- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Ashok Kumar Kulhari vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO. 6005/2005 DATE OF ORDER : 16/5/2008 P R E S E N T HON'BLE JUSTICE SHRI GOPAL KRISHAN VYAS Mr.R.S.Choudhary, for the petitioner. Mr.B.L.Bhati, Dy. Government Counsel. In this petition petitioner is challenging the order dated 15/3/2001 (Annex.4) passed by Deputy Director (Secondary Education), Churu, whereby, a penalty of withholding one grade increment without cumulative effect was imposed against the petitioner. According to facts of the case, petitioner is working as Senior Teacher (English) in the respondent department and has always worked with zeal and dedication. The result of subject taught by the petitioner always remained aboveboard but due to unavoidable and uncontrolled reasons, result of Government Senior Higher Secondary School, Utradabas, District Hanumangarh for the year 1998-99 remained 16% and result of - 2 - class Xth (English) remained 21.40%, therefore, Deputy Director, Education Department, issued memo of charges to him on 7/12/2000 under Rule 17 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules,1958 and it is alleged that result of secondary examination in English subject which is taught by petitioner has reduced to 21.40%, which is below the standard maintained by the Department, therefore, he is guilty of misconduct for which a minor punishment under Rule 17 of the Rules, 1958 is required to be inflicted upon him. A reply was filed by the petitioner against the so called memo of charge sheet in which it is specifically stated by the petitioner that the result of English pertaining to Xth Class has always been very good and satisfactory before 1998 but only in the academic year 1998-99 it has reduced to 21.40% for so many reasons unavoidable. Out of those reasons, one reason stated by the petitioner was his transfer from Government Senior Secondary School Utradabas to Baba Shri Kesharnath Government Secondary School Tayeen, District Jhunjhunu. It is also stated in reply that in the academic year 1998-99, 17 students, who were having short fall of their attendance were also permitted by the head of the institution and 18 students were admitted in the School on 28th August, 1998. These two facts clearly show that Head of Institution granted admission to - 3 - students after lapse of two months of the sessions but the Deputy Director while exercising power under rule 17 of the CCA Rules, 1958 has not considered the reply submitted by petitioner in right perspective and penalty of withholding of one grade increment without cumulative effect has been imposed. Against the said order of penalty, an appeal was filed by the petitioner before the Director, Education and the said appeal is still pending as the Director is not deciding the appeal, therefore, after waiting for sometime for decision of appeal, the petitioner has filed this writ petition. Learned counsel for the petitioner argued that first of all no standard is fixed by the department for achieving target of result so also the alleged allegation cannot be termed as misconduct because as per Rajasthan Civil Service (Conduct Rules), 1971 allegation levelled against him cannot be termed or defined as misconduct. Further it is argued that to constitute misconduct in service, there must be commission or omission of some act on the part of an employee but here in this case if students are not getting marks upon their performance then teacher cannot be blamed. Further it is argued that allegation of misconduct must be based upon specific act, deed or omission on the part of an employee and in absence of it the charge is required to be defined as vague charge and in the present case upon perusal of - 4 - charge sheet it is clear that the same is cyclostyled charge sheet and the same has been issued without application of mind by the Deputy Director (Secondary Education), which is disciplinary authority under the Rules for taking action.] It is further argued that by learned counsel for the petitioner that in reply filed by petitioner it is specifically stated that for the lapse on the part of students, who are not getting good marks in final examination, petitioner cannot be held responsible. More so, the fact that certain students with short attendance were allowed to appear in the examination and sometimes students were not regularly attending the English class were the reasons for not achieving good result but this fact cannot constitute misconduct for which petitioner can be taken to task by the respondents. Further it is stated that reply filed by petitioner was not considered objectively by the respondents. It is also argued by learned counsel for the petitioner that from the academic session 1999-2000 to 2003-2004 the result of petitioner is more than 68% and upto 81%, which is evident from Annex.3. Therefore, it is submitted that first of all charge sheet for the alleged misconduct is totally baseless and it has been issued on wrong premises. Further it is stated that the charge sheet has been issued in mechanical manner and without application of mind and charge sheet has been issued without - 5 - even taking into consideration the definition of misconduct as per Rules of 1971, therefore, charge sheet so also order impugned passed by the Deputy Director deserve to be quashed. Per contra, learned Government Counsel Shri Bhati while raising preliminary objection argued that the charge sheet issued to the petitioner under Rule 17 of the CCA Rules, 1958 was perfectly in consonance with the provisions of law and as per the procedure laid down under Rule 17 of the Rules. As per learned Government Counsel there is no illegality in the order impugned. In para no. 2 of the preliminary objection it is stated by the respondents that petitioner was teacher of English subject and the percentage of successful candidates in the session 1998-99 was 21.40% which is below the prescribed minimum required criteria of the department. It is admitted in this para that result of petitioner in the year 1996-97 and 1997-98 was 79% and 55% but it was reduced to 21.40% in session 1998-99, and according to respondents it was due to carelessness of petitioner, therefore, it is wrong to say that petitioner has always worked had with zeal and dedication. In para no.5 of reply, it is submitted that admission to students has been given as per Rules by the Head Master and as regards short fall of attendance it is