IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.121 OF 2009 MAYANAND CHAUDHARY, S/O LATE CHANDRASHEKAR PRASAD CHAUDHARY, AGED ABOUT 57 YEARS R/O VILLAGE FATEHA P.O. FATEHA, P.S BACHHWARA, DISTRICT BEGUSARAI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE SECRETARY CUM COMMISSIONER EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 2.SRI KAMESHWAR PRASAD, S/O NOT KNOWN DIRECTOR SECONDARY SCHOOL BOARD, GOVT. OF BIHAR, PATNA, NOW POSTED AS DIRECTOR SUGARCANE, DEPARTMENT OF GOVT. OF BIHAR, PATNA. 3.SRI RAJ MUKUL, S/O NOT KNOWN, REGIONAL DEPUTY DIRECTOR, MUNGER. 4.SRI BASANT KUMAR, S/O NOT KNOWN, DEPUTY DIRECTOR SECONDARY SCHOOL BOARD, NOW POSTED AT BIHAR TEXT BOOK COMMITTEE, PATNA. 5.SHRI BHAGWAT PRASAD, S/O NOT KNOWN, DISTRICT EDUCATION OFFICER, SHEIKHPURA, NOW POSTED AT B.S.E.B. 6.SRI RAJENDRA PRASAD, S/O NOT KNOWN OFFICIATING HEAD MASTER, MAHARSHI DAYANAND HIGH SCHOOL, BARSA, SHEIKHPURA. ………………………RESPONDENTS. ----------- 08/ 25.11.2011 Heard counsel for the parties. When this writ application was filed on 05.01.2009, the petitioner was continuing in service and has in fact retired only on 31.07.2011. In the writ application, the petitioner had made following prayer:- “(i) For quashing the office order no. 303/sheikhpura dated 14.05.2007 issued under the signature of district education Officer sri Bhagwat Prasad (D.E.O), Sheikhpura, whereby and whereunder the petitioner was directed to handover the charge of 2 Headmastership to Sri Rajendra Prasad Astt. Teacher of the said school (Maharishi Dayanand High School Barsha) with immediate effect on the assumed presumption of absenting from duty, and keeping the record of school with him as well as withholding the attendance register of the teachers with him and sending it to school is said to have as well as giving further direction to the said officiating headmaster(Sri Rajendra Prasad Asstt. Teacher) to maintain separate attendance register and complaint book and to ensure that the same is duly maintained accordingly without making endorsement of said office order to the petitioner is without jurisdiction, illegal ultravires and unconstitutional on all four and is against the rule of natural justice infringing Article 14, 21 and 16 of the constitution of India. (ii) For quashing the o.O No. 2613 dated 25.06.2008 issued under the signature of director, extending undue favour to Sri Rajendra Prasad, Asstt. Teacher with direction to take over the charge of Headmastership of the Maharishi Dayanand High School, Barsa, Sheikhpura superseding the lawful and rightful claim of the petitioner, exceeding its jurisdiction is, in breach of Art. 14 & 21 of Constitution of India. (iii) For quashing the order of suspension issued under the signature of Director Secondary Education Board, Bihar, patna vide memo no. 3855, Patna dated. 26.06.2008 merely on the assumed charge reflected in the said office order with immediate effect is hit by Art 14 & 21 of constitution of India.” Learned counsel for the petitioner in fact at the very outset has criticized the action taken by the District Education 3 Officer, Sheikhpura in removing the petitioner from the post of Incharge Headmaster, describing such action on the part of the District Education Officer, Sheikhpura to be wholly without jurisdiction. In support of his submission he has relied on a communication of the Regional Deputy Director of Education, wherein, explanation was called for from the District Education Officer, Sheikhpura as to how and why the petitioner was removed unceremoniously from the post of Incharge Headmaster. Counsel for the petitioner in fact has also proceeded to submit that everything was done against the petitioner only because the petitioner did not oblige the higher Authorities at local level in Sheikhpura, who had wanted him to pay the salary to a person by showing him to be a working teacher of the School and refusal on the part of the petitioner in capacity of Incharge Headmaster had led to all this unauthorized action on the part of the District Education Officer, Sheikhpura. Criticizing further the order of the 4 Director Secondary Education affirming the order of the District Education Officer, Sheikhpura both removing the petitioner from the post of Incharge Headmaster and authorizing the next senior most teacher to work as Incharge Headmaster, he has further submitted that even the Director of Secondary Education was biased against the petitioner. He has further submitted that the action on the part of the Authorities in not concluding the departmental proceeding in a space of almost three years before retirement of the petitioner despite framing of charge on 26.10.2008, would go to show that the petitioner was