Kapildeo Narayan Singh v. State Of Bihar — 1976 DIGILAW 55 (PAT)

Judgment 1. This application by Kapildeo Narain Singh under Articles 226 and 227 of the Constitution of India is directed against the order dated the 9th March, 1973 (Annexure-4) to the Writ application passed by the District Superintendent of Education, Gaya, respondent No. 2, whereby according to the petitioner he was demoted from the post of the Head Master to the post of the assistant teacher of Middle School, Bandhua, P.S. Mufassil in the District of Gaya. The petitioner has therefore prayed for quashing the said order contained in Annexure 4 and for a direction that the petitioner be deemed to have been working as Head Master in the said school against a permanent vacancy and for further direction to respondents 1 and 2 to settle the pay and allowance of the petitioner, as Head Master of the School. 2. In order to appreciate the point involved in this application it will be necessary to state briefly the facts as stated by the petitioner in his application and as stated on behalf of respondent No. 1 in the counter-affidavit. The petitioner has stated in his application that he passed the Intermediate Examination from the Bihar University in the year 1960. Subsequently he took a teachers training course and passed the same from the Teachers Training School, Kodarma, Government of Bihar. The petitioner was appointed as an Assistant Teacher of the said School by the District Superintendent of Education, Gaya, respondent No. 2, under Rule 45 of the Bihar Primary and Middle Education Rules 1961 on the 21st of November, 1966 and accordingly he joined his post on the 30th of November, 1966. The Service condition of the petitioner is governed by Bihar and Orissa Local Self Government Act, the Bihar Education Code, 1961 and also various circulars issued from time to time by the Education Department, Government of Bihar. The petitioner got the scale of I. A. trained since the date of appointment in accordance with the circular dated the 29th of July, 1966, from the Education Department of the Government of Bihar. The circular specifically prescribed that only Head Master with I. A. trained qualification or B. A. trained qualification and only one of the Assistant teachers having I. A. trained qualification are eligible for scale as prescribed by the Government of Bihar. The circular specifically prescribed that only Head Master with I. A. trained qualification or B. A. trained qualification and only one of the Assistant teachers having I. A. trained qualification are eligible for scale as prescribed by the Government of Bihar. The petitioner as per practice being the seniormost in qualification and fit for the post of Head Master under the Circular dated the 29th July, 1966, of the Education Department was appointed against the substantive vacancy in the post of Head Master on the 13th October, 1967. The petitioner from time to time was representing before the authorities to allow him to enjoy the headship allowance of Rupees 5/- which was due since the date of his appointment as Head Master. But he was always assured that the matter was under consideration, and he was also told that his service book had not been made ready: as long as it was not decided whether he had been officiating or working against the permanent vacancy the same could not be settled. The petitioner has annexed copy of his representation dated the 28th June, 1968, as Annexure I to the writ petition. Finally, in the year 1970, the matter in question was decided by the authority and accordingly the petitioner was supplied with a service book. The service book bore as many as 15 columns, and the same contained full particulars in regard to his appointment, scale and other related matters. In column 2 of the service book the appointment of the petitioner to the post of Head Master was described as substantive and temporary. In column 4 the petitioner was given his pay in the substantive post. The said service book was duly signed by the Deputy Inspector of Schools from the year 1970 as prescribed in column 9. According to the petitioner the service book confirmed that the petitioner was appointed as Head Master against substantive, and temporary vacancy from 1st April, 1967. The petitioner was and is given the pay in substantive post. The petitioner was not appointed against the officiating vacancy and he was not given additional pay for officiating. The petitioner had been given scale and pay as revised by the Government of Bihar from time to time as in the substantive post. The petitioner was and is given the pay in substantive post. The petitioner was not appointed against the officiating vacancy and he was not given additional pay for officiating. The petitioner had been given scale and pay as revised by the Government of Bihar from time to time as in the substantive post. The petitioner passed his graduation examination in the year 1971 from the Magadh University and on his representation he was allowed the scale of B. A. trained from 1st January, 1972, as per letter dated 24-2-1972 from the District Superintendent of Education, a copy of which is made Annexure `2 to the application. The petitioner enjoyed headship allowance from July, 1970 and so far his claim prior to that he has received a letter dated the 13th July, 1972, from respondent No. 2, whereby he had directed the appropriate authorities to produce claim of the petitioner before him to consider on the question of payment of his dues vide his letter dated the 13th July, 