MADAN MOHAN MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH the letters patent appeals have been filed against the common impugned judgment dated 7th October, 1994 passed in C.W.J.C. No. 3355 of 1991. It is for the said reason, they were 'heard together and disposed of by this common judgment.

(2.) SHYAM Chandra Jha, appellant of L.P.A. no. 38 of 1995 filed the writ petition C.W.J.C. No. 3355 of 1991. Madan Mohan Mishra, appellant of L.P.A. no. 156 of 1994 was the respondent no. 3 in the said writ petition. The writ petition has been allowed in favour of the appellant, Shyam Chandra Jha. Therein it has been held that said appellant, Shyam Chandra Jha is entitled for computation of period of service from 25.1.1965 to 8.7.1970 rendered in one M.L.M. High School, Bastaul, Katihar, for the purpose of seniority in the other school, namely, Tej Narain High School, Rangra, Bhagalpur. Thereby appellant Shyam Chandra Jha has been declared as senior to the appellant Madan Mohan Mishra in the Tej Narain High School, Rangra, Bhagalpur. An order dated 30.1.1988 (Annexure -1 to the writ petition), by which Madan Mohan Mishra was declared senior to Shyam Chandra Jha, the same has been set aside by learned Single Judge.

(3.) THE brief facts of the case are as follows : - Admittedly, prior to 1980, both M.L.M. High School, Bastaul, Katihar and Tej Narain High School, Rangra, Bhagalpur were separate private management schools. They were completely different as an unit, being under two different management. Shyam Chandra Jha was appointed as an Assistant Teacher in M.L.M. High School, Bastaul, Katihar on 25.1.1965. He was B.A. trained having qualification of B.Ed., Dip -in -Ed. Shri Jha passed MA examination in 1968. On the other hand, Madan Mohan Mishra, after passing B.A. examination, appointed as an Assistant Teacher in Tej Narain High School, Rangra, Bhagalpur on 1.4.1967. While Shri Mishra was so functioning, Shyam Chandra Jha was appointed afresh, as an Assistant Teacher, in the said Tej Narain High School, Rangra, Bhagalpur on 9.7.1970. This is how the two persons were appointed as an Assistant Teacher in the Tej Narain High School, Rangra, Bhagalpur. It is to be taken into note that Tej Narain High School, Rangra, Bhagalpur was established on 1.1.1967 and was granted partial recognition by the Secondary Board on 1.1.1968. Madan Mohan Mishra passed Dip -in -Ed. examination on 18.9.1972 and thereafter he was given trained graduate scale. The permanent headmaster of the Tej Narain High School, Rangra, Bhagalpur retired on 30.6.1974. After retirement of permanent headmaster, no person was appointed as a regular headmaster in the said Tej Narain High School, Rangra, Bhagalpur. All the time, one or other teacher was appointed as an acting headmaster. It was on 11.11.1977, Madan Mohan Mishra was appointed as an acting headmaster of the said Tej Narain High School, Rangra, Bhagalpur. Shyam Chandra Jha represented against the same before the Secondary Board. On such representation, Shyam Chandra Jha was declared senior to Madan Mohan Mishra and was made acting headmaster of the said Tej Narain High School, Rangra, Bhagalpur, by one order dated 6.4.1978. Being aggrieved Madan Mohan Mishra filed a writ petition in this Court C.W.J.C. no. 980 of 1978 challenging the decision dated 6.4.1978, by which Shyam Chandra Jha was declared senior to Madan Mohan Mishra. This Court by its decision dated 17.5.1979 remanded the matter to the Bihar Secondary Board for fresh decision on seniority. Thereafter, when the matter relating to seniority remained pending, Tej Narain High School, Rangra, Bhagalpur was taken over by the State Government on 2.10.1980. The other school, namely, M.L.M. High School, Bastaul, Katihar was also taken over. The scale of pay of trained assistant teachers of High School, prior to 1980 was Rs. 387 -600/ - The selection grade scale of the said post, at that point of time was Rs. 415 -745/ -Shyam Chandra Jha was provided with old selection grade scale of Rs. 415 -745/ -with effect from 1.4.1979. The appellant, Madan Mohan Mishra remained in the basic grade of Rs. 387 -600/ - It was by one Memo no. 2830 -3100 dated 9.2.1982 (Annexure -B/3 to the writ petition), this scale of pay of trained assistant teachers of High School was revised with effect from 1.4.1978. The basic grade was revised to Rs. 415 -745/whereas selection grade to Rs. 510. -1155/ -. It was ordered that all selection grade scale in the old scale of Rs. 415 -745/granted after 1.4.1978 shall stand cancelled. It was for the said reason, after 1.4.1978; both the appellants, Madan Mohan Mishra as well as Shyam Chandra Jha received the scale of Rs. 415 -745/ -. But, Shyam Chandra Jha was not provided with the revised selection grade scale of Rs. 510 -1155/ - with effect from 1.4.1979 that is from the date, he was earlier granted old selection grade scale. Shyam Chandra Jha never choose to challenge the order dated 9.2.1982 (Annexure -B/3). The matter relating to the dispute of seniority vis -a -vis Madan Mohan Mishra and Shyam Chandra Jha was not settled. Shyam