IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 6975 of 2009 Dilip Kumar Singh, S/o Late Rajendra Singh, Residnet of village – Bhagwanpur, P.S. – Sour Bazar, District – Saharsa at present posted as Assistant Teacher at Middle School, Bhelagachhi, Birpur (Pothiya), Kishanganj, P.S. & P.O. – Pothiya, District – Kishanganj …………………. Petitioner Versus 1. The State Of Bihar 2. The Secretary, Primary Education, New Secretariate, Bihar, Patna 3. The Divisional Commissioner, Purnea Division, Purnea 4. Director, Primary Education, New Secretariat, Bihar, Patna 5. The District Magistrate, Kishanganj 6. Regional Deputy Director of Education, Purnea Pramandal, Purnea 7. District Superintendent of Education Officer, Purnea 8. The District Superintendent of Education cum Sub Divisional Education Officer, Kishanganj 9. The District Education Establishment Committee through its Secretary, i.e., District Superintendent of Education, Kishanganj ………………… Respondents ---------------------------- ------ For the Petitioner: Mr. Ratan Kumar, Adv. For the State: Mr. Kumar Kaushik, AC to GP-XI ********** 04. 22.09.2011 Heard learned counsel for the petitioner and the State. Petitioner’s prayer is for quashing the order dated 31.03.2009, passed by the Regional Deputy Director of Education, Purnea in the Service Appeal, preferred by the petitioner. By the impugned order, the Service Appeal preferred by the petitioner has been rejected, affirming the order, dated 20.07.2004, passed by the DSE-cum-SDEO, Kishanganj. Petitioner’s further prayer is for quashing of the order, dated 20.07.2004, contained in Memo No. 113, issued under the signature 2 of the then DSE-cum-SDEO, Kishanganj, whereby the direct appointment of the petitioner in the Intermediate Trained Scale and the Graduate Trained Pay-scale have been cancelled with immediate effect and a direction has been issued for recovery of excess amount paid to the petitioner on account of illegal appointment / promotion in I.Sc. and B.Sc. Trained Scale. Petitioner’s further prayer is for a direction to the respondents not to interfere with the benefits derived by the petitioner on account of his appointment in the I.A. and B.A. trained scale Teachers post. The petitioner was appointed on 20.11.1980 as a Matric Trained Teacher. His case is that during his service period he enhanced his qualification of Intermediate in the year 1984 and obtained Graduate Degree in the year 1987. From the Counter affidavit filed on behalf of the respondents it transpires that petitioner though ought to have taken permission for enhancement of educational qualification during service period but no such permission had been sought for by the petitioner from the Department. Petitioner’s case is that the Director, Primary Education, Bihar issued a Circular, vide Memo No. 2573, directing the District Superintendent of Education of different Districts of Bihar to appoint Teachers in Matric 3 Trained Scale, in I.Sc. and B.A. Trained Scale, who have qualification of B.A. Trained. In the light of this direction of the Director, Primary Education, the then District Superintendent of Education, Purnea, considering his qualification, issued an appointment letter in favour of the petitioner on the post of I.A. Trained Scale, in the month of January, 1989 and immediately thereafter another appointment letter was issued in favour of the petitioner on 08.02.1989, whereby he was appointed in the Graduate Trained Scale. According to the petitioner, there is no illegality in such orders since these orders were issued by the then DSE-cum-SDEO, Kishanganj in the light of the direction issued by the Director, contained in Annexure-2. This stand of the petitioner has been contradicted in the Counter affidavit filed on behalf of the State, showing that within two months, there could not have been any appointment of the same person in I.A. Trained Scale and in B.A. Trained Scale. So far the Annexure-2 is concerned, it has been stated that this was just an observation not a direction of the Director, Primary Education for making appointments on I.A. Trained Scale / Graduate Trained Scale, completely ignoring the Departmental Circulars for direct appointment / promotion in I.A. Trained and B.A. Trained Scale. No such appointment could have been made giving complete a go-bye to the procedure to be followed 4 in such appointments. In case of petitioner, the Departmental Rules and Circulars for direct appointment to the post of I.A. Trained and B.A. Trained Scale had been completely ignored. Simply because he had qualification of Graduate, it was not sufficient for making his appointment in I.A. Trained Teacher and Graduate Trained Teacher. As per the Departmental Rules and