High Court Patna High Court - Orders

Smt.Asha Sharma vs The State Of Bihar &Amp; Ors on 28 March, 2011

Patna High Court – Orders
Smt.Asha Sharma vs The State Of Bihar &Amp; Ors on 28 March, 2011
               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.
                                        -----------

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.)