Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 152 (PAT)

Deo Nath Singh v. State Of Bihar

2005-02-11

CHANDRAMAULI KR.PRASAD

body2005
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of a writ in the nature of certiorary for quashing the order dated 11th of November, 1999 (Annexure-12) whereby the service of the petitioner as Assistant Teacher has been terminated. 2. Facts necessary for the decision of the present writ application are that by order dated 15th of June, 1985 (Annexure 1), petitioners were appointed as Assistant Teacher in Matric untrained scale and posted at Government Basic School, Dharampur, in the district of Samastipur. Lateron, by order dated 3rd of June, 1989 (Annexure 3), services of 26 teachers were terminated which included Nirmala Sinha, Suresh Chandra Jha, Ramprit Thakur, Ramesh Kumar Mishra, Md. Ashfaque, Renu Kumari, Mahboob Alam, Amir Chandra Manjhu, Abdul Karim, Dinesh Chandra Pandey, Ujagar Mahto, Quamruzzaman and Amrendra Bahadur as also the petitioner. Petitioner, Deo Nath Singh, aggrieved by the same, preferred CWJC No. 6469 of 1989 before this Court. It seems that in view of stay order passed by this Court by order dated 7th of February, 1990 (Annexure 5), petitioner was re-instated in service till further orders. The writ application filed by the petitioner ultimately came up for consideration and by order dated 24.6.1991 (Annexure 4), the order terminating his service was quashed on the ground that before doing so, petitioner was not given opportunity. However, writ application filed by other persons remained pending and CWJC No. 6543 of 1989, Ramesh Kumar Mishra V/s. The State of Bihar and Ors., and CWJC No. 6577 of 1989; Amirchand Manjhi and Ors. V/s. The State of Bihar and Ors., were disposed of by common order dated 7th of August, 1997 (Annexure 10), inter alia, observing as follows : "6. Having heard the parties, I direct the authorities to take into note the subsequent development and Acts that the petitioners have now obtained qualification of training and further taking into note that they are continuing in the services for about eleven years, they will decide the issue taking a lenient view in the matter. It is further observed that the impugned order dated 3rd January, 1989 having not been given effect to for about eight years, the same shall not be given effect at this belated stage." It seems that similar orders have been passed in the writ petitions filed by other Assistant Teachers whose services were terminated. It is further observed that the impugned order dated 3rd January, 1989 having not been given effect to for about eight years, the same shall not be given effect at this belated stage." It seems that similar orders have been passed in the writ petitions filed by other Assistant Teachers whose services were terminated. In the supplementary counter affidavit filed on behalf of respondent No. 3 it has been admitted that in view of such orders passed by this Court, several Assistant Teachers are still in service. It is relevant here to state that while setting aside the order of termination dated 2nd of June, 1989, this Court gave opportunity to the respondents for taking action in accordance with law, in view of the opportunity given, a show cause notice was issued and ultimately, by the impugned order, his service has been terminated on the ground that the authority by whom the petitioner was appointed, is not the competent authority, petitioner did not possess the minimum qualification that is, training for appointment and before appointing the petitioner, neither any advertisement was issued nor the names were celled for from the Employment Exchange or merit list was prepared by the Divisional Establishment Committee. Petitioner was sent for training but before he could appear and successfully pass the training examination, his service has been terminated and, therefor, he had not passed the training examination. 3. Mr. Chitranjan Sinha, Senior Advocate, appearing on behalf of the petitioner contends that the case of the petitioner stands on the same footing as that of the persons enumerated above having been appointed in the same manner as those persons. He points out that in view of the observation of this Court in CWJC No. 6543 of 1989 and analogous cases, (Annexure 10) Assistant Teachers whose services were terminated along with the petitioner, have been allowed to continue in service, whereas the service of the petitioner has been terminated and for that only justification is that his case was taken up by this Court earlier, whereas the case of other persons similarly situated were taken up later. In such circumstance, he points out that the termination of the service of the petitioner shall be wholly inequitable. In such circumstance, he points out that the termination of the service of the petitioner shall be wholly inequitable. In support of his submission, he