Ramjee Sharma vs The State of Bihar and Others

Kishore Kumar Mandal, J.—Heard Mr. Singh learned Sr. Counsel in support of the application and counsel for the State. Counter affidavit and Supplementary counter affidavit have been filed on behalf of the State respondents. The petitioner has filed a rejoinder thereto.

The petitioner claims to have been appointed as Assistant Teacher (Science) in High School, Purainiya in the district of Patna and worked between 27.01.1969 to 18.08.1978. He was thereafter appointed and joined the K.B. Sahay High School, a government school, as Founder Headmaster. The petitioner superannuated from service with effect from 31.01.2001.

The claim of the petitioner for counting his service between the period 27.01.1969 to 18.08.1978 for the purpose of pensionary benefits has been rejected by the Respondent Director, Secondary Education vide order contained in letter dated 9.8.2005 (Annexure-8). The said order is in two parts. In first part the claim of the petitioner for counting the period of service between 02.07.1966 to 31.12.1967 and 27.01.1969 to 18.08.78 for the purpose of pension was rejected. In the second part of the order the claim for payment of salary for the period from 14.10.1993 to 07.03.1996 was considered and rejected. This Court is not concerned with the second part of the order wherein the payment of salary for the period 14.10.1993 to 07.03.1996 was rejected. The said part of the order is not under challenge. Learned counsel for the petitioner submitted that the present application also does not concern with the period 02.07.1966 to 31.12.1967.

It has been submitted that the petitioner during he period 27.01.1969 to 18.08.1978 had worked in High School, Purainiya which was a recognized School and drew salary. If that be so, then in the light of the resolution of the government contained in memo No. 636 dated 18.07.1992 (Annexure-D/1 to the supplementary counter affidavit of the respondent State), the petitioner is entitled to counting of the said period for pension and other related benefits. Learned counsel for the petitioner has also challenged the sustainability/legality of the order contained in Annexure-8 on the ground that the same does not set out reasons for not counting his work period in the High School, Purainiya between 27.01.1969 to 18.08.1978. The question, therefore, is whether the petitioner during the said period actually worked in the said school and drew salary. Secondly, whether the said school was a government recognized school. The petitioner has relied on the communication dated 21.05.1981 of the District Education Officer Patna (Annexure-1) in order to submit that the petitioner had actually worked in the said school which was a recognized school. Relying on Annexure-2 which is an order passed by the Joint Director, Secondary Education, Govt. of Bihar (Annexure-2) whereby the period spent by the petitioner in the said school was taken into consideration as his work experience for the purpose of granting the petitioner status of founder Headmaster for which at least seven years teaching experience was necessary. It has also been contended that the order impugned has been passed without looking to the relevant records concerning the petitioner including the service book(s)/record(s).

Mr. Verma learned counsel for the State relying on the statements made in the counter affidavit as well as supplementary counter affidavit has contended that the petitioner had actually not worked in the High School, Purainiya and drew the salary. It has also been submitted that the said school was not recognized one. This is what the respondents have stated in paragraph 4 of the counter affidavit and again in paragraph 4 of the supplement counter affidavit:-

That as regards the claim of the petitioner for counting his services from 02.07.1966 to 03.012.1967 and from 27.01.1969 to 18.08.1978 during which period he is said to have worked in High School, Itwa (Arwal) and High School, PU 27.01.1969 to 18.08.1978 Purainiya (Patna) respectively, it is submitted that this claim has been based only on the basis of the teaching experience certificates which were produced for his approval of services as founder Headmaster. In this regard, no proof was submitted in the Department that he had actually worked in the aforesaid school or his services were approved by the competent authority and payments were made to him from the Government fund.

