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2018 DIGILAW 373 (JHR)

Md. Sikandar Ali v. State of Jharkhand

2018-02-14

RONGON MUKHOPADHYAY

body2018
ORDER : Heard Mr. Rajendra Krishna, learned counsel for the petitioner and Mr. Atanu Banerjee, learned Government Advocate for the State. 2. In this writ application, the petitioner has prayed for quashing of the office order as contained in Memo No. 1248 dated 31.08.2006 by which the petitioner has been restrained to work as Drawing and Disbursement Authority by the order of the respondent No. 4. A further prayer has been made for a direction upon the respondents to restrain them from taking any action against the petitioner for the promotion being granted to the petitioner on the post of Headmaster in view of the order passed in CWJC No. 5219 of 2002. The petitioner further prays for a direction to allow him to continue on the post of the Headmaster and also to take action against the respondent No.5. Further prayer has been made for quashing of the office order as contained in Memo No. 1108 dated 14.08.2006 by which the allegations against the petitioner has been proved by the District Superintendent of Education, Sahebganj, although an inquiry is said to be pending before the Area Education Officer. 3. It has been stated by Mr. Rajendra Krishna, learned counsel for the petitioner that there was no occasion for the District Superintendent of Education to inquire into the allegations made against the petitioner, when the inquiry was already entrusted to the Area Education Officer, Barhait. It has further been submitted that the petitioner was granted promotion earlier to the post of Headmaster which however was subsequently cancelled and which led to the petitioner preferring a writ application and pursuant to the order passed in the same, the petitioner and several other persons were promoted as headmasters. Learned counsel submits that at the behest of the respondent No.5, the petitioner has been disturbed time and again and although the juniors to the petitioners who were promoted as headmasters were not disturbed, but on frivolous applications filed at the behest of respondent No.5, the petitioner has been prevented as an interim measure to work as a Drawing and Disbursing Officer. It has further been stated that the 1993 Rules of the State Government does not cover the case of the petitioner, although in the garb of the 1993 Rules, the inquiry was made by the District Superintendent of Education and prima facie, it was detected that the promotion of the petitioner was found to be illegal. Learned counsel submits that the inquiry report which has been submitted by the District Superintendent of Education was after the passing of the impugned order. It has been stated that neither any opportunity of hearing was given to the petitioner nor proper consideration on the show-cause submitted by the petitioner was made and in such circumstances, the impugned orders be quashed and direction be passed upon the respondents to take action against respondent No.5. 4. Mr. Atanu Banerjee, learned Government Advocate appearing for the respondents-State, on the other hand has submitted that the Area Education Officer was directed to inquire into the allegations and a report was submitted on 09.11.2006 which reveals that some irregularities were committed by the Secretary of the Establishment Committee in its meeting dated 25.08.2004 in the matter of promotion of the petitioner. Learned G.A. further submits that before issuing the impugned order, a show-cause notice was given to the petitioner and he had duly submitted reply thereto and he was also directed to submit necessary documents in support of his defence. Learned counsel further submits that the promotion which was granted to the petitioner pursuant to the order passed in C.W.J.C. No. 5219 of 2002 was subject to the preparation of a seniority list. It has been stated that since the Establishment Committee itself had committed irregularities in promoting the petitioner without verifying the sanctioned post available and in absence of roster clearance, the impugned orders have rightly been passed and therefore, the present writ application is liable to be dismissed. 5. The factual narration as per the averment made in the writ application is that the petitioner was appointed as an Assistant Teacher in Matric trained scale on 30.11.1972 and he was given I.A. trained scale on 01.04.1976. The petitioner was granted B.A. trained scale vide letter dated 18.11.1987 w.e.f. 01.04.1981. 5. The factual narration as per the averment made in the writ application is that the petitioner was appointed as an Assistant Teacher in Matric trained scale on 30.11.1972 and he was given I.A. trained scale on 01.04.1976. The petitioner was granted B.A. trained scale vide letter dated 18.11.1987 w.e.f. 01.04.1981. Since the juniors to the petitioner were granted B.A. trained scale w.e.f. 01.04.1980, the petitioner submitted a representation before the authorities and on verification, the claim was found to be genuine and vide corrigendum dated 27.04.1998, the petitioner was granted promotion w.e.f. 01.04.1980. It is the case of the petitioner that several juniors to him namely, Umesh Prasad Yadav and Murli Manohar Mishra have been granted promotion as Headmaster and in fact persons who were granted B.A. trained scale w.e.f. 01.04.1981 at serial numbers 1, 5, 10, 13, 15, 16 and 17 in the seniority list started functioning in the post of Headmaster in the light of the prevailing rules. It is the further case of the petitioner that he has not allowed to function as such, whereas juniors