Sri Niwas Singh vs The State Of Bihar
2023 Latest Caselaw 3765 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.12062 of 2021
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Sri Niwas Singh Kalvir Singh Resident of Village-Sirsaballi Tola, Khemkaran, Saray Bakhsh, P.S.-Bheldi, District-Saran.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Education Department, Govt. of Bihar, Patna

2. The Director Secondhary, Education Department, Govt. of Bihar, Patna

3. The District Education Officer, Vaishali.

4. The District Programme Officer (Establishment), Vaishali.

5. The Deputy Director, Provident Fund Directorate, Finance Department, Govt. of Bihar, Patna.

6. District Provident Fund Officer, Vaishali.

7. The Accountant General, Govt. of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Sudhir Kumar Singh, Advocate Mr. Dhananjay Kumar Tiwary, Advocate Mr. Priyesh Kumar, Advocate Amicus Curiae : Mr. Bindhyachal Singh, Sr. Advocate For the Respondent/s : Mr. Mrigendra Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 17-08-2023 Heard Mr. Sudhir Kumar Singh, learned counsel

appearing on behalf of the petitioner; Mr. Bindhyachal Singh,

learned Senior Counsel as Amicus Curiae and Mr. Mrigendra

Kumar, learned counsel for the respondent/s.

2. Hard copy of the supplementary affidavit filed

on behalf of the petitioner is kept on record.

3. The petitioner has filed the writ petition for

following relief(s):

"1. That petitioner is invoking the Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

extra ordinary writ jurisdiction of the Hon'ble Court for issuance of following writ/writs, order/orders, direction/directions:-

(i). For a direction to the respondents authorities to pay the entire amount of post-retirement benefits such as gratuity, GPF and pension with arrears.

(ii). Also commanding the respondent authorities to make payment of arrears of salary due w.e.f. 01.01.1989 to 31.03.2019 including the benefits of ACP and MACP as applicable under the law and liable to be paid to the petitioner.

(iii). Also to commanding the respondent authorities to payment of interest over the aforesaid due amount @ 12% per annum.

(iv). Also for any other relief/ reliefs if petitioners found entitle in the fact and circumstances of the present case."

4. The relief(s) sought for by the petitioner is based

on the policy decision of the State Government taken in the year

1981 with objective to establish four boys and girls high school

at each block level and, thereafter, the same was modified from

time to time. Petitioner's school is girls high school. The

manner in which the teachers were required to be appointed was

prescribed in circular dated 21.01.1982 and the appointment of

teachers were made by the Vidyalaya Seva Board in terms of

Letter dated 23.02.1985. The State Government also considered

to take initiative to establish three project school in the category

of nationalized school including the school run by the Managing

Committee, however, the condition was made that even the

teachers of the private schools were to be appointed by the Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

Vidyalaya Seva Board.

5. Dispute arose and the matter went up to the Apex

Court and pursuant to the direction of the Apex Court, 'Three

Men Committee' was constituted by the State Government.

Cases relating to the school and its teaching and non-teaching

staffs were placed before the 'Three Men Committee'. The

Committee, on consideration of the report submitted by the

R.D.D. had rejected the claim of the petitioner's school. The

petitioner being prejudiced by the non consideration of his case

had approached this Court by filing writ petition bearing CWJC

No. 2127 of 2013, which was disposed of vide order dated

29.08.2013.

6. This Court had passed inter alia following order

by directing the Director, Secondary Education, to reconsider

his earlier decision in light of the two documents as contained in

'Annexure-8' to the writ petition and 'Annexure-9' to the

rejoinder to the counter affidavit:

"Heard learned counsel for the parties.

The prayer of the petitioners, in this writ application, reads as follows:

"for quashing the order 235/ P dated 11.05.2010 issued by respondent no.3 rejecting the representation of the petitioners for payment of salary on unsustainable / non-existing reasons and granting relief or reliefs to which the petitioners are Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

found entitled to."

As the prayer is confined to quash the order dated 11.05.2010, which has been assailed after more than two and half years of its being passed, it will be also necessary to quote the relevant portion of the impugned order dated 11.05.2010 which reads as follows:

"ekuo lalk/ku fodkl foHkkx fcgkj fcgkj ek/;fed f"k{kk dk;kZy;] cq) ekxZ] iVuk A dk;kZy; vkns"k iVuk] fnukad 11&5&2010

