Patna High Court
Shiva Nandan Mahto vs The State Of Bihar & Ors on 23 September, 2010
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
CIVIL WRIT JURISDICTION CASE No.516 OF 1998.
In the matter of an application under Article 226 of the Constitution
of India.
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SHIVA NANDAN MAHTO, son of Ram Rup Mahto, resident of
village-Khadiahi, P.O. Bibhutipur, Dist- Samastipur.
-------Petitioner
Versus
1. THE STATE OF BIHAR,
2. The Director, Secondary Education, Bihar Vikash Bhawan, Patna,
3. The District Education Officer, Samastipur.
--------Respondents
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For the Petitioner :Mr. Rajendra Prasad Singh,SR.Adv.and M/s
Rajeev Kr.Singh,Onkar Kumar and Alok Kr.
Singh, Advocates.
For the State : Mr. Nutan Sharma,A.C, to G.P. 15.
PRESENT
THE HON'BLE MR. JUSTICE NAVANITI PRASAD SINGH Navaniti Prasad Singh,J:- The present Writ application is filed for quashing of the order of the Director, Secondary Education, Bihar, Patna, dated 14.9.1996. Pursuant to order passed by this Court in CWJC No. 2943 of 1994, as filed by the petitioner against the said impugned order, petitioner filed statutory appeal, which has been also rejected and communicated to him under letter dated 18.11.1997 by the same Director. The two orders are contained in Annexures 1 and 1/a respectively. By the impugned order, it has been held that the services of the petitioner cannot be accepted and as such he is to be dismissed.
Heard Mr. Rajendra Prasad Singh, learned Senior 2 Counsel in support of the Writ petition and learned Counsel for the State.
There is no counter affidavit in the case.
The petitioner asserts that on 31.12.1978, the petitioner was appointed as a Clerk in Rani Raj Kishore Balika High School, Narhan, District- Samastipur.. The said school was a private school where petitioner joined on 1.1.1979. The State Government then granted permission for establishment of the school. Thereafter, the State Government took a decision to take over the school and consequently a report was called for from the Headmaster of the existing staff of the School. The Headmaster sent a report on 6.8.1982 (Annexure 3) to the Government. In the said report mischievously , the Headmaster showed one Pramod Mishra on the post of Clerk instead of petitioner as an Assistant Librarian. The petitioner immediately protested. The Assistant Director of the School called for a report from the Managing Committee and on 1.5.1983 (Annexure 4), the Managing Committee sent a report in favour of the petitioner clearly stating that a mistake had been committed and, in fact, the petitioner was the first Clerk appointed and had been working in the School since inception. On 2.8.1983, the school was taken over by the State Government, but because in the initial report submitted to the Government, petitioner's name did not figure on the post of Clerk, petitioner services were not taken over. On coming to 3 know the aforesaid, the petitioner immediately protested. The Deputy Director on being appraised of the facts aforesaid including the report of the Managing Committee felt that the petitioner had been wrongly left out and his services ought to have been taken over as well. He accordingly, by his letter, dated 17.11.1983 (Annexure 5) wrote to the District Superintendent of Education, in view of the Government decision, to adjust the petitioner on any other vacant post available in any school. This was then followed by a formal office order, dated 3rd March, 1984 (Annexure 7) by the Director, Secondary Education -cum-Additional Secretary, Department of Education, Government of Bihar, Patna. By the said order it was clearly held that the petitioner's service as Clerk in Raj Kishore Balika High School, Narhan, District- Samastipur was approved as such, but the post not being vacant he was being adjusted elsewhere. Unfortunately, when the petitioner went there it was found that there was no vacancy. Thereafter the petitioner moved from place to place and ultimately it was found that there was a vacancy caused by one Shiv Kumar Tiwari at Tirhut Academy, Samastipur. The Director then directed the Regional Deputy Director, Education to post the petitioner in that vacant post. It appears that without letting the petitioner to join on that vacant post, the District Superintendent of Education, Samastipur wrongly appointed one Shiv Shankar Prasad in the said vacant post at Tirhut 4 Academy, Samastipur. When this matter was reported to the Director Secondary Education, he immediately directed removal of the said Shiv Shankar Prasad and directed the authority to allow the petitioner to join. Accordingly, on 5.7.1985, petitioner upon removal of Shiv Shankar Prasad