Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18670 of 2013 ====================================================== 1. Nandan Kumar Chandan, son of Shiv Kumar Sah, resident of Village Saraidhanesh, P.O. Saraidhanesh, P.S. Sahdae Buzurg, Dist. Vaishali. 2. Rajesh Kumar Sharma, son of Suresh Prasad Sharma, resident of Village Kutubpur, P.S. Kutubpur, P.S. Bidupur, Dist. Vaishali. .... .... Petitioners Versus 1. The State Of Bihar through the Commissioner cum Secretary, Department of Education, Government of Bihar, New Secretariat, Bihar, Patna. 2. The Director, Department of Primary Education, Government of Bihar, New Secretariat, Patna. 3. The Director, Research and Training, Education Department, Government of Bihar, Patna. 4. The District Magistrate, Vaishali. 5. The District Education Officer, Vaishali, 6. The District Programme Officer (Establishment), Vaishali. 7. The Block Development Officer, Sahdae Buzurg, Dist. Vaishali. 8. The Block Development Officer, Bidupur, Dist. Vaishali. 9. The Block Education Officer, Sahdae Buzurg, Dist. Vaishali. 10. The Block Education Officer, Bidupur, Dist. Vaishali. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Shashi Bhushan Kumar, Adv. For the Respondent/s : Mr. Subodh Kumar Ambastha, AC to GP-14 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 09-10-2013 Heard learned counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows:- “1(i) To direct the respondent authority accept the application form of the petitioner for appearing in the primary teacher evolutionary (efficiency) examination 2013 and allow to petitioners appeared in this examination. (ii) To further direct the respondent authority to
Legal Reasoning
Patna High Court CWJC No.18670 of 2013 (2) dt.09-10-2013 2 allow the petitioners appeared in examination and gave all monitory benefits in this regard.” 3. Learned counsel for the petitioners has submitted that in terms of the advertisement issued by the authorities which amongst all other things had laid down as follows:- ^^fnukad 18-10-2013 dks rhu o"kZ dh lsok iwjh djus okys mu lHkh fu;ksftr f’k{kd dks bl ijh{kk esa vfuok;Z :i ls lfEefyr gksuk iM+sxk tks iwoZ es a vk;ksftr n{krk ijh{kk esa lfEefyr ugha gq, gSA fnukad 18-10-2013 dks rhu o"kZ dh lsok iwjk djus okys tks f’k{kd bl n{krk ijh{kk es lfEefyr ugha gksrs gS rks ;g ekuk tk;sxk fd mUgksaus n{krk ijh{kk ds ekSds dk mi;ksx dj fy;k gS ,oa rnuqlkj muds laca/k eas foHkkx }kjk vkxs fu.kZ; fy;k tk,xkA** both the petitioners had filed their applications which were also processed but, in the list of the applicants, though the names of the petitioners were initially included but subsequently their names were sought to be deleted on the ground that they did not fulfil the requisite condition of completing three years service. 4. Counsel in this regard has with regard to the petitioner no.2 also referred to the order of this Court dated 4.1.2013 in CWJC No. 3046 of 2010, whereby and whereunder, the order of his termination was set aside with a direction for his being restored back to his post. He has submitted that the aforesaid order of this Court was also acted upon by the authority by passing Patna High Court CWJC No.18670 of 2013 (2) dt.09-10-2013 3 the necessary order of reinstatement of the petitioner no.2 on 19.1.2013, relevant portion whereof reads as follows:- ^^dk;kZy;] iz[k.M fodkl inkf/kdkjh] fcnqiqj …oS’kkyh‰ dk;kZy; vkns’k Jh jkts’k dqekj ’kekZ] lsok eqDr iz[k.M f’k{kd m0 e0 fo0 dqrqciqj mRrjh] ftudk fu;kstu bl