S.N. Pathak, J. - (1.) As common question is involved in all these writ petitions, they have been taken up together and are decided by this common order. These batch of cases relate to Teaching and Non-Teaching Staff of Project Girls' High Schools. The petitioners herein mainly seek appropriate directions to the concerned authorities to recognize/ regularize their services by the Government following the take-over of the private schools where the petitioners had been working and are discharging their duties or have retired after attaining the age of retirement.
(2.) The petitioners, before this Court, in the present matters, are teaching and nonteaching staff of different Project Girls High Schools (now falling within the territorial jurisdiction of Jharkhand), which were opened and selected as second phase schools of the state government scheme of 1981 and these petitioners have prayed for absorption of their services and further for making payment of consequential benefits and arrears of salary w.e.f. 01.01.1989. These petitioners have been performing their duties since last 30 years against vacant and sanctioned posts, without any salary, in anticipation of their due absorption in regular establishment and hence have moved this court for redressal of their grievances, when no action was taken on part of the Respondent state. These Project Schools had been created under the Scheme launched by the then State of Bihar for the purpose of enhancement of literacy in poverty stricken and illiterate areas of the State. 'Project Schools' are the name given to the Schools established by the Government under the Scheme aimed at providing in each block of the State, at least four Secondary/ High Schools out of which one must be a 'Girls' School'. These schools, as per the Scheme of the Government, would be established by taking over private schools which had been granted permission for establishment or was at least a proposed school in terms of the provisions of the Bihar Secondary Education Board Act.
(3.) Before dealing with the issues involved, it is important to give a brief history of the matter. The issues involved have been continuously litigated over a period of almost three decades, before Hon'ble Patna High Court, as also before Hon'ble Apex Court and several other matters have also been decided by the coordinate Benches of this Hon'ble Court in different cases which were preferred by similarly situated litigants individually. The brief fact, as can be culled out gathered from the pleadings made in the writ petitions and submissions made by the learned counsels of both the sides, is summarized as under:- (i) The erstwhile State of Bihar, in order to eradicate illiteracy, specifically in backward areas of the State and also in order to provide opportunity of education to the girl students, took a policy decision to establish Project Girls High Schools, one in each Block of every Districts of the State. It was decided vide office order as contained in memo no. 1115 dated 27.05.1981 that a total of 650 schools were to be opened in a phased manner, which was decided to be done as follows:- (a) 1981-82 - 150 schools - 1st phase Project Girls' High Schools (b) 1982-83 - 200 schools - 2nd phase Project Girls' High Schools (c) 1983-84 - 200 schools - 3rd phase Project Girls' High Schools (d) 1984-85 - 100 schools - 4th phase Project Girls' High Schools A total of 150 schools were duly opened in the 1st phase, but second phase schools could not be opened in 1982-83. Functional schools were, however, selected in the year 1984-85, in view of letter dated 25.01.1985, by a Three Men Committee of the State Government. The present matter relates to these cases, which will be referred to hereinafter as 2nd phase schools, for the sake of brevity. There were 300 schools in the 2nd phase, of which 75 schools were established by the local people and taken over by the Government directly, in pursuance to letter no. 108 dated 12.02.1985, and rest of the schools were selected by Three Men Committee, vide letter no. 142, dated 23.02.1985 (225 schools). Of these 225 schools, only 89 schools fall in the State of Jharkhand. (ii) At this stage of time, the employees of 1st phase schools were already absorbed, but only the trained teachers and non-teaching staff. In the cases of untrained teachers, a decision was taken by wireless messages issued from the office of His Excellency, the Governor, on 14.04.1987, that services of both trained and untrained teachers must be recognized and their services be absorbed, and further theses untrained teachers will be paid salary in untrained scale. (iii) It is to be seen that at the time of selection of 2nd phase schools and appointment of teachers in these schools, there were no service conditions for appointment and therefore appointment was made in absence of any Rule for appointment. These Rules were made for the first time, vide order contained in letter no. 142 dated 04.02.1989. (iv) In the year 1989, a policy decision was taken, vide office order as contained in letter no. 142 dated 04.02.1989, for absorption of services of employees