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Jharkhand High Court · body

2006 DIGILAW 896 (JHR)

Taleshwar Prasad Mahto v. State Of Jharkhand

2006-07-19

PERMOD KOHLI

body2006
JUDGMENT Permod Kohli, J. 1. Petitioner is an Assistant Teacher in the substantive rank and was posted, as such in the Government Boys High School, Hazaribag on 19th of August, 1983. The Principal of the School Jai Govind retired in the year 1999. In absence of the appointment of any regular Principal, petitioner being the senior most Teacher of the School was made in-charge Principal, vide memo No. 626 dated 09th of June, 1999 and he took over the charge on the following date i.e. on 10th of June, 1999 and since then he continued to discharge the duties of the Principal. He was also conferred the power of Drawing and Disbursing Officer by the Government of Bihar, Patna vide Memo No. 215 dated 30th of March, 2000. While the petitioner was acting as In-charge Principal of the School, the State Government issued Notification No. 1620 dated 18th of June, 2005, whereby several officers of the Human Resources Development Department are transferred. Respondent No. 4, who is an Officer of the Jharkhand Education Service Class II and posted as District Superintendent of Education, Deoghar has also been transferred and posted as Principal, Government Boys High School, Hazaribagh in place of the petitioner vide the aforesaid notification dated 18th of June, 2005. His name figures at Serial No. 31 of the aforesaid Notification. Petitioner is aggrieved of the transfer and posting of the Respondent No. 4 to the post of the Principal in place of the petitioner. According to the petitioner, Respondent No. 4 is a member of the Jharkhand Education Service Class II and is functioning as District Superintendent of Education, Hazaribagh. Petitioner is aggrieved of the transfer and posting of the Respondent No. 4 to the post of the Principal in place of the petitioner. According to the petitioner, Respondent No. 4 is a member of the Jharkhand Education Service Class II and is functioning as District Superintendent of Education, Hazaribagh. He cannot be posted and transferred to the post of Principal under the Rules, It is further case of the petitioner that the post of Principal, which also belongs to Jharkhand Education Service Class II can only be filled up in accordance with the Jharkhand/Bihar Education Service (Class I) and Jharkhand/Bihar Education Service (Class II), Recruitment Rules, 1973, whereunder the posts of Principal is required to be filled up, 80 per cent by promotion of Officers of Upper Division of the Subordinate Education Service (Teaching Branch) in accordance with Rule 4 Part III and rest 20 per cent is to be filled up by open advertisement in accordance with Rule 3 Part V. It is, accordingly, contended that Respondent No. 4 is not eligible to be posted to the post of Principal, as he does not fall in any of the categories provided under the Rules. 2. The State has resisted the claim of the petitioner. It is stated that the post of Principal falls in Class II of Jharkhand Education Service and petitioner, being member of the Subordinate Education Service has no right to hold the post of Principal though he was allowed to function as In-charge Principal in absence of a regular incumbent to occupy the post. According to the Official Respondent, Respondent No. 4 being the member of Jharkhand Education Service Class II, which is equivalent in status and scale of the Principal can be posted against the posts of Principal. In regard to the contention of the petitioner that he is in the feeding channel of Principal and being the senior most Assistant Teacher in the Subordinate service which constitute the feeding channel, it is stated that as and when promotions will be made to the posts of Principal from the promotional quota, petitioner shall be accorded consideration in accordance with the Rules. 3. Under Jharkhand/Bihar Education Service (Class I) and Jharkhand/Bihar Education Service (Class II), Recruitment Rules, 1973 there are various sources of recruitment as provided under Rule 3 for recruitment/appointment to Bihar Education Service Class I and Bihar Education Service Class II. 4. 