KAPILDEO NARAYAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application by Kapildeo Narain Singh under Articles 226 and 227 of the Constitution of India is directed against the order dated the 9th March, 1973 (Annexure-4) to the Writ application passed by the District Superintendent of Education, Gaya, respondent No. 2, whereby according to the petitioner he was demoted from the post of the Head Master to the post of the assistant teacher of Middle School, Bandhua, P. S. Mufassil in the District of Gaya. The petitioner has therefore prayed for quashing the said order contained in Annexure '4' and for a direction that the petitioner be deemed to have been working as Head Master in the said school against a permanent vacancy and for further direction to respondents 1 and 2 to settle the pay and allowance of the petitioner, as Head Master of the School.

(2.) In order to appreciate the point involved in this application it will be necessary to state briefly the facts as stated by the petitioner in his application and as stated on behalf of respondent No. 1 in the counter-affidavit. The petitioner has stated in his application that he passed the Intermediate Examination from the Bihar University in the year 1960. Subsequently he took a teacher's training course and passed the same from the Teachers Training School, Kodarma, Government of Bihar. The petitioner was appointed as an Assistant Teacher of the said School by the District Superintendent of Education, Gaya, respondent No. 2, under Rule 45 of the Bihar Primary and Middle Education Rules 1961 on the 21st of November, 1966 and accordingly he joined his post on the 30th of November, 1966. The Service condition of the petitioner is governed by Bihar and Orissa Local Self Government Act, the Bihar Education Code, 1961 and also various circulars issued from time to time by the Education Department, Government of Bihar. The petitioner got the scale of I. A. trained since the date of appointment in accordance with the circular dated the 29th of July, 1966, from the Education Department of the Government of Bihar. The circular specifically prescribed that only Head Master with I. A. trained qualification or B. A. trained qualification and only one of the Assistant teachers having I. A, trained qualification are eligible for scale as prescribed by the Government of Bihar. The petitioner as per practice being the senior-most in qualification and fit for the post of Head Master under the Circular dated the 29th July, 1966, of the Education Department was appointed against the substantive vacancy in the post of Head Master on the 13th October, 1967. The petitioner from time to time was representing before the authorities to allow him to enjoy the headship allowance of Rupees 5/- which was due since the date of his appointment as Head Master. But he was always assured that the matter was under consideration, and he was also told that his service book had not been made ready: as long as it was not decided whether he had been officiating or working against the permanent vacancy the same could not be settled. The petitioner has annexed copy of his representation dated the 28th June, 1968, as Annexure 'I' to the writ petition. Finally, in the year 1970, the matter in question was decided by the authority and accordingly the petitioner was supplied with a service book. The service book bore as many as 15 columns, and the same contained full particulars in regard to his appointment, scale and other related matters. In column 2 of the service book the appointment of the petitioner to the post of Head Master wag described as substantive and temporary. In column 4 the petitioner was given his pay in the substantive post. The said service book was duly signed by the Deputy Inspector of Schools from the year 1970 as prescribed in column 9. According to the petitioner the service book confirmed that the petitioner was appointed as Head Master against substantive, and temporary vacancy from 1st April, 1967. The petitioner was and is given the pay in substantive post. The petitioner was not appointed against the officiating vacancy and he was not given additional pay for officiating. The petitioner had been given scale and pay as revised by the Government of Bihar from time to time as in the substantive post. The petitioner passed his graduation examination in the year 1971 from the Magadh University and on his representation he was allowed the scale of B. A. trained from 1st January, 1972, as per letter dated 24-2-1972 from the District Superintendent of Education, a copy of which is made Annexure '2' to the application, The petitioner enjoyed headship allowance from July, 1970 and so far his claim prior to that he has received a letter dated the 13th July, 1972, from respondent No. 2, whereby he had directed the appropriate authorities to produce claim of the petitioner before him to consider on the question of payment of his dues vide his letter dated the 13th July, 1972, (Annexure '3'). Thereafter the petitioner received the impugned order dated the 9th March, 1972 (Annexure '4'). Aggrieved by the said order the petitioner moved to the Deputy Director of Education, who was pleased to pass his order dated the 17th March, 1973, directing the District Education Officer not to deduct his salary arbitrarily and allow the petitioner to enjoy the previous scale as granted before. He also observed that it was essential to give opportunity to the petitioner to show cause. The petitioner also represented the matter to the District Superintendent of Education namely respondent No. 2 on the 29th of June, 1973. A copy of the said representation is marked as Annexure '5' to the writ petition but it bore no result. On these allegations the petitioner has come to this court. He filed his application on 3rd of September, 1973, which was admitted on the 5th September, 1973. However, this court had ordered that the prayer for stay of the operation of the impugned order would be considered after the appearance of the respondent.

(3.) On the 2nd of May, 1974, a counter-affidavit was filed on behalf of the State of Bihar respondent No. 1. It will be relevant to quote paragraphs 5 and 6 of the counter-affidavit in extenso.