Patna High Court
Sunil KumarversusThe State of Bihar and Ors
- Decided
- Disposal
- ALLOWED
- Bench
- AJIT KUMAR
Holding
The Court held that under the Bihar Non‑Government Secondary Schools (Taking Over) Act, 1981, the petitioner’s services must be deemed regularised from the date of takeover and he is entitled to all consequential benefits, rendering the 2017 rejection order ultra vires.
Summary
Sunil Kumar, appointed as Clerk‑cum‑Librarian in 1982 by the school Managing Committee, continued to serve uninterruptedly even after the school was taken over by the State of Bihar in 1991. He sought regularisation, payment of arrears and pension, alleging that the 2017 order rejecting his claim was arbitrary and violative of natural justice and Article 14. The State argued that the post was never sanctioned and his appointment violated a 1980 circular, thus denying liability. The Court examined the Bihar Non‑Government Secondary Schools (Taking Over) Act, 1981, relevant case law on absorption of employees after take‑over, and held that the Act deems such employees state servants whose services must be regularised irrespective of the post’s prior sanction. Consequently, the Court set aside the impugned order, directed his absorption from the date of takeover and payment of all consequential benefits, including salary arrears and pension.
Issues considered
- The validity of the 2017 order rejecting the petitioner's claim for regularisation.
- Whether an employee appointed to a non‑sanctioned post before a school’s take‑over can be regularised under the Bihar Taking Over Act, 1981.
- Whether the State is liable to pay arrears of salary and pensionary benefits to the petitioner.
- Whether the rejection order violated principles of natural justice and Article 14 of the Constitution.
Legislation cited
Subjects
- regularisation
- taking over act
- non‑sanctioned post
- natural justice
- Article 14
- employment
- arrears of salary
- pension
- clerk‑cum‑librarian
- Bihar education
- writ petition
- certiorari
- mandamus
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3600 of 2019
======================================================
Sunil Kumar Son of Sri Balbhadra Prasad Singh, Resident of Village-
Hasanpur, P.S.- Lakhisarai, District- Lakhisarai.
... ... Petitioner/s
Versus
1. The State of Bihar and Ors through, Principal Secretary, Department of
Education, Govt. of Bihar, Patna.
2. The Principal Secretary, Department of Education, Govt. of Bihar, Patna.
3. The Director, Secondary Education, Govt. of Bihar, Patna.
4. The District Education Officer, Lakhisarai.
5. The Head Master, Rajkiya High School, Hasanpur, Lakhisarai.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Lalan Kumar, Advocate,
For the Respondent/s : Mr.Prabhakar Jha (GP-27)
======================================================
CORAM: HONOURABLE MR. JUSTICE AJIT KUMAR
CAV ORDER/ JUDGMENT
05-02-2026 Heard Mr. Lalan Kumar, learned counsel for the
petitioner and Mr. Prabhakar Jha, learned counsel appearing for
Respondent State duly assisted by Mr. Shankar Kumar Thakur,
AC to GP-27.
2. The instant writ petition has been filed for the
following relief(s):-
(i) In the nature of certiorari
for setting aside the order as contained in
memo no. 11/Mu 1-115/2010-1966 dated
08.08.2017 (Annexure -21) whereby and
whereunder the regularization of the
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services of the petitioner as Clerk-cum-
Librarian at Rajkiya High School, Hasanpur
at Lakhisarai has been rejected.
(ii) In the nature of
mandamus directing and commanding the
respondent authorities to regularize the
services of the petitioner on the post of
Clerk-cum-Librarian in the aforesaid school
from the date since which the said school
has been recognized by the Government.
(iii) In the nature of
mandamus directing and commanding the
respondent authorities to pay the petitioner
his entire salaries from the date of
recognition till date as he has not been paid
a single farthing for the period he has
worked since the date the school has been
taken over till date up to when he has been
working in the school and was not allowed
to mark the attendance after 2010.
(iv) For any other relief for
which the petitioners is entitle in the facts
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and circumstances of the instant case.
