised any grievance in respect of his provident fund and there is no need to clarify to the averments made in the writ petition.

Respondent no. 2 has filed separate counter affidavit in CWJC no. 6333/2009 mentioning therein that permission for establishment of the concerned school was granted vide memo no. 11051-54 dated 29.03.1976 and at the time of grant of recognition of the aforesaid school, list of teaching and non-teaching staff appointed by the Managing Committee in anticipation of their approval by the competent authority was submitted and in the aforesaid list, name of the petitioner was also mentioned as teacher and his date of appointment was shown as 01.08.1974 as untrained graduate. The school was recognized on 06.07.1976 and service of the trained teachers was only recognized and since the petitioner was not a trained teacher, his service was not approved at the time of recognition of the school but subsequently, government decided for approval of service of untrained teachers who were appointed in such schools which were recognized after 21.05.1974 on the condition that such teachers got themselves trained within the calendar year 1978. The government approved services of untrained teachers who successfully completed their training examination during the session 1978-79 with effect from 24.02.1978. In the aforesaid regard, government issued first circular vide letter no. 808 dated 24.02.1978 and second circular vide letter no. 2314 dated 27.06.1978 and in view of the aforesaid circulars, service of the petitioner was approved with effect from 24.02.1978 and he was allowed to draw his salary from government fund with effect from 24.02.1978 because prior to 24.02.1978, he was not an approved teacher. It has also been pleaded that since petitioner was not possessing requisite qualification, his service was not approved but when he obtained requisite qualification, his service was approved with effect from 24.02.1978 in the light of the aforesaid circular and accordingly, petitioner entered into government service with effect from 24.02.1978. It has also been pleaded that after coming into force of the Bihar High School Service Condition Rules, 1972 training qualification became essential for assistant teachers except the teachers of classic language and the teachers who were working prior to 01.08.1972 i.e. the date of enforcing the Bihar High School Service Condition Rules, 1972.

In CWJC no. 6988/2009 also three separate counter affidavits have been filed. First counter affidavit has been filed on behalf of the respondent no. 6, Accountant General, Bihar, Patna and it has been pleaded that the petitioner was appointed as untrained teacher and became trained on 23.09.1979 and in the light of letter no 2313 dated 27.06.1978 his service was approved with effect from 24.02.1978 and accordingly, his qualifying service was counted from 24.02.1978 to 30.09.2005 at the time of calculation of pensionary benefit.

Counter affidavit filed on behalf of respondent no. 4, District Provident fund officer, Jehanabad reveals that petitioner had not contributed subscription of GPF at the rate of 12 % of his pay during the period July, 1985 to July, 1995 and accordingly, interest at the rate of 121/2 % was not applicable in the light of letter no. 15396 dated 23.11.1996. A chart of calculation has been annexed by respondent no. 4 with this counter affidavit.

Respondent no. 2 has pleaded almost similar grounds which have been pleaded in CWJC no. 6333/2009 and it has specifically been pleaded that since the petitioner was not a trained teacher, his service was not approved at the time of recognition of the school and after completion of training, his service was approved with effect from 24.02.1978.

