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2018 DIGILAW 1813 (PAT)

Md. Murshid Alam v. State of Bihar

2018-12-11

ANIL KUMAR UPADHYAY

body2018
JUDGMENT : Anil Kumar Upadhyay, J. This writ petition after remand by the LPA Court was heard at length on different dates. 2. Yesterday learned counsel for petitioner as well as petitioner in person was heard. 3. Petitioner has filed the present writ application for the following relief:- (a). To quash the order vide Memo No. 283 dated 07.04.2012 issued under the signature of Regional Deputy Director Education Magadh Division, Gaya whereby and where under the service of the petitioner has been terminated from the date of issuance of the order. (b). To stay the order vide Memo No. 283 dated 07.04.2012 issued under the signature of Regional Deputy Director Education. (c). To quash the letter vide Memo No. 1371 dated 06.06.2012 issued by Director (Administration) cum Additional Secretary Education Department Government of Bihar, Patna whereby and where under the claim of promotion of petitioner has been rejected without assigning any reason. (d). To grant all consequential benefit tot he petitioner after quashing both the aforesaid order vide Memo No. 283 dated 07.04.2012 and order vide Memo No. 1371 dated 06.06.2012 3. The factual matrix for deciding the present writ application lies in a narrow compass. 4. On 23.3.1976 petitioner was appointed vide (Annexure-1). For ready reference Annexure-1 is quoted below:- dk;kZy; {ks=h; f’k{kk funs’kd] iVuk ÁeaMy] iVuk-16 dk;kZy; vkns’k eks0 eqf’kZn vkye] eq0 Hkaoj iks[kj lCthckx] iVuk tks okg; O;fDr gS vkSj ftudk fu;qfDr ljdkjh lsok esa dgha ugha gqbZ gS dks ;ksxnku dh frfFk ls uEuoxhZ; vkns’kiky ds in ij 155-1-160-21-190 :i;s ds osrueku ds ljdkj }kjk le;≤ ij Lohd`r vU; HkRrs ds lkFk&lkFk ftykf’k{kk inkf/kdkjh] x;k ds dk;kZy; esa Jh lk/kq Áklkn vkns’kiky ds vU;= inLFkkiu ds dkj.k fjDr in ij fcydqy vLFkk;h :i;s esa fu;qfDr fd;k tkrk gS A budh lsok fdlh Hkh le; ij fcuk iwoZ lwPkuk ds lekIr dh tk ldrh gS A g0@vkj0oh0fe= {ks=h; f’k{kk mi&f’k{kkfuns’kd iVuk ÁeaMy] iVuk-16 Kkikad&3691&92 23-3-76 Áfrfyfi ftyk f’k{kk inkf/kdkjh] x;k rFkk Jh eks0 eq’khZn vkye }kjk Mk0 ,l0,e0 eksglhu eq0 iks[kj] lCthckx] iVuk&4 dks lwpukFkZ ,oa dk;ksFkZ Ásf”kr A lacaf/kr vkns’kiky dks ;ksxnku dh lwpuk rFkk le; nh tk; A g0@vLi”V 20-3-76 ¼vkj0ds0fe=½ {ks=h; f’k{kk mi&f’k{kk funs’kd ÁeaMy] iVuk-16 5. On 28.7.1976 the petitioner was confirmed as Peon with effect from 25.6.1976 by the Principal Zila School, Gaya although he was never appointed in Zila School Cadre. On 28.7.1976 the petitioner was confirmed as Peon with effect from 25.6.1976 by the Principal Zila School, Gaya although he was never appointed in Zila School Cadre. On 8.1.1990 petitioner was promoted pursuant to notification dated 30.12.1989 as Assistant Teacher. His service was approved as Assistant teacher on 13.12.1995. He was granted time bound promotion on 31.12.1999 although ten years as teacher from 8.1.1990 was not complete, the benefit of B.A. trained scale was made available in the year 1996. The petitioner was further favoured with promotion by the Regional Deputy Director as evident from Annexure-8. 6. The time bound promotion granted to the petitioner was recalled on 24.4.2001 and recovery was ordered. However, during the pendency of CWJC No.11755 of 2001 and CWJC No. 7886 of 2002 the decision was recalled and graduate trained scale, promotional scale and payment was restored. 7. That petitioner thereafter filed CWJC No. 16967 of 2011 for a direction to the respondents to grant promotion to SES from LES. 8. That CWJC No. 16967 of 2011 was disposed of vide order dated 27.9.2011 that if the person recommended along with petitioner has been granted promotion to SES and petitioner has been wrongly excluded then the Director shall see that petitioner is not put to loss. 9. In 2012 the claim of the petitioner for grant of promotion from lower education service to subordinate education service was finally considered by the Director, Education Department who provided opportunity of hearing to the petitioner in the light of the direction issued in C.W.J.C. No. 16967 of 2011 vide order dated 27.9.2000. Finally, the Director while considering the case of the petitioner for grant of promotion from lower education service to subordinate education service detected that petitioner was granted undue favour in the matter of granting appointment/promotion from the post of Peon sought enquiry in the matter and after explanation from the petitioner and on consideration of entire material on record the Regional Deputy Director(education) held out that the appointment of the petitioner as Assistant Teacher was illegal. There was no provision for promotion from class-4 to the position of teachers. It was noted that the petitioner was favoured all along in the matter of appointment and promotion. 10. The order of Regional Deputy Director dated 4.7.2012 is self explanatory. 