Ram Narayan Yadav Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - accordingly, on completion of seven years from the date of taking over the said school, the petitioner filed his representation to the concerned authorities requesting them to recognize him as the head master of the said school and to pay the salary in the prescribed scale of the head master, his representation was recommended by the then district education officer, ranchi by his letter dated 20.9.1993 but 110 order was passed on the said representation even after repeated requests and reminders. it has been stated that during the period when the petitioner was the head master, there was remarkable and commendable performance of the school and for the best results credentials were given to the petitioner.ordern.n. tiwari, j.1. in this writ application the petitioner has prayed for appropriate writ(s)/order(s)/direction(s) commanding upon the respondents.(i) to regularize and approve his services as heard master of ram lakhan singh yadav high school, kokar, ranch! with effect from the date he completed seven years from the date of recognition of the said school or take over of the said school i.e. w.e.f. 6.12.1985 or 2.10.1987.(ii) for payment of arrears of salary in the .scale of head master w.e.f. 6.12.1985 or 2.10.1987 along with other consequential benefits.(iii) for quashing the order contained in memo no. 2276, dated 30.8.2005 (annexure-11) whereby his said claim has been rejected by the director, secondary education, jharkhand. during pendency of this application.2. the facts giving rise to this case are as follows ;the petitioner is an m.a., b.ed. he was appointed as founder head master in ram lakhan singh yadav high school, kokar (ranchi) [hereinafter referred to as 'the said school'] which was established in january 1974. since thereafter he had been continuously working as the head master until he retired on 30.6.2004. the said school was established after obtaining permission from the bihar secondary education board, patna vide letter dated 26.3.1976. the school was thereafter granted permanent recognition by the bihar secondary education board, patna with the teachers including the petitioner by memo no. 36604-10, dated 6.12.1978, the petitioner's name was at si. no. 1 showing him as in-charge head master. subsequently the school was taken over by the government under the provisions of the bihar secondary school takingover act, 1980 w.e.f. 2.10.1980. on the said date of taking over of the school by the government, the petitioner was still working as i/c head master and he was also getting allowance of 1/c head master, in addition to his pay scale of assistant teacher. all along he continued as the i/c head master. government of bihar, education department had taken policy decision vide letter no. 0222/79 edn. 85, dated 16.10.1981 whereby the founder the head masters on completion of seven years from the date of taking over of the schools were to be recognized as head masters of the school keeping in view their valuable contribution in the establishment of the school. accordingly, on completion of seven years from the date of taking over the said school, the petitioner filed his representation to the concerned authorities requesting them to recognize him as the head master of the said school and to pay the salary in the prescribed scale of the head master, his representation was recommended by the then district education officer, ranchi by his letter dated 20.9.1993 but 110 order was passed on the said representation even after repeated requests and reminders. it has been stated that during the period when the petitioner was the head master, there was remarkable and commendable performance of the school and for the best results credentials were given to the petitioner. the petitioner was the drawing and disbursing officer of his school and had been discharging all the functions of a regular head master. the petitioner claimed that as the other similarly situated founder head masters were given status of regular head masters after completion of seven years and were given the scale of the head masters, he is also equally entitled to get the same treatment and benefits. but he has been discriminated against and his genuine claim has been illegally and arbitrarily denied by the respondents. the respondents in course of hearing of the instant writ application had assured to consider his claim and pass appropriate order and for that purpose the hearing of the case was adjourned. but vide order contained in memo no. 2276, dated 30.8.2005 (annexure-11) his claim has been arbitrarily rejected. 3. the respondents contested the petitioner's claim in their counter affidavit, inter alia, stating that the state government had issued the circular by letter no. 85, dated 16.10. 1981 whereby it was provided that the services of those founder head masters who had already completed seven years of continuous service on the date of taking over of the school shall be recognized as regular head masters provided they posses necessary academic qualifications. the said benefit facility, however, was given to the founder head masters who had completed seven years of service till 2.10.1980. the petitioner on that date had not completed seven years of continuous service as founder head master of the said school and as such he is not entitled to be recognized as regular head master after completion of seven years of his continuous service as founder head master/in-charge head master on a later date, it was contended that recommendation for his recognition/regularisation by the district education officer does not confer upon him any legal right to be recognized/regularised as the head master.4. mr. md. s. anwar, learned senior counsel appearing on behalf of the petitioner, submitted that the petitioner having possessed the requisite educational qualification and completed seven years as founder head master of the said school on 2.10.1987 and continued as such till his retirement on 30.6.2004, is entitled to be recognized as regular head master and to get pay scale admissible to the head master from 2.10.1987 till the date of his retirement on 30.6.2004. he is also entitled to get the arrears of difference of pay of his service period and the corresponding retiral benefits. learned counsel relied on a decision of the supreme court in the case of a.k. pradhan v. state of bihar and ors. reported in : (1998)2scc411 and the judgment of this court in the case of mahesh thakur v. state of bihar and ors. reported in to fortify his stand.5. mrs. i. sen. choudhary, learned sc-in, on the other hand, contested the petitioner's claim and contended that the petitioner had joined the school on 2.1.1974. he had educational qualification of m.a., b.ed, but had no required experience for the post of the headmaster. the school was established in 1976, permanent recognition was granted in 1978 and the school was subsequently taken over by the government under the provisions of the said act w.e.f. 2.101980. the petitioner, who had no requisite experience at the time of appointment, cannot be treated as the founder head master which has also been held by a division bench of the patna high court in the case of deobansh pandey v. the state of bihar and ors. reported in 1993 (1) pljr 221 and ram ballabh pd. singh and ors. v. the state of bihar and ors. reported in (1986) pljr 373 which was confirmed