SUBMISSIONS ON BEHALF OF THE PETITIONER
3. Learned counsel for the petitioner submits that the
petitioner was initially appointed to the post of Clerk-cum-
Librarian by the Managing Committee of Rajkiya High School,
Hasanpur, Lakhisarai, in accordance with Resolution No. 3
passed in Meeting No. 66 dated 15.03.1982, consequent to this
resolution, an appointment letter bearing Letter No. 09 was
issued on 15.03.1982 (Annexure-1 and 2), following which the
petitioner joined his duties on 21.03.1982, which was duly
accepted by the Head Master of the school (Annexure-3). The
petitioner’s services were subsequently confirmed by the School
Managing Committee vide Resolution No.70 dated 21.01.1983
(Annexure-4). It is further submitted that the school in question
was subsequently taken over by the Government, with formal
decision taken vide Letter No. 12/0-14/9/205 dated 31.03.1991
(Annexure-5).
4. It is further contended that owing to non-payment
of salary after the school’s takeover, the petitioner, along with
other staff members, approached this Hon’ble Court in CWJC
No. 2213/1994, which was disposed of on 31.07.1995 with a
direction to the Director, Secondary Education, to take a final
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decision in the matter (Annexure-6). Pursuant to which several
representations were filed but no decision was taken leading to
filing of contempt petition being MJC No. 932 of 1996 and in
order to decide the issues of salary, an inspection was conducted
on 15.03.1997 by the Deputy Director of Education, and a
report was forwarded to the Director, Secondary Education, vide
Letter No. 539 dated 09.04.1997, wherein the petitioner’s name
was explicitly recommended at Serial No. 7 (Annexure-7).
However, the petitioner was shocked to find that when the
Department of Secondary, Primary, and Adult Education issued
Letter No. 639 on 08.05.1997, appending a list of recognized
and unrecognized staff, his name was arbitrarily omitted from
both categories (Annexure-8).
5. Learned counsel on behalf of the petitioner further
highlights that the petitioner continued to discharge his duties
with an unblemished record, as evidenced by a character
certificate issued by the Head Master on 26.05.1997 (Annexure-
9), even after the school was taken over, which would find
support from the inspection report prepared by the Deputy
Director of Education as contained in letter dated 09.04.1997.
6. Despite his long and continuous service, the
petitioner was unilaterally prevented from marking his
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attendance after the year 2010. And for the first time, the
petitioner moved before this Court in CWJC No. 14082 of 2010
and further MJC No. 1663 of 2012 was also filed for ensuring
compliance, and the authorities came out with rejection order
rejecting the claim of this petitioner for showing compliance of
the order passed by the Co-ordinate Bench issued in the case of
CWJC No. 14082 of 2010, for which MJC No. 1663/2012 was
filed and by placing the order contained in Memo No. 11 MU 1-
56/2010-2104 dated 29.10.2012, the said contempt petition got
disposed with liberty to challenge which was subsequently,
challenged in CWJC No. 7914 of 2013 which got disposed of
with a direction to consider the claim and for showing
compliance in MJC No. 2157 of 2017, the impugned order dated
08.08.2017 came to be issued, which is subject matter of
challenge in the instant petition. Lastly, the petitioner’s claim
for regularization was eventually rejected by the respondent
authorities through the impugned order contained in Memo No.
11/Mu -115/2010-1966 dated 08.08.2017 (Annexure-21).