1972, (Annexure 3). Thereafter the petitioner received the impugned order dated the 9th March, 1972 (Annexure `4). Aggrieved by the said order the petitioner moved to the Deputy Director of Education, who was pleased to pass his order dated the 17th March, 1973, directing the District Education Officer not to deduct his salary arbitrarily and allow the petitioner to enjoy the previous scale as granted before. He also observed that it was essential to give opportunity to the petitioner to show cause. The petitioner also represented the matter to the District Superintendent of Education namely respondent No. 2 on the 29th of June, 1973. A copy of the said representation is marked as Annexure 5 to the writ petition but it bore no result. On these legations the petitioner has come to this court. He filed his application on 3rd of September, 1973, which was admitted on the 5th September, 1973. However, this court had ordered that the prayer for stay of the operation of the impugned order would be considered after the appearance of the respondent. 3. On the 2nd of May, 1974, a counter-affidavit was filed on behalf of the State of Bihar respondent No. 1. It will be relevant to quote paragraphs 5 and 6 of the counter-affidavit in extenso. "5. 3. On the 2nd of May, 1974, a counter-affidavit was filed on behalf of the State of Bihar respondent No. 1. It will be relevant to quote paragraphs 5 and 6 of the counter-affidavit in extenso. "5. That in regard to the contents of paragraph 7 of the petition I have to state that the plaintiff was never appointed as Head Master of any Middle School. As per instructions issued by the Department from time to time a person is appointed by the District Superintendent of Education as Head Master of a Middle School. Regular appointment is issued to the person concerned after he is promoted and posted as Head Master of a school. The plaintiff was appointed as an Assistant Teacher in I. A. Trained scale. He was later posted in the Middle School, Bandhua (Manpur) where Sri Lakhmeshwar Pd. was the Head Master. The Head Master was transferred under orders of D. P. I. to Monghyr District vide Memo No. 4231 dated 30-9-1967 and was directed to hand over charge to the seniormost Teacher Sri Kapildeo Narain Singh. Later on Sri Raj Kumar Singh was deputed as Head Master in that School vide D. S. Es. Memo No. 1489 dated 13-6-1968 but the plaintiff did not hand over charges. Later on a show cause was issued to the petitioner for this reason but he filed a suit in the Court of Munsif, Gaya from where a temporary injunction was issued on 23-8-1968 which was later on vacated on 20-8-1969 after hearing the facts (copy enclosed). At a later stage the case was withdrawn by the petitioner. 6.That it is not a fact that the petitioner was appointed as Head Master at any time but continued to hold charge of the school in the absence of a permanent Head Master. A copy of the relevant order is annexed and marked as Annexure A. 4. Subsequently the petitioner filed a rejoinder on the 24th of July, 1974, to the counter-affidavit filed on behalf of respondent No. 1, wherein it was admitted that Title Suit No. 145 of 1968 was filed, and therein it was also mentioned the circumstances, under which the suit was withdrawn. In this connection the petitioner has also filed a copy of the application filed in the court below and the same is marked as Annexure 6. In this connection the petitioner has also filed a copy of the application filed in the court below and the same is marked as Annexure 6. The order of the Munsif allowing the petitioner to withdraw the suit on 12th January, 1970, is contained in Annexure 7. 5. Learned counsel for the petitioner has assailed the impugned order and raised the following point for consideration by this Court. The petitioner having been appointed to a substantive post as Head Master of the school was reverted to the post of an assistant teacher without giving an opportunity to the petitioner is violation of the principles of natural justice. In order to find support to his submission he has relied on the case of Mahendra Narain V/s. Sub-Divisional Education Officer-cum-Municipal Education Officer, ( AIR 1976 Pat 53 ) where it was observed that where a Head Master was reverted to the post of Assistant Teacher without giving him an opportunity to show cause it violated the principle of natural justice, and he was entitled to notice as it amounted to reducing in rank of the petitioners without giving them any notice to place their case. Learned counsel appearing on behalf of respondent no. 1 submitted that the observation of his Lordship in that case is not applicable to the instant case. According to him in that case his Lordship was not considering the case of a head master, who was holding the post only on the basis of the stop-gap arrangement. In the present case, he submitted, that the petitioner was not substantively appointed, as head master of the school, as it would be apparent from Annexure A of the counter-affidavit. He also submitted that soon after the petitioner took charge being a seniormost teacher in place of the out-going head master, one Raj Kumar Singh was deputed by the authority to take charge as the head master of the school under letter dated the 13th of June, 1968, but the petitioner did not allow him to take charge thereof. Since the petitioner had filed a title suit the authority did not force the petitioner to hand over the charge to Raj Kumar Singh. On the other hand learned counsel for the petitioner submitted that