Learned counsel appearing for the petitioners submits that Bihar Non-government Secondary School (Taking over Management and Control) Act, 1981 was published in Bihar gazette on 24.01.1982 and by the aforesaid Act, the State Government took over control of management and administration of the non-governmental schools of the State of Bihar by passing the aforesaid Act. Section 4(3) of the aforesaid Act provides that the service conditions of headmasters, teachers and other non-teaching staff shall remain the same which were applicable from before coming into force of aforesaid Act unless it is amended by the Government through the prescribed procedure. It is further contended by him that section 9 of the aforesaid Act conferred power to the State Government to make rule in respect of service conditions of headmasters, teachers and non-teaching staff of a nationalized school. It is further contended by him that in exercise of power vested in State Government under section 9 of the above stated Act, State Government framed Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983 and Rule 3 of the above stated Rules makes four categories of teachers such as headmasters (Pradhandhyapak), assistant teacher (Selection grade), assistant teacher (Subordinate grade) and assistant teacher (Junior grade). It is submitted that the Assistant Headmaster, post graduate scale teacher, selection grade teacher and the teachers appointed prior to 18.09.1972 in untrained graduate scale and trained graduate scale were put under the category of Assistant teacher (subordinate grade). It is further contended by him that sub-clause (d) of Rule 3 of the above stated Rules, 1983 says that all untrained graduates, Shastri, Aalim, intermediate selection grade category, trained metric (selection grade) and other qualified teachers appointed after 18.09.1972 were put under the category of assistant teachers (junior grade). A comment has also been annexed with Rule 3 which says that all common assistant teachers of nationalized schools will be in the category of assistant teachers (subordinate grade) and if any assistant teacher of junior grade gets qualification of trained graduate, he shall be put under the category of assistant teacher (subordinate grade) from the date on which he gets the aforesaid qualification. Learned counsel for the petitioner further submits that after coming into force the above stated Act, 1981 as well as Rules, 1983, all the previous provisions, circulars, notifications, rules and instructions were ceased to exist and, therefore, the respondents committed an error in not reckoning qualifying service of the petitioner in accordance with Rules 1983. In support of his contention, he relies upon a decision of Bharat Prasad Chourasia Vs. State of Bihar and Others, in which at para 8, it has been observed by a bench of this court as follows:-

Para 8 "It is thus to be seen that untrained teachers appointed prior to 18.9.1972 (like the 43 petitioners in this batch of cases) were included, amongst others, in the category of Assistant teachers of the subordinate grade and those appointed after that date were classified in the junior grade".

It has further been contended by him that in similar situated fact, a division bench of this court in LPA no. 1289/2005 (Shyam Kishor Singh vs. State of Bihar & ors) vide order dated 13.11.2006 directed the concerned authority to reckon the total period of service of the appellant of the aforesaid case for pensionary benefit. It is further contended by him that now it has been well settled that service of a teacher of a nationalized school is regularized from the date of permission granted by the authority for establishment of the concerned school. He relies upon a decision of Chulhai Prasad Singh Vs. The State of Bihar and Others, in which division bench of this court having relied upon circular dated 01.03.1977 directed the competent authority to fix pension treating the date of joining of appellant of the aforesaid case from the date of establishment of the concerned school.

On the other hand, learned counsel appearing for the respondents submits that admittedly, school in question was recognized on 06.07.1976 and at that time Managing Committee of the school submitted list of teachers and non-teaching staff but only services of trained teachers were approved and in the aforesaid list, petitioners were shown as untrained teachers and therefore, their services were not approved. However, later on, the State Government issued letter no. 808 dated 24.02.1978 making provision that services of untrained teachers who were appointed in recognized schools after 21.05.1974 shall be approved, if they got themselves trained within the calendar year 1978 and again, government issued letter no. 2314 dated 27.06.1978 making provision that services of untrained teachers in the schools which were recognized between 21.05.1974 to 18.06.1977 shall be approved with effect from 24.02.1978, if untrained teachers pass and complete training examination during the session 1978-79 and date of the regularization of service of the above stated teachers was fixed as 24.02.1978 which was a date of publication of training examination. It is contended by him that admittedly, when petitioners were appointed in the concerned schools, they were not trained teachers whereas it was mandatory in the light of the Bihar High School Service Condition Rules, 1972, which came into force with effect from 18.09.1972, that only trained teacher could have been appointed. It is contended by him that since petitioners were not trained teachers their services were not approved at the time of taking over the concerned school but when they cleared training examination, their services were regularized with effect from 24.02.1978. It is further contended by him that the cases cited on behalf of the petitioners are not applicable in this matter because letter no. 808 dated 24.02.1978 and letter no. 2314 dated 27.06.1978 were not considered in the above stated cases. It is further contended by him that when petitioners were not on the role of school prior to 24.02.1978, question of counting their services for pensionary benefit does not arise.