That it is stated that the petitioner has claimed that during the period from 27.1.1969 to 18.8.1978 he was in High School, Itwa (Arwal) and High School, Pureina (Patna) respectively. In this regard it is submitted that this claim of the petitioner is based only on a certificate regarding his working in the aforesaid school in question (Annexure-1 to the writ petition) and no other document, like order of the competent authority in respect of approval of his the aforesaid service, proof regarding payment of salary from the government fund and the appointment letter issued from the competent authority has been produced by the petitioner before the Department or before this Hon''ble Court. From the official records, it appears that the petitioner was appointed without pay as Assistant Teacher in proposed K.B. Sahay High School, Sheikhpura (Patna) vide Memo No. 21 dated 17.12.1970 issued by the Secretary of this School. Therefore the claim of the petitioner cannot be correct that during the aforesaid period he was working in two other schools K.B. Sahay High School, Sheikhpura (Patna) was recognized on 08.11.1979 and from that date his services was approved therefore the petitioner entered into government service with effect from 08.11.1979 and accordingly, his claim for counting his service period to this date has rightly been rejected. The petitioner, who was not in government service prior to 08.11.1979, is not entitled to any benefits treating him as a government servant before that date.

In the rejoinder the petitioner has stated as under in para 4:-

That the statement made in para-3 & 4 of the counter affidavit copy served to the deponent on 5.5.11 it is submitted that the respondents have not gone through Annx-1 and 2 of the writ application in Annex-1 of his own officer, the District Education Officer in clear word stated that the petitioner from 27.1.69 to 31.5.70 and July 70 to 18.8.78 has worked as Science teacher in High School Purainiya, Patna, his post was sanctioned and approved and has been paid dearness allowance etc. The respondents are much and very well aware from this fact also from the circular and instruction of Education department that from 1965 to 1967 the process of payment was by different grant from 1.7.68 up 1973 by Kothari Commission and from 1.4.74 upto taken over 1980 salary in the scale of 220-340/- and D.A. were paid by the every District Education officer by Bank draft to each school of their area and the fees which were collected in the school were deposited by Band draft in District Education fund by the every school. Further more the respondents has not gone through Annx-2 from which his statement will falsify. They must get the answer of their entire statement made in para 4 from perusal of Annex-1 and 2. The appointment as Asstt. Teacher does not arise and the deponent never joined and worked as Asstt. Teacher not paid any thing. It is further submitted that the High School, Purainiya has got the permission of establishment vide memo No. 1627 dt.- 19.3.64 and permanent affiliation/recognition vide memo No. 7243 dt. 2.12.65 by the Bihar Secondary Education Board. Further more, the service book of the petitioner which is in the custody of respondents contained the full reference in regard to the payment from 27.1.69 upto the date of superannuation i.e. 31.1.2001.

Thus, before this Court there are two versions. The present application has brought on record certain more facts having some bearing on his claim as depicted in the rejoinder to the counter affidavit setting out details to demonstrate that the school in which the petitioner worked between 27.1.1969 to 18.8.1978 was recognized. It has been submitted that further details with respect to the status of the school in which the petitioner worked between the said period can also be found from the government records as well as the service book(s)/record(s) of the petitioner.

Having heard the parties, this much is evident that the impugned order (Annexure-8) was passed by the respondents without affording adequate opportunity to the petitioner to place his case on record for consideration. The order definitely prejudices the petitioner. The order impugned also does not set out reasons therefore. As noticed above, the petitioner has several more facts to be placed in support of his claim. This Court would also notice the stand of the respondents in the counter affidavit that there is incoherence in the stand of the petitioner when he asserts that he worked from 27.1.1969 to 18.8.1978 in High School Purainiya. Without recording any opinion on the stand and the counter stand taken by the parties, this Court is satisfied that the ends of justice shall be sub-served if the concerned respondent is directed to pass a fresh order on the said claim of the petitioner looking to the relevant records and document to be produced by the petitioner. For the reasons noted above, this Court sets aside the order passed by the Respondent, Director Secondary Education, dated 9.8.2005 (Annexure-8). The petitioner is granted liberty to make a fresh representation supported by all relevant documents in his possession within five weeks from today before the said respondent. The Respondent, Director Secondary Education shall pass a fresh order in accordance with law on the said claim/representation of the petitioner. It is left to the discretion of the said respondent to grant personal hearing, if a request is made in this regard, to the petitioner. The Respondent Director shall dispose of the said representation of the petitioner by a reasoned order within eight weeks of its filing/presentation along with a copy of this order.