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2012 DIGILAW 138 (PAT)

MEENA SINHA v. STATE OF BIHAR

2012-01-23

MIHIR KUMAR JHA

body2012
ORDER : (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) Heard counsel for the petitioner and counsel for the State. 2. Despite service of notice on respondent no. 6 and 7 and filing of Vakalatnama on behalf of respondent no. 7, no one has appeared on her behalf. 3. In this writ application, the petitioner has assailed the ORDER :passed by the District Superintendent of Education, Lakhisarai dated 17.12.2007 as contained in Annexure-8, whereby and whereunder, the earlier ORDER :passed in favour of the petitioner for holding the post of Incharge Headmistress has been cancelled. The petitioner has also assailed the decision of the respondents authorizing respondent no. 7 to work as Incharge Headmistress of the School. 4. A counter affidavit has been filed on behalf of District Superintendent of Education, Lakhisarai, wherein, it has been explained that when the petitioner had submitted her application claiming herself to be senior teacher to respondent no. 7, an ORDER :was passed in her (petitioner) favour authorizing her to discharge the work of the Headmistress of the School but subsequently in view of the letter of the Panchayat Secretary, such ORDER :was recalled, inasmuch as, it was reported to him (D.S.E) that respondent no. 7 was senior to the petitioner. The respondents in defence of their action of authorizing respondent no. 7 to discharge the function of the Incharge Headmistress have also taken a plea that since the respondent no. 7 was holding higher qualification, she was held to be senior to the petitioner and as such there is no infirmity in the decision authorizing respondent no. 7 to work as Incharge Headmistress. 5. As noted above neither the respondent no. 7 has filed any counter affidavit nor counsel for the respondent no. 7 has appeared to defend the ORDER :authorizing her to work as Incharge Headmistress of the School. 6. Learned counsel for the petitioner has submitted that both the petitioner and respondent no. 7 were selected and appointed on the post of Panchayat Teacher in the same transaction but the petitioner had submitted her joining report on 02.02.2007 at 9:45 am whereas the respondent no. 7 had submitted her joining at 10:20 am on 02.02.2007 and accordingly, she would rank senior to the respondent no. 7 both on the basis of the date and time of joining specially when the petitioner is elder in age to respondent no. 7. 7 had submitted her joining at 10:20 am on 02.02.2007 and accordingly, she would rank senior to the respondent no. 7 both on the basis of the date and time of joining specially when the petitioner is elder in age to respondent no. 7. In this regard, learned counsel for the petitioner has also laid stress on the aspect that when the Panchayat Secretary in his letter dated 05.04.2007 had also recommended for authorizing the petitioner to work as Incharge Headmistress of the School, such opinion could not have been changed by him by writing a subsequent letter dated 20.09.2007 that the respondent no. 7 had ranked higher in the merit list for appointment on the post of Panchayat Teacher. Learned counsel for the petitioner, therefore, submits that as per the accepted rule of seniority if two persons are appointed on the same day, their seniority has to be determined with reference to their age and as such the decision in favour of the petitioner for working as Incharge Headmistress should not have been cancelled by the D.S.E. 7. Learned counsel for the State on the other hand, would submit that as the respondent no. 7 had been appointed on the same date as that of the petitioner and was possessing the qualification of Graduation with honours as against the petitioner being only Madhyama (equivalent to matric) and had correspondingly been placed higher in the merit list for appointment on the post of Panchayat Teacher, she could not have been expected to work under the petitioner, inasmuch as, the petitioner would be deemed to be junior to the respondent no. 7. 8. In the considered opinion of this Court, the authorities in the Education Department really excel in the art of creating litigation. Till date, this court had been over flooded with the dispute relating to selection and appointment on the post of Panchayat Teacher and now a new spate of litigation has been sought to be introduced by the action of the official respondents who have also undertaken now to decide the seniority among the Panchayat Teacher for filling up the post of Headmaster/Headmistress on incharge basis. 9. The Official respondents have not even cared that none of the two persons namely, the petitioner or respondent no. 7 are in the cadre of teachers who can be appointed/ promoted on the post of Headmaster/ Headmistress. 9. The Official respondents have not even cared that none of the two persons namely, the petitioner or respondent no. 7 are in the cadre of teachers who can be appointed/ promoted on the post of Headmaster/ Headmistress. They have also not cared that either of them do not possess the required qualification for the post of Headmaster/ Headmistress in Primary/Middle School as prescribed under the Statutory Rules. Having noted all these aspects even when the D.S.E has himself got no power to either give promotion of any teacher on the post of Headmaster/ Headmistress or make alternative arrangement, inasmuch as, such power under the statutory Rules has been vested in the District Education Establishment Committee of which the D.S.E was only the member secretary, yet such illegal ORDER :s are being passed creating anomalous situation in the functioning of the Primary/Middle Schools. 