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Patna High Court · body

2012 DIGILAW 1398 (PAT)

Krishna Murari Yadav v. State Of Bihar

2012-10-03

RAVI RANJAN

body2012
ORDER Heard learned counsel for the petitioner and the State. 2. Through this writ application the petitioner seeks following reliefs:- (i) To issue a writ of certiorari for quashing the order dated 10.3.1998 issued by District Education Officer, Siwan through letter no. 218 dated 10.3.1998. (ii) to issue a writ of certiorari for quashing the order dated 25.6.2010 issued by Director, Secondary Education, Patna vide letter No. Sc. Ed. Etab. “kh” 51/2009 – 441 Legal Patna dated 25.6.2010. (iii) To issue a writ of mandamus to Respondents authority to give effect of his own decision contain in Resolution of District Education Establishment Committee which was held on 23.6.93. (iv) to issue a writ of mandamus commanding the Respondents authority to restore the services of the petitioner as Class IV post. 3. Petitioner claims to have been engaged on daily wages basis vide Annexure 2 dated 3.1.1986. It is claimed that subsequently the matter of the petitioner along with other persons was considered by the District Establishment Committee for regularization in view of the fact that all the persons including the petitioner had completed more than 240 days of continuous service as daily wage employee. The District Establishment Committee vide Annexure 3 had considered the cases and taken a decision for regularization, however, since the Headmasters of the concerned schools were the competent authority to take such decision in view of the Bihar Nationalised Middle Schools (Service Conditions) Rules, 1983, the matter was sent to the concerned Headmaster which is an order dated 9.9.1993 passed by the District Education Officer, Siwan in view of the decision of the District Establishment Committee. 4. Learned counsel for the petitioner has pointed out that there were six persons in the list (Annexure 4) and the petitioner was at Sl. No. 6 whereas one Pramod Kumar Singh, whose service had finally been regularized in view of the order dated 28.1.2002 passed in C.W.J.C. No. 1481 of 2001 and affirmed by the Division Bench of this Court vide order dated 17.12.2002 passed in L.P.A. No. 1245 of 2002 was at Sl. No. 1. It appears that finally vide Annexure 5 the petitioner’s service was regularized on the post of peon in the scale of 778 – 12 -955 – 14 – 1025 from the date of joining on temporary basis. No. 1. It appears that finally vide Annexure 5 the petitioner’s service was regularized on the post of peon in the scale of 778 – 12 -955 – 14 – 1025 from the date of joining on temporary basis. From Annexure 5 dated 13.9.1993 it appears that petitioner had joined in place of Sri Mithilesh Prasad as due to his transfer to another school the concerned post was vacant. However, since the petitioner and others of the list, as contained in Annexure 4, were not being paid their salary, four of them including the petitioner approached this Court by filing C.W.J.C. No. 6779/1996. The writ petition was disposed of vide order dated 14.7.1997, as contained in Annexure 6, directing the District Education Officer, Siwan to place the matter of the petitioners before the District Education Establishment Committee for payment of salary of the petitioners in case their services have been regularized. It had also been made clear that if not regularized, their cases should be considered for regularization and if regularization is not possible then the Committee should consider the case of the petitioner for regular appointment against Class IV post if the same is made in future. However, vide Annexure 7/A the claim of the petitioner along with three others was rejected on the ground that their appointments had not been made following due procedure laid down in the relevant Rules. The Petitioner again challenged that order by filing C.W.J.C. No. 9981/1998 which was allowed to be withdrawn on 28.9.1999 with liberty to approach the appropriate authority. Thereafter, the petitioner again approached the District Education Officer, Siwan. However, it appears that the case of the petitioner was rejected and the petitioner had challenged the order passed by the District Establishment Committee by filing C.W.J.C. No. 10615/2000. It was submitted before this Court that the concerned order should be quashed because it was so done in the case of one Nand Kishore Choudhary. The impugned order was quashed with liberty to the petitioner to file fresh representation before the Director, Secondary Education, Bihar and the District Education Officer, Siwan who was directed to decide the case of the petitioner in the light of principles laid down by the Supreme Court in the case of the Secretary, State of Karnataka and others v. Uma Devi. Finally, the impugned order dated 16.6.2010 has been passed by the Director, Secondary Education, Bihar, Patna rejecting the claim of the petitioner also on the ground that petitioner’s appointment was not made following the due procedure laid down under the Rules. 5. Learned counsel for the petitioner submits that the concerned authority has not considered at all the case of Pramod Kumar Singh who was on similar footing and whose service has been absorbed in view of the order passed by this Court in C.W.J.C. No. 1481 of 2001 and subsequently affirmed in L.P.A. No . 1245 of 2002 even though this issue was raised by the petitioner as would be evident from the order itself. It is next contended that earlier decision of the District Education Establishment Committee directing regularization of petitioner and other five persons as well as subsequent orders passed as contained in Annexures 3 and 4 as well as the order passed by the Headmaster, as contained in Annexure 5, clearly indicating that the petitioner’s service was regularized against a vacant post, have not been considered at all while dealing with the matter. It is urged that, without considering the aforesaid facts, the authority concerned has come to the conclusion that the petitioner’s appointment was not made against the sanctioned post and since the Headmaster of the concerned school has illegally regularized his services, it would be a case of illegal appointment and, thus, would not be a fit for regularization as per the decision of the Apex Court in the Secretary, State of Karnataka and others v. Uma Devi. 6. A counter affidavit has been filed on behalf of the State taking a stand that petitioner’s initial engagement was on Class IV post against unsanctioned post of watchman, therefore, his service ought not have been regularized by the Headmaster. However, the earlier decision of