Chandra Jha was appointed as an adhoc headmaster of the school of Tej Narain High School, Rangra, Bhagalpur by one order dated 19.3.1983. At this stage, Madan Mohan Mishra again filed another writ petition before this Court, C.W.J.C. no. 1338 of 1983 challenging the order dated 19.3.1983. This Court by one order dated 11.3.1985 disposed of the writ petition C.W.J.C. no. 1338 of 1983 directing the authorities to decide seniority with respect to aforesaid two persons and to fill up the post of headmaster on regular basis. Thereafter one order was issued by respondent -Director, Secondary Education Board on 30.1.1988, Madan Mohan Mishra was declared senior to Shyam Chandra Jha as an Assistant Teacher of Tej Narain High School, Rangra, Bhagalpur; name of Madan Mohan Mishra was forwarded to Vidyalaya Seva Board for regular promotion to the post of headmaster in the said Tej Narain High School, Rangra, Bhagalpur. It was at this stage, Shyam Chandra Jha moved before this Court by filing writ petition C.W.J.C. no. 3355 of 1991 challenging the order dated 30.1.1988 (Annexure -1 to the writ petition). By impugned judgment dated 7.10.1994, the said writ petition C.W.J.C. no. 3355 of 1991 has been allowed by learned single Judge, setting aside the order dated 30.1.1988. As stated above, learned single Judge held that the period of service rendered by Shyam Chandra Jha in M.L.M. High School, Bastaul, Katihar that is 25.1.1965 to 8.7.1970 is to be counted for the purpose of seniority, in Tej Narain High School, Rangra Bhagalpur and thereby declared Shyaf!1 Chandra Jha as senior to Madan Mohan Mishra. Hence the L.P.A. no. 156 of 1994. has been preferred by Madan Mohan Mishra. At this stage, one circular of the State Government is to be taken into note, namely, Circular no. 510 dated 20.11.1981. The said circular has been issued under Section 15 of the Non -Government Secondary Schools (Management and Control) Take Over Ordinance, 1980, now an Act. It has been laid down therein that a private school, which was taken over on 2.10.1980, if in such private school, the post of headmaster was lying vacant as on 2.10.1980, then the school should be treated as an independent unit and promotion is to be granted to the post of headmaster from amongst the assistant teachers working in the said school. The relevant provisions relating to such promotion have been shown in paragraphs -3 and 4 of the letter no. 510 dated 20.11.1981, which is quoted hereunder : (English version has been supplied by the appellants) "Promotion to the post of Headmaster shall be made after getting recommendation of school service Board from the erstwhile Asst. Headmaster/Post Graduate and Selection grade teachers on basis of seniority and fitness. In a School where the aforesaid categories of teachers are not available, promotion shall be made from trained graduates on basis of fitness and seniority. Superseding the earlier orders, the basis of seniority for promotion to the post of Headmaster shall be as follows : - (i) In schools where duly appointed Asstt. Head Master is working, he shall be deemed to be the senior -most teacher. (ii) In schools where there is no Asstt. Headmaster, inter se seniority of post -graduate and selection grade teachers shall be reckoned from their date of appointment as Graduate teacher. For promotion to the post of Headmaster, seniority of selection grade teachers shall be determined from the date of their appointments as graduate teacher and to this extent Govt. order no. 587 dt. 28.3.1970 shall be deemed superseded. (iii) Where there will ¢ be no teacher 'of the category as in the aforesaid part (i) and (ii), there the seniority of trained graduate shall be determined on the basis of the date of appointment in the school as graduate teachers. (iv) If date of appointment is same, the seniority shall be determined on basis of higher educational qualification. If educational qualification is also equal then seniority shall be determined on the basis of date of being trained. If that is also same then on the basis of date of birth and if the date of birth is also same, seniority shall be determined on the basis of teachers' name in Devnagri (Hindi) alphabetical order." It will be evident from the impugned judgment that the learned single Judge has stated that both the appellants (writ petitioner and respondent no. 5 in the writ petition) accepted before the learned single Judge that the paragraph -3 of Circular no. 510 dated 20.11.1981 is applicable in the present case. However, according to the appellant, Shyam Chandra Jha, so far he is concerned, paragraph -4 (ii) of Circular no. 510 dated 20.11.1981 is applicable. Though learned single Judge has given its finding in favour of the appellant, Shyam Chandra Jha, but as the same is based on paragraph -3 of Circular no. 510 dated 20.11.1981 and not on the basis of paragraph -4 (ii) of the circular, and thereby has not taken into account the selection grade promotion of Shyam Chandra Jha, it is for the said reason, the other L.P.A. 410. 38 of 1995 has been filed by Shyam Chandra Jha.