7. The petitioner’s stand is that the impugned order
is arbitrary, discriminatory, and legally unsustainable, as the
services of several other similarly situated persons were
recognized by the State on the basis of inspection report of the
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Deputy Director of Education dated 09.04.1997, in which the
petitioner was also found to be working. It is submitted that the
exclusion of the petitioner, despite a favorable inspection report
at par with others, constitutes a gross violation of the principles
of natural justice and Article 14 of the Constitution of India. The
learned counsel argues that the petitioner is entitled to the
regularization of his service and the payment of all
consequential benefits including arrears of salary from the date
of the school’s recognition, in light of the settled legal position
and as also, the directions issued by the Co-ordinate Bench of
this Hon’ble Court in similar matters, which may be inferred
from the respective orders passed in CWJC No. 4547 of 1998,
CWJC No. 15356 of 2006 and CWJC No. 1409 of 2003.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
8. Learned counsel for the respondents, while
countering the petitioner's claims through the Counter Affidavit
(Respondent Nos. 1 to 3) and the Supplementary Counter
Affidavits, submits that the petitioner's prayer for regularization
was objectively considered and rejected by the Director of
Secondary Education via Memo No. 11/Mu-115/2010-1966
dated 08.08.2017. It is contended that as per the factual report
from the District Education Officer, Lakhisarai (Letter No. 2973
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dated 13.12.2025), the post of "Clerk-cum-Librarian" was never
a sanctioned post in Rajkiya High School, Hasanpur. Although
the school was granted recognition via Letter No. 205 dated
31.03.1991 whereas, the sanctioned staff strength only provided
for one Principal, eight Assistant Teachers, one Clerk, and two
Peons. Since, the petitioner’s appointment was made by the
Managing Committee against a non-sanctioned post, the State
cannot be fastened with the liability to pay salary or regularize
his services, as per the settled legal position in CWJC No.
4866/2003 (Smt. Mridula Palit Vs. The State of Bihar & Ors.),
reported in 2018 (2) PLJR 199.
9. In the Supplementary Counter Affidavits, the
respondents further highlight that the petitioner’s induction on
15.03.1982 was void ab initio. The Education Department had
issued Circular contained in Letter No. 1446 dated 21.07.1980,
which imposed a complete ban on any further appointments by
the Managing Committees in schools slated for takeover by the
State effective from 02.10.1980. Since the petitioner was
appointed nearly two years after this ban, his appointment was
in direct contravention of the government circular. Furthermore,
regarding the Inspection Report dated 15.03.1997, it is
submitted that while the then Deputy Director mentioned the
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petitioner’s name as a "Librarian," the report contained a
specific "Mantavya" (Opinion) stating that the appointments in
the school were not made in accordance with the "Manak
Mandal" (Staffing Pattern). The respondents maintain that the
petitioner’s earlier challenge in CWJC No. 14082/2010 resulted
in a direction to pass a speaking order, which has been duly
complied with, through the impugned rejection order, leaving no
grounds for further relief.
STAND OF THE PETITIONER IN THE REJOINDER
10. In the Rejoinder, the learned counsel for the
petitioner strongly refutes the respondents' reliance on the 1980
circular and the staffing pattern, characterizing these grounds as
a belated attempt to deny legitimate claims after decades of
service. It is submitted that the Inspection Report dated
15.03.1997 was not a routine exercise but was conducted
pursuant to a contempt proceeding (MJC No. 932 of 1996) to
identify the working staff after the school's takeover. The
petitioner argues that this report unequivocally recognized him
as a working employee (Librarian) and recommended his name
at Serial No. 7, while his appointment was made on the post of
Clerk-cum-Librarian.
11. The petitioner further contends that the
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respondents have acted discriminatorily by recognizing the
services of similarly situated individuals, such as Rajniti Prasad
Singh and others, while arbitrarily omitting the petitioner’s
name. It is argued that after allowing the petitioner to discharge
his duties with an unblemished record for over 30 years, which
is further supported by the character certificate issued by the
Head Master on 26.05.1997, the question of petitioner’s
appointment having been made as against the non sanctioned
post, may not be legally available with the authorities after
almost three decades with his unblemished service. The
petitioner maintains that the first order of rejection is of the year
2012 while the impugned order of the year 2017, which fails to
address the specific findings of the year 1997 inspection report
and thus suffers from a total non-application of judicial mind
and a violation of the principles of natural justice.
