IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.816 of 2009 Bipin Kumar Thakur, son of Ram Prasad Thakur, resident of Village Mail, P.S. Bidupur, Block Bidupur, Dist. Vaishali at Hazipur. ------- Petitioner Versus 1. The State of Bihar through Principal Secretary-cum- Commissioner, Human Resources Development Department, Govt. of Bihar, Patna. 2. The Director, Primary Education, Govt. of Bihar, Patna. 3. The District Magistrate, Vaishali at Hazipur. 4. The District Superintendent of Education, Vaishali at Hazipur. 5. The Block Development Officer, Block Bidupur, Dist. Vaishali at Hazipur. 6. The Block Education Extension Officer, Block Bedupur, Distt. Vaishali at Hazipur. 7. The Panchayat Secretary, Gram Panchayat Raj Mali, Block Bidupur, Dist. Vaishali. 8. The Mukhiya, Gram Panchayat Raj Mail, Block Bidupur, Dist. Vaishali. 9. The Headmaster, Rajkiya Primary Vidyalaya Urdu, Mail, Block Bidupur, Dist. Vaishali. 10. The Headmaster, Rajkiya Primary Vidyalaya, Mail, Block Bidupur, Dist. Vaishali. 11. The Headmaster, Rajkiya Primary School, Chak Gangadhar, Block Bidupur, Dist. Vaishali. -------- Respondents -------------- 19 16.12.2011 Heard learned counsel for the parties. Mr. Zalfaqar Hasnan, Respondent no. 9 pursuant to the order of this Court dated 13.12.2011 is also present. The petitioner has moved this Court for a direction for acceptance of his joining on the post of Panchayat Shikshak in Primary School, Urdu, Maile, as also for payment of salary from April, 2007. During pendency of this writ application, the joining of the petitioner in 2 the Urdu School, Maile has been accepted with effect from 3.7.2011 and, therefore, the dispute to that extent has come to an end. As with regard to the claim for payment of salary for the period April, 2007 to November, 2008, the respondents have also made payment of salary and it is only from 2.12.2008 that the petitioner’s salary for the period up to 2.7.2011 has not been paid as yet. Learned counsel for the petitioner would submit that the petitioner had duly obeyed the order of his superiors and had submitted his joining report initially in Primary School, Urdu, Maile from where he was sent on training but, when, during continuance of training itself, the petitioner’s posting was made in another school, he, without making any issue, had joined in the transferred school but, his payment of salary was not made from the transferred school and ultimately when the services were again returned back by way of transferring him to Primary School, Urdu, Maile in the month of December, 2008 and he was relieved from his earlier school, his 3 joining in the Primary School, Urdu, Maile was not accepted by the Headmaster, whereafter, he had immediately brought this fact to the notice of Panchayat Secretary. No positive action having been taken, the petitioner had to ultimately filed this writ application for acceptance of his joining as also payment of salary and, therefore, learned counsel for the petitioner would submit that when the petitioner was deprived from working by illegal acts of the respondent, he would not only entitled for payment of salary but also cost of this litigation thrust upon him. In this writ application, a counter affidavit has been filed by the official respondents, wherein, their stand is plane and simple that the petitioner had not worked in the aforesaid period and as such, he would not be entitled for any payment on the celebrated principle of ‘No Work No Pay’. Such explanation of the respondents, however, was not found acceptable by this Court, whereafter, notices were issued to the respondent no.7 Panchayat Secretary, respondent no.8 Mukhiya, respondent no.9 4 Headmaster of Rajkiya Primary Vidyalaya Urdu, Maile, respondent no.10 Headmaster, Rajkiya Primary Vidyalaya, Maile, Bidupur Block and respondent no.11 Headmaster, Rajkiya Primary School, Chak Gangadhar. In view of the fact that the payment of salary of the petitioner for the period of working in Primary School, Maile or Primary School, Chak Gangadhar has already been made, the respondent nos. 10 & 11 no longer remain in the fray for sharing the responsibility of non-payment of salary of the petitioner. The respondent no.9 seems to be the main person, who has created the problematic situation. The respondent no.9 is the Headmaster of Rajkiya Primary Vidyalaya Urdu, Maile before whom the petitioner is said to have submitted his