Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7956 of 2013 ====================================================== Nutan Rana Wife Of Bijay Kumar Resident Of Village - Birpur, P.S. - Birpur, District – Supaul .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Education Department, Government Of Bihar, Patna 2. The District Magistrate, Supaul 3. The Sub-Divisional Officer, Birpur, Supaul 4. The Chief Executive Officer, Birpur Nagar Panchayat, Supaul 5. The District Teacher Appointment Appellate Tribunal, Supaul Through Its Member 6. Bharti Kumari Dev C/O Late Laxmi Narayan Dev Resident Of Quarter No. F/30, Kashiv Colony, Birpur (Supaul) .... .... Respondents ====================================================== Appearance : For the Petitioner : Smt. Shashi Priya Pathak For the Respondent/s : Mr. D.B. Singh, GP-9 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 01-07-2013 Heard learned counsel for the parties. Assailing the impugned order passed by the District Teachers Appellate Tribunal, Smt. Shashi Priya Pathak, learned counsel for the petitioner, has primarily concentrated on the aspect that the petitioner was at serial no. 1 of the Panel of the select merit list whereas the private respondent no.6 was at serial no.18 of the same Panel and, therefore, there could have been no comparison between the two of them on merits. She has then submitted that the view taken by the Tribunal that the petitioner should be accommodated at some other place if there be vacancy for her is patently illegal order which needs interference of this Court. 2
Legal Reasoning
In the first flush the argument of Smt. Pathak seems to be quite attractive but then if the reasoning recorded by the Tribunal is gone into, it becomes clear that the petitioner has become victim of her own self created circumstances. The petitioner initially has been appointed as a Panchayat Teacher on the basis of her qualification but subsequently her appointment was cancelled in the month of November, 2007. After the removal of the petitioner the respondent no.6 was appointed on 23.11.2007 as Nagar Shikshak whereafter she had jointed her post on 29.11.2007. The petitioner, however, did not assail the aforementioned order and came to this Court by filing her first writ application, CWJC no. 16309 of 2007. In that case her limited grievance was that though she was an applicant for the post of Nagar Shikshak but she was not appointed because of her holding qualification of vocational course. During the pendency of the aforesaid writ application the petitioner came out to file her second writ application, CWJC no. 16866 of 2007, wherein she had assailed the order of her termination of the post of Panchayat Teacher on 1.11.2007 along with the earlier order stopping payment of her salary dated 11.07.2007. While the second writ petition relating to the dispute to the post of Panchayat Teacher had remained pending the first 3 writ application C.W.J.C. No. 16309/2007 filed by the petitioner relating to her appointment on the post of Nagar Shikshak was decided on 16.05.2008 holding that Intermediate Vocational Course from Bihar Intermediate Education Council or its equivalent is equivalent to Intermediate of Science / Arts/ Commerce because the nature of the duty of these Nagar Shikshaks who had only to teach students of Classes -1 to V and not above. Thus the petitioner along with others, whose writ petition for Nagar Shikshak was disposed of by a common order directing them to be appointed as Nagar Shikshak within a period two months. The aforesaid order of this Court dated 16.05.2008 passed in CWJC no. 16309 of 2007 was also complied by the respondents by appointing the petitioner on the post of Nagar Shikshak and it is an admitted position that the petitioner had assumed charge of post of Nagar Shikshak in the month of August 2008. Thereafter, her second writ petition C.W.J.C. No. 16866/2007 which was directed against her earlier order of termination on the post Panchayat Shikshak dated 01.11.2007 was taken up by this Court and the same was allowed by quashing the order of termination with a finding that the continuity of the service shall also be given. It has to be noted that while 4 petitioners no.1, 2 and 4 of C.W.J.C. No. 16866/2007 had already been reinstated prior to aforesaid order dated 3.2.2009 of this Court but petitioner, who was already continuing as Nagar Shikshak since August, 2008 could not have been appointed at two places and, therefore, she was not appointed during the pendency of second writ petition even when respondents had also taken the policy decision having qualification of vocational course by treating it equivalent to Intermediate.