Lka[;k ifj@ ek0 f"k0 309@2008 235¼ih½@flfoy vihy la[;k&6626&6675 @2001 ds lkFk layXu flfoy vihy la[;k 6676&6681@2001 fcgkj ljdkj ,oa vU; cuke ifj;kstuk mPp fon~;ky; f"k{kd la?k ,oa vU; esa ekuuh; mPpre U;k;ky; }kjk fnukad 30-01-06 dks ikfjr vkns"k ds vkyksd esa xfBr f=lnL;h; tk¡p lfefr dh vuq"kalk ,oa ea=h ifj'kn~ dh Lohd`fr ds ckn foHkkxh; vkns"k la[;k 720 ih fnukad 26-8-08 }kjk ;ksxsUnz "kqDy Lukrd ifj;kstuk ckfydk mPp fon~;ky; tykyiqj ykyxat oS"kkyh dks ljdkj ls lh/ks lapkfyr gksus rFkk ljdkj Lrj ls fon~;ky; izca/k lfefr }kjk lapkfyr fon~;ky; ds :i esa p;fur ugha gkssus ftyk inkf/kdkjh dh v/;{krk esa xfBr f=lnL;h; lfefr }kjk p;fur ugha gksus ,oa vij f"k{kk funs"kd ds gLrk{kj ls fon~;ky; dk ifj;kstuk izfrosnu izkIr ugha gksus ds dkj.k bl fon~;ky; esa dfFkr :Ik ls fon~;ky; izca/k lfefr }kjk fu;qDr ,oa dk;Zjr f"k{kd@deZpkfj;ksa ds lsok ekU;rk gsrq izkIr vkosnu i=ksa dks vLohd`r fd;k x;k A vkns"k dh dafMdk ¼2½ esa fufgr izko/kku ds vkyksd esa izkIr vH;kosnuksa dh leh{kkijkUr ik;k x;k fd vH;kosnuksa esa dksbZ u;k rF; ;k ,slk dksbZ Hkh lk{; miyC/k ugha djk;k x;k ftlls ;g Kkr gks fd budk ekeyk ea=h ifj'kn~ }kjk Lohd`fr uhfr ds vUrxZr fopkj.kh;

Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

gS A vr% ljdkj ds vkns"kkuqlkj mi;qZDr fo|ky; esa f"k{kd @ f"k{kdsRrj deZpkjh ds :Ik esa dk;Zjr jgus laca/kh izkIr vH;kosnuksa dks vLohd`r fd;k tkrk gsS A g0@& vLi'V ¼dey dqekj flUgk½ funs"kd ¼ek0 f"k0½ fcgkj] iVuk A**

Learned counsel for the petitioners, assailing the aforementioned order, solely for the purpose of claiming for payment of salary of the petitioners, have taken a categorical stand that the finding recorded by the Director, Secondary Education, with regard to the functioning of the School under direct control of the State Government from its inception is factually incorrect. This Court, accordingly, had directed the respondents to file their counter affidavit. In the counter affidavit, in paragraph 13, the stand has been taken as follows:

"That on the other hand, it was found that this School was directly established and run by the Government. During the consideration, it was found that no project report was sent by the Additional Director of Education in the year 1989 for the purpose of approval of services of the teaching and non-teaching staff appointed by any managing committee in the School."

Learned counsel for the petitioners, in reply to the said counter affidavit, has now come out with a document, being a letter of the District Education Officer, Vaishali, addressed to Director, Secondary Education, dated 06th August, 1991 which, according to him, would demolish the finding recorded by the Director, Secondary Education. He has also placed reliance on a format dated 19.06. 2006 signed by Regional Deputy Director of Education, Tirhut, Muzaffarpur, to contend that even that will go to show that the Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

School in question while it was the Project School, was being run by the Private authorities.

Though this Court had no reason to disbelieve the stand taken by the respondents in the counter affidavit but as new fact has been sought to be brought before this Court through Annexures-8 and 9 and the order of the Director, Secondary Education, does not disclose as to whether these documents were taken into account, this Court, without interfering with the impugned order, for the present, would direct the Director, Secondary Education, to reconsider his earlier decision in the light of the aforementioned two documents, that is, Annexure- 8 to the writ application and Annexure-9 to the rejoinder to the counter affidavit.

This exercise must be completed by the Director, Secondary Education, within a period of six months from the date of receipt of a copy of this order which should be produced by the petitioners along with representation by two readable attested copies of Annexures-8 and 9.

With the aforementioned observation, this application is disposed of."

7. The Director, Secondary Education, passed order

contained in Memo No. 138 dated 18.10.2017. Pursuant to the

said order, the petitioner was receiving salary with effect from

18.10.2017 from the date of the order. The petitioner is now

aggrieved for non-payment of his arrears of salary from

01.01.1989 till 31.03.2018, held by respondents since

18.10.2017. In support of his claim, the petitioner's stand is that

since the recognition has been granted to the school with

retrospective date from 01.01.1989, the petitioner is entitled for

salary as is being paid to the government employees and other Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

teachers similarly situated like petitioner.

