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2002 DIGILAW 14 (PAT)

State Of Bihar v. Rakesh Kumar

2002-01-03

NAGENDRA RAI, R.S.GARG

body2002
Judgment 1. The appeal is barred by limitation. 2. After having heard learned counsel for the parties and taking into consideration the averments made in the limitation petition, we are of the view that sufficient ground has been made out to condone the delay in filing this appeal. Accordingly, the delay in filing this appeal is condoned. 3. The State of Bihar is aggrieved by the order dated 17.10.2001 passed by the learned Single Judge in CWJC No. 11606 of 2001 by which he has directed the District Education Officer, Sitamarhi, appellant No. 4, for payment, of salary to the writ petitioner/respondent from 26.6.1995 till date. 4. The facts necessary for disposal of the present appeal, are that the writ petitioner/respondent filed the said writ application before this Court for a direction to the appellants to pay arrears of salary from 26.6.1995 when he claims to be appointed on class III post till date with interest of 25% per annum and also for current salary. The assertion of the respondent is that in pursuance of a local advertisement published in 1995 from the office of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur, he applied along with others and his name was called for from employment exchange. He along with others was interviewed and was appointed on the post of Clerk vide order dated 26.6.1995, which has been annexed as Annexure-2 to the writ application. The respondent was posted in Sarjoo High School. Sursand, but his joining was not accepted as no post of Clerk was vacant. Then he approached the District Education Officer, Sitamarhi to post him in some vacant place, but no decision was taken for his posting. Then he approached the higher authority and by letter dated 31.12.1998, the District Education Officer, Sitamarhi ordered for his posting in High School, Maneshmas Asthan, Sitamarhi where he joined on 2.2.1999. Thereafter he approached the authority for payment of salary, but the same was not paid and hence he filed the writ application. 5. Three sets of counter affidavits have been filed on behalf of appellants 3, 4 and 5. Their stand is that according to Rules the appointing authority is the District Education Officer who has to make appointment from the panel prepared in terms of the relevant rules. The respondent was not appointed according to the said Rules. 5. Three sets of counter affidavits have been filed on behalf of appellants 3, 4 and 5. Their stand is that according to Rules the appointing authority is the District Education Officer who has to make appointment from the panel prepared in terms of the relevant rules. The respondent was not appointed according to the said Rules. One Bhola Ram District Education Officer claiming himself as Regional Deputy Director of Education, made appointment of the respondent without following any procedure provided by law even though no vacant post was available which is apparent from the fact that when the respondent went to join the post for which he was appointed no post was vacant. Their further stand is that according to own showing of the respondent, he has not worked from 26.6.1995 till the date of his joining i.e. 2.2.1999 and as such there was no question for payment of salary to him. 6. The learned Single Judge after having observed that he was not going into the question of the appointment of the appellant, directed for payment of salary on the ground that since the appellant was appointed and continued on the post even though not allowed to join, he was entitled to payment of salary right from the appointment, i.e. 26.6.1995. 7. Learned counsel for the appellants-State submitted that Rule 8 of the Bihar National High Court School (Condition of Service) Rules, 1983 govern the procedure for appointment on Class III post by promotion and direct recruitment in the school and according to the said Rule, the appointment on Class III post shall be made from the district panel by the District Education Officer. The said panel has to be prepared by a Committee constituted for the said purpose. The said procedure was not followed in this case and the respondent has been appointed by the then Regional Deputy Director of Education, Tirhut Division who has no power to appoint the respondent. As the appointment of the respondent is itself illegal from its very inception, there was no question for payment of salary to him. 8. The learned counsel appearing for the respondent on the other hand submitted that the question of genuineness of the appointment of the respondent was not in controversy. As the appointment of the respondent is itself illegal from its very inception, there was no question for payment of salary to him. 8. The learned counsel appearing for the respondent on the other hand submitted that the question of genuineness of the appointment of the respondent was not in controversy. The only question is as to the payment of salary and as the appointment has not been cancelled the respondent is entitled to salary as ordered by the learned Single Judge. He also submitted that in similar case [in the case of Ravindra Kumar Tiwary V/s. The State of Bihar & others (CWJC No. 5003 of 1999)] the termination of the appointment was set aside by this Court and upheld in LPA and the SLP against that was also dismissed by the Apex Court and as such the respondent is entitled to payment of salary. 9. The question involved in this appeal is as to whether direction for payment of salary of the respondent is to be given or not. 10. The payment of salary to an employee depends upon his appointment to a post. If the appointment is legal and valid then he is entitled to salary. If the appointment is not according to law and has been done by authority not competent to appoint, then no direction can be given by this Court as that will amount to direction for payment of salary not entered into service according to law. In this case, according to the appellants-State, the appointment of the respondent is illegal. In such a situation we are of the view that first this question is to be decided and if it is found that the appointment of respondent is legal and valid, then the question for payment of salary will arise. Even in that case also salary cannot be paid for the entire period unless the authorities come to a conclusion that the respondent was prevented from discharging his duties due to inaction of the authorities and when the respondent was not allowed to join he took steps within reasonable time ventilating his grievance before the authorities. 11. Even in that case also salary cannot be paid for the entire period unless the authorities come to a conclusion that the respondent was prevented from discharging his duties due to inaction of the authorities and when the respondent was not allowed to join he took steps within reasonable time ventilating his grievance before the authorities. 11. Thus, we are of the view that the Director, Secondary Education, Human Resources Department, Government of Bihar, Patna appellant No. 2, should first decide the question as to the validity of the appointment of the respondent and on such decision being taken, the decision with regard to payment of salary is to be taken. If the appointment of respondent is found to be valid, then the appellant No. 2 will consider the question for payment of salary. The appellant No. 2 should take a final decision in the matter within a period of three months from the date of production/receipt of a copy of this order. 12. It is made clear that we have not expressed any opinion as to the genuineness of the appointment of the respondent and the authority will consider and decide the same on the basis of the materials, orders produced before it. 13. In the result, the impugned order dated 17.10.2001 passed in CWJC No. 11606 of 2001 by a learned Single Judge of this Court is set aside and the appeal is allowed with the aforesaid direction/observation.