Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11337 of 2013 ====================================================== Bhola Prasad Singh Son Of Late Raghu Singh R/O Village - Rajpur, P.O. Basawanpatti, P.S. Karjaine, Distt. - Supaul .... .... Petitioner Versus 1. The State Of Bihar Through Its Chief Secretary Government Of Bihar, Patna 2. The Secretary Human Resources Development Department Bihar, Patna 3. The Director, Primary Education, Bihar, Patna 4. The District Education Officer, Supaul 5. The District Programme Officer, Supaul .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Shailendra Kumar Singh For the Respondent/s : Mr. GA10 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA CAV ORDER 3 20-09-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “I. For issuance of a writ in the nature of Certiorari or any other appropriate writ, order or direction be issued for quashing the Memo No.79 dated 10.12.2012 (Annexure 3) of the District Programme Officer (Establishment), Supaul whereby and whereunder the petitioner has been retired from service as an Assistant teacher w.e.f. 31.12.2012 much before completing 60 years service in pursuant to letter no.940 dated 28.8.2012 of the District Education Officer, Supaul which has been issued after wrongly appreciating the decision of this Hon‟ble Court dated 27.4.1994 passed in C.W.J.C.No. 7737/1991. II. For issuance of an appropriate writ/order or direction 2 be issued to the respondents to reinstate the petitioner in service. 3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that when the date of birth of the petitioner in the official records was 29.5.1957 he in view of being a Government servant and a teacher in the Government school could not have been superannuated prior to his completion of 60 years of age which he could have attended only on 29.5.2017. In this regard he has also submitted that the impugned order by which he has been superannuated on the basis of completion of 42 years of service is wholly unsustainable, inasmuch as it is only on completion of 60 years that a teacher would become liable for being superannuated from service irrespective of number of years of service rendered by him. He has also expanded his submission by saying that since the school in question in which the petitioner was initially appointed by a Managing Committee was a private school which was taken over only in the month of February, 1981 making the petitioner a Government servant, his age recorded by the Managing Committee or his being appointed by the Managing Committee even in a period he was minor will be of no consequences. 4. On the other hand, learned counsel for the State 3 having placed reliance on an earlier order of the Division Bench dated 27.4.1994 in C.W.J.C.No. 7737/1991 has submitted that there is a clear law laid down by this Court that if any teacher is found to be minor on the date of appointment/ nationalization of the school, the said period may be substracted from the date of his superannuation. He has also submitted that the petitioner cannot ignore his date of birth or his date of entry in service in a private school because it was only on account of his being a teacher of that private school that his services were taken over in terms of Section 4 of the Bihar Non-Government Elementary Schools (Taking Over of Management and Control) Act, 1976 (hereinafter referred to as „the Act‟). 5. In the considered opinion of this court the facts which would be sufficient to be noticed for disposal of this case lie in a very narrow compass. Admittedly the petitioner as per his own showing was appointed on 5.12.1970 in Primary School, Baijnathpur in Basantpur Block of District Supaul. His date of birth being 29.5.1957 he was only 13 years 6 months and 5 days. It was this school which was taken over in the month of February, 1981 and the services of the petitioner were also taken over by the order dated 7.2.1981 pursuant to the decision taken by the State Government in his order dated 27.12.1980 (Anneuxre 1). The 4 petitioner having thus continued as a teacher of the aforesaid school for a period over 42 years was sought to be superannuated under the order of the District Education Officer, Supaul dated 28.8.2012 by placing reliance of the judgment of the Division Bench of this Court in the case of Vivekanand Singh Suman (supra).
