Patna High Court
Kanchan Mala vs The State Of Bihar And Ors on 2 February, 2024
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12740 of 2015
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Kanchan Mala wife of Nityanand Prasad, resident of Shanti Bhawan, Karma
Road, P.S.- Aurangabad, District, Aurangabad
... ... Petitioner/s
Versus
1. The State of Bihar
2. The District Magistrate, Aurangabad
3. The Deputy Development Commissioner, Aurangabad
4. The District Programme Officer, (Establishment), Aurangabad
5. The Head Miss. Government Middle School, PHED, Colony, Aurangabad
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mithilesh Kumar Rai, Advocate
Kumari Ruchi, Advocate
Mr. Abhishek Upadhyay, Advocate
For the State : Mr. Shiv Kumar, A.C. to G.A.3
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
Date : 02-02-2024
1. Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The petitioner has filed the instant application for
the following relief(s):
"That this is an application for
issuance of a writ in the nature of certiorari, to
quash the order dated 04.04.2015, as contained
in Memo No. 180, issued under the signature of
District Programme Officer, (Establishment)
Aurangabad, whereby and whereunder the claim
of the petitioner for the payment her salary for
the period 20.03.2008 to 30.03.2012 has been
rejected and further for issuance a consequential
unit in the nature of Mandamus, commanding
and directing the respondents not give effect of
Patna High Court CWJC No.12740 of 2015 dt.02-02-2024
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the said impugned order in any manner, save
and except as permissible under the law and to
make payment of the salary of the petitioner for
the said period with admissible interest as well
penal interest along with cost of litigation and/or
may pass such any other order/ orders for which
the petitioner may be found legally entitled to."
3. The case of the petitioner is that she was appointed
as an Assistant Teacher in a Government Primary School in the
year 1994. She worked in different capacities in different
schools as has been given in detail in the writ application and in
this period, she was also selected and underwent training of
B.Ed. course at Patna. Having completed her course, she gave
her joining on 20.3.2008 and filed various applications, however
no orders were passed on the said representations/applications
nor was she permitted to join and perform her duties. Not
having received salary for the period 20.3.2008 to 30.3.2012,
the petitioner moved this Court in CWJC no.4479 of 2014
which was disposed of by order dated 7.1.2015 in the following
terms:
"The District Programme Officer
(Establishment), Aurangabad, is directed to initiate
an enquiry against the petitioner for the period of
her absence, which is said to be 20th March, 2008 to
30th March, 2012. If adequate evidence and
material is produced in course of enquiry with
regard to petitioner not being in default relating to
the period of work or her absence and is not
attributable to her, she will be surely entitled to
Patna High Court CWJC No.12740 of 2015 dt.02-02-2024
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payment of salary for the aforesaid period.
From the material emerging from
Anneuxre-12 it is difficult for this Court to
adjudicate in her favour that it was a case where she
is entitled to salary for the period as there are many
a gaps with regard to the explanation which has
been offered by the petitioner in relation to her
absence.
The enquiry must be completed within a
period of three months with due assistance of the
petitioner in this regard. Final order will be passed
thereafter irrespective of the impugned order
contained in Annexure-12.
Writ application is disposed of with above
direction."
4. Learned counsel for the petitioner submits that the
unreasonable action of the respondents-authorities continued
even after direction of this Court which would be evident from
perusal of the letter dated 26.3.2015 written by the Programme
Officer from the office of the District Education Officer for
carrying out the directions of this Court as contained in order
dated 7.1.2015. By letter dated 26.3.2015 served on the
petitioner, the petitioner was directed to file her reply along with
all evidences which was to reach the respondent concerned by
forenoon of 27.3.2015. The petitioner filed her reply which has
been brought on record as Annexure-17 series to this
application. It is submitted that an enquiry was got conducted
and the Programme Officer in the office of the District
Education Officer, Aurangabad submitted his report dated
Patna High Court CWJC No.12740 of 2015 dt.02-02-2024
4/7
31.3.2015
(Annexure-B to the counter affidavit of respondent
no.4) on the basis of which the District Programme Officer
(Establishment), Aurangabad by his order contained in Memo
no.180 dated 4.4.2015 rejected the representation of the
petitioner for payment of salary for the period 20.3.2008 to
30.3.2012. Learned counsel for the petitioner refers to last
paragraph of the enquiry report of the Programme Officer to
submit that it has been found therein that it was only for the
reason that the representation filed by the petitioner was not
disposed and no order was passed thereon that the petitioner
could not carry out work of imparting education for the
aforesaid period.
