1. Heard learned counsel for the parties.
2. The prayer of the petitioner in this writ application reads as follows:-
œ1(i) That this is an application for issuance of writ in the nature of certiorari for quashing of the office order dated 7.3.1995 bearing letter no. 9-M4-0648/92/79 (Annexure-10) and for quashing of the order dated 27.12.2011 bearing Memo No. 06/6-54/2011/581 (Annexure-13) as the same is contrary to the section 4(2) of the Bihar Non Government Elementary School (Taking over of control) Act, 1976 and enquiry report dated 16.7.86 (Annexure-5).
(ii) To grant arrear of salary from the date of taking over i.e. 6.1.1981 to 6.3.1995.
(iii) To issue writ in the nature of mandamus/certiorari/commanding the respondent no.2 to 5 to act at per with the enquiry report dated 16.7.86 bearing letter no. 526 (Annexure-5) because admittedly petitioner was appointed on 6.8.1970 and his joining was accepted 6.8.1970, so it was incumbent upon the respondent no.2 to 5 to accord the approval of the service of the petitioner w.e.f. 1.1.1971 along with all consequential benefits.
(iv) To issue a writ in the nature of mandamus commanding the respondent no.2 to 5 to accord the approval of the service of the petitioner w.e.f. 1.1.1971 in contemplation of Bihar non Govt. Elementary School (taking over of control) Act 1976 as the petitioner is no way responsible for the omission and commission as well as mischief of the respondent authority.?
3. The fact giving rise to this writ application lies in a very narrow compass. It is the claim of the petitioner that on the basis of his being a simple matriculate, he was appointed as an Assistant Teacher by the Managing Committee of the Lower Primary School, Rupauli while the school was a private school. According to the petitioner, this school was taken-over in terms of the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 (hereinafter to be referred to as žthe ActŸ) which was retrospective in nature and had come into force with effect from 1.1.1971. According to the petitioner, though the services of other teachers were approved and taken-over, the services of the petitioner and two others appointed on the same day and in the same transaction, namely, Arjun Prasad Yadav and Upendra Yadav were not taken-over despite recommendation of the controlling authority at the district level and ultimately the Director, Primary Education, by his order dated 6.1.1981, had passed an order approving the services of the petitioner and the aforesaid Arjun Prasad Singh and Upendra Yadav with a consequential direction for payment of their salary on the fixed pay of Rs. 205/- per month as matriculate untrained teacher with effect from 6.1.1981, which reads as follows
(LANGUAGE)
4. It is the further case of the petitioner that despite such an order, the payment of salary of the petitioner did not commence and the petitioner with two others had filed CWJC No. 8906 of 1992 for payment of their salary which was disposed of on 29.1.1993 but, this Court had simply remitted the matter back to the Director, Primary Education with a direction to decide the claim of the petitioner and two others and to pass a speaking and reasoned order in case the claim of the petitioner for payment of salary with effect from 6.1.1981 is found payable. The representation of the petitioner was disposed of by the State Government vide order dated 7.3.1995, which reads as follows
(LANGUAGE)
5. From the contents of the aforesaid order, it becomes clear that the services of the petitioner were approved with effect from 7.3.1995 and a direction was given that the payment of salary of the petitioner would be made only with effect from 7.3.1995. According to the petitioner, this order dated 7.3.1995, which had robbed of the benefit of salary and past services of the petitioner as also Arjun Prasad Yadav and Upendra Yadav was sought to be assailed at the instance of Upendra Yadav in a separate writ application in CWJC No. 4126 of 2009 and this Court by order dated 18.7.2011 had allowed the claim of Upendra Yadav directing payment of his salary for the period 6.1.1981 to 7.3.1995.
6. The petitioner thus in the light of the order of this Court in the case of Upendra Yadav (supra) had filed his writ application for the similar relief i.e. payment of salary for the period 6.1.1981 to 7.3.1995 in CWJC No. 13188 of 2009 but in his case, a similar order alike in the case of Upendra Yadav was not passed on the ground of delay of fourteen years and the petitioner was only given liberty to approach competent authority with a direction to decide the claim of the petitioner for payment of salary for the period 6.1.1981 to 7.3.1995 and give reasons if such claim of the petitioner was not allowed. The petitioner, thereafter, had filed his representation before the Director, Primary Education, which has been disposed of by the impugned order dated 27.12.2011 wherein it has been held that the petitioner would not be entitled for payment of salary for the period 6.1.1981 to 7.3.1995 because there was no proof of his being present in the school.
