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2007 DIGILAW 1213 (PAT)

Subansh Prasad Singh v. State Of Bihar

2007-07-25

SHIVA KIRTI SINGH

body2007
Judgment 1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for Respondent No. 3. 2. This writ petition was filed in the year 2000 after the petitioner retired from service on 31.10.1999 from the post of Acting Headmaster of High School, Nepura, Villauti, Nalanda. The prayer in the writ petition was to quash letter No. 558 dated 29.6.2000 issued by Director, Secondary Education by which Ramanand Singh, Respondent No. 3 was recommended for the post of Founder Headmaster of High School, Nepura, Villauti, Nalanda. Such recommendation by the impugned order dated 29.6.2000 (Annexure-1) was purportedly in view of the order passed in CWJC No. 1475/1986. Annexure-1 mentions that in view of order passed in the aforesaid writ petition the Departmental Promotion Committee considered the case of Ramanand Prasad, Assistant Teacher of the aforesaid school (Respondent No. 3) and found his claim for being recognised as the Founder Headmaster to be valid and therefore the Promotion Committee decided to obtain concurrence of Vidyalaya Seva Board for promotion of Respondent No. 3. When this matter was heard on an earlier date and the judgment of this Court dated 1.5.1998 passed in CWJC No. 1475/ 1986 as contained in Annexure-14 was considered, it was found that in terms of the said judgment the case of the writ petitioner as well as that of Respondent No. 3 who was petitioner in the earlier writ petition was required to be sent to the Screening Committee and accordingly their cases were sent to the Screening Committee by the order of Director, Secondary Education dated 5.1.1999 (Annexure-15) but without any order or report of the Screening Committee to show consideration of rival claims, Annexure-1 was issued in favour of Respondent No. 3 on 29.6.2000. Therefore by order passed on 11.8.2006 while noticing that the petitioner has retired from service on 31.10.1999 i.e., about six years earlier, the Director, Secondary Education was requested to constitute an early meeting of the Screening Committee so that the scrutiny of rival claims may be made by the Screening Committee with due regard to the facts as well as law laid down in the case of Ram Ballabh Prasad vs. The State of Bihar & Ors. ( 1986 PLJR 373 ). Such order was passed only to ensure full compliance with the earlier judgment contained in Annexure-14. 3. ( 1986 PLJR 373 ). Such order was passed only to ensure full compliance with the earlier judgment contained in Annexure-14. 3. The Screening Committees report is available on record as Annexure-B to the second counter affidavit on behalf of the Respondent No. 2 filed on 12.4.07. On the basis of said report dated 30th March, 2007 an order was passed by the Respondent No. 2, Director, Secondary Education, Bihar on the same date as contained in his Memo No. 231 (Vidhi) which has been annexed as Annexure-19 to I.A. No. 2442/07 through which the petitioner challenged the said order. It is relevant to notice here that earlier also I.A. No. 4699/ 01 was filed on behalf of the petitioner bringing on record an order of the Director dated 15th September, 2001 as Annexure18 whereby the Director has appointed Respondent No. 3 as Headmaster of the school in question from the date of his joining the said vacant post of Headmaster of the school. In the said I.A. the petitioner has made a prayer for allowing him to challenge the said order contained in Annexure-18. Thus, the orders contained in Annexures-1, 18 and 19 are under challenge in this writ petition. 4. The relevant facts noticed above by the Screening Committee have also been mentioned by the Director in his last order dated 30th March, 2007 contained in Annexure-19. The facts noticed in the said order show that a letter of District Education Officer, Nalanda dated 5.10.1978 addressed to Assistant Secretary, Bihar Secondary Education Board in the context of schools request for permission of establishment of school showed Respondent No. 3 as Incharge Headmaster of the school. The permission of establishment was granted on 23.3.1979. On 16.4.1981 an application was received from the Managing Committee of the school for grant of recognition to the school and in that the name of petitioner, Subansh Prasad Singh was shown as the Headmaster of the school appointed w.e.f. 12.7.1980. A letter of District Education Officer, Nalanda bearing No. 1370 dated 5.10.1978 containing inspection report showed the name of the petitioner, Subansh Prasad Singh at Serial No. 1 as Headmaster of the school. On receipt of such report the Director, Secondary Education-cum-Special Secretary constituted Special Board for the purpose of grant of recognition to the school. A letter of District Education Officer, Nalanda bearing No. 1370 dated 5.10.1978 containing inspection report showed the name of the petitioner, Subansh Prasad Singh at Serial No. 1 as Headmaster of the school. On receipt of such report the Director, Secondary Education-cum-Special Secretary constituted Special Board for the purpose of grant of recognition to the school. The report of the Special Board was submitted through letter of the District Education Officer, Nalanda dated 20.10.1981 which showed petitioner, Subansh Prasad Singh as Headmaster of the school with a noting that he had accepted such post and was working on the same while on leave as an Assistant Teacher of a Nationalised High School at Andabas, Nalanda. It was mentioned in the said note that working of the petitioner as Headmaster of the school after taking leave from another school appeared to be against the Code of Conduct. On this ground alone the appointment of the petitioner in the school was made questionable. But there was no doubt that at the time of considering recognition to the school, the petitioner was in fact working on that post as Headmaster. There is no material to show anyone else or respondent No. 3 actually worked in the school as its founder Headmaster. 