Facts
6. On the basis of the aforementioned facts the first and foremost issue will be the effect of take over of service of a teacher of a private school which was nationalized in terms of Section 3 of the Act which reads as follows: ^^jkT; ljdkj }kjk xSj ljdkjh izkjafHkd fo|ky;ka dk xzg.k fd;k tkuk& …1‰ ftyk cksMZ] ftyk ifj"kn~] uxjikfydk cksMZ vkSj iFuk uxj fuxe }kjk izcfU/kr izkjafHkd fo|ky; rFkk foLrkj ,oa lq/kkj Ldhe ds v/khu [kskys x;s izkjafHkd fo|ky; 1 tuojh 1971 ls jkT; ljdkj }kjk xzg.k dj fy;s le>s tk;sxs] …2‰ lgk;rk izkIr izkjafHkd fo|ky;] ftudh izca/k lfefr us fcuk fdlh ’kRrZ ds LosPNkiwoZd fo|ky; dk fu;aU=.k ljdkj dks lkSai fn;k gS] ml rkjh[k ls jkT; ljdkj }kjk xzg.k fd, tk;sxs tks bl iz;kstukFkZ mi/kkjk …4‰ esa fufnZ"V ftyk lfefr }kjk vo/kkfjr dh tk;sxhA …3‰ yksd ;k izkbosV midzeksa }kjk iz’kkflr izkjafHkd fo|ky;] jkT; ljdkj }kjk jkti= esa vf/klwpuk izdkf’kr djds ml rkjh[k ls xzg.k fd, tk;saxs] tks vf/klwpuk esa fofufnZ"V dh tk;A …4‰ …d‰ mi/kkjk …1‰ vkSj …3‰ esa mfYyf[kr izkjafHkd fo|ky;kas dks NksM+dj vU; izkjafHkd fo|ky;kas ds xzg.k fd, tkus dh laHkkO;rk dh tkap djsxhA mDr ftyk lfefr esa fuEufyf[kr lnL; jgszxs …i‰ mi fodkl;qDr iz’kkld …ii‰ ftyk f’k{kk v/kh{kd lfpo …iii‰ ftyk f’k{kk inkf/kdkjh … iv ‰ ftyk fo|ky; fujhf{kdk] …V‰ lEcn~/k vuqeaMy dk vuqeaMy f’k{kk 5 inkf/kdkjh vkSj …iv‰ lEcn~/k fo|ky; mi fujh{kdA …[k‰ jkT; ljdkj bl izdkj xfBr ftyk lfefr ds dkfeZd esa le; le; ij ifjorZu dj ldsxhA** 7. As would be apparent there were different modalities of taking over school under 1976 Act and while one category of the school belonging to the District Board, Zila Parishad, Municipal Board and the Municipal Corporation were deemed to have been taken over with effect from 1.1.1971 the aided schools were to be taken over only with effect from the date the State
Legal Reasoning
Government had taken a decision to do so. There is no dispute that the school of the petitioner was taken over only in the year 1981 and thus, the school of the petitioner belongs in the category of those schools which were taken over under section 3(4) of the Act. The consequences of take over were also clearly specified under section 4 of the Act which reads as follows: ^^4- xzg.k fd, tkus dk ifj.kke& …1‰ /kkjk 3 ds v/khu jkT; ljdkj }kjk xzg.k fd, x;s fo}ky;kss ds LokfeRo ;k dCts dh lHk pyu ;k vpy vkfLr;ka] ;k laifRr;ka ftuds vUrxZr fo|ky; esa lacaf/kr Hkwfe] Hkou nLrkost] iqLrd vkSj jftLVj Hkh gS] jkT; ljdkj dks varfjr jgsxh vkSj mlds LokfeRo ;k dCts esa vk xbZ le>h tk,xhA …2‰ jkT; ljdkj }kjk xzg.k fd, x;s fo|ky; esa in /kkj.k djus okyk izR;sd inkf/kdkjh] f’k{kd ;k vU; deZpkjh] jkT; ljdkj dks varfjr gks x;k le>k tk;sxk rFkk og jkT; ljdkj }kjk ;Fkk vo/kkfjr inuke ls jkT; ljdkj dk inkf/kdkjh] f’k{kd ;k deZpkjh gks tk;xkA mldh inkof/k] ikfjJfed] vkSj lsok’kRrZ ,oa fuca/ku ogh gksxs] tks mDr fo|ky; xzg.k fd;s tkus ds iwoZ Fks rFkk og mlh esa rcd dk;Z djrk jgsxk] tcrd fd jkT; ljdkj mldh inkof/k ikfjJfed 6 lsok ’kRrZ ,oa fuca/ku esa lE;d ifjoRrZu u dj nsaA …3‰ ftyk f’k{kk v/kh{kd] vuqeaMy f’k{kk inkf/kdkjh lg uxjikfydk f’k{kk inkf/kdkjh ds dk;kZy; es a dk;Z djus ds fy;s izfrfu;qDr LFkkuh; fudk;ksa ds deZpkfj;ks a rFkk iVuk