7. Learned counsel for the petitioner has submitted that the case of the petitioner and Upendra Yadav is absolutely same and similar and, therefore, there could not have been two different orders, one in the case of Upendra Yadav whose claim for payment of salary was allowed by this Court itself and the other in the case of the petitioner denying the benefit of payment of salary for the same period. In this regard, he has also referred to certain enquiry report as also attendance register enclosed with the writ application to substantiate his claim of payment of salary of the petitioner on the basis of uninterrupted and continuous work done by him on the post of Assistant Teacher in the relevant period i.e. from 6.1.1981 to 7.3.1995. Learned counsel for the petitioner in this regard has not only placed reliance on an order of this Court in the case of Upendra Yadav (supra) but also another unreported judgment dated 31.8.2010 in CWJC No. 11837 of 1997 (Laldeo Prasad Yadav and Anr. Vs. The State of Bihar and Ors.).
8. In this case, a counter affidavit has been filed by the District Programme Officer (Establishment), Madhepura wherein the question of delay has been highlighted in two folds. Firstly, it has been stated that if the petitioner claims that his services were approved by the Director, Primary Education on 6.1.1981, there was no question for him to move this Court after eleven years by filing his first writ application for claiming payment of salary pursuant to the aforesaid order of the Director, Primary Education dated 6.1.1981. Secondly, it has also been pointed out that when in term of the order of this Court dated 29.1.1993 in CWJC No. 8906 of 1992, the first writ application of the petitioner, no relief was given to the petitioner for payment of salary of arrear of salary and only a liberty was given to the petitioner to file a representation to the Director, Primary Education for deciding the claim take-over of the service and payment of salary and an order was passed on 7.3.1995 approving the services of the petitioner with the benefit of payment of salary only from 7.3.1995, that order also was allowed to become final because the petitioner did not claim any relief for payment of salary for next fourteen years before filing his second writ application, CWJC No. 13188 of 2009.
9. Learned counsel for the State has highlighted that this Court on account of delay of fourteen years in moving this Court against the order dated 7.3.1995 by his second writ application, CWJC No. 13188 of 2009 had itself refused to give any relief much less payment of salary and, therefore, the gross unexplained delay would stare in the face of the petitioner.
10. Let it be noted that in the counter affidavit that was filed by the District Programme Officer (Establishment), Madhepura, it was also explained that the impugned order passed by the Director, Primary Education pursuant to the representation filed by the petitioner in terms of the observations made in the order of this Court dated 6.1.2010 in CWJC No. 13188 of 2009 (second writ application of the petitioner), it was clearly held that the attendance register of the school for the period January, 1985 to May 1994 did not show the presence of the petitioner in the school and as such, the petitioner otherwise was not entitled for payment of salary on account of his being absence from the school.
11. When this case was heard initially on 10.4.2012, learned counsel for the State was directed to keep the original attendance register of the school of the relevant period ready for its perusal to substantiate the findings in the impugned order passed by the Director, Primary Education as with regard to absence of the petitioner from the school in the relevant period i.e. from 6.1.1981 to 7.3.1995.
12. Learned counsel for the State, thereafter, in course of hearing of this writ application on 2.8.2013, having produced the original attendance register in which the name of the petitioner was not there, had taken a plea that whatever copies of the attendance register were brought on record by the petitioner by filing supplementary affidavit was forged attendance register, which the petitioner himself in capacity of Headmaster of the school had created only to claim payment of salary by demolishing the findings recorded by the Director, Primary Education. According to the learned counsel for the State, the petitioner had not even produced these attendance register which was made part of the supplementary affidavit filed on 12.12.2012 after filing of the counter affidavit on 2.7.2012. In such circumstances, this Court by order dated 2.8.2013 had granted time to the learned counsel for the State to file supplementary counter affidavit enclosing the documents to show that the petitioner himself while he was working as a Headmaster of the school had forged the attendance register only for the purpose of staking his claim for his own payment of arrear of salary.
