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2012 DIGILAW 510 (PAT)

Veena v. State of Bihar

2012-03-26

MIHIR KUMAR JHA

body2012
ORDER 1. Heard counsel for the parties. 2. The petitioner in this writ application has sought for the following relief:- “That, petitioner files this writ petition for commanding and directing the respondents to ensure the compliance of the their own decisions as contained in letter no. 78/C dt. 28.02.2004, and also in letter No. 7/V.21/03L-2610 issued by the Secretary, Human Resources Department, Bihar, Patna (Respondent no. 2), and Director, Primary Education, Bihar Patna (Respondent no. 3) respectively, where by with a view to make the newly upgraded Middle Schools functional, they have taken a policy decision with respect to appointment of In charge Head Master. They have taken a decision that, out of available graduate and post graduate teachers in the Block, on the basis of their seniority, would be posted in the upgraded Middle School, and out of those graduate and post graduate teachers, a senior most teacher, having graduate or post graduate degree shall work as in charge Head Master in its respective School. Petitioner is only available post graduate trained teacher, in her school, be that as it may, she was not allowed to work as in charge head master. That, by ignoring the stringent provisions meant for the said purpose of appointment of In charge Head Master, the respondent authorities has made an Intermediate trained teacher namely Smt. Asha Devi, as In charge Head Mistress of Rajkiya Kanya Madhya Vidyalaya, Jamui, P.O & P.S Jamui, Dist. Jamui, whereas petitioner, despite being a post graduate trained teacher was not allowed to work as In charge Head Master of the said School. That, respondents be directed to appoint the petitioner, being an only available post graduate trained teacher in her said school (Rajkiya Kanya Madhya Vidyalaya, Jamui), as in charge Head Master. Only petitioner fulfills the criteria as fixed for the post of in charge head master, by letter No. 78/C dt. 28.2.2004, and also by letter No. 7/V.21/03L-2610 issued by the Secretary, Human Resources Department, Bihar, Patna (Respondent No. 2), and Director, Primary Education, Bihar Patna (Respondent No. 3) respectively. That in order to maintain excellence and educational standard of the school, respondents be directed to prefer the sufficiently qualified teacher like petitioner for the post of in charge Head Master.” 3. Mr. That in order to maintain excellence and educational standard of the school, respondents be directed to prefer the sufficiently qualified teacher like petitioner for the post of in charge Head Master.” 3. Mr. Ashok Kumar Chaudhary, learned counsel for the petitioner submits that the post of Headmaster on which incharge arrangement has been made by the District Inspector of Schools, respondent no. 4 suffers from vice of non-application of mind, inasmuch as, respondent no. 9 who according to the petitioner does not possess the requisite statutory qualification for the post of Headmaster/Headmistress in a Government Middle School has been sought to be made the Incharge Headmistress till posting of a regular Headmistress. He has further submitted that since the qualification of the post of Headmaster/Headmistress has been laid down by the State Government by framing rules under proviso to Article 309 of the Constitution of India, there can be no working arrangement by way of Incharge Headmaster/Headmistress of such person who does not possess the requisite qualification laid down for the post of Headmaster/Headmistress in terms of statutory Rules. 4. Counsel for respondent no. 9, on the other hand, has submitted that not only the respondent no. 9 possess the requisite qualification for the post of Headmaster/Headmistress as laid down under the statutory Rules but even otherwise she is senior to the petitioner on the basis of the order of appointment as Matric Trained Teacher. 5. He has further submitted that the same issue was raised by the petitioner in C.W.J.C NO. 2549 of 2011 , whereby and whereunder, the order in favour of respondent no. 9 authorizing her to work as Incharge Headmistress was passed on 24.01.2011 was assailed but that writ application was dismissed as withdrawn by order dated 21.10.2011. He would therefore, submit that the issue cannot be reopened by the petitioner by pursuing this writ application. 6. In this case, a counter affidavit has been filed by Block Education Officer, Jamui on behalf of Regional Deputy Director of Education, Munger Division, Munger, wherein, it has been stated that since, the petitioner is junior to respondent no. 9 as a Matric Trained Teacher, no infirmity can be said to have been caused in authorizing respondent no. 9 to have been delegated with the power of Headmistress on an incharge basis which is absolutely a temporary arrangement. 7. 9 as a Matric Trained Teacher, no infirmity can be said to have been caused in authorizing respondent no. 9 to have been delegated with the power of Headmistress on an incharge basis which is absolutely a temporary arrangement. 7. In the considered opinion of this Court, once the petitioner had assailed the order dated 24.01.2011 as with regard to authorizing respondent no. 9 and had withdrawn the writ application, this Court would find it difficult to now pass any order for the present disturbing the respondent no. 9 from the post of Incharge Headmistress, inasmuch as, such relief was refused to the petitioner by way of dismissal of her writ application in the order of this Court dated 21.10.2011 passed in C.W.J.C No. 2549 of 2011, wherein, the relief of the petitioner as against the same respondent no. 9 had read as follows:- “That this is an application for the issuance of an appropriate writ/writs for quashing the as contained in Memo no. 24 Patna dated 24.1.11 issued under the authority of the Inspection of School Deputy Director of Education Bihar Patna, whereby and whereunder the previous order as contained in office order No. 313 dated 20.07.2010 was cancelled, by directing that Sri Mati Asha Kumari will act as an incharge Headmistress to the School in question by giving the