Vijay Kumar Sinha Vs. State of Bihar and ors. - Court Judgment

Excerpt:

service - suspension--legality of--petitioner suspend because he did not follow the revised programme of examination of class 8--no revised programme of examination communicated to him or his school--mere publishing of such programme in newspaper would not be a valid communication--held, suspension of petitioner on such ground would be non-est fact--suspension unjustified. - - the respondents have failed to bring on record any revised programee by way of amendment of the earlier programme contained in annexure-2. it is not possible to accept the appeal published in the newspaper, dated 21-12-2000 (annexure-7) to be a revised programme of the examination issued in modification of the earlier programme......newspaper, dated 21-12-2000 (annexure-7) to be a revised programme of the examination issued in modification of the earlier programme. thus, the allegation, which is the foundation of petitioner's suspension is found to be based on non-est facts.4. in such circumstances, the suspension of petitioner is found to be unjustified. there appears to be merit in the contention of the petitioner that initial order of suspension could not have been passed by the district magistrate because as per the service conditions rules as amended in 1997, the power of disciplinary action including suspension of all assistant teacher is vested in the director, secondary education. the order of approval by the director cannot be construed as the original order which is required to be passed by the director. for all these reasons, this court finds the orders contained in annexure-1 and 6 to be against law and the same are accordingly quashed. the writ application is allowed. the consequential benefits on account of quashing of the impugned orders should also be made available to the petitioner without any delay.

Judgment:

Shiva Kirti Singh, J.

1. Heard the parties.

2. Petitioner is aggrieved by orders of his suspension contained in Annexure-1 dated 22-12-2000 issued by the District Magistrate, Banka and its approval by the Director, Secondary Education contained in Annexure-6 dated 26-5-2001,

3. From the materials on record, it is clear that a notice dated 8-12-2000 as contained in Annexure-2 was issued under the orders of the Commissioner-cum-Secretary, Primary, Secondary and Adult Education, Department, Government of Bihar containing examination programme for holding class 8 examination in different Government Schools of the State. The petitioner has been suspended on the allegation that he should not have held the examination in question as per programme contained in Annexure-2, rather he should have acted as per revised programme communicated to him/his school. The case of the petitioner is that no revised programme of examination was ever communicated to him or his school. On behalf of respondents, reliance has been placed upon Annexure-D to the counter-affidavit to submit that revised programme had been communicated to the petitioner through an assistant teacher of the said school. A perusal of Annexure-D shows that one Pawan Kumar Singh, Assistant Teacher has given a receipt dated 22-12-1999 to the effect that he had brought the said programme of examination published in a daily newspaper to the knowledge of Centre Incharge of the school. Even if the said receipt is taken to have been signed in December 2000 are not on the date mentioned in the receipt, the contents of the said receipt do not inspire much confidence. The respondents have failed to bring on record any revised programee by way of amendment of the earlier programme contained in Annexure-2. It is not possible to accept the appeal published in the newspaper, dated 21-12-2000 (Annexure-7) to be a revised programme of the examination issued in modification of the earlier programme. Thus, the allegation, which is the foundation of petitioner's suspension is found to be based on non-est facts.

4. In such circumstances, the suspension of petitioner is found to be unjustified. There appears to be merit in the contention of the petitioner that initial order of suspension could not have been passed by the District Magistrate because as per the Service Conditions Rules as amended in 1997, the power of disciplinary action including suspension of all assistant teacher is vested in the Director, Secondary Education. The order of approval by the Director cannot be construed as the original order which is required to be passed by the Director. For all these reasons, this Court finds the orders contained in Annexure-1 and 6 to be against law and the same are accordingly quashed. The writ application is allowed. The consequential benefits on account of quashing of the impugned orders should also be made available to the petitioner without any delay.