13. In compliance of the aforesaid order of this Court, a supplementary counter affidavit was filed by the District Programme Officer (Establishment), Madhepura on 7.8.2013 wherein not only the photocopy of the attendance register of the month of January, 1985 to May, 1985 by way of elucidation was produced but, even a show-cause notice dated 23.7.2013 in the name of the petitioner was enclosed wherein the petitioner was asked to explain as to how and why he had produced the forged attendance register in which the name of the Headmaster of the school, namely, Tej Narayan Singh and another Vivekanand Yadav working in the relevant period i.e. January, 1985 were only there. In such supplementary counter affidavit, the reminder to the petitioner for submitting his explanation dated 31.7.2013 was also enclosed for explaining the forgery on the part of the petitioner.
14. Let it be noted that the petitioner had filed a reply to the counter affidavit wherein he had sought to explain that the extract of the attendance register brought on record by the District Programme Officer (Establishment) showing the presence of only two teachers i.e. the Headmaster Sri Tej Narayan Singh and Vivekanand Yadav, an Assistant Teacher were genuine but, then, that was the different attendance register of the teachers who were possessing the qualification of teachers training whereas the copies of the attendance register which were produced by the petitioner for himself and two other teachers, namely, Arjun Prasad Yadav and Upendra Yadav were with regard to untrained teachers.
15. In the considered opinion of this Court, such a jinxed and highly disputed question of fact is not capable of being adjudicated in a writ jurisdiction because if two types of attendance registers are being brought forward by the contesting parties, one by the petitioner and another by the District Programme Officer (Establishment), its authenticity and correctness can only be gone into in a civil suit before the competent civil court. Prima-facie, it appears that the attendance register, which has been produced by the petitioner, has been manufactured for the purpose of this writ application. This becomes clear because at least for the same period i.e. January, 1985 to May, 1985, while the original register produced before this Court contains the signature of the supervising officer of the Education Department as endorsement œSeen? in the date of 24.5.1985 (See Annexure-A/5 at Page 241). The so-called attendance register produced by the petitioner of the same period i.e. for the month of May, 1985 (See Annexure-15 at Page 107) does not bear any endorsement. What is really surprising is that the entire attendance register produced by the petitioner contains endorsement at each and every page Loizekf.kr (self-attested) at the bottom of each and every page. The question would be why and how the question of endorsement of self-attestation in the original attendance register was sought to be made? Thus, the photocopy of the attendance register, which has been brought on record by the petitioner by way of Annexure-15, does not seem to be an authentic document, which only contains the signature of three teachers whose services is said to have been taken-over with effect from 6.1.1981.
16. As noted above, the respondents in their counter affidavit have taken a plea that the copy of the attendance register which has been produced by the petitioner in the supplementary affidavit are forged and fabricated document which were created by the petitioner himself for the benefit of claiming arrear of payment of salary. This gets support also from the conduct of the petitioner because if an order for payment of salary by way of approval of his services along with two others were made with effect from 7.3.1995 in place of 6.1.1981, which in effect had robbed the petitioner of his salary for a period of fourteen years and two months, he could not have remained silent for next fourteen years, inasmuch as, the grievance with regard to the order dated 7.3.1995 for the first time was made by the petitioner by filing his writ application only in the year 2009 in his second writ application, CWJC No. 13188 of 2009. Let it be noted that when this order dated 7.3.1995 was assailed by the petitioner in his second writ application after more than fourteen years by filing CWJC No. 13188 of 2009, this Court, by order dated 6.1.2010, had refused to interfere with the same by making following observation:-
œPetitioners prayer is for quashing of the order dated 7.3.1995 passed by the Director Secondary Education, Government of Bihar, whereby an order has been passed for making payment of salary to the petitioner with effect from the date of the issuance of the order i.e. 7.3.1995 instead of 29.11.1982 when the service of the petitioner was approved. The impugned order has been challenged by the petitioner on the ground that it is contrary to Section 4 (3) of the Bihar Non Government Elementary School( Taking Over of Control) Act 1976 and the inquiry report dated 16.7.1996. Since the petitioner has come before this Court after more than 14 years from the date of the issuance of the order without explaining the delay, as such this application is being disposed of without considering its merit.------?
17. In view of the above observations of this Court in the inter-parte order, this Court will have no difficulty in holding that whatever was given by way of liberty to the petitioner for filing of the representation was subject to the law laid down by the Apex Court in the case of Union of India and Ors. Vs. Tarsem Singh reported in 2008(8)SCC 648 wherein it was held as follows:-
œ7. To summaries, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought to have granted interest on arrears in such circumstances.?