joining on 2.12.2008. As a matter of fact, the petitioner, having been refused his joining in the said school, had immediately rushed to the Panchayat Secretary by filing his representation and the signature of Mr. Anup Lal Singh, Panchayat Secretary on the said representation dated 2.12.2008 is testimony to the fact that the petitioner had highlighted with regard to his 5 grievance of non-acceptance of joining by the respondent no.9, the Headmaster of Rajkiya Primary Vidyalaya Urdu, Maile. In fact, when the Block Education Extension Officer had also called for an explanation from the respondent no.9 as with regard to the reasons for non-acceptance of joining of the petitioner vide his letter no.447 dated 5.10.2010, it cannot be said that the petitioner had not submitted his joining in the Rajkiya Primary Vidyalaya Urdu, Maile on 2.12.2008. In the explanation submitted by the respondent no.9 though he had denied that the petitioner had reported on duty in the school in between the year 2005 to 2010 but, then, what makes his explanation unbelievable is that he had also gone to question the decision of the authority as with regard to either appointment of the petitioner on the post of Panchaayt Teacher by disputing the qualification of the petitioner and/or the decision of the authority with regard to his being posted in Rajkiya Primary Vidyalaya Urdue, Maile. The insistence of the respondent no.9 in the letter that he would not allow the petitioner to join in the 6 school till disposal of this writ application, CWJC No. 816 of 2009, by this Court would again be demonstrative of the fact that the respondent no.9 is thoroughly indisciplined person, who has no respect for the order of his superior controlling authority. At the same time, this Court would find that the conduct of Anup Lal Singh, Panchayat Secretary, who had already been reported as with regard to the non-acceptance of joining of the petitioner by the respondent no.9, Headmaster, is also not above board. He is said to have taken no action almost for one and half year and, therefore, the said Anup Lal Singh is also somewhere responsible in not getting the deadlock resolved for the purpose of acceptance of joining of the petitioner. It is not in doubt that the transfer order was issued by the Panchayat Secretary and, therefore, if his order was not being complied either by the Headmaster of the school or by anybody else, he had to take an immediate action. Nothing of this sort has been brought on record by the respondents and 7 even the respondent no.7, the Panchayt Secretary, a post held by Anup Lal Singh, who despite being noticed by this Court has not chosen to appear though such notices had been validly served on him. It thus becomes clear that non- payment of salary is the making of acts of the deeds and misdeeds of the Headmaster of the school as also the Panchayat Secretary, namely, Anup Lal Singh. Mr. Farooque Moazzam learned counsel for Respondent no. 9 would submit that the respondent no.9 alone cannot be blamed for non-acceptance of joining of the petitioner and in fact, the role of Block Education Extension Officer was also dubious. This Court is not concerned as to who was the particular person whose act really made the petitioner suffer for a period of more than four years either in the matter of acceptance of his joining or receipt of his payment of salary. This Court is really peeved with the manner in which the whole system is functioning in name of much avowed concept of grass-root democracy. The Gram Panchayat was given the constitutional status of sharing 8 the power at the lowest level and the Panchayat Secretary was made the in-charge to guide the Mukhiya with regard to the officials procedures. The Panchayat school started functioning under the control of Gram Panchayat and, therefore, if the officials still have not coped with the changed situation, they must fall in line, the sooner the better. Here in this case, the petitioner, a teacher duly selected and appointed as a Panchayat Teacher had to suffer on account of total inaction on the part of the Panchayat Secretary, who somehow even without noticing the provision of Rule 13 of the Panchayat Teacher Appointment Rules 2006 kept on transferring the petitioner from his original school, namely, Rajkiya Primary Vidyalaya Urdu, Maile to other school either at Maile or at Chak Gangadhar. Such transfer, being wholly impermissible