P.P.BHATT, J. - (1.) BEING aggrieved and dissatisfied with the judgment and order dated 20.09.2012, passed by the learned Single Judge in CWJC No. 764/2000(R), appellants (original respondents) have preferred the present appeal.
(2.) THE short facts of the case are as under: Petitioner -respondent was appointed as founder Headmaster of the School, which was opened in the year 1969 and was working as Headmaster since its inception. The said School is a private School and run by the Managing Committee. The State Government granted permission to establish the School in the year 1978 and thereafter recognition was given in the month of November, 1979. On 2.10.1980, the School was taken over by the Government. Petitioner -respondent has earlier filed a writ petition being CWJC No. 3653 of 1998(R), seeking direction to treat the petitioner -respondent as founder Headmaster of the Thakur Vishwanath Shahdeo High School, Jagannathpur, Dhurwa, Ranchi. The said writ petition was disposed of vide order dated 08.02.1999, directing the authorities to take decision on the representation of the petitioner -respondent, seeking regularization, as founder Headmaster of the School. Pursuant to the order dated 08.02.1999, petitioner -respondent had moved a representation, which was dismissed vide impugned order dated 11.2.2000 by the Director, Secondary Education, Bihar on the ground that as per Government notification/resolution No. 511 dated 20.11.1981 and 1072 dated 9.11.1987 petitioner -respondent was not having seven years' teaching experience of a school reorganized by the State Government as on 02.10.1980, when the School was taken over by the Government. Feeling aggrieved, petitioner -respondent has approached this Court by way of filing CWJC No. 764 of 2000(R). The said writ petition was allowed by observing that the requirement of the Government Order Memo No. 511 dated 20.11.1981 read with Memo No. 1072 dated 09.11.1987 for the appointment of the founder Headmaster of the School is seven years' teaching experience continuously before 02.10.1980. According to the learned Single Judge, there seems to be no such requirement that incumbent should be working as regular Headmaster of the Institution for more than seven years, on the date, the School was taken over by the Government, to consider the petitioner for the permanent appointment on the post of founder Headmaster of the School. Learned Single Judge, while allowing the writ petition, the impugned order dated 11.2.2000 passed by Director, Secondary Education, State of Bihar was quashed and the respondents -appellants were directed to treat the petitioner as founder Headmaster of the School and to re -fix the pension of the petitioner within ninety days from the date of the order and to make payment of all the arrears, found due, to him within ninety days thereafter, failing which the petitioner shall also be paid interest at the rate of 10% per annum from the date of the order, till the actual payment is made to him. Being aggrieved and dissatisfied with the said judgment and order, present Letters Patent Appeal has been preferred by the State of Jharkhand. Mr. Rajesh Kumar, learned G.P. -V, appearing on behalf of the appellants submitted that petitioner -respondent has earlier approached this Court by filing a writ petition being CWJC No. 3653 of 1998(R) and the matter was remitted back to the Director, Secondary Education, Bihar, who in compliance of the order of this Court has considered the claim of the petitioner and rejected the same vide Memo No.150 (Vidhi) dated 11.2.2000. It is further submitted that the order (Annexure -3) of the Director, Secondary Education is self explanatory. It is also submitted that cut -off date for considering the service period of a founder Headmaster is 02.10.1980 and the concerned teacher should have completed seven years on 02.10.1980 as a teacher in a Government recognized School. Since the petitioner was not having required experience as per Government order/ circulars and Rules, the claim of the petitioner is not maintainable. In this context, learned G.P. -V, appearing for the appellants has referred to and relied upon the circular of the State Government dated 16.10.1981, whereby it was provided that the service of those founder Headmasters who had already completed seven years of continuous service on the date of taking over of the Schools shall be recognized as regular Headmaster provided they possess necessary academic qualifications. In furtherance of the departmental circular dated 16.10.1981, another departmental circular was issued vide Memo No. 511 dated 20.11.1981 laying down the terms and conditions for appointment to the post of Headmaster. It is further submitted that the aforesaid departmental circular dated 20.11.1981 was partially amended vide Memo No. 1072 dated 9.11.1987. In the light of the aforesaid circulars, the petitioner was not found having the minimum seven years' teaching experience on 2.10.1980. It is further submitted that learned Single Judge has failed to consider that as per the provisions contained in 1981 Act in order to become eligible for the post of Headmaster of a High School, a person should possess requisite qualification of teacher with ten years' experience in a recognized High School and subsequently ten years' experience was modified vide Government circular No. 85, dated 16.10.1981 from ten years to seven years. It is further submitted that learned Single Judge has failed to consider that it is an admitted fact that the petitioner was appointed as founder Headmaster on 25.12.1969 and the said institution was taken over w.e.f. 02.10.1980 and the said School was recognized on 4.12.1978 and the petitioner has not completed seven years' experience as founder Headmaster as per the Government circular. It is further submitted that after coming into existence of the State of Jharkhand, the Jharkhand Government Secondary School Service Condition Rules has been framed and the same has been published in official gazette on 5.11.2004. By this Rule all the rules/ orders etc. notified earlier by the erstwhile Bihar has been repealed. Mr. Rajesh Kumar, learned G.P. -V, appearing on behalf of the appellants has referred to and relied upon the judgment, in the case of Ram Ballabh Pd. Singh versus The State of Bihar and others, 1986 PLJR 373 and has submitted that in the said judgment it has been held that a Headmaster of the taken over School does not automatically become the Headmaster of the School after its take over in view of Section 4 of the Act and that also without any scrutiny in respect of his qualification and suitability. It is also submitted that the said decision has been approved by the Hon'ble Apex Court in 1988 PLJR 70 (SC). Learned G.P. -V, appearing on behalf of the appellants has also referred to and relied upon paragraphs - 11 and 13 of the judgment, in the case of Deobansh Pandey versus The State of Bihar and others,1993 1 PLJR 221.
