Patna High Court
Vidyasagar Kushwaha vs The State Of Bihar on 25 March, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7081 of 2021
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1. Vidyasagar Kushwaha son of Late Jag Narayan Kushwaha, resident of
Village-Makhdumganj, P.O.-Gheghta, P.S.-Chapra Muffasil, District-Saran.
2. Sumitra Kumari, Wife of Sri Mukesh Kumar Singh, resident of village and
P.O.-Jaitpur, P.S.-Daudpur, District-Saran.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Education Department,
Government of Bihar, Patna.
2. The Principal Secretary, Education Department, Government of Bihar,
Patna.
3. The Joint Secretary, Education Department, Government of Bihar, Patna.
4. The District Programme Officer (Establishment), Saran, Chapra.
5. The District Education Officer, Saran, Chapra.
6. The Block Education Officer, Manjhi, Saran.
7. The Block Development Officer, Manjhi, Saran.
8. Panchayat Secretary-cum-Secretary, Panchayat Planning Committee, Gram
Panchayat Raj Lejuar, Manjhi, Saran.
9. The District Teacher Appellate Authority, Saran through its Presiding
Officer.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ashish Giri, Sr. Advocate
Mr. Sumit Kr. Jha, Advocate
Ms. Riya Giri, Advocate
For the State : Mr.Subhash Chandra Mishra (Sc16)
For respondent no.8 : Mr. Ashok Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 25-03-2025
Heard Mr. Ashish Giri, learned Senior Counsel
along with Mr. Sumit Kr. Jha and Ms. Riya Giri, learned
counsels appearing on behalf of the petitioners; Mr. Subhash
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
2/11
Chandra Mishra, learned SC 16 for the State and Mr. Ashok
Kumar, learned counsel for the respondent no.8.
Re.: I.A. No. 2 of 2023
2. Learned counsel appearing on behalf of the
petitioners by filing the present interlocutory application seeks
amendment in Para-1 of the writ petition by adding additional
relief as stated in Para-1 of the present interlocutory application.
3. The petitioners during the pendency of the present
writ petition aggrieved by the order dated 21.11.2023 passed by
the State Appellate Authority in Appeal Case No. T-721/2022
filed I.A. No. 02 of 2023 seeking amendment in Para-1 of the
writ petition by adding additional relief as stated in Para-1 of the
present interlocutory application.
4. The interlocutory application was heard on
25.01.2024
on which date the State sought four weeks time to
reply the interlocutory application.
5. Mr. Ashish Giri, learned senior counsel along with
Mr. Sumit Kumar Jha, learned counsel submitted that this Court
had directed vide order dated 19.07.2022 to release the salary to
the petitioner. The State instead of complying with the order
dated 19.07.2022 preferred appeal against the order of the
District Appellate Authority passed on 28.07.2018 in Case No.
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
46/2017. The appeal was registered on 29.08.2022, however, for
non-compliance of the order of the Court and without any
modification application in that regard, the action of the State
can only be said to be contemptuous. Learned counsel further
submitted that the District Appellate Authority without
considering the said fact or in absence of any pleading made in
the appeal filed by the State by suppressing the vital fact from
the appellate authority in so far as order dated 19.07.2022 is
concerned which required compliance of the order by releasing
the salary of the petitioner during the pendency of the writ
petition. Apart from violation of statutory provision of Rule 14,
learned counsel submitted that the Appellate Authority did not
find to inquire into the legality of the order as prescribed under
Rule 14 and much less there is inordinate delay in filing the
appeal and the judgment and order is ex parte which fact has
been admitted by the learned Tribunal in Para-8 of the impugned
order dated 21.11.2023. On these grounds, learned senior
counsel submitted that the relief as prayed for in the present
interlocutory application are fit to be allowed.
6. A counter affidavit has been filed on behalf of the
State duly sworn by the District Programme Officer
(Establishment), Saran. I have perused the same and I find that
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
no statement has been made, as to why, the order dated
19.07.2022 of this Court was not sought for modification by
them, in case they chose to avail alternative remedy to file
appeal before the State Appellate Authority.
7. This Court has sufficient reason to direct for taking
action against the District Programme Officer (Establishment),
Saran, who has filed the counter affidavit in reply to the I.A.
Nos. 01 of 2023 and 02 of 2023 filed on behalf of the petitioner.
I also find that in absence of any approval of respondent no.1 &
2, who are the State and the Additional Chief Secretary,
Education Department, respectively for taking appropriate
action in this regard. I must observe that the merit of the case is
required to be decided on the basis of the pleading of the parties,
at the same time, the State Officials must not exceed their
jurisdiction. In the present case, there has been deliberate and
wilful disobedience of the order dated 19.07.2022 by which this
Court had directed that "In the meantime, the salary be released
to the petitioners".
8. For the reasons as recorded hereinabove, the
Additional Chief Secretary, Education Department may take
action against the District Programme Officer (Establishment)
well within a period of three weeks.
