Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1960 of 2010 ====================================================== Rajendra Prasad S/O Late Sarug Mistry, R/O Vill/Karhara, P.S Singauri, Distt- Patna Versus .... .... Petitioner/s 1. The State Of Bihar 2. Director, Secondary Education, Govt. Of Bihar, Old Secretariat, Patna 3. Regional Deputy Director of Education, Patna Division, Patna 4. District Superintendent Of Education, Patna 5. Head Master, Middle School, Budhuchak, Fatuha, P.S- Fatuha, Distt- Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bishnu Kant Dubey, Advocate For the Respondent/s : Mr. Rishi Raj Sinha, GP XIX Mr Rakesh Kumar, A.C. Mr Rajiv Shekhar, AC ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER 3 08-03-2013 It is the case of the petitioner that on the basis of a notice board advertisement pasted in the office of respondent no.4, he became an applicant for appointment on a class IV post and was appointed as a Peon. He came to be posted in Middle School, Budhuchak, Fatuha on a vacant and sanctioned post having a pay scale. Petitioner gave his joining on 1.9.1984, continued to work and got his remuneration and emoluments. Later on, he was also sent on deputation. All had been well till the petitioner demanded time bond promotion in terms of the provisions for time bound promotion existing then. It is contention of the petitioner that on such a demand, the authority tried to rake up his past and stopped
Legal Reasoning
Patna High Court CWJC No.1960 of 2010 (3) dt.08-03-2013 2/5 his salary asking him to show cause and also produce evidence of his appointment. Instead of doing so, petitioner approached the High
Decision
Court by filing CWJC No.9136 of 2004, which was disposed of on 31.1.2005. The order of the Writ Court is Annexure- 7. Reading of the said order would show that the Writ Court did not decide any of the claims of the petitioner but directed the District Superintendent of Education to take decision with regard to validity of the service of the petitioner within a time frame. The payment of salary obviously would be dependent upon the said exercise. There is reflection that a contempt application was also filed wherein an order, which was passed, was brought to the notice of the Court, which indicated that the appointment of the petitioner was illegal. That order is Annexure-9, which is under challenge now. The first contention of the counsel for the petitioner is that there is no illegality in such appointment. Petitioner was appointed against a vacant post, which was available, of Peon in the school in question. Since this is a school, which was taken over or notified prior to 15.3.1949 and a vacancy was available in the said school, the post of Peon can be filled up by the authorities. It was only certain schools, which were taken over after Patna High Court CWJC No.1960 of 2010 (3) dt.08-03-2013 3/5 15.3.1949, where the post of Peon and Aayas were to be non existent. The petitioner was appointed in a school which had recognition prior to 15.3.1949. There is absolutely no pleading of such kind in the main writ application. The plea which is supposed to be introduced in the supplementary affidavit is devoid of any material or evidence to support such a proposition. One thing is duly accepted from the facts and evidence available that there is no post of Peon available after 1949 in any of these schools and the Government had taken a policy decision that all those persons, who were appointed on the post of Peon and Aayas, will hold the post till they remain in service and such post will automatically be abolished on their retirement, death or on giving up of service. Where was the occasion for a vacancy being available to be filled up till the year 1984 when the petitioner was appointed, is not understood. There was no occasion to appoint any person on the post of Peon in any such school after 1949. There is variation in the stand which emerges from pleadings of the petitioner in the earlier writ application as well as this writ application. At one point he was appointed by RDDE, in this case he was supposedly appointed by DSE. In other words, he does not even know by whose contribution he was born in service. Patna High Court CWJC No.1960 of 2010 (3) dt.08-03-2013 4/5 The question of advertisement on a notice board and interview etc. is only a sham, which is also pleaded without any supporting evidence to show such an exercise was carried out and as to how petitioner was the only eligible person, who came to know about such advertisement and was the sole person, who was found to fulfill the requirement of the post, which was non existent on the date he was appointed. Counsel for the petitioner thereafter tries to rely on a Division Bench decision rendered in the case of Ram Krishna Dubey v. the State of Bihar & others, reported in 2008 (1) PLJR 841 that a permanent employee cannot be dismissed without holding any departmental enquiry. The said judgment has no application to the present case for the simple reason that it is not a case of termination in the fashion in which it was required to be done. The decision or the order, which is under challenge, is a culmination of a direction issued by this Court to an authority to decide the matter in regard to validity of service of the petitioner and if that has been done after due verification, the Court comes to a considered opinion that order will have to be honoured and the petitioner cannot hide behind the ratio of the decision in the case of Ram Krishna Dubey (supra). Patna High Court CWJC No.1960 of 2010 (3) dt.08-03-2013 5/5 In the above stated circumstances, there is no occasion to interfere with Annexure-9, which is a culmination of the exercise carried out at the dictates and the direction of the High Court earlier. Writ has no merit. It is dismissed. (Ajay Kumar Tripathi, J) sk