references of the letter as contained in Letter no. 1425 dated 18.8.2010 passed by the director Secondary Education Govt. of Bihar, even by ignoring the claim of the petitioner, for his continuation against the said post.” 8. This court, however, would find that the scope of the present writ application is a bit larger than the earlier writ application, inasmuch as, the petitioner has also sought a declaration for her own authorization to work as Incharge Headmistress in view of her possessing the statutory qualification. It would not be out of place to mention here that on 01.09.2011, the State of Bihar has framed Rules under proviso to Article 309 of the Constitution of India by superseding/annulling the earlier 1993 promotion Rules of Bihar Rajkiakrit Prarambhik Vidyalaya Shikshak Pronati Niyamawali 2011 laying down qualification for the post of Headmaster/Headmistress according to which only a graduate trained teacher in absence of Post Graduate Teacher can be made Headmistress of a Government Middle School. Such promotion infact has to be notified not only after drawing of the seniority list of all the teachers working in the graduate trained pay scale but also on ensuring completion of eight years period as a graduate trained teacher. To that extent, Rule 7 to 14 of 2011 Rules are relevant and have to be taken into consideration, inasmuch as, Rule 14 also provides for making any interim arrangement. 9. It also becomes clear from the perusal of Rules that the exercise of power of giving promotion on the post of Headmaster/Headmistress is vested in a promotion Committee consisting of District Education Officer, District Programme Officer (establishment), D.D.C, Senior Programme Officer of the district and one representative officer of SC and ST. If such Statutory Promotion Committee has been vested with the power of giving regular promotion and the promotion is to be notified in terms of 2011 Rules, the power of even making temporary arrangement on the promotional post of Headmaster has to be exercised by the same Committee because it is well settled that only a person having statutory qualification can be made to work on Incharge basis. If that was not the settled position in law, probably even the Peon could have been made to work on the post of Headmaster/Headmistress on an Incharge basis on the basis of Seniority and the length of service. As is well settled that promotion on a higher post has to be made from amongst the eligible persons from lower cadre and if a person is qualified to hold such post, he or she can be made to work on an Incharge basis. This being the settled position in service jurisprudence, respondent no. 3 would be under an obligation to look into the relevance of the Government decision dated 28.02.2004 as contained in Annexure-1, specially when in the interregnum period, the Government having suppressed 1993 Promotion Rules has framed new promotion Rules in the year 2011. 10. The submission of learned counsel for respondent no. 9 that since respondent no. 3 would be under an obligation to look into the relevance of the Government decision dated 28.02.2004 as contained in Annexure-1, specially when in the interregnum period, the Government having suppressed 1993 Promotion Rules has framed new promotion Rules in the year 2011. 10. The submission of learned counsel for respondent no. 9 that since respondent no. 9 possess the qualification of Sahitya Alankar and thus would be deemed to have been fulfilled the qualification of graduate trained is not prima-facie not acceptable to this Court, unless the expression graduate trained teacher defined in Rule 2(V) of 2011 Rules reading as follows:- ^^Lukrd izf’kf{kr** ls vfHkizsr gS] oSls f’k{kd tks fdlh ekU;rk izkIr fo’ofo|ky; }kjk iznr Lukrd dh ;ksX;rk j[krk gks rFkk izf”kf{kr gksA” read with the definition of trained under Rule 2(iii) laying down that :- ^^izf'kf{kr ls vfHkizsr gS oSls f'k{kd tks fuEu izf'k{k.k izkIr gksa ,oa ijh{kk esa mRrh.kZ gksa& ¼d½ nks o"khZ; f'k{kd izf'k{k.k vFkok ¼[k½ ch0,M0] fMi&,u&,M ,oa fMi&bu&Vhp] vFkok ¼x½ lsokdky esa ,d o"khZ; f'k{k.k izf'k{k.k is fulfilled by the teacher concerned. 11. The question would be whether a Matric Trained Teacher who has passed Sahitya Alankar degree from Hindi Vidyapeeth, Deoghar would also be deemed to be a graduate trained teacher in terms of 2011 Rules? As there has been nothing given in the Rules that any person having equivalent qualification can be treated to be a trained graduate, this Court would find it difficult to declare that respondent no. 9 possesses the qualification of graduate trained teacher. Nonetheless since the official respondents have notified the respondent no. 9 as Incharge Headmistress of the School, this Court in absence of relevant detail would refrain for the present in deciding as with regard to eligibility of the respondent no. 9 of her holding the qualification of the post of Headmaster/Headmistress and would leave the matter to be decided by the Promotion Committee under Rule-4 of 2011 Rules. Since, this Court on an earlier occasion has not interfered with the present working arrangement of respondent no. 9 on the post of Incharge Headmistress, it would only direct the competent Authority to place the case of the petitioner and respondent no. 9 as also other eligible teachers before the Committee under Rule 4 of 2011 Rules for taking a decision as to whether respondent no. 9 can be continued as Incharge Headmistress. 9 on the post of Incharge Headmistress, it would only direct the competent Authority to place the case of the petitioner and respondent no. 9 as also other eligible teachers before the Committee under Rule 4 of 2011 Rules for taking a decision as to whether respondent no. 9 can be continued as Incharge Headmistress. This exercise must be completed within a period of six months from the date of receipt/production of a copy of this order. 12. It is however made clear that this order however, will not come in the way of the competent Authority in making permanent arrangement on the post of Headmaster/ Headmistress in the School in question. 13. With the aforementioned observations and direction, this application is disposed of.