IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21119 of 2011 1. Sushant @ Sushant Kumar, son of Late Dharamdeo Thakur resident of Village Dohra, P.S. Riga, P.O. Sahbaspur, District Sitamarhi, presently posted as Clerk, DEO Office, Sitamarhi. 2. Lakshman Kumar son of Late Ram Chandra Prasad Singh resident of Village Mishraulia, P.S. Dumara, P.O. Paktola, District Sitamarhi, at present posted as Clerk DEO Office, Sitamarhi--------------------------------------------------petitioners Versus 1. The State of Bihar. 2. The Commissioner cum Secretary, Human Resources Department, (Secondary Education), Bihar, Patna. 3. The Regional Deputy Director, Tirhut Division, Muzaffarpur. 4. The District Magistrate, Sitamarhi. 5. The District Education Officer, Sitamarhi. 6. The District Programme Officer, (Primary Education And Sarv Shiksha Aviyan), Sitamarhi---------------------respondents ---------------------------------- For the petitioners :Mr.Rajendra Pd.Singh, Sr.Advocate Mr.Pushpendra Kr.Singh,Advocate Mr.B.S.Pandey, Advocate For the State :Mr.Ajit Kumar, AC to AG ------- 2 12.12.2011 I.A.No.8541 of 2011 The interlocutory application has been filed for amending the relief prayed in the writ petition seeking quashing of the Office Order contained in Memo No.1890 dated 7.12.2011 issued by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur by which the petitioners have been placed under suspension. In the facts and circumstances of the case, the 2 prayer for amendment is allowed. I.A.No.8541 of 2011 is, accordingly, disposed of. Heard learned counsel for the petitioners and learned counsel for the State. The petitioners have originally approached this Court for quashing the orders dated 22.10.2011 and 5.11.2011 respectively issued by the District Education Officer, Sitamarhi by the earlier of which they have been deputed as clerks in two High Schools and by the subsequent order they have been relieved from the office of the District Education Officer for joining in the office of the Regional Deputy Director of Education, Tirhut Division. Subsequently during the pendency of the writ petition the order dated 7.12.2011 was passed directing the suspension of the petitioners and initiation of departmental proceedings against them which has also been impugned. The petitioners are clerks who are working in the office of the District Education Officer. Learned counsel for the petitioners while assailing the orders of deputation/transfer relies upon the provisions of the Bihar 3 Education Ministerial Service Cadre(Appointment Promotion and Transfer) Rules, 1974. It is pointed out by learned counsel that the cadre controlling authority of the petitioners under Rule 5 of the Rules is the Regional Deputy Director of Education, Tirhut Division and under part 5 of the said Rules the provision for transfer has been made. It is thus urged by learned counsel for the petitioners that the order of deputation/transfer could not have been issued by the District Education Officer and only the Regional Deputy Director of Education is competent to issue the same. With regard to the order of suspension learned counsel submits that the said order has been passed during the pendency of the writ petition while the matter is sub- judice before this Court and thus it ought to be quashed, for which he relies upon a Division Bench decision of this Court in the case of Bihar Motion Pictures Association & Ors. V. The State of Bihar & Ors.: 2002(3) PLJR 554, in paragraphs 13 & 14 of which it has been observed as follows : “13. But, when this matter was midstream under hearing, on July 6, 2001 an affidavit was being filed on behalf of the State affirmed by the Secretary, Urban Development Department that the revision of rates for the cinema tickets was 4 under contemplation. The matter was placed before the Cabinet Committee on 10 April 2001 and, therefore, before the Chief Minister on 2 July 2001. In the same affidavit it was stated that the matter is under consideration of the Finance Department and, thereafter, it will be sent for obtaining approval of the Cabinet. The adjournments were granted on the faith that the revised rates will be placed for approval of the State Government. On 20 August 2001 a supplementary affidavit was placed before the court affirmed by a Deputy Secretary, Urban Development Department, appending a copy of a notification dated 31 July 2001 signed on behalf of the Joint Secretary. The State Government was now resorting to change the very rule under which the modalities of the rate of a cinema ticket is revised. A fundamental change was being brought. By this time the petitioner had already argued that for the last two decades they have never had an occasion when the licensing authority of a particular district has been permitted to regulate the rate of the cinema ticket. The trade and industry running the cinema houses has had to approach the Government by sufferance. Every time the matter was taken to the Minister straightway. Upon the decisions of the Supreme Court which the petitioner had cited at the bar, the contention is that the law must be left as simple as it lies permitting the licensing authority concerned to regulate the rate in a given situation when a cinema owner may feel the necessity for a change. The new rule which was amended was bringing in a new situation. This was a duality of powers. The new rule suggests that the licensing authority may regulate the rate and the State Government also will have the power to regulate the same rates. Seeds of arbitrariness were being implanted with dual control; the licensing authority over shadowed by the Minister. But, the Supreme Court has time and again given guidance that the power of a licensing authority or a Cane Commissioner must not be overtaken by a Minister or a Chief 5 Minister. And this amendment of Rule 27 was undertaken as an exercise when the issues are sub-judice before the High Court. 