Ram Sudisht Rai v. The State Of Bihar

affirmed by the Apex Court in the case of State of Bihar & Ors vs Project Uchcha Vidyalaya Shikshak Sangh 2006(1) PLJR SC 483. Commenting further on receipt of the counter affidavit, learned counsel for the petitioner has submitted that the stand taken in the counter affidavit with regard to the petitioner being ineligible for being absorbed /taken over as a teacher in Patna High Court CWJC No.16978 of 2013 (3) dt.22-11-2013 3 the Project School in question on the ground that he did not posses the requisite qualification of being trained from a recognized institution, he has submitted that this ground was never taken in the impugned order while rejecting the case of the petitioner and therefore no new ground can be supplied for the first time in a writ petition. In this regard he has relied on the judgment of the Apex Court in the case of Mohinder Singh Gill and Anr vs The Chief Election Commissioner, New Delhi and Ors reported in AIR 1978 SC 851. Learned counsel for the State on the other hand with the help of the counter affidavit which he has filed today has submitted that the writ application of the petitioner is wholly belated, inasmuch as, the case of the petitioner for his take over was rejected way back in the year 2008 vide Memo No. 614 dated 22.07.2008 (Annexure-4) and yet the writ application came to be filed only on 26.08.2013. He has submitted that even if the subsequent affirming order dated

20.04.2010 impugned in the present writ application is taken into account even there would be a delay of more than three years. According to learned counsel for the State this delay therefore, is still fatal. He has further submitted that the petitioner has already completed the age of superannuation in Patna High Court CWJC No.16978 of 2013 (3) dt.22-11-2013 4 2004 and was facing this controversy way back from 1988 itself and that is how that the date of 30.12.1982 would become significant, inasmuch as, on that date he was already aged about 38 years and 6 months approximately. Learned counsel explains that the Full Bench in its judgment in the case of Project Uchcha Vidyalaya Shikshak Sangh (supra) has already laid down that the maximum age of appointment of a teacher on the date of his appointment could be 31 years. He has also submitted that apart disqualification on the ground of age the petitioner had to also satisfy the requirement of his possessing the requisite qualification on the date of his appointment but whatever materials have been brought on record by the petitioner himself in this writ application would go to show that the petitioner has allegedly completed his training course of B.Ed., from Rashtriya Patrachar Sansthan, Kanpur which is not a recognized institution. In this context, he has referred to the communication of the Special Secretary Government of Uttar Pradesh dated 24.05.2012 stating that Rashtriya Patrachar Sansthan, Kanpur is not affiliated to Kanpur University. According to him it is also a mater of record that the aforementioned Division Bench judgment was Patna High Court CWJC No.16978 of 2013 (3) dt.22-11-2013 5 set aside by Apex Court on 23.07.1997 in Civil Appeal No. 10245 of 1996 and thereafter the case was heard by Full Bench leading to the judgment reported in Project Uchcha Vidyalaya Shikshak Sangh(supra), thereafter the matter travelled to the Supreme Court and the Supreme Court ultimately disposed of the matter in the year 2005 which is also reported in 2006(1) PLJR 483. In the background of these facts, it is found that since the petitioner was religiously pursuing the remedy from 1993 to 2005, he cannot be non suited on the ground of delay in filing the present writ application. One cannot loose sight of the fact the petitioner had attained the age of superannuation in the year 2004 while the matter was still pending in the Supreme Court. Thereafter if the petitioner was taking his own time to arrange his resources in either filing appeal against

22.07.2008(Annexure-4) or the present writ application after dismissal of the matter by the State Government on

20.04.2010(Annexure-6), it cannot be said that the petitioner who now can only get benefit of salary or retirement benefit can be non suited on the ground of delay. No third party right is in fact going to be affected in the matter of payment of Patna High Court CWJC No.16978 of 2013 (3) dt.22-11-2013 6 salary or the pension if the same becomes admissible and payable to him. The difficulty, however, for the petitioner would be that he has to establish that he was fully eligible for absorption/take over of his service. Learned counsel for the petitioner submits that the degree which was obtained by the petitioner of the B.Ed., was fully recognized and was always held to be valid. This position, however, has been controverted by the learned counsel for the State in the counter affidavit. Ordinarily, this Court could have decided the matter at this stage itself but then keeping in view that this ground was not even taken in the impugned order, this Court would remit the matter back to the Director, Secondary Education to consider all possible facets relating to take over of the services of the petitioner and if it is found that the petitioner did possess the requisite qualification and was also entitled to be given relaxation of age in terms of the judgment of the Full Bench which having laid down the maximum age of 31 years had given certain relaxation in few cases, who were continuing in service, the consequential order would be passed. If, however, the Director, Secondary Education finds that the Patna High Court CWJC No.16978 of 2013 (3) dt.22-11-2013 7 petitioner did not possess the requisite qualification so as to giving the benefit of take over of service, including his not passed the training qualification from a recognized institution by the Government of Bihar, he would pass a reasoned order rejecting such claim of the petitioner. This exercise, however, by the Director, Secondary Education must be completed within a period of four months from the date of filing of the representation by the petitioner enclosing all his evidence as also copy of this order. It is however made clear that this Court has expressed no final view on the merit of the claim of the petitioner while remitting the matter back to Director Secondary Education. With the aforementioned observations and direction, this application is disposed of. Ranjan/- (Mihir Kumar Jha, J)