Letters Patent Appeal No. 621 of 2011 · Patna High Court · 2011
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.621 of 2011 In Civil Writ Jurisdiction Case No. 6957 of 2010 ====================================================== Deepak Kumar, son of Chandeshwar Singh, resident of village- Baikathpur, P.S.- Khushrupur, District- Patna. Versus 1. The State of Bihar through the Secretary, Primary and Secondary .... .... Petitioner-Appellant Education, Government of Bihar, Patna. 2. The District Magistrate cum Chairman, Bihar Education Project, Patna. 3. The District Superintendent of Education cum District Programme Co- ordinator, Patna. 4. The Block Education Extension Officer, Khushurupur, Patna. 5. The Panchayat Secretary, Baikthpur Panchayat, Baikthpur, Patna. 6. The Mukhiya, Baikthpur Panchayat, Baikthpur, Patna. 7. The District Teacher Employment Appellate Authority through its Secretary, Bankipur, Goalghar, Patna .... .... Respondents/Respondents 8. Sri Anand Mohan Kumar, son of Yadunandan Prasad, Village- Baikathpur, P.S.-Khushrupur, District- Patna. …. Respondents ====================================================== Appearance : For the Appellant/s : Mr. Sidhendra Narayan Singh, Advocate. Mr. Uday Prasad Singh, Advocate. For the State : Mr. Md. Anis Akhtar, A.C. to G.A. 3
Legal Reasoning
For the Respondent No. 8: Mr. Shashi Dhar Jha, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 9 02-08-2013 Feeling aggrieved by the order dated 18th January 2011 made by the learned single Judge in CWJC No. 6957 of
Decision
2010, the writ petitioner has preferred this Appeal under Clause 10 2 Patna High Court LPA No.621 of 2011 (9) dt.02-08-2013 2 / 7 of the Letters Patent. Pursuant to the selection process initiated in 2006, the appellant was appointed as Panchayat Shiksha Mitra under the Gram Panchayat Raj –Baikthpur, Patna. While he was working as Panchayat Shiksha Mitra, by operation of Rule 20 (iii) of the Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as „the Rules of 2006‟), the appellant came to be absorbed as a Panchayat Teacher under the Gram Panchayat – Baikthpur. Considering his appointment as superfluous, since 2009 he has not been paid the consolidated pay to which he was entitled as a Panchayat Teacher. Feeling aggrieved, the appellant approached the District Teacher Employment Appellate Authority, Patna (hereinafter referred to as „the Appellate Authority „) in case No. 2 of 2010. The Appellate Authority, under its order dated 17th March 2010, observed that the appellant had been appointed in place of one Anand Mohan Kumar who was earlier working as a Panchayat Shiksha Mitra and was not continued in service for want of requisite qualification. The said Anand Mohan Kumar having acquired the requisite qualification, he was entitled to the benefit of reinstatement in service as a Panchayat Teacher pursuant to the Government Resolution dated 4th July 2008. Consequently, the said Anand Mohan Kumar having been inducted as a Panchayat Teacher, the appellant who had been appointed in his place had no right to continue in service. The Appellate Authority deprecated the action of the administrative authorities in not making a formal order of removal of the appellant from service, directed enquiry in respect of payment of pay/salary to two teachers working on one post and directed the District Superintendent of Education to 3 Patna High Court LPA No.621 of 2011 (9) dt.02-08-2013 3 / 7 consider the claim for outstanding pay/salary to the appellant. However, he observed that two Panchayat Teachers cannot be paid salary on one post. The matter was, therefore, disposed of. The said order was challenged by the appellant under Article 226 of the Constitution in above CWJC No. 6957 of 2010. The learned single Judge has reiterated that the appellant having replaced the aforesaid Anand Mohan Kumar, the said Anand Mohan Kumar having been re-inducted in the service, the appellant had to make room for him. The learned single Judge, however, observed that the appellant be paid salary/remuneration for the service rendered by him. Therefore, this Appeal. Learned advocate Mr. Sidhendra Narayan Singh has appeared for the appellant. He has submitted that the appointment order issued to the appellant was not conditional. Besides, under the one recruitment process as many as seven persons were appointed as Panchayat Teachers. There was no reason why the service of the appellant should have been terminated for making accommodation for the aforesaid Anand Mohan Kumar. He has further submitted that the appellant being a Panchayat Teacher, the appellant is governed by the Rules of 2006. The Rules of 2006 prescribes procedure for termination of service. Unless such procedure is followed, the appellant cannot be removed from service. The Appeal is contested by the learned advocates Mr. Md. Anis Akhtar and Mr. Shashi Dhar Jha appearing for the State Government and for the respondent no. 8, Anand Mohan Kumar respectively. The Government of Bihar has, in exercise of powers conferred by Article 243Q of the Constitution and by Section 146 4 Patna High Court LPA No.621 of 2011 (9) dt.02-08-2013 4 / 7 of the Bihar Panchayat Raj Act, 2006, framed the above referred Rules of 2006 to govern the service conditions of the elementary teachers under the Gram Panchayats. Rule 20 of the Rules of 2006 provides for repeal and saving. Clause (iii) thereof provides that the Panchayat Shiksha Mitras serving in the Gram Panchayats as on 1st July 2006 are deemed to have been appointed as Panchayat Teachers under the Rules of 2006. Since