The High Court · 2023

Facts

Heard learned counsel for the parties.

2. Petitioner has approached this Court with a prayer for quashing the Memo No. 06/Ra.Vi.1-34/2018-2613, dated 24.09.2018 (Annexure- 8) passed by respondent no. 2, whereby and whereunder he has been dismissed from the service. Petitioner has further prayed for quashing the order as contained in Memo no. 22/Ranchi dated 05.07.2019 (Annexure- 10) passed by Principal Secretary – cum – Appellate Authority whereby and whereunder the appellate authority dismissed the appeal of the petitioner. Petitioner has further prayed to reinstate him in service with all consequential benefits including the back wages. Petitioner has further prayed for quashing the entire departmental proceeding against him.

3. According to the petitioner, he was appointed by the office order as contained in memo no. 202, dated 06.02.1984 to the post of Assistant Teacher, Government Girls’ Middle School, Chatra. Thereafter, petitioner joined to the said post on 13.02.1984 and the same was accepted by the Headmaster of Government Girls Middle School, Chatra (Hazaribagh). Petitioner was thereafter granted promotion in Junior Selection Grade by office order dated 20.09.1996 in the pay scale of Rs.1320 – 2040 in the form of first time bound promotion with effect RC 2 from 13.02.1994. After bifurcation of the State, petitioner was allocated Jharkhand cadre.

4. It is further case of the petitioner that a memo of charge (Prapatra – ‘Ka’) was framed against her by memo no. 1178, dated 30.04.2011 alleging therein that she was appointed without following the procedure and neither any advertisement was issued nor interview was taken. The Regional Deputy Director of Education, North Chhotanagpur Division, Hazaribagh being the Enquiry Officer, vide letter no. 671, dated

27.05.2011 directed the petitioner to submit reply to the memo of charge which was duly replied by her denying the allegations levelled therein. Without examination of any witness, the second show-cause notice as contained in letter no. 1165, dated 03.05.2012 was served upon the petitioner. Without considering reply of the petitioner, the impugned penalty order as contained in Memo No. 06/Ra.Vi.01-34/2018 – 2613, dated 24.09.2018 was passed by the respondent no. 2 dismissing petitioner from the service. The appeal preferred by the petitioner on

03.11.2018 was also not considered by the respondents. Being aggrieved

Legal Reasoning

by the same, petitioner moved before this Court in W.P.(S) No. 5874 of 2018 which was disposed of directing the respondents to consider and dispose of appeal preferred by the petitioner. However, vide order dated

23.05.2019, the appeal preferred by the petitioner was dismissed vide memo no. 22/Ranchi dated 05.07.2019, which was received by the petitioner on 13.07.2019. Being aggrieved, petitioner has been constrained to knock door of this Court.

5. Mr. Arjun Narayan Deo, learned counsel appearing on behalf of the petitioner submits that neither the memo of evidence contained in letter no. 2616, dated 22.08.2009, as referred to in the memo of charge dated 30.04.2011 nor the report submitted by the CBI was ever supplied to the petitioner. Even without examining a single witness, the second show-cause notice was served to the petitioner. The enquiry report allegedly enclosed with the second show-cause notice dated 03.05.2012, was never served upon the petitioner. Learned counsel further argues that petitioner was never given any notice of hearing on appeal and behind her back, the appellate authority dismissed the same in flagrant RC 3 vi8olation of relevant rules. The respondents should not have denied opportunity of being heard the petitioner during course of investigation and should not have passed impugned order without giving reasonable opportunity of hearing. The petitioner has rendered service for more than 34 years without any complaint and at the fag end of service just before her retirement on 30.09.2019, she has been terminated without following the principles of nature justice. Non-service of the enquiry report of the Enquiry Officer has seriously prejudiced case of the petitioner to take appropriate defence and as such the penalty order as also the appellate order deserve to be quashed and set aside.

6. Ms. Boby Priyanka, AC to learned Sr. SC-I representing State submits that the petitioner was wrongly and illegally appointed to the post of Assistant Teacher purely on temporary basis in the pay scale of Rs.580-860. In view of memo no. 202, dated 06.02.1984, she was allowed to join by the Headmistress, Govt. Girls’ Middle School, Chatra, which was a lower subordinate education service cadre post. As per notification no. 445, dated 09.07.1991, the teachers working in the lower subordinate services, were promoted to Subordinate Education Service. The benefits of pay on promotion from Lower Subordinate Education Service to Subordinate Education Service was to be given for the periods

20.07.1985 to 17.05.1990 only after due approval by the Financial Department. Due to delay in grant of pay scale of Subordinate Education Service, writ petition being CWJC No. 1690 of 1997 was filed by one Sushma Kumari Gope before the Hon’ble Patna High Court in which the Director, Secondary Education had filed counter affidavit mentioning therein that on or after 1980, the Female Teachers in Govt. Girls Middle Schools have wrongly and illegally been appointed and they have also irregularly been promoted. A decision was taken to enquire into the matter through the Ministerial Vigilance Department. Thereafter, in CWJC No. 9847 of 1998 filed by one Brajesh Kumar and others, the Hon’ble Patna High Court had recommended the matter for CBI Enquiry. Learned counsel representing State further argues that petitioner was appointed wrongly and illegally by the District Inspectress of