11. There was no provision for promotion from class-4 to the position of teachers. It was noted that the petitioner was favoured all along in the matter of appointment and promotion. 10. The order of Regional Deputy Director dated 4.7.2012 is self explanatory. 11. In the backdrop of the aforesaid on 6.6.2012 the Director (Admn.) rejected the claim of the petitioner for grant of promotion from Lower Education Service to Subordinate Education Service. On 12.2.2013 the Director, Primary Education has issued order rejecting claim of the petitioner for promotion. The Director has considered various aspect of the matter of undue favour in the matter of grant of status of Assistant Teacher and further promotion. On 19.11.2013 the Principal Secretary of the Education Department on the allegation of discriminatory treatment meted to the petitioner and the claim that five other teachers have been granted the benefit of whose case stand on similar footing that of the petitioner examined the entire matter. The Principal Secretary held out on the basis of report of the Deputy Regional Director of Education, Gaya that appointment of Kamla Sinha, Abhay Kumar, Bindu Kumari and Manoj Kumar are illegal and he accordingly directed the Regional Deputy Director of Education, Magadh Division, Gaya to take appropriate decision. From the report submitted to the High Court dated 2.12.2013, it is manifest that appointment of the petitioner was found to be illegal and as such on 7.4.2012 his service was dispensed with not only service of the petitioner but similarly circumstanced others cases were considered and Regional Deputy Director of Education, Magadh Division, Gaya was directed to dispense with service of similarly circumstanced other as discussed hereinabove. 12. In the backdrop of the facts and circumstances discussed hereinabove in the instant case, the Court is required to decide whether petitioner was entitled to any benefit of illegal and per se without jurisdiction order of appointment/promotion as Assistant teacher? The court is required to address the following issues; (i) whether the Peon can be promoted as Assistant Teacher or appointed not as candidate from open market but as in service candidate.? (ii) whether the petitioner was favoured by the respondents and contrary to the rules petitioner was sent for in service training while serving as Peon? (iii) Whether the action of the respondents in rectifying the mistake and restoring status of the petitioner to the post of Peon is justified? 13. (ii) whether the petitioner was favoured by the respondents and contrary to the rules petitioner was sent for in service training while serving as Peon? (iii) Whether the action of the respondents in rectifying the mistake and restoring status of the petitioner to the post of Peon is justified? 13. In the facts and circumstances of this case when his appointment is illegal, adopting corrective measures is illegal and arbitrary. 14. Learned counsel for the petitioner submitted that petitioner was sent for training by the competent authority. 15. He submitted that under the Circular of the State Government petitioner was sent for in service training. He further submitted that petitioner has not committed any fraud and he has been granted status of the teacher by the authority competent to grant such status. He next submitted that that petitioner has now superannuated and at this stage petitioner should be treated as retired assistant teacher and he should be granted pensionary benefit treating as teacher. 16. From the materials available on record, the Court finds that the petitioner denied the undue benefit and in his favour authorities have conveniently passed order granting promotion against all norms. 17. The present case is classic example that law is not equal for all. Blue eyed people are favoured with differential and favourable treatment in the matter of elevation of status and promotion notwithstanding the fact that service rule does not provide for such promotion or elevation of status. Admittedly the petitioner was appointed as class-IV. 17. The present case is classic example that law is not equal for all. Blue eyed people are favoured with differential and favourable treatment in the matter of elevation of status and promotion notwithstanding the fact that service rule does not provide for such promotion or elevation of status. Admittedly the petitioner was appointed as class-IV. There is no law empowering the authority to elevate the status of the petitioner from Peon to Assistant Teacher and the way favour was extended to the petitioner in the matter of grant of status of teacher and grant of time bound promotion and further recommendation for grant of promotion from Lower Education Service to Subordinate Education Service is telling a tale of favouritism and nepotism as otherwise others having no push or pull have to wait for their due promotion for years together and in most of the case they have to approach High Court for consideration and grant of their due promotion from due date what was special with regard to this petitioner that he has been favoured at all stages and the authority conveniently sent the petitioner who was not teacher but Peon for in service training requires fixing of accountability on entire officials of the Education Department. 