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2008 DIGILAW 777 (PAT)

Vijay Kumar v. State Of Bihar

2008-06-26

V.N.SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner and the State. 2. Petitioner is the Headmaster of Nationalized Middle School, Hisua, Nawada(hereinafter referred to as "the School") and has been placed under suspension under orders of the District Magistrate, Nawada bearing Memo No. 3116 dated 27.12.2007, Annexure-1 which has been assailed by filing this writ application on the ground that the District Magistrate had no jurisdiction to pass the impugned suspension order as Block Level Committee constituted in terms of Bihar Panchayat Elementary Teachers (Employment and Service Condition) Rules, 2006(hereinafter referred to as the "Rules") as vested with disciplinary control over the petitioner and other teacher of the school and the District Magistrate had no jurisdiction in the matter at all. In support of such submission learned counsel for the petitioner has placed reliance on R. 17 of the Rules which empowers the committee constituted under Sub-Rule(7) of R. 9 of the Rules to take disciplinary action against the petitioner and other leaching employees of the school and as the suspension order has not been passed by the committee constituted under Sub-Rule (7) of R. 9 of the Rules the order being without jurisdiction should be quashed. 3. According to the learned counsel for the petitioner perusal of the suspension order itself would indicate that petitioner has been placed under suspension for the irregularities committed in the civil works undertaken for raising the school building which is beyond the assigned duties of the Headmaster whose job is only to teach and supervise the teaching activity in the school. Government instructions issued under the signature of the Chief Secretary and contained in letter dated 16.12.2006, Annexure-2 are very specific wherefrom it is evident that the teachers have not to undertake any work other than teaching. In the background of these facts it is further submitted that the grounds for suspension of the petitioner is also misconceived in view of the fact that the building activity in the school was undertaken on the basis of the grants received from the Government over which petitioner had no control. 4. Counsel for the State has opposed the prayer and has submitted that petitioner being the Headmaster of the school is even required to supervise the civil works going on in the school and in this connection has made reference to the provisions contained in Ss. 4. Counsel for the State has opposed the prayer and has submitted that petitioner being the Headmaster of the school is even required to supervise the civil works going on in the school and in this connection has made reference to the provisions contained in Ss. 3, 10 and 12 of the Bihar State Vidyalaya Shiksha Samiti Act, 2000 (hereinafter referred to as the Act). Section 3 of the said Act provides for constitution of the Vidyalaya Shiksha Samiti for every primary, middle and basic schools of which Headmaster of the school concerned shall be the ex officio member. Section 10 of the Act provides for the powers and functions of the said Vidyalaya Shiksha Samiti. Sub-Sec. (1) of Sec. 10 provides that the general supervision and superintendence of the works of the school shall be within the competence of the Vidyalaya Shiksha Samiti. Section 12 provides for a development fund of the school. Sub-Sec. (4) of Sec. 12 casts a duty on the Headmaster of the school and the Secretary of the Vidyalaya Shiksha Samiti to jointly operate the account of the development fund of the school. In the light of the aforesaid provisions of the Act, learned counsel of the State submitted that although petitioner is the Headmaster but he has also to supervise the development activity going on in the school and appreciating such position admittedly petitioner also signed the cheques for payment to the building contractor which fact is even admitted in the rejoinder filed on behalf of the petitioner. 5. Counsel for the Secretary, Vidyalaya Shiksha Samiti also appeared in the proceeding and submitted that this Court should not intervene in the matter as District Magistrate having appreciated the irregularities committed in the building activity at the instance of the petitioner Headmaster, action has been taken against him and this Court should be slow in interfering with the same. 6. Counsel for the petitioner in rejoinder pointed out that petitioner being the Headmaster of the school and a non-technical member of the Vidyalaya Shiksha Samiti signed the cheques on the dotted lines as directed by the Secretary of the Vidyalaya Shiksha Samiti after inviting the attention of the District Superintendent of Education about the irregularities committed in the execution of the works of the school Vide letter bearing Memo no. 39 dated 24.8.2008 which irregularities were even found true by the Incharge Executive Engineer during his visit to the site as would appear from his tour report dated 23.11.2007, Annexure-5. 7. Having heard counsel for the parties, I am of the view that the service condition of the petitioner is governed by the Rules which have been framed in terms of the provisions contained in Article 243G read with Clause- 17 of the 11th schedule of the Constitution and the corresponding provisions in the Bihar Panchayat Raj Act, 2006, In terms of the Rules Vidyalaya Shiksha Samiti constituted in terms of the provisions contained in Sub-Rule (7) of R. 9 of the Rules is vested with the disciplinary control over the petitioner, the impugned suspension order having been passed by the District Magistrate who is not even a member of the Vidyalaya Shiksha Samiti constituted in terms of Sub-Rule (7) of R. 9 is wholly without jurisdiction and is, accordingly quashed and the matter is remitted back to the Vidyalaya Shiksha Samiti constituted in terms of Sub-Rule (7) of R. 9 of the Rules to take appropriate decision in the mailer in the light of the allegations levelled against the petitioner after taking into account the fact that petitioner is not a technical person as also has raised objections Vide his letter dated 24.8.2008 addressed to the District Superintendent of Education which were even found correct by the Incharge Executive Engineer during his visit to the site on 22.11.2007 as is evident from his tour report dated 23.11.2007 contained in Annexure-5. Appropriate orders in this regard be passed by the Vidyalaya Shiksha Samiti as early as possible, in any case, within u period of one month from the date of receipt/production of a copy of this order and petitioner be allowed to join as Headmaster in the school from today i.e. 26.6.2008 but his joining will be subject to the further orders passed by the Vidyalaya Shiksha Samiti. Arrears of salary for the suspension period will depend upon the orders of the Vidyalaya Shisha Samiti. 8. This writ application is, accordingly disposed of.