named above were allowed to function as Headmasters. In the seniority list prepared, the name of the petitioner in the list of Sahebganj district figured as serial No. 28, whereas persons below him in the seniority list were shown to be working as Headmaster since 1980. The petitioner represented his claim before the authorities and the same was forwarded to the District Superintendent of Education by preparing a note-sheet. The District Establishment Committee recommended to grant promotion to the petitioner on the post of Headmaster vide Memo No.1463 dated 30.10.2000 and accordingly, the petitioner was posted as Headmaster in Urdu Kanya Madhya Vidyalaya, Kalipara at Sahebganj. The petitioner was granted notional promotion w.e.f. 01.04.1983 and vide Memo No. 290 dated 07.04.2001, he was granted the senior scale of pay. The petitioner was subsequently issued a show-cause notice by the District Superintendent of Education as to under what circumstances the petitioner has been posted as Headmaster in Urdu Kanya Madhya Vidyalaya, Kalipara at Sahebganj as the post of Headmaster for that School was not sanctioned. Although the petitioner had replied to the show-cause notice, but subsequently he had received another show-cause notice in which he was directed to submit relevant documents relating to his posting and promotion. Although the petitioner had replied to the show-cause notice, but subsequently he had received another show-cause notice in which he was directed to submit relevant documents relating to his posting and promotion. Vide office order No. 1538 dated 17.08.2002, the promotion granted to the petitioner to the post of Headmaster has been cancelled and the petitioner has been transferred to a school in Barhait. This office order was challenged by the petitioner in CWJC No. 5219 of 2002 and although this Court had not interfered with the office order dated 17.08.2002, but a liberty was given to the petitioner to bring to the notice of the authorities that the juniors were promoted. Subsequently on non-compliance of the order passed in C.W.J.C. No. 5219 of 2002, a contempt application was preferred and thereafter the authorities had passed an order dated 31.08.2004, wherein the petitioner and several other persons were promoted as Headmasters. A seniority list was again prepared in which the Establishment Committee has approved and the name of the petitioner figured at serial No. 23. The seniority list was also approved by the Regional Director of Education, Santhal Paragna Division, Dumka. Certain allegations were made by one Sunil Kumar Yadav against the petitioner and he was directed to explain the allegations by the D.S.E., Sahebganj. The Area Education Officer, Barhait was asked to examine the allegations levelled against the petitioner, but the said inquiry was kept pending. Since another complaint was made by Sunil Kumar Yadav with copies to the higher authorities of the said complaint, the D.S.E., Sahebganj inquired into the allegations and having found prima facie truth in the same, office order was issued on 31.08.2006 wherein the petitioner has been deprived to work as a Drawing and Disbursing Officer. The petitioner has also claimed that it was at the behest of respondent No.5, who was the Head Clerk that the petitioner has been disturbed on several occasions, but however on account of some irregularities having been found Godda P.S. Case No. 68 of 1996 was instituted and in a departmental proceeding, a charge-sheet was also issued to the respondent No.5. 6. 6. The petitioner from the factual narration of the events appears to have been promoted to the post of Headmaster which was cancelled and pursuant to an order passed in C.W.J.C. No. 5219 of 2002, he was once again promoted to the post of Headmaster, albeit on certain conditions. Subsequently, the impugned orders were passed which have been challenged by the petitioner in the present writ application. The impugned office order dated 31.08.2006 appears to be an interim direction preventing the petitioner from working as Drawing and Disbursing Officer as prima-facie the promotion of the petitioner to the post of Headmaster was found to be illegal. The report of the District Superintendent of Education which is a part of the counter-affidavit also reveals that the Establishment Committee did not even consider the roster policy and/or the sanctioned post available while granting promotion to the petitioner to the post of Headmaster. The Establishment Committee also did not indicate as to whether the 1993 policy has been violated or not. Thus, the promotion of the petitioner to the post of Headmaster vide office order dated 31.08.2004 remained under a cloud and the Establishment Committee seems to have not considered the relevant aspects necessary for granting such promotion. It further appears that in course of inquiry, the petitioner was issued a show-cause notice to which he had duly replied. He was also directed to submit relevant document. It therefore cannot be concluded that the principles of natural justice have been violated by the authorities. Therefore, the circumstance indicated above do not compel this Court to cause interference in the impugned orders. So far as the prayer of the petitioner for a direction to the authorities to take action against the respondent No. 5 is concerned, it goes without saying that the authorities shall proceed against the respondent No. 5, if the allegations are indeed found to be true. 7. Thus on a consideration of the aforesaid, this writ application does not merit any interference and the same accordingly, stands dismissed. Petition dismissed.