their absorption as Panchayat Teachers, the erstwhile Panchayat Shiksha Mitras would be governed by the Rules of 2006. Rule 12 of the Rules of 2006 provides for conditions of service. Clause (iv) thereof provides that a teacher can continue to be a teacher till the age of 60 years. Rule 17 of the Rules of 2006 provides for disciplinary action and the disciplinary authority. It is apparent that once appointed, a Panchayat Teacher will continue as such until he attains the age of 60 years. In case of misconduct, he can be proceeded with departmental action by the committee constituted under Rule 9(vii) of the Rules of 2006. The Rules of 2006 do not recognize any other mode of termination of service of a Panchayat Teacher. On perusal of the record it is evident that the appointment of the appellant and six others was made after due selection process. The respondents have no explanation why out of seven appointments made at a time the appointment of the appellant is treated as superfluous. In our opinion, once the appellant was absorbed as a Panchayat Teacher as on 1st July 2006, his service would be governed by the Rules of 2006. If an occasion arose to terminate his service, the procedure prescribed under Rule 17 of the Rules of 2006 should have been followed. It is not the case of the 5 Patna High Court LPA No.621 of 2011 (9) dt.02-08-2013 5 / 7 respondent authorities that the appellant had committed a misconduct which warranted termination of his service, nor the appellant has been subjected to the disciplinary action. It is undisputed that the service of the appellant has not been formally terminated. Therefore, legally speaking the appellant continues to be in service; is entitled to perform his duties and is entitled to receive the admissible salary/pay. We may also note that appointment of the appellant was not conditional appointment; nor was it made subject to the appointment of Anand Mohan Kumar. His service is not liable to be terminated on induction of the aforesaid Anand Mohan Kumar. In our opinion, the action of the respondents in not allowing the appellant to perform his duty or in not paying the salary/wages is highhanded and is totally illegal as it is contrary to the provisions contained in the Rules of 2006. Such an action could not have been sustained by the Appellate Authority or by the learned single Judge. As recorded by the Appellate Authority, the said Anand Mohan Kumar has been inducted in service as a Panchayat Teacher pursuant to the Government Resolution dated 4th July 2008. A Bench of this Court (to which one of us, the Chief Justice was a member) has, as early as in 2011, considered the aforesaid Resolution dated 4th July 2008. The Court held, “ To us, it, prima facie, appears that the aforesaid Resolution (Resolution dated 4th July 2008) though has been passed pursuant to the Division Bench judgment of this Court in the matter of Kishori Prasad vs. The State of Bihar & Ors. [2008(2) PLJR 458] is contrary to Rule 20(iii) of the Rules of 2006”. In our opinion, after the above observation, the State 6 Patna High Court LPA No.621 of 2011 (9) dt.02-08-2013 6 / 7 Government was required to give its attention to the aforesaid Resolution dated 4th July 2008 in juxtaposition of the Rules of 2006. Further, in any event while making provision for re- induction of the erstwhile Panchayat Shiksha Mitra, the State Government ought to have paid attention to the available vacancies. The Panchayat Teachers regularly appointed or absorbed as Panchayat Teachers by operation of statutory rule cannot be unceremoniously removed from service without rhyme or reason or without following the due process. For the aforesaid reasons, the Appeal is allowed. Impugned order dated 18th January 2011 passed by the learned single Judge in CWJC No. 6957 of 2010 is set aside. CWJC No. 6957 of 2010 is allowed. The order dated 17th March 2010 made by the District Teacher Employment Appellate Authority, Patna in case No. 2 of 2010 is quashed and set aside. The respondent authorities are directed to continue the appellant in service as Panchayat Teacher. The respondent nos. 5 and 6, the Panchayat Secretary and Mukhiya of the Baikthpur Panchayat are directed to allow the appellant to serve as Panchayat Teacher. The appellant will be allowed to join the duty as early as possible but not beyond 19th August 2013. In the event, the appellant is not allowed to join as Panchayat Teacher, as directed herein, the appellant will be entitled to receive salary/pay regularly as a Panchayat Teacher commencing from 19th August 2013. In absence of order of termination of his service, the appellant has continued as Panchayat Teacher. The appellant is entitled to the pay/salary for the period he was not allowed to perform the duty. The appellant will be paid the arrears of 7 Patna High Court LPA No.621 of 2011 (9) dt.02-08-2013 7 / 7 pay/salary for such period within three months from today. In the event, the concerned authority fails to pay the amount of arrears of pay/salary to the appellant within three months as directed, the appellant will be entitled to receive the amount of arrears of pay/salary with interest @ 8% per annum. The interest will be calculated for the period from 1st November 2013 till the date of payment. The question of accommodation of the aforesaid Anand Mohan Kumar will be resolved by the District Superintendent of Education, Patna within four weeks from today. Registry is directed to send copy of this order to the respondent nos. 1,3,4,5 and 6 forthwith. (R.M. Doshit, CJ) Sujit/- (Ashwani Kumar Singh, J)