Case Background
The petitioner was appointed as Clerk-cum-Librarian in Rajkiya High School, Hasanpur, Lakhisarai by the school’s Managing Committee. This appointment was made through Resolution No. 3 passed in Meeting No. 66 dated 15.03.1982, and an appointment letter bearing Letter No. 09 was issued on the same date.
He joined on 21.03.1982 and his joining was accepted by the Head Master. His services were confirmed by the Managing Committee through Resolution No. 70 dated 21.01.1983.
Later, the State Government decided to take over the school. The formal decision for takeover was issued vide Letter No. 12/0-14/9/205 dated 31.03.1991 under the Bihar Non Government Secondary Schools (Taking Over of Management and Control) Act, 1981.
After takeover, the petitioner and other staff members were not paid salary. They approached the Patna High Court in CWJC No. 2213 of 1994. On 31.07.1995, the Court directed the Director, Secondary Education to take a final decision.
When no decision was taken, a contempt case, MJC No. 932 of 1996, was filed. In order to comply, the Deputy Director of Education inspected the school on 15.03.1997 and submitted a report on 09.04.1997 (Letter No. 539). In that report, the petitioner’s name appeared at serial no. 7 as a working staff member.
However, when the Department issued Letter No. 639 dated 08.05.1997, appending lists of recognized and unrecognized staff, the petitioner’s name was missing from both lists. Despite this, he continued to work, and the Head Master issued a character certificate in his favour on 26.05.1997.
The petitioner was allowed to work until 2010, when he was suddenly stopped from marking attendance. He then filed CWJC No. 14082 of 2010. For non-compliance with that order, he filed MJC No. 1663 of 2012. To show compliance, the State produced a rejection order dated 29.10.2012 (Memo No. 11MU1-56/2010-2104), and the contempt case was disposed with liberty to challenge the order.
The petitioner challenged the 2012 order in CWJC No. 7914 of 2013. That writ was disposed of with a direction to reconsider his claim. While showing compliance in MJC No. 2157 of 2017, the authorities passed a fresh rejection order dated 08.08.2017 (Memo No. 11/Mu-115/2010-1966). This 2017 order became the subject matter of the present writ, CWJC No. 3600 of 2019.
What the Court Examined and Decided
The petitioner argued that he had been duly appointed by the Managing Committee in 1982 as Clerk-cum-Librarian and that his services were confirmed in 1983. He stressed that the school was taken over in 1991, long after he had been in continuous service.
He pointed to the 15.03.1997 inspection report by the Deputy Director, which listed him at serial no. 7 as a working staff member. According to him, other similarly situated employees whose names appeared in that report had their services recognized and were absorbed, but his name was arbitrarily excluded from the recognized and unrecognized lists issued on 08.05.1997.
The petitioner highlighted that he continued to work without complaint and received a character certificate from the Head Master on 26.05.1997, proving satisfactory service. He asserted that he worked for almost three decades before being stopped from attendance in 2010.
He contended that the rejection of his claim for regularization and salary was arbitrary and discriminatory, violating Article 14 of the Constitution and principles of natural justice. He relied on earlier Patna High Court decisions in CWJC No. 4547 of 1998, CWJC No. 15356 of 2006, and CWJC No. 1409 of 2003, where similarly placed staff of the same school were granted relief.
On the legal side, he invoked the Bihar Non Government Secondary Schools (Taking Over of Management and Control) Act, 1981, referred to by the Court as the “Taking Over Act, 1981”. He argued that once the school was taken over, all staff working in the school on the takeover date, including “other employees”, were deemed to have become Government employees. Their posts should be determined based on their qualification and eligibility.
He further relied on the Full Bench judgment in Ram Naresh Prasad Nirala v. The State of Bihar & Ors., 1987 PLJR 341, where it was held that eligibility, qualification and suitability for absorption are to be assessed as on the date of the Special Board or Screening Committee report. He also cited Braj Kishore Singh & Ors. v. State of Bihar & Ors., (1997) 1 BLJR 625, where the Court held that appointments made within the staffing pattern cannot be treated as illegal simply because the State had not separately sanctioned posts, and that long, uninterrupted service should not be ignored.