(3.) MR . V.P. Singh, learned senior counsel, appearing on behalf of the respondent(original petitioner) submitted that certain facts, which are not in dispute - that the School was opened in the year 1969 and respondent is working there as a Headmaster since its inception, which was run by the Managing Committee. The State Government permitted to establish the School in the year 1978 and thereafter recognition was given in the month of November, 1979 and in the year 1980 the School was taken over by the Government. The writ petitioner was having requisite qualification of being a founder Headmaster, having qualification of M.A. and B.Ed. It is also submitted that after taking over of the School, petitioner was given recognition as Acting Headmaster. It is submitted that the only dispute which exists is in relation to experience of the writ petitioner that he was not having seven years of service of a Government recognized School on 2.10.1980. It is further submitted that in the year 1980, the State Government decided to nationalize all private Schools and accordingly, it issued an ordinance which is known as Bihar Non -Government Secondary Education (Taking Over of the Management and Control Ordinance), 1980. The same ordinance subsequently resulted into Bihar Non -Government Secondary Schools (Taking Over of the Management and Control Act), 1981 (Act 33 of 1982). It is further submitted that the State Government had issued an instruction that the services of those Headmasters will be recognized as Headmaster who have completed 10 years' service in a recognized School. Subsequently, the State Government modified the above direction in relation to those persons who are founder Headmaster or belong to aboriginal class or Scheduled Caste or female and reduced the period from 10 years to 7 years. The said direction of the State Government is contained in Letter No.79 dated 16.10.1981, Letter No. 511 dated 20.11.1981 and 1072 dated 9.11.1987. He further submitted that the cut -off date of considering the service period of a founder Headmaster is 2.10.1980 and it is not disputed that the concerned teacher should have completed seven years on 2.10.1980 as a founder Headmaster in a recognised School. Learned senior counsel has submitted that as per Section 15 of the Non Government Secondary School (Taking Over of Management and Control) Act, 1981, the Government has decided to fill the vacant post of Headmaster prior to date of taking over (2.10.1980) in the Government Secondary School from teachers possessing required eligibility and qualification after considering all the schools as independent unit and vacancy arising after 2.10.1980 should be filled by promotion. In view of the above, the learned senior counsel submitted that since the respondent was having only two years experience on 2.10.1980, he ought to have been given promotion upon completion of seven years on the post of Headmaster since he was working as a founder Headmaster since beginning. The learned senior counsel further submitted that when the benefits of Headmaster was not given to the respondent, he preferred writ petition (CWJC No. 3653/1998(R) before this Hon'ble Court, whereby this Hon'ble Court was pleased to direct the authorities of the State Government to consider the case of the respondent. When the case of the respondent was not considered by the authority, the respondent was compelled to file CWJC No. 764 of 2000(R) and this Hon'ble Court was pleased to allow the said writ petition. The learned senior counsel supported the judgment and order passed by the learned Single Judge. The learned senior counsel submitted that the authorities have misinterpreted the statute, rules and circulars in this regard. He has submitted that it is a settled principle that when there is conflict between statute and rules then statute will always prevail; similarly, when there is conflict between rules and circulars, certainly rules will prevail. The learned senior counsel for the respondents, in support of his contention, has relied upon the decision rendered in the case of A.K. Pradhan versus State of Bihar, 1998 2 SCC 411, which reads as under: "1.The appellant was the Headmaster of an unrecognized high school which was taken over by the Government of Bihar under Bihar Non -Government Secondary School (Taking over of Management and Control) Act, 1981 (33 of 1982). The appellant represented to the State Government for regularization of his services which was not accepted and by order dated 6.12.1985, the Government rejected the prayer of the appellant on the ground that he had not completed seven years of service from the date of taking over of the institution. The appellant then approach the Patna High Court, which relying upon a Full Bench decision of its own, dismissed the petition. That is how the matter is before us. 2.It is pointed out by the learned counsel appearing on behalf of the State of Bihar that the Full Bench decision has since been upheld by this Court in Ram Ballabh Prasad Singh Vs. State of Bihar by the following order: "We affirm the view taken by the High Court to the effect that Headmaster has no right to be automatically absorbed as a government servant in case of an unrecognised school being taken over by the Government. The special leave petitions are dismissed with these observations. We are told by the learned counsel that even if the petitioners are liable to be scanned by the appropriate committee there should be no delay in completing the screening insofar as the petitioners are concerned. We have no doubt that when these observations are pointed out to the appropriate authority the committee concerned will deal with the matter expeditiously and dispose of the same in accordance with law." 3.The controversy, therefore, that the services of the employees working in an unrecognised institution are not automatically taken over by the Government, is to be treated as settled by the order passed in the above petition. 4.The fact, however, remains that the appellant has since completed more than seven years of service and is now eligible and for being considered for regularization. 5.We, therefore, dispose of this appeal with the observation that the appellant, if not already regularised as Headmaster, shall be considered for regularization w.e.f. the date on which he completed seven years of service reckoned from the date on which the institution was taken over by the Government." The learned senior counsel therefore submitted that the respondent is entitled to be treated/regularised as Headmaster of the said School.;