12. Learned counsel for the petitioner by
referring to the order passed by the Co-ordinate Bench in the
case of Meera Sinha vs. The State of Bihar & Ors in CWJC
No. 1409 of 2003 submits that a similarly situated person had
sought for a direction upon the respondents to accord approval
of her services as an Assistant Teacher in the same School
known as Rajkiya Husanpur High School, Lakhisarai w.e.f
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01.01.1991 and this Court recording certain facts related with
the School’s establishment and his service profile, which were
not in controversy that the School was established in the year
1964 and was being managed by Managing Committee
constituted for this purpose and the School is said to have been
taken over on 31.03.1991 and further at the time of taking over
the School, the petitioner was working as Assistant Teacher in
the subject of Biology, pursuant to which the joining was given
and appointment was within the sanctioned strength of teaching
and non-teaching staffs of the School in question and still her
services was not being recognized. The Co-ordinate Bench of
this Court, taking note of the adjudication made and directions
issued in the case of similarly situated persons adjudicated in the
case of Ajay Kumar & Ors v. State of Bihar & Ors (CWJC No.
4547 of 1998), allowed the case of Meera Sinha (Supra),
directing the Respondents to recognize her services w.e.f
01.01.1991 taking note of the fact that similarly situated persons
having been taken in the service, the Writ Petition filed by them
was also allowed by setting aside their rejection order. Similarly,
in the case of another Assistant Teacher, Rajniti Prasad Singh,
who has also preferred the Writ Petition before this Court vide
CWJC No. 15356 of 2006 wherein similar directions were
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issued and his case was also duly considered by the Director,
Secondary Education by recognizing his services w.e.f
01.01.1991.
13. Learned counsel by referring to the above
facts submits that the case of this petitioner is also similar to that
of other similarly situated persons, as the appointment of this
petitioner was also made as per the staffing pattern by the
Managing Committee of the School by issuing the appointment
letter for the post of Clerk-cum-Librarian w.e.f. 15.03.1982 and
since then, the petitioner has been working on the said post and
had been discharging the duties on such post of Clerk-cum-
Librarian whereas, in terms of the provisions of the Bihar Non
Government Secondary Schools (Taking Over of Management
and Control) Act, 1981 (hereinafter referred to as ‘the Taking
over Act, 1981”), the case of the petitioner was required to
have been considered, as the consequences of taking over the
Management and Control clearly stipulates that from the date on
which the Management and Control are taken over by the State
Government, the services of every Headmaster, teachers and
other employees working in the nationalized school shall be
deemed to have been transferred to the State Government and
such persons are deemed to be the employee of the State
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Government, holding post as determined by the State
Government, as per the eligibility and the qualification of the
incumbent, whose services are to be taken over for absorption.
14. Learned counsel for the petitioner further
submits that the Full Bench judgment rendered in the case of
Ram Naresh Prasad Nirala Vs. The State of Bihar & Ors, as
reported in 1987 PLJR 341, wherein, the issues pertaining to
take over of services of taken over school was considered and it
has categorically been held that the eligibility and qualification
of the incumbent, whose services are to be taken over are to be
tested, as on the date of report by the Screening
Committee/Special Board. In paragraph-10 of the aforesaid
order/judgment, the following observation was made:-
“It must, therefore, be
held in no uncertain terms that the
crucial point of time and, indeed, the
outer limit for such consideration is
the date of the report of the Special
Board the consideration of eligibility,
qualification and suitability of
teachers for absorption.”
15. Learned counsel further by referring to the
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judgment of Braj Kishore Singh & Ors. Vs. State of Bihar &
ors (1997)1 BLJR 625, submits that the staffing pattern has
already been laid down whereby it has been held as follows:-
“30. In view of my interpretation of
Section 35 of the Act and conclusion that the
staffing pattern has already been laid down
which amounts to creation of posts, the
abovesaid decisions cannot be said to be
correct in law. The Supreme Court rejected
the S.L.Ps. summarily and those orders
cannot be understood as upholding the
judgments/orders on merit. If the
appointments are made against posts as per
the staffing pattern, i.e. within the
sanctioned strength, they cannot said to be
violative of Section 35 of the Act and illegal
on the ground that the posts have not been
sanctioned by the State Government
provided, for course, the candidates possess
the eligibility and suitability and the
selection/appointment process was in
conformity with Articles 14 and 16 of the
Constitution.
