RAMESH CHANDRA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS writ petition has been filed on behalf of the petitioner for grant of full pension, full gratuity taking into account his date of appointment as 25 -02 -1974 and for grant of Ist & IInd Senior Pay Scale, Selection Grade Pay Scale, payment of difference of salary, for payment of arrears of salary for the period 01 -01 -1976 to 01 -08 -1976 and for payment of commutation of pension.

(2.) THE case of petitioner is that he was appointed as Assistant Teacher on 25 -02 -1974 in Ras Bihari High School, Madhepura on sanctioned vacant post by the Managing Committee of the aforesaid school and his service was approved by Sub Divisional Education Officer, Madhepura vide Memo No. 2928. dated 05 -11 -1974 till the appointment made by Board. His salary was fixed by Sub Divisional Education Officer, Madhepura. Again, the petitioner was appointed by Bihar Secondary Education Board, Patna vide letter No. 7712 -17 dated 29 -11 -1975 and he was posted at High School Athmaha, District -Bhagalpur but the then Managing Committee of Ras Bihari High School, Madhepura did not relieve the petitioner from the above -stated school and vide letter dated 09 -12 -1975, requested the Bihar Secondary Education Board, Patna to post the petitioner in Ras Bihari High School, Madhepura. The Sub Divisional Education Officer, Madhepura vide his Memo No. 4032 dated 09 -12 -1975 requested the then District Education Officer, Madhepura to post the petitioner at Ras Bihari High School, Madhepura. The case of the petitioner was considered by Secretary of Bihar Secondary School Board, Patna and vide Memo No. 28229 -28 dated 31. -07 -1976, the petitioner was posted at Ras Bihari High School, Madhepura. The petitioner never joined in High School, Athamaha, district -Bhagalpur and he continued to work at Ras Bihari High School, Madhepura since 25 -02 -1974 but due to his fresh appointment by the Bihar Secondary Education Board, Patna, he did not get his salary from 01. -01 -1976 to 01 -08 -1976. Subsequently, Ras Bihari High School, Madhepura was taken over by the government w.e.f. 02 -10 -1980 and accordingly, services of the petitioner were also taken over by the government. The petitioner superannuated from service on 30 -04 -2005 and, thereafter, he made representation for payment of his arrears of salary for the period 01. -01 -1976 to 01 -08 -1976 and also for his retiral benefits. The provisional pension and provisional gratuity were fixed and, accordingly, the same was paid to the petitioner. Again the petitioner filed detailed representation before the Accountant General, Bihar for issuance of Pension Payment Order and Gratuity Payment Order, treating his initial date of appointment as 25 -02 -1974. The Accountant General, Bihar, Patna wrote letters to District Education Officer, Madhepura for sending details about the first date of appointment of the petitioner and also for payment of arrears of salary for the period 01 -01 -1976 to 01 -08 -1976. In receipt of letter of Accountant General, Bihar, Patna, the District Education Officer, Madhepura vide letter No. 695 dated 19 -09 -2005 directed the In -charge, Headmaster of Ras Bihari High School, Madhepura to furnish the details of services of the petitioner and thereafter, the concerned Headmaster informed the District Education Officer, Madhepura that the petitioner was initially appointed in Ras Bihari High School, Madhepura on 25 -02 -1974 and continued to work as Assistant Teacher from 01. -01 -1976 to 01 -08 -1976 and no payment for the aforesaid period has been made to him. The District Education Officer, Madhepura wrote a letter to Accountant General Bihar for issuance of PPO, treating initial date of appointment of the petitioner as 25 -02 -1974 but the Accountant General, Bihar found some cuttings in service book of the petitioner and returned the matter for clarification and again, the Headmaster of Ras Bihari High School, Madhepura sent his report to Deputy Director, Secondary Education, Bihar mentioning this fact that the petitioner had worked between 01 -01 -1976 to 01 -08 -1976 and his initial date of appointment was 25. -02 -1974 but nothing could be done and during pendency of this writ petition, the Director, Secondary Education, Bihar vide order dated 31. -03 -2008 as contained in Memo No. 1846 dated 02 -04 -2008, refused to regularize the service of the petitioner from 01 -01 -1976 to 01 -08 -1976 which has been challenged by the petitioner before this court by filing I.A. No. 4580 of 2008.

(3.) LEARNED counsel, appearing for the petitioner submits that the petitioner was initially appointed in Ras Bihari High School, Madhepura on 25 -02 -1974 by the then Managing Committee of the above -said school and, subsequently, the appointment was approved by Sub Divisional Educational Officer, Madhepura vide Memo No. 2928 dated 05 -11 -1974 till approval of the board. It is further submitted by him that at the time of initial appointment of the petitioner, the Bihar Secondary Education Board Ordinance, 1974 was not in existence and, the aforesaid ordinance was published in official gazette on 21 -05 -1974 and, therefore, the initial appointment of the petitioner on 25 -02 -1974 was made by the Managing Committee under the rules of Bihar High School Service Condition Rules, 1972 which had been framed under Section -8(1) of Bihar High School (Control & Regulation of Administration) Act, 1960. Furthermore, rule 4 of Bihar High School (Service Condition) Rules, 1972 prescribes procedure for appointment of Assistant Teacher in school and rule 8 of above -said rules 1972 says that if, competent authority fails to communicate his opinion or order to Managing Committee within a month from the date of receipt of recommendation of Managing Committee, it shall be presumed that the recommendation/appointment of the Managing Committee has been approved by the competent authority. Leaned counsel for the petitioner submits that in view of the aforesaid rules, it is apparent that the Managing Committee of Ras Bihari High School, Madhepura appointed the petitioner and recommended his name to Sub Divisional Educational Officer, Madhepura vide resolution No. 2 dated 25 -02 -1974, which is evident from Annexure -1 to the writ petition and admittedly, the Bihar Secondary Education Board Ordinance 1974 came into force on 21 -05 -1974 and prior to coming into force of the Bihar Secondary Education Board Ordinance 1974, the appointment of the petitioner had already been approved in the light of clause -8 of the above -said rules, 1972. Therefore, even if, the Bihar Secondary Education Board Ordinance 1974 snatched the power of approval from the concerned officials, then also, the service of the petitioner had already been approved.