Munni Devi vs The State Of Bihar
2021 Latest Caselaw 1587 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.13024 of 2019
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Munni Devi D/o Sri Puso Ram,W/o Sri Ashok Kumar Ram Resident of Village Vikrampur,PO Sarangpur,P.S. Tajpur,Dist.Samastipur

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary,Education Department,Govt. of Bihar,Patna

2. The Principal Secretary, Education Department,Govt. of Bihar,Patna

3. The Director, Primary Education,Education Department,Govt. of Bihar,Patna

4. The District Magistrate,Samastipur, Dist.Samastipur

5. The District Education Officer, Samastipur,Dist.Samastipur

6. The District Programme Officer (Establishment),Samastipur,Dist.Samastipur

7. The Block Education Officer, Sarairanjan,Dist.Samastipur

8. The Panchayat Secretary, Gram Panchayat Raj,Akhtiyarpur Balbhadra,Block-Sarairanjan,Dist.Samastipur

9. The Mukhiya of the Gram Panclhayat Raj, Akhityarpur,Balbhadra,Block Sarairanjan,Dist.Samastipur

10. The Headmaster, Primary School,Bhojpur,Ward No.12,Akhtiyarpur Balbhadra,Block Sarairanjan,Dist.Samastipur

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Mrityunjay Kumar, Advocate Mr. Mukesh Kumar Singh, Advocate Mr. Arinjay Kumar, Advocate For the Respondent/s : Mr. Pramod Kumar Singh, A.C. to S.C.16 ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL JUDGMENT Date : 22-03-2021

Heard Mr. Mrityunjay Kumar, learned counsel for the

petitioner and Mr. Pramod Kumar Singh, learned A.C. to S.C. 16

appearing for the Respondents-State.

2. The present writ application has been filed for

quashing of letter No. 389 dated 26.10.2018 (Annexure-4) issued Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

by the Block Education Officer, Sarairanjan, Distt. Samastipur,

whereby a direction has been issued to the Mukhiya and Panchayat

Secretary of the Gram Panchayat, Akhtiyarpur, Balbhadra to

cancel the appointment of the petitioner as Panchayat Teacher in

Primary School, Bhojpur, Ward No.12 on the ground that the

petitioner has been appointed on the basis of certificate issued

from non recognized institution.

3. The brief facts giving rise to the present writ

application is that the petitioner was appointed on 5.11.2007 as

Panchayat Teacher in Primary School, Bhojpur, Ward No. 12,

Gram Panchayat Akhityapur Balbhadra, Block Sarairanjan, Distt.

Samastipur and at the time of appointment the petitioner had

produced the Madhyama Visharad certificate issued by Hindi

Sahitya Sammelan, Prayag, Allahabad, equivalent to Intermediate.

After appointment of the petitioner in 2007, the certificate issued

by the Hindi Sahitya Sammelan, Prayag, Allahabad, has been

declared invalid pursuant to Govt. Circular with effect from 25th

August, 2008 and a clarification in this regard was issued by the

Director, Primary Education, Government of Bihar, Patna, vide his

letter No. 131 dated 11.02.2012 stating therein that the certificate

of Madhyama Visharad obtained from Hindi Sahitya Sammelan,

Parayag, Allahabad, has been declared invalid and the teacher who Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

has been appointed in the year 2006 on the basis of the said

certificate shall remain continued on their respective posts. The

petitioner has further stated that after appointment, the petitioner

continued on the post and succeeded in the teacher evaluation

(Dakshta Pariksha) conducted by the SCERT in the year 2013 and

also passed the two years in service teacher training course i.e.

D.el.ed exam conducted through the Bihar School Examination

Board as well as the State Council for Education Research and

Training, Patna.

4. A counter affidavit has been filed on behalf of the

Respondent Nos. 6 and 8 stating therein that the petitioner has

been removed from service in pursuance of direction of Block

Education Officer, Sarairanjan, Distt. Samastipur, vide letter No.

389 dated 26.10.2018 and accordingly letter No.34 dated

9.11.2018 was issued by the Panchayat Secretary by which the

petitioner has been removed from service. It has further been

contended in the counter affidavit that there is alternative remedy

of appeal before the District Teacher Employment Authority and

the petitioner may be relegated to the remedy of appeal. The letter

of removal dated 9.11.2018 has been challenged by the petitioner

by way of filing Interlocutory Application bearing I.A. No. 1/2021

stating therein that before issuance of the letter of removal, Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

annexed at Annexure-9 to the Interlocutory Application, the

petitioner was not served with any show cause notice and the order

of removal has been passed in complete violation of principle of

natural justice as well as Circular of the State Govt. dated

25.8.2008.