various entries contained in various columns of the service book clearly indicated that the petitioner was holding a substantive post of the head master. Since the petitioner had filed a title suit the authority did not force the petitioner to hand over the charge to Raj Kumar Singh. On the other hand learned counsel for the petitioner submitted that various entries contained in various columns of the service book clearly indicated that the petitioner was holding a substantive post of the head master. He also in this connection drew my attention to the statement made by the petitioner in paragraph 18 of the application, wherein it was stated that the Deputy Director of Education under his order dated the 17th March, 1973 has directed the District Education Officer not to deduct his salary arbitrarily. That according to him also indicated that the relevant authority was also treating the petitioner as head master of the school. In my opinion, in the absence of any appointment letter, it would be difficult to hold that the petitioner was holding a substantive post or he was appointed as head master of the school. Annexure A clearly indicates that the out-going head master was directed to hand over charge to the seniormost teacher. At the relevant time the petitioner being the seniormost teacher of the school charge was handed over to him by the outgoing head master. From the statement made in the counter-affidavit in paragraph 5 it is also clear that Raj Kumar Singh was deputed as head master of the school by the order of the District Superintendent of Education under his letter dated the 13th June, 1968 to take charge from the petitioner but due to the filing of the title suit the petitioner took advantage and did not obey the order of the District Superintendent of Education. Since in the counter-affidavit the fact that the petitioner was holding a substantive post is controverted, it becomes a disputed question of facts, which cannot be investigated in a writ jurisdiction by this Court. Learned counsel for the petitioner has also referred to the case of State of Mysore V/s. R.R. Kulkarni (1972 Serv LR 795) : ( AIR 1972 SC 2170 ), where it was observed that the orders were quashed for violation of principle of natural justice even in case of persons holding officiating post. In my opinion the facts of that case were entirely different from that of the present case. In my opinion the facts of that case were entirely different from that of the present case. In paragraph 7 of the judgment in that case it was mentioned that the reversion orders might have sprung from an oblique motive and the power of reversion was used for collateral or extraneous purpose. In the instant case nothing has been shown that the impugned order was passed for extraneous purpose. Reference may also be made to the case of Union of India V/s. Gajinder Singh, ( AIR 1972 SC 1329 ) where it was observed that appointment to a post on officiating basis was from the nature of employment itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment was that it was terminable at any time and in that view of the matter reversion to substantive post cannot be said to be bad and Article 311, clause (2) was not attracted. 6. Apart from the merit of the case, I find that the application filed by the petitioner is not maintainable as I find there is suppression of material facts. In the main application the petitioner has not stated anything with regard to the title suit which he had filed, and which he had withdrawn. Those facts saw light only after the counter-affidavit was filed on behalf of respondent No. 1. If no counter-affidavit would have been filed then in that case these facts would not have been stated by the petitioner. After the counter-affidavit, the petitioner in the rejoinder admitted that such suit was really filed by the petitioner. No doubt in the rejoinder he has given the circumstances under which the withdrawal petition was filed by the petitioner in that suit. But in my opinion it is not enough. It was his bounden duty to state those facts in the main application itself. It is well settled that due to the suppression of the material facts by the petitioner in the main application the application under the writ jurisdiction is not maintainable and that by itself may be a ground for dismissing the application filed by the petitioner. It was his bounden duty to state those facts in the main application itself. It is well settled that due to the suppression of the material facts by the petitioner in the main application the application under the writ jurisdiction is not maintainable and that by itself may be a ground for dismissing the application filed by the petitioner. Besides, in the present case, according to me he ought to have also impleaded Ram Kumar Singh who was asked by the relevant department to take charge from the petitioner as the head master of the school. He was a necessary party. It may be seen that in the title suit, he was impleaded as one of the defendants, but while filing the writ application for the reasons best known to him, he left him out completely. According to me if the application of the petitioner would have been allowed he would have materially suffered. Therefore, the application of the petitioner was also not maintainable in the absence of Raj Kumar Singh. 7. In the result, after careful consideration, I dismiss the application and affirm the impugned order contained in Annexure 4. In the circumstances of the case however there will be no order as to costs.