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1997 DIGILAW 276 (PAT)

Basuki Nath Pathak v. State of Bihar

1997-04-04

SUDHANSU JYOTI MUKHOPADHAYA

body1997
JUDGMENT S.J. MUKHOPADHAYA, J. 1. The petitioner, Basuki Nath Pathak has challenged the order dated 16.2.1990 passed by the respondent-Special Director, Secondary Education, Bihar, as contained in Annexure-1. By the impugned order the respondent-Special Director, Secondary Education while allowed the appeal which was filed by the Respondent No. 4, Mithilesh Mishra, set aside the order passed by the Chairman, Sanskrit Shiksha Board, contained in Memo No. 7819 dated 13.9.1988, which was in favour of the petitioner. 2. The brief facts of the case show that both the petitioner and Respondent no. 4 were appointed in Radha Krishna Sanskrit Prathmik Sah Madhya Vidyalaya, Jamalpur, Munger on 1.4.1977. At the time of appointment the petitioner had passed only first part of Shastri examination and had appeared in the second part of the said examination. The appointment of petitioner was made on honorary basis. It was further stipulated that after passing the second part of Acharya Examination the appointment of the petitioner is to be treated as a regular and valid. The petitioner passed the second part of the said examination in August, 1977. The school was a Primary Sanskrit School at that point of time. For the said reason the Vice Chancellor of Kameshwar Singh Darbhanga Sanskrit University, Darbhanga approved the appointment of the petitioner as a second Sanskrit Teacher by letter dated 26.4.1982, with effect from 1.9.1978. At the time of approval the qualification of the petitioner was Acharya. According to the petitioner, his appointment was so approved in the then scale of Rs. 440-890/-, which was revised to Rs. 630-1080/-. 3. The post of Headmaster of the School fell vacant on 31.7.1983. The petitioner was treated as senior most teachers and was promoted to the post of Headmaster on 7.8.1983. The school was made Primary-cum-Middle School by that time, so the power of approval stood vested with the Bihar Sanskrit Shiksha Board ('the Board' for short). The Board by its order dated 10.9.1983 approved the promotion of the petitioner placing him on probation for one year. This order of approval was challenged by the respondent no. 5, Shri Mithilesh Mishra in CWJC No. 1363 of 1984. This Court by order dated 25.4.984 disposed of the said writ petition directing him to file representation before the Board with a direction to the Board to decide the same. This order of approval was challenged by the respondent no. 5, Shri Mithilesh Mishra in CWJC No. 1363 of 1984. This Court by order dated 25.4.984 disposed of the said writ petition directing him to file representation before the Board with a direction to the Board to decide the same. The Board heard both the petitioner and Respondent No. 5 and decided the same by order, contained in memo dated 29.10.1984. The petitioner, Shri Pathak was declared senior to respondent, Shri Mishra. The Respondent No. 5, Shri Mishra, who was under suspension at that point of time, was reinstated on revocation of suspension. The Managing Committee was given liberty to fill up the post of Headmaster on regular basis by appointment through advertisement or by promotion. The petitioner was ordered to function as Incharge Headmaster of the School. 4. It appears that the Managing Committee of the school vide resolution dated 15.7.1988 promoted the petitioner and forwarded the matter to the Board for its approval. The Board by its order dated 13.9.1988 approved the promotion of petitioner to the post of Headmaster. The respondent No. 5 thereafter filed appeal against the order of approval dated 13.9.1988 aforesaid. In the said appeal, after hearing the parties, the respondent-Special Director, Secondary Education passed the impugned order, as contained in Memo dated 25.2.1990, which is under challenge. By the impugned order the Special Director while took into note the dates, on which the petitioner and respondent no. 5 were appointed the date of passing of different examinations and the date of approval of their appointment, allowed the appeal in favour of the Respondent no. 5 setting aside the order dated 13.9.1988. 5. According to the respondents, the petitioner was junior to Respondent No. 5 as a Teacher. It was stated that the petitioner was illegally appointed as Headmaster of the School because he does not hold the requisite qualification of Acharya with first class. It was further alleged that the petitioner passed Prachin Shastri and Prachin Acharya examinations with third class. The seniority has been claimed by Shri Mishra on the ground that his appointment was approved with effect from 1.4.1977, prior to the petitioner whose appointment was approved subsequently with effect from 1.9.1978. 6. The petitioner has denied the averment made by the respondents, so far as his qualification is concerned. The seniority has been claimed by Shri Mishra on the ground that his appointment was approved with effect from 1.4.1977, prior to the petitioner whose appointment was approved subsequently with effect from 1.9.1978. 6. The petitioner has denied the averment made by the respondents, so far as his qualification is concerned. It was pointed out that the petitioner is Acharya with second class. Further, according to the counsel for the petitioner, there is no rule laid down by the State laying down the qualification of Acharya with first class of appointment promotion to the post of Headmaster. 7. The counsel for the respondents produced a copy of resolution dated 29.6.1981, by which the respondent State framed the service rules for teachers of Sanskrit Schools, including the rule relating to approval of appointment of the Teachers and Headmaster. By said rule the qualification of Shastri or Acharya with second class has been laid down for appointment/promotion to the post of Headmaster. The rules so relied by the respondents itself counter the submission as made by the counsel for the respondent. In the aforesaid background the submission of the respondents that the petitioner is not qualified for promotion to the post of Headmaster is rejected. 8. So far as the seniority is concerned, according to this Court, the respondent no. 5 cannot claim seniority over the petitioner. Both of them were appointed on 1.4.1974 as Teacher. Though the appointment of Respondent No. 5 was approved prior to the date of approval of the petitioner, but petitioner having been appointed against the higher grade, (in the scale of Rs. 630-1080/-) than the Respondent No. 5, Shri Mishra (appointed in the lower grade of Rs. 580-860/-), the petitioner will rank senior to Respondent No. 5. 9. That apart, it will be evident from the impugned order, that while the respondent-Special Director gave detail relating to date of appointment, approval and passing of different examinations with respect to both the petitioner and. the Respondent no. 5, no specific finding has been given by him as to whether the respondent no. 5 will rank senior to the petitioner or not, and whether the petitioner is qualified for appointment/promotion to the post of Headmaster or not. 10. For the reasons stated above, the impugned order, contained in Memo dated 24.2.1990 (Annexure-1) is set aside. 11. This writ petition is allowed. 5 will rank senior to the petitioner or not, and whether the petitioner is qualified for appointment/promotion to the post of Headmaster or not. 10. For the reasons stated above, the impugned order, contained in Memo dated 24.2.1990 (Annexure-1) is set aside. 11. This writ petition is allowed. However, on the facts and circumstance of the case, there will be no order as to costs.