submitted that there is a provision of 20% exemption from attendance by the Head of the Institution, - 6 - therefore, the reason given by the petitioner in his reply was totally untenable. In these circumstances, petitioner was rightly penalised with penalty of withholding of one grade increment without cumulative effect, hence this writ petition deserves to be dismissed. I have considered the rival submissions and gone through the material on record. In this case admittedly prior to 1998-99 the result of petitioner was good. Likewise, from 1999 to 2004 result of petitioner was very good as is evident from Annex.3. Meaning thereby, for one academic session i.e. 1998-99 the result of petitioner was low i.e. 21.40%. However, the question relevant for the present purpose is whether a teacher can be penalised for low result in a particular subject and whether low result in a particular subject can be defined as misconduct to take action against the teacher. In my opinion, for the above question the answer is certainly “NO” because students are required to give answers and examiners are assessing the answer books of students. A teacher is required to put his all efforts to impart education to students and he is also required to regularly attend the class and complete the course in a given academic session. In this case there is no allegation that petitioner did not attend the classes or was negligent towards his work. It is also not the case of respondents that petitioner has - 7 - disobeyed any order of Head Master. On the contrary 18 students were allowed by the Head Master who were not having required attendance in the academic session and some students were admitted late in the session. In these facts, obviously, petitioner cannot be blamed for low percentage of result of English subject for the session 1998-99, therefore, there was no occasion to initiate any inquiry against the petitioner under Rule 17 of the Rules of 1958. Similarly, upon perusal of cyclostyled charge sheet in which blank columns were filled in by the Deputy Director, therefore, it is clear that the charge sheet has been issued without application of mind by the Disciplinary Authority. If petitioner had committed any misconduct or disobedience of any order then the same was required to be incorporated in the charge sheet but there is no allegation as such. In my opinion, the only assertion in the charge sheet is with regard to result for the session 1998-99, which is said to be reduced to 21.40% cannot be accepted as misconduct. The order of penalty against the petitioner is unsustainable in eye of law because a teacher cannot be blamed for non-performance of students. Likewise, no minimum standard of result of particular institution can be fixed by the Government. The performance of teacher can only be assessed by his conduct. In absence of any allegation, no misconduct is constituted against the petitioner for which he can be blamed. - 8 - In case of Charan Singh & Ors. vs. RSRTC & Anr. Reported in 2003 (1) CDR 899 (Raj.) in para 12 it has been held by this Court that : “12. Learned counsel for the respondents submitted that the respondents issued only notice to the petitioners with charge sheet and in that enquiry the petitioners can certainly come forward with their pleas justifying the non-achieving th target and if will satisfy, they will be exonerated and if, they do not have any explanation for not achieving the target then this will certainly be due to poor performance of work of the conductor. Here, in this case, the petitioners have challenged the very authority of the issuance of the charge sheet on the ground that issuance of charge sheet is without jurisdiction because of the reason that the charge sheet contains no allegation of slowing down in performance of work by the respondents and the non-achieving of the target in the scheme is not a misconduct for which any enquiry can be held to punish the petitioners. Therefore, mere non-achieving of the target itself cannot be a ground to proceed against the petitioners. I find substance in the submission of learned counsel for the petitioners that there is no reason for authority to proceed only on the ground of non-achieving of target by the petitioners in the scheme under the provisions of sub-clause (t) of Clause 31 of the Standing Orders, therefore, the - 9 - charge sheet deserves to be quashed.” Similarly, in case of Subhash Chandra Grover vs. State of Rajasthan and others (S.B.Civil Writ Petition No.402/1998) decided on 19/5/2000 this Court has held that foundation for making adverse entry was that the petitioner did not fulfil the target setup by the department providing for registration of minimum number of cases of violation of Excise Law cannot be a ground for assessing performance of an employee of Excise Department. Further in case of Dharamveer vs. State & Ors. Reported in 2005 (5) RDD 1219 (Raj.) the Coordinate Bench of this Court has held that initiation of disciplinary proceedings against the petitioner on the allegation that result of school in specific subject of secondary remained below the standard settled by the Education Department does not constitute misconduct. It is well settled that to constitute misconduct in a service there must be commission or omission of some act on the part of the employee, so also charge should be specific and must be without any ambiguity, therefore, in absence of any specific act, deed or omission on the part of employee, charge sheet is not sustainable. - 10 - In view above discussion, I hold that no disciplinary action can be taken against a teacher on the ground that result of particular subject in which he is teaching students has been reduced. However, at the same time it is open for the Education Department that in the event of any allegation of specific act, deed or omission on the part of employee, which is defined as misconduct in the Conduct Rules, 1971, action can be taken but for performance of students in the examination, a teacher cannot be blamed on the ground that result of particular institution in a particular subject has been reduced, therefore, a teacher cannot be held responsible for non-performance of students. In these circumstances, this writ petition is allowed. The charge sheet dated 7/12/2000 and impugned order dated 15/3/2001 (Annex.4) passed by Deputy Director, Secondary Education, Churu are set aside with all consequential benefits. No order as to costs. (GOPAL KRISHAN VYAS), J. pankaj baweja