victimized on account of clear biased approach of the Authorities of the education department. Mr. Anish Akhtar, learned counsel for the State on the other hand by referring to the stand taken in counter affidavit filed on behalf of respondent no. 2 has submitted that the District Education Officer, Sheikhpura, is the local controlling officer of all the nationalized High Schools and as such when the District Education Officer, Sheikhpura had filed his 5 report about the situation prevailing in the School of the petitioner, in the interest of the School and had taken certain others actions as also reported the matter to the Director of Secondary Education for his final decision, the same cannot be called as an unauthorised act on his part. He has also submitted that subsequently the Director of Secondary Education had issued notice both to the District Education Officer, Sheikhpura as also to the petitioner but the petitioner despite remaining present in the office campus of the Director of Secondary Education at Patna did not chose to appear at the time of hearing and as such the order affirming removal of the petitioner from the post of acting Headmaster and his replacement by the next senior most teacher stood also approved by the Director of Secondary Education. He would, accordingly, submit that neither the action of District Education Officer, Sheikhpura can be said to be unauthorized nor without jurisdiction specially when ultimately even the Director of Secondary Education had not only 6 approved such action of the District Education Officer, Sheikhpura but had also directed for placing the petitioner under suspension in order to initiate a departmental proceeding by framing of charge on 26.06.2008. As with regard to the departmental proceeding, it has been asserted that the petitioner did not cooperate as a result whereof Regional Deputy Director of Education, Munger in capacity of Inquiry Officer could not submit the inquiry report. Mr. Anish Akhtar, learned counsel for the State has further explained that the petitioner had deliberately avoided the departmental proceeding till reaching of his age of his superannuation and as such he cannot be allowed to take advantage either in the matter of getting full retirement benefits or payment of salary unless the departmental proceeding itself is brought to end by exonerating the petitioner from all the charges. In the considered opinion of this Court, the removal of the petitioner from the post of Incharge Headmaster by the 7 District Education Officer, Sheikhpura cannot be held to be either unauthorized or without jurisdiction. All the nationalized High Schools in the district have to function directly under the control of the District Education Officer. It is therefore, clear that when the District Education Officer, Sheikhpura had found certain anomalies in course of his inspection in the school of the petitioner and had taken action for removing the petitioner from the post of Incharge Headmaster by replacing him with the next senior most teacher of the School for working as Incharge Headmaster. The post of Headmaster being a state level post and its appointing Authority being the Director of Secondary Education, the District Education Officer, Sheikhpura had also submitted a report to the Director whereafter such action of the District Education Officer, Sheikhpura has been approved by the Director of Secondary Education in the order contained in Annexure-2 and therefore, this Court would not find any anomaly in the striping off the powers of 8 the petitioner as Incharge Headmaster. The Incharge Headmaster is a working arrangement and if a person holding the post of Incharge Headmaster temporarily is found to be lacking in integrity and/or incapable of performing his duties, he cannot claim continuance by way his having the same status as of a permanent Headmaster. As with regard to the conduct of the Regional Deputy Director of Education who had written the controversial letter on 09.06.2007 it has to be observed that in the administration of nationalized high Schools, the Regional Deputy Director of Education does not anywhere come directly into the picture as would be apparent from the provisions of Bihar Non-government High School (Taking over Control and Management) Act 1981 or the Seva Shart Niyamavali 1983 framed thereunder. It is also unfortunate to note that the Regional Deputy Director of Education instead of reporting the matter to the Director of Secondary Education the head of the department and the cadre controlling authority as the post 9 of Headmaster had started making correspondence with the District Education Officer, Sheikhpura and had questioned the wisdom of