by the supreme curt in ram ballabh pd. singh and ors. v. the state of bihar and ors. reported in (1988) pljr 70 (s.c.). learned counsel further submitted that the judgments of the courts cannot be construed as statute and the same should be applied when the factual situation fits with the facts of the case as each case has it own facts. in support of the same, learned counsel relied on the decisions of the supreme court in the case of escorts ltd. v. commissioner of central excise, delhi-ii reported in : 2004(173)elt113(sc) and in the case of bharat forge co. ltd. v. uttam manohar nakate reported in : (2005)illj738sc . on the basis thereof, learned counsel submitted that a decision is an authority for what it decides and not what can logically be deduced there from. it has been submitted that since the petitioner had no required years of experience till 2.10.1980, he cannot be given status of a founder head master automatically and the decision of a.k. pradhan's case (supra), is not applicable in his case. otherwise also, under the provisions of jharkhand government secondary education service conditions, rules 2004 promotion to the post of head master cannot be given unless the recommendation is made by the jharkhand public service commission on the basis of seniority after taking into account the merit list. the petitioner is thus not entitled for his regularization as permanent head master even after lapse of seven years after 2.10.1980 and his claim has been rightly rejected by the competent authority.6. for appreciating the rival contentions of the parties, it is necessary to notice the policy decision under which the petitioner has made his claim and the judicial pronouncements cited on their behalf. as per the government letter dated 16.10.1981 after serious consideration of all the aspects, the government had taken decision to reduce the years of experience of founder head masters from 10 years to seven years for recognizing them-as regular head masters. however, it was mentioned that the said benefit will be admissible to the founder head masters of the schools recognized till 2.10.1980. the petitioner's school admittedly was taken over by the government under the provisions of bihar secondary school taking over act, 1980 w.e.f. 2.10.1980 (annexure-3). in my view, since the said benefit was to be given to the founder head masters of the schools recognized or taken over till 2.10.1980, the petitioner's school which also taken over/ recognized on 2.10.1980 comes with the fold of the said circular. in the said decision of the government it is not mentioned that the benefit confined to the founder head masters who possessed seven years' experience till 2.10.1980. therefore, the cutoff date for giving the benefit is the date of recognition or taking over till 2.101980. in the said letter there is no such provision that the founder head masters who have completed seven years after 2.10.1980 would be excluded from the benefits. neither there is such provision nor there can be such interpretation as has been interpreted/argued on behalf of the respondents. the other objection that the petitioner cannot be recognized as the founder headmaster as on the date of his appointment on 2.1.1974 he did not possess the minimum teaching experience of 10 years as required under the rule 2004, can not be accepted on the simple ground that the said rule of the year 2004 can not have retrospective effect on the date of the petitioner's appointment i.e. on 2.1.1974. in ram ballabh pd. singh's case (supra) a full bench of the patna high court answered the following two questions:(i) whether the head master of a school before it is taken over under section 3(3) of the act shall be deemed to be a teacher of that school for the purpose of examination of his qualification and suitability because there is no specific mention of a head master of such school in section 3(3)?(ii) whether even the head mater of the school taken over under section 3(3) shall automatically become head master of the school after its take over in view of section 4(2) without any scrutiny in respect of his qualification and suitability?the said questions were answered in negative. in conclusion regarding the question no. ii, it was held that the head master of school taken over under section 3(3) does not automatically become the head master of the school after its take over under section 4(2) of the act. the said full bench decision was also affirmed by the apex court in ram ballabh pd. singh's case (supra) holding that the head master has no right to be automatically absorbed as the head master of recognized school, taken over by the government. in my view, both the said decisions have no relevance in the facts and circumstance of the instant case, as in this case the petitioner has not claimed automatic absorption without any scrutiny of his experience or other eligibility required on the relevant date. it is also not the case of the respondents that the petitioner had no required eligibility educational qualification on the date from which he has claimed consideration for his absorption.7. in a.k. pradhan's case, supra, the supreme court having noticed that the petitioner had completed more than seven years of service and was eligible for being considered for regularisation, directed that his claim for regularisation as head master be considered with effect from the date on which he completed seven years of service (reckoned from the date on which the institution was taken over by the government). following the said decision, a bench of this court has allowed writ application in mahesh thakur's case (supra), with a direction to the respondents to regularize the petitioner's services as head master with effect from the date when he completed seven years of service with all the consequential benefits. in view of the said decisions of the supreme court in a.k. pradhan's case (supra) and that of this court in mahesh thakur's case as also in the facts and circumstances appearing in this case, the petitioner's claim is fit to be accepted. for the reasons aforesaid, this writ application is allowed. the impugned order issued by the director, secondary education, jharkhand by memo no. 2276, dated 30.8.2005 (annexure-11) is quashed. the petitioner is held entitled to be regularized as head master on his completion of seven years as founder head master i.e. w.e.f. 2.10.1987 and to get the salary in the scale of regular head master of the high school and all the arrears of difference of pay till the date of his retirement including all the other consequential benefits. since the petitioner has already retired on 30.6.2004, he is also entitled to get arrears of difference of pay at the said scale and his pensionary benefits in the scale of the regular head master on proper fixation of his pay in the said scale on the date of his retirement. the arrears of difference of pay and other pensionary benefits calculated on the said scale must be paid within a period of three months from the date of receipt/production of a copy of this order. if the said arrears and other admissible benefits are not paid within the said period, the petitioner shall be further entitled to get an additional compensatory interest @ 5% per annum which shall be payable over and above the statutory interest admissible to the petitioner.however, in the circumstances of the case there is no order as to costs.

