IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1436 of 2001 MEGH NATH SINGH, s/o Ram Chandra Singh, resident of village- Jethui, P. S. Hajipur Town, District Vaishali. At present posted as Head Master Middle School, Basitpur Korigama Anchal, Goraul, District- Vaishali. … Petitioner. Versus 1. THE STATE OF BIHAR 2. The Collector, Vaishali at Hajipur. 3. The District Superintendent of Education, Vaishali at Hajipur. 4. The Treasury Officer, Vaishali at Hajipur. … Respondents. ----------- 3. 24.08.2010 Heard Mr. T. N. Maitin, learned senior counsel for the petitioner and Mr. Sunil Kumar Mandal, learned Standing Counsel 15 for the State. The prayer of the petitioner in this writ application when it was filed on 1.2.2001 reads as follows; “(I) For quashing of order/letter dated 14.8.2000 issued under Memo No. 2866 under the signature of respondent no. 2 by which respondent no. 4 has informed that power of drawing and disbursing has been withdrawn from the petitioner. (II) For quashing of the letter dated 18.9.2000 memo no. 3706 issued by the respondent no. 2 and the letter dated 8.9.2000 memo no. 3336 issued by respondent no. 3 in the light of order passed by collector consequently. (III) For quashing of order dated 10.9.2000 memo no. 3250 issued by the respondent no. 2 by which the petitioner has been asked to produced all relevant document failing which a departmental proceeding will be initiated. (IV) For quashing of letter dated 8.12.2000 issued by the respondent no. 3 consequently in view of the letter 2 issued by the respondent no. 2. (V) For holding that the petitioner has been promoted legally for which they are entitled too.” During the pendency of this writ application, an interlocutory application, I. A. No. 7359 of 2010 has been filed with a copy thereof served on the counsel for the State on 19.8.2010 wherein the petitioner having explained subsequent event has sought addition of one more prayer of quashing the order dated 27.1.2004 as contained in Annexure-15 and in this regard it would be useful to quote the additional prayer made in the said I. A. No. 7359 of 2010 which reads as follows: “1. That this interlocutory application is being filed with a prayer to add one more prayer in paragraph 1 of the writ application for quashing of the letter dated 27.1.2004 Memo No. 7233 issued under the signature of District Superintendent of Education Vaishali at Hajipur whereby the petitioner has been again suspended and reverted to the post of Assistant Teacher in wrong interpretation of the order dated 2.2.2001 whereby the petitioner was only restrained for functioning of the headmaster for a period of six weeks and while admitting the case vide order dated 26.4.2001, the order dated 2.2.2001 was not directed to continue.” With regard to the aforementioned prayer Mr. 3 T. N. Maitin, learned senior counsel for the petitioner at the outset had submitted that as a matter of fact this writ application had become infructuous inasmuch as the relief which was prayed by the petitioner originally in the writ application was almost already given to him by an order dated 9.1.2004 vide Annexure-19 to the said interlocutory application and in fact it was on account of misrepresentation of an interim order passed by this Court dated 2.2.2001 that the authorities had again passed an order on 27.1.2004 placing the petitioner under suspension as also depriving him from working on the post of Headmaster of the school. He in fact would submit that even if this aspect is clarified the petitioner will have no grievance inasmuch as the order of the authority dated 9.1.2004 would be sufficient to satisfy the grievance of the petitioner. Counsel for the State as usual having not filed any counter affidavit is just not in a position to explain anything except what has been stated in the writ application. The issue is in fact not any where in doubt that the petitioner having been demoted from the post of 4 Headmaster on the ground that his post-graduate degree was subsequently discovered to be wanting in certain respect and that is how by an order dated 18.9.2000 under the decision of the District Education Establishment Committee, the petitioner’s earlier promotion given on the post of Headmaster was cancelled and he was reverted to the post of graduate trained teacher with specific allegation that he had improperly and irregularly obtained such degree of post-graduate ( M.Sc. in Chemistry). As a result of the aforementioned order dated 18.9.2000, the petitioner’s promotion on the post of Headmaster was struck off and he had been also deprived of the power of Drawing and Disbursing Officer. The petitioner having been reverted to the post of a graduate trained teacher and subjected to recovery of salary already drawn by him in capacity of the Headmaster on the basis of his being a post-graduate by the said order dated 18.9.2000 had filed this writ application on 1.2.2001 assailing the same but this Court on 2.2.2001 having heard the parties had passed the following interim order. “Put up after six weeks to enable the petitioner’s counsel to get instruction and file counter affidavit. In the meantime, the petitioner 5 is restrained from functioning as Headmaster or to