joined as Clerk in Tirhut Academy, Samastipur. The petitioner was accordingly, paid some remuneration for the time being. It appears that the said Shiv Shankar Prasad then filed a Writ petition before this Court being CWJC No. 3627 of 1985 for quashing the order of the Director, Secondary Education by which he had directed removal of Shiv Shankar Prasad and allowed the petitioner to join at Tirhut Academy, Samastipur. It appears that this Court took up the Writ petition and held that the appointment of the said Writ petitioner itself was irregular as also appointment of this petitioner, who was made respondent no. 5. It accordingly directed the petitioner to be removed and the State to conduct an enquiry and fill up the post in a lawful manner. By virtue of this order, the petitioner was displaced. The petitioner on coming to know of the said Writ petition, filed a review application as he had neither been noticed in the Writ proceeding nor heard. On this fact, this Court then recalled its earlier by which the petitioner was directed to be displaced. Accordingly the petitioner was reinstated after taking advice by the Director, Secondary Education. Once again the petitioner's trouble started. He was 5 not being paid his remuneration, the petitioner then filed a Writ petition before this Court being CWJC No. 2943 of 1994 seeking payment of his salary for a limited period for which he had not received the remuneration. The dispute in the Writ petition was then remanded to the Director for consideration. Petitioner preferred an intra court appeal and while LPA was pending, the petitioner was transferred from Tirhut Academy, Samastipur to High School Jitwaria, Samastipur on a vacant post, where petitioner joined on 8.12.1995. As per the order passed by this Court on petitioner's Writ petition, the Director started enquiry and having asked the petitioner to file a show cause, by the impugned order dated 14.9.1996, displaced the petitioner once again. As noted earlier the appeal against that order was also not succeed and hence the Writ petition.
On the facts aforesaid, Mr. Rajendra Prasad Singh, learned Senior Counsel submits that right from the beginning itself, the Director, Secondary Education, Government of Bihar, had considered the matter. He had held that the petitioner was duly appointed as a Clerk and wrongly shown as a Librarian. It is on that basis, the petitioner was sought to be adjusted. Now by the impugned ignoring this fact, and merely stating that in the first list received from the School, petitioner's name not having been shown as a clerk, the petitioner's appointment on the said post cannot be accepted.
In my view, learned counsel is correct. From the 6 impugned order it is clear that the Director at this time only refers to the first letter received from the School and remains blissfully unaware of subsequent events. He ignores his predecessor's own order wherein it was clearly noted that the petitioner's name was wrongly left out and in fact he was the Clerk working in the School since inception. He forgets that it is on those facts, petitioner's adjustment was ordered by the State Government.
Thus, in my view, the impugned order dated 14.9.1996 cannot be sustained, and it is accordingly quashed as it fails to take note of undisputed material facts and the order having been passed in ignorance thereof cannot be a valid order. Thus it would be deemed that the petitioner's services were validly approved by the State Government. The question is as to what relief, the petitioner now entitled to.
Mr. Rajendra Prasad Singh, Learned Counsel for the petitioner submits that the petitioner still has about 6 to 7 years of service.
In that view of the matter, I am left with no option but to direct that the petitioner be reinstated forthwith. As petitioner's removal was not correct and the petitioner was not at fault, for the purposes of continuity of service and length of service, the entire period from the date of initial appointment/ approval by the State, would be counted as service period but the petitioner would not be entitled to remuneration for the said 7 period as, admittedly, he has not worked. This service period in totality would be taken into account for the purposes of retiral benefits as well.
The Writ petition is allowed. Accordingly the petitioner should be made to join as a Clerk immediately and his remuneration is paid accordingly. That would be the responsibility of the Director, Secondary Education, Government of Bihar, Patna. The Director must pass order in this regard at the earliest not later than two weeks from the date of filing a copy of this order before him.
Patna High Court, ( Navaniti Prasad Singh, J.) September, 23, 2010 , Singh/N.A.F.R