the District Education Officer, Sheikhpura showing unnecessary concern for exercise of power by the petitioner in capacity of Incharge Headmaster. The very fact that the Director of Secondary Education ultimately had found all the actions of the District Education Officer, Sheikhpura to be justified would by itself go to show that the interference by the Regional Deputy Director of Education in the matter was wholly uncalled for. This Court in such a situation when the order of the Director being higher official has ultimately clarified the whole situation would leave the matter at rest. The issue which has really bothered the petitioner is denial of his payment of salary for the period of suspension and/or payment of subsistence allowance and/or non payment of his retirement benefits. The very fact that the petitioner has not controverted the specific averment made in the counter affidavit filed by respondent 10 no. 2, duly sworn by the Assistant Director of Secondary Education would go to show that he had actually no answer to the allegation of not cooperating in the departmental proceeding. Once a delinquent in the departmental proceeding would himself abscond and/or would not participate in the inquiry, he cannot claim any prejudice much less payment of subsistence allowance or salary till the conclusion of the inquiry. In this case, the petitioner having remained absconding and/or absent from the Headquarter was rightly not paid subsistence allowance and thus this Court would not find any reason for directing payment of subsistence allowance and/or salary to the petitioner at least till conclusion of enquiry. It is true that the order of suspension of the petitioner has been revoked after his retirement due to non completion of the departmental proceeding with a further direction for such departmental proceeding to be completed and therefore the petitioner has to await completion of departmental proceeding wherein his period 11 of suspension would also be decided in terms of Rule 97 of Bihar Service Code. Counsel for the petitioner has submitted that the petitioner has got no difficulty in participating in the departmental proceeding. As a matter of fact when the charges against the petitioner are quite serious and are covered within the ambit of Rule 43-B of the Bihar Pension Rules, this Court would direct the Director of Secondary Education to ensure that the departmental proceeding against the petitioner is now conducted at the directorate level in the Head Office of Director of Secondary Education itself by appointing a new Inquiry Officer who would conduct the departmental proceeding on a day to day basis, so that the Inquiry Report, after leading of evidence of both sides if any, is filed within a period of six months from the date the petitioner would appear before the Director of Secondary Education along with a copy of this order. The learned counsel for the petitioner having instruction from the petitioner, who is himself present in this 12 Court room, has shown his readiness to appear before the Director of Secondary Education, this Court would fix the date of 12th December, 2011 for his appearance before the Director of Secondary Education and the Director of Secondary Education will ensure that an Inquiry Officer in the rank of Deputy Director is appointed at an earliest so that the inquiry against the petitioner commences and is concluded within the time limit as indicated above. Since, the petitioner has already retired from service, he would be entitled for payment of his provisional pension @ 90 per cent in terms of the Government resolution dated 31.07.1980 envisaging payment of such provisional pension till the conclusion of the departmental proceeding. This Court would therefore, direct the Director of Secondary Education to ensure that the provisional pension of the petitioner for the month of December 2011 onwards is paid to him, if the petitioner appears before him on 12.12.2011 and also before the Inquiry Officer on each and every date of the departmental inquiry. All other 13 benefits either relating to arrears of salary or subsistence allowance or full retirement benefits would remain squarely dependent on the outcome of the final order in the departmental proceeding of the petitioner. It is made clear that anything observed in this order relating to the issues raised in this writ application will in no way prejudice the Director Secondary Education, disciplinary Authority while considering the charges and the findings of the Inquiry Officer and that he would his pass final order disposing of the departmental proceeding strictly in accordance with law. . With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)