Having heard the contentions of all the parties, I went through the record, relevant circulars and rules. Certain facts are admitted in these cases. It is an admitted fact that the petitioner in CWJC no. 6333/2009 was appointed in the concerned school on 01.08.1974 as untrained teacher because at the time of his initial appointment, he was not trained teacher. Furthermore, it is an admitted position that prior to appointment of the petitioner, Bihar High School service condition Rules, 1972 had already come into force with effect from 18.09.1972 and the aforesaid rules make teachers training mandatory for appointment of assistant teacher in high school. Furthermore, it is an admitted position that permission for establishment of school in question was granted on 01.01.1970 and the said school was recognized 06.07.1976. Later on, on 02.10.1980 the aforesaid school was taken over after enactment of Bihar Non-government Secondary School (Taking over Management and Control) Act, 1981. Furthermore, it is an admitted position that the petitioner in CWJC no. 6333/2009 was superannuated from service on 31.07.2006. It is also an admitted position that the petitioners were sent for training by the competent authority in the session 1978-79 in the Government Teachers'' College, Bhagalpur and they successfully completed their training and their results were published on 23.09.1979. It is also an admitted position that the petitioner in CWJC no. 6988/2009 was appointed on 16.01.1971 and at the time of his appointment, teacher training was not essential because the aforesaid qualification was made essential from 18.09.1972 i.e. after coming into force of the Bihar High School Service Condition Rules, 1972.

Admittedly, State Government issued letter no. 808 dated 24.02.1978 by which State Government granted liberty to those untrained teachers, who were working on sanctioned post in a nationalized school after 21.05.1974, to get themselves trained within the calendar year 1978 and furthermore, the aforesaid letter says that those untrained teachers, who were not working on sanctioned post, question of regularization of their service does not arise and their services stand terminated automatically after 04.03.1978. Again, by issuance of letter no. 2314 dated 27.06.1978 State Government made provision in respect of those untrained teachers, who were appointed after 21.05.1974 to 18.06.1977 in a nationalized school on sanctioned post and decided that their appointment shall be treated from 24.02.1978, if they successfully complete training but between the aforesaid period, their services shall be protected.

It is not in dispute that the petitioners were not working on sanctioned post and only issue involved in the present matter as to when services of the petitioners were regularized. According to the State, since the petitioners were not trained teachers, their services were regularized with effect from 24.02.1978 in the light of letter no. 808 dated 24.02.1978 and letter no. 2314 dated 27.06.1978.

Petitioners have relied upon Rule 4 of the Bihar Non-government Secondary School (service condition) Rules, 1983. The rule 4 of the aforesaid rules, admittedly, prescribes four categories of teachers. First category relates to headmaster, second category relates to assistant teacher (selection grade), third category relates to assistant teacher (subordinate grade) and fourth category relates to assistant teacher (junior grade). In the category of assistant teacher (subordinate grade), assistant headmaster, teachers of post graduate scale, teacher of selection graduate scale and untrained teacher of graduate scale as well as trained teacher of graduate scale and other teachers, who were appointed till 18.09.1972, were put in the above stated category. Similarly, untrained graduate, Shastri, Aalim, trained intermediate (selection grade), trained metric (selection grade) and other qualified teachers, who were appointed after 18.09.1972, were put under the category of assistant teachers (junior grade). Therefore, it is apparent from the aforesaid rule that untrained graduate teachers, who were appointed after 18.09.1972, were recognized by the above stated rule as assistant teacher (junior grade) and similarly, untrained teachers, who were appointed prior to 18.09.1972, were treated as assistant teachers (subordinate grade). The above stated Rules 1983 was made by the State Government by exercising power vested in the State Government under section 9 of the Bihar Non-government Secondary School (Taking over Management and Control) Act, 1981. Furthermore, rule 21 of rule 1983 repeals the previous rules and orders framed by the Bihar Secondary Education Board or the State Government from the date of enforcement of Rule 1983 and furthermore, rule 21(2) of Rule 1983 says that anything done by the State or any action taken under the prevalent rules and orders shall be deemed to have been done or taken under these rules as if these rules were enforced on the date on which such thing was done or action taken.

Admittedly, permission for establishment of school in question was granted on 01.01.1970 and the petitioner in CWJC no. 6333/2009 was appointed on 16.01.1971 in the aforesaid school as untrained teacher and at the time of appointment, he was graduate. The above stated school was recognized on 06.07.1976 and was taken over by the State on 02.10.1980.