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
9. Having considered the information contained in
the interlocutory application and the grounds mentioned therein
and the affidavit, I find that there are sufficient reason to allow
the amendment of the prayer as prayed in Para-1 of the writ
petition by adding additional relief as stated in Para-1 of the
interlocutory application.
10. Accordingly, Interlocutory Application No. 02 of
2023 is allowed.
11. The petitioners in paragraph no. 1 of the
present writ petition have sought, inter alia, following relief(s),
which is reproduced hereinafter:-
"i) To issue a writ/order/ direction in the
nature of mandamus directing the respondent authorities
especially the District Programme Officer, Saran, Chapra
for payment of salary of the petitioners with effect from
their date of appointment i.e. 01.06.2015 with interest.
ii) To issue a writ/order/ direction in the
nature of mandamus directing the respondents to comply
with the order dated 28.07.2018 passed in case No. 46 of
2017 passed by the District Teacher Appellate Authority,
Saran in terms of which the appointment of the petitioners
as Primary Teachers in Primary School Lejuar, Muslim
Basti has been held to be valid and accordingly directed for
payment of the salary of the petitioners with effect from
01.06.2015.
iii) To hold and declare that the respondent
District Programme Officer is bound by the order of the
District Teacher Appellant Authority dated 28.07.2018 and
thereafter, cannot proceed to start afresh enquiry regarding
validity of the appointment of the petitioners and withhold
the payment of the salary as such and the same being
without the jurisdiction of the said respondent.
iv) To issue a writ/order/ direction in the
nature of certiorari for quashing the letter of the District
Programme Officer dated 24.06.2019 (Annexure-13) &
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
12.10.2019 (Annexure-15) by which the said respondent is
proceeding to enquire into the validity of the appointment of
the petitioners which already stands adjudicated by the
District Teacher Appellate Authority, Saran in case no.
46/2017 which has attained finality and thus, binding
between the parties.
v) To any other relief or reliefs for which the
petitioner is found to be entitled in the facts and
circumstances of the case.
12. Thereafter the petitioners filed I.A. No.2 of 2023
for modification of the prayer made in the writ application, inter
alia, seeking following relief(s):
"1(viii) To pass appropriate order / direction
in the nature of certiorari for quashing the order dated
21.11.2023 passed by the State Appellate Authority in
Appeal Case No.T-721 of 2022 wherein the Learned
Appellate Authority has found that the appointment of the
writ petitioners liable to be cancelled as based on fake TET
Certificate and further, direction given to the District
Education Officer to recover the amount of any payment
make to the petitioners and to remove them from service
within one fortnight.
(ix) To hold and declare that the appeal case
No.T-721/2022 preferred by the District Programme Officer
(Establishment) Saran at Chapra and Block Education
Officer, Manjhi before the State Appellate Authority was
barred by limitation and could not have been entertained.
(x) To direct the respondents to produce the
original records in relation to the appointment of the
petitioners and the records that were placed before the State
Appellate Authority by the Panchayat Secretary.
(xi) To pass ad-interim/exparte relief staying the
operation of the order dated 21.11.2023 passed by the state
appellate authority in Appeal Case No.T-721/2022, during
the pendency of the present writ application and/or prevent
the authorities from taking any coercive steps against the
petitioners in light of the said order.
13. The petitioners have filed the present writ petition
for payment of their salary in light of order dated 28.07.2018
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
passed in Case No. 46/2017 passed by the District Teachers
Appellate Authority. This Court upon considering the grievance
of the petitioners had directed the respondents to release the
salary vide order dated 19.07.2022. There is non-compliance of
the order of this Court by the District Programme Officer, which
I find not to repeat the same for the sake of brevity. An appeal
was filed by the District Programme Officer (Establishment),
Saran which was heard ex parte, though observation has been
made by the State Appellate Authority in paragraph no.8 of the
order dated 21.11.2023, which is reproduced hereinafter:-
" No counter affidavit has been filed in this
case by private respondents despite service of notice and
giving adequate opportunity. Notices were sent to them on
22.03.2023. This Authority, while giving a time of four
weeks for filing of counter affidavit, made it clear that the
case could be heard ex-parte if counter affidavits were not
filed in time. This warning was repeated again on
16.05.2023 clearly stating that Authority cannot wait
indefinitely and it may take a decision of ex-parte hearing.
On 19.06.2023 again Authority reminded respondents that
ex-parte hearing could be held. However, in interest of
justice a last opportunity was provided. On 02.08.2023 they
were again directed to file counter affidavit before next
date. On 15.09.2023 it was again made it clear that
Authority cannot wait indefinitely for filing of counter
affidavit and the case was ordered to be listed for hearing
on 26.10.2023. However, a liberty was given to respondent
nos.1 and 2 to file their counter affidavit before this date.
But they did not file any counter affidavit, as a result of
which hearing was held on 26.10.2023 and the State
counsel and counsel for Panchayat Secretary were heard."