Judgment:
ORDER

N.N. Tiwari, J.

1. In this writ application the petitioner has prayed for appropriate writ(s)/order(s)/direction(s) commanding upon the respondents.

(I) To regularize and approve his services as Heard Master of Ram Lakhan Singh Yadav High School, Kokar, Ranch! with effect from the date he completed seven years from the date of recognition of the said school or take over of the said school i.e. w.e.f. 6.12.1985 or 2.10.1987.

(II) For payment of arrears of salary in the .scale of Head Master w.e.f. 6.12.1985 or 2.10.1987 along with Other consequential benefits.

(III) For quashing the order contained in Memo No. 2276, dated 30.8.2005 (Annexure-11) whereby his said claim has been rejected by the Director, Secondary Education, Jharkhand. during pendency of this application.

2. The facts giving rise to this case are as follows ;

The petitioner is an M.A., B.Ed. He was appointed as founder Head Master in Ram Lakhan Singh Yadav High School, Kokar (Ranchi) [hereinafter referred to as 'the said school'] which was established in January 1974. Since thereafter he had been continuously working as the Head Master until he retired on 30.6.2004. The said school was established after obtaining permission from the Bihar Secondary Education Board, Patna vide letter dated 26.3.1976. The school was thereafter granted permanent recognition by the Bihar Secondary Education Board, Patna with the teachers including the petitioner by Memo No. 36604-10, dated 6.12.1978, The petitioner's name was at SI. No. 1 showing him as In-charge Head Master. Subsequently the school was taken over by the Government under the provisions of the Bihar Secondary School Takingover Act, 1980 w.e.f. 2.10.1980. On the said date of taking over of the school by the Government, the petitioner was still working as I/C Head Master and he was also getting allowance of 1/C Head Master, In addition to his pay scale of Assistant Teacher. All along he continued as the I/C Head Master. Government of Bihar, Education Department had taken policy decision vide letter No. 0222/79 Edn. 85, dated 16.10.1981 whereby the founder the Head Masters on completion of seven years from the date of taking over of the schools were to be recognized as Head Masters of the school keeping in view their valuable contribution in the establishment of the school. Accordingly, on completion of seven years from the date of taking over the said school, the petitioner filed his representation to the concerned authorities requesting them to recognize him as the Head Master of the said school and to pay the salary in the prescribed scale of the Head Master, His representation was recommended by the then District Education Officer, Ranchi by his letter dated 20.9.1993 but 110 order was passed on the said representation even after repeated requests and reminders. It has been stated that during the period when the petitioner was the Head Master, there was remarkable and commendable performance of the school and for the best results credentials were given to the petitioner. The petitioner was the drawing and disbursing officer of his school and had been discharging all the functions of a regular Head Master. The petitioner claimed that as the other similarly situated founder Head Masters were given status of regular Head Masters after completion of seven years and were given the scale of the Head Masters, he is also equally entitled to get the same treatment and benefits. But he has been discriminated against and his genuine claim has been illegally and arbitrarily denied by the respondents. The respondents in course of hearing of the instant writ application had assured to consider his claim and pass appropriate order and for that purpose the hearing of the case was adjourned. But vide order contained in Memo No. 2276, dated 30.8.2005 (Annexure-11) his claim has been arbitrarily rejected.