The State, in its counter affidavits, took a different position. It relied on a factual report from the District Education Officer, Lakhisarai (Letter No. 2973 dated 13.12.2025), which stated that the post of Clerk-cum-Librarian was never sanctioned in that school. According to the sanctioned strength, there was only one Principal, eight Assistant Teachers, one Clerk, and two Peons.
The State argued that since the petitioner was appointed by the Managing Committee against a non-sanctioned post, the Government could not be forced to pay salary or regularize his services. They relied on CWJC No. 4866 of 2003 (Smt. Mridula Palit v. State of Bihar & Ors.), reported in 2018 (2) PLJR 199.
The State also referred to an Education Department circular in Letter No. 1446 dated 21.07.1980, which imposed a complete ban on appointments by Managing Committees in schools that were to be taken over from 02.10.1980. As the petitioner was appointed in March 1982, the State maintained that his appointment was void ab initio and contrary to the circular.
Regarding the 1997 inspection report, the State accepted that the petitioner was mentioned as “Librarian” but emphasised that the report also contained a specific remark that appointments in the school were not made as per the “Manak Mandal” (staffing pattern). They argued that they had complied with earlier directions by passing a speaking order and there was no further relief due.
In rejoinder, the petitioner termed the reliance on the 1980 circular and staffing pattern as a belated excuse. He stressed that the 1997 inspection was undertaken during a contempt case to identify actual working employees, and that his name was clearly recommended. He highlighted that similarly situated persons, such as Meera Sinha and Rajniti Prasad Singh, had their services recognized in earlier writs concerning the same school.
Justice Ajit Kumar examined the undisputed factual matrix. The Court noted that the petitioner had been appointed on 15.03.1982, joined on 21.03.1982, and his services were confirmed on 21.01.1983. The State only took over the school in 1991. The Court recorded that the dispute arose only after takeover; prior to that, the petitioner worked peacefully and was paid by the Managing Committee.
Referring to the Taking Over Act, 1981, the Court held that once the school is nationalised, the services of every Headmaster, teacher and other employees working in the school are deemed transferred to the State Government. Their absorption has to be done as against the posts held by them, based on eligibility and qualification.
The Court concluded that the State did not have power to simply drop employees who were working on the date of takeover within the staffing pattern. It emphasised that the petitioner had been working since 1982 and was found working even in 1997 during the Deputy Director’s inspection conducted in the contempt case.
The only ground on which his claim was rejected was that he was not working against a sanctioned post. The Court found this reasoning “wholly misconceived”. It observed that the post described as Clerk-cum-Librarian essentially reflected the designation, that the substantive post was that of Clerk and the librarian duties were additional. In a school with more than 400 students, a librarian’s role was essential, and this aspect had been ignored by the authorities.
The Court noted that neither the provisions of the Taking Over Act, 1981 nor the Full Bench principle in Ram Naresh Prasad Nirala were considered when rejecting the claim. Regarding the “non-sanctioned post” objection, the Court pointed out that the petitioner had already served for more than two decades. It relied on Braj Kishore Singh (supra) and the Supreme Court decision in Yashwant Hari Katakkar v. Union of India & Ors., (1996) 7 SCC 113, which recognised that long, continuous service should lead to regularisation or permanent status and pensionary benefits.
The Court held that, in similar fashion, the petitioner’s long and uninterrupted service within the staffing pattern entitled him to absorption and consequential benefits. On the issue of salary for the period when the petitioner was not allowed to work, the Court relied on the Supreme Court decision in State of Uttar Pradesh v. Dayanand Chakrawarty & Ors., (2013) 7 SCC 595, which held that the principle of “no work no pay” does not apply when an employee is prevented by the employer from performing duties.
Applying this principle, the Court found that the petitioner had been willfully prevented from discharging his duties and thus could not be denied salary for the relevant period.
