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1989 Supreme(Pat) 122
PATNA HIGH COURT
S.B.Sinha, J.
Kanti Gupta
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 4730 of 1982 ;
Decided On : MARCH 28, 1989
The provisions of the Bihar Non-Government Elementary School (Taking Over Management and Control) Act, 1976, entitle teachers to the same scale of pay which they had been drawing immediately prior to the takeover of the school.
Headnote:
BIHAR NON-GOVERNMENT ELEMENTARY SCHOOL (TAKING OVER MANAGEMENT AND CONTROL) ACT, 1976 - SEC. 3(3), 3(4), 4(2) - SALARY SCALE OF TEACHERS - REDUCTION OF SCALE OF PAY - COURT HELD THAT THE PETITIONER WAS ENTITLED TO THE SAME SCALE OF PAY WHICH SHE HAD BEEN DRAWING IMMEDIATELY PRIOR TO TAKE OVER OF THE SCHOOL.
Fact of the Case:
The petitioner was appointed as Headmistress of a school and was drawing the scale of pay of a B.A. trained teacher. The school was taken over by the State Government under the Bihar Non-Government Elementary School (Taking Over Management and Control) Act, 1976. The petitioner was offered the scale of pay of a matric trained teacher after the takeover.
Finding of the Court:
The court held that the petitioner was entitled to the same scale of pay which she had been drawing immediately prior to the takeover of the school. The court relied on the provisions of the Bihar Non-Government Elementary School (Taking Over Management and Control) Act, 1976, and the decision of this Court in Raj Kishore Mishra V/s. State of Bihar and Ors.
Issues: Whether the petitioner was entitled to the same scale of pay which she had been drawing immediately prior to the takeover of the school.
Ratio Decidendi: The court held that the petitioner was entitled to the same scale of pay which she had been drawing immediately prior to the takeover of the school. The court relied on the provisions of the Bihar Non-Government Elementary School (Taking Over Management and Control) Act, 1976, and the decision of this Court in Raj Kishore Mishra V/s. State of Bihar and Ors.
Final Decision: The court allowed the writ petition and quashed the order reducing the petitioner's scale of pay.
S.B.Sinha, J.
1. In this writ petition the petitioner has confined her claim only to the extent that the respondent had no jurisdiction to reduce the scale of pay which was being drawn by the petitioner i.e. from B.A. trained scale to matric trained scale.
2. The facts of the case lie in a very narrow compass.
3. The petitioner was appointed as Headmistress of Nav Bal Kendra Madhyamik Vidyalaya, Mithapur Patna-1 and was drawing the scale of pay of a B.A. trained teacher. From the appointment letter issued to the petitioner dated 27.3.1970 as contained in Annexure-1 to the writ petition it appears that she was appointed with effect from 2.4.1970. Pursuant to the said offer of appointment the petitioner joined the said school.
4. Petitioners appointment as Headmistress was confined on 28.8.1974 and she was allowed to draw salary of a B.A. trainee teacher. From Anaexure-2 i.e. a memo bearing No. 531, dated 28.8.1974 issued by the Sub-divisional Education Officer, Patna Sadar it appears that the petitioners scale of pay was that of a B.A. trained teacher.
5. The said school was taken over under the provision of the Bihar Non-Government Elementary School (Taking over of Control) Act, 1976 with effect from 1.4.1978.
6. According to the petitioner thereafter she was offered the scale of pay of a matric trained teacher in terms of a memo bearing No. 1732/Patna, dated 14th May, 1979 and as contained in Annexure-3 to the writ petition.
7. According to the petitioner she made representations to the authorities concerned I nit no need thereto has been paid to the same as yet by the authorities.
8. Mr. Chandramauli Kumar Prasad, the learned Counsel appearing on behalf of the petitioner submitted that in terms of the provisions contained in Sec. 3(3) read with Sec. 3(4) and Sec. 4(2) of the aforementioned Bihar Non-Government Elementary School (Taking Over Management and Control) Act, 1976, the petitioner was entitled to be given the same scale of pay which she had been drawing immediately prior to take over of the school.
9. Learned Counsel in this connection has relied upon a decision of this Court in Raj Kishore Mishra V/s. State of Bihar and Ors. reported in 1988 PLJR 1126.
10. Mr. M. Section Madhup, the learned Standing Counsel No. 1 has, however, drawn my attention to the statements made in paragraph Nos. 5, 8, 9 and 11 of the counter-affidavit filed on behalf of the respondent No. 4 and submitted that the petitioner had never worked as Headmistress of the school and had not been getting the salary of a B. A. trained teacher.
11. The petitioner has categorically stated that she had been getting the scale of pay of a B.A. trained teacher in paragraph 7 of the writ petition. She has also produced in this connection as noticed hereinbefore, a memo which had been issued by the Sub-divisional Education Officer, Patna and as contained in Annexure-2 to the writ petition. The deponent of the counter-affidavit filed on behalf of the respondent No. 4 has not controverter the statements made in paragraph 7 of the writ petition and had merely asserted in paragraph 6 thereof that the statements made in paragraph Nos. 4, 5, 6 and 7 of the writ petition are matters of record. It is, therefore, evident that paragraph 7 of the writ petition has not been controverted at all.
12. Mr. Madhup on the basis of the aforementioned statements made in paragraphs, 8, 9 and 11 of the counter-affidavit stated the school in question was taken over from the Managing Committee with a condition that the Headmaster and first Assistant Teacher will be posted from district gradation list. The learned Counsel, therefore, contended that as the petitioner claimed herself to be a Headmistress of that school and in view of the aforementioned condition of take over the petitioner had not denied any legal right to be continued as a Headmistress or the scale of jay of a B.A. trained teacher.
13. In my opinion, the submission of the learned Standing Counsel No. 1 is misco