3. The respondents contested the petitioner's claim in their counter affidavit, inter alia, stating that the State Government had issued the circular by letter No. 85, dated 16.10. 1981 whereby it was provided that the services of those founder Head Masters who had already completed seven years of continuous service on the date of taking over of the school shall be recognized as regular Head Masters provided they posses necessary academic qualifications. The said benefit facility, however, was given to the founder Head Masters who had completed seven years of service till 2.10.1980. The petitioner on that date had not completed seven years of continuous service as founder Head Master of the said school and as such he is not entitled to be recognized as regular Head Master after completion of seven years of his continuous service as founder Head Master/In-Charge Head Master on a later date, It was contended that recommendation for his recognition/regularisation by the District Education Officer does not confer upon him any legal right to be recognized/regularised as the Head Master.

4. Mr. Md. S. Anwar, learned Senior Counsel appearing on behalf of the petitioner, submitted that the petitioner having possessed the requisite educational qualification and completed seven years as founder Head Master of the said school on 2.10.1987 and continued as such till his retirement on 30.6.2004, is entitled to be recognized as regular Head Master and to get pay scale admissible to the Head Master from 2.10.1987 till the date of his retirement on 30.6.2004. He is also entitled to get the arrears of difference of pay of his service period and the corresponding retiral benefits. Learned counsel relied on a decision of the Supreme Court in the case of A.K. Pradhan v. State of Bihar and Ors. reported in : (1998)2SCC411 and the judgment of this Court in the case of Mahesh Thakur v. State of Bihar and Ors. reported in to fortify his stand.

5. Mrs. I. Sen. Choudhary, learned SC-in, on the other hand, contested the petitioner's claim and contended that the petitioner had joined the school on 2.1.1974. He had educational qualification of M.A., B.Ed, but had no required experience for the post of the Headmaster. The school was established in 1976, permanent recognition was granted in 1978 and the school was subsequently taken over by the Government under the provisions of the said Act w.e.f. 2.101980. The petitioner, who had no requisite experience at the time of appointment, cannot be treated as the founder Head Master which has also been held by a Division Bench of the Patna High Court in the case of Deobansh Pandey v. The State of Bihar and Ors. reported in 1993 (1) PLJR 221 and Ram Ballabh Pd. Singh and Ors. v. The State of Bihar and Ors. reported in (1986) PLJR 373 which was confirmed by the Supreme Curt in Ram Ballabh Pd. Singh and Ors. v. The State of Bihar and Ors. reported in (1988) PLJR 70 (S.C.). Learned counsel further submitted that the judgments of the Courts cannot be construed as statute and the same should be applied when the factual situation fits with the facts of the case as each case has it own facts. In support of the same, learned counsel relied on the decisions of the Supreme Court in the case of Escorts Ltd. v. Commissioner of Central Excise, Delhi-II reported in : 2004(173)ELT113(SC) and in the case of Bharat Forge Co. Ltd. v. Uttam Manohar Nakate reported in : (2005)ILLJ738SC . On the basis thereof, learned counsel submitted that a decision is an authority for what it decides and not what can logically be deduced there from. It has been submitted that since the petitioner had no required years of experience till 2.10.1980, he cannot be given status of a founder Head Master automatically and the decision of A.K. Pradhan's case (supra), is not applicable in his case. Otherwise also, under the provisions of Jharkhand Government Secondary Education Service Conditions, Rules 2004 promotion to the post of Head Master cannot be given unless the recommendation is made by the Jharkhand Public Service Commission on the basis of seniority after taking into account the merit list. The petitioner is thus not entitled for his regularization as permanent Head Master even after lapse of seven years after 2.10.1980 and his claim has been rightly rejected by the competent authority.

