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2007 DIGILAW 1047 (PAT)

Yamuna Prasad Singh v. State Of Bihar

2007-06-20

S.K.KATRIAR

body2007
Judgment 1. Heard Mr. Birendra Prasad Verma for the petitioner, and Mr. Alok Kumar, learned Junior Counsel to Government Advocate No. I for the respondents. This writ petition is directed against that part of the order No. 1391, dated 3.7.91 (Annexure 4), issued under the signature of respondent no. 2 (Director, Primary Education, Govt. of Bihar, Patna), whereby he has been deprived of his salary as a Matric trained teacher with effect from 31.10.81 (the date of take-over of the school) till the date of issuance of the order. The respondents have placed on record their counter affidavit and have supported the impugned order. 2. This case has a Shequered history, though the facts of the case lie in a very narrow compass. The school in question was established in the year 1954, it did not function for some time, and again started functioning during 1968-69. In a meeting of the Managing Committee held on 18.8.1970, it was resolved to appoint the petitioner as an Assistant Teacher of the school. Appointment letter was issued to the petitioner. He accordingly joined the school on 1.9.1970. The petitioner has allegedly been continuously working in the said school. The petitioner has admitted that his qualification is matriculate with Science and he is not a trained teacher. The Managing Committee voluntarily decided to hand over the Management of the school to the State Government in terms of the provisions of Bihar Non-Government Elementary School (Taking over and Control) Act, 1976. An inspection was made in the year 1978 and thereafter a report in respect thereof was submitted. According to the petitioner, in the said report, the names of the teachers who had been working in the school were stated. By a notification of 31st October, 1981, the school was nationalised in terms of the provisions of the aformentioned Act by the State of Bihar. However, in view of the position that the petitioners name was not mentioned in the notification, he submitted a representation before the Director, Primary Education, Government of Bihar, on 7th January, 1982. The petitioner has submitted further representations also. 3. The petitioner contends that, in terms of sub-sec. 2 of Sec. 4 of the aforementioned Act, his services were bound to be transferred to the State of Bihar, and he was entitled to receive the salary from the school in question. The petitioner has submitted further representations also. 3. The petitioner contends that, in terms of sub-sec. 2 of Sec. 4 of the aforementioned Act, his services were bound to be transferred to the State of Bihar, and he was entitled to receive the salary from the school in question. The petitioner had preferred a writ petition in this Court, being CWJC No. 5936 of 1985. which was disposed of by a Division Bench of this Court by judgment dated 23.1.1986, whereby the petitioner was directed to file a fresh representation which he did on 6.5.1986. Upon receipt of the representation, the Director of the Elementary School called upon the District Superintendent of Education to state the actual position with regard to the petitioners claim. The Deputy Superintendent of Education submitted a parawise statement of facts on 11.5.1986, stating therein that the petitioner had been working as an Assistant Teacher in the said school both before and after the nationalisation. 4. The petitioners representation for recognition of his service from the date of take-over of the school (i.e. 31.10.81), and his salary from that date till the date of payment, remained unattended. He, therefore, preferred CWJC No. 5936 of 1985 which was disposed of by a Division Bench of this Court by order dated 23.1.1986 (Annexure 13), whereby respondent no. 2 was directed to pass an appropriate order within period of four months from the date of submission of the representation after perusing the connected records. The petitioners claim was rejected as a whole by order dated 14.10.86 (Annexure A). Aggrieved by this order, he preferred CWJC No. 707 of 1987, which was disposed of by this Court by order dated 11.4.88 (Annexure 1), whereby the said order dated14.10.86 (Annexure A) was set aside, and respondent no. 2 was directed to pass necessary orders in the light of the observations made in the judgment and the earlier judgment dated 8.3.89 of this Court in CWJC No. 2159 of 1982 which has since been reported in 1998 PLJR 646 (Smt. Pratibha Singh Vs. State of Bihar & Ors.). Respondent no. 2 has disposed of the matter by the impugned order whereby services of the petitioner has been recognised from the date of take-over of the school, but the following order was passed with regard to payment of his salary :- 5. State of Bihar & Ors.). Respondent no. 2 has disposed of the matter by the impugned order whereby services of the petitioner has been recognised from the date of take-over of the school, but the following order was passed with regard to payment of his salary :- 5. Learned counsel for the respondents have place on record their counter affidavit and have supported the impugned order. Learned government counsel submits that the said order dated 3.7.91 (Annexure 4) has not been incorporated in the prayer portion. He next submits that the petitioner was not validly appointed by the Managing Committee and he had been forcibly marking his attendance which was so found by respondent no.3 in his said order dated 14.10.86 (Annexure A). 