to the post of Assistant Teacher, who were initially appointed in Project Schools of second phase, schools selected on recommendation of Three Men Committee, vide letter as contained in memo no. 142 dated 23.02.1985, in accordance with following conditions:- (a) At clause 1 (i):- The cut-off date for attainment of educational qualification was prescribed to be attained on the date of appointment, i.e. in some cases even before the selection of the school in the year 1985. (b) At clause 1 (iii):- The teachers had to be appointed to the posts (subject) as provided by the 'Manak Mandal' in clause (iii). The arrangements of subjects, as per 'Manak Mandal' was provided, following the same pattern as was provided in Govt. letter No. 705 dated 12.10.1982 and letter no. 1027 dated 02.11.1985, however, there was a substantial improvement, that was brought about in the manner that out of 9 posts, 1 post was reduced from the Science Stream and it was added and adopted as the post of 'other teachers', in which subjects included were minority language, music, arts, commerce subject, anyone of these on the basis of seniority. (c) At clause 1 (iv):- The teachers must be graduate trained at the time of appointment, with few exceptions like women, SC/ST candidates, etc., who would be absorbed, but after absorption within three years, they were required to complete training. (v) The employees, being aggrieved with the policy decision, moved before Hon'ble Patna High Court and the matter was ultimately decided by the Full Bench of Hon'ble Patna High Court in the matter of Project Uchcha Vidyalaya Shikshak Sangh v. State of BiharOrs, reported in 2000 (1) PLJR 287 (FB). The Hon'ble Court decided that on different grounds the decision of the respondent state was highly arbitrary and illegal, and directed for the appointment of independent Committee, which would scrutinize the individual cases on the basis of following principles:- (a) There should be no discrimination between the staff of 1st phase schools and 2nd phase schools, as because both are part and parcel of the same Scheme, which was being made applicable at different periods of time and in different areas. Therefore, in reality all the staff were similarly situated in their respective categories, and hence they cannot be differently treated. (b) The educational qualification had to be attained by the date by which the Scrutinizing Committee would submit its report. The relevant paras of judgment passed in case of Project Uchcha Vidyalaya Shikshak Sangh v. State of BiharOrs (supra) is reproduced herein below:- "7. Coming to the facts of these cases and a bare reference to the first circular of the Government bearing No. 1115, dated 27th January, 1981, there appears no doubt that all such schools have been selected under one common scheme of the State Government to provide 650 new schools in each of 587 Blocks of this State for the benefit and upliftment of the educationally backward rural areas. The implementation of the scheme was of course to be done in different financial years, commencing from 1981-82 to 1984-85. It would further appear that initially the later part of the circular issued in the year 1981, deals only with respect to 150 schools which were to be taken over in the said financial year, but in the facts and circumstances, there cannot be any doubt that take over of all Project Schools was a continuous process under the same scheme and thus, to avoid any discrimination among the students of one area with that of another area where schools were established in the financial year 1984-85, the manner and the provisions which were adopted for the recognition and regularisation of services of teachers and non-teaching staff are to be applied alike and failure in doing that would frustrate the very object of the scheme to educate the students admitted in such schools. For example the schools established earlier had the advantage of teaching of various subjects for which there is provision for appointment of 9 teachers of different subjects whereas for the subsequent phases, the Government provided less number of teachers which obviously would deprive such schools teaching any subject other than those for which the teachers are appointed though the same is available in the schools which were established in the first phase. 22. That apart, this cannot be denied that at the time of initial appointment of these petitioners, there was no statutory rule or circular to prescribe the upper qualifying age for appointment of a teacher in privately managed school. It would also appear that the State Government while taking over the management and control of other privately managed schools under the provisions of the Bihar NonGovernment Secondary Schools (Taking over of ManagementControl) Act, 1980, had granted age relaxation to the teachers and non-teaching staff of these schools up to the age of 35 years. Therefore, although the relevant circular of the State Government, whereby the maximum age was relaxed to 35 years for the teaching and non-teaching staff of the Non-Government Secondary Schools, is not applicable to the teaching and non-teaching employees of the Project Schools as already held above but having regard to the facts that they have continued uninterruptedly for several years, it would be in fact too hard to reject their claim at such a belated stage simply because some of them had crossed the age of 31 years at the time of initial appointment by the Managing Committee before the take over of the schools as Project School. I am, therefore, of the view that in the background of the facts stated above, such petitioners are also entitled for the regularisation/ recognition of their services against the posts within the aforementioned staffing pattern. 