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Jharkhand High Court · body

2018 DIGILAW 2011 (JHR)

Kishori Singh v. State of Jharkhand

2018-09-05

S.N.PATHAK

body2018
ORDER : Heard the parties. 2. Petitioner has approached this Court with a prayer for direction upon the respondents to treat the date of appointment of the petitioner as 27.01.1982 in Project High School, Mishraul, District- Chatra, to the post of Clerk as the actual date of appointment and further for quashing memo No. 549 dated 22.06.2011 (Annexure-6) and memo No. 546 dated 22.06.2011 (Annexure-6/1), issued by the District Education Officer, Chatra, whereby the date of initial appointment of the petitioner has been shifted to 01.04.1986 from 27.01.1982. It has also been prayed for considering the date of appointment as 27.01.1982 for the purpose of grant of the benefits of 1st and 2nd ACP and 3rd MACP and also for fixation of pensionary benefits. 3. The factual exposition as has been delineated in the writ petition is that petitioner was appointed as Clerk by the Secretary of the Managing Committee in Project High School, Mishraul, Chatra vide letter No. 3 dated 27.01.1982. Thereafter, vide office order contained in memo No. 2169-70 dated 16.03.1985, the services of the petitioner was approved with effect from the date of his appointment i.e. 27.01.1982 in the pay-scale of Rs.580-860. The said approval of the date of appointment finds strength from the letter dated 12.10.1982 issued by the Educational Commissioner of the erstwhile State of Bihar, whereby certain guidelines were laid down for appointment of Clerks and Peons of the Project High School and recognition of their services, where it was clearly held that recognition of the services were granted w.e.f. 01.01.1982 or the date of joining whichever is later. It is the further case of the petitioner that in view of letter dated 12.10.1982, issued by the Education Commissioner, Bihar, the District Education Officer, Hazaribagh vide its Office Order contained in memo No. 49C dated 07.05.1988, granted approval of the services of the petitioner w.e.f. 27.01.1982, which is the first day of joining of the petitioner in the School. It is the specific case of the petitioner that Director, Secondary Education, Jharkhand vide its letter dated 28.03.2007, issued a direction regarding appointments of the teachers by the Managing Committee and fixing the cut-off date as 01.04.1986 and salary was to be fixed accordingly. The petitioner is mainly aggrieved by the contents of this letter and as in his case also the date of appointment was re-fixed as 01.04.1986 in place of 27.01.1982. The petitioner is mainly aggrieved by the contents of this letter and as in his case also the date of appointment was re-fixed as 01.04.1986 in place of 27.01.1982. Subsequently, the petitioner retired from his service on 28.02.2015. After retirement, the petitioner received the retiral benefits as well as the benefits accrued to him by way of 1st and 2nd ACP, however, he was denied the benefits of 3rd MACP taking into consideration his date of appointment as 01.04.1986. Aggrieved by the change of date of appointment, the petitioner represented before the respondent-authorities but no heed was paid to the said representation and as such, present writ petition has been preferred. 4. Mr. Bhanu Kumar assisted by Ms. Pinki Tiwary, learned counsel appearing for the petitioner strenuously urges that the respondents have illegally and arbitrarily shifted the date of appointment from 27.01.1982 to 01.04.1986. It has been further argued that respondents are precluded from shifting the date of appointment of the petitioner in view of the Bihar Re-organization Act also. Learned counsel heavily relied on the guidelines issued by the erstwhile State of Bihar under the pen and signature of the Education Commissioner. Reference has been made to para-19 of the letter dated 12.10.1982 (Annexure-2 of the writ petition) issued by the Education Commissioner, Bihar. Learned counsel further argues that Office Order dated 07.05.1988 (Annexure-3 of the writ petition) clearly speaks of the date of appointment of the petitioner as 27.01.1982. In view of the admitted fact that the respondents themselves have admitted that the date of initial appointment of the petitioner was 27.01.1982, there was no occasion to shift the date of initial appointment of the petitioner from 27.01.1982 to 01.04.1986 and the said change of date is totally dehors the rules and not tenable in the eyes of law. 5. Per contra, counter-affidavit has been filed. Mr. 5. Per contra, counter-affidavit has been filed. Mr. Anshuman Kumar, learned counsel appearing for the respondent-State, draws the attention of the Court towards Annexure-1 series of the writ petition and submits that a decision has been taken by the District Education Officer, Hazaribagh on 16.03.1985 for shifting the date of initial appointment of the petitioner from 27.01.1982 to 01.04.1986 and in view of the decision of the District Education Officer, there is no illegality or any infirmity in shifting the date of initial appointment of the petitioner as District Education Officer is fully empowered to shift date of appointment of the petitioner, as the services rendered by the petitioner by way of appointment made by the Management Committee of the School was not taken into consideration and it was only after absorption of the said school by the Govt., effective date of appointment was fixed. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that the case of the petitioner needs consideration. Admittedly, date of initial appointment of the petitioner was 27.01.1982 which finds strength from Annexur-3 of the writ petition, wherein, a decision has been taken by the District Education Officer, Hazaribagh to treat the intial date of appointment of the petitioner as 27.01.1982. The said decision was taken in view of the guidelines issued by the Education Commissioner of the erstwhile State of Bihar. As such, no illegality has been committed by the respondent-District Education Officer in fixing the date of initial appointment as 27.01.1982. Respondents are not permitted to fix an imaginary date of initial appointment of the petitioner as 01.04.1986 and the same has to be fixed as per the guidelines issued by the Education Commissioner of the erstwhile State of Bihar. Para-19 of the guidelines issued by the Education Commissioner, Bihar clearly speaks that date of appointment in case of Peons and Clerks has to be taken as 01.01.1982 or the date of joining whichever is later. In the instant it has been fixed as 27.01.1982 7. As a cumulative effect of the aforesaid observations, rules, guidelines and legal proposition, the impugned orders contained in memo No. 549 dated 22.06.2011 (Annexure-6) and memo No. 546 dated 22.06.2011 (Annexure-6/1), issued by the District Education Officer, Chatra, so far it relate to present petitioner, are hereby quashed and set aside. The respondent Nos. As a cumulative effect of the aforesaid observations, rules, guidelines and legal proposition, the impugned orders contained in memo No. 549 dated 22.06.2011 (Annexure-6) and memo No. 546 dated 22.06.2011 (Annexure-6/1), issued by the District Education Officer, Chatra, so far it relate to present petitioner, are hereby quashed and set aside. The respondent Nos. 3 and 4 are directed to treat the date of initial appointment of the petitioner as 27.01.1982 and grant all the consequential benefits including the benefits of 1st and 2nd ACP and 3rd MACP to the petitioner, treating his initial date of appointment as 27.01.1982. Needless to say that as the petitioner has already superannuated, the revised pension shall also be fixed taking into consideration his date of initial appointment as 27.01.1982. The entire exercise must be completed within a period of four weeks from the date of receipt/production of a copy of this order. 8. As a sequel of the aforesaid observations, the writ petition stands allowed.