Patna High Court
Awadh Bihari And Ors., Kanhaiya Prasad ... vs State Of Bihar And Ors. on 14 May, 1990
Equivalent citations: 1991(1)BLJR292
JUDGMENT Binod Kumar Roy, J.
1. Since common questions of law and facts are involved in these writ applications, which were also directed to be heard together, they are being disposed of by this common judgment.
2. In C.W.J.C. No. 5844 of 1983, 325 petitioners of different Middle and taken over schools pray for quashing an order dated 22nd May, 1983 passed by the District Magistrate, Saram (Chapra) (Respondent No. 4) as contained in Annexure-1, bearing memo No. 518/Local Chapra, dated 3lst March, 1983. By the said order, Respondent No. 4 decided that the payment of House Rent Allowance to the teachers of any school, which is situate outside the Municipal area of Chapra, as directed by the District Superintendent of Education, Chapra. (Respondent No. 2) and the Districl Education Officer, Chapra, Siwan (Respondent No. 3) is contrary to the provisions of the Bihar State Employees (House Rent Allowance) Rules, 1980 and thus the payment of rent already made be deducted and that further payment be deferred till an order is received from the Government.
In C.W.J.C. No. 4777 of 1983, petitioners 1 to 8 teachers, 9 widow of a teacher, 10-a clerk and 11 and 12 peons of a taken over School pray for quashing the same order which is Annexure 5.
In C.W.J.C. No. 5690 of 1983, 37 petitioners of similarly Taken Over Schools pray the same order appended as Annexure 1.
3. Since in C.W.J.C. No. 5844 of 1983 facts with some details have been stated by the petitioner as also by the Respondents thus the relevant facts are being taken from the records of that case.
4. The petitioners assert that their schools are situate within the radius of 8 kilometers of Chapra Town in the District of Saran. Their schools were Taken Over by the Government with effect from 2.10.1980, pursuant to the provisions of Bihar Non-Government Elementary Schools (Taken Over Control) Act, 1976. Accordingly, they all became the employees of the Government and the Bihar State Employees (House Rent Allowance) Rules, 1980 applies to them. The Government of Bihar issued an order bearing No. 2342 dated 14th May, 1980 to provide house rents to all its employees whose place of duty is within the radius of 8 kms. and whose monthly salary is upto Rs. 1065 per month. The petitioners in the said. (sic) view of the matter, moved the District Superintendent of Education (Respondent No. 2), Saran, Chapra in this regard Respondent No. 2 got the matter enquired through the Deputy Inspector of Schools, Chapra, Mufassil, who in his turn, after enquiry recommended that the Schools of the petitioners fall within 8 kms. of the Chapra Town. The Executive Engineer (Road) of P.W.D. also certified to the same effect. Respondent No. 2, thereafter, passed an order for payment of House Rent Allowance to the petitioners with effect from 1.4.1980. The said order was also complied with, By the impuned order, however, the District Collector, Saran illegally cancelled the said order with further directions mentioned therein. The said order has been passed without going through the provisions of order No. 2342 dated 14.5.1980 of the Government of Bihar as contained in Annexure-2. The Director, Primary Education, Government of Bihar vide his letter dated 27th March, 1984 addressed to all District Superintendent of Education as contained in Annexure 3 to the Supplementary Affidavit dated 6-7-1989 had also supported the cause of the petitioners. It has also been stated that Chapra (Mufassil) falls in the list of the towns qualified for house rent allowance. The Secretary, Education Department, Government of Bihar sent a letter dated 26th April, 1986 (as contained in Annexure 4 to the supplementary affidavit filed on 4.9.1988) to all the officers of Education Department that the teachers of Elementary Schools whose place of working is within the radius of 8 kilometers from the Municipal Corporation and cantonment area of the State are entitled for the house rents. Teachers who had not filed any writ application or Title Suit have been given the said benefit which is apparent from a letter bearing memo No. 30/C, Chapra, dated 2nd February, 1988 of the Deputy Development Commissioner, Saran addressed to the District Education Officer, Saran, Chapra (as contained in Annexure 5).
5. A counter-affidavit has been filed on behalf of Respondent No. 4 in C.W.J.C. No. 5844 of 1983. It has been stated therein that Rules 4 and 11 of the Bihar State Employees (House Rent Allowance) Rules, 1980 requires sanction of the Administrative Department i.e., the Director of Primary Education, Bihar which was must. Sanction has been, however, granted by the District Superintendent of Education, Saran who is not the competent authority under the rules. The Collector of the District (Respondent No. 3) in the capacity of the Treasury Officer of the District has to see that no amount is drawn from the Treasury without the proper sanction. No question of giving opportunity to the petitioners ever arose as the sanction of the House Rent Allowance by the District Superintendent of Education was not valid.
