Rabindra Singh v. State Of Bihar — 1996 DIGILAW 103 (PAT)

Judgment A. K. Ganguly, J. 1. In this matter the writ petitioner prays for issuance of a writ of mandamus for a direction upon the respondents to pay the salary of the petitioner which is due from 18th December, 1989. The further prater made by the petitioner for setting an enquiry by a high official or by an appropriate authority to detect the interpolation made in the draft for payment order vide order dated 20th March, 1983 is not pressed at the time of hearing of this writ petition. 2. The petitioners case is that he obtained Master degree in Arts and was appiointed an Assistant Teacher on 15th march, 1981 in the Sharda Sanskrit Prath-mik-Sah-Madhyamik Vidyalaya, Afaur, District Saran (hereinafter referred to as the said School ). Further case of the petitioner is that he is still working in the said school. Further case of the petitioner is that prior to 1983, the said school was named as Sharda sanskrit Vidyalaya and the education was being imparted in the said School upto middle standard but since 5th March, 1983 the said School was recognised as High school and was named as Sharda Sanskrit prathmjk-Sah-Madhyamik Vidyalaya, Affaur, saran. "further case of the petitioner is that after appointment, the managing committe of the said school sent the name of the petitioner for approval by its resolution No.4 dated 25.3.1984 along with other teachers. 3. Drawing the attention of this court to annexure-2 learned counsel for the petitioner submitted that the Bihar Sansknit shiksha Board (hereinafter referred to as the said Board) granted permanent approval to the appointment of the petitioner vide its order dated 16lh April, 1934 (Annexure-2 ). The said order shows that the petitioner has been given approval by the said Board to his appointment against Asnatak Pad. Since the said approval the petitioner was being paid his salary as an assistant teacher in the said School till 17th december, 1989. Further case of the petitioner is that pursuant to the promulgation of the ordinance bearing Ordinance no.21 of 1993, the payment of salary of the petitioner along with others were heid up in view of the provisions contained in the said Ordinance. The said school is also one of the 429 schools which wene governed by the Ordinance at the relevamt point of time. 4. The said school is also one of the 429 schools which wene governed by the Ordinance at the relevamt point of time. 4. The petitioner asserts that in accordance with the enquiry made by a Connmittee headed by the District Magistrale, saran. a report dated 3rd July, 1992 was submitted and in the said report the name of the petitioner was also there against serial no.7. A copy of the said enquiry report has also been disclosed in the writ petition as Annexure-3. From a perusal of the said report it appears that the petitioners name was disclosed in the said list as one of the teachers/employees who was working in the said School. The petitioner has disclosed two such reports, one given by the District Magistrate and another given by the Regional Deputy director of Education, Saran Division, chapra. Another report was also submitted by the Secretary of the said Board in which the names of the teachers/employees, who were working in the 11 schools falling within the district of Ghapra was sent on 28th September, 1992 and the name of the petitioner appears in the said list also at serial no.7. The petitioner has disclosed that prior to filing of this writ petition, another writ petition was filed by the petitioner along with other six members of the staff of the said school on 14th September, 1992 which was numbered as C. W. J. C. No.9126 of 1992. The said writ petition was finally heard and disposed, of on 24.11.1992 with a direction upon the respondents authorities to consider the said report and upon consideration of the said report as also other relevant materials pass appropriate orders in respect of the payment of the petitioners salary with utmost expedition and preferably within two months from the date of receipt of a copy of that order. The petitioner has also disclosed that he along with seven other members filed another writ petition bearing c. W. J. C. No.3210 of 1989 before this Court for payment of their salary and the said writ petition was disposed of on 6th July.1989 by a Division Bench of this Court. The petitioner has also disclosed that he along with seven other members filed another writ petition bearing c. W. J. C. No.3210 of 1989 before this Court for payment of their salary and the said writ petition was disposed of on 6th July.1989 by a Division Bench of this Court. In the saicl order the Division Bench also held that the said Board has inflicted serious injury upon the petitioner by not ensuring monthly payment of their emoluments and as such the said Board was directed to release necessary fund to insure payment to the petitioner in accordance with law of all arrears and current salary within a period of one month from the date of passing of the said order A further direction was also given to continue such payment each month and the said Board was also directed to pay interest at the rate of 12 and half percent compoundable per annum. Now in order to canvass the injuries inflicted upon the petitioner, a copy of the said order has been annexed to the writ petition as Annexure-8. 5. The petitioner states that the impugned order at annexure-7 has been passed by the Additional Secretary, Human resources Development Department, government of Bihar, patna to the Chairman/secretary, Bihar Sanskrit shiksha board, Patna on 26th March, 1993 with which the impugned list of seven teachers has been annexed in which the name of the petitioner has been deleted. In the said list the name of one teacher has been shown as Ranjit Singh Asnatak (Vigyan ). It appears from the said impugned order Annexure-7 that the Additional Secretary also proposes to reply upon the report given by the District Magistrate and also the report given by the said Board. It has already been stated that in both the reports, the name of the petitioner figures. Therefore, there was no reason for omitting the name of the petitioner fron the list annexed to the impugned order (Annexure-7 ). 