uxj fuxe dh f’k{kk iz’kk[kk esa dke djusokys deZpkfj;ks a dh lsok,a jkT; ljdkj dks varfjr vkSj mlds }kjk xzg.k dh xbZ le>kh tk,xh rFkk ,sls deZpkjh ljdkjh lsok ds fy;s viuk fodYi nsus ij bl v/;kns’k ds izorZu ds rkjh[k ls ljdkjh lsod le>s tk;saxsA** 8. From a bare reading of Section 4(2) it would be clear that the service condition including date of retirement of a teacher of a take over school could be varied after take over of his service. It is also not in doubt that the age of retirement of the teachers of take-over school is 60 years. 9. An issue, however, is always there with regard to authenticity of the date of birth of person who was initially appointed by private management and therefore, if the services of the petitioner were to be taken over on the basis of his date of appointment he was actually a minor at the time of his initial appointment. It was in this regard that this Court way back in the year 1994 in the case of Vivekanand Singh Suman (supra) had held that though such persons could be eligible to continue in service and also claim their payment of salary their age of service for the purpose of their superannuation could be re-determined for substracting their age for the period they have served as a teacher 7 being a minor. To that extent the following observation of the Division Bench in the case of Vivekanand Singh Suman (supra) would also squarely cover the case of the petitioner: “8.We may, however, observe that in these cases where the petitioner(s) is/ are found to be minor(s) on the date of appointment/ nationalization of the school, the said period may be substacted from the date of their superannuation.” 10. It is also not in doubt that the petitioner when he had entered in service as a teacher under the private management on 5.12.1970 he was aged about only 13 years. Since the petitioner has not enclosed his Matriculation certificate it also does not appear as to whether the appointment of the petitioner was made as a teacher as an untrained Matriculate or a Matriculate but then this much is clear that his services were taken over in the year 1981 only as an untrained Matriculate. 11. It has to be kept in mind that the cut off date for take over of the schools including teachers being 1.1.1971 there was a rat race for every one to claim post-dated appointment and therefore, when the petitioner himself claims that he was appointed on 5.12.1970 it would create a doubt as to whether he had passed the Matriculation Examination by disclosing his date of birth as 29.5.1957 prior to his entry in the private school on 8 5.12.1970 or after that. Considering these aspects a Division Bench of this Court in the case of Baidyanath Prasad Sinha vs. the State of Bihar & ors., reported in 1983 Labour & Industrial Cases 162, had held that if a person had taken advantage of being appointed as a minor while he was ineligible for any appointment he could not have objected his retirement on completion of maximum length of service permissible for a major to remain in Government service. 12. As a matter of fact this Court also in the case of Ganesh Sinha vs. B.R.A.Bihar University in C.W.J.C.No.
