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Patna High Court · body

2009 DIGILAW 88 (PAT)

Mani Shankar Gopal v. State Of Bihar

2009-01-21

MRIDULA MISHRA

body2009
JUDGEMENT 1. Heard the counsel for the petitioner and the State. 2. Counter affidavit, reply to the counter affidavit is on record. Pleadings are complete. 3. Petitioner is aggrieved as he has been terminated by order, contained in Memo No. 3900, dated 21.11.2007, issued by the District Superintendent of Education, Bhagalpur, arbitrarily holding that petitioner was illegality appointed as Assistant Teacher on compassionate ground. 4. Father of the petitioner was working as Assistant Teacher in primary school. He died in harness. Petitioner being the son of the deceased teacher, Ramchandra Singh, filed an application for his appointment on compassionate ground. Petitioners case is that his father died on 19.4.1989 and he submitted his application on 12.6.1989. The application has been annexed as Annexure-2, which shows that the name of petitioners mother, Madhulata Sinha, is mentioned in the list of dependents of deceased employee. In that column it is mentioned that Madhu Lata Sinha is working as Assistant Teacher in Primary School, Garbudihu, Bhagalpur. Application submitted by the petitioner was placed before the District Establishment Committee on 31.12.1990. The Establishment Committee took a decision that application of the petitioner should be sent to the Director, Secondary Education, Bihar, Patna. The Director, Secondary Education, Bihar, Patna, issued a letter, lated 22.9.1991, and directed to consider case of the petitioner on the basis of recommendation made by the District Establishment Committee. Subsequently, vide letter, dated 10.9.1991, on the basis of the recommendation made by the District Establishment Committee petitioner was appointed as Assistant Teacher vide order, contained in Memo Nos. 4246-301, dated 12.8.1992, issued by respondent no. 6 as matric untrained teacher in Primary School, Malmala, Sahkund, Bhagalpur. Petitioner remained in service and enhanced his qualification under going the teachers training. He applied for granting him regular trained pay scale from the date of publication of his result, i.e., dated 20.6.2005. It has been alleged by the petitioner that when he applied for trained scale, some illegal gratification was demanded by the District Superintendent of Education. On petitioners denial, he was threatened. Petitioner immediately, thereafter, represented and made a complaint before the higher authorities. In retaliation by letter no. 3568, dated 20.12.2006, respondent no. 6 asked the petitioner to furnish full details regarding his appointment on compassionate ground when his mother was working as Assistant Teacher. Petitioner submitted his show cause before the District Superintendent of Education. Petitioner immediately, thereafter, represented and made a complaint before the higher authorities. In retaliation by letter no. 3568, dated 20.12.2006, respondent no. 6 asked the petitioner to furnish full details regarding his appointment on compassionate ground when his mother was working as Assistant Teacher. Petitioner submitted his show cause before the District Superintendent of Education. The higher authority, the Deputy Director, directed the District Superintendent of Education to conduct departmental enquiry and then only take any action. Petitioners case is that the District Superintendent of Education, Bhagalpur, in total disregard of the direction of the Deputy Director, Education, without initiating any departmental enquiry issued order, dated 21.11.2007 (Annexure-17) terminating him from service. 5. During the pendency of the application two interlocutory applications were filed by the petitioner. I.A. No. 3958 of 2008 was filed for amending the prayer and to quash the orders, dated 30.5.2008 and 30.6.2008, issued by the District Superintendent of Education whereby the petitioner was directed to deposit Rs. 4,75,901/- and Rs. 11,34,332/- that is the complete salary drawn by the petitioner during his service. Prayer of the petitioner was to stay the operation of these two orders. Second interlocutory application was filed vide I.A. No. 5928 of 2008 as Kotwali P.S. Case No. 469 of 2008 was lodged by the Area Education Officer, Bhagalpur, due to non-compliance of the direction, contained in order, dated 30.5.2008 and 30.6.2008. Prayer of the petitioner was to stay the operation of these orders and to quash these orders. 6. Counter affidavit has been filed on behalf of respondent no. 6, the District Superintendent of Education, Bhagalpur, where it has been stated that petitioner has been terminated from his service in view of Circular No. 13293, dated 5.10.1991, since he was appointed as Assistant Teacher despite his mother being in service as Assistant Teacher in Primary School. It has also been stated in the counter affidavit that there are several orders of Personnel and Administrative Reforms Department, State of Bihar, which shows that if both husband and wife are in Government service, in such case after sudden demise of one of them any of the dependant will not be appointed on compassionate ground. 7. The stand, which has been taken by respondent no. 7. The stand, which has been taken by respondent no. 6 in his counter affidavit, seems to be irrelevant in view of Annexure-2, i.e., the application filed by the petitioner for compassionate appointment on the format and the noting of the then District Superintendent of Education on the application of the petitioner that his application for appointment will be considered on compassionate ground in the light of Departmental Letter No. 839, dated 23.6.1990, which has been annexed as Annexure-28 to the writ application. This nothing shows that petitioners application for compassionate appointment was not considered in the light of directions, contained in Circular No. 13293, dated 5.10.1991. 