14. I find that a reference has been made in paragraph
no.6 of the order about the present writ petition and the order
dated 19.07.2022 has also been referred in the said paragraph. In
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
absence of any information, as to whether, under what
circumstances, the appeal was entertained by the State Appellate
Authority and the State Appellate Authority proceeded to pass
order in exercise of power under Rule 14 of the The Bihar State
School Teachers and Employees Disputes Redressal Rules, 2015
(hereinafter referred to as "Rules, 2015") when the writ petition
was pending before this Court. Instead of taking notice of the
order dated 19.07.2022 and its non-compliance, the State
Appellate Authority proceeded to adjudicate into the matter ex
parte though notices were issued to the petitioners. It is well
known that the District Appellate Authority and the State
Appellate Authority exercise their jurisdiction being quasi
judicial authority and their orders are subject to judicial review.
15. I find that the State Appellate Authority consists of
a quorum as per the provision of Rule 4(3) of the Bihar State
School Teachers and Employees Disputes Redressal Rules, 2015
, which is reproduced hereinafter:
"4(3). The State Appellate Authority shall be
constituted at State level consisting of two persons only
(hereinafter each referred as the separate chairperson) who
will be appointed by the State Government for hearing the
appeal against the order passed by the District Appellate
Authorities. One chairperson will be a retired Justice of
Hon'ble High Court and another will be a retired officer of
Indian Administrative Service not below the rank of
Principal Secretary. The State Government may authorise
the Chairperson of one State Appellate Authority to
discharge the functions of the Chairperson of another State
Appellate Authority."
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
16. In absence of judicial member, the order has been
passed by the administrative member of the Tribunal. I find that
the quorum is also not fulfilled. Considering the complete
ignorance of the Administrative member of the Tribunal who
has proceeded to pass ex parte order, without a proper quorum,
Apex Court in case of State of Gujarat Vs. Utility Welfare
Association reported in (2018) 6 SCC 21 : 2018 SCC OnLine
SC 368 as held as follows:
"117. In Madras Bar Assn. [Madras Bar Assn.
v.Union of India, (2014) 10 SCC 1] (MJ-II), the Constitution
Bench, referring to the decision in Madras Bar Assn. [Union of
India v. Madras Bar Assn., (2010) 11 SCC 1] (MJ-I) observed
that members of tribunals discharging judicial functions could
only be drawn from sources possessed of expertise in law and
competent to discharge judicial functions. We are conscious of
the fact that the case (MJ-I) dealt with a factual matrix where the
powers vested in courts were sought to be transferred to the
tribunal, but what is relevant is the aspect of judicial functions
with all the "trappings of the court" and exercise of judicial
power, at least, in respect of same part of the functioning of the
State Commission. Thus, if the Chairman of the Commission is
not a man of law, there should, at least, be a member who is
drawn from the legal field. The observations of the Constitution
Bench in Madras Bar Assn. [Madras Bar Assn. v. Union of India,
(2014) 10 SCC 1] (MJ-II) constitute a declaration on the concept
of basic structure with reference to the concepts of "separation of
powers", "rule of law" and "judicial review". The first question
raised before the Constitution Bench as to whether judicial
review was part of the basic structure of the Constitution was,
thus, answered in the affirmative.
118. We are, thus, of the view that it is mandatory to
have a person of law, as a member of the State Commission.
When we say so, it does not imply that any person from the field
of law can be picked up. It has to be a person, who is, or has
been holding a judicial office or is a person possessing
professional qualifications with substantial experience in the
practice of law, who has the requisite qualifications to have been
appointed as a Judge of the High Court or a District Judge."
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
17. I find that the Chief Secretary, Government of
Bihar must take into consideration in respect of the functioning
of the State Appellate Authority and its administrative members
and submit a report in this regard before this Court.
18. In above view of the matter, both the order passed
by the District Teacher Appellate Authority dated 28.07.2018, as
well as, the State Appellate Authority dated 21.11.2023 cannot
be sustained and are hereby set aside and quashed.
19. The mater is remitted back for consideration by
the Additional Chief Secretary who is required to pass order in
accordance with law in respect of the entitlement of payment of
salary to the petitioners. The objection raised in the counter
affidavit that the TET degree furnished by the petitioners has
allegedly been found to be forged and for taking any penal
action against the petitioners, he is required to pass order in
accordance with the provision of Rule and mandate of Article
311(2) of the Constitution of India.
20. With aforesaid observation and direction, the writ
petition stands disposed of.
21. Interlocutory application, if any, also stands
disposed of.
22. Further for considering the report of the Chief
Patna High Court CWJC No.7081 of 2021 dt.25-03-2025
Secretary, Government of Bihar, re-notify after four weeks
under appropriate heading.
23. Let a copy of this order be communicated to the
learned Advocate General.
(Purnendu Singh, J)
Sanjay/-
Mantreshwar
AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 29.03.2025
Transmission Date N.A.