5. In the light of the report of the Special Board the Departmental Screening Committee in its meeting hold on 20.3.1981 did not recommend for grant of recognition to the services of anyone on the post of Headmaster in the school. The service of Ramnandan Singh, Respondent No. 3 was recommended for being recognised as an Assistant Teacher and in case of petitioner no recommendation was made for granting recognition to his service either as Headmaster or Assistant Teacher of the school. The order of granting recognition as well as notifying takeover of the school on 1.3.1982 was issued accordingly but the department appears to have considered the plea of the petitioner and by letter No. 971 dated 7.3.1986 he was granted leave for the period 12.7.1980 to 28.12.1982 in order to regularize his working in the present school. The order of granting recognition as well as notifying takeover of the school on 1.3.1982 was issued accordingly but the department appears to have considered the plea of the petitioner and by letter No. 971 dated 7.3.1986 he was granted leave for the period 12.7.1980 to 28.12.1982 in order to regularize his working in the present school. That order dated 7.3.1986 contained in Annexure-10 shows that on the order of Government, petitioner, Assistant Teacher, High School, Nepura has been granted recognition as Incharge Headmaster w.e.f. 1.3.1982, the date relevant for deciding claim of Founder Headmaster as per Note to rule 4 of Rules of 1983 governing the schools taken over by the State. It was also mentioned in that order that the issue of recognizing Founder Incharge Headmaster as permanent Headmaster of the school would be considered after decision of this Court in a case which had been referred to Full Bench, (Ram Ballabh Prasad vs. State of Bihar & Ors., 1986 PUR 373). 6. The order contained in Annexure10 in favour of the petitioner was challenged by Respondent No. 3 through CWJC No. 1475/1986. The interim order dated 24.4.1986 (Annexure-11) shows that Annexure-10 was not stayed and only status quo was ordered by this Court. The final order dated 1.5.1998 contained in Annexure-14 has already been noticed earlier. By that order no interference was made with order of the Government in favour of the petitioner as contained in Annexure-10 and only the issue of recognizing Founder Incharge Headmaster as permanent Headmaster of the school was referred to the Screening Committee so that it may consider the claims of the petitioner as well as Respondent No. 3 in accordance with law. 7. After noticing the aforesaid facts the impugned order contained in Annexure-19 has been passed in favour of the Respondent No. 3 by relying on the same very objections in the report of the Special Board to the effect that petitioner was working as Headmaster of the school since 12.7.1980. while on leave from service in another school. 7. After noticing the aforesaid facts the impugned order contained in Annexure-19 has been passed in favour of the Respondent No. 3 by relying on the same very objections in the report of the Special Board to the effect that petitioner was working as Headmaster of the school since 12.7.1980. while on leave from service in another school. In course of actual consideration of claim of the petitioner the Screening Committee as well as the Director have clearly omitted to take into consideration the order dated 7.3.1986 contained in Annexure-10 which was passed in favour of the petitioner long back in 1986 recognizing and allowing him to function as Incharge Headmaster since the date of takeover of the school and clearly petitioner retired as Incharge Headmaster of the school on 31.10.1999. When the order contained in Annexure-10 shows that it is on the order of the Government that order was issued by the Director and when the same was not interfered by this Court in the final order contained in Annexure-14, the Screening Committee or the Director nave clearly committed a mistake in ignoring that order while considering the case of the petitioner in paragraph-3 of page-2 of the impugned order. In that paragraph, in course of actual consideration they have referred only to the facts which existed prior to the takeover of the school and not the facts as corrected by the Government order contained in Annexure-10. Thus, it is found that the impugned order contained in Annexure-19 which is final order in terms of earlier judgment and direction of this Court as contained in Annexure-14 suffers from apparent error of facts as well as law. The ground on which the writ petitioner has been denied recognition as Founder Headmaster of the school has already been condoned by the State Government and the Director as apparent from Annexure-10 and accordingly he has throughout worked as first Headmaster of the school on the date of application as also on the date of recognition till his retirement on 31.10.1999. In such circumstances, the claim of the petitioner that he was entitled to be recognized as the Founder Headmaster working in the school as such prior to 2.10.1980 and also on the date of recognition and takeover of the school could not have been denied by the Screening Committee or the Director. In such circumstances, the claim of the petitioner that he was entitled to be recognized as the Founder Headmaster working in the school as such prior to 2.10.1980 and also on the date of recognition and takeover of the school could not have been denied by the Screening Committee or the Director. In that view of the matter the impugned order contained in Annexure9 is quashed. In view of quashing of final order contained in Annexure-19 there is no need to discuss the impugned order contained in Annexure1 which was only a decision at interlocutory stage deciding to consult the Commission in respect of claim of the Respondent No. 3. 8. This Court is also not persuaded to examine the illegality or otherwise of the order contained in Annexure-18 dated 15.9.2001 by which Respondent No. 3 has been appointed/promoted to the post of Headmaster of the school w.e.f. date of that order or from the date of joining whichever toe earlier. The reason for not going into merit of Annexure-18 are two fold. Firstly, it does not affect the claim or right of the writ petitioner who retired from service before the date of that order and secondly, it has been submitted before this Court that Respondent No. 3 has also superannuated from service on 30.6.2006. The benefit given to Respondent No. 3 appears to be without any misrepresentation etc. on his part and may be only on account of error of judgment while considering the claim of the petitioner and of respondent No. 3. In such circumstances, it would not be appropriate to interfere with the order contained in Annexure-18 so as to affect the rights of Respondent No. 3 which has already accrued to him as a retired Headmaster. 9. As a result of quashing of the impugned order of the Director dated 30th March, 2007 contained in Annexure-19 and as a result of holding that the report of the Screening Committee in respect of petitioner suffers from legal and factual error, the matter is remitted to the Director for passing a fresh order in accordance with law keeping in view the findings in this order at an early date and in any case within two months from the date of production/communication of a copy of this order. 10. 10. No further delay should be made by the Director in any case because apparently petitioner has retired from service long back on 31.10.1999. The writ petition is allowed to the aforesaid extent.