perform the duties of drawing and disbursing officer.” It may be kept in mind that the petitioner had already stood reverted from the post of Headmaster or performing the duties of Drawing and Disbursing officer by the impugned order dated 18.9.2000 and therefore the order of this Court dated 2.2.2001 was passed only when a prayer was made to stay the operation of the aforesaid impugned order. It is, however, to be kept in mind that when the writ application was placed for further hearing in the admission matter on 26.4.2001 this Court had admitted the writ application by passing the following order: “ This application will be heard. Counter affidavit, if any, must be filed within four weeks.” The order of this Court dated 26.4.2001, though does not reiterate the earlier restraint imposed on the petitioner with regard to his functioning on the post of headmaster or exercising power of Drawing and Disbursing Officer but nonetheless this Court had also not stayed the operation of the impugned order dated 18.9.2000 and therefore this Court would find it difficult to accept the submission of Mr. Maitin that as the order 6 dated 2.2.2001 was not reiterated at the time when this writ application was admitted for final hearing, the impact of the earlier interim order had automatically come to an end. As a matter of fact, this Court must hold that the interim order had rightly been not reiterated on 25.4.2001 because the petitioner had already stood reverted on the post of Assistant Teacher as on 18.9.2000. Moreover, there was no development in this Court as on 25.4.2001 inasmuch as neither any counter affidavit filed by the State nor any new was material brought by the petitioner which could have led to withdrawal or vacating the order dated 2.2.2001 . Thus mere omission of reiterating the interim order dated 2.2.2001 while admitting the writ application on 25.4.2001 would not mean that the order of this Court passed on 2.2.2001 was either vacated or nullified specially when the order of reversion or stripping of the power of the petitioner of Headmaster and drawing and disbursing officer dated 18.9.2000 had remained operative either on 2.2.2001 or 25.4.2001 in absence of its being stayed by this Court. Having held so, when this Court would find that the order which was passed by the authorities on 7 9.1.2004 (Annexure-19), the same was actually based on a representation filed by the petitioner whereby and whereunder the petitioner’s claim for parity for giving the same treatment as was given to some of the other teachers whose promotion on the post of Headmaster was similarly found to be illegal and they were subjected to also an order as passed in the case of the petitioner. It appears that on such representation of the petitioner the authority had passed an order on 9.1.2004 whereby and whereunder the petitioner’s suspension was sought to be revoked and he was sought to be posted as Headmaster on certain terms and conditions including the final result of the present writ application and the result of criminal case filed against the petitioner and others being Vigilance Case No. 6 of 2000. The said order dated 9.1.2004 as contained in Annexure- 19 having been passed at the instance of the petitioner it could have been better appreciated if the petitioner had also filed the copy of that representation that was filed by him on the basis of which the said decision was taken on 9.1.2004 inasmuch as it could than have been easily verified as to whether the petitioner had ever brought the said interim order dated 2.2.2001 passed in this writ 8 application to the notice of the authorities. In absence thereof this Court will have to make only a guess work specially when there is no counter affidavit on behalf of State. Nonetheless it is clear from the fact noted above that the operation of the impugned order dated 18.9.2000 was never stayed even by the authorities and therefore the following terms and conditions imposed in the order dated 9.1.2004 (Annexure-19) Þvr% ftyk 'kf{kk LFkkiuk lfefr dh cSBd fnukad 12-12-03 esa fy;s x;s fu.kZ; ds vkyksd esa Jh esa /kukFk flag dks foHkkxh; dkjokbZ ds v/khu j[krs gq, fuEukfdr 'krkZ ds v/khu fuyEcj ls eqDr fd;k tkrk gS rFkk mUgs bl Øe es mUgs e/; fo|ky; igkM+iqj vapy jk/kksiqj esa iz/kkuk/;kid ds fjDr in ij inLFkkfir fd;k tkrk gS A 1- ekuuh; mPp U;k;ky; dh ;kfpdk la[;k lh- MCyq-ts-lh- ua0 1436@2000 ;k fuxjkuh foHkkx ds fo'ks"k vnkyr esa ntZ izkFkfedh la[;k 06@2000 ;k mPpkf/kdkjh vFkok foHkkx ls izfrdqy vkns'k izkIr gksus ij Jh flag mlds QykQy ls izHkkfor gksaxs rFkk iz0 v0 in ij yh x;h jkf'k dks ,d eq'r es tek dj nsuk gksxk A 2- foHkkxh; dk;Zokgh ds v/khu vxzsrj dkjokbZ pyrh jgsxh vkSj blds vUrhe QSlyk ds QykQy ls Jh flag izHHkkfor gksaxs AÞ in no way could be said to be given ultimate relief to the petitioner as sought in this writ application i.e. quashing of the order of his demotion, recovery etc. as 9 specifically contained in order dated 18.9.2000 (Annexure 9/A). Once this aspect becomes clear, there would be no difficulty in understanding the scope of the order of the authority dated 27.1.2004 (Annexure-15) inasmuch as the authority had merely sought to follow the order of this Court dated 2.2.2001 and had accordingly modified