IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.1046 of 2006
Smt. Asha Sharma, W/o-Sri Birendra Kumar Sinha, R/o-Mohalla-Majhaulia
Road, P.O., P.S. & District-Muzaffarpur, at present a retired Headmistress of
Project Balika High School, Mahadeea, P.O.&P.S.-Minapur, District-
Muzaffarpur. -Petitioner.
VERSUS
1. The State of Bihar through the Commissioner-cum-Secretary, Department of
Secondary Education, Human Resource Department, Bihar, Patna.
2. Director, Secondary Education, Bihar, Patna.
3. District Education Officer, Muzaffarpur.
4. Headmistress Project Girls High School, Mahdeea, P.O.&P.S.-Minapur,
District-Muzaffarpur.
5. Accountant General, Bihar, Beer Chand Patel Path, Patna. -Respondents.
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12 28.03.2011 The petitioner is aggrieved by the action of the State
Government in not recognizing her service from the date of
establishment of the school/her employment as a Teacher.
Counter affidavit having been filed, with consent of
parties, the writ petition has been heard for final disposal at this stage
itself.
The petitioner’s school was established as a Private
School with permission of the State Government. This is the first
point of reference. Having received the permission to establish the
school, Teachers, like the petitioner, were recruited. Once the
teaching faculty, the students, building and other formalities were
completed, State Government inspected and granted recognition to the
school. This is the second point of reference. Then, as most of the
schools were unable to pay their fiscal liability, they had to be aided
by the Government. In course of time, the aid of the Government
became substantial and ultimately, in 1980, Government took decision
to take over a large number of Private Schools. This is the third point
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of reference.
The grievance of the petitioner is that for the purposes
of retirement benefit, the period she has served in the school from the
time of establishment of school, should be reckoned. But the State
Government is of the contrary view. It takes the view that the services
would be counted only from the date of grant of recognition,
fortunately not from the date of take over.
Learned counsel for the petitioner submits that this
would create a very anomalous and arbitrary situation, inasmuch as to
establish a school for its recognition, it is required to employ teachers
but the service of those teachers for the purposes of retirement benefit
would not be recognized from the time of their appointment but from
the time of recognition of the school which is much later. Learned
counsel for the petitioner further points out that prior to the take over
in 1980, take over of schools were done at different points of time.
Earlier, each time, the Government clarified that the services would be
counted from the date of establishment of the school, which is the first
point of reference.
Learned counsel for the State has drawn attention of
this Court to the judgment of this Court in the case of Arun Jha Vs.
The State of Bihar & others, being C.W.J.C. No.10726 of 2004,
decided on 11.05.2006. In that judgment, it is held that in exercise of
powers conferred under the Bihar Non-Government Secondary School
(Taking Over of Management and Control) Act, 1982 the State
Government had framed the Bihar Taken Over Secondary Education
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School Service Condition Rules, 1983 wherein Rule-20 provided for
repeal. Their Lordships was of the view that Rule-20 provided that all
Rules framed prior would be deemed to be repealed and, therefore,
their Lordships hold that all previous rules and circulars issued stood
repealed by these 1983 Rules and then relied on 1982 circular which
again did not say so that the service would be counted only from the
date of recognition because it also said that from the date of
permission to establish the schools, the services could be counted.
This Court then held that it is only from the date of recognition that the
service would be counted.
Learned counsel for the petitioner has seriously assailed
the correctness of this view but being view of a Single Judge, I am not
bound by it. It is not open for me to take a different view of the matter
but, in my view, the situation is same because of two Division Bench
judgments of this Court both before this judgment, which was not
brought to the notice of the Single Judge while deciding the case of
Arun Kumar Jha. The first judgment is dated 09.03.1994 the Division
Bench presided by Justice S.B. Sinha (as he then was) in C.W.J.C.
No.430 of 1993 (Smt Bharati Ojha Vs. The State of Bihar & another).
In that case, the question squarely was what would be the date of
appointment in a taken over school. Upon reading of circulars, their
Lordships held that it would be the date of establishment of the school.
Then, we come to the Division Bench judgment in the case of Deorlaj
Sharma Vs. The State of Bihar & others since reported in 2004(3)
PLJR 683, wherein the teacher joined service in 1963, the school was
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taken over in 1974-75, their Lordships held that the service for the
purposes of retirement benefit would be counted from 1963 till
retirement in 1997, that is, from the date prior to take over and prior to
recognition. Similar view has recently been taken in the case of
Shyam Kishore Singh Vs. The State of Bihar & Ors. since reported
in 2007(2) PLJR 239.
Considering the aforesaid, I am constrained to hold, in
view of Division Bench judgments of this Court, which do not appear
to have been brought to the notice of the Court in the case above noted
and being bound by Division Bench judgment, that the service of the
petitioner has to be counted from the date of establishment of the
school for the purposes of retirement benefit and authorities would act
accordingly within a period of three months from the date of
production of a copy of this order before him. The responsibility of
implementing the order would be on Director, Secondary Education,
Government of Bihar.
The writ petition stands disposed of.
Trivedi/ (Navaniti Prasad Singh, J.)