18. In the facts and circumstances of this case, the court is of the considered view that favour was shown to the petitioner in the matter of confirmation in Zila School Cadre when he was never appointed in that cadre again he was favoured when he was sent for in service training while he was Peon. Again he was extended undue favour by the respondents by granting status of Assistant Teacher in the school that was not the end. Again he was extended undue favour by the respondents by granting status of Assistant Teacher in the school that was not the end. The greed and expectation of the petitioner can be gauged from the fact that he filed case for grant of further promotion from Lower Education Service to Subordinate Education Service and only in the process of testing the case of the petitioner for grant of promotion from Lower Education Service to Subordinate Education Service, on deeper scrutiny the concerned respondents could detect on vrification of record that petitioner was illegally and unauthorizedly granted the status of Assistant Teacher, although the Regional Deputy Director has passed order of termination of yet the service of the petitioner was favoured and bail out in the situation and he was allowed to continue as Peon till his retirement i.e. 30.5.2016. 19. In the totality of the facts situation discussed hereinabove, the Court does not find any infirmity in the decision of the respondents in retiring the petitioner as Peon. 20. Mr. Amarendra Narayan, learned counsel for the petitioner submits that since petitioner has retired on 31.5.2016 the Court may consider the desirability of granting the pensionary benefit treating him as teacher. 21. In the totality of the facts situation when the Court noticed that illegality was committed and while rectifying the mistake, the Regional Deputy Director has held out that the appointment of the petitioner is illegal and he passed order for dispensing the service of the petitioner on 7.4.2012 (Annexure14) the Court is not persuaded to accept the submission of the petitioner for a direction to grant post retiral benefits treating the petitioner as Assistant Teacher as respondents have allowed to retire on attaining age of superannuation. 22. Learned counsel for the petitioner submits that from 16.3.2015 till 30.5.2016 the petitioner has worked as the reverted position of Peon and while working on that post he retired. 23. Learned counsel fairly admits that for that i.e. 7.4.2012 to 16.3.2015 the petitioner has not worked. 24. Since petitioner has not worked for the period no direction can be issued for payment for the aforesaid period. However, Considering the fact that in the matter of granting status, the respondents cannot be given clean chit and petitioner cannot be made to suffer break in service. 25. 24. Since petitioner has not worked for the period no direction can be issued for payment for the aforesaid period. However, Considering the fact that in the matter of granting status, the respondents cannot be given clean chit and petitioner cannot be made to suffer break in service. 25. Under the aforesaid circumstances, in order to do equity to the petitioner the Court directs that the aforesaid period 7.4.2012 to 16.3.2015 should not be treated as break in service and the same should be treated as service for the purpose of fixation of pension of the petitioner. Since petitioner superannuated as Peon, the Court directs the respondents to fix post-retiral benefits as Peon. 26. It is made clear that during the period when the petitioner was asked to perform the duty as Assistant Teacher under the order of respondents, the respondents are hereby restrained from making recovery of any amount which was paid to the petitioner for discharging the responsibility as Assistant Teacher as restoration of the petitioner as Peon will not authorize the respondents to recover any amount from the salary paid to the petitioner as Assistant Teacher or for any other benefit on grant of time bound promotion. 27. Accordingly, the writ petition is disposed of with direction to the respondents to work out the entitlement of the post-retiral benefits of the petitioner as Peon within the maximum period of four months from the date of receipt/production of a copy of this order. 28. In the peculiar facts of this case, the Court is of the view that for lapses of officials of the Education Department, the respondents have to fix accountability of those officers primarily responsible for grant of status of Assistant Teacher and grant of time bound promotion and those who have approved such benefit to the petitioner. 29. In view of the observation and discussion made hereinabove, the writ petition is disposed of.