Patna High Court - Orders
Richa Kumari vs The State Of Bihar & Ors on 25 April, 2013
Author: R.M. Doshit
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1366 of 2012
In
Civil Writ Jurisdiction Case No. 7850 of 2009
With
Inte rlocutory Application No. 5807 of 2012
With
Inte rlocutory Application No. 5951 of 2012
In
Letters Patent Appeal No. 1366 of 2012
======================================================
Richa Kumari, D/O Dudheshwar Mishra, R/O Village- Ghusian Kala, P.S-
Bikramganj, District- Rohtas.
.... .... Petitioner-Appellant
Versus
1. The State of Bihar.
2. The Secretary, Primary & Adult Education Department, Bihar, Patna.
3. The Director, Panchayati, Government of Bihar, Patna.
4. The District Magistrate, Rohtas (Sasaram).
5. The District Superintendent of Education, Rohtas.
6. The Block Development Officer, Bikramganj, Rohtas.
7. The Block Education Extension Officer, Bikramganj, Rohtas.
8. The Mukhiya, Gram Panchayat, Ghusiakla, P.S- Bikramganj, District-
Rohtas.
9. The Panchayat Secretary, Gram Panchayat Ghusiakla, P.S- Bikramganj,
District- Rohtas.
10. Sabina Parween W/O Dr. Sarfooz Ahmed R/O Village Ghosian Kala,
P.S- Bikramganj, District- Rohtas.
.... .... Respondent/s
======================================================
with
Letters Patent Appeal No.1748 of 2012
In
Civil Writ Jurisdiction Case No. 10096 of 2008
With
Inte rlocutory Application No. 7303 of 2012
In
Letters Patent Appeal No. 1748 of 2012
======================================================
Richa Kumari, D/O Dudheshwar Mishra, R/O Village Ghusian Kala, P.S.-
Bikramganj, District- Rohtas.
.... .... Petitioner/Appellant
Versus
2 Patna High Court LPA No.1366 of 2012 (6) dt.25-04-2013
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1. The State of Bihar.
2. The Secretary, Primary & Adult Education Department, Bihar, Patna.
3. The Director, Panchayati Raj, Government of Bihar, Patna.
4. The District Magistrate, Rohtas (Sasaram).
5. The Block Development Officer, Bikramganj, Rohtas.
6. The Block Education Extension Officer, Bikramganj, Rohtas.
7. The Mukhiya, Gram Panchayat, Ghusiakla, P.S. - Bikramganj, District-
Rohtas.
8. The Panchayat Secretary, Gram Panchayat Raj Ghusiakla, P.S. -
Bikramganj, District- Rohtas.
9. Sabina Parween, W/O Dr. Sarfooz Ahmed, R/O Village Ghosian Kala,
P.S.- Bikramganj, District- Rohtas.
.... .... Respondents- Respondents
======================================================
Appearance :
(In LPA No.1366 of 2012)
For the Appellant : Mr. Ashutosh Ranjan Pandey
Mr. Prabhat Ranjan Singh,
Mr. Rakesh Narayan Singh
Mr. Ramanuj Tiwari
Ms. Archana Sinha,
Mr. Rajiv Ranjan Mishra, Advocates.
For the Respondent Nos. 1-7: Mr. Chandra Shekhar Singh, A.C. to P.G. 16
For the Respondent No. 10 : Mr. Sanjeev Kumar Mishra,
Mr. Piyush Saurav, Advocates.
(In LPA No.1748 of 2012)
For the Appellant : Mr. Ashutosh Ranjan Pandey
Mr. Prabhat Ranjan Singh,
Mr. Rakesh Narayan Singh
Mr. Ramanuj Tiwari
Ms. Archana Sinha,
Mr. Rajiv Ranjan Mishra, Advocates.
For the Respondent Nos. 1-6: Mr. Chandra Shekhar Singh, A.C. to P.G. 16
For the Respondent No. 9
: Mr. Sanjeev Kumar Mishra,
Mr. Piyush Saurav, Advocates.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
3 Patna High Court LPA No.1366 of 2012 (6) dt.25-04-2013
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(Per: HONOURABLE THE CHIEF JUSTICE)
6 25-04-2013Re. Interlocutory Application No. 5807 of 2012:
The delay of one day occurred in filing the Letters Patent Appeal is condoned.
Interlocutory Application stands disposed of. Re. Letters Patent Appeal Nos. 1366 of 2012 & 1748 of 2012:
These two Appeals under Clause 10 of the Letters Patent preferred by the writ petitioner arise from the common judgment and order dated 23rd April 2012 passed by the learned single Judge in CWJC Nos. 10096 of 2008 and 7850 of 2009.
The cause of action arose as early as in 2005.
Pursuant to the recruitment process commenced in 2005, one Sabiha Parween, respondent no. 10 in L.P.A. No. 1366 of 2012 and respondent no. 9 in L.P.A. No. 1748 of 2012, came to be appointed for 11 months as Panchayat Shiksha Mitra under the then prevalent Scheme, under the Gram Panchayat Raj- Ghusiakla, P.S.-Bikramganj, District-Rohtas. Admittedly, the said Sabiha Parween performed duty as a Panchayat Shiksha Mitra precisely for three days. After three days, she claims that she had applied for maternity leave and she proceeded on maternity leave.
Be that as it may, the admitted fact is that after serving for three days, she never returned to report for duty as Panchayat Shiksha Mitra till her term of appointment expired in April 2006. In July 2006, the cadre of Panchayat Shiksha Mitra was abolished. The existing Panchayat Shiksha Mitras were absorbed as Panchayat Teachers under the Bihar Panchayat Elementary Teachers (Employment & Service Conditions) Rules, 2006 (hereinafter referred to as 'the Rules of 2006').