10. The post of Headmaster/Headmistress in Primary/Middle School is a permanent post which at the relevant point of time when the impugned ORDER :was issued in the year 2007 was covered by the provisions of Bihar Taken Over Elementary School Teachers Promotion Rules-1993, wherein, the post of teachers were classified in eight grades in which grade VII and VIII was the post of Headmaster and had to be filled up by promotion from grade IV to grade VII. The Grade IV post under 1993 Rules has been defined to mean trained arts graduate in the pay scale of Rs. 1640-2900/- or trained science graduate in the pay scale of Rs. 1640-2900/-. Neither the petitioners nor Respondent no. The Grade IV post under 1993 Rules has been defined to mean trained arts graduate in the pay scale of Rs. 1640-2900/- or trained science graduate in the pay scale of Rs. 1640-2900/-. Neither the petitioners nor Respondent no. 7 in fact have been appointed on grade-4 post i.e. post of graduate trained teacher and in fact when their appointments were only made as Panchayat Teacher in terms of Bihar Panchayat Prarambhik Shikshak (Niyojan avam Sewa Sart) Niyamawali, 2006 with the following service conditions as prescribed in Rule 12 thereof:- lsok laca/kh vU; 'krsZa & (i) izf'kf{kr iz[k.M f'k{kd rFkk iapk;r f'k{kdksa dks fu;r osru ds vk/kkj ij fu;ksftr fd;k tk;sxk vkSj mUgsa :E 5]000 izfrekg ns; gksxkA (ii) vizf'kf{kr iz[k.M f'k{kd rFkk iapk;r f'k{kdksa dks fu;r osru ds vk/kkj ij fu;ksftr fd;k tk;sxk rFkk mUgsa :E 4]000 izfrekg ns; gksxkA (iii) izR;sd rhu o"kksZa ds ckn ;Fkk funsZf'kr ewY;kadu ds vk/kkj ij izf'kf{kr iz[k.M f'k{kd@iapk;r f'k{kd vius fu;r osru esa 500 :i;s o`f) ds gdnkj gksxsa rFkk vizf'kf{kr iz[kaM f'k{kd@iapk;r f'k{kd 300 :i;s o`f) ds gdnkj gksaxsA (iv) ,sls fu;ksftr f'k{kd vf/kdre 60 o"kZ dh vk;q rd fu;ksftr jg ldsaxsA (v) vizf'kf{kr f'k{kdksa ds fy, jk"Vªh; v/;kid f'k{kk ifj"kn~ (N.C.T.E.) }kjk vuqeksfnr nks o"kksZa ds izf'k{k.k dh lqfo/kk miyC/k djkbZ tk;sxhA 6 o"kksZa ds ckn lQyrk iwoZd izf'k{k.k iwjk djus okys f'k{kdksa dks izf'kf{kr f'k{kd dk fu;r osru ns; gksxkA (vi) izf'kf{kr f'k{kdksa rFkk vizf'kf{kr f'k{kdksa ds fy, Hkh fu;fer :i ls lsokdkyhu izf'k{k.k dh O;oLFkk dh tk;sxh ftlesa mudk Hkkx ysuk vfuok;Z gksxkA (vii) bl fu;ekoyh ds v/khu fu;ksftr iapk;r izkjafHkd f'k{kdksa dks vU; fdlh izdkj dk HkRrk ;Fkk egaxkbZ HkRrk] vkokl HkRrk] fpfdRlk HkRrk ifjogu HkRrk vkfn ns; ugha gksxkA it would become clear that they are not even regularly appointed teachers whose appointment in fact has been made only on fixed salary and are not even entitled to draw Dearness Allowance, House Rent Allowance, Medical Allowance, Transport Allowance etc., like regularly appointed teachers under the aforesaid 1993 Rules. 11. The question, therefore, would be as to whether these Panchayat Teachers could qualify for being promoted on the post of Headmaster/ Headmistress in an Elementary School in terms of 1993 Rules or the recent 2011 Rules. 11. The question, therefore, would be as to whether these Panchayat Teachers could qualify for being promoted on the post of Headmaster/ Headmistress in an Elementary School in terms of 1993 Rules or the recent 2011 Rules. From the conjoint reading of Primary Teachers Appointment Rules-1993 or promotion Rules-2011, it would be clear that only regularly appointed Matric Trained Teacher having earned the promotion as a B.A. trained teacher would qualify for promotion on the post of Headmaster/ Headmistress in an Elementary School. In fact 1993 Rules also prescribes the qualification of Post Graduation apart from being trained as a condition precedent for promotion on the post of Headmaster/Headmistress of an Elementary School. It is true that the promotion Rule 1993 have been repealed by another statutory Rules dated 01.09.2011 namely, Bihar Rajkiyakrit Prarambhik Vidyalaya Shikshak Rules 2011(hereinafter referred to as the 2011 Rules), wherein, the post of Headmaster has to be filled up from amongst the Post Graduate trained teacher in grade-I or Grade-II of graduate trained teacher and in absence thereof even from amongst the graduate trained teachers with four years minimum experience but then such promotion has to be confined only to the teachers of the district cadre which has been exclusively defined in Rule-2(XII) of 2011 Rules to mean such teachers who have been appointed in the Primary School in the pay scale. Thus on an over all review of the statutory Rules, it becomes clear that the Panchayat Teacher can never qualify for being promoted on the post of Headmaster /Headmistress in an Elementary School and the post of such Headmaster/Headmistress has to be filled up from amongst the teachers of the district cadre having at least the qualification of being the trained Post Graduate or trained graduate. 