Decision
11890/2005 disposed of on 22.4.2009 had held as follows: “Such problems in fact have been faced by almost all the organizations, in this State, the Universities being no exception. The State Government in order meet such situation had issued Circular with regard to maximum length of service by treating the minimum age of employee to be 18 years on the date of appointment. When such decision of the State Government was assailed before this Court a Full Bench of this Court in the case of Rajiawa Narayan Mishra (supra) had laid down the law in relation to a similar 1998 circular of State Government confining the continuance of service of a Government servant for a period of 40 years, treating entry at the age of 18 years and continuance up to the age of 58 years.” 9 13. As would be noticed this Court in Ganesh Sinha (supra) had relied on a Full Bench judgment in the case of Ragiawa Narayan Mishra vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board & ors., reported in 2006(1) PLJR 410, wherein it was held as follows: 7.Let it be recorded at this stage that there are two writ petitions and the material three dates which have direct relevance for the consideration and adjudication of the issue in focus in this reference may be highlighted as the question of law formulated herein before is an end in both the writ petitions: In C.W.J.C.No. 3929 of 2004 (i) (ii) The date of appointment of the petitioner in the The date of birth of the petitioner is 23.9.1947. Board is 4.3.1964. (iii) The date of retirement of the petitioner is 31.3.2004 which is annexed in this writ petition as annexure 3. In C.W.J.C.No. 4114 of 2004 (a) The date of birth of the petitioner is 15.6.1941. (b) The date of appointment of the petitioner is 16.12.1963. (c) The date of retirement of the petitioner is 31.12.2003. 8. Thus, the entry age in service of the petitioner of the first writ petition is 16 years, 5 months and 19 days, whereas, in second writ petition the age of the petitioner is 17 years, 6 months and 1 day. It is, therefore, an admitted fact that both the petitioners got entry into employment of the respondent Board before attaining the age of majority. 9. There is no dispute about other aspects that both the petitioners were directed to be superannuated by the impugned orders in both the writ petitions on completion of the the service period of 40 years, and not superannuation age of 58 years which has been raised as a grievance by both the petitioners by knocking the door of justice by invocation of the provisions and filing these two writ petitions under Article 226 of the Constitution of India. 10 that there from the qualifying age of 13. The plain perusal of the aforesaid statutory provision would, undoubtedly, go to suggest that the Government by virtue of an amendment by addition Rule 5 in Appendix-5 in the Bihar Pension Rules which came into effect, on 23.8.1950, long before the petitioners came to be admitted in the service of the Board and it is very the clear Government servants for consideration of the pensionary benefits came to be raised from 16 years to 18 in the Government service. Otherwise, also, the aforesaid circular of 1998 has a purpose and policy behind it. It is clarificatory. There is no dispute about the fact that the service between the employer and the employees is a matter of contract. Once, a person is validly entered into the service of the Government he is offered the contractual and statutory protection and the initial entry in the service always is the outcome of the contractual relationship. Who would be competent to contract? It has been provided in Section 11 of the Indian Contract Act, 1872, as to who is the competent to contract. Section 11 of the said Act reads herein as under: Who are competent to contract. – Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.” 14. It is very clear and evident from the said provision that in, so far as, the competence for a valid contract in terms of the age is concerned, one has to attain the age of majority and majority obviously would be according to law. The provision of Section 3 of the Majority Act, 1875, clearly provides as to what is the age of a person domiciled in India. It is in this context, it would be necessary and profitable to refer the provision of Section 3 of the Majority Act, 1875 which is reproduced as hereunder: “3. Age of Majority of persons domiciled in India. – (1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. (2) In computing the age of any person, the day on which he was born is to be included as 11 a whole day and he shall be deemed to have attained majority at the eighteenth anniversary of that day.” the beginning of 15. It leaves no any manner of doubt that in this country the age of majority of a person, domiciled in India, has been on his attaining the age of eighteen years and not before. Of course, it would be not very material at this stage to consider that in computing the age of a person, the day on which he borns is to be included as a whole day. 16. Be that as it may, one thing is certain that admittedly both the petitioners when they entered into the contract with the respondent Board they had not attained the age of majority. Apart from its legal impact and effect, the ramifications and end result of the status of a contract in terms of the service relationship, a person could be said to have entered into a valid service, only, when