the earlier order dated 9.1.2004 to the extent that the petitioner was sought to be restrained from working on the post of Headmaster and exercising power of Drawing and Disbursing Officer and secondly the petitioner’s posting was made as a graduate trained teacher in Madhya Vidyalaya Kori Village. Therefore, for the reasons indicated above the submission of Mr. Maitin that Annexure-15, order dated 27.1.2004 should be quashed as it amounts to misinterpreting the interim order of stay passed on 2.2.2001 cannot be accepted specially when from the reading of the said order it is self evident that the authority while passing the order on 9.1.2004 restoring the petitioner on the post of Headmaster was not aware of the interim order of restrain dated 2.2.2001 passed by this Court which by itself was sufficient to recall the order 10 dated 9.1.2004 inasmuch as in case of no other similarly situated persons there was an order of this Court alike the one passed in the case of petitioner on 2.2.2001. As a matter of fact the order dated 9.1.2004 in teeth of order of this Court dated 2.2.2001 was rightly recalled else the same had to be held as a nullity in the eye of law as was held in the case of Skipper Construction Ltd. vs. Delhi Development Authority, reported in (1996) 4 SCC 622. The order of restraint passed in the case of the petitioner on 2.2.2001 being specific in its nature which was never modified or vacated the authority having noticed the said order could not have ignored it and therefore this Court would not find any fault on the part of the authority in passing annexure- 15 in keeping with the order of this Court dated 2.2.2001. Having held so that the order dated 29.1.2004 Annexure-15 is a valid order and when this Court had also found no error in the main impugned order dated 18.9.2000 (Annexure-9/A), there would be hardly any justification in revival of the earlier order dated 9.1.2004 which in any event was subject to final decision of this very case. Annexure- 9/A and Annexure-15 therefore 11 cannot be interfered at least till the departmental proceeding against the petitioner as contemplated is concluded and the petitioner is exonerated from a very serious charge as indicated in the impugned order contained in Annexure 9/A. This Court however also must hold that such Damosele’s sword cannot be kept hanging on the head of the petitioner for an indefinite period. As noted above the writ petitioner at least from the year 2000 for last 10 years is undergoing rigor of the punishment of his demotion from the post of Headmaster on the ground that his degree of M.Sc. was improperly obtained or was not a valid degree. True it is, under 1993 rules the requirement for promotion on the post of Headmaster in a Middle School is having a post graduate degree but then if the petitioner can still establish in a departmental proceeding that his degree was beyond any sort of doubt or error and his earlier promotion given on the post of Headmaster did not suffer from any infirmity, he would definitely be entitled to claim the benefit of continuing on the post of Headmaster. In that view of the matter, this Court would 12 direct the District Superintendent of Education, Vaishaili to ensure that the memo of charge against the petitioner in the departmental proceeding, if it has to be conducted and concluded, must be framed and served on the petitioner within a period of three months from today. If however the D.S.E. would find that there is no prospect of initiating a departmental proceeding against the petitioner for the present on account of pendency of the Criminal case, Vigilance Case No. 6 of 2000 he would place the whole matter relating to the petitioner before District Education Establishment Committee which would take its final decision in the matter of holding a departmental proceeding against the petitioner Such departmental proceeding if initiated against the petitioner will continue irrespective of pendency of the criminal case because the scope of the two in the given facts and circumstances would be entirely different. Therefore, if the petitioner would not object to continuation of the departmental proceeding on the ground of pendency of criminal case, such departmental proceeding must be conducted and concluded within a period of six months from the date of framing of the 13 charge. On the other hand if the petitioner would object to continuation of a departmental proceeding, he would not be entitled for being restored on the post of Headmaster till conclusion of criminal case. If however such departmental proceeding is not initiated and concluded on account of a conscious of the respondent, the petitioner will also be temporarily restored to the post of Headmaster alike his other counterparts covered by the same order and subject to the conditions as incorporated in the order dated 9.1.2004. In case, however the departmental proceeding is held and concluded the result of the same would govern the future functioning of the petitioner so far it relates to holding of post of Headmaster and/or exercising power as Drawing and Disbursing Officer. With the aforementioned observation and direction, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)