dk;kZy; ds Kkikad 06@f’k0 fnukad 31-10-08 }kjk jn~n fd;k x;k Fkk] }kjk ekuuh; mPp U;k;ky;] iVuk eas nkf[ky CWJC la0&3046@10 …Jh jkts’k dqekj ’kekZ ouke fcgkj ljdkj ,oa vU;‰ esa fnukad 04-01-13 dks fuEuor~ U;k; vkns’k ikfjr fd;k x;k gS& "Both the Panchayat as well as the District Teachers Employment Appellate Tribunal therefore have misapplied themselves to the issue. There was no occasion to reappraise or terminate the service of the petitioner from the post of Panchayat Shiksha Mitra as has been done by the Block Development Officer, Bidupur on 31.01.2008 as Annexure-1. Annexure-1, as well as Annexure-2 stands quashed. Writ Application is allowed. Petitioner would be restored to its post." vr% ekuuh; mPp U;k;ky;] iVuk }kjk ikfjr mi;qZDr U;k; vkns’k ds lEeku esa ’kekZ dks rRdky izHkko ls fo|ky; esa ;ksxnku dh vuqefr nh tkrh gSSA g0@& …xaxk lkxj flag‰ iz[k.M fodkl inkf/kdkjh fcnwiqjA Kkikad 07@f’k0@fcnqiqj@fnukad 19-01-13** Patna High Court CWJC No.18670 of 2013 (2) dt.09-10-2013 4 5. Learned counsel for the petitioners further explaining the case of the petitioner no.1 has submitted that even in the case of the petitioner no.1, there was an observation of this Court in the order dated 17.8.2012 in CWJC No. 13948 of 2012 that he would be entitled for reinstatement of service if the criminal case against him would end in acquittal and to that extent, he relies on the following passage of the aforesaid order:- “----The Court declines any interference with the order of the dismissal at this stage. But if the allegations are not substantiated in the criminal trial and the petitioner makes an application for reinstatement, it shall have to be considered immediately in accordance with law in all its aspects.----” 6. In this regard, he has also submitted that by a judgment dated 23.2.2013, the petitioner no.1 was acquitted by the trial court, whereafter, an order was passed by the Block Development Officer pursuant to the decision taken by the Block Teacher Employment Committee, relevant portion whereof reads as follows:- ^^dk;kZy; iz[k.M f’k{kd fu;kstu lfefr lgnsbZ cqtqxZ] oS’kkkyh dk;kZy; vkns’k Jh uUnu dqekj pUnu] lsok eqDr] iz[k.M f’k{kd] jktdh; e/; fo|ky; lgnsbZ cqtqxZ ds laca/k esa ekuuh; mPp U;k;ky; iVuk }kjk lh0MCy0ts0lh0 ua0&13948@12 uUnu dqekj pUnu ouke fcgkj ljdkj esa fnukad 17-8-12 dks ikfjr vkns’k] ekuuh; flfoy Patna High Court CWJC No.18670 of 2013 (2) dt.09-10-2013 5 U;k;ky;] gkthiqj }kjk nsljh Fkkuk dk.M la0 213@08 esa fnukad 23-02-13 dks ikfjr nks"k eqDr laca/kh vkns’k] fnukad 30-01-10 dks iz[k.M f’k{kd fu;kstu lfefr }kjk fy;s x;s fu.kZ;] ftyk dk;Zdze inkf/kdkjh …LFkkiuk‰] oS’kkyh ds i=kad 4368] fnukad 24-11-11] ftyk f’k{kk inkf/kdkjh oS’kkyh ds i=kad 3787] fnukad 14-05-13 }kjk izkIr vkns’k eUrO; ,oa fnukad 29-05-13 dks iz[k.M f’k{kd fu;kstu lfefr lgnsbZ cqtqxZ fd cSBd esa fy;s x;s fu.kZ; ds vkyksd esa rRdkfyu iz[k.M f’k{kk inkf/kdkjh] lgnsbZ cqtqxZ ds Kkikad 793] fnukad 05-12-08 }kjk Jh pUnu ij fd;s x;s lsok eqfDr laca/kh dk;Zokgh dks iwoZ frfFk ls fujLr dj lsok es a iquokZlh djrs gq;s Jh pUnu dks m0e0fo|ky;] ’ks[kksiqj Vksys fodzeiqj esa inLFkkfir dj fo|ky; esa dk;Z djus dh vuqefr nh tkrh gSA m0e0 fo|ky;] ’ks[kksiqj Vksys fodzeiqj ds iz/kkuk/;kid i= izkfIr ds ,d lIrkg ds vUnj Jh pUnu dks ;ksxnku djkdj lwpuk izfrosfnr djsaxsA g0@& 6@6@13 …izoh.k dqekj nhid‰ iz[k.M fodkl inkf/kdkjh&lg&lfpo iz[k.M f’k{kd fu;kstu lfefr lgnsbZ cqtqxZ …oS’kkyh‰ Kkikad 757 lgnsbZ cqtqxZ] fnukad 06@06@13** 7. On the basis of these materials on record, learned counsel for the petitioners has submitted that the decision to deprive both the petitioners of an opportunity of appearing in the Primary Teacher Evolutionary (Efficiency) Examination, 2013 is simply arbitrary and illegal, inasmuch as, both the petitioners would be deemed to have completed the period of three years of Patna High Court CWJC No.18670 of 2013 (2) dt.09-10-2013 6 their service in view of their order of reinstatement.
