IN THE HIGH COURT OF JHARKHAND AT

1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 350 of 2013
1.The State of Jharkhand
2.The Deputy Commissioner, Gumla
3.The District Superintendent of Education
...
...
...
...
....Appellants
Vs.
1.Damodar Hotta
2.Sri Jayant Kumar Mishra
3.Headmaster, R.C. Middle School, Kayamba, Gumla
...
...
...
...
...
Respondents
-----CORAM: HON'BLE THE CHIEF JUSTICE.
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR.
-----For the Appellants:
Mr. Rajesh Kumar
For the Respondents:
Mr. Rajiv Ranjan &K.S. Nanda, Advocates
-----Dated 21st April, 2014
------
This appeal is preferred against the order dated
9.07.2013
passed in W.P (S) No.1961 of 2012, whereby the
writ petition filed by the petitioner-1st respondent was
allowed
and the impugned order dated 29.12.2011 was
quashed.
2.
Brief facts of the case are that the writ
petitioner-1st respondent was appointed on 21.8.1980 in the
Government
Aided
Minority
School
by
the
Managing
Committee by letter dated 15.8.1980 and the appointment
was approved by the Director, Primary Education, Bihar,
Patna by letter no. 1229 dated 29.6.1982. By letter no. 1348
dated 20.4.2000, 1st respondent’s 3rd Pay Revision was
recommended by the District Superintendent of Education
( in short 'D.S.E.), Gumla. By letter no. 999 dated 28.4.2004
issued by the Director, Primary Education, Jharkhand, the
D.S.E,
Gumla,
was
asked
to
verify
the
provisional
2
verification statement of sanctioned and working and nonteaching units in the Non-Government Aided Primary
Schools from the records available at his office. The D.S.E,
Gumla, by letter dated 18.11.2005, issued a statement
showing sanctioned posts in different schools. The case of
the 1st respondent is that the sanctioned posts of the 3rd
respondent School, R.C. Middle School, Kayamba, was
shown as seven and the 1st respondent is entitled to revision
of his pay-scale. The District Accounts Officer, Gumla,
approved the proposal for revision of 5th and 6th
pay-
revisions. The order was, thereafter, to be issued but the
salary payable to the 1st respondent has been withheld since
September, 2010. On 25.10.2011, 1st respondent made
representation to release his salary. The D.S.E., Gumla,
issued the impugned order under Memo No. 2189 dated
29.12.2011 challenging the legality of the sanctioned posts
meant for the school. Thereafter, 1st respondent made
several representations for release of his salary; but nothing
has been done. The 1st respondent, thereafter, filed W.P (S)
No. 1961 of 2012 challenging the order passed by the
D.S.E., Gumla as contained in Memo No. 2189 dated
29.12.2011, whereby it was observed that there are only
three sanctioned posts of Teachers in the School and the 1st
respondent was not working against those three posts and is
not entitled to get salary.
3.
Learned Single Judge held that the impugned
order dated 29.12.2011 has been issued without giving any
3
notice and any opportunity of representation or hearing.
Learned Single Judge further held that by the impugned
order the 1st respondent’s pay has been stopped and the said
order is punitive and visiting the 1st respondent with civil
consequences and the order has been passed in violation of
the principles of natural justice and directed the appellants
to release 1st respondent’s arrears of salary within four
weeks from the date of receipt/production of a copy of that
order. Being aggrieved by the impugned order allowing the
writ petition, the State of Jharkhand has filed this Letters
Patent Appeal.
4.
counsel
We have heard Mr. Rajesh Kumar, learned
appearing for
the
appellants-State, Mr. Rajiv
Ranjan, learned counsel for the 1st respondent
and
also
the counsel appearing for the school-3rd Respondent.
5.
Learned counsel appearing for the appellants-
State submitted that originally when the 3rd respondentschool was a primary school, for which only three posts were
sanctioned and after the order of up-gradation of the school
into Middle School, issued by the District Superintendent of
Education vide Memo No. 2191-2250 dated 14.04.1980, the
School Managing Committee has appointed four teachers
(including petitioner) for which there were no sanctioned
posts. The learned counsel further submitted that after
appointment of the writ petitioner, his salary was to be paid
by the Managing committee of the school as per Memo
dated 14.04.1980 through their own means. But suppressing
4
all these facts, the Secretary, Managing Committee of the
school has managed to get the appointment approved an on
noticing the mistake from the month of September, 2010,
the salary of the 1st respondent has been withheld. The
learned counsel further submitted that without taking into
consideration that there were no sanctioned posts, the
learned Single Judge was not right in directing the
appellants to release the salary of the 1 st respondent. The
learned counsel further submitted that in case if the writ
Court has found that the impugned order has been passed in
violation of principles of natural justice, the proper course
should have been to direct the appellants to issue notice to
the 5th respondent and while so, the learned Single Judge
was not right in directing the appellants to release the
salary merely on the ground of violation of principles of
natural justice.