Circulars for making such appointment, there must have been a recommendation of the District Education Establishment Committee. Such recommendation could have been made by the District Establishment Committee, considering the eligibility and seniority of the Teachers, eligible for such appointment / promotion. The Departmental circular and guidelines regarding Kalawadhi and experience should also have been considered. Nothing was observed in case of the petitioner and ignoring everything, illegal and forged appointment letter was issued in his favour in between a gap of two months only, firstly as I.A. Trained Teacher and again as a Graduate Trained Teacher. Petitioner’s case is that the respondents should have conducted an enquiry in his case as per the direction of Division Bench of High Court in C.W.J.C. No. 4284 of 1991. In paragraph no. 17 of this judgment, the District Education Officer, Purnea and District Education Establishment Committee were directed to classify cases 5 in batches and to find out whether promotions were recommended / approved by the District Education Establishment Committee (ii) whether seniors were left / considered (ii) whether the orders of promotions were forged and fabricated and then it was to decide whether the promotions / appointment given to the incumbent is legal or illegal. In the case of the petitioner, it was not followed, on this ground that the impugned orders are bad. On perusal of impugned orders and the statement made in the Counter affidavit, I find that enquiry in the case of petitioner has been made following the guidelines in paragraph 17 of the judgment rendered by the Division Bench in C.W.J.C. No. 4284 of 1991. Petitioner was given proper opportunity. Each and every point which needed to be considered has been considered by the then DSE-cum-SDEO, Kishanganj. The then DSE, Purnea during enquiry himself had admitted that in case of petitioner there was no recommendation of the Establishment Committee. Without there being any recommendation of the Establishment Committee, petitioner could not have been given promotion by way of appointment, as I.A. Trained Teacher or Graduate Trained Teacher. The seniority list was also ignored. For all these reasons, I do not find that any 6 illegality in the impugned order passed by the then DSE- cum-SDEO, Kishanganj, contained in Memo No. 113, dated 20.07.2004. The appellate order passed by the Regional Deputy Director of Education, Purnea also do not suffer from any illegality. Since the impugned orders have been passed as per the guidelines of the High Court, as well as in accordance with law, giving proper opportunity to the petitioner, the orders are legal and need no interference. However, counsel appearing for the petitioner submits that even if the earlier appointment / promotion given to the petitioner is cancelled, otherwise also he is entitled for his promotion to the Intermediate Trained Scale and Graduate Trained Scale considering his length of service, seniority, and educational qualification as provided under the relevant rules and guidelines for promotion / appointment. Counsel for the petitioner also submits that in the gradation list most of the persons, who are above the petitioners have already retired and the petitioner is also on the verge of retirement. At this juncture, Respondents should not have passed any order for recovery of the amount paid to the petitioner as salary in the promotional scale. In support of this contention, petitioner has placed reliance on a decision reported in 2008(II)SCC750. In the similar circumstance, the Supreme Court while considering the 7 case of the petitioner had given a compassionate consideration for the reason that the petitioner was going to reach the age of superannuation. Supreme Court had restrained from making any recovery of salary paid to the petitioner and there was also direction for not making any recovery from retirement benefits of the petitioner. Considering the submission made by the petitioner, the respondents are directed to consider the case of the petitioner on these two points (i) the promotions, for which petitioner is eligible, should be allowed to him considering his eligibility qualification and seniority. (ii) So far the recovery part is concerned, petitioner is on the verge of retirement, the respondents will compassionately consider the case of the petitioner in the light of the decision of the Supreme Court, mentioned above. The respondents will consider these two points within six months from the date of production / communication of this Order and pass necessary Order. With the aforesaid observations / directions, this Writ Application is disposed of. SKM (Mridula Mishra, J.)