Jharkhand High CourtSudarshan Sharma vs State Of Jharkhand And Ors. on 23 January, 2003Equivalent citations: [2003(1)JCR583(JHR)]Author:Tapen SenBench:Tapen SenORDER

 

 Tapen Sen, J.1. Heard Mr. R.C. Jha, learned Sr. Advocate appearing for the petitioner and Mr. B.S. Lall, learned A.A.G. Government of Jharkhand.2. The petitioner is aggrieved by the order dated 18.1.1999 issued by the respondent No. 4 (District Superintendent of Education, Dumka) by which the pay of the petitioner has been stopped.3. According to the petitioner, the impugned order has been passed by the District Superintendent of Education, Dumka after expiry of almost 19 years from the date of his initial appointment and that too when that appointment was duly approved. The petitioner has stated that he was appointed as untrained matriculate teacher in Chandrapura Mission Primary School, District Santhal Pargana at Dumka by Annexure-2 and such appointment was made on the basis of an advertisement which had been duly published on 10.2.1981 and the last date for submitting applications was indicated as 1.3.1981. According to petitioner he was subjected to a test and finally appointed on 9.3.1981 whereafter a formal letter of appointment was issued vide Annexure 2. Thereafter the petitioner gave his joining and since then
and till today he is continuously working as Assistant Teacher of the said School.4. Upon appointment having been duly made by the School in question, the same was referred for approval before the District Superintendent of Education Santhat Pargana at Dumka and consequently by order dated 7.9.1983 the appointment of the petitioner was duly approved with effect from 1.5.1981 after completion of two years i.e. 1.5.1981. It was specifically recorded in the aforementioned office order itself.5. The petitioner has stated that his salary was paid by the Managing Committee of the School for the year 1981-1982 and after approval given by the District Superintendent Education, Dumka, his payment was made from the office of the Regional Deputy Director of Education Santhai Pargana, Dumka. The petitioner was then sent for training also. After his deputation for being trained, and after completing his training successfully, he joined the School by Memo dated 15.7.1995 (Annexure-5) issued by the District Superintendent of Education, Dumka. He was then granted the trained teachers scale with effect from the date of publication of the results of training i.e. with effect from 21.4.1995.6. The petitioner has stated that thereafter the Director Primary Education by his letter dated 7.9.1990 sought for details from the Government aided Elementary Schools and the Regional Education Officer by his letter dated 3.11.1990 sent his report including the name of the petitioner. This statement has been made at paragraph 11 to the Writ Application.7. The petitioner has further stated at paragraph 12 that the new scale of pay which was given to him upon completion of training, was also approved by the competent authority i.e. Special Director and reference thereof has been made at paragraph 12.8. However all of a sudden on 18.1.1999, the District Superintendent of Education sent a letter to the Regional Education Officer as also to the Block Education Development Officer, Kathikund, Dumka informing him that the salary of the petitioner who was working beyond the sanctioned post at the School in question
was irregular and therefore as per directions of the Deputy Director of Education (Primary Education) Bihar, Patna issued on 2.12.1996, salary of all such persons/ teachers should be stopped.9. The petitioner has submitted that the aforementioned order Annexure 1 was preceded by a report of one Arun Kumar Sinha who submitted the same vide Annexure-7 requesting that salary should be released to all people who are getting the same and the name of the petitioner was included at serial No. 4 of the list. Even thereafter, the petitioner's salary was stopped on the ground that his initial appointment was against a unit/post which was not sanctioned. It would be relevant to note that from the aforesaid report of Arun Kumar Sinha it is apparent that while mentioning the name of the petitioner at serial No. IV against item No. 2, he specifically stated that there were four sanctioned posts and the name of the petitioner was included at serial No. IV showing his date of appointment to be from 1.4.1981.10. The petitioner filed representations but nothing happened, as a result whereof, he finally filed this writ petition.11. A counter affidavit in this case has been filed on behalf of the respondent No. 4 (District Superintendent of Education, Dumka) wherein he has stated at paragraphs 3 and 4 that the appointment of the petitioner was not made in accordance with the Government's prescribed Rule because at the relevant time, the petitioner was not a trained teacher.12. He has further stated that the petitioner was appointed by the Secretary of the said School without taking into consideration the aforesaid factor and that the petitioner was not appointed against a sanctioned post because only three posts were sanctioned at that time.13. It has further been stated that when the matter came to light then the District Superintendent of Education by his letter dated 18.1.1999 issued the impugned letter. According to him, this letter was pursuant to the letter of the Deputy Director of Primary Education, Government of Bihar being a letter dated 2.12.1998 by which he had been directed to submit the entire records and papers.14. Since the Secretary of the Primary Schools did not submit the records therefore he submitted the same. In the counter affidavit it has further been repeated that there was no provision to appoint any untrained teacher after 1.1.1971 and hence the petitioner's claim in relation to his appointment is not in accordance with Government's prescribed Rules or law. These respondents have further stated in reply to paragraph 10 of the writ petition, where the petitioner has referred about his being granted pay scale after training, that the petitioner's name was not sent through proper channel and that on the contrary, his name was sent directly to the Regional Deputy Director of Education Santhal Pargana Division concealing the fact that the petitioner was working in excess of the posts sanctioned ("over unit").15. Thus, what is the apparent from the statement made in the counter affidavit is that the ground for justifying the issuance of Annexure-1 is that the petitioner was illegally appointed by the Secretary of the Schools, he being an untrained teacher at the time of appointment and that he having been given a post in excess of the strength that was actually sanctioned.16. It is too late in the day for the District Superintendent of Education to come forward with such explanations/justification in the counter affidavit.17. The fact that the petitioner's appointment has been approved by Annexure-3 and the fact that the petitioner was sent for training by Annexure-4, has not been denied. In other words, the existence of these documents have not been denied and on the contrary the petitioner has been allowed to function as a teacher right from 1981 and as has been stated at the Bar, he is still continuing to work as such.18. That being the position, the petitioner having worked continuously from 1981 after almost 19 years, the respondents should not be allowed to re-open the matter at such belated stage, specially when the petitioner after his appointment, had been approved and had duly got his training pursuant to Annexure-4.19. Moreover, Annexure-1 has been issued without any opportunity of hearing
and without affording any reasonable opportunity to the petitioner to explain the position. For all these reasons, therefore the impugned order/letter of the District Superintendent of Education dated 18.1.1999 as contained at Annexure-1 must be held to be un-reasonable and illegal. Consequently the order dated 18.1.1999 is hereby set-aside and quashed. The respondents are now directed to forthwith release the held up salary of the petitioner together with interest at the rate of 6%. The interest is being granted on account of enforced litigation that has been thrust upon the petitioner for no fault on his part.20. It goes without saying that the petitioner will also now be entitled to regular salary each month.21. With the aforementioned observation and directions this writ petition is allowed.