30. In my view, having regard to the facts noticed above, in absence of any policy of the Government fixing the cut-off date for the purpose of possessing such minimum qualification, it would not be proper for the respondents to refuse recognition/regularisation of the services of the teachers on the ground that at the time of their appointments by the Managing Committees of the respective schools, they were not trained graduates. Because such a requirement was prescribed for the first time by circular No, 142, dated 4th February, 1989, which, as I have already held above, cannot be applied retrospectively. It would also be relevant to mention that similar was the view expressed by this Court on the previous occasion while disposing of these cases. 35. In my view, it would be appropriate to mention that this Full Bench has only to examine the broad propositions regarding scope and applicability of different circulars of the Government in the matter regarding implementation of the instant scheme, and the service conditions regarding eligibility, qualifications, suitability etc. of teaching and non-teaching staff for regularisation/recognition of their services in the Project Schools. Individual cases of the petitioners of course, shall be examined by the respondent authorities in terms of the findings of this Full Bench in these cases as we have not been posted with the facts in detail by the respective parties. In some of the cases State has not even filed counter-affidavit perhaps under the impression that once this Court decided the principle then the authority concerned would examine individual cases and discharge it of in the light of the said principle." (vi) The order of Hon'ble Patna High Court was challenged in Appeal before Hon'ble Apex Court in State of Bihar v. Project Uchcha Vidyalaya Shikshak Sangh, reported in 2006 (2) JLJR 57, however, Judgment of the Hon'ble Patna High Court was upheld by Hon'ble Apex Court. Relevant paras of the above judgment is reproduced here-in-below:- "19. A Full Bench of the Patna High Court was, pursuant to the said direction, constituted and by reason of the impugned judgment dated 07.12.1999, it was held: (i) Establishment take over of the schools in question was continuous process under the scheme framed in terms of the Government letter dated 27.05.1981 and it constituted a single transaction so as to avoid any discrimination amongst the students of one area with that of another area. (ii) The provisions governing the recognition/regularization of the services of the teachers and payment of their salaries in respect of Project Schools of 1981-82 would also apply to the schools selected during 1984-85. (iii) In view of the unambiguous stand of the State before the High Court, the process of selection was completed in the year 1986 and there remains no controversy as regard establishment or selection of 300 Project Schools during the year 1984-85. (iv) The question as regard recognition and regularization of the services of the teaching and non-teaching staff of the Project Schools which were selected in the year 1984-85 was categorized as under: (a) Sanctioned strength of the teachers in the schools; (b) minimum qualification on the date of the appointment; (c) over age and under age on the date of appointment; (d) degree equivalence; (e) the question with respect to the circular holding the field for recognition/regularization of the service conditions of teaching and non teaching staff of all the schools for the year 1984-85; 83. The Committee shall also deal with all such individual cases of the Appellants, as has been directed in para 35 of the judgment of the High Court. 90. So far as educational qualification of the teaching staff is concerned, we are of the opinion that having regard to the fact that the limited number of teachers were to be appointed with a view to accomplish a constitutional goal of spreading literacy in the villages, particularly amongst the girls, the standard adopted in Zila Schools or Government schools constituted in urban areas may not be insisted upon, as was observed by the High Court, but keeping in view the fact that it is essentially a Government function, the question as to whether some teachers having B.T. training or training in Physical Education would be allowed to continue in the said Project Schools or not is left to the State, where for a decision in a decision in accordance with law may be taken." (vii) In