Pawan Kumar v. The State Of Bihar

Patna High Court CWJC No.2789 of 2010 (15) dt.11-02-2013 well as current salary since April,2008 and onwards as the petitioners claimed to have been validly appointed by the competent Selection Committee in the month of March,2007 and thereafter they were discharging their duties in the concerned school and were receiving salaries also which was stopped since April,2008. By filing I.A. No.4400 of 2010 petitioners have also challenged the subsequent letters dated 3.4.2010 issued by the District Superintendent of Education, Muzaffarpur by which he has given direction to the Block Education Officer to take action against the petitioners as well as the order dated 28.4.2010 passed by the Headmaster of the school by which he has restrained the petitioners from discharging their duties. Aforesaid documents have been appended as Annexures 10 and 11 respectively. It is submitted on behalf of the petitioners that Annexure-1, which is the list/roster of Panchayat Raj Teachers of Primary School as well as Panchayat Level Allocation, discloses that there are five vacancies in the Primary Schools in Mani Fulkahan. It is submitted that a provisional merit list, thereafter, was published and affixed on the Notice Board of Panchayat inviting objections but nobody objected the candidates who were short listed, therefore, the petitioners were directed to 3 Patna High Court CWJC No.2789 of 2010 (15) dt.11-02-2013 appear for counseling and eventually a final merit list was published duly selecting the petitioners. It has been stated that the Nationalized Primary School, Mani Fulkahan was up-graded in the name of Model Nationalized Middle School, Mani Fulkahan, Anchal-Kanti-2, District Muzaffarpur. Thus, petitioners were posted as Assistant Panchayat Teacher in the aforesaid school and petitioners submitted their joining on 6.3.2007. Thereafter, they were continuously discharging their duties and received their salaries till March,2008. Petitioners’ emoluments were withheld from April,2008 without any rhyme and reason. Vide Annexure- 10 appended the I.A. No.4400 of 2010, the District Superintendent of Education, Muzaffarpur directed the Block Education Extension Officer, Kanti-2, Muzaffarpur to enquire into the matter regarding the teachers who are working without any appointment letter having been issued and take appropriate action. However, from Annexure-2 series, it appears that appointment letters were issued to the petitoners on 5.3.2007 instructing them to join at Mani Fulkahan School. Vide Annexure-3 series, they had been given joining. Later on an order was passed on 28.4.2010 by the Headmaster of the concerned school restraining the petitioners from working in the concerned school as they were not having appointment letter for the Middle School. 4 Patna High Court CWJC No.2789 of 2010 (15) dt.11-02-2013 A counter affidavit has been filed on behalf of respondent nos.4 and 5 and, thereafter, three supplementary counter affidavits have been filed on behalf of respondent no.5 taking a stand that the petitioners’ joining was wrong as they were never appointed as a teachers in the Middle School and, thus, the appointment letters issued by the concerned Panchayat were also wrong as there is no Primary School at Mani Fulkahan. Therefore, the entire selection process was also questioned. However, when confronted with the question as to how the same stands reflected in the Panchayat level roster duly signed by the District Magistrate, Muzaffarpur as well as the District Superintendent of Education, Muzaffarpur as well as the Panchayat Level Allocation showing such vacancies, no effective answer could be given except that same was a mistake. Even it is assumed that the District Magistrate and the District Superintendent of Education had committed mistake by showing three posts at Primary School, Mani Fulkahan but it is surprising as to why they are alleging irregularity to have been committed by the Selection Committee only. Except the aforesaid issue regarding the non-availability of Primary School or the posts allocated in the Primary School, Mani Fulkahan, no other illegality committed during the process of selection could be pointed out by the respondents. Nothing was 5 Patna High Court CWJC No.2789 of 2010 (15) dt.11-02-2013 brought to the notice of Selection Committee concerned regarding such mistake at the relevant point of time. The aforesaid respondents never tried to rectify their mistake before the completion of the Selection process. That was not done till about one year after the joining of the petitioners at the Middle School, Mani Fulkahan. However, the position would be that if there is no Primary School concerned and the petitioners were not appointed in a Middle School then this Court cannot order for their continuance in the concerned Middle School but at the same time since they have been duly selected by the Competent Authority upon the vacancies having been earmarked and recorded in Annexure-1, then after about one year of their joining it would also not be proper to dislodge them from employment. Thus, this Court had directed the respondent nos.4 and 5 to file affidavit showing vacancies existing in the concerned Panchayat. Affidavit has been filed showing four posts earmarked for general category in Mani Fulkahan Panchayat in different school. I, therefore, deem it proper that the three petitioners should be adjusted against the three posts out of the four posts which are admittedly vacant as there has been no fault on the part of the petitioner and the fault, if any, in my opinion, was on the part of the District Magistrate, 6 Patna High Court CWJC No.2789 of 2010 (15) dt.11-02-2013 District Superintendent of Education and others who had shown the concerned vacancy in the document appended as Annexure-1. The petitioners should also be entitled for their salary for the worked period i.e. prior to passing of Annexure-11. The whole exercise of adjusting the petitioners against the vacant posts should be completed within eight weeks from the date of receipt/production of a certified copy of this order. Accordingly, this writ application stands allowed. N.H./- (Dr. Ravi Ranjan, J)