the District Education Establishment Committee as contained in Annexure 3 as well as Annexure 4 and the appointment letter issued by the Headmaster as Annexure 5 indicating that the petitioner has been appointed on a vacant post do not appear to have been answered or discussed in the counter affidavit also. However, the earlier decision of the District Education Establishment Committee as contained in Annexure 3 as well as Annexure 4 and the appointment letter issued by the Headmaster as Annexure 5 indicating that the petitioner has been appointed on a vacant post do not appear to have been answered or discussed in the counter affidavit also. From Annexure 3, which is extract of the proceeding dated 23.6.1993 of the District Education Establishment Committee, it is apparent that one Mithilesh Prasad, peon of the High School Dindayalpur was transferred on the post of peon in the Aalapur on the post which became vacant due to the death of the incumbent. Thereafter, it appears that on the said vacant post the petitioner’s appointment has been made and from Annexure 5A it is quite clear that the petitioner’s joining had been accepted against the post which became vacant due to transfer of Mithilesh Prasad. 7. The above facts have neither been discussed in the impugned order nor have they been discussed and annexed in the counter affidavit as well. The issue of appointment of similar situated person, v.i.z., Pramod Kumar Singh was examined by this Court in C.W.J.C. No. 1481/2001 and vide order dated 28.1.2002, while allowing the order and directing the authority to reinstate him, a Single Bench of this Court has held as under : “In these facts and circumstances, I find it difficult to accept that the appointment of the petitioner was completely illegal and irregular. It may be true that the provisions of Circular No. 16441, dated 3.12.1980 were not formally and strictly followed in his case but the requirements of the provisions were certainly followed substantially. It is not a case in which the petitioner was inducted in an under-hand manner and through the back door by the local Head Master. His case was considered along with others in the meeting of the District Education Establishment Committee and he was included in the list for appointment. It also must not be over looked that the District Education Establishment Committee is presided over by the District Magistrate. The Government circular no. 16441, dated 3.12.1990 envisages that the Committee constituted for the purpose of selection should be headed by the District Magistrate. In this case too the selection of the petitioner was made by the District Education Establishment Committee which was presided over by the District Magistrate. The Government circular no. 16441, dated 3.12.1990 envisages that the Committee constituted for the purpose of selection should be headed by the District Magistrate. In this case too the selection of the petitioner was made by the District Education Establishment Committee which was presided over by the District Magistrate. I am, therefore, clear in my mind that the provisions of circular, dated 3.12.1980 were substantially complied with even though the circular might not have been followed formaly and strictly and in those circumstances I am of the view that the removal of the petitioner from service may not be justified. It may further be noted that at least in two other decisions arising from the same controversy, this court has taken similar views, one bring the judgment and order, dated 13.8.2001 allowing C.W.J.C. No. 641 and 7720 of 2000 filed at the instance of Prabhunath Singh and Lalan Kumar Mahto and the other being the judgment and order, dated 2.8.2001 passed in C.W.J.C. No. 7354 of 2000 filed by Ram Balal Ram and others.” 8. The case of the petitioner also appears to be on identical footing as in that case also this Court has noticed that initially Pramod Kumar Singh was also engaged as Night Guard on an emolument of Rs. 30/- per month in the year 1988. The petitioner also appears to have been appointed on daily wages vide order dated 3.1.1986 as contained in Annexure 2. So far the orders passed by the authorities giving appointment to the petitioner this Court in the case of Pramod Kumar Singh has already observed that it is difficult to accept that the appointment of the petitioner was completely illegal and irregular and held that though the provisions of circular no. 16441 dated 3.12.1980 were not strictly followed in his case but the requirements of the provisions were certainly followed substantially. Petitioner?s case has also been considered by the same District Education Establishment Committee under the same transaction. 9. Thus, in my view the petitioner „s case would also be covered by the decision already taken by this Court in the case of Pramod Kumar Singh as above. The aforesaid order passed by the Single Bench came to be questioned in L.P.A. No.1245/2002. 9. Thus, in my view the petitioner „s case would also be covered by the decision already taken by this Court in the case of Pramod Kumar Singh as above. The aforesaid order passed by the Single Bench came to be questioned in L.P.A. No.1245/2002. However, the Division Bench vide its order dated 17.12.2002 passed in the aforesaid appeal had held that the allegation of appointment was made through the back door would not be correct as it is clear that the appointment had been processed by the District Education Establishment Committee. The Division Bench was referring to the decision taken by the District Education Establishment Committee regarding the petitioner and other five persons as contained in Annexures 3 and 4 of this writ application. 10. In view of the fact that the matter has already been set at rest even by Division Bench of this Court in L.P.A. No. 1245/2002, the petitioner’s case being on similar footing, is fit to be allowed. As a result, the order passed by the respondent no. 3, the Director, Secondary Education, Bihar as contained in Annexure 12 is set aside and the petitioner is directed to be put back in service. The petitioner would be allowed to resume his duties without any further delay and in any case not later than two weeks from the date of receipt / production of a copy of this order in the office of the District Education Officer, Siwan. The petitioner would also be entitled for his salary from the date of joining his duties. However, in the facts and circumstances of the case the petitioner will not be entitled to his past salary as he has not worked for that period. His seniority, however, will be reckoned from the date of his joining on 18.9.1993. 11. Accordingly, this writ application stands allowed.