31. Learned Single Judge was referred
to Section 10(6) of the Universities Act. That
section empowers the vice-Chancellor to
make appointment of ministerial staff and
other servants of the University. Learned
Judge was held that after the College
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became constituent in 1979, the impugned
appointment could not have been made by
the College authorities. However, as stated
above, while narrating the foundational
facts, the University had already approved
those appointments on 2nd March, 1981 and
forwarded the same to the Department for
approval of the State Government.
32. In the above premises, the
judgment of the Learned Single Judge
rejecting the claim of the appellants on the
ground that they were appointed without
prior approval of the Act cannot be
sustained. In the ordinary course, in view of
my conclusion that it is open to the State
Government to consider the validity of
appointments already made for the purpose
of granting or refusing past facto approval, I
would have considered asking the State
Government to look into the claim of the
appellants afresh. However, having regard to
the fact that the appellants have continued in
service for more than 17 years, I do not think
it would be appropriate exercise of
discretion to reopen the matter after such a
long lapse of time. In Direct Recruit Class-
11 Engineering Officers, Association v. The
State of Maharashtra a Constitution Bench
of the Apex Court held that where initial
appointment is not made according to the.
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rules but the appointee continues in service
uninterruptedly for long period till
regularisation of his service, the entire
period as the period spent in service for the
purpose of consequential benefits will be
counted. The appellants are accordingly
entitled to have their services regularised
against the posts within the staffing pattern
as applicable to the college.
33. In the result, this appeal
is allowed. The judgment of the Learned
Single Judge under appeal is set aside. The
impugned order of the State Government
dated June 8, 1983, Annexure-7 to the writ
petition, is also set aside. The writ petition
stands allowed accordingly. In the
circumstances of the case there will be no
order as to costs”
16. Therefore, in the light of aforesaid
judgment the case of the petitioner is required to be considered
and there cannot be any ground for non consideration of the
case of this petitioner, whereas, from their own inspection
report, it appears that the petitioner is said to have been found to
be working as against the post of Clerk-cum-Librarian and the
Inspection Report dated 08.05.1997 forms part of the present
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writ petition as Annexure-8, did find the petitioner working on
the post of Clerk-cum-Librarian, based on which, the other
similarly situated persons have been allowed absorption.
17. It is the further case of the petitioner that the
inspection report dated 8th of May, 1997 is said to have been
prepared by the District Education Officer, Lakhisarai, to show
compliance of the order passed in CWJC No. 2213 of 1994 for
which contempt petition being MJC No. 932 of 1996, was filed
and pursuant to which, the inspection is said to have been made
on 15.03.1997. From the said report, it appears that the
respondents have found the petitioner to be working on the date
of such inspection, which is said to have been done almost after
fifteen years of his actual appointment.
18. Learned counsel for the petitioner by
referring to letter no. 53 of 2012 dated 10.07.2012, which is said
to have been issued by the Principal of the said College
addressed to the District Education Officer, Lakhisarai submits
that the said letter clearly states that the petitioner’s appointment
was made by the Managing Committee vide letter no. 9 dated
15.03.1982 and the decision with respect to the appointment so
made was confirmed in the meeting No. 17 of Managing
Committee dated 21.01.1983 and since then, he continued to
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discharge the duties on the post of Clerk-cum-Librarian as per
the staffing pattern.
CONSIDERATION
19. Having given detailed consideration of the
facts obtaining on record, it is quite evident that the petitioner
was initially appointed on the post of Clerk-cum-Librarian by
the Managing Committee, who submitted his joining on the said
post on 21.03.1982 and since then, he had been continuously
discharging the duties of the post against which the appointment
is said to have been made. It is also not in dispute that
subsequently the Managing Committee, who had recommended
for petitioner’s appointment, confirmed his services vide
Resolution No. 70 dated 21.01.1983. It is only after almost eight
years, the State Government formally granted assent for take
over of the School in question vide Letter no. 12/0-14/9/205
dated 31.03.1991 (Annexure-5).
