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SCA/10630/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10630 of 2009
======================================
BHARUCH
DISTRICT PRIMARY TEACHERS SOCIETY AND ANOTHER
Versus
STATE
OF GUJARAT AND OTHERS
======================================
Appearance
:
MR PUSHPADATTA VYAS for
Petitioners.
MS MOXA THAKKAR, AGP for Respondent No.1.
MS SEJAL
K MANDAVIA for Respondent No.2.
MR KB PUJARA for Respondent
No.3.
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CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 25/02/2010
ORAL
ORDER
1. The
petitioners are an association of primary teachers of Bharuch
District and a primary teacher, and they have sought to challenge
order dated 20th July 2009 of District Primary Education
Officer, by which respondent no.3 has been posted at the same place
pursuant to order dated 6.7.2009 of the District Primary Teachers’
Tribunal to reinstate him. According to the instructions dated 4th
June 2004 issued by the Government under Section 54 of the Bombay
Primary Education Act, a primary teacher against whom charges have
been proved after an enquiry has to be posted at a far off place by
an administrative order. In fact, several other responsibilities are
cast upon the District Primary Education Officer to make appropriate
enquiries and initiate necessary disciplinary action when any teacher
in the district is found to be indulging in serious acts of
misconduct.
2. It
was submitted by learned counsel, Mr.Vyas, that serious charges were
not only proved against respondent no.3 and not only that he was
removed from service by way of punishment, another charge sheet dated
17.5.2008 alleging twelve different acts of serious misconduct is
pending against said respondent and the DPEO is not proceeding with
the enquiry. On the other hand that respondent is threatening and
influencing other proceedings, according to the allegations made in
the petition and affidavits placed on record. It was further
submitted that the powers vested in the respondent authorities were
not exercised in a bona fide manner and in consonance with the
statutory Rules and guidelines.
3. Learned
counsel, Ms.Mandavia, appearing for respondent no.2 could not
properly reply to the queries about the allegations made against that
authority, and hence, the District Primary Education Officer was
ordered to remain personally present for giving correct answers to
relevant queries of the Court. Upon remaining personally present, it
was stated by him that he was only acting as an in-charge DPEO and
did not think it proper to transfer respondent no.3 in view of order
of the tribunal to reinstate him on his original post. It was
submitted on his behalf by learned counsel, Ms.Mandavia, that, even
as present in-charge DPEO is in charge of four offices, he would try
to complete the pending departmental enquiry against respondent no.3
within a period of two months. She also argued that the petitioners
have no locus standi to challenge any order of the authorities
and they were not entitled to any relief in their own right.
4. Learned
AGP appearing for the State submitted, on the basis of letter dated
24.2.2010 of the Director of Primary Education, that respondent no.3
was appointed in the same school inspite of pendency of the enquiry,
and hence, DPEO was directed to expeditiously conclude the
departmental enquiry and abide by the instructions issued by
Government resolution dated 4.6.2004. It was further submitted by
learned AGP that by virtue of the aforesaid very recent letter and
even otherwise it is the DPEO, who has to take appropriate action and
the Government has done the needful by writing aforesaid letter.
5. Learned
counsel, Mr.K.B.Pujara, appearing for respondent no.3 submitted that
the allegations against respondent no.3, on the earlier occasion as
well as in the pending enquiry, were hollow and not admitted. He
submitted that some people with vested interest were conspiring
against respondent no.3 on account of the leadership provided by him
to majority of the teachers of the district. He further submitted
that all the allegations made against respondent no.3 in the charge
sheet or by the petitioner were specifically denied and the
allegations of tampering with or influencing any judicial or
quasi-judicial proceeding were concocted and baseless.
6. Having
heard learned counsel for the parties at length, it was clear that it
was one of the rare and exceptional case in which prima facie
the authorities constituted under and for the implementation of the
Bombay Primary Education Act have consistently failed in discharging
their duties for the purpose of maintaining minimum standard of
discipline and necessary atmosphere of good behaviour and safety in
the sector of primary education in Bharuch district. The Court has
come to such prima facie conclusion
on the basis of the facts that the charges against respondent no.3
were to the effect that respondent no.3 was indulging in political
activity and making public speeches, which were not befitting a
Government servant, while abdicating his duty of teaching the
students. Without disturbing the finding of the enquiry against that
respondent, the District Primary Education Tribunal reduced penalty
to stoppage of three increments. On the other hand, enquiry
initiated by charge sheet dated
17.5.2008 has admittedly not even commenced. A bare reading of
charge sheet dated 17.5.2008 would have impelled any authority to
take immediate energetic action so as to disable the delinquent
officer from continuing any of his activities related to his service.
Under the instructions issued by Government resolution dated 4th
June 2004, the DPEO would have been obliged to transfer the
delinquent officer. Instead of that, as alleged by the petitioners,
respondent no.3 is allowed to influence the proceedings pending
against him and the DPEO, who issued the charge sheet, has been
transferred. It was under such circumstances that serious
apprehensions were expressed on behalf of the petitioners about the
outcome of any disciplinary proceeding or judicial proceeding held or
to be held against respondent no.3.
7. Since
the petitioners as well as the respondents are operating in the area
of education of children at the primary level and discharging their
public duties, the issue of locus standi
of the petitioners and of their entitlement to any relief is
relegated to irrelevance and the Court has, prima facie
found this case to be one of abdication of statutory duties by the
Director of Primary Education and District Primary Education Officer
of District Bharuch. It was submitted, in that context, by learned
AGP that the Director of Primary Education has already issued special
instructions vide letter dated 24.2.2010, and hence, necessary
actions were now required to be taken by the DPEO, and no further
direction is required as far as the Director of Primary Education is
concerned. However, in view of the attitude adopted by respondent
no.2 and the record of the case so far, it is difficult to repose any
trust in respondent no.2 for taking the required action in discharge
of his statutory duties. Therefore, in order to ensure the rule of
law and prompt and proper execution of order dated 24.2.2010, as well
as for ensuring due compliance of the instructions contained in
Government resolution dated 4th
June 2004, it is directed by way of interim order that a competent
and experienced officer of the rank higher than District Primary
Education Officer, who is competent and experienced for conducting a
proper departmental enquiry, shall be specially appointed for the
purpose of holding departmental enquiry into the charges levelled by
charge sheet dated 17.5.2008 and respondent no.3 shall be transferred
with immediate effect to any other village in the same district in
accordance with the instructions contained in paragraph 5 of
aforesaid Government resolution dated 4th
June 2004.
8. In
the aforesaid rare and exceptional circumstances, briefly referred to
herein above, the petition is Admitted
and Notice of Rule
is waived by learned counsel for the respondents. It is ordered to
be listed for further hearing and further orders, if required, on
30th
March 2010. Direct service is permitted.
(D.H.Waghela,
J.)
*malek
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