YOGENDRA PRASAD MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner seeks quashing of the order contained in Memo No. 1448 -10 Supaul dated 17.12,2004 (Annexure -20) issued under the signature of the District Superintendent of Education - cum -Sub -Divisional Education Officer, Supaul by which the services of the petitioner on the post of Assistant Teacher of Primary School, Chiknapatti has been terminated from the date of his appointment itself on the ground that the order of approval was found to be forged during the course of enquiry and further direction has been issued for recovery of entire amount received by the petitioner towards his salary, etc. on the basis of the said forged order of approval. The petitioner further seeks a direction upon the respondent -authorities to allow him to continue on the post of Assistant Teacher till the date of his superannuation and restrain them from making recovery of any amount paid to him towards salary, etc.

(2.) THE petitioner claims to have been appointed as an Assistant Teacher by the then duly constituted Managing Committee of Lower Primary School, Chiknapatti which shcool was a Government aided school and he joined on 1.5.1970. It is stated that he was working on the post of Assistant Teacher as matric untrained. The said school was taken over by the respondent - State under the provisions of the Bihar Non -Government Primary School (Taking Over Control) Act, 1976 by order dated 9.7.1973. However, the service of only one teacher was recommended and taken over but not that of the petitioner on the ground that he was matric untrained. Subsequently, a policy decision was communicated by the State Government by letter dated 26.6.1975 wherein it was decided to recognize the services of such untrained teachers who had been appointed up to 1971. Such teachers, however, were required to undergo training in terms of the said policy decision. On the basis of the representations submitted by the petitioner, recommendation is said to have been made by the Block Education Extension Officer, Raghopur (South) by his letter dated 4.10.1980 in his favour and on the basis of the same the District Superintendent of Education, Saharsa also wrote on 25.11.1980 to the Deputy Director of Education (Primary Education), Bihar, Patna requesting to issue appropriate direction for taking over the services of the petitioner as Assistant Teacher. It is the case of the petitioner that on the basis of the further joint representation made by the petitioner and other teachers reports were sought from the Regional Deputy Director of Education, Saharsa and ultimately by letter No. 2898 Patna dated 28.11.1988 (Annexure -10) the respondent - Director, Primary Education -cum -Additional Secretary granted recognition to the services of the petitioner as Assistant Teacher of the 'school in question with certain conditions, from the date of issuance of the said letter in which it was also directed that the petitioner will be paid matric untrained scale with other admissible allowances. It is further claimed by the petitioner that the Regional Deputy Director of Education, Koshi Division, Saharsa sought verification of the said letter dated 28.11.1988 alongwith certain other letters from the Directorate and by letter contained in memo No. 1492 dated 24.7.1989 (Annexure -11) issued by the Deputy Director, Primary Education. Bihar, Patna as many as 63 letters were verified in which letter No. 2898 dated 28.11.1988 (Annexure -10) was at SI. No. 13. It is alleged that the matter thereafter remained pending for nearly seven years during which also certain enquiries were made by the lower level authorities and ultimately by letter dated 13.5.1995 issued by the District Collector, Supaul the ciaim of the petitioner alongwith certain other teachers of the District was accepted. By the consequential order dated 7.7.1995 issued by the District Superintendent of Education, Saharsa direction was issued for payment of salary to the petitioner as matric untrained teacher in the pay scale of 975 -1450 with certain conditions with effect from 13.5.1995.

(3.) LEARNED counsel for the petitioner submits that the services of the petitioner are governed by the State Elementary Teachers (Transfer and Discipline) Rules, 2002, Rule 18 of which provides for initiation of disciplinary proceedings if it is decided to impose any punishment upon any teacher and Rule 21 lays down the punishment that could be imposed. It is submitted that a major punishment in terms of the said rule can only be imposed on the basis of a departmental proceeding in which he has been given an opportunity to defend himself. It is argued that such rights also flow to the petitioner by virtue of Article 311(2) of the Constitution and the punishment of termination of the petitioner 'sservices cannot be imposed without holding such a departmental proceeding against the petitioner. It is urged that no such departmental proceeding was conducted in the matter and merely on the basis of the aforesaid two show cause notices the services of the petitioner have been terminated.