14. When the matter is sub-judice, a state of affairs must not be disturbed particularly so by giving faith to the court that adjournments were sought to announce revised rates but under the cover of adjournments the rule was being changed justifying the shift of power, from a licensing authority to a Minister.” Learned counsel for the State relies upon the counter affidavit filed on behalf of the respondent Nos. 2 and 3 in which it is stated that the complaint regarding indisciplined activities of the petitioners with a further request to transfer these petitioners from office of the District Education Officer, Sitamarhi as they were not suitable for being retained in the district level office is to be found in the letter No. 1080 dated 13.6.2011 which the District Education Officer had addressed to RDDE. Subsequently the RDDE also issued a letter dated 6.7.2011 directing the DEO to ensure that the petitioner No.2 makes available the files of the Vigilance Department to the Vigilance Bureau. Earlier petitioner No.2 was similarly directed by the order dated 29.12.2010 of the District Superintendent of Education also. Further report was submitted by the District Education Officer before the 6 RDDE regarding misconduct of the petitioners with the District Programme Officer who had made a complaint to the District Magistrate on 21.10.2011. It is submitted that on the basis of the said report the RDDE had sought an explanation from the petitioners by letter dated 8.11.2011 which the petitioners did not receive and subsequently the same was again sent for service to the petitioners which was served upon them at their residence as per the report dated 26.11.2011 of the District Education Officer but the petitioners did not file their explanation and have remained absent from their office without any information. It is submitted that on the basis of such acts of the petitioners the order of suspension has been passed and it cannot be held to be an attempt to mislead this Court or pass any order while the matter is sub-judice as the writ petition has been filed on 17.11.2011 and after removal of defects finally on 29.11.2011 and the matter was taken up for admission for the first time on 7.12.2011 itself. It is thus submitted by learned counsel that this case is not at all similar to the Division Bench decision of this Court in the case of Bihar Motion Pictures Association (supra). Learned counsel for the State, however, is 7 unable to point out any provision under which the District Education Officer has been empowered to pass an order of deputation within the district not to speak of an order of transfer of a Class III employee. On a consideration of the rival submissions and the facts and circumstances of the case, this Court is of the view that even if it is assumed that on the facts the District Education Officer was justified in passing an order of deputation with respect to the petitioners he could not have done so in the absence of any provision in the statutory rules empowering him in this regard. Thus, the orders dated 22.10.2011 and 5.11.2011 passed by him are beyond the authority conferred upon him and are liable to be quashed and are accordingly quashed. However, so far as the order dated 7.12.2011 passed by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur is concerned, the same is an order well within his competence and in the facts of the case and it could not be said that there has been any action of the authorities of a nature similar to what is to be found in the Division Bench decision of this Court in Bihar Motion Pictures Association’s case (supra). The matter 8 itself was taken up for the first time before this Court for admission on 7.12.2011 and thereafter adjourned for today. Moreover, there was never any attempt to mislead the Court in the present matter as in the said case cited by learned counsel for the petitioners. Thus the order dated 7.12.2011 was the consequence of the petitioners’ evading the service of notices upon them and even after the service of the same at their residence on failing to file any explanation/show cause before the RDDE. In the said circumstances, the RDDE was justified in passing the order of suspension and initiating departmental proceedings against them. In the result, the writ application is partly allowed. The impugned orders dated 22.10.2011 and 5.11.2011 having been quashed by this Court the petitioners would be entitled to their salary for the period till the passing of the order dated 7.12.2011. Let the payment be made within a period of four weeks from today. Spal/ (Ramesh Kumar Datta, J.)