Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Pat) 1603

2012 (1) PLJR 34
PATNA HIGH COURT
T. Meena Kumari and Vikash •Jain, JJ.
Chulhai Prasad Singh, aged about 62 years, son of late Asharfi Prasad, Singh, resident of Village-Amkhoria, P.S.-Shahkund, District-Bhagalpur
vs.
The State of Bihar & Ors. ...Respondents
LPA No. 851 of 2009 in CWJC 863/2008
Decided On: 2.8.2011

Advocates:
Advocate Appeared
For the Appellants: Mr. Alim Jang Khan.
For the Respondents: G. P. -20.

The interpretation of circulars and rules under the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983, influenced the court's decision to entitle the appellant to the relief sought.

Headnote:
Circulars - Service Conditions - The court held that the circular indicating the date of establishment as the date of joining should be considered under the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983, and the appellant's date of joining was construed as 21.1.1976, entitling him to the relief sought.
Fact of the Case:

The appellant sought regularization of his services from 21.1.1976, based on a circular indicating the date of establishment as the date of joining. The Single Judge rejected the claim citing the repeal of previous circulars and rules under the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983.
Finding of the Court:

The court found that the circular indicating the date of establishment as the date of joining should be considered under the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983, entitling the appellant to the relief sought.
Issues: Interpretation of circulars and rules under the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983, and the entitlement of the appellant for regularization of services.
Ratio Decidendi: The circular indicating the date of establishment as the date of joining should be considered under the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983, entitling the appellant to the relief sought.
Final Decision: The order of the Single Judge was set aside, and a direction was issued to treat the appellant's date of joining as 21.1.1976, entitling him to the relief sought.

Judgment

(Per: Hon'ble Justice Smt. T. Meena Kumari)

The present appeal has bee 1 filed against the order dated 12.5.2009 passed in C.W.J.C. No. 863 of 2008 whereby the learned Single Judge rejected the claim of the writ petitioner-appellant herein for regularizing his services with effect from 21.1.1976 i.e. the perm ission granted by the authorities for establishment of the respondent-school where he was working.

2. The learned Single Judge refused to grant such relief on the ground that in view of provisions of the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983, all the previous Circulars and the Rules deemed to have been repealed in terms of Sub-rule (1) Rule 21 of the statutory Rule.

3. The learned counsel appearing on behalf the appellant has brought to our notice a circular dated 1.3.1977 contained in Annexure-2 to the supplementary affidavit in this L.P.A. filed by the State wherein it has been stated that the date of establishment would be taken as the date of joining.

4. The learned counsel appearing on behalf of the appellant has further brought to the notice of this Court the provision of sub-clause (2) of Section•10 of the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983 which deals with the repeal and saving clause which says that anything done by the State or any action taken under such rules and orders shall be deemed to have been done or taken under these Rules; as if the so Rules were in force on the date on which such thing was done or action taken. Learned counsel for the appellant also argued that even though the appellant has approached this Court when his services were terminated as untrained teacher, this Court has quashed the said order and directed the State to treat the untrained teachers as trained. Accordingly, he has been appointed and continued in service.

5. Having heard learned counsel for the State and also taking into consideration the Circular contained in Annexure-2 to the supplementary affidavit which indicates that the date• of establishment should be the date of joining of any teacher, we are of the opinion that the appellant is entitled for the relief sought for in this L.P.A. under sub-clause (2) of Section 20 of the Bihar Taken Over Secondary Schools (Service Condition) Rules, 1983 as any action taken under the above circular shall be deemed to have been taken under the present Rule. In' view of the semi-clause, we are of the opinion that the order of learned Single Judge has to be set aside and the date of joining of the appellant has to be construed as 21.1.1976.

6. Accordingly, the order of learned Single (sic-Judge?)' is set aside and a direction is issued to the respondent to treat the date of joining of the appellant as 21.1.1976 and accordingly, his pension should be fixed on that - basis as expeditiously as possible.

7. With the above observation, the appeal stands allowed.

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