5. Learned counsel for the petitioner in support of the

writ application submits that the impugned letters at Annexure-4

and 9 have been issued without application of mind inasmuch as

from perusal of Annexure-2 and the Circular dated 25.08.2008

issued by the Government of Bihar, vide Memo No. 3152. From

perusal of Circular dated 25.8.2008, it would be evident that

Madhyama certificate issued by Hindi Sahitya Sammelan, Prayag,

Allahabad, along with other institutions mentioned in the Circular

shall not be considered for the purpose of appointment of teachers

in Primary Schools. The Circular further clarifies that the

appointment made on the posts of teacher prior to this Circular

shall be guided by the Circular issued by the Personnel and

Administrative Reforms department. Learned counsel thus,

submits that from the Circular, it is very much clear that it was

made effective from 25.08.2008 and the petitioner has admittedly

been appointed prior to coming into force of the Circular i.e in the

year 2007.

Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

6. Learned counsel further submits that before

issuance of the order of removal, no notice or show cause was

served upon the petitioner at any point of time and the impugned

letter is bad in law on this very count itself. The petitioner has

relied upon the order passed by a co-ordinate Bench of this Court

in CWJC No.4455 of 2017 and CWJC No. 16939 of 2018 in order

to show that in the similar mater the co-ordinate Bench of this

Court has allowed the writ applications filed by the Primary

Teachers on the similar facts. Learned counsel in support of his

argument also relied upon a judgment of this Court in a case of

Suryadeo Singh Vrs. The State of Bihar & Ors. reported in

2011(1) PLJR 28.

7. On the other hand, learned counsel for the

Respondents-State submits that there is an alternative remedy of

appeal. The petitioner may be relegated to the remedy of appeal

before the Appellate Authority.

8. I have heard learned counsel for the parties and

have gone through the writ petitions and other pleadings filed by

the parties. From perusal of the Circular dated 25.8.2008 vide

Memo No. 3152, it is evident that the certificate issued by the

Hindi Sahitya Sammelan has been made invalid for the purpose of

appointment on the post of Primary Teacher with effect from the Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

date of issuance of the Circular dated 25.08.2008 and, admittedly,

the petitioner has been appointed prior to the date of issuance of

Circular in the year 2007. It appears that the degree obtained from

the Hindi Sahitya Sammelan, Prayag, Allahabad was valid for

appointment in the year 2007 and a co-ordinate Bench of this

Court in CWJC No.4455 of 2017 has taken the similar Circular

into consideration and has allowed the writ application. I have also

gone through the judgment relied upon by the petitioner reported

in 2011 (1) PLJR 28, paragraph-10 of the same is relevant and

quoted hereinbelow:-

"10. In the light of the aforementioned submissions, the first question which needs to be examined is whether the writ petitions are maintainable in absence of the petitioners not exhausting the statutory remedy of appeal. It is not in doubt that both under the Sewa Sharta Niyamavali, 1983, there is a provision of appeal against the order of punishment, but then a question arises as to whether both the writ petitioners can be non-suited on the ground of not filing their appeal against the impugned orders of the removal of services before filing of the writ petitions.

This question, however, as with regard to Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

the maintainability of the writ application should not detain this Court, in view of the fact that it is an admitted position that as the orders of punishment came to be passed without compliance of the principle of natural justice. It is not disputed by the learned State Counsel that the Director, Secondary Education before passing the impugned orders had not issued any notice and/or given any opportunity of hearing. Therefore, once it is found that the impugned orders have been passed in complete breach of principles of natural justice, this Court cannot shut its doors only because the petitioners did not file their appeal. Way back, the Apex Court in the case of State of U.P. vs. Md. Nooh reported in AIR 1958 SC 86 had held that writ applications under Article 226 of the Constitution of India would be maintainable before the High Court even in those cases where the statutory remedy of appeal has not been invoked by the petitioners when the order passed and assailed is either in violation of the principle of natural justice or is wholly without jurisdiction. The aforesaid view of the Apex Court has been reiterated from time to time in series of judgments Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

as was noticed by the Apex Court itself in the case of Whirlpool Corporation vs. Registrar of Trade Marks Mumbai and Others reported in (1998)8 S.C.C. 1 wherein their Lordships had held as follows:-

"........Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged ........"

Patna High Court CWJC No.13024 of 2019 dt.22-03-2021

9. In view of the aforesaid discussions, I find that

before issuance of the order of removal, the petitioner was not

served with any show cause notice and the letter impugned is

violative of principle of natural justice and accordingly the

contention raised by the State counsel that the petitioner may be

relegated to alternative remedy of appeal is not sustainable and

accordingly the same is rejected. The impugned letters are also

not sustainable on the fact that the petitioner was appointed prior

to coming into force of the Circular dated 25.08.2008 by which the

certificate issued by the Hindi Sahitya Sammelan, Prayag,

Allahabad, was declared invalid.

10. As a result, this writ application is allowed. The

order impugned vide letter No. 389 dated 26.10.2018 and letter

No.31 dated 11.02.2012 are set aside and the petitioner is directed

to be reinstated with all consequential benefits.

(Anil Kumar Sinha, J) S.Ali/-

AFR/NAFR
CAV DATE                N.A.
Uploading Date          25.03.2021.
Transmission Date