IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.722 of 2006 THE STATE OF BIHAR & ORS Versus SMT.SAVITRI ----------- For the appellant: Mr. P.K.Singh, JC to GA – I For the respondent nos. : Mr. Rajendra Prasad Singh, Sr. Advocate Mr. P.N.Pathak --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 2nd September, 2008 We heard the Government Counsel. 2. It is an admitted position that the respondent (hereinafter to be referred as „the petitioner‟) was initially appointed as an Assistant Teacher by the Managing Committee of Town Middle School, Hajipur, somewhere in the year 1982. The petitioner claims that her appointment was approved by the District Superintendent of Education. It is not necessary for us to go into the question about the take over of the Town Middile School, Hajipur. But , suffice it to say, that the petitioner was absorbed against the vacant post in Middle Schooll Yusufpur Malahi, Anchal Lalganj, Vaishali vide memo dated 29th December, 1988, as per the order of the District Superintendent of Education. 3. According to the petitioner, her absorption in service was approved by the District Establishment Committee in 2 the meeting held on 13th January, 1989. Later on, the salary was stopped and there was threat of termination from service on the ground that the petitioner‟s appointment being illegal and de hors the Rules. The petitioner filed the writ petition before this Court being CWJC. No.10141 of 1989. An interim relief came to be passed and later on the writ petition was disposed of by an order dated 19th April, 1994. In the order dated 19th April, 1994, the single judge directed the authority concerned to examine as to whether the appointment/absorption of the petitioner was made in regular manner. The mode and manner of inquiry was also indicated in the order. It transpires that thereafter the District Establishment Committee proceeded with the inquiry. Minutes of the inquiry held on 4th September, 1995 reveals that the said committee could not proceed with the inquiry due to non- availability of the record. This is what the District Establishment Committee absorbed : “ ekuuh; mPp U;k;ky;, iVuk dh ;kfpdk la[;k C.W.J.C. No.10141/1989 with C.W.J.C. 10433/1989 with C.W.J.C. No.960/1990 esa fnukad 19&04&94 dks ikfjr vkns’k ds vkyksd esa Jh vkse izdk’k flag, lgk;d f’k{kd, izkFkfed fo|ky; jlqyiqj iV~Vh vapy ykyxat dk lgk;rk izkIr Vkmu feM~y Ldwy gkthiqj esa gqbZ fu;qfDr ,oa jktdh;d`zr fo|ky; esa gq, lkeatu dh oS/krk dh tkap muds }kjk miLFkkfir laxr vfHkysa[kksa ds vk/kkj ij dh xbZ@ bl dze esa vafdr djuk gS fd Jh flag dh fu;qfDr xyr, vfu;fer ,oa foHkkxh; fu;eksa ds izfrdwy rFkk jktdh;d`r fo|ky; esa lkeatu voS/k #i ls ik;s tkus ds QyLo#i bl dk;kZy; ds i=kad 3018 fnukad 14&09&04 ds }kjk lHkh ewy vfHkys[kksa ( tSls-‘’kS{kf.kd&iz’kS{kf.kd izek.k i=, fu;qfDr i=, lsok iqfLrdk) ds lkFk O;fDrxr #i ls fnukad 24&9&2004 dks mifLFkr gksdj viuh fu;qfDr ,oa jktdh;d`r fo|ky; esa gq, lkeatu dh 3 oS/krk ds lanHkZ esa viuk i{k izLrqr djus rFkk lHkh ewy laxr vfHkys[kksa dks fn[kykus dk funsZ’k fn;k x;k@ rnuqlkj muds }kjk fnukad 24&9&2004 dks O;fDrxr #i ls mifLFkr gksdj viuk i{k izLrqr djrs gq, ewy laxr vfHkys[kksa dks fn[kyk;k rFkk okafNr dkxtkrksa dh Nk;k izfr Hkh tek fd;k x;k@muds }kjk izLrqr fd;s x;s i{k rFkk bl dze esa lefiZr dkxtkrksa ds leh{kksijkUr ;g rF; izdk’k esa vk;k fd Jh vkse izdk’k flag dh izFke fu;qfDr fo|ky; izca/kdkfj.kh lfefr }kjk lapkfyr Vkmu feM~y Ldwy, gkthiqj esa iw.kZr% vLFkk;h #i ls eSfVz~d vizf’kf{kr ds osrueku esa gqbZ gS, ftlds vkyksd esa fnukad 02&01&81 dks mDr lgk;rk izkIr fo|ky; esa ;ksxnku fd;s gSa, tcfd foHkkx }kjk le;&le; ij fuxZr i= ds vuqlkj 01&01&71 ds ckn fdlh Hkh ifjfLFkfr esa izcU/kdkfj.kh lfefr }kjk lapkfyr lgk;rk izkIr fo|ky;ksa esa vizf’kf+{kr f’k{kdksa dh fu;qfDr ugha djus dk izko/kku cuk;k x;k gS@ bl vknsa’k ds izfrdwy Jh vkse izdk’k flag dh fu;qfDr mDr lgk;rk izkIr fo|ky; esa dh x;h rFkk bl dze esa tky Qjsc djds ljdkjh dksi ls osrukfn dk Hkqxrku fn[kykdj foHkkx esa xyr lqpukvksa dk vk/kkj cukdj f’k{kd izf’k{k.k izkIr fd;k x;k gS@ izf’k{k.k ds ckn mDr lgk;rk izkIr fo|ky; esa Jh vkse izdk’k flag dks D;ksa ugh j[kk x;k rFkk fdu dkj.kksa ls gVk fn;k x;k ? bl iz’u dk leqfpr larksiizn mRrj rFkk lk{; muds }kjk miyC/k ugha djk;k x;k@ mYys[kuh; gS fd fo|ky; izca/kdkfj.kh lfefr }kjk lapkfyr lgk;rk izkIr fo|ky; ,oa jktdh;d`r izkFkfed@e/; fo|ky;ksa esa f’k{kdksa dh fu;qfDr ,oa lsok bfrgkl dk vyx&vyx izko/kku gS tks ,d nwljs ls fcYdwy fHkUu gS@ bl izdkj lgk;rk izkIr fo|ky; ,oa jktdh;d`r fo|ky;ksa ds f’k{kdksa dk vyx&vyx laoxZ gksus ds dkj.k ,d fo|ky; ls nwljs fo|ky; esa lkeatu@LFkkukUrj.k djusa