he has attained the age of majority. So the minimum age prescribed at the entry point in the Government service has been 18 years. The maximum age prescribed for the exit point is 58 years. In other words, the total length of period of Government service in any case for pensionary benefits would not exceed 40 years. It is in this context, the Government Circular mentioned herein above needs to be considered. When there is a clear Rule provision anything contrary to or inconsistent with or incompatible to it, any circular or resolution or order, will not have any legal and valid effect to abridge the right enshrined in the Rule Provision. Even if the said circular of 1998 as relied upon by the petitioners is considered to be beneficial to them then, also, it cannot be read at this juncture with statutory provision existing incorporated in the Bihar Pension Rules, as well as, the Bihar Service Code. Therefore, from that point of view also the petitioners cannot be allowed to contend that they have right to continue even beyond the age of 58 years though provided in Rule 73 of the Bihar Service Code which prescribes the superannuation age of 58 years. 17. Thirdly, it is settled and established proposition of law and principles of jurisprudence that a person who takes undue advantage by one or other reasons at the entry point in the service cannot be allowed to urge that he be given higher benefit and if it is urged then, clearly, the 12 it goes to show that something wrong or irregular has been done, at the entry point, in service. So the settled principle, also, creates a very strong impediment in getting the relief from this Court which is exercising extraordinary, prerogative, equitable and discretionary writ jurisdiction by invocation of the provision of Article 226 of the Constitution of India” 14. In view of above, it would be clear that the petitioner had entered in service as a minor and thereafter his services were taken over by the State Government and thus, he could not have continued in service beyond the maximum length of period of 42 years. It is clear that the Government decision with regard to maximum length of 42 years service where the age of retirement is 60 years will be made applicable. The respondent District Education Officer, therefore, has committed no error in also superannuating the petitioner on completion of 42 years of service, inasmuch as he had appointed as a teacher on 5.12.1970 and thus, could have served only upto 5.12.2012. The petitioner in fact has been superannuated with effect from 31.12.2012 under the impugned order with three other similarly teachers whose date of birth under the private managing school were less than 18 years. 15. In all fairness to the learned counsel for the petitioner this Court would not be in a position to take the same view which was decided by the order dated 6.3.2013 in C.W.J.C.No. 5424/2012, inasmuch as the only consideration 13 therein reads as follows: “In my view, the government policy and the order of the Division Bench would not cover the period which an employee has put in a private institution prior to its take over. The petitioner had entered in service in the year 1969 when the Institution was a private institution. The Institution was taken over w.e.f. 1976. Admittedly the government did not provide any monetary aid or any other facility to the private institution prior to its „take over‟ in the year 1976. As such, the period of service of the petitioner would be counted w.e.f. 1976, the date from which the school was taken over.” 16. As would be noticed neither attention of the learned Single Judge was drawn to the binding precedent of the judgment of the Full Bench in the case of Ragiawa Narayan Mishra (supra) nor this Court finds from any statute that the period prior to take over will not be taken into consideration towards total length of service only because the teachers, who were appointed in a private school, were not receiving payment of salary from the Government. As noted above, the Government had full powers to amend and vary the service condition of even a teacher of private school whose services were taken over in terms of Section 3(4) read with 4(2) of the Act. As a matter of fact it was basically for two different classes of school, as noticed above, whose services 14 were deemed to have been taken over w.e.f. 1.1.1971 and in fact after take over the Government became their direct employer to whom it was even earlier giving financial aid as would be apparent from Section 3(2) of Take-over Act. To that extent the learned Single Judge has also not considered the effect of the statute of take over, namely, provisions of the Act and thus the same being per incuriam cannot be treated as binding precedent. 17. Thus, for the reasons indicated above, this Court does not find any error in superannuating the petitioner on completion of his 42 years of service, which as on date is the maximum period in which a government servant including the teachers in a nationalized Primary School can continue in government service. This Court in holding so is also fully supported by the observations and findings recorded by the Full Bench in the case of Ragiawa Narayan Mishra (supra). 18. That being so, there is no merit in this application and the same is accordingly dismissed. (Mihir Kumar Jha, J) Patna High Court Dated the 20th September 2013 N.A.F.R./surendra/-