20. The whole dispute cropped up only after the
said School was taken over by the State Government and before
that the petitioner continued on the post peacefully and was
discharging his duties to the post with full satisfaction of the
Managing Committee and was allowed his salary during such
period. The provisions of “the Taking Over Act, 1981” which
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specifically provides that the consequences of taking over the
management and control from the date on which, such controls
are taken over by the State Government, the services of every
Headmaster, Teacher and other employees working in the
nationalized Schools shall be deemed to have been transferred
to the State Government and such persons are deemed to be the
employees of the State Government holding post as determined
by the State Government, as per the eligibility and the
qualification of the incumbent, whose services are to be taken
over for absorption.
21. From perusal of the provisions as contained
in “the Taking over Act, 1981”, it is quite evident that the State-
respondents did not have any power to drop any employee, who
are said to be working in the said School on the date of taking
over as per the Staffing Pattern, rather their absorptions had to
be made by the State Government, as against the post held by
them, as per the eligibility and the qualification of the
incumbent, whose services are to be taken over for absorption.
22. As the petitioner, who had been undisputedly
working since 21.03.1982, and has also been found to be
working even after the taken over Notification as per the
provisions of “the Taking over Act, 1981” is said to have been
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issued on 31.03.1991, which is quite evident from the inspection
report, said to have been prepared by the Deputy Director of
Education for showing compliance in the contempt petition in
being MJC No. 932 of 1996 filed by other similarly situated
persons for absorption, and this petitioner having been found to
be working on the date of inspection dated 15.03.1997 but his
case has not been considered only for the reason that the
petitioner was not working against the sanctioned post and the
other persons in whose favour the Co-ordinate Bench had
directed for taking decision, their cases are said to have been
considered on the basis of inspection report dated 15.03.1997,
wherein those other similarly situated persons were also found
to be working but only distinction drawn with this petitioner is
that the petitioner has not been found to be working against a
sanctioned post under Staffing Pattern, is wholly misconceived
because, the post against which, the petitioner is said to have
been appointed denotes the designation of the post of Clerk-
cum-Librarian and even in the School, the post of Librarian is a
very essential, where the School is having the strength of more
than 400 students, although the substantive post of this
petitioner was Clerk and the duties of Librarian was in addition
to the original post of Clerk and this fact seems to have been
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overlooked by the authorities, who are said to have passed the
order and as also while giving consideration to the claim of the
petitioner for absorption, even the provisions of “the Taking
over Act, 1981” have also not been taken into consideration
because the provisions of the “the Taking over Act, 1981” do
specifically provide for all employees to be treated to be a
Government servant after the School in question is taken over
and their absorption has to be made as per the eligibility and the
qualification being possessed by them on the date of absorption
in view of the Full Bench judgment rendered on the subject in
issue.
23. Insofar as the issues of non sanctioned post
is concerned, admittedly, this petitioner has already worked for
more than two decades and, therefore, in view of the ratio laid
down by the Hon’ble Full Bench in the case of Braj Kishore
Singh (supra) and as also the law laid down by the Hon’ble
Apex Court in the case of Yashwant Hari Katakkar v. Union of
India & Ors as reported in (1996) 7 SCC 113, the petitioner has
made out a case for absorption. The relevant extract of the
judgment reads as under:-
“…….The appellant having
served the Government for almost two
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decades it would be unfair to treat him as
temporary/quasi-permanent. Keeping in
view the facts and circumstances of this case
we hold that the appellant shall be deemed
to have become permanent after he served
the Government for such a long period. The
services of the appellant shall be treated to
be in permanent capacity and he shall be
entitled to the pensionary benefits. We allow
the appeal, set aside the judgment of the
Tribunal and direct the respondents to treat
the appellant as having been retired from
service on 7-3-1980 after serving the
Government for 18 1/2 years (more than 10
years of permanent service) and as such his
case for grant of pension be finalised within
six months from the receipt of this order. The
appellant shall be entitled to all the arrears
of pension from the date of retirement. No
costs.”
