The Principal Secretary, Human Resource Development Department v. Government Of Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9716 of 2009 ====================================================== Shyam Kishore Singh, 61 years old, son of Late Ram Swaroop Singh, village Pali, P.S. Kashichak, District Nawada. .... .... Petitioner. Versus 1. The State of Bihar. 2. The Principal Secretary, Human Resource Development Department, Bihar, Patna. 3. The Director, Secondary Education, Bihar, Patna. 4. The District Education Officer, Nawada. 5. The Accountant General, Bihar, Birchand Patel Path, Patna. 6. Senior Accounts Officer, office of the Accountant General, Bihar, Patna. .... .... Respondents. WITH Civil Writ Jurisdiction Case No.10251 of 2009 ====================================================== Uday Narain Sharma @ Udai Narain Singh, son of late Shyam Bihari Sharma, R/o-Vill. Baruan, P.S. Dariyapur, District Chapra (Saran). .... .... Petitioner. Versus 1. The State of Bihar. 2. The Director, Secondary Education, Budh Marg, Patna, Bihar. 3. The District Education Officer, Saran at Chapra. 4. The Headmaster, Adarsh Yuvak High School, Baruan, Saran at Chapra. 5. The Accountant General (A&E), Bihar, Patna. 6. The Senior Accounts Officer, office of the Accountant General (A&E), Bihar, Patna. .... .... Respondents. WITH Civil Writ Jurisdiction Case No.945 of 2010 ====================================================== 1. Raj Kumar Singh, S/o Late Nand Kishore Singh, R/o Vill Jhikarua, P.O.Hisua, P.S.Narhat, District-Nawada. 2. Naresh Singh, S/o Late Lakhdeo Singh, R/o Hisua, P.O. Hisua, District- Nawada. .... .... Petitioners. 1. The State of Bihar. 2. The Principal Secretary, Human Resource Development Department Versus Government Of Bihar, Patna. 3. The Director, Secondary Education ,Secondary Education Office Budh Marg, Patna. 4. The District Education Officer, Nawadh. 5. The Accountant General Bihar, Patna. .... .... Respondents. WITH Civil Writ Jurisdiction Case No.2034 of 2010 ====================================================== Md. Nabijan, S/o Late Sk. Zainuddin, R/o Vill.- Baradih, P.O.- Bairia, P.S.
Legal Reasoning
Patna High Court CWJC No.9716 of 2009 (10) dt.12-04-2013 - 2 - Kasaria, Distt.- East Champaran. .... .... Petitioner. Versus 1. The State of Bihar. 2. The Principle Secretary, Human Resources Development Deptt., Govt. of Bihar, Patna. 3. The Director, Secondary Education, Govt. of Bihar, Patna. 4. The Regional, Deputy Director of Education Tirhut Division Muzaffarpur, Bihar. 5. The District Education Officer, East Champaran, Bihar. 6. The Accountant General, Bihar, Birchand Patel Path, Patna. .... .... Respondents. WITH Civil Writ Jurisdiction Case No.3565 of 2010 ====================================================== Naresh Singh, S/o Late Lakhdeo Singh R/O Hisua, P.O. Hisua, P.S. Hisua, Distt.- Nawada. .... .... Petitioner. Versus 1. The State of Bihar. 2. The Principal Secretary Human Resources Development Department, Government of Bihar, Patna. 3. The Director, Secondary Education Secondary Education Office, Budh Marg, Patna. 4. The District Education Officer Nawada. 5. The Accountant General, Bihar, Patna. .... .... Respondents. WITH Civil Writ Jurisdiction Case No.18664 of 2010 ====================================================== Madan Prasad Thakur, S/o Ram Chandra Thakur, R/O Sariyatpur, Post Office - Damodarpur, Police Station - Pipra, Distt. East Champran. .... .... Petitioner. 1. The State of Bihar. 2. The Principal Secretary, Human Resources Development Department, Versus Government of Bihar, Patna. 3. The Director, Secondary Education, Government of Bihar, Patna. 4. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 5. The District Education Officer, East Champaran, Bihar. 6. The Accountant General, Bihar, Birchand Patel Path, Patna. WITH .... .... Respondents. Patna High Court CWJC No.9716 of 2009 (10) dt.12-04-2013 - 3 -
Legal Reasoning
Civil Writ Jurisdiction Case No.3797 of 2010 ====================================================== Sri Ram Murti Prasad, S/o Late Dwarika Choudhary R/O Sahadallahpur,P.S.Hajipur,Distt-Vaishali. .... .... Petitioner. Versus 1. The State of Bihar. 2. The Principal Secretary, Human Resources Department, Government of Bihar,Patna. 3. The Director, Secondary Education, Govt. of Bihar, Patna. 4. The Regional Dy.Director of Education Tirhut Division, Muzaffarpur. 5. The District Education Officer Vaishali at Hajipur. 6. The Accountant General Bihar, Patna. .... .... Respondents. ====================================================== Appearance : For the Petitioners : Mr. Tej Bahadur Singh, Sr. Adv., Mr. L.P.K.Rajgrihar Mr. Gyan Shankar Mr. Brajesh Kumar Mr. Rajesh Ranjan Kumar Mr. Pramod Kumar, Advocates. For the Respondent/s : Mr. Raindra Kumar Choubey, SC-8. Mr. Prahalad Kumar Bhagat, GP-13. Mr. Manoj Kumar Ambastha, GP-14. Mr. Shashi Bhushan Kumar Singh, SC-7. Mr. Rajeev Kumar, AC to SC-7. Mr. Kumar Priya Ranjan. CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ====================================================== ORAL ORDER 10 12-04-2013 By these writ petitions, petitioners, who were Assistant Teachers in taken over schools, have sought retiral benefits like pension etc. for themselves. In my view, the question has already been decided by this Court after reviewing various judgments being C.W.J.C. No.1046 of 2006 (Smt. Asha Sharma Vs. the State
Decision
