Dadan Ram v. State Project Director, Bihar Education Project Council

Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 omissions and commissions on his part and by completely contravening the service rules framed by the respondents themselves which was supposed to be followed before imposing such a major penalty of termination of service of the petitioner.

#2. For implementation of various programmes launched by the Government of India for upliftment of education among the illiterates, especially among the major and minor female community, respondent-State of Bihar in the Human Resources Development Department constituted one Bihar Education Project Council (hereinafter referred to as the ‘Council’ for the sake of brevity) for achieving the object of extending elementary education among the rural section of the society, especially among the minor and major female community. Subsequently the Government of India launched one scheme known as Sarva Shiksha Abhiyan, which was to be implemented by the different States including the State of Bihar and as such the Sarva Shiksha Abhiyan also was decided to be implemented by respondent- Council.

#3. Under the Sarva Shiksha Abhiyan Scheme, residential girls’ schools were decided to be established in every Block of the different Districts of the State of Bihar, especially in the most backward category Blocks of such Districts. Such residential girls’ schools, proposed to be opened, were to be named as Kasturba Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 Gandhi Balika Awasiya Vidyalayas. For regulating and monitoring the functioning of such schools, an advertisement was published in the daily newspaper, inviting applications for appointment to the post of Assistant Programme Officers, District Coordinators and other posts on contract basis.

#4. Learned counsel for the petitioner stated that he being eligible for the said post, submitted his application within time prescribed and the applications of the petitioner and others were considered and after written test and oral interview, the authorities decided to appoint the petitioner and issued letter dated

10.01.2007 under the signature of the State Project Director of the Council, appointing the petitioner on the post of Assistant Programme Officer with effect from 04.01.2007 on contract basis for a period of three years or till the completion of the Sarva Shiksha Abhiyan Scheme. Thereafter, he was posted in the District Level Office of respondent-Council at Lakhisarai and continued to discharge his duties to the satisfaction of all concerned.

#5. Learned counsel for the petitioner submitted that even after completion of the said period of three years, the petitioner was directed to discharge his duties on the said post and vide letter dated 03.02.2010 the authorities gave extension of contract for a Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 further period from 04.01.2010 to 31.03.2012 (the period of completion of the said Scheme), keeping his headquarter at Lakhisarai unchanged.

#6. Learned counsel for the petitioner averred that the petitioner was subordinate to respondent-District Programme Officer and at his instance a meeting was held on 15.02.2011 for considering the appointments of Wardens, Night Guards, Peons etc. on stop gap arrangement basis till the formal appointments to those posts, pursuant to advertisement dated 11.02.2011, were made and in the said meeting some members referred to letter dated 09.02.2008, purportedly issued from the Council, which provided for making appointments on stop gap arrangement basis and relying upon the said letter, the petitioner, in good faith and without any oblique motive, endorsed the decision to make appointments against the vacant sanctioned posts of Wardens, Peons, Night Guards etc. in different Kasturba Gandhi Balika Awasiya Vidyalayas, falling within his components pending regular appointments against those posts and because of undue pressure exerted upon the petitioner by the District Programme Officer, he unwillingly signed the minutes of the meeting dated

15.02.2011, endorsing such appointments on stop gap arrangement basis. Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201

#7. Learned counsel for the petitioner claimed that pursuant to the aforesaid decision of the Committee, appointments in different components under the jurisdiction of the petitioner were to be made in different Blocks i.e. Piparia, Halsi, Barahia, Ramgarh Chowk etc. only after the decision of the Selection Committee of respective Block Level Selection Committees and after holding separate meetings. Such meetings were held at the instance of the District Programme officer, but he deliberately did not participate in the meeting and persuaded the petitioner to preside over such meetings, in which appointments were made.

#8. However, the earlier District Programme Officer was transferred and the incumbent District Programme Officer was posted in the month of July, 2011 and immediately thereafter the petitioner informed the newly appointed District Programme Officer about the illegalities and irregularities made by the earlier District Programme Officer in the matter of appointments by completely ignoring the advertisement published for the said purpose, whereafter the District Programme Officer, vide letter dated 21.07.2011, directed different Kasturba Gandhi Balika Awasiya Vidyalayas to terminate such illegal appointees, stop payment of their wages and submit their reports. The petitioner also stopped payment of wages of such illegal appointees with Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 effect from July, 2011 and as such illegal appointees received their wages on the basis of such illegal appointments only for a period of three months.

#9. However, inspite of the above facts letter dated

06.06.2012 was issued by the State Project Director asking the petitioner to submit his written explanation as to under what circumstances he presided over the meetings and proceeded to make appointments on stop gap arrangement basis, referring to letter dated 06.02.2008, which was never issued by headquarter of the department and as such it was a forged letter. In the said letter, the petitioner was sought to be held as actively involved in such illegal appointments for extraneous consideration and in response thereto, the petitioner submitted his explanation to the charges on 20.06.2012. Thereafter, the State Project Director remitted the explanation of the petitioner the District Programme Officer on 06.09.2012 asking him to call for a written explanation from the petitioner once again and submit a report after consideration of his written explanation.

