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1996 DIGILAW 414 (PAT)

Shyam Shanker Pandey v. State of Bihar

1996-07-10

J.N.DUBEY

body1996
JUDGMENT Dr. J.N. Dubey, J. This writ petition is directed against the order dated 19th September 1985 of the respondent no.2, the Director, Secondary Education, Bihar, transferring the petitioner from High School Chakiya Chaturvedi, Siwan to High School Raj Batraha, Gopalganj 2. The case of the petitioner is that he was appointed as Assistant Teacher in High School Chakiya Chaturvedi on 10th April 1964. Jai Mangal Ojha, Incharge Headmaster of the school, resigned on 13th February 1974 and the petitioner was appointed as Acting Headmaster in his place by the Committee of Management on 11th February 1974. Subsequently, Jai Mangal Ojha filed an appeal to the District Control Committee, claiming that he had not resigned from the post of Headmaster, which was allowed on 14th July 1977. Accordingly, he was again posted at Headmaster of the school. One Satyadeo Sinha filed appeal to the Bihar Secondary Education Board against the order of the District Control Committee, which was allowed on 2nd June 1979 with the finding that although Jaimangal Ojha had actually resigned on 10th February 1974, promotion of Satyadeo Sinha in his place was illegal. However, the Board directed that till his transfer to some other school or appointment of a regular Headmaster Jai Mangal Ojha will continue to function as Incharge Head mastered of the school. Satyadeo Sinha filed C.W.J.C. 460 of 1980 in this Court in which the petitioner also intervened at the time of hearing. The writ petition was dismissed on 1st July 1980 with a direction to the respondents to take final decision regarding appointment of regular Headmaster was appointed in the school nos Jai Mangal Ojha was transferred, with the result he continued to function as Incharge Headmaster of the school. The petitioner filed several representation but with no result. In the meantime the school was taken over by the State Government with effect form 2nd October 1980. 3. Jai Mangal Ojha retired on attaining the age of superannuation on 31st January 1982 and the petitioner was appointed Acting Headmaster in his place on 1st February 1982 and since then he has been continuously working as Acting Headmaster of the school. On 3rd January 1983 the District Education Officer recommended the case of the petitioner to the Deputy Director, Secondary Education for confirmation on the post of Headmaster of the school. On 3rd January 1983 the District Education Officer recommended the case of the petitioner to the Deputy Director, Secondary Education for confirmation on the post of Headmaster of the school. When no action was taken on the recommendation of the District Education Officer in spite of repeated representations of the petitioner, he filed C.W.J.C. No. 1567 of 1983 in this Court which was disposed of on 10th May 1983 with the direction to the petitioner to file a representation before the respondent no.2 to be decided by him within three months. Petitioner, accordingly, filed a representation to the respondent no.2 but it was not disposed of in spite if repeated reminders, forcing him the file another writ petitioner vide CWJC. No. 5679 of 1983 in this Court. Respondent no.2 on coming to know of filing of the writ petitioner, rejected the claim of the petitioner on 6th February 1984 for regularisation on the post of Headmaster of the school with effect from 11.2.1974. The writ petition was listed for admission on 15th February 1984 and was dismissed as withdrawn with permission to file fresh writ petition. He filed C.W.J.C. No. 1822 to 1985, which was also dismissed as withdrawn on 6th May 1985 with an observation that the petitioner will be at liberty at approach the authority concerned for the redress of his grievances and thereafter this Court, if necessary. Accordingly, the petitioner filed representation to the respondent no. 2 on 14th July 1985 requesting him to regularise the appointment of the petitioner on the post of Headmaster of the school with effect from 11.2.1974. However, respondent no.2 instead of deciding the representation of the petitioner for regularisation on the post of Headmaster of the school, transferred him as Assistant Teacher the High School Raj Batraha, Gopalganj Hence this petitioner 4. Heard the learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner contended that in view of the fact that vacancy on the post of Headmaster of the school occurred prior to the taking over of the school by the State Government on 2nd October 1980 the post of Headmaster should be filled from amongst the teachers of the school, treating it as a separate unit as per circular no.510 dated 20.11.1981 of the State Government and not from the consolidated list to be prepared at the State level in terms of 1983 Rules. According to the learned counsel the Division Bench while admitting this writ petition on 8th April 1986 also directed that it will be heard along with C.W.J.C. No.6024 of 1984. The connected writ petition was allowed by this Court on 14th February 1995 but as this writ petition was not listed along with that writ petition through some inadvertence, it could not be decided at that time. In other words, according to the learned counsel this writ petition in concluded by the decision of this Court in C.W.J.C. No. 6024 of 1984. On the other hand, learned State counsel contended that the case of the petitioner has already been considered and rejected by the respondent no. 2 and as such, he is not entitled for any relief. 