STATE OF BIHAR Vs. BIHAR STATE PUBLIC SERVICE

JUDGEMENT

(1.) The application in revision by the State of Bihar (defendant No. 1) is directed against the appellate order making the ad-interim order of injunction absolute against the State of Bihar and restraining it from removing Opposite Party No. 1 (Plaintiff) from the post of Director of Public Instruction, Bihar (hereinafter referred to as D. P. I. for the sake of brevity), till the disposal of Title Suit No. 326 of 1968. The other application (registered as M. J. C. No. 1 of 1969) is by the Bihar State Public Service Commission under Section 151 of the Civil Procedure Code and Article 227 of the Constitution of India for expunging the adverse findings in that appellate order.

(2.) The facts giving rise to this application are these. Opposite Party No. 1 (Plaintiff) instituted the aforesaid title suit in the Court of Munsif III, Patna, on 18-11-1968 against the petitioner and opposite party No. 2 (defendants 1 and 2) for a declaration that the refused of defendant No. 2 to concur in his appointment to the post of D. P. I. was illegal, without jurisdiction, unconstitutional and mala fide. The plaintiff wanted a further declaration that his threatened reversion by defendant No. 1 was ultra vires, unconstitutional and invalid. The plaintiff asked for a perpetual mandatory injunction restraining the defendants from reverting him from the post of D. P. I. The case of the plaintiff was that he was the seniormost member of Bihar Education Service, Class I, and held a post under defendant No. i. The highest post in the Directorate of the Ducation Department was that of D. P. I. The plaintiff joined the Bihar Education Service in Class I on 9th September, 1941, and was appointed Professor of Physics, Science College, Patna, on the basis of the recommendation of the Public Service Commission. The plaintiff became the Head of the Department of Physics in course of time and was elected as the Dean of Faculty of Science of the Patna University in the year 1952. Later on, the plaintiff was appointed as Principal of Ranchi College, and he joined there on 16-3-1954. Defendant No. 1 created a temporary post of Director, Text Book Research Bureau in the grade of Rs. 350-1000, and the plaintiff was appointed to that post, but this action of defendant No. 1 was mala fide and it put the plaintiff to to a financial loss of about Rs. 500 per month. This post was abolished in July, 1967. Sri S.M. Ahmad, who was junior to the plaintiff in service, was appointed as Additional D.P.I.(a past newly created), and the representations of the plaintiff were ignored. On 1.8.1961 the plaintiff was promoted and appointed as the Additional D.P.I. (Science Teaching), and he continued to hold that post till 31-12-1965, when it was abolished, that post was upgraded with effect from 1.4.1962 and the pay was fixed at Rs. 1850-2150. That post was equivalent in grade to that of the D.P.I, whose salary was Rs. 1850-2250. By the notification dated 29-12-1965 a new post of Director, Bihar State of Institute of Science Education was created in the grade of Rs. 1000-1500 and by another notification dated 30.12.1965 the plaintiff was transferred to that post. This order of transfer amounted to reduction of the plaintiff in rank, as he had officiated for nearly four years as Additional D. P. I. Sri K. Ahmad was the substantive holder of the post of D. P. I. but he retired in September, 1967. Defandant No. 1, instead of promoting the plaintiff to hold that post, directed Sri Shriballabh Sharan, I.A.S., Deputy Secretary to the Government in the Education Department, to take over charge from Sri K. Ahmad. Defendant No. 1 communicated to the plaintiff the so-called adverse remarks made in the Character Roll for the fiscal years 1964-65, 1965-66 and 1966-67 and then he submitted an elaborate representation praying for expunging those remarks. During the pendency of the representation the plaintiff was substantively appointed as the D. P. I. by defendant No. 1 by notification No. 774-E dated 21st March, 1968, and a true copy of the said notification was enclosed and marked Annexure .'1':

(3.) Later on, defendant No. 1 wrote to defendant No. 2 on 2-9-1968 for obtaining concurrence with regard to the further continuance of the plaintiff as D. P. I. but the latter returned the relevant file on 3-9-1968 with a note of refusal to concur. Defendant No. 1 took steps to fill up the said post by promoting a person who was very much junior to the plaintiff in Class I of the Bihar Education Service. Defendant No. 2 (as constituted) was incapable of discharging its constitutional functions fairly and impartially so far as the plaintiff was concerned. The Chairman of the Commission was a lecturer in English in the Patna Science College in Class II of the Bihar Education Service, when the plaintiff was the Professor of Physics in the said College. Another Member, Dr. Harbansh Narayan Yadav, of the State Public Service Commission was also an unconfirmed member of the Bihar Education Service in Class I at that time and he was junior to the plaintiff in service until his appointment as a Member of the Commission. Another Member of the Commission was on foreign tour, whereas the remaining fourth Member, instead of being an academician, was a politician. The plaintiff alleged that the verdict of -the Public Service Commission against the plaintiff was mala fide and fit to be ignored on account of his antecedent relations with the Chairman of the Commission. The Post of D. P. I. was throughout treated as a cadre post and the impending revision of the plaintiff would amount to reduction in his rank. Moreover, the impending and threatened reversion was mala fide, illegal and unconstitutional. The recommendation of defendant No. 2 was kept secret and defendant No. 1 had made complete arrangements for the reversion of the plaintiff, and hence defendant No. 1 waived the statutory right to a notice under Section 80 of the Code of Civil Procedure, The plaintiff alleged that the cause of action for the suit arose for the first time on 3-9-1966 when defendant No. 2 refused to concur in his appointment as D. P. I. and again on 16-11-1968 when he learnt that his reversion was to be implemented forthwith for want of that concurrence. In those circumstances, the plaintiff instituted the said suit for the reliefs already indicated.