of Bihar & Ors.) disposed of on 28.03.2011. There is no dispute that the petitioners were duly appointed Assistant Teachers. Very briefly stated, there are Patna High Court CWJC No.9716 of 2009 (10) dt.12-04-2013 - 4 - three stages relevant in the present case. First, whenever any private school had to be established, it was required to take permission of the State Government. Permission having been granted, the school was supposed to set up the infrastructure and before it could start teaching, it had to be recognized by the State Government. It so happened that large number of schools were set up, i.e., were permitted to be established and consequently recognized by the State Government. Then, problem arose. They were unable to bear financial burden. Progressively, State started subsidizing these schools. They were made virtually deficit grant institutions. With time, rapidly the proportion of deficit grant increased which ultimately led to the State in taking a decision of taking over the schools totally. Once this was done in various phases, the teachers became Government teachers. The question repeatedly arose before the Government as to from what time, Government would recognize their services. The Government all along took a conscious decision that their services would be recognized from the date of grant of permission to establish as it is consequent to that that teachers were recruited and ultimately recognition granted and schools taken over. It is in light of Patna High Court CWJC No.9716 of 2009 (10) dt.12-04-2013 - 5 - these facts that two Division Bench judgments of this Court in the case of Smt. Bharti Ojha Vs. the State of Bihar & Ors. and Deorlaj Sharma Vs. the State of Bihar & Ors., the later being since reported in 2004 (3) PLJR 683 have held that for the purposes of retirement benefit, their services would be counted from the date they joined the schools, may be earlier to the date of take over or recognition so long as they joined after permission to establish. Then there are two recent judgments on the similar issue being Shyam Kishore Singh Vs. the State of Bihar & Ors. since reported in 2007(2) PLJR 239 and in the case of Gopal Jha Vs. the State of Bihar & Ors. since reported in 2009(4) PLJR 396. Thus, we have consistently four Division Bench judgments holding that their entire service tenure would be taken into account once the school was taken over for grant of pensionary benefits. As against this, learned counsel for the State refers to learned Single Judge judgment of this Court in the case of Arun Jha Vs. the State of Bihar & Ors., being C.W.J.C. No.10726 of 2004 decided on 11.05.2006. The first thing I would like to note that the earlier two judgments of the Division Bench of this Court were neither brought to the notice of the learned Single Judge Patna High Court CWJC No.9716 of 2009 (10) dt.12-04-2013 - 6 - deciding the case of Arun Jha nor the Court noticed those judgments and, thus, took a view contrary to binding precedent. In my view, the judgment of this Court in Arun Jha’s case is clearly per incurium and not binding in any manner. I need not refer these matters to the Division Bench for judging the judgment delivered in the case of Arun Jha once there are four Division Bench judgments. Learned counsel for the State then relies on the case of State of Bihar Vs. S.A. Hassan & Anr. since reported in 2002 (2) PLJR 295 (SC) stating that period prior to take over cannot be taken into account for pensionary benefits. The case is clearly distinguishable. There a private medical college receiving no assistance from the State Government was taken over by an Act of State accepting the services of the employees only from the date of take over. In the present case, the situation is totally different. As noticed above, the taken over schools were in receipt of aid from the Government as deficit grant much prior to take over. That itself had become a reason for take over. State itself recognized their services from the time of permission to establish or thereafter as the case may be Patna High Court CWJC No.9716 of 2009 (10) dt.12-04-2013 - 7 - depending upon the date of substantive appointment. It is open to the State to lay down the terms and conditions under which they would recognize the services of an employee of a taken over institution. Government, having taken a decision to recognize their services from the date they joined after permission to establish was granted, it is not open for this Court to take a different view of the matter. Division Bench judgments have taken note of Government decisions to come to a finding that length of service would be the service rendered as a teacher after permission to establish was granted. Another important fact I may note, which is not disputed, is that taking into account services of the teachers like the petitioners from the date of their respective appointment after permission to establish, State has granted them two increments for the period the school had not even recognized much less taken over. This clearly evinced Government intention to recognize the regularity of their services under their control from the time much prior to take over or recognition. Thus, the writ petitions have to be allowed. It has to be held that the period of service for the purpose of Patna High Court CWJC No.9716 of 2009 (10) dt.12-04-2013 - 8 - calculating retiral dues would be taken from the date of appointment after permission to establish is granted irrespective of the date of recognition or date of take over. The impugned orders which shift the date for the purposes of grant of retiral dues and, consequential, orders of recovery and/or recoveries already made are thus quashed. Position shall be restored as was before and, as noticed above, recoveries already made will have to be refunded within the period of one month by the appropriate authority from the date of production of a copy of this order before him. Trivedi/- (Navaniti Prasad Singh, J.)