18. As a matter of fact, the limited liberty given to the petitioner in the same order dated 6.1.2010 in his second writ application, CWJC No. 13188 of 2009, reading as follows:-
œPetitioner has liberty to represent his case before the concerned authority once again so that his case may be considered in consonance with the provision of Section 4(3) of the Bihar Non Government Elementary School (Taking Over of Control) Act, 1976. In case the petitioner represents before the authorities concerned i.e. Director Primary Education, Government of Bihar, Patna, he will take up the matter, decide the issue with a speaking order for not allowing the benefit of salary to the petitioner with effect from the date of approval of service i.e. 29.11.1982. Order must be passed within eight weeks from the date of production/communication of this order.?
was only with regard to the effect of Section 4(3) of the 1976 Act.
19. Let it be noted that charging Section of the 1976 Act is Section 3, which reads as follows:-
œ3. Taking over of Non-Government Elementary schools by State Government.-
(1) Elementary schools managed by the District Board, Zila Parishad, the Municipal Board, and the Patna Municipal Corporation, and those opened under the Expansion and Improvement scheme shall be deemed to have been taken over by the State Government with effect from the 1st day of January, 1971.
(2) Aided Elementary schools, the Managing Committees of which have handed over voluntarily the control of the school to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) for this purpose.
(3) Elementary schools administered by any public or private undertakings shall be taken over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein.
(4)(a) With regard to the taking over of Elementary schools other than those mentioned in sub-sections (1) and (3) there shall be a District Committee in each District which shall examine the feasibility of taking over of such schools by the State Government and which shall consist of the following members:
(i) Deputy Development Commissioner/ Administrator, District Board- Chairman.
(ii) District Superintendent of Education “ Secretary. Members
(iii) District Education Officer,
(iv) District Inspector of schools,
(v) Subdivisional Education Officer of the concerned subdivision, and
(vi) Deputy Inspector of schools concerned.
(b) The State Government may, from time to time make changes in the personnel of the District Committees so constituted.?
20. Section 4 in fact is the consequential provision of take-over of the school, which, also for the sake of clarity and convenience, is quoted herein below:-
œ4. Consequences of taking over.-
(1) All the assets and properties whether movable or immovable owned or possessed by the schools taken over by the State Government under Section 3 including lands, buildings, documents, books and registers relating to the schools shall stand transferred to and be deemed to have come into the possession and ownership of the State Government.
(2) Every officer, teacher or other employee holding any office or posts in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government.
(3) The service of employees of local bodies working on deputation in the office of the District Superintendent of Education, Subdivisional Education officer-cum-Municipal Education Officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over by the Government and such employees shall in case of their opting to Government service, be deemed to have become Government servants with effect from the date of enforcement of this Act.?
21. From the conjoint reading of the provision of Section 3 and 4, it would become clear that the non-government primary schools were to be taken-over in three different manners. Firstly, those elementary schools managed by District Board, Zila Parishad, Municipal Board and the Patna Municipal Corporation as well as those which were opened under the expansion and improvement scheme were deemed to have been taken-over by the State Government with effect from 1.1.1971. The school of the petitioner does not fall in this category and, therefore, there is no question of application of Section 3(1) of the 1976 Act nor of Section 4(3) of the Act, inasmuch as, Section 4(3) of the 1976 Act related to services of the employees of local bodies working on deputation in the office of District Superintendent of Education, Sub-divisional Education Officer-cum-Municipal Education Officer and those working in the education section of Patna Municipal Corporation.
22. The second type of take-over of the school was in respect of elementary schools which were administered on any public or private undertakings and they were to be taken-over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein. This was essentially to be made after the 1976 Act was enacted and published in Bihar Gazette on 6.2.1976. The school of the petitioner also does not fall in this category.
23. As a matter of fact, the school of the petitioner falls in the third category covered by Section 3(2) read with Section 3(4) because it was an aided elementary school and for which a conscious decision had to be taken by the District Committee. From the materials on record including the enquiry report heavily relied by the learned counsel for the petitioner, it would become clear that the school was approved only on 21.12.1965 and was an aided school in which the payment of salary to the two teachers, namely, Sri Tej Narain Singh, Headmaster and Vivekanand Yadav, an Assistant Teacher under the EIP Scheme was being made from the funds of the State Government even before its being actually taken-over by the government letter no. 4206 dated 9.7.1980 and at the time of taking-over, the services of only two teachers, namely, Tej Narain Singh and Vivekanand Yadav were approved with benefit of payment of salary as is apparent from the letter of the District Superintendent of Education, Saharsa dated 28.10.1980 (Annexure-3) while recommending for approval of the services of the petitioner and two others untrained teachers.