Legal Reasoning
8. Mr. Subodh Kumar, learned counsel for the State does not dispute the aforesaid facts emerging from the records but he has sought to distinguish the case of the petitioner no.1 on the ground that he did not earn clean acquittal so as to be given the benefit of reinstatement. According to him, the judgment of the trial court would go to show that such acquittal was earned in view of the compromise which would not amount to clean acquittal and, therefore, the decision taken by the Block Development Officer on 6.6.2013 would be simply illegal, inasmuch as, this Court had never envisaged that an acquittal by way of benefit of doubt or on compromise will also lead to reinstatement of the service of the petitioner. 9. Having regard to the aforesaid rival submissions, this Court is of the view that there would be no difficulty in holding that the petitioner no.2 having been reinstated under the order of this Court will be deemed to have completed the period of three years service, inasmuch as, the concept of reinstatement by itself connotes taking into account the previous services rendered by an employee. 10. In that view of the matter, so far the petitioner no.2 is concerned, he will be eligible for appearing in the aforesaid Patna High Court CWJC No.18670 of 2013 (2) dt.09-10-2013 7 Primary Teacher Evolutionary (Efficiency) Examination, 2013 and this Court would direct the concerned authorities to allow the petitioner no.2 to appear in the said test which is going to be held on 19.10.2013. 11. As with regard to the case of petitioner no.1, this Court would be in agreement with the submission of Mr. Subodh Kumar that the petitioner no.1 was facing some very serious charge under Section 354 of the Indian Penal Code which would be a deterrent for a teacher who was alleged to have misbehaved with a girl student. This Court, however, would find that on the basis of the direction given in the earlier order of this Court for reinstatement of the petitioner no.1 on the basis of his acquittal, the authorities themselves have allowed the reinstatement of service of the petitioner no.1 as noted above. 12. In that view of the matter, though this Court for the time being would also direct the authorities to allow the petitioner no.1 to appear in the aforesaid examination going to be held on 19.10.2013 but it is made clear that on account of such appearance of the petitioner no.1, he will have no indefeasible right to also continue in service. In other words, even if the petitioner may succeed in the said examination, nothing will come in the way of the respondents to take an appropriate action against Patna High Court CWJC No.18670 of 2013 (2) dt.09-10-2013 8 him in view of the judgment of the trial court as against the petitioner no.1 being not a case of clean acquittal. 13. With the aforementioned observations and
Decision
direction, this application is disposed of. 14. Let a copy of this order be handed over to learned Government Pleader no. 14 for its strict compliance by the Respondents. (Mihir Kumar Jha, J) Rishi/-