6. I have perused the materials on record and considered the submissions of learned counsel for the parties. In so far as the first contention of the learned government counsel is concerned, law is well settled that failure to formally challenge, or failure to formally pray for a particular relief in the relief portion of the plaint or the writ petition neither precludes the petitioner from raising it, nor precludes the court from granting the relief, provided the same emanates from the averments made in the plaint or the writ petition. Reference may be made to the judgment of this Court reported in 2000 (2) PLJR 68 (Ms/ Elite Engineering Co. Vs. BSEB) (para-16). In the present case, the impugned order is marked Annexure 4 to the writ petition, the respondents have been alive to the same, have answered this question in their counter affidavit and the matter was thoroughly argued on both the sides during the course of submissions. This has to be read in a situation where the impugned order is in two parts, the main portion of which recognises the services of the petitioner from the date of take-over of the school. Therefore, the relief prayed for by the petitioner herein, namely, grant of salary from the date of take-over, is really consequential in nature. The contention advanced by learned government counsel is hereby rejected. It is, therefore, manifest kthat failure on the part of the petitioner to formally pray for quashing of the order dated 3.7.91 (Annexure 4) in the prayer portion does not survive a close scrutiny. 7. The contention advanced by learned government counsel is hereby rejected. It is, therefore, manifest kthat failure on the part of the petitioner to formally pray for quashing of the order dated 3.7.91 (Annexure 4) in the prayer portion does not survive a close scrutiny. 7. As to the second contention advanced on behalf of the respondents, the contention is stated only to be rejected. This issue was earlier examined by respondent no. 3 who had submitted his report dt. 3.10.90 (Annexure 2), along with the original records, to the Deputy Director of Education (Primary Education), wherein he did not record any such finding. On the contrary, it stated that the petitioner had been validly appointed and had been continuously working in the privately-managed school ever since 1970. Secondly, the question in fact does not arise at all because it was on account of materials as Annexure 2, and such other materials, that respondent no. 2 recognized the services of the petitioner from the date of take-over of the school. It, therefore, follows as a matter of corollary that once the services of the petitioner were recognized from the date of take-over of the school, the State Government is bound to pay to the petitioner, salary of an untrained Matric teacher from the date of take-over of the school till the date of Annexure 4. 8. Respondent no. 2 not assigned any reason for depriving the petitioner of his salary for the period. Respondent No. 2 has committed a grave error in lawy by refusing to record reasons in support of this part of the order. Law is well settled that all executive authorities are bound in law to assign reasons in support of their conclusions, otherwise superior courts find it very difficult to examine the validity of the orders. Reference may be made to the judgment of the Supreme Court in the case of Govt. Branch Press Vs. D.B. Belliappa (1979)1 SCC 477 , Paragraph 24 of which is relevant in the present context and is set out hereinbelow for the facility of quick reference:- "24. Reference may be made to the judgment of the Supreme Court in the case of Govt. Branch Press Vs. D.B. Belliappa (1979)1 SCC 477 , Paragraph 24 of which is relevant in the present context and is set out hereinbelow for the facility of quick reference:- "24. Conversely, if the services of a temporary Government servant are terminated arbitrarily, and not on the ground of his, unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are impugned to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(2), Proviso (c), the authority cannot withhold such information from the Court on the lame excuse that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. "The giving of reasons", as Lord Denning put it in Breen Vs. Amalgamated Engineering Union, "is one of the fundamentals of good administration", and, to recall the words of this Court in Khudiram Das Vs. State of West Bengal, in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability," The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16(1)." 9. In the result, the impugned portion of the order dated 3.7.91 (Annexure 4) is hereby set aside. Respondent no.2 is hereby directed to ensure payment of the petitioners salary as untrained Matric teacher for the period 31.10.1981 till 2.7.1991, which shall enure to the benefit of the petitioner for purposes of post-retirement benefits. In the result, the impugned portion of the order dated 3.7.91 (Annexure 4) is hereby set aside. Respondent no.2 is hereby directed to ensure payment of the petitioners salary as untrained Matric teacher for the period 31.10.1981 till 2.7.1991, which shall enure to the benefit of the petitioner for purposes of post-retirement benefits. Let payment be made to the petitioner within a period of three months of the date of receipt/production of a copy of this order failing which interest @ 9% shall be paid to the petitioner from today till the date of payment. 10. The writ petition is accordingly disposed of.