24. The mystery in fact about the payment of salary of the petitioner and two others gets further deeper because the District Superintendent of Education, Madhepura in his letter dated 16.7.1986 has referred to an order of the Director, Primary Education dated 6.1.1981 approving the services of the petitioner and two other teachers, namely, Arjun Prasad Yadav and Upendra Yadav but, their payment of salary were not made in view of the decision of the State Government contained in letter of the Special Secretary cum Director, Primary Education in the letter no. 1465 dated 17.6.1981, which also speaks of payment of salary to the petitioner at the rate of Rs. 40/- per month by the Managing Committee till June, 1979 as against the payment of salary to Arjun Prasad Yadav till December, 1979 and to Upendra Yadav also till June, 1979 at the same rate of Rs. 40/- per month from the funds of the Managing Committee of the school. In view of these materials, it becomes clear that the school was not taken-over and in fact could not have taken-over with effect from 1.1.1971 but, only with effect from 9.7.1980.
25. The status of the petitioner on 9.7.1980 was of an untrained teacher and as such, either his approval or payment of salary could have been decided only by a specific order of the State Government in terms of Section 4(2) of the 1976 Act. The status of the petitioner by way of approval of the services in terms of the order of Director, Primary Education dated 6.1.1980, therefore, will have no meaning in law because it had to be decided keeping in view that the State Government (not the Director, Primary Education) had the power to pass such an order and had also decided to approve the services of the petitioner only with effect from 7.3.1995. It needs no elucidation that whereas the order dated 7.3.1995 has been passed by the State Government and communicated by the Under Secretary to the Government, the earlier order dated 6.1.1981 of the Director, Primary Education, which was communicated by the District Superintendent of Education vide memo no. 873-6 dated 19.11.1982. Section 4(2) of the Act does not authorize the Director, Primary Education to take such a decision and empowers only the State Government to take such decision.
26. It is true that one among the three teachers, namely, Upendra Yadav, having almost an identical case, has been given relief by this Court for payment of salary from 6.1.1981 i.e. the date of the order by approving the services by the Director, Primary Education till 7.3.1995 but, then, that order does not take into account either the order of the Director, Primary Education dated 6.1.1981 to be itself in teeth of Section 4(2) of the 1976 Act or the effect of the order dated 7.3.1995 passed by the State Government.
27. Let it be also noted here that if the petitioner wants to draw the benefit of similar case of Upendra Yadav, he cannot ignore the result of another similar case of Arjun Prasad Yadav. It has to be kept in mind that three teachers of the same school namely, the petitioner, Arjun Prasad Yadav and Upendra Yadav, on the basis of the same order of the Director, Primary Education dated 6.1.1980 and that of the State Government dated 7.3.1995, were claiming identical relief and while the claim of Upendra Yadav was allowed by this Court, the claim of Arjun Prasad Yadav has been rejected by an order dated 22.7.2011 in CWJC No. 2225 of 2009. As a matter of fact, the case of Arjun Prasad Yadav was also remitted for consideration by this Court by order dated 3.5.2007 in CWJC No. 16301 of 2001 and the Principal Secretary of the Education Department had passed a reasoned order on 15.10.2007, which would also be helpful for the case in hand and is quoted herein below:-
(LANGUAGE)
(underlining for emphasis)
28. As a matter of fact, when this order was assailed by Arjun Prasad Yadav in CWJC No. 2225 of 2009, the same was approved by the learned Single Judge in the order dated 22.7.2011, relevant portion whereof reads as follows:-
œArjun Prasad Yadav claimed to have been appointed by the Managing Committee of Primary School, Rupauli (Singheshwar) on 6.8.1970 i.e. the date of appointment of original petitioner being prior to 1971 and the School subsequently being taken over by the Govt. with effect from 06.01.1981. His claim was that he is entitled for his salary with effect from 06.01.1981 to 06.03.1995. Earlier also the original petitioner Arjun Prasad Yadav had moved before this Court for similar relief by filing C.W.J.C. No. 16301 of 2001 which was disposed of vide order dated 8.3.2007 with observation that Principal Secretary, Human Resources Development Department will examine the claim of the petitioner after perusal of all necessary documents and pass necessary orders. The present writ application has been filed by the original petitioner for quashing the order contained in Memo No. 6/Is-165/07/950 dated 15.10.2007, whereby the claim of the petitioner has been rejected.