#10. In the said circumstances, the petitioner submitted his written explanation before the District Programme Officer also on

22.09.2012, whereafter the District Programme Officer considered the explanation of the petitioner and perused the Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 official records relating to the appointments concerned and submitted his report dated 22.09.2012 before the State Project Director stating that it was the earlier District Programme Officer alone, who could be held responsible for such illegal appointments and the petitioner was forced to put his signature on the minutes of different meetings of the Block Level Selection Committee.

#11. Learned counsel for the petitioner asserted thereafter the impugned office order dated 15.10.2012 was issued by the State Project Director terminating short term contract of the petitioner with effect from 20.10.2012 on the ground of his unsatisfactory functioning as Unit Incharge of Kasturba Gandhi Balika Awasiya Vidyalayas. However, amount equivalent to one month pay was directed to be given to him and his contract was extended from 01.04.2012 to 19.10.2012 only.

#12. The petitioner has challenged the said order of termination on the ground that neither his explanation dated

20.06.2012 nor enquiry report dated 22.09.2012 in favour of the petitioner was considered by the authority concerned nor even the provisions of Bihar Education Project Council Rules were considered. In this regard, learned counsel for the petitioner referred to a decision of this Court dated 08.10.2012 passed in C.W.J.C. No. 18827 of 2012. Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201

#13. Learned counsel for the petitioner argued that admittedly the initial contract was for a period of three years from 10.01.2007 and was subsequently extended till 31.03.2012 and finally by the impugned order it was extended up till 19.10.2012, but by letter dated 03.02.2010, it is quite apparent that the period of contract was till the completion of the Project. Since the Project was not complete and is still continuing, there was no occasion at all for terminating the contract by the impugned order.

#14. Hence he averred that neither on the ground of completion of the Project and contract nor on the ground of any serious allegations levelled against the petitioner, the authorities were justified to terminate the contract of the petitioner and that too without considering the facts and circumstances as well as the materials on record.

#15. On the other hand, learned counsel for the respondents stated that the contract of 2007 was for a period of three years, which was extended in the year 2010 till 31.03.2012, in which it was made clear that further extension could be granted only if the service was found satisfactory. Hence, when the service of the petitioner was found unsatisfactory, he was removed after giving him due extension and additional pay for one month as per the Rules and hence neither it was punitive nor any stigma was Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 attached to it.

#16. Learned counsel for the respondents submitted that the proceeding could decide the extent of the petitioner’s involvement and even exoneration in the enquiry report hardly affected the merit of the impugned order as the respondents were not satisfied with the conduct of the petitioner, which was made clear. Thus, after the contract having ended by efflux of time, further extension can only be on the satisfaction of the employer and hence the employer was well within his right to refuse to extend the contract. He averred that such short term contract cannot be held to be civil appointment and such employee not having civil post, no protective umbrella of Article 311 of the Constitution of India can be provided. In this connection, he relied upon a Division Bench decision of this Court dated 06.08.2012 passed in L.P.A. No. 677 of 2011.

#17. Considering the averments made by learned counsel for the parties and the materials on record, it is quite apparent that Bihar Shikha Pariyojna Parishad is an organization registered under Society Registration Act XXI-1860. A time bound programme of universalisation of elementary education called as Sarva Shiksha Abhiyan is run by this organization and to run the programme posts at District level as well at State level are created. Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 These posts are filled up either by appointment on short term deputation basis or short term contract basis.

#18. Furthermore for smooth running of the Scheme, a provision has been made in Bihar Shiksha Pariyojna Parishad Service Rules, 2010 (amended) and the State Project Director has been empowered under rule 16(a) to terminate the services of the employees, whose services have been found unsatisfactory due to misconduct or gross irregularities, without assigning any reason, with one month notice or paying the salary of one month. If the employee, whose contract has been terminated by the State Project Director is aggrieved, he may appeal before the Bihar Shiksha Pariyojna Parishad under rule 57(iii) of the Service Rule, 2010, but the petitioner has not yet submitted his appeal before the Appellate Authority prior to coming to this Court.

#19. In the aforesaid facts and circumstances, it is quite apparent that complicated questions of facts with respect to the functioning of the petitioner and extension or otherwise of the fixed term contract are involved in this case and for considering such matters, provision of appeal has been specifically made in the Service Rules.

#20. Accordingly, without going into the merit of this case, this writ petition is disposed of with a liberty to the petitioner to Patna High Court CWJC No.20383 of 2012 (10) dt.08-01-201 approach the appellate authority concerned. If such an appeal is filed by the petitioner along with requisites and a copy of this order as well as an interlocutory application for condoning the delay within one month from today, the appellate authority shall consider the delay caused due to the pendency of this writ petition and shall decide the appeal on its own merit, expeditiously without being prejudiced by this order one way or the other. (S.N. Hussain, J) MPS/-