5. Learned counsel for the respondents in reference to
the enquiry report dated 31.3.2015 submits that from reading of
the same, it would transpire that even in the past the petitioner
had not been performing her duties properly. Even in conclusion
of the said report, the Programme Officer has concluded that
there is no evidence to the effect that she was waiting for
posting. The order impugned being based on the said enquiry
report which is a detailed report considering all the contentions
raised by the petitioner, there is no merit in the instant
application and the same be dismissed.
Patna High Court CWJC No.12740 of 2015 dt.02-02-2024
6. Having heard learned counsel for the parties and
having perused the material on record, this Court finds that
pursuant to the direction of this Court as contained in order
dated 7.1.2015 passed in CWJC no.4479 of 2014, the District
Programme Officer (Establishment), Aurangabad though
directed to initiate an enquiry himself deputed the Programme
Officer in the office of the District Education Officer,
Aurangabad to conduct the enquiry. The said Programme
Officer by his letter dated 26.3.2015 though gave an opportunity
to the petitioner to submit her reply along with evidence of
having worked for the period in question, in the opinion of the
Court, it cannot be said to be a reasonable opportunity as the
petitioner was asked to submit her reply along with evidences
within one day.
7. Coming to the contents of the enquiry report dated
31.3.2015, the concluding paragraph of the report is reproduced
for ready reference:
"f"kf{kdk Jhefr dapuckyk }kjk miyC/k djk;s x;s
fyf[kr i{k ,oa lk{;ksa rFkk d;kZy; }kjk miyC/k djk;s x;s
vfHkys[kksa ds vk/kkj ij tk¡pksijkUr ik;s x;s rF;ksa ls Li'V
gksrk gS fd f"kf{kdk }kjk fnukad 20-03-08 ,oa vU; frfFk;ksa
esa ;ksxnku gsrq dk;kZy; esa vkosnu fn;k x;k gS ftldk
fu'iknu dk;kZy; Lrj ls lle; ugha gksus ds dkj.k
f"kf{kdk }kjk vuqifLFkr vof/k fnukad 20@03@2008 ls
30@03@2012 rd fdlh fo|ky; esa "kS{kf.kd dk;Z vFkok
dk;kZy; Lrj ij Hkh dksbZ dk;Z ugha fd;k x;k gS rFkk
muds inLFkkiu dh izrh{kk esa jgus dk Hkh dksbZ lk{;
Patna High Court CWJC No.12740 of 2015 dt.02-02-2024
miyC/k ugha gSA lkFk gh dk;kZy; vfHkys[kksa ls ;g Hkh Li'V
gksrk gS fd iwoZ esa Hkh muds }kjk fu;fer :i ls "kS{kf.kd
dk;Z ugha fd;k x;k gS ,oa os izk;% vodk"k esa jgh gSaA"
8. On perusal of the concluding portion of the report,
which forms basis of the order impugned, it would transpire that
the Programme Officer comes to the categorical finding that the
petitioner on 20.3.2008 as also on other dates gave
representation for her joining which was not disposed of within
time by the office concerned. Once the Programme Officer has
come to the conclusion that the petitioner could not carry out
teaching work from 20.3.2008 to 30.3.2012 for the reason that
her application for giving her joining in school filed in office on
20.3.2008 and other dates were not disposed of on time, the
subsequent comments about the petitioner not having produced
any evidence of her waiting for posting is of no consequence.
9. Based on the said enquiry report, the District
Programme Officer (Establishment), Aurangabad passed the
order impugned contained in memo no.180 dated 4.4.2015
rejecting the petitioner's representation for payment of salary
for the period 20.3.2008 to 30.3.2012. Perusal of the order
impugned dated 4.4.2015 would show that it has not dealt with
any of the contentions raised by the petitioner in her reply along
with the enclosures therein which were filed within the one day
Patna High Court CWJC No.12740 of 2015 dt.02-02-2024
notice given to her by the Programme Officer. The District
Programme Officer has solely relied on the report dated
31.3.2015 as discussed herein above.
10. In view of the facts and circumstances stated
herein above specially the contents of the enquiry report dated
31.3.2015 of the Programme Officer, relevant portion of which
is quoted herein above, this Court comes to the conclusion that
the order contained in memo no.180 dated 4.4.2015 (Annexure-
18) passed by the District Programme Officer (Establishment),
Aurangabad is not sustainable and is hereby quashed. The
petitioner is entitled for salary for the period from 20.3.2008 to
30.3.2012 which shall be paid by the District Programme
Officer (Establishment), Aurangabad (respondent no.4) within a
period of four months from the date of receipt/production of a
copy of this order.
11. The writ application stands allowed.
(Partha Sarthy, J)
Saurabh/-
AFR/NAFR
CAV DATE
Uploading Date 06.02.2024
Transmission Date