On perusal of the impugned order, I find that Principal Secretary, Human Resources Development Department has passed reasoned order after considering the entire documents presented by the petitioner as well as Headmaster of the concerned school. Before passing the impugned order even the attendance register of the Primary School, Rupauli for the period January, 1985 to May, 1992 was examined. On perusal of the attendance register the finding recorded by the Principal Secretary, Human Resources Development Department is that neither petitioners name nor his signature in the attendance register. It would not have been clear that he was working in the school during the period for which he has claimed his arrears of salary. I do not find that there is any error in the impugned order, which could have given benefit to the petitioner for interference by this Court.
On consideration of entire materials, I do not find any merit in this application, it is dismissed.?
29. Thus, it would be found that three teachers having identical case from the same school claiming same relief in the same set of facts cannot be and should not have been given different result in their writ application filed before this Court. Whereas this Court in the case of Arjun Prasad Yadav has rejected the claim of his payment of salary for the period 6.1.1980 to 7.3.1995 while dismissing the writ application of Arjun Prasad Yadav by order dated 22.7.2011, somehow an exactly opposite order has been passed by the same learned Single Judge while disposing of the writ application of Upendra Yadav by an order dated 18.7.2011 wherein it was held as follows:-
œHeard counsel for the petitioner and the counsel appearing for the State.
Petitioner has now retired and his prayer is for a direction to the respondents to make payment of arrears of salary for the period 6.1.1981 to 7.3.1995. He has subsequently been paid his salary after order passed in CWJC No. 8906 of 1992 of this Court.
Counsel for the petitioner submits that the issue regarding payment of arrears of salary to the teaching and non-teaching employees of the school has already been settled in CWJC No. 11837 of 1997. The case of the petitioner is similar to that of CWJC No. 11837 of 1997.
Having considered the matter, I have no option but to direct that the petitioner is entitled to salary for the period 6.1.1981 to 7.3.1995. The writ petition is disposed off directing the District Superintendent of Education, Madhepura Respondent no.5 to make entire payment of arrears of salary for the period 6.1.1981 to 7¦3.1995 to the petitioner within eight weeks from the date of production/communication of this order.?
30. A question before me, therefore, arise as to with which of the two orders, I should follow? An order in the case of Upendra Yadav (supra) contains no reason whereas the order of the same HonŸble Judge in the case of Arjun Prasad Yadav contains graphic and cogent reasons while approving the order of the Principal Secretary dated 15.10.2007. I, therefore, prefer to rely on the order of the learned Single Judge in the case of Arjun Prasad Yadav (supra) because it is not only a reasoned order but in fact approves the well considered order of the Principal Secretary with regard to same school and same set of three untrained teachers governed by identical facts and evidence including the attendance register.
31. Let it be noted that so far the petitioner is concerned, though his case was also before the same HonŸble Judge, who had passed the order in case of Upendra Yadav directing payment of salary vide order dated 18.7.2011 in CWJC No. 4126 of 2009 but, that benefit was not given to the petitioner in the earlier order dated 6.1.2010 while disposing of his second writ application in CWJC No. 13188 of 2009. This Court, having noted that there is serious dispute with regard to the date of take-over of the services of the petitioner, whether 6.1.1981 or 7.3.1995 as also the petitioner having not found present in the school in the attendance register produced by the respondents before this Court, is not in a position to follow the cryptic order passed in the case of Upendra Yadav dated 18.7.2011 in CWJC No. 4126 of 2009. This Court in fact while taking this view would get support from the judgment of the Apex Court in the case of State of Bihar Vs. Upendra Narayan Singh and Ors. reported in 2009(5)SCC 65, wherein, it was held as follows:-
œ66. The issue which remains to be considered is whether the Division Bench of the High Court was justified in refusing to examine legality and legitimacy of the initial appointments of the respondents only on the ground that the State had not challenged the dismissal of letters patent appeals filed in other cases. In our view, the approach adopted by the Division Bench was clearly erroneous.
67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order----?