under Rule 13, the whole problem was created by the Mukhia and the Panchayat Secretary. The role of respondent no.9, as noted above, the Headmaster in whose school the petitioner’s initial appointment was made, is equally dubious. He had no reason to reject the 9 joining of the petitioner on the ground that it was an Urdu school where the posting and appointment of the petitioner could not have been made. The submission of the learned counsel for the respondent no.9 that there is no letter on the part of the respondent no.9 refusing the joining of the petitioner has to be only noted for its being rejected. The respondent no.9 when asked explanation by the Block Education Extension Officer in his reply had gone to justify his action by taking a plea wholly unacceptable on fact or in law, relevant portion whereof reads as follows:- “------From the aforesaid letter no.42 dated 21.9.2010 written by the Panchayat Secretary, Gram Panchayat Raj, Maile Vaishali at Hajipur it appears that on account of prevention the Panchayat Secretary transferred Bipin Kumar Thakur from my school to Chak Gangadhar. It is also apparent from the aforesaid letter that since Bipin Kumar Thakur is not holding the requisite educational qualification therefore he has been transferred from my school to a Primary School Chak Gangadhar. It is necessary to take note of the fact that my school is a Urdu 10 School and his appointment was done against that unit for which Bipin Kr. Thakur is not holding requisite educational qualification, therefore appointment of Bipin Kumar Thakur is itself illegal and abnitio-void. Thus in this view of the matter I am unable to allow him join in my school.----“ The manner in which the respondent no.9 has dealt with the issue of joining of the petitioner as explained in the letter dated 11.10.2010, Annexure-J to his counter affidavit, would only go to show he is a wholly irresponsible person whose acts were absolutely unbecoming of a Headmaster of the school. This Court, therefore, must hold the non-acceptance of the joining of the petitioner by the Respondent no. 9, the Headmaster or the stalemate to be allowed to continue for long three years at the instance of Anup Lal Singh, Panchayat Secretary to be wholly unjustified. The petitioner was always willing to work, he had a valid appointment letter with him, he was backed by a correct transfer order and, therefore, anyone not allowing him to work would be held responsible for causing the petitioner both mental, physical and financial agency. This 11 Court, therefore, must hold that the petitioner is entitled for payment of salary for the period 2.12.2008 to 2.7.2011. A question, therefore, would arise as to whether the State should pay the salary for the deeds/misdeeds of its officials/employees. This Court is of the firm view that such amount of salary, which has to be now paid to the petitioner on account of the impertinent acts of the Headmaster/ Panchayat Secretary /Block Education Extension Officer must be decided by the Collector of the district and if after giving notice to all three of them or anyone else who may be found to be also responsible in creating a situation for non-acceptance of the joining and working of the petitioner in the period 2.12.2008 to 2.7.2011 should be made to apportion the total amount that has to be now paid to the petitioner by way of his salary for the period 2.12.2008 to 2.7.2011. The payment of salary of the petitioner, therefore, must be made within a period of six months by which time the Collector of the district, having held his 12 enquiry and after giving notice and/or opportunity of hearing to the present respondent no.9 as also Anup Lal Singh and/or any other person, would direct for depositing the said amount in the fund of the Panchayat within a period of four months, whereafter, the payment to the petitioner must be made in next two months. In view of the fact that the petitioner has to suffer and had to also undergo this litigation thrust upon him, this Court would award cost of Rs. 5,000/- to be realized from the erring officials in course of enquiry by the Collector of the district for its being paid to the petitioner along with his arrears of his salary. With the aforementioned observations and direction, this application is disposed of. The personal appearance of Mr. Zalfaqar Hasnan (Respondent No.9) is dispensed with. Rsh (Mihir Kumar Jha, J.)