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Patna High Court · body

1975 DIGILAW 79 (PAT)

Kedar Nath Sinha v. State Of Bihar

1975-03-17

HARI LAL AGRAWAL

body1975
Judgment 1. The petitioner, who was appointed as the Assistant Headmaster in T. N. B. Collegiate School, Bhagalpur, has come to this Court in its writ jurisdiction challenging the legality of the two orders contained in Letters dated 2-9-1974 issued by the Secretary of the Managing Committee of the School (Respondent No. 5) (Annexures 10 and 11). By Annexure 10, the petitioner has been suspended with effect from 11-7-1974 on the basis of some major charges against him. By Annexure 11, he has been reverted back to his original post of an Assistant teacher from the very date of his promotion to the post of Assistant Headmaster and asking him to refund the salary, allowance, etc., drawn by him as the Assistant Headmaster of the school. He has also been directed to hand over charge as the Assistant Headmaster of the school to Respondent No. 12, the senior teacher of the school, promoted as the Assistant Headmaster. 2. The relevant facts are as follows: The petitioner was appointed as an Assistant teacher in T.N. B. Collegiate School, Bhagalpur, on 17-11-1959 in the pay scale of a trained graduate. Subsequently, he was confirmed to the said post. Later on, he also passed M. A.Examination in 1963 and obtained Diploma in Education in 1970. The ad hoc Committee of the School in its meeting dated 5-6-1973 resolved (Annexure-1) the petitioner as the Assistant Head Master of the school, subject to the approval of the District Education Officer. The petitioner was further authorised in the said meeting to take completed charge from the Headmaster who was retiring from the service with effect from the afternoon of 14-6-1973 and to look after the school affairs and run the administration of the school till a permanent Headmaster was appointed. By a letter dated 6-6-1973 (Annexure-2), the petitioner was informed of this resolution of the ad hoc Committee. The District Education Officer, Bhagalpur (Respondent No. 3) by his order dated 6-7-1973 (Annexure-3) approved the appointment of the petitioner as the Assistant Headmaster of the school. The petitioner took over the charge of the Headmaster of the school on 14-6-1973, as directed in the letter dated 6-6-1973 (Annexure-2). Respondent No. 3 by his order dated 2-3-1974 (Annexure-4) approved the scale of pay of the petitioner as the Assistant Headmaster with effect from 15-6-1973. 3. The petitioner took over the charge of the Headmaster of the school on 14-6-1973, as directed in the letter dated 6-6-1973 (Annexure-2). Respondent No. 3 by his order dated 2-3-1974 (Annexure-4) approved the scale of pay of the petitioner as the Assistant Headmaster with effect from 15-6-1973. 3. It is not disputed that the case of the petitioner would be governed by the Bihar High School Service Conditions Rules, 1972, Rule 4 (2) of the said Rules provides that when any vacancy of the Headmaster or the Assistant Headmaster of a school falls vacant, the Managing Committee of the school would decide whether the vacancy should be filled up by promotion of any qualified Assistant teacher of the school or by advertisement, and in either case, it would forward its decision to the competent authority which, in the present case, is the District Education Officer, for his approval, who is required to communicate his decision to the Managing Committee within a period of one month. The decision of the District Education Officer has been mad final, subject, of course, to appeal, if any by the Managing Committee against the said decision under Rule 4 (9) of the Rules, in this case to the Deputy Direct of Education. 4. The ad hoc Committee which was functioning since 1-8-1969 in the school was replaced by a newly constitued Managing Committee on 8-7-1974. If appears that soon after the newly constituted Managing Committee was constituted, its members began trying to remove the petitioner from the post of Assistant Headmaster. The Managing Committee held its meeting on 10-7-1974 and a resolution was passed appointing Respondent No. 11, another Assistant teacher of the school, as the officiating Headmaster (Annexure-5), in spite of the objection (Annexure-6) raised by the petitioner who was also present at the said meeting as an ex-officio member of the Managing Committee on the ground that in view of the new Ordinance promulgated on 20-5-1974, the Managing Committee had no such power. The District Education Officer by his letter dated 22-7-1974 (Annexure-9) disapproved this action of the Managing Committee in view of the appointment of the petitioner to the post of the Assistant Headmaster. The District Education Officer by his letter dated 22-7-1974 (Annexure-9) disapproved this action of the Managing Committee in view of the appointment of the petitioner to the post of the Assistant Headmaster. Against the resolution of the Managing Committee dated 10-7-1974 (Annexure-5), the petitioner filed C. W. J. C. No. 1316 of 1974, but in view of the order of the District Education Officer dated 22-7-1974 (Annexure-9), the petitioner withdrew this application on 28-8-1974. Thereafter the Secretary of the Managing Committee of the school (Respondent No. 5) served the two letters dated 2-9-1975 (Annexures-10 and 11) suspending the petitioner with effect from 11-7-1974 and reverting him to the post of the Assistant teacher from the date of his appointment as the Assistant Headmaster of the school and directing him to refund the salary and allowances etc., drawn by him as the Assistant Headmaster of the school. The petitioner challenges the order of