6. In this matter no counter affidavit has been filed by the said Board. It has already been stated that in both the reports, the name of the petitioner figures. Therefore, there was no reason for omitting the name of the petitioner fron the list annexed to the impugned order (Annexure-7 ). 6. In this matter no counter affidavit has been filed by the said Board. Learned counsel appearing for the said Board submitted that in the instant matter, copy of the writ petition along with all connected papers were in the custody of another lawyer who was previously engaged on behalf of the board and the same has not been made available to the present lawyer to take instruction from the Board in order to file counter affidavit. 7. Be that as it may, the Court has to proceed on the materials which are already on the record and in that view of the matter, this Court only considers the counter affidavit filed by the State Government in the matter and in the said counter affidavit no reason has been disclosed as to why the name of the petitioner which was in the lists submitted by the District Magistrate and the Regional Deputy Director of Education and also, by the said Board as one of seven teachers of the said school has suddenly been omitted by the impugned order. In the counter affidavit filed by the State government it has been stated that the Ordinance in question lapsed with effect from 1st May, 1992. The said counter affidavit also refers to the report sent by the District magistrate but it does not take into consideration the fact that in the said report the name of the petitioner was also there. The only averment made in connection with the petitioner in the said counter affidavit in paragraph 6 is to the effect that as the petitioner is not within the fold of seven persons as prescribed for teaching staff, the payment of salary of the petitioner is not possible. 8. In the rejoinder affidavit filed by the petitioner, the petitioner has disclosed another document which is at Annexure-10 to show that the said Board by its order dated 29th August, 1983 also recognised the services of the petitioner in the said school. 9. 8. In the rejoinder affidavit filed by the petitioner, the petitioner has disclosed another document which is at Annexure-10 to show that the said Board by its order dated 29th August, 1983 also recognised the services of the petitioner in the said school. 9. Learned counsel for the said Board has further stated that in the said school, there is no sanctioned post of science teacher but from the impugned order at Annexure-7 it appears that out of seven teachers mentioned the name of one science teacher has also been put. 10. Learned counsel for the petitioner further stated that he is not pressing his case against respondent no.8 and all the allegations or averments made by him in the writ petition and in the rejoinder affidavit against respondent no.8 be ignored by this court. In that view of the matter, this Court does not consider the case of the writ petitioner against respondent no.8 as is nought to be made out in the writ petition. 11. Be that as it may, this Court does no find any justification of omission of the name of the petitioner from the list of seven persons who are to be included within the list of seven persons which was fixed under the Ordinance as included in the Manak mandal. It is obviously true that the said list of teachers must be finalised by the Executive authority but in the matter of sudh preparation of list by the executive authority, the respondents cannot act in a manner which is wholly unreasonable and arbitrary. In the instant case the name of the petitioner, as would appear from the materials on record, was always included in the list submitted by the Regional Deputy director of Education, the list of the District magistrate, Chapra and also in the list of the Board. The services of the petitioner have also been recognized by the sad board as far back as in the month of April, 1982 and there is no dispute that the petitioner has been working as an approved teacher of the said School since 1984. In the background of these facts, the omission of the name of the petitioner from the list of teachers who are entitled to be paid their salary from the said school is wholly unreasonable and arbitrary. In the background of these facts, the omission of the name of the petitioner from the list of teachers who are entitled to be paid their salary from the said school is wholly unreasonable and arbitrary. Apart from thatt, this Court is also of the view that after the lapse of the Ordinance which has been admitted by the state Government in ilis counter affidavit, the State Government cannot give effect to the said Ordinance by referring to the Manak Mandal and on that basis denying the petitioner his right to get his salary. In this connection the petitioner has placed reliance on a decision of the division Bench of this Court in the case of subash Chandra and others Vs. State of bihar reported in 1994 B. B. C. J. , page 296; 1994 (2) PLJR 359 at paragraphs 102 and 106. The relevant observation at paragraph 106 of the said Judgment is quoted below : "there is absolutely no justification for non-release of the salary of the teachers who had been getting the same. In view of the fact that even according to the state of Bihar they were entitled to the payment of salary in the same manner which was being paid to them when the Ordinance 32 of 1989 did not come into force". 12. For the reasons aforesaid, the prayer of the writ petitioner in so far as he is entitled to be paid his salary is concerned, succeeds. This Court holds that the omission of the name of the petitioner from the list annexed to the impugned order is wholly unreasonable and arbitrary. This court further directs that the name of the petitioner must be included in the list which has been disclosed in the impugned order at Annexure-7. The impugned order, therefore, is modified to the extent indicated above. This writ petition is allowed to the extent indicated above. There will be no order as to cost. 13. However, it is made clear that any thing said in this Judgment will not have any adverse effect on the rights of respondent no.8.