8. Counsel for the petitioner has submitted that this letter had no application in the case of the petitioner, as evident from the Departmental Circular No. 13293, dated 5.10.1991. Clause 10 of this Circular provides that terms and conditions contained in this Circular will have application in cases of appointment made from the date of issuance of this Circular. In case of Government employee, whosoever died before issuance of this Circular in their cases this Circular will have no application. Petitioner has also drawn my attention towards the Circular, dated 22.11.1991, which, clearly establishes that Government employees, who died-in-harness on/or before this Circular came in force in their cases, the Circular dated 5.10.1991, will have no application. So far the conditions mentioned in the Circular, dated 5.10.1991 are concerned, had no application in case of petitioners appointment as process for his appointment started in the year 1989 itself. 9. The State Counsel in support of the statement in the counter affidavit has submitted that the language of Annexure-1, the appointment letter of the petitioner, is itself indicative of this fact that petitioners appointment is in violation of Circular and guidelines relating to compassionate appointment. The first paragraph of this letter reads as follows:- 10 Interpretation of the Government Counsel is that this paragraph indicates that if none of the family members are in Government service then only there can be compassionate appointment of any legal heir or the Government employee, who died-in-harness. 11. I fail to understand how this can be interpreted like this. Interpretation of this paragraph in Annexure-1 can only be any person who is applicant, can be appointed on compassionate ground only if not in Government service. 12. 11. I fail to understand how this can be interpreted like this. Interpretation of this paragraph in Annexure-1 can only be any person who is applicant, can be appointed on compassionate ground only if not in Government service. 12. Another ground which has been taken by the petitioner assailing the impugned order is that he remained in service for fifteen years, even if any objection was raised regarding his appointment on compassionate ground any adverse order could have been passed against him observing the proceeding applicable for termination of service of confirmed Government employee. In spite of the direction of the Deputy Director, Secondary Education, the District Superintendent of Education, Bhagalpur, without initiating a departmental proceeding the termination order has been issued. Respondent, District Superintendent of Education, did not stop after issuing the arbitrary order of termination, but, he also issued letters for realization of entire amount paid to the petitioner as salary during the course of his appointment, took steps for instituting a criminal case against the petitioner for non-compliance of the direction to deposit the money paid to the petitioner as salary. This haste on the part of the District Superintendent of Education is nothing but indicative of the fact that all steps have been taken against the petitioner for some ulterior motive as alleged by the petitioner in specific terms in the writ application. The District Superintendent of Education, Bhagalpur, has passed the order due to personal vengeance. Mala fide on the part of the District Superintendent of Education has been alleged by petitioner. The counter affidavit has been filed on behalf of the District Superintendent of Education, Bhagalpur, in official capacity, but, has not filed any counter affidavit in personal capacity though made party respondent by name. In the counter affidavit there is no reply to the specific allegation made against the District Superintendent of Education by the petitioner in the writ application. There is complete silence. 13. I find that petitioner was appointed on compassionate ground by the competent authority on recommendation of the District Compassionate Committee. The Circular of the State Government relating to compassionate appointment, prevalent at that time, was silent so far appointment on compassionate ground, if both, husband and wife, were in service. There was not concealment of the fact by the petitioner. I find that petitioner was appointed on compassionate ground by the competent authority on recommendation of the District Compassionate Committee. The Circular of the State Government relating to compassionate appointment, prevalent at that time, was silent so far appointment on compassionate ground, if both, husband and wife, were in service. There was not concealment of the fact by the petitioner. No fraud was committed for getting appointment on compassionate ground, as such, after remaining in service for so many years, petitioner cannot be terminated for this reason. 14. Considering all these facts, I find that the order, contained in Memo No. 3900, dated 20.11.2007 (Annexure-17), the order, contained in Memo No. 1647, dated 30.5.2008 (Annexure-18) as well as the order, contained in Memo No. 1930, dated 30.6.2008 (Annexure-20) have been issued arbitrarily in complete violation of the service law, as such, they are fit to be quashed. So far the institution of Kotwali P.S. Case No. 469 of 2008 is concerned, for that the petitioner will have to proceed under the different provision. The respondents are directed to reinstate the petitioner forthwith with all consequential benefits. If there has been any realization of money that should be refunded. 15. With these observations and directions, this application is allowed.