3. Under Jharkhand/Bihar Education Service (Class I) and Jharkhand/Bihar Education Service (Class II), Recruitment Rules, 1973 there are various sources of recruitment as provided under Rule 3 for recruitment/appointment to Bihar Education Service Class I and Bihar Education Service Class II. 4. Rule 4 of the aforesaid Rules is relevant for purposes of present controversy. Relevant extracts from this Rule are quoted herein below: (2) Appointments to the posts of District Superintendent of Education, Sub- Divisional Education Officer, Principal, Primary Teachers Education College, District Inspectress of Schools and allied posts of inspecting and administrative nature shall be made as follows: (i) By direct recruitment in accordance with the rules in Part II. - 30% posts. (ii)By open advertisement in accordance with the rules is Part III - in 50 % of the posts (iii)By promotion of officers of the Upper - in 50 % of the posts division of the Subordinate Educational Service (inspection and allied branch) In accordance with the rules in Part IV. (3) Appointment to the posts of Principal of Government High Schools, including Sarvodaya Schools (both for male and female) shall be made as follows: (i) By promotion of officers - in 80 % of the posts of Upper Division of the Subordinate Education Service (Teaching Branch), in accordance with the rules in part IV. (ii) By open advertisement in - in 20 % of the posts accordance with the rules in Part III 5. Sub Rule 2 of Rule 4 of the 1973 Rules specifies various posts born on the cadre of service and also the quota for each sources. Sub Rule 3 of Rule 4 specifically prescribes the mode and method of the appointment of Principal of the Government High Schools including Sarvodaya Schools (both for male and female). 80 per cent of the vacancies arc to be filled up by promotion of Officers of upper division of the Subordinate Education Service (Teaching Branch), whereas 20 % by open advertisement in accordance with the rules in Part III. It is not in dispute that the petitioner belongs to upper division of Subordinate Education Service teaching branch and 80 per cent of the vacancies of the Principal are to be filled up from this category of the Subordinate Education Service. He is, thus a member of the feeding service for which 80 per cent of the vacancies of the Principal are meant. He is, thus a member of the feeding service for which 80 per cent of the vacancies of the Principal are meant. It is stated in the writ petition that petitioner is the senior most Teacher and has reached the last of the pay-scale at Rs. 9,000/- and is also being paid the stagnation allowance. On the basis of his eligibility as prescribed under Rule 41 of the 1973 Rules, which, inter alia, prescribes 8 years minimum service as Assistant Teacher for promotion to the posts of Principal, he became eligible in the year 1981 on acquiring the requisite experience. He has been functioning as acting Principal, since June, 1999. Respondent No. 4, belongs to the Class II of the Jharkhand Education Service and is equal in status and pay of the Principal in terms of Sub Rule 2 of the Rule 4 of the 1973 Rules. However, sub Rule 3 confines the right of promotion to the post of Principal only for the members of the subordinate service of teaching branch to the extent of 80 per cent and rest of the 20 per cent posts are to be filled up by direct recruitment. Though the respondent No. 4 is equal in status to that of the Principal but he has no right to occupy the post of Principal. Rules also do not provide appointment by transfer from another category of service may be equal in status and pay. 6. It is a settled proposition of law that, where the State has laid down Rules for recruitment, prescribing the mode and method as also the quota, it has no option but to adhere to the prescribed rules. 7. Mr. Modi, learned Counsel appearing for the Respondents has vehemently argued that as per the past practice, District Superintendent of Education are being transferred to the posts of Principal. Even if there is any such practice, a bad practice cannot make a good law. Rules do not permit recruitment to the posts of Principal by transfer, even from the category of equal status and pay- scale. For the above reasons, I allow this writ petition Impugned order dated 18th of June, 2005, whereby Respondent No. 4 has been transferred to the posts of Principal, Government Boys High School Hazaribagh is hereby quashed qua the respondent No. 4. For the above reasons, I allow this writ petition Impugned order dated 18th of June, 2005, whereby Respondent No. 4 has been transferred to the posts of Principal, Government Boys High School Hazaribagh is hereby quashed qua the respondent No. 4. Respondents are, however, at liberty to post any regular Principal to the School or appoint any person in accordance with Sub-rule 3 of Rule 4 of the 1973 Rules. Till the post is filled-up by posting a regular incumbent or by direct recruitment in accordance with the Rules, status quo as exists today shall be maintained. 8. In so far the other prayer of the petitioner for promotion is concerned, Respondents are directed to fill up the available vacancies of Principal by the modes and the ratio prescribed in the 1973 Rules within a period of three months, in so far the promotional quota is concerned and within a period of six months for direct recruitment quota. All eligible persons including the petitioner, if otherwise eligible and falls within the zone of consideration be considered in accordance with the rules.