32. The reliance placed by the learned counsel for the petitioner on the judgment of the learned Single Judge in the case of Laldeo Prasad Yadav (supra) for the similar reason that it does not take into consideration the effect of Section 4(2) of the 1976 Act. In fact it has also proceeded on the basis of an earlier judgment of this Court in the case of Sheo Ram Chaudhary Vs. The State of Bihar and Ors. reported in 2000(2)PLJR 208. From a bare reading of the judgment of the Sheo Ram Chaudhary (supra), it would transpire that such direction for payment of salary in his case was given only because there was no dispute of working of Sheo Ram Chaudhary, the petitioner of that case. On the other hand, as noted above, the findings of the Director, Primary Education in the impugned order is that there is no proof of working of the petitioner in the relevant period and in fact, the official attendance register produced by the respondents themselves go to show that neither the petitioner nor the other untrained teachers had been present in the school in the relevant period i.e. from 6.1.1980 to 7.3.1995.
33. Before parting with, this must be clarified that the petitioner even otherwise has got no case on merit as with regard to his automatic take-over of the services. As noted above, the school, in question, of the petitioner was a recognized private school, run by the Managing Committee. It had, therefore, restriction of making appointment as per the government decision. There was a complete embargo on the appointment of an untrained teacher in the recognized primary and middle school by the government decision contained in letter no. 1915 dated 31.7.1969, which reads as follows:-
(LANGUAGE)
34. As would be apparent from bare reading of the aforesaid government decision dated 31.7.1969, the appointment of the petitioner could not have made as he was untrained. In fact, all the three teachers, namely, Arjun Prasad Yadav, Upendra Yadav and the petitioner who were appointed on 6.8.1970, 8.8.2000 and 10.8.1970 were simply matriculate and also untrained. Therefore, their services were not approved when the school was taken over with only two trained teachers, namely, Rej Narayan Singh, Headmaster and Vivekanand Yadav, an Assistant Teacher. The petitioner, therefore, having got the grace of his approval of services under the order of the State Government with effect from 7.3.1995 could not have asked for more because his appointment otherwise by the private management was itself ab initio void.
35. This Court, therefore, finds full justification for non-payment of salary of the petitioner for the period 6.1.1980 to 7.3.1995, inasmuch as, from the materials on record, it would be established that:-
(i) Firstly, the appointment of the petitioner as an untrained teacher in a private recognized school was contrary to the government decision dated 31.7.1969.
(ii) Secondly, his services were never taken-over with effect from 1.1.1971 and in fact even the order of approval of the Director, Primary Education dated 6.1.1981 was without jurisdiction and the same was rightly not acted upon as has been explained by the Principal Secretary while passing the order in the case of Arjun Prasad Yadav.
(iii) The petitionerŸs claim for payment of salary is based on unauthenticated attendance register about whom he has no answer because he has not even chosen to file his show-cause reply as enclosed with the supplementary counter affidavit filed by the District Programme Officer (Establishment).
(iv) The petitionerŸs services having been approved by the State Government only by an order dated 7.3.1995 and that order having been not interfered in his second writ application only on account of delay vide order dated 6.1.2010 in CWJC No. 13188 of 2009, the same cannot be now again questioned by the petitioner while assailing the order of the Director, Primary Education rejecting the claim for payment of salary on the ground that he had not worked in the relevant period i.e. from 6.1.1981 to 7.3.1995 as found from the official attendance register.
(v) A similar case of Arjun Prasad Yadav has already been dismissed by this Court.
36. Learned counsel for the petitioner, however, has informed this Court that an appeal against the aforesaid judgment of the learned Single Judge in the case of Arjun Prasad Yadav has been admitted for hearing but, then, that would also will be of no avail because the operation of the judgment of the Single Judge in the case of Arjun Prasad Yadav has not been stayed.
37. Thus, on giving serious consideration to all the aforementioned aspects, this Court will have no difficulty in coming to a conclusion that the petitionerŸs challenge to the order dated 7.3.1995 is wholly belated and in fact already rejected in his earlier writ application and that cannot be now reopened by him in the garb of this fresh writ application.
38. As with regard to the impugned order passed by the Director, Primary Education, refusing payment of salary to the petitioner for the period 6.1.1981 to 7.3.1995, this Court, for the reasons indicated above, does not find any error in the same and consequently it has to be held that the petitioner is not entitled for payment of salary for the period 6.1.1980 to 7.3.1995.
39. In the result, this writ application fails and is, accordingly, dismissed.
40. There would be, however, no order as to costs.