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2019 Supreme(Pat) 273
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, BIRENDRA KUMAR, ANIL KUMAR UPADHYAY, JJ.
The State of Bihar through the Commissioner-cum-Secretary, Department of Secondary Education, Human Resources Department, Bihar, Patna and Ors - Appellant
Versus
Smt. Asha Sharma, wife of Shri Birendra Kumar Sinha and Ors - Respondents
Letters Patent Appeal No.1568 of 2011 In Civil Writ Jurisdiction Case No.1046 of 2006 with Letters Patent Appeal No. 1681 of 2013 In Civil Writ Jurisdiction Case No.2638 of 2011 with Civil Writ Jurisdiction Case No. 3486 of 2008, 13563 of 2006
Decided On : 18-04-2019
Advocate Appeared:
For the Appellants :Mr.Anjani Kumar, AAG 6 Mr. Sarvesh Kumar Singh, AAG 13 Mr. Rajeshwar Singh, Mr.Sarvesh Kumar Singh, AAG 13 Mr. Shakib Ayaz, AC to AAG 13 For the Respondent:Mr. Tej Bahadur Singh, Sr. Advocate
Headnote:
Bihar Pension Rules, 1950 – Rules 58 and 60 – Bihar Non-Government Secondary Schools (Taking Over of Control and Management) Act, 1981 – Section 4(2) – Pension – Entitlement of Teaching and Non-Teaching employees of taken over schools – Every teacher and non-teaching employee became government servant by operation of law under Section 4(2) of Act with effect from 2.10.1980 or date of take-over of school – Benefit of pension was admissible to all non-government schools whether run by local bodies or private management – With grant of permission to establish educational institution a teacher or non-teaching employee was entitled to benefit of pension as a matter of course under 1962 triple benefit scheme and 1964 triple benefit scheme – Under 1964 Rules, there was no requirement that school must be recognized school and teachers of school obtaining permission to establish educational institution were entitled to benefit of pension in terms of Rules framed by State Government for triple benefit. [Bihar Non- Government Secondary Education (Taking Over of Management and Control) Ordinance, 1980] (Paras 38 and 39)
School Laws – Pension – Entitlement of Teaching and Non-Teaching employees of taken over schools – Teachers appointed prior to grant of permission shall reckon their service from date of grant of permission for establishment of institution and their service should be counted from that date for benefit of pension – Service is to be counted from date of grant of permission to establish secondary school for the purpose of pensionary benefits – Contextually, plethora of notifications issued from time to time regulating service condition and lack of assistance in most of cases led to conflicting decision of Benches – Divergence of opinion is also due to ignorance of notification occupying the field – It would be appropriate for State Government to frame exhaustive Service Condition Rules instead of issuing one after another notifications so that conflict in decision making and adjudication may be obviated. (Paras 41, 42 and 44)
ANIL KUMAR UPADHYAY, J.
LPA No. 1568 of 2011
1. The Division Bench in this appeal preferred by the State of Bihar against the judgment of the Single Judge dated 23rd March, 2011, in CWJC No. 1046 of 2006, had noticed conflicting judgments of two Division Benches – one reported in 2007 (2) PLJR 239 (Shyam Kishore Singh vs. The State of Bihar & Ors.) and the other in the matter of Madho Sharma vs. the State of Bihar & Ors. in CWJC No. 15725 of 2010, decided on 5th July, 2013 and, on consideration of Government Circulars dated th November, 1978 and 30th August, 1980 as well as the Bihar Non-Government Secondary Schools (Taking Over of Control and Management) Act, 1981 (hereinafter referred to as “the Act of 1981”) and Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983 (hereinafter referred to as “1983 Rules”) noted that there are three diverse opinions for calculating the service for the purposes of pensionary benefits:
(a) to count service from the date of take over treating the nonteaching employee as government servant (b) counting the service from the date of grant of recognition of the non government school and (c) reckoning of service from the date of grant of permission to establish the school.
LPA No. 1681 of 2013
2. This appeal arises out of the judgment of the same learned Single Judge, who accepted the contention of the petitioner that service for the purpose of pensionary benefit shall be reckoned from the date of grant of permission to establish the school. Noticing the issue involved in LPA No. 1681 of 2013, the Division Bench referred the same for consideration before the Full Bench and this was tagged with LPA No. 1568 of 2011.
CWJC NO. 13563 of 2006
3. This writ petition was heard on different dates by the learned Single Judge and, vide order dated 21.11.2013, the learned Single Judge noticing the conflicting Division Bench decisions directed this case to be listed before a Division Bench. On 16.06.2014, this writ petition was admitted by the Division Bench and it was directed to be heard along with LPA No. 1568 of 2011. As such, the case has been tagged with LPA No. 1568 of 2011 the subject matter before the Full Bench.
CWJC No. 3486 of 2008
4. In so far as CWJC No. 3486 of 2008 is concerned, this writ petition was heard on different dates. The learned Single Judge noticing the submission of the learned counsel for the State that similar matter has been referred to the Full Bench in LPA No.1568 of 2011, directed the case to be heard along with LPA No. 1568 of 2011. Thus, CWJC No. 3468 of 2008 has been tagged in this batch of cases.
5. It would be appropriate to note here that in LPA No. 1568 of 2011 the reference precisely involves the issue of counting of service for the purpose of grant of pension to a teacher retired after the school was taken over under the 1981 Act and the 1983 Service Condition Rules framed thereunder. Similar is the issue involved in LPA No. 1681 of 2013. But, on a close scrutiny of the facts of CWJC No. 13563 of 2006 and CWJC No. 3486 of 2008, it appears that in both the cases the issue involved is slightly different. In both the writ applications petitioners have challenged the decision of the Director, Secondary Education, who rejected the claim of the petitioners to count service rendered in the previous school in the light of Resolution No. 636 dated 18.07.1992 whereby the State Government noticing the abuse of liberalized scheme of condoning the break in service vide Resolution No. 581 dated 15.01.1982 decided to slightly amend the Resolution dated 15.01.1982. In the light of the decision contained in Memo No. 636 dated 18th July, 1992, the claim of the petitioners for counting past service rendered in the previous school was rejected. Of course, while rejecting their claim, one of the reasons assigned was that service rendered before recognition and after grant of permission shall not be counted. Thus, the fundamental issue for deciding the present reference is w
