Research › Browse › Judgment

Patna High Court · body

1992 DIGILAW 452 (PAT)

Yadunandan Prasad v. State Of Bihar

1992-12-11

G.C.BHARUKA, SHAMIM AHSAN

body1992
Judgment G. C. Bharnka, J. 1. The present writ application has been filed by the petitioner for quashing the order dated 18-8-1992 (Annexure-1) passed by the Director of Secondary Education, Respondent No.2, by which he has suspended the petitioner from service on the ground that the petitioner has been made an accused in Nalandan P. S. Case No.158/90 under section 364/34, I. P. C. 2. The petitioner is an assistant teacher posted ia Vidya Vihar high School, Eksara, in the district of Nalanda. According to the petitioner he has been falsely implicated in the present case because of village rivalary. Nonetheless, the fact remain that he is an accused in a criminal case, which has lead t the passing of the impugned order of suspension by the respondent-Director. 3. Mr. Pandey, learned counsel appearing for the petitioner has assailed the impugned order on the ground that under the provisions of the Bihar Nationalised Secondary Schools (Conditions of Service) Rules, 1983 (hereinafter to be referred to as the Rules only), the Director of secondary Education is not competent to either initiate disciplinary proceeding against an assistant teacher or to pass an order of suspension in course of or in contemplation of any such proceeding and, as such, the impugned order is unsustainable in law. 4. Learned State counsel on the other hand has placed reliance on the Bihar Service Code and other disciplinary rules applicable to government servants and submitted that the impugned order has rightly been passed. 5. Under the provisions of the relevant Act and the Rules admittedly the Director, Secondary Education is the appointing authority in respect of the headmasters and assistant teachers of Nationalised Secondary schools. Under Rule 6 of the Rules, the Junior grade teachers belong to the district cadre and the District Education Officer is the controlling authority of this cadre. The senior and selection grade teachers form a divisional cadre and the Regional Director of Education is the controlling authority of this cadre. The headmasters form a State cadre and the director is its Controlling authority. 6. Rule 9 (1) of the Rules as substituted by the Notification No.437 published in the Gazette on 15-7-1988 read with subsequent Notification dated 6-7-1989, reads as under ; 7. The headmasters form a State cadre and the director is its Controlling authority. 6. Rule 9 (1) of the Rules as substituted by the Notification No.437 published in the Gazette on 15-7-1988 read with subsequent Notification dated 6-7-1989, reads as under ; 7. Rule 20 (1) of the Rules provides that in all such matter for whieh no specific provision has been made under the Rules, the provisions of bihar Service Code or other Codes including the Conduct Rules applicable to the Government employees of the State will be applicable. From the aforesaid provisions, I find that specific Provisions have been made in relation to initiation of disciplinary proceeding and awarding of punishment pursuant thereto including for suspension from service of assistant teachers under Rule 9 (1) (Kha) and thereunder the said power can be exercised only by the Additional Director of Education. Therefore, even if under the provisions of the Bihar Service Code or other relevant Rules relating to disciplinary proceeding the said power in relation to disciplinary proceeding and suspension is exercised by the appointing authority, the same will have no application in relation to the teaching and nonteaching employees of the nationalised secondary schools. 8. In this connection I may also refer to another notification dated 30th December, 1985, issued by the State Government wherein it has been provided that keeping in view the provisions of the Bihar non-Governmnt secondary Schools (Taking over of Management and Control) Act, 1981, and the rules framed thereunder, the Director of Secondary Education has been authorised to decide and take action in relation to appointment, promotion and disciplinary proceedings of headmasters and in relation to all matters relating to teaching and non-teaching employees of the said schools. In my opinion the general powers conferred under this notification has to be read as subject to specific powers conferred on other authorities under the Rules subsequent to the issue of this notification. This view has to be taken keeping in view two well established rules of interpretation namely, (i) generalibus specialia derogant (special provisions override general ones) and (ii) in case of inconsistency, the later provision impliedly repeals the earlier. 9. This view has to be taken keeping in view two well established rules of interpretation namely, (i) generalibus specialia derogant (special provisions override general ones) and (ii) in case of inconsistency, the later provision impliedly repeals the earlier. 9. In the above view of the matter, I am constrained to hold that the Director of Secondary Education has no authority to initiate a departmental proceeding or to pass an order of suspension as contained in Annexure-1 against the petitioner, who is an assistant teacher in a nationalised Secondary School. Accordingly, the order as contained in annexure-1 is quashed. But it will be open for the disciplinary authority, namely, the Additional Director of Education to pass appropriate orders in this respect. The writ application is, accordingly, allowed to the extent indicated above. Writ Allowed.