compliance of the direction of the Court, the respondent State of Jharkhand sought to constitute a Screening Committee, popularly known as ALAM COMMITTEE, which submitted its report on 30.09.2007. On scrutiny, several cases were rejected by the ALAM COMMITTEE, inter-alia, mainly on the following grounds:- (a) The qualification of graduate trained was considered essential for absorption. (b) The cases of graduate untrained were rejected. (c) The cut-off date for attainment of educational qualification was decided to be the date of appointment. (d) Some of the cases of minority language teachers were not considered. (e) Some of the training institutions were not considered as to be recognized institutions for attainment of training, and therefore, since training was considered essential, hence such cases, where training was availed from these institutions, were rejected. (f) The non-teaching staff, who were appointed, but however, after their appointment, other Government regular staff had been appointed on such posts on deputations, their cases were rejected. (viii) The cases which were selected by the Alam Committee got their absorption, vide Government Notification dated 09.02.2011 and salaries were released in favour of the employees so absorbed w.e.f. 01.01.1989. (ix) Other employees (both teaching and non-teaching staff), who have not been absorbed, moved before the Single Bench of this Hon'ble Court and in many cases it was found by this Hon'ble Court that the Alam Committee has decided the matter without referring to the principles laid down by the Full Bench of Hon'ble Patna High Court, confirmed by the Hon'ble Apex Court, and in deciding so in each individual cases, it was said that the Alam Committee will not be considered in as much as it goes against the principle established by Hon'ble Apex Court, which in different cases have been held as follows:- (a) The cut-off date for attainment of educational qualification is the date on which the Screening Committee submits its report, i.e. the date on which Alam Committee has submitted its report i.e. on 30.09.2007. (b) The training certificates obtained prior to coming of NCTE, do not require any recognition of the institutes and, therefore, all such training certificates are admissible. (c) The women and SC/ST candidates were to be absorbed in the services. (d) The minority language, forms part and parcel of MANAK MANDAL and, therefore, appointment made on such posts are required to be absorbed. (e) The non-teaching staff who were appointed but after their appointment other Government regular staff had been deputed on such posts and on this ground the cases of already appointed non-teaching staff under the Scheme cannot be segregated. Therefore, such non-teaching staff in whose place later on regular Government deputations have taken place, despite the fact that they were already working against the sanctioned vacant posts, they are to be regularized. (x) In several cases, the directions of the Hon'ble Court were complied with and absorption was done. (xi) In the meanwhile, since the State Govt. had not passed any orders in relation to left over cases, which had already been rejected by Alam Committee, it was decided vide Govt. order dated 06.10.2012 that all the teaching staff will be absorbed including both trained and untrained, who were appointed prior to 04.02.1989. (xii) Some untrained teachers moved before the Hon'ble Jharkhand High Court in the case of Sarju Prasad Gupta and ors. v. State of Jharkhand and ors., in W.P.(S) No. 3833 of 2014, whereby vide order dated 13.04.2016, it was observed by the Hon'ble Court that since policy decision for absorption of untrained teachers has already been taken in the year 2012, vide memo no. 2743 dated 06.10.2012, therefore, the matter is being remanded back to take appropriate decision on recognition of untrained teachers in view of such policy decision. (xiii) In pursuance to the direction of this Hon'ble Court, the cases of untrained teachers, namely Sarju Prasad Gupta, Anil Kumar Prajapati and Surendra Kumar was considered and they were absorbed by the State Govt., vide order as contained in memo no. 1605 dated 17.08.2016. It was stated in the order that since the teachers of 1st phase and 2nd phase schools are to be treated in parity, therefore, considering that 1st phase untrained teachers have already been absorbed, and therefore, the absorptions of the present teachers, who belong to 2nd phase schools, are being done. (xiv) The respondents have also considered the case of one Sri Satyanarayan Gope, whose services has been absorbed as untrained teacher, on the same logic, vide Govt. order as contained in memo no. 362 dated 01.03.2017. (xv) Similarly one Swarnlata, has been absorbed as untrained teacher; vide Govt. order as contained in memo no. 3245 dated 01.12.2015. (xvi) Several writ petitions have been filed by the similarly situated untrained teachers, which have been disposed of to take decision in light of the policy decision of 06.10.2012 and the absorption of similarly situated untrained teachers is already done by the State of Jharkhand. ;