suspension (Annexure-10) on the ground that in view of the Bihar Ordinance No.112 of 1974, namely, Bihar Secondary Education Board Ordinance, 1974, which came into force on the 20th May, 1974 the action of the Managing Committee was wholly without jurisdiction. On the pasis of the aforesaid Ordinance the State Government issued a letter dated 10-6-1974 (Annexure-14) to all the District Education Officers clarifying Sections 45 and 46 of the Bihar Madhyamik Shiksha Board Ordinance, 1974, and specifically mentioning herein that after 21-5-1974, the Managing Committee of a High School could only recommend, for suspension, Disciplinary proceedings or major punishment against a Headmaster, Assistant teachers and other staff of a High School to the District Education Officer and could not by itself make any direction in that regard. The contention of the learned counsel for the petitioner, in view of the provisions prescribed in the Ordinance, seems to be unassailable. It cannot, therefore, but be held that the action taken against the petitioner by the letters contained in Annexures 10 and 11 is illegal and without jurisdiction and must be quashed and cancelled as the orders purported to have been passed by the Managing Committee were in clear violation of the requirements of the provisions of Sections 45 and 46 of the Ordinance. 5. 5. The District Education Officer (Respondent No. 3) after having earlier granted his approval to the appointment of the petitioner to the post of the Assistant Headmaster by his order dated 6-7-1973 (Annexure-3), however, issued another letter dated 7-9-1974 (Annexure-13) a copy of which was forwarded to the petitioner as well, cancelling his earlier order of approval. This order is purported to have been passed on the basis of the letter dated 27-8-1974 (Annexure-12) of the Secretary, Bihar Madhyamik Shiksha Board, Patna (Respondent No. 2) to the District Education Officer, Bhagalpur (Respondent No. 3). On the basis of the order dated 7-9-1974 (Annexure-18), the Secretary of the Managing Committee of the school issued the impugned letter contained in Annexure-11 informing the petitioner that he was being reverted from the post of the Assistant Headmaster of the school to his old post of Assistant teacher from the date of his appointment as such and directing him to refund all the extra salaries and allowances drawn by him. 6. Learned counsel for the petitioner challenges the legality of the orders contained in Annexures 12 and 13 on the basis of the provisions pointed out above in the Bihar High School Service Condition Rules, 1972 and contended that the earlier order of the District Education Officer dated 6-7-1973 (Annexure 3) became final, and even assuming that the same was in any way irregular, the District Education Officer ceased to have jurisdiction to pass any other order in derogation of his earlier order. Learned Counsel appearing for the Board, however, seriously contended that in spite of the approval of the District Education Officer, the Bihar Madhyamik Shiksha Board was the final authority to approve the action of the Managing Committee of the school and grant permission for payment of salary etc., and as such Respondent No. 2 was fully entitled to direct the District Education Officer pointing out the mistake committed by him in his earlier order dated 6-7-1973 and directing him to rescind the same. Similar arguments were advanced on behalf of the learned counsel for the other respondents. In my opinion, the arguments advanced on behalf of the respondents have got no substance and must be overruled. Similar arguments were advanced on behalf of the learned counsel for the other respondents. In my opinion, the arguments advanced on behalf of the respondents have got no substance and must be overruled. So far as the question of appointment of the petitioner as the Assistant Headmaster is concerned, the Bihar High School Service Condition Rules, 1972 has laid down a very clear and unambiguous provision in this regard. The decision of the District Education Officer has been made final. The Managing Committee of the School could not even prefer any appeal to the Deputy Director of Education against the order of the District Education Officer, who had rather approved the appointment of the petitioner as the Assistant Headmaster. Once this position is clearly understood, in my view, the order sanctioning the pay scale etc., to the petitioner by the Board was only as a routine order. In course of sanctioning the pay scale etc., the Board has not been empowered under the Rules to sit over the judgment of the District Education Officer and take any decision upsetting the came. 7. With respect to the proceedings taken against the petitioner and passing the order of suspension as contained in Annexure-10, the action of Respondent No. 5 is clearly without jurisdiction. The contention is clear and fully supported by the provisions of the Ordinance. Learned counsel for the respondent could not point out any provision under the aforesaid Service Condition Rules regulating the functions of the school, whereby the action of the Managing Committee against the petitioner could be supported. 8. For all the foregoing reasons, this application must be allowed. I would, acordingly, quash the orders contained in Annexures 10, 11, 12 and 13. Let a writ of certiorari be issued accordingly. 9. However, this decision will not in any way debar the appropriate authority, if they so feel, to take any appropriate action against the petitioner for any of the irregularities committed by him for which the Managing Committee of the school purported to take action. There shall be no order as to costs in this case.