24. Taking note of the principles laid down by
the Hon’ble Full Bench and as also by Hon’ble Apex Court in
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the aforementioned judgments, the petitioner has made a case
for absorption, as the petitioner, continued in service
uninterruptedly for long period within the staffing pattern and
continued to receive salary as against the post applicable in the
said School and further with his continuity in service for almost
two decades, it would be unfair to treat this petitioner differently
and therefore, this Court is of the view that the duties discharged
by this petitioner as against the post, on which the appointment
was made by the then Managing Committee is required to be
recognized for the purpose of all consequential benefits
including pensionary benefits.
25. For directing the consequential benefits from
the date of absorption till the date of passing of the first order of
rejection of his claim for absorption, this Court is persuaded
from the facts obtaining on records that petitioner was willfully
prevented by the Respondents from discharging his duties and in
view of the ratio as laid down by the Hon’ble Apex Court in the
case of State of Uttar Pradesh v. Dayanand Chakrawarty &
Ors as reported in (2013) 7 SCC 595, wherein, it has
categorically been held as follows:-
“…………….. If an employee
is prevented by the employer from
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performing his duties, the employee cannot
be blamed for having not worked, and the
principle of "no pay no work" shall not be
applicable to such employee. ………..”
26. Since the authorities do not dispute the
eligibility and the qualification of this petitioner as per the
provisions of “the Taking over Act, 1981” which issue has been
put at rest by the Hon’ble Full Bench in the case of Ram
Naresh Prasad Nirala (supra) wherein, it has specifically been
directed that in no uncertain terms that the crucial point of time
and, indeed, the outer limit for such consideration is the date of
the report of the Special Board for consideration of eligibility,
qualification and suitability of teachers for absorption and in the
case of this petitioner, although, such exercise of inspection or
special report, which was actually required to have been done
by the authorities, are said to have been prepared after almost
six years of formal decision of taking over in the year 1991 and
this petitioner having been found to be working even after such
taking over of School and was only stopped to discharge the
duties against the said post in the year 2010, while for no
prudent explanation, the claim of this petitioner, is said to have
been rejected for the first time only in the year 2012, by passing
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the first rejection order as contained in Memo No. 11MU1-
56/2010-2104 dated 29.10.2012 (Annexure-17) further with the
impugned order as contained in Memo no. 11/Mu 1-115/2010-
1966 dated 08.08.2017 (Annexure -21), as such, the petitioner’s
services are required to be calculated for all the consequential
benefits from the date of taking over till the date first rejection
order passed in the year 2012.
27. This Court, upon having given anxious
consideration to the orders passed by the authorities, finds that
the reasons, so assigned for rejecting the claim of the petitioner,
does not show the material consideration and due deliberations,
which has been discussed above and furthermore, having acted
beyond the scope of “the Taking over Act, 1981” , therefore,
this Court is of the view that the rejection of claim of this
petitioner by the impugned order dated dated 08.08.2017 is
wholly unsustainable and, accordingly, is set aside as being
violative of the statutory scheme and as also the judicial
pronouncement made on the subject in issue detailed aforesaid.
28. Consequently, this Court directs absorption
of this petitioner from the date of taking over and all
consequential benefits, including salaries are required to be paid
to this petitioner till the date of passing of the first rejection
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order dated 29.10.2012, as for no prudent reason, the authorities
sat tight over the matter and did not decide the claim of the
petitioner at par with others, and as such, the respondents are,
accordingly, expected to proceed for settlement of pension, and
pensionary benefits, at par with other similarly situated persons
in whose favour, absorption has been made from the said school,
and entire exercise are required to be completed within a period
of three months from the date of production of a copy of this
order.
29. Accordingly, the writ petition stands allowed
in the terms aforesaid.
(Ajit Kumar, J)
perwez
AFR/NAFR AFR
CAV DATE 06.01.2026
Uploading Date 06.02.2026
Transmission Date N/A
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