It is an admitted position that when several schools were taken over by the State Government, a dispute arose in respect of regularization of services of untrained teachers because several teaches had already been appointed in the private schools by the management and to resolve the aforesaid dispute, the State Government issued letter no. 808 dated 24.02.1978 which says that the untrained teachers, who were working in recognized schools on sanctioned post after 21.05.1974 shall get themselves trained in calendar year 1978 and if they fail to get themselves trained within the above stated period, their services shall not be regularized and similarly, those untrained teachers, who were not working on sanctioned post, their services shall not be recognized. Again, letter no. 2314 dated 27.06.1978 was issued by the Government stating the similar fact and decided to regularize services of those untrained teachers who completed training in calendar year 1978 with effect from 24.02.1978.

Admittedly, after issuance of both the above stated letters, the Bihar Non-government Secondary School (Taking over Management and Control) Act, 1981 came into force and the aforesaid Act gave power to the State Government under section 9 to frame service condition of headmasters, teachers and non-teaching staffs. The State Government framed Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983 and by the aforesaid Rules, State Government treated untrained graduate teachers, who were appointed after 18.09.1972, as assistant teachers (junior grade) whereas untrained graduate teachers, who were appointed prior to 18.09.1972, were treated as assistant teachers (subordinate grade). Furthermore, rule 5(Aa)(4) of Rules 1983, again, clarifies the doubt and prescribes that the untrained graduate teacher, who was appointed after 18.09.1972, shall be recognized as Assistant teacher (junior grade). It is an admitted position that by letter no. 2314 dated 27.06.1978, State Government gave liberty to those untrained graduate teachers, who were working after 21.05.1974 to 18.06.1977 on sanctioned post to get themselves trained within the calendar year 1978 and till then they were also given benefit of service protection. Admittedly, in the instant case, both petitioners participated in the training and successfully completed their training. Therefore, the aforesaid fact clearly goes to show that both petitioners were on service role in the concerned school till 24.02.1978 and that was the reason, they were permitted to participate in the training and after completion of training, their services were regularized with effect from 24.02.1978 in the light of letter no. 2314 dated 27.06.1978. Subsequently, when the Government framed Bihar Nationalized Secondary Schools (Service) Conditions Rules, 1983, State Government again, gave relaxation to untrained graduate teachers and post graduate untrained teachers who were appointed prior to 18.09.1972 and put them under the category of assistant teachers (subordinate grade) and untrained graduate teachers, who were appointed after 18.09.1972, were put under the category of assistant teachers (junior grade) and therefore, in view of the aforesaid specific provision of rules 1983, the State Government can not say that the petitioners are not entitled to get their regularization from the date of their appointment because even if the State Government recognized their services from 24.02.1978 by letter no. 2314 dated 27.06.1978, then also, after coming into force of rules 1983, letter no. 2314 dated 27.06.1978 became redundant because rules 1983 recognizes untrained graduate teachers, who were appointed after 18.09.1972, as assistant teachers (junior grade).

Therefore, in view of the aforesaid facts and circumstances, I am of the opinion that the respondents committed error in reckoning the services of the petitioners from 24.02.1978 and I am also of the view that services of the petitioner in CWJC no. 6333/2009 ought to have been reckoned by the respondents from 01.08.1974, the date of his initial appointment and similarly, service of the petitioner in CWJC no. 6988/2009 ought to have been reckoned by the respondents from 16.01.1971, the date of his initial appointment because there is nothing on record to show that there was any break in the services of both petitioners.

On the basis of the aforesaid discussions, both the above stated writ petitions stand allowed and the respondents, particularly, respondent 3- District Education officer, Arwal, Jehanabad is directed to calculate the period of services of the petitioner in CWJC no. 6333/2009 for pensionary and other consequential benefits with effect from 01.08.1974 and similarly, service of the petitioner in CWJC no. 6988/2009 for pensionary and other consequential benefits with effect from 16.01.1971 and to ensure payments of pensionary and other consequential benefit with effect from above stated respective dates to the petitioners within the period of four months from the date of receipt/production of a copy of this order.