12. In service jurisprudence there is always a concept of making current charge arrangement on a higher post but then such current charge arrangement to a person even in his or her own pay scale can be given, if he or she would possess the requisite qualification and fulfil other terms and conditions of eligibility as laid down under the statutory Rules. A higher post including the post of Headmaster/Headmistress cannot be filled up from amongst the teachers who do not qualify for being promoted on the post of teacher. A higher post including the post of Headmaster/Headmistress cannot be filled up from amongst the teachers who do not qualify for being promoted on the post of teacher. A peon or clerk working in the Elementary Schools of the State of Bihar cannot be made Incharge Headmaster/Headmistress only because the competent Authority has not posted regularly appointed teacher in the prescribed pay scale having qualification and fulfilling the eligibility conditions have become Headmaster/Headmistress in such Schools. The concept of filling of the higher post on Current Charge or Incharge Basis cannot be made farce by making anyone to hold such post. The post of Headmaster in an Elementary School has certain responsibility and enjoys certain administrative and financial powers. A Panchayat Teacher like the petitioner or respondent no. 7 having not even experience of one year service could not have been assigned to work on the post of Headmaster/ Headmistress in complete violation of the statutory Rules. As noted above both the petitioner and respondent no. 7 joined on the post of Panchayat Teacher on 02.02.2007 and the ORDER :authorizing one or the other person to hold the post of Incharge Headmistress was passed well known within one year of their appointment as Panchayat Teacher. 13. In that view of the matter, this Court will have no difficulty in holding that the making of Incharge Headmistress either by assigning the job to the petitioner or to the respondent no. 7 by the District Superintendent of Education was wholly illegal and this Court would, accordingly, quash both the ORDER :s directing the petitioner or the respondent no. 7 to work as Incharge Headmaster. In fact such ORDER :s even otherwise are nullity in the eye of law, inasmuch as, the D.S.E. by himself could not have made even such a working arrangement, inasmuch as, he was/is not the competent Authority to grant promotion on the post of Headmaster/ Headmistress under the statutory Rule which prescribes grant of such promotion on any post of teacher only through the decision of the District Education Establishment Committee which consists of District Magistrate, Deputy Development Commissioner, District Superintendent of Education, District Education Officer, District Inspector of Schools and the District Welfare Officer with the District Magistrate as the chairman of the Committee. Admittedly, in this case the ORDER :either authorising the petitioner or respondent no. Admittedly, in this case the ORDER :either authorising the petitioner or respondent no. 7 to work as Incharge Headmistress was passed by the District Superintendent of Education, without the matter being ever referred to the District Education Establishment Committee and as such the ORDER :of the District Superintendent of Education was not only in violation of the statutory Rules but also without jurisdiction. 14. Before parting with this Court, in view of the fact that a number of cases of this nature have been now emerging, would direct the Principal Secretary of the Education Department to issue clear directives to all the concerned Authorities in the district prohibiting them to make any arrangement even by way of Incharge on the post of Headmaster/Headmistress in an Elementary/Primary/Middle School by authorizing a Panchayat Teacher to work as Incharge Headmaster/Headmistress. As noted above these Panchayat Teachers are holding special type of appointment and are not members of the cadre of teachers of the district from whom amongst the post of Headmaster/Headmistress has to be filled up either by giving regular promotion or even by making a Current Charge Arrangement. This Court hopes and believes that the Principal Secretary of the Human Resources Development Department with the approval of the State Government would make a firm, transparent and uniform policy for even making arrangement on the post of Headmaster/Headmistress and also by ensuring the posting of at least one person of the district cadre teacher in all Elementary Schools where the services of Panchayat Teachers are being utilized for imparting education. Such policy decision would be also necessary because the District Teachers Appellate Authority constituted under the Bihar Panchayat Teachers Appointment Rule 2006 are also seized with similar dispute of Incharge Headmaster/Headmistress in an Elementary School. 15. The abovesaid exercise must be completed by the Principal Secretary of the Education Department within a period of three months from the date of receipt/production of a copy of this ORDER :. 16. With the aforementioned observation and direction this application to the extent indicated above is allowed, but it is made clear that this ORDER :will not enure to the benefit of the petitioner in any manner for being made even Incharge Headmistress of the School in question. 17. Let a copy of this ORDER :be sent to the Principal Secretary of the Human Resources Development Department for its immediate strict compliance.