6.
Learned
counsel
appearing
for
the
1st
respondent has drawn our attention to Annexure-A filed
along with counter affidavit in this appeal and submitted
that vide proceedings of the Director, Primary Education in
the year 1982, the 3rd respondent-School was sanctioned
seven posts, which is evident from Annexure-A. Learned
counsel further submitted that 1st respondent having been
paid the salary including proposition statement of 2nd, 3rd
and
4th
pay
revision
were
already
approved
by
the
competent authority. Learned counsel further contended
that the writ petitioner-1st respondent is continuously in
5
service for the last 34 years and has been getting salary as
per the order passed by the then Government of Bihar in the
year 1984 vide letter no. 383 dated 26.2.1984 and while so
the appellants are not justified in stopping the payment of
salary from September, 2010 and the learned Single Judge
rightly
directed
the
appellants
to
release
the
salary
forthwith.
7.
Admittedly the 1st respondent was appointed in
the year 1980 in the 3rd respondent-school, which is a
Government Aided Minority School. The 3rd respondentschool, which was originally a primary school, was upgraded as middle school in the year 1980 as per order of
District Superintendent of Education issued vide Memo No.
2191-2250 dated 14.4.1980, in which, it is clearly stipulated
that on up-gradation of the school, there would be no
additional sanction of post and also there will be no financial
assistance from the Government for up-gradation of the
school as a middle school. However, by perusal of AnnexureA filed along counter affidavit filed by 1st respondent, it is
seen that Director, Primary Education approved the post of
1st respondent; In fact, in the memo of appeal at paragraph
5 (vii), the appellants themselves have stated as under
“....... After appointment of the petitioner, his
salary was to be paid by the Secretary,
Managing Committee of the School as per the
memo
no.
2191-2250
dated
14.04.1980
through their own means. But suppressing all
these facts, Secretary, Managing Committee
of the School has managed to get the
6
appointment
approved
and
proposition
statement of the 1st respondent/petitioner for
which there were no any sanctioned post.”
8.
According
to
the
appellants
when
the
3rd
respondent-School was functioning as Primary School, there
were three sanctioned posts out of which, two posts are
presently vacant. But so far as additional four posts are
concerned, they were not sanctioned post, therefore, the 1st
respondent/petitioner is not entitled for the salary since
there were no additional sanctioned posts for the middle
school, when the school was up-graded as a middle school.
9.
The learned counsel for the 1st respondent
submitted that in any event since two sanctioned posts (for
the primary school) are presently vacant, there could be no
impediment for paying the salary to the 1st respondent as the
same could be adjusted as against the sanctioned vacant
post.
10.
As rightly held by the writ court, the impugned
order has been passed without giving any notice and
opportunity of representation to the 1st respondent or to the
3rd respondent-school, if at all the 3rd respondent-school has
got the additional post sanctioned by one way or other, the
appellant ought to have issued show cause notice to the 3rd
respondent-school
and
after
affording
opportunity
of
hearing, reasoned order ought to have been passed. Without
doing so, the appellants appear to have suddenly stopped
the salary of the 1st respondent, who was appointed in the 3rd
respondent-school three decades ago. Furthermore, the 1st
7
respondent has been working for more than three decades
and regularly getting pay. In these facts and circumstances,
we are not inclined to interfere with the order passed by the
learned Single Judge, in so far as disbursement of salary of
the 1st respondent is concerned.
11.
The appellants-State are directed to comply with
the order passed by the learned Single Judge within a period
of three months from the date of receipt/production of copy
of this order. However, if it is the stand of the appellant that
after the up-gradation of the school, no additional post was
sanctioned, it is open to the appellants to issue show cause
notice to the 3rd respondent-school and after affording
opportunity of hearing may pass order in accordance with
law. The above said direction will not be an impediment for
releasing the salary of the 1st respondent. In so far as other
three persons, who are said to be working with the 3rd
respondent-school, this order cannot be extended and the
same is subject to the decision taken by the authorities. With
the above observations and directions, this Letters Patent
Appeal is disposed of.
Consequently the Interlocutory Application is closed.
(R. Banumathi, C.J.)
(Shree Chandrashekhar, J)
Alankar/-

Download Report