dk dksbZ fu;e foHkkxh; Lrj ij ugh cuk;k x;k gS! mijksDr of.kZr rF;ksa ,oa lk{;ksa ds vk/kkj ij ;g fuIdiZ fudyrk gS fd Jh vkse izdk’k flag us xyr lwpukvks dk vk/kkj cukdj jktdh;d`r fo|ky; esa fu;kstu izkIr fd;k gS@ vr% Jh vkse izdk’k flag dk jktdh;d`r fo|ky; esa fd;k x;k lkeatu voS/k ,oa foHkkxh; fu;eksa ds izfrdwy gS@ ,Slh ifjfLFkfr esa bl dk;kZy; ds Kkikad &6769 fnukad 29&12&88 ds }kjk jktdh;d`r e?; fo|ky; ;wlwQiqj egykgh ykyxat iwohZ esa fd;s x;s lkeatu@inLFkkiu rFkk bl dze esa Kkikad&2671 fnukad 3&7&2000 ls izkFkfed fo|ky; jlqyiqj iV~Vh vapy&ykyxat esa fd;as x;s LFkkukUrj.k vkns’k dks fujLr fd;k tkrk gS ,oa budh lsok jktdh;d`r izkFkfed fo|ky; jlqyiqj iV~Vh vapy&ykyxat ls lgk;rk izkIr Vkmu feMy Ldwy, gkthiqj esa okil dh tkrh gS@ rn~uqlkj lEcfU/kr fo|ky; ds iz/kkuk/;kid@u;a=h inkf/kdkjh dks vkns’k fn;k tkrk gS fd Jh vkse izdk’k flag dks viusa ewy laoxZ ds fo|ky; (iwoZ ds izFke fu;qfDr ds inLFkkiu ds fo|ky; Vkmu feM~y Ldwy, gkthiqj ) ds fy, vfoyEc fojfer dj nsa rFkk vuqikyu izfrosnu ;Fkk’kh?kz Hkstuk lqfuf’pr djsaxs@” 4 4. Incidentally, we may notice that the writ petition filed by the petitioner was CWJC. No.10141 of 1989. 5. There is no document available on record to indicate that pursuant to the aforesaid observation made by the District Establishment Committee, the Director of Education completed inquiry. However, it appears that after a gap of 10 years, an order came to be issued on 26th October, 2004 by the Superintendent of Education, Vaishali holding that the petitioner secured employment in Government Middle School on wrong information and his adjustment/absorption in the Government Middle School, Yusufpur Malahi was bad in law. This compelled the petitioner to approach this court by filing a writ petition challenging the order dated 26th October, 2004. 6. The single judge heard the parties and by his order dated 22nd October, 2006 allowed the writ petition and quashed and set aside the order dated 26th October, 2004. 7. The single judge considered the matter thus: “From the facts, as enumerated above, it appears that the petitioners though were appointed by the managing committee of the Government Aided Town Middle School, Hajipur, they were sent for training and after obtaining training they were absorbed in different Government Schools and they are continuing in those schools since long. Government Circular dated 30th July, 1977 lends support to the contention of learned counsel for the petitioners that the teachers who were appointed by the managing committee of a private school, can be transferred/absorbed in other Government Schools against the existing vacancies. 5 Absorption of the petitioner, in this view of the matter, cannot be said to be de hors the law. It further appears that by virtue of the interim order passed by this court, as referred to above, the petitioners are continuing in the Government Schools since long and now it would be quite unjust to ask them to go back to their original school, that is, Government Aided Town Middle School, Hajipur. It is not in dispute that after the petitioners were absorbed in other Government Schools, they are enjoying the status of a Government Teacher and are getting their salary etc., regularly and, in this view of the matter, it is held that the irregularity, if any, which is said to have been committed while absorbing the petitioners in Government Schools, stands acquiesced.” 8. Having considered the matter thoughtfully, we find no justification to interfere with the order passed by the single judge, principally, for the reason that as a matter of fact the petitioner‟s absorption has been sanctioned by none other than the Director, Primary Education –cum- Additional Secretary by order dated 9th June, 1988. The said order clearly states that the services of Om Prakash Singh (petitioner), Primary Assistant Teacher are recognized. The petitioner‟s appointment with the government having been sanctioned by the Director, Primary Education, any irregularity in initial appointment by the management has paled into insignificance and inconsequential. That the petitioner after his absorption in government service has acquired requisite training is not in dispute. He was appointed against the vacant post and given posting, accordingly. 6 9. Seen thus, there is nothing on record, which may lead us to hold that the petitioner‟s absorption in the government was de hors the Rules. 10. The impugned order does not call for any interference. 11. The appeal is dismissed in limine. All pending applications also stand disposed of. R.M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/-