6. For appreciating the rival contentions of the parties, it is necessary to notice the policy decision under which the petitioner has made his claim and the judicial pronouncements cited on their behalf. As per the Government letter dated 16.10.1981 after serious consideration of all the aspects, the Government had taken decision to reduce the years of experience of founder Head Masters from 10 years to seven years for recognizing them-as regular Head Masters. However, it was mentioned that the said benefit will be admissible to the founder Head Masters of the schools recognized till 2.10.1980. The petitioner's school admittedly was taken over by the Government under the provisions of Bihar Secondary School Taking Over Act, 1980 w.e.f. 2.10.1980 (Annexure-3). In my view, since the said benefit was to be given to the founder Head Masters of the schools recognized or taken over till 2.10.1980, the petitioner's school which also taken over/ recognized on 2.10.1980 comes with the fold of the said circular. In the said decision of the Government it is not mentioned that the benefit confined to the founder Head Masters who possessed seven years' experience till 2.10.1980. Therefore, the cutoff date for giving the benefit is the date of recognition or taking over till 2.101980. In the said letter there is no such provision that the founder Head Masters who have completed seven years after 2.10.1980 would be excluded from the benefits. Neither there is such provision nor there can be such interpretation as has been interpreted/argued on behalf of the respondents. The other objection that the petitioner cannot be recognized as the founder Headmaster as on the date of his appointment on 2.1.1974 he did not possess the minimum teaching experience of 10 years as required under the Rule 2004, can not be accepted on the simple ground that the said Rule of the year 2004 can not have retrospective effect on the date of the petitioner's appointment i.e. on 2.1.1974. In Ram Ballabh Pd. Singh's case (supra) a Full Bench of the Patna High Court answered the following two questions:

(I) Whether the Head Master of a school before it is taken over under Section 3(3) of the Act shall be deemed to be a teacher of that school for the purpose of examination of his qualification and suitability because there is no specific mention of a Head Master of such school in Section 3(3)?

(II) Whether even the Head Mater of the school taken over under Section 3(3) shall automatically become Head Master of the school after its take over in view of Section 4(2) without any scrutiny in respect of his qualification and suitability?

The said questions were answered in negative. In conclusion regarding the question No. II, it was held that the Head Master of school taken over under Section 3(3) does not automatically become the Head Master of the school after its take over under Section 4(2) of the Act. The said Full Bench decision was also affirmed by the Apex Court in Ram Ballabh Pd. Singh's case (supra) holding that the Head Master has no right to be automatically absorbed as the Head Master of recognized school, taken over by the Government. In my view, both the said decisions have no relevance in the facts and circumstance of the instant case, as in this case the petitioner has not claimed automatic absorption without any scrutiny of his experience or other eligibility required on the relevant date. It is also not the case of the respondents that the petitioner had no required eligibility educational qualification on the date from which he has claimed consideration for his absorption.

7. In A.K. Pradhan's case, supra, the Supreme Court having noticed that the petitioner had completed more than seven years of service and was eligible for being considered for regularisation, directed that his claim for regularisation as Head Master be considered with effect from the date on which he completed seven years of service (reckoned from the date on which the institution was taken over by the Government). Following the said decision, a Bench of this Court has allowed writ application in Mahesh Thakur's case (supra), with a direction to the respondents to regularize the petitioner's services as Head Master with effect from the date when he completed seven years of service with all the consequential benefits. In view of the said decisions of the Supreme Court in A.K. Pradhan's case (supra) and that of this Court in Mahesh Thakur's case as also in the facts and circumstances appearing in this case, the petitioner's claim is fit to be accepted. For the reasons aforesaid, this writ application is allowed. The impugned order issued by the Director, Secondary Education, Jharkhand by Memo No. 2276, dated 30.8.2005 (Annexure-11) is quashed. The petitioner is held entitled to be regularized as Head Master on his completion of seven years as founder Head Master i.e. w.e.f. 2.10.1987 and to get the salary in the scale of regular Head Master of the High School and all the arrears of difference of pay till the date of his retirement including all the other consequential benefits. Since the petitioner has already retired on 30.6.2004, he is also entitled to get arrears of difference of pay at the said scale and his pensionary benefits in the scale of the regular Head Master on proper fixation of his pay in the said scale on the date of his retirement. The arrears of difference of pay and other pensionary benefits calculated on the said scale must be paid within a period of three months from the date of receipt/production of a copy of this order. If the said arrears and other admissible benefits are not paid within the said period, the petitioner shall be further entitled to get an additional compensatory interest @ 5% per annum which shall be payable over and above the statutory interest admissible to the petitioner.

However, in the circumstances of the case there is no order as to costs.