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2005 DIGILAW 559 (PAT)

Mridula Kumari Sinha v. State Of Bihar

2005-06-27

NAVIN SINHA

body2005
Judgment Navin Sinha, J. 1. Heard Learned Counsel for the petitioner and the learned Counsel for the State. 2. The petitioner was appointed as an Assistant Teacher in the Vivekanand Madhya Vidyalaya, Mithapur, Patna, a minority aided school, duly recognised by the respondents. The appointment came to be made in pursuance of an advertisement published in the year 1977 on the recommendation of the Selection Committee by an order dated 18-5-1978 issued by the Managing Committee in consequence thereof. The appointment of the petitioner was forwarded for approval to the District Superintendent of Education who vide his communication dated 29-8-1989 accorded approval to the appointment recording that the petitioner held a Matric Handicraft trained qualification. The petitioner then sought payment of salary and the pay statement of the petitioner was then prepared and forwarded to the Director Primary Education for approval sometime in the year 1994. The matter then remained pending at this stage despite representations by the petitioner. 3. The respondents would contend that in terms of the necessary circulars of the State Government issued as far back as 1970 it was only the general trained teachers who could have been appointed. The petitioner being only Matriculate Handicraft trained was thus not eligible for appointment as an Assistant Teacher in terms of the Government circular. The approval accorded for her appointment by the then District Superintendent of Education as far back as 1989 was thus contrary to law. For this reason the order of appointment of the petitioner being contrary to law question of any fixation of pay for payment of salary simply does not arise. Under these circumstances on examination of the matter appropriate orders have been passed on 11.5.2005 as annexed at Annexure-C to the show cause filed on behalf of the respondent No. 4 District Superintendent of Education. This order would set at naught entire service of the petitioner from 1978 including the recommendation and approval of her appointment made as far back as 1989. 4. This Court finds that the approval in question was accorded by the District Superintendent of Education. Annexure-C which seeks to set at naught the appointment and approval of the service of the petitioner is also by the District Superintendent of Education. The concerned respondent is virtually challenging his own order. 4. This Court finds that the approval in question was accorded by the District Superintendent of Education. Annexure-C which seeks to set at naught the appointment and approval of the service of the petitioner is also by the District Superintendent of Education. The concerned respondent is virtually challenging his own order. This Court further finds that from 1978 to the year 2005, a period of nearly 26 years, is an inordinately long period of time for which the petitioner has continued in service. It cannot be doubted that considering this period the petitioner has certainly acquired such proficiency as a teacher which she was expected to gain by undergoing a training prior to her appointment. It cannot be doubted that as of date the petitioner would be better qualified as a teacher based on her experience than a novice who would be appointed today as a teacher by having completed the teacher training course. This Court would further find that the petitioner was not unqualified person but held qualification of Matriculate Handicraft trained. This aspect of the matter was not lost on the respondents when they took the decision to confirm her services in the year 1989. This Court at this stage would not consider it necessary to dwell upon the necessity of the qualification of a trained teacher and a teacher who held the qualification of Matric Handicraft trained, for the reasons as mentioned above that the petitioner was not completely untrained hand. In the circumstances, this Court is satisfied that it is too late in the day for the respondents to completely non-suit the petitioner for mere technicality. 5. Learned Counsel for the respondents very fairly did not dispute the harshness of the situation of the petitioner were to be non suited on the aforesaid objection. This Court in the circumstances would conveniently refer to the judgment reported in - Miss Shainda Hasan V/s. State of Uttar Pradesh and Ors. and quote para 8 of the same : "The case was taken up in Chambers on April 20, 1990 when Mrs. Shobha Dixit learned Counsel for the State after obtaining instructions from the University agreed with us that asking the appellant to leave the job after six teen years would be doing injustice to her." 6. The writ application has therefore to be allowed in the peculiar facts of the case. Shobha Dixit learned Counsel for the State after obtaining instructions from the University agreed with us that asking the appellant to leave the job after six teen years would be doing injustice to her." 6. The writ application has therefore to be allowed in the peculiar facts of the case. The order dated 11.5.2005 bearing No. 1852 is hereby quashed. The respondent No. 2 is therefore directed to take a final decision on the pay fixation of the petitioner in accordance with the proposition forwarded to him in respect thereof. It would be the case of the petitioner that she has not been paid her salary despite proposition having been so forwarded in the year 1994. This Court would therefore expect the respondent No. 2 to take an appropriate decision and pass final orders thereupon within a period of eight weeks from the date of receipt or communication of a copy of this order. It is expected that the consequential benefits would be made available to the petitioner thereafter without delay. This application is accordingly allowed.