6. Mr. Rameshwar Nath Rai, learned Counsel for the petitioners, submits as follows:
(i) In directing the realisation of the rent allowances, no opportunity was given to the petitioners and the principle of natural justice thus has been violated, The order, if allowed to stand, would visit civil consequences.
(ii) The District Magistrate had no authority to pass the impugned order.
(iii) The order directing payment of House Rent Allowances were validly made.
7. Mr. Ram Nandan Prasad, learned Standing Counsel-IV, as well as his junior counsel submits as follows:
(i) The grant of allowance itself as absolutely illegal, the same not having been granted by the Director, Primary Education, Bihar who alone was is the competent authority.
(ii) The Government has not till today decided to grant house rent allowance to the petitioners.
(iii) The Collector of the State being head of the Treasury had jurisdiction to stop illegal payment of the house rent allowance to the petitioner.
(iv) Principle of natural justice have not been violated, in making deductions by the District Magistrate. Even assuming so the petitioners not having shown that the allowances were being granted to them by any competent authority earlier they are not entitled to any relief from this Court which exercises discretionary jurisdiction to far then the cause of justice only.
8. The petitioners have not brought on the record any paper to show that the Government has taken any decision to accord them house rent allowance before passing of the impugned order.
9. It is an admitted position that the Schools in which the petitioners are working have been 'Taken Over. The consequences of Taking Over of the Schools, have been mentioned in Section 4 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976. Section 4(2) of the said Act runs as follows:
Every officer, teacher or other employee holding any office or post in the School taken over by the State Government shall be deemed to have been transferred and become an officer, teacher or employee of State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of set vice as he would have held before the taking over of the said school and shall continue to do unless and until such tenure remuneration, tams and conditions of service are duly altered by the State Government.
A perusal of Sub-section (2) of Section 4 shows that the petitioners shall hold their office by the same tenure at the same remuneration and on the same terms and conditions of service as they would have held before the Taking Over of the said school and shall continue to do so and unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government. The said provision is absolutely cleary in its term and it does not admit of any exception. Nothing has been brought by the petitioners to show that earlier they were being granted any House Rent allowance by their employers.
10. Annexure-4 to the supplementary affidavit dated 19th April, 1988, filed in C.W.J.C. No. 5844 of 1983 is a communication made by the Education Secretary of the Government of Bihar (sic), Education)-cum-Joint Secretary/Special Secretary-cum-Director (Primary Education), Bihar, Patna, dated the 26th April, 1986. Annexure-4 aforementioned shows that the State Government with concurrence of Finance Department had vested powers to grant House Rent Allowance in the Deputy Development Commissioner, The decision aforesaid was taken in 1986, i.e., much after the filing of the writ application. In terms of Sub-section (2) of Section 4 of the Taking Over Act no decision earlier was taken at all by the State Government and in the said view of the matter, the petitioners are not entitled to the house read allowance as claimed by them. Annexure-4 to the supplementary affidavit referred to above is clear that the Government has taken the decision for the first time in this regard.... (sic) in 1986.
11. A significant question arises as to who is the appropriate authority to accord sanction in this regard in view of the fact that as per the case of the petitioners, District Superintendent of Education, Saran, whereas according to the Respondents, the District Establishment Committee.
12. However, Annexure-5 to the supplementary affidavit which is a communication made by the Deputy Development Commissioner, Saran to the District Superintendent of Education, Saran dated the 2nd February, 1988 shows that House Rent Allowances have been accorded to seven teachers. In view of this fact, I am of the view that it is desirable that the matter requires reconsideration. Mr. Rai is correct in pointing out that the Government shall be making discriminatory approach in not giving house rent allowance to the petitioners also, who are similarly situated.
13. I also further find that the Collector of the district being the head of the treasury, was fully entitled to stop any illegal payment not warranted by Rules/Act.
14. I do not think it would be sound exercise of my discretion to interfere with the orders impugned. In the said view of the matter, the petitioners are not entitled to the reliefs as prayed for.
15. However, I give liberty to the petitioners to move the State Government or the Deputy Development Commissioner to accord them house rent allowance from 24th December, 1986 from which date house rent allowance have been accorded to other seven persons. I also give liberty to them to make a representation to the State Government to regularize grant of house rent allowance by the District Superintendent of Education, Saran which should be disposed of expeditiously on its merit one way or the other.
16. With the aforementioned directions/observations, these writ applications are disposed of. There shall be no order as to cost.