7. RC 4 Schools, Hazaribagh and further in connivance with the Headmistress, petitioner joined service in Govt. Girls’Middle School, Chatra. Petitioner was appointed by the then District Inspectress of school on 13.02.1984 to the post of Assistant Teacher, which belongs to the Lower Subordinate Education Service Cadre post and is a State Cadre post and the District Inspectress of Schools had no power or jurisdiction to appoint the Assistant Teachers having the State cadre. Neither any advertisement was published nor any test/ interview was conducted. It is a back door appointment and one who has come through the back door has to go through the same door. After coming to the knowledge about illegality in such appointment, the Director, Secondary Education, Bihar, Patna referred the matter before the CBI for enquiry and after investigation, it has come to the knowledge that there is no record with regard to appointment of petitioner. After report of the CBI, the Deputy Secretary, Home Department, Bihar, Patna had recommended vide letter no. 3371, dated 12.04.2005 to the Secretary, Secondary Education Department, Bihar, Patna to take action against the accused persons. A copy of the letter was also sent to the Director, Secondary Education, Jharkhand to take action against the accused persons. In view of memo no. 1201, dated 30.04.2011, departmental proceeding was initiated and charge sheet “Prapatra Ka” was issued against her. The reply filed by the petitioner against the Show-cause notice was found to be not satisfactory. The charges levelled against the petitioner was found proved and second show-cause was issued but the reply was found to be not satisfactory. Since petitioner was wrongly and illegally appointed and as such in terms of Clause – 14/9(xi) of the Jharkhand Government Servant (Classification, Control and Appeal) Rule, 2016 she has been terminated from the service. No relief can be granted to her and writ petition is fit to be dismissed. From the pleadings and arguments advanced by parties, the main allegations levelled against the petitioner are: i. The appointment was made without following due process of law, without advertisement, examination or interview and the same is illegal.

8. RC 5 ii. iii. The petitioner secured appointment through improper means; The District School Inspectress was not competent to appoint in view of Rule 97(ii) of the Bihar Education Code, which is later on adopted by the State of Jharkhand on its creation. iv. At the time of selection and appointment, the roster regarding reservation was not followed and therefore, the appointment to the post of Assistant Teacher was illegal. v. A reference was made to the CBI inquiry and in the said inquiry, name of the petitioner was recorded.

9. Having gone through rival submission of the parties, this Court is of the considered view that impugned order is fit to be quashed and set aside for the following facts and reasons: (i) It is apparent from the fact and circumstances of the case that petitioner was never heard during course of investigation and without giving reasonable opportunity of hearing, the impugned order has been passed. (ii) The petitioner has rendered service for more than 34 years without any complaint and at the fag end of service just before her retirement on 30.09.2019, she has been terminated without following the principles of nature justice. (iii) The non-service of the enquiry report of the Enquiry Officer has seriously prejudiced case of the petitioner to take appropriate defence and as such the penalty order deserves to be quashed and set aside. (iv) From the record it appears that the CBI has not uttered any adverse remarks against the petitioner rather it has been indicated in the report that “records are not available” with respect to appointment of the petitioner. Only on the basis of the fact that the records are not available with the respondents authorities, a person cannot be held to be guilty of misconduct. (v) So far the issue regarding reservation roster is concerned, the same has been dealt by Hon’ble Patna High Court in the case of Indra Prasad Singh Vs. State of Bihar reported in 2011 SCC OnLine Pat 1072. RC 6 (vi) The similar issue fell for consideration before this Court in L.P.A. No. 141 of 2021 [The State of Jharkhand and others Vs. Sushma Kumar @ Sushma Kumari Devi], and the Hon’ble Division Bench, upheld the order passed by the Single Judge and further directed to restore her to the post with all financial and other service benefits.

11. This Court cannot take a different view than what has already been taken in L.P.A. No. 141 of 2021. As a sequitur to the aforesaid rules, guidelines, judicial pronouncement, the impugned Memo No. 06/Ra.Vi.1-34/2018-2613, dated 24.09.2018 (Annexure-8) passed by respondent no. 2, whereby and whereunder she has been dismissed from the service as also the appellate order as contained in Memo no. 22/Ranchi dated 05.07.2019 (Annexure- 10) passed by Principal Secretary – cum – Appellate Authority are hereby quashed and set aside. Since petitioner has crossed the age of superannuation and as such there is no question of reinstatement in service. However, petitioner is entitled for the consequential benefits including the back wages.

12. Consequently, this writ petition stands allowed. (Dr. S.N. Pathak, J.)