Since then, the said Sabiha Parween approached this 4 Patna High Court LPA No.1366 of 2012 (6) dt.25-04-2013 4/ 7 Court under Article 226 of the Constitution in CWJC No. 15822 of 2006. Under order dated 7th November 2007, this Court summarily disposed of the writ petition and directed the Block Development Officer, Bikramganj, Rohtas to dispose of her representation dated 5th February 2006.
It is apparent that the above referred facts that the said Sabiha Parween had not served for more than three days; that her appointment was contractual for a period of 11 months and that the said term had expired in April 2006 were not brought to the notice of the Court. Pursuant to the aforesaid order, the Block Development Officer, under his order dated 18th March 2008, held that the termination of service of the said Sabiha Parween was contrary to the principles of natural justice and was not sustainable. He also held that the appointment of the appellant in place of the said Sabiha Parween was also not legal. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 10096 of 2008.
Pursuant to the report of the Block Development Officer, the District Superintendent of Education, Rohtas, under his order dated 30th March 2009, directed the Block Education Officer, Bikramganj to terminate the service of the appellant in compliance with the order of the Block Development Officer. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 7850 of 2009.
Both the above writ petitions have been dismissed by the learned single Judge. The learned single Judge has held that the termination of service of the aforesaid Sabiha Parween was contrary to the principle of natural justice and was not sustainable. The learned single Judge has also held that the appellant had been 5 Patna High Court LPA No.1366 of 2012 (6) dt.25-04-2013 5/ 7 inducted in service illegally without following the due procedure and that her backdoor entry cannot be sustained. Therefore, these Appeals.
We have heard the learned Advocates extensively. We are of the opinion that the learned single Judge has erred three fold. First, it may be noted that the service or the appointment of the aforesaid Sabiha Parween was never terminated by any of the respondent authorities. It was the said Sabiha Parween who voluntarily ceased to report for duty three days after her joining the duty. Whether she had right to maternity leave or not is a secondary issue. Admittedly, her application for maternity leave was not granted by any authority. The term of her appointment expired in April 2006. Whatever be her right, stood extinguished in April 2006 on expiry of the term of her appointment. Admittedly, there was no rule of automatic renewal of appointment. After expiry of the term of her appointment, her service contract had not been renewed. The said Sabiha Parween, therefore, had no right to appointment/employment whatsoever after April 2006. Second, the learned single Judge has erred in overlooking the fact that the cadre of Panchayat Shiksha Mitra stood abolished with effect from 1st July 2006. Therefore also, after 1st July 2006, the said Sabiha Parween had no right to employment as Panchayat Shiksha Mitra. The Rules of 2006 provides for absorption of existing Panchayat Shiksha Mitra as Panchayat Teacher, the cadre created under the Rules of 2006. The said Sabiha Parween admittedly was not functioning as Panchayat Shiksha Mitra as on 1st July 2006. She, therefore, could not have been absorbed in service as the Panchayat Teacher. Third, the learned single Judge has failed to notice that once the appellant had been absorbed as a Panchayat 6 Patna High Court LPA No.1366 of 2012 (6) dt.25-04-2013 6/ 7 Teacher under the Rules of 2006, she was then governed by the Rules of 2006. Her service could not have been terminated except in terms of the Rules of 2006.
It is true that once the aforesaid Sabiha Parween ceased to report for duty of her own, the resulting vacancy should have been filled in by fresh recruitment process. Ordinarily, such vacancy is not filled in by operating the merit list. However, if the merit list were operated to fill in the resulting vacancy and the appellant was appointed in the place of the said Sabiha Parween, the appointment of the appellant cannot be held to be a backdoor entry. She, therefore, should not have been disturbed years after her appointment and after her absorption in service as Panchayat Teacher under the Rules of 2006.
For the aforesaid reasons, we allow these Appeals. The impugned judgment and order dated 23rd April 2012 passed by the learned single Judge in CWJC Nos. 10096 of 2008 and 7850 of 2009 is set aside. CWJC Nos. 10096 of 2008 and 7850 of 2009 are allowed. The impugned order dated 18th March 2008 made by the Block Development Officer, Bikramganj and the consequential order dated 30th March 2009 made by the District Superintendent of Education, Rohtas are quashed and set aside.
The respondent nos. 8 and 9, the Mukhiya and the Secretary of the Gram Panchayat Raj- Ghusiakla, Bikramganj, are directed to reinstate the appellant Richa Kumari as Panchayat Teacher under the Gram Panchayat Raj- Ghusiakla within three weeks from today and to issue appropriate posting order.
In the event, the respondents fail to reinstate the appellant Richa Kumari as Panchayat Teacher, as directed, the appellant will be entitled to salary/remuneration/honorarium as a 7 Patna High Court LPA No.1366 of 2012 (6) dt.25-04-2013 7/ 7 Panchayat Teacher commencing from 20th May 2013. On her reinstatement, the seniority of the appellant Richa Kumari will be restored. However, the appellant will not be entitled to the salary/wages/remuneration/honorarium for the period from the date her service was terminated till the date she is reinstated in service or till 19th May 2013, whichever is earlier.
The registry will send copy of this order to the respondent nos. 5 to 9 forthwith.
Interlocutory Application stands disposed of.
(R.M. Doshit, CJ) (Ahsanuddin Amanullah, J) Sujit /-