6. Having considered the argument of the learned counsel I am of the opinion that the case of the petitioner is squarely covered by the decision of this Court in CWJC. No. 6024 of 1984. As stated above, Jai Mangal Ojha, who was functioning as Incharge Headmaster resigned from the post on 10.2.1974 and his claim that he had not actually resigned from the post was finally rejected by the Secondary Education Board on 2nd June 1979. This being so, the vacancy on the post of Headmaster would relate back to 10.2.1974 when Jai Mangal Ojha resigned irrespective of the fact that he continued to function as Incharge Headmaster of the school under the orders of the District Control Committed and the Board till his attaining the age of superannuation. Once it is held that the vacancy on the post of Headmaster of the school occurred prior to 2nd October 1980, it cannot be reasonably disputed that this case is squarely covered by the decision of this Court in CWJC No. 6024 of 1984 Relevant portion of which reads thus :- “The fact that the vacancy of the post of Headmaster in the school occurred prior to October 2, 1980, is not in dispute. It is also not disputed that such schools are to be treated as separate unit and post of Headmaster to be filled from amongst the teachers of the same very school, as prescribed in Circular no.510 dated November 20, 1981. It is also not disputed that such schools are to be treated as separate unit and post of Headmaster to be filled from amongst the teachers of the same very school, as prescribed in Circular no.510 dated November 20, 1981. It is further not in dispute that notwithstanding the coming into force of the 1983 Rules the said circular will continue to be applicable and appointment on the post of Headmaster in the concerned school will continue to be made by promotion from amongst the teachers of same very school. In that view of the matter that part of the order of the Director directing that the post shall be filled up from the consolidated list of Headmaster to be prepared at the State level cannot be sustained.” 7. There is no substance in the argument of the learned State counsel that the claim of the petitioner has been finally rejected by the respondent no. 2 and as such, he is not entitled for any relief. As would appear from the narration of the facts of the case, the petitioner has been running from pillar to post for justice but without success. The respondents not only did not decide the representations filed by the petitioner within reasonable time but they also did not brother for the repeated directions of the Court of decide the matter finally within the specified period, with the result Jai Mangal Ojha, whose claim for holding the post of Headmaster was finally rejected by the Secondary Education Board on 2nd June 1979, managed to hold the post till the date of his retirement on 31st January 1982. I do not find any justification either for not transferring Jai Mangal Ojha from the school or for not making regular appointment on the post of Headmaster in pursuance of the order dated 2nd June 1979 of the Board for such a long time. The failure of the respondents to comply with the order of the Secondary Education Board for so many years cannot be justified under any circumstances. I have no hesitation in holding that the respondents have deliberately tried to held Jai Mangal Ojha at the cost of the petitioner. 8. In view of Circular no. The failure of the respondents to comply with the order of the Secondary Education Board for so many years cannot be justified under any circumstances. I have no hesitation in holding that the respondents have deliberately tried to held Jai Mangal Ojha at the cost of the petitioner. 8. In view of Circular no. 510 dated 20th November 1981 of the State Government the post of Headmaster in the school has to be filled from amongst the teachers of the school treating it to be a separate unit. It is not disputed that the petitioner is not only senior most teacher in the school but is the only eligible person for appointment on the post of Headmaster. 9. Since the petitioner was entitled to be considered for promotion to the post of Headmaster in the school, he could not be legally transferred to any other school so as to deprive him of the chance of his promotion. This being so, the order of the respondent no.2, transferring the petitioner form High School Chakiya Chaturvedi, Siwan to High School Raj Batraha, Goapalganj is patently erroneous and is liable to quashed. 10. In the result the writ petition succeeds and is allowed. The order dated 19th September 1985 of the respondent no. 2 transferring the petitioner from High School Chakiya Chaturvedi, Siwan to High School Raj Batraha, Goapalganj is quashed. The respondents are directed to consider the case of the petitioner for promotion on the post of Headmaster of High School Chakiya Chatuvedi, Siwan treating it to be a separate unit in the light of observations made above. No order as to costs.