has placed reliance on a judgment of this Court in the case of Shailendra Kumar v. The State of Bihar and Ors., 2004 (3) PLJR 142 , and my attention has been drawn to para 7 of the judgment which reads as follows : "7. From the facts stated above, the case of the petitioner appears to be at par with those persons, who have been absorbed pursuant to the direction issued by this Court in contempt proceeding. Now denial of the benefit of absorption to the petitioner, thus would be violative of Art. 14 of the Constitution." Junior counsel to Standing Counsel No. Ill, however, appearing on behalf of the respondents, submits that the petitioners appointment was absolutely illegal and has rightly been terminated and Art. 14 of the Constitution of India shall not come to the aid of the petitioner as it is well settled that the benefits extended to some persons in illegal or irregular manner cannot be claimed by a citizen on the plea of equality. In support of the submission, he has placed reliance on a judgment of the Supreme Court in the case of State of Bihar and Ors. V/s. Kameshwar Prasad Singh and Ors., 2000 (3) PLJR 81, and my attention has been drawn to the following passage from the said judgment : "28. The concept of equality as envisaged under Art. 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of the one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh and Ors. V/s. NDC and Ors., 1996 (2) SCC 459 , held that citizens have assumed wrong notions regarding the scope of Art. 14 of the Constitution which guarantees equality before law to all citizens. In this regard this Court in Gursharan Singh and Ors. V/s. NDC and Ors., 1996 (2) SCC 459 , held that citizens have assumed wrong notions regarding the scope of Art. 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Art. 14 of the Constitution by way of writ petition filed in the High Court." Yet another decision on which reliance has been placed, is the judgment of the Supreme Court in the case of V.R. Vishwanatha Pillai and Ors. V/s. State of Kerala and Ors., 2004 (2) PLJR 106 (SC). My attention has been drawn to the following passage from paragraph 19 of the judgment, which reads as follows : "19. ..............A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court . would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud." 4. Having given my anxious considerations to the rival submission, I am of the opinion that upholding the termination of the service of the petitioner shall be wholly inequitable. In respect of other teachers similarly situated, this Court observed that teachers having continued in the service for about eleven years, the issue of termination of service be decided taking a lenient view. It is not in dispute that those teachers have been allowed to continue in service. I am of the opinion that the petitioner should be relegated to the same fate as those of the teachers who are still continuing in view of the observation made by this Court. 5. In the present case other teachers are not continuing in service on account of any order passed by the State Government after termination of their services but because of the direction of this Court. 5. In the present case other teachers are not continuing in service on account of any order passed by the State Government after termination of their services but because of the direction of this Court. In fact the case of the petitioners is squarely covered with the cases of those teachers, who are continuing in service in view of the observation of this Court. In the case of Kameshwar Prasad Singh and V. Vishwanath Pillai, (supra), the Supreme Court was considering the claim based on an illegal action of the State Government. Here relief is sought for pleading parity with other cases decided by this Court on same fact and hence, decisions relied on do not go against the petitioner. As I have accepted the prayer of the petitioner being guided by the principle of parity, I hasten to add that in case respondents intend to proceed against such teachers, who are continuing in service by virtue of the order of this Court, petitioner shall have the same fate. 6. In fairness to Mr. Sinha, he states that he is not in a position to assail the reasoning given in the order terminating the petitioners service. As I have found that allowing termination of petitioners service shall be inequitable and at the same time, the reason assigned for termination being valid, I am of the opinion that the petitioner shall not be entitled for the back wages for the period he remained out of employment on account of termination of service. However, such period shall be counted for other purposes. 7. In the result, the application is allowed, the impugned order is set aside and the petitioner is directed to be re-instated with the direction aforesaid. However, in the facts and circumstances of the case, there shall be no order as to cost.