Legal Reasoning
Unfortunately, the learned counsel for the petitioner in CWJC no. 16866 of 2007 had suppressed this fact from the Court passing order on 03.02.2009 that the petitioner had already been appointed on the post of Nagar Shikshak in the month of August, 2008 and on account of such misleading statement given by the learned counsel appearing for the petitioner in that case, an order was passed by this Court. Relevant portion whereof reads as follows: “Petitioners no.1, 2 and 4 have already joined the post of Panchayat Teachers, but, so far petitioner no.3 is concerned, till now no such order has been issued. Counsel for the petitioners submits that similar order should be passed in favour of the petitioner no.3 also as she was also removed from the service on the basis of same impugned letter. The counsel for the petitioners further submits that the petitioners are apprehensive of 5 this fact whether their joining on the post of Panchayat Teachers in the light of orders in Annexure R/1 will be considered as fresh joining or they will get benefit of their past service experience. It is not clear from the impugned order, contained in Annexure-R/1, but, it goes without saying that by order contained in Annexure-R/1 of earlier termination order has been cancelled, as such, it will be deemed that the petitioners continued in service for the period they were terminated, petitioners will be entitled for salary and other consequential benefits for this period as well. Respondent no.6 is directed to issue similar order in favour of petitioner no.3 as by the same impugned order her services were also terminated.” It is in this way that this Court was kept in dark with regard to the appointment of the petitioner already made on the post of Nagar Shaikshak on 01.08.2008. The petitioner being the same person could not have been appointed and allowed to work in two places both as Panchayat Teacher and as Nagar Shikshak and infact the moment the petitioner had accepted the post of Nagar Shikshak in the month of August, 2008 her claim of Panchayat Teacher’s post had automatically come to an end. The petitioner even otherwise was required to inform this court on 3.2.2009 correctly that she had already appointed and had joined the post of Nagar Shikshak on 1.8.2008 pursuant to the order of this Court dated 16.5.2008 in C.W.J.C. No. 16309/2007 and yet 6 wanted to become a Panchayat Teacher for getting longer continuity of her service or payment of salary or any personal reason whatsoever. The petitioner, however simply failed to do so and, therefore, the Tribunal’s view that now the petitioner should be accommodated somewhere on the post of Panchayat Teacher if there be vacancy, does not suffer from any error. The question of inter se merit between the petitioner and respondent no.6 will have no role to play inasmuch as if the petitioner had chosen to suppress the fact from this Court, the Tribunal had rightly come to the conclusion and passed following finding and direction, does not suffer any error: “mijksDr foospukvksa ls Li’V gksrk gS fd iquokZfnuh Hkkjrh dqekjh nso dk fu;kstu jn~n djuk lgh ugha gS A CWJC 2462/2009 esa ikfjr vkns”k ds vkyksd esa Hkkjrh dqekjh nso ds fu;kstu dks fou;fer djuk lgh izrhr gksrk gS A vr% uxj iapk;r ds uxj f”k{kd fu;kstu lfefr ohjiqj ds v/;{k o lfpo dks funs”k fn;k tkrk gS Hkkjrh dqekjh nso dk fu;kstu fof/kor :Ik ls dj mudh lsok dks fou;fer djus dh dkjokbZ djsa A vxj fjfDr gS rks uwru jk.kk dk fu;kstu izkFkfed fo|ky; esa djsa vU;Fkk iapk;r f”k{kd fu;kstu lfefr cuSyhiV~Vh ¼iz[k.M clariqj½ dks funs”k gS fd ek0 mPp U;k;ky; ds vkns”k ds vkyksd esa uwru jk.kk dks iapk;r f”k{kd in ij fu;ksftr djsa A rn~uqlkj uwru jk.kk dks vkns”k gLrxr djk fn;k tk; A vihy Lohd‘r A ** The apprehension of Mrs. Pathak, learned counsel for the petitioner, that after being displaced from the post of Nagar 7 Shikshak on account of appointment of respondent no.6, she will be left with no place seems to be likely misconceived. There is already an order of this Court in CWJC no. 16866 of 2007 dated 03.2.2009 not only for reinstating the petitioner back in service but also giving her all consequential benefit including seniority. The said order, therefore, has to be complied by the respondents and the petitioner shall not be deprived of the benefit of such order even if she may not be paid salary for interim period on account of her joining the post Nagar Shikshak and not working till date in the hope of continuing in the service on the post of Panchayat Shikshak. In other words, the petitioner shall be reinstated on the post of Panchayat Teacher pursuant to her earlier appointment and will get continuity of service on account of first appointment but will not be entitled for payment of salary for the period 01.11.2007 to this date. This would be the only benefit which the petitioner can get because if she had honestly informed this Court on 3.2.2009, at the time of hearing of second writ petition in C.W.J.C. No. 16866/2007 that during the pendency of the same the petitioner had already been appointed pursuant to an earlier order of this Court dated 16.5.2008 in CWJC no. 16309 of 2007. Probably this Court would have found out some way in which her first appointment on the post of Panchayat Teacher could not have 8 been thurst on her on account of she getting the better post in the second appointment as Nagar Shikshak. Today, displacement of respondent no.6, in fact, would be a cruel joke on her because she also had appointed in November, 2007 and had continued in service till the petitioner was appointed on 01.08.2008 and, therefore, this Court would not like to interfere now with that part of the order of the Tribunal which has restored that appointment of respondent no. 6 in terms of another order of this Court passed in CWJC no. 16164 of 2009. With the aforesaid observations and directions, this
Decision
writ application is disposed of. A.Ahmad/- (Mihir Kumar Jha, J)