8. Learned counsel appearing on behalf of the

petitioner submitted that the District Programme Officer

(Establishment), Vaishali and the District Provident Fund

Officer, Vaishali, have filed a joint affidavit, in which they have

accepted the claim of the petitioner, however, so far as the claim

of the petitioner with respect to the payment of arrears of salary

along with the interest has not been denied nor any statement in

this regard has been made in the counter affidavit. He refers to

supplementary counter affidavit in which vague statement has

been made that the District Education Officer, Vaishali had suo

moto constituted a 'Three Men Committee' and the said

committee had submitted report contained in Memo No. 425

dated 12.09.2022 with a comment that the attendance of the

teachers were found prima facie suspicious. Thereafter, a joint

enquiry report was submitted by the District Programme Officer

(Establishment) Vaishali and District Programme Officer,

Secondary Education, Vaishali vide Memo No. 524 dated

02.02.2023, stating therein that the petitioner was never worked

in the said school (Annexure -D). Consequently, the District

Education Officer, Vaishali passed order vide Memo No. 240

dated 28.02.2023, rejecting the claim of petitioner for due salary Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

for the period 01.01.1989 to 17.10.2017 in view of principle of

"No Work, No Pay" (Annexure- E).

9. Learned counsel for the petitioner further

submitted that the records relating to the school of the petitioner

as well as the service record of the petitioner are lying with the

Managing Committee/ Principle of the school. Learned counsel

further submitted that the District Education Officer, Vaishali,

exceeded his jurisdiction as he was not empowered even

considering the law laid down by the Apex Court in case of

State of Bihar v. Project Uchcha Vidya, Shikshak Sangh and

Ors. reported in (2006) 2 SCC 545 .

10. This Court, vide order dated 27.07.2023 had

directed the District Programme Officer (Establishment),

Vaishali, to produce all the records relating to the school as well

as the service record of the petitioner before this Court. This

Court had appointed Mr. Bindhyachal Singh, learned senior

counsel as amicus curiae to examine the records. The records

were examined by the learned senior counsel Mr. Mandanjeet

Singh and by the petitioner and his learned counsel, who have

arrived at a conscious decision that the records are required to

be examined by the Additional Chief Secretary, Education

Department, Government of Bihar. Therefore, Additional Chief Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

Secretary, Education Department, Government of Bihar may be

directed to arrive at a conscious decision with respect to the

claim of the petitioner. He may also examine to consider the

claim as to whether any similarly situated teachers have been

granted relief as claimed by the petitioner.

11. Considering the submission made on behalf of

the petitioner and the fact that the petitioner has now restricted

his prayer in view of the admitted facts that the petitioner was

appointed in the year 1983 and the school was run by the

Managing Committee and the events which had taken place

thereafter has already been enumerated in preceding paragraph

of this order, the Additional Chief Secretary, Education

Department, Government of Bihar, is directed to call for the

records relating to the school in question, namely, Yogendra

Shukla Smarak Pariyojana Balika Uchcha Vidyalaya, Jalalpur,

Lalganj, Vaishali, and the report of the Regional Deputy

Director considering the fact that the report was in favour of the

petitioner but the same appears to have been rejected

considering the fact that at the relevant point of time, the post of

the District Education Officer was vacant and the In-charge,

Regional Deputy Director of Muzaffarpur Division had

produced the report. The signature of the DDC on the report Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

with respect to the present school did not contain the signature

of the DDC. The 'Three Men Committee' constituted on the

recommendation of the Apex Court had rejected the case of the

petitioner's school. The Additional Chief Secretary, Education

Department, Government of Bihar, therefore, is required to

examine the fact at his own level.

12. The Additional Chief Secretary, Education

Department, Government of Bihar, is directed to take a

conscious decision in light of the decision of the Apex Court in

case of State of Bihar v. Project Uchcha Vidya, Shikshak

Sangh and Ors (supra) and different government circulars with

respect to the appointment of the teachers and their payment of

salary and arrive at a conscious decision with respect to the

payment of arrears of salary and other retiral benefits, which

have not been paid to the petitioner along with the statutory

interest till the date of payment in accordance with law.

13. This Court appreciates the assistance provided

by Mr. Tej Bahadur Singh, learned senior counsel and Mr.

Bindhyachal Singh, learned senior counsel, who was appointed

Amicus Curiae by this Court to assist with respect to the present

case.

14. With above observation and direction, the Patna High Court CWJC No.12062 of 2021 dt.17-08-2023

present writ petition is disposed of.

                                                 (Purnendu Singh, J)
Niraj/Nilmani
AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          23.08.2023
Transmission Date       N/A