Ultimately, the Court held that the rejection orders dated 29.10.2012 and especially the impugned order dated 08.08.2017 suffered from non-application of mind, ignored binding law and the statutory scheme of the Taking Over Act, and were unsustainable.
The Court set aside the impugned order dated 08.08.2017 and directed that the petitioner be treated as absorbed from the date of takeover, with all consequential benefits, including salary till 29.10.2012 (the date of the first rejection order). It further directed the respondents to proceed with settlement of pension and pensionary benefits at par with similarly situated persons whose absorption had been recognized from the same school. This exercise was directed to be completed within three months from the date of production of the judgment.
Why This Judgment Matters
This judgment is important for non-teaching staff and support staff working in private schools that are later taken over by the State in Bihar.
The Patna High Court has clearly said that when a school is nationalised under the Taking Over Act, 1981, all employees actually working there—teachers and “other employees”—cannot be casually dropped, especially after long service.
The Court has also made it clear that the Government cannot hide behind technical objections like “non-sanctioned post” or “ban on appointments” when an employee has worked continuously for decades, has been found working in official inspections, and has not been found ineligible.
For employees who are prevented from marking attendance or performing duties without their fault, the Court has reiterated that “no work no pay” does not apply. If the employer blocks the employee from working, the employee can still claim salary for that period.
The ruling offers a strong precedent for similarly placed staff in taken-over schools to seek absorption, salary, and pensionary benefits where they have been unfairly excluded despite long service.
Legal Issues and Answers
-
Issue: Whether an employee appointed by a Managing Committee as Clerk-cum-Librarian before takeover of a school is entitled to absorption and benefits under the Taking Over Act, 1981 after long, continuous service.
Answer: Yes. The Court held that since the petitioner was working on the date of takeover and continued for decades, he must be absorbed from the takeover date with all consequential benefits. -
Issue: Whether the State can refuse absorption solely on the ground that the employee worked against an allegedly non-sanctioned post or in violation of a prior ban on appointments.
Answer: No. The Court found such reasoning misconceived in light of the staffing pattern, the Taking Over Act, and long, uninterrupted service, and held that the petitioner’s service must be recognized. -
Issue: Whether the principle of “no work no pay” applies when the employer has prevented the employee from working.
Answer: No. Relying on Supreme Court precedent, the Court held that when an employee is prevented by the employer from discharging duties, salary cannot be denied on “no work no pay”.
Cases Cited by the Court
- Ram Naresh Prasad Nirala v. The State of Bihar & Ors., 1987 PLJR 341 (Full Bench of Patna High Court).
- Braj Kishore Singh & Ors. v. State of Bihar & Ors., (1997) 1 BLJR 625.
- Yashwant Hari Katakkar v. Union of India & Ors., (1996) 7 SCC 113.
- State of Uttar Pradesh v. Dayanand Chakrawarty & Ors., (2013) 7 SCC 595.
- CWJC No. 4866 of 2003 (Smt. Mridula Palit v. State of Bihar & Ors.), 2018 (2) PLJR 199 (relied upon by the State, distinguished in effect).
- CWJC No. 4547 of 1998 (Ajay Kumar & Ors. v. State of Bihar & Ors.) – referred to in context of similarly situated employees.
- CWJC No. 1409 of 2003 (Meera Sinha v. State of Bihar & Ors.) – similar claim regarding the same school.
- CWJC No. 15356 of 2006 (Rajniti Prasad Singh’s case) – similar directions for recognition of service.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 3600 of 2019
Case Title: Sunil Kumar v. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice Ajit Kumar
Date of Judgment: 05.02.2026
Citation: 2026 (2) PLJR 300
Nature of the Case: Writ petition under Article 226 of the Constitution seeking certiorari and mandamus regarding absorption/regularization, salary, and consequential benefits in a taken-over school.
Advocates:
For the Petitioner: Mr. Lalan Kumar, Advocate
For the Respondents (State of Bihar and others): Mr. Prabhakar Jha, GP-27, assisted by Mr. Shankar Kumar Thakur, AC to GP-27
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/MTUjMzYwMCMyMDE5IzEjTg==-cUtnQMyiOIw=
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