IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.4755 of 2010
PREMCHAND S/O LATE KUNJAN CHAUHAN R/O VILL TARWA,
P.O.+P.S.BILAUNJHA VIA RATANPURA, DISTT- MAU (U.P.) AT
PRESENT POSTED AS ACTING HEADMASTER , RAM SUNDAR HIGH
SCHOOL , RAMPUR, KAHALGAON, DISTT-BHAGALPUR.
VERSUS
1. THE STATE OF BIHAR
2. THE DIRECTOR , SECONDARY EDUCATION GOVT.OF
BIHAR,PATNA
3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION
BHAGALPUR
4. THE DISTRICT EDUCATION OFFICER BHAGALPUR
5. DINESH PRASAD MANDAL PRESENTLY WORKING AS
ASSISTANT TEACHER , RAM SUNDAR HIGH SCHOOL, RAMPUR,
KAHALGAON, DISTT-BHAGALPUR.
-----------
For the Petitioner : M/s- Tej Bahadur Singh, Sr. Adv., Brisketu Sharma &
Gyan Shankar, Advocates.
For the Respondent : JC to AAG-11.
———–
03 16.09.2010 The petitioner is aggrieved by the order of suspension
as passed against him by the Director, Secondary Education,
Government of Bihar, Patna as contained in Memo No.538 dated
25.02.2010.
The counter affidavit has been filed by the State and
rejoinder has also been filed. Heard the parties and with their consent
the writ petition is being disposed of at the stage of admission itself.
Mr. Tej Bhahadur Singh, learned Senior Counsel
appearing in support of the writ petition submits that the order of
suspension is bad on two counts. Firstly, as would be apparent from
the order itself, the Director who was authorized and competent to
pass the suspension order on his own and he has passed the order of
-2-
suspension on the dictates of some other as noted therein. The second
submission is that even otherwise reading the order of suspension
itself would indicate that it has been passed for some other purpose.
Learned counsel for the State states that the order has
been passed by the Director based upon the facts of an enquiry report
dated 10.07.2008 and the enquiry report of the Deputy Director dated
10.08.2009. The counter affidavit does not dispute that the suspension
order has been passed as per decision taken by the Government (not by
the Director).
Learned Senior Counsel for the petitioner relies on the
judgment of the Apex Court in the case of Purtabpur Company
Limited Vs. Cane Commissioner of Bihar and others since reported
in AIR 1970 SC 1896 for the proposition that a quasi judicial authority
or statutory authority must act on his own and if he acts under dictates
of another authority such action is liable to the set aside.
In view of the facts noted above and the pleadings in
the counter affidavit itself is sufficient to show that in fact the order
has been passed by the Director but on the decision of someone else.
This would ordinarily be sufficient to set aside the order. However,
both the counsels persuaded the Court to look into the facts.
Mr. Singh, learned Senior Counsel referred to the
suspension order and submits that the basis of suspension, which was
being passed on 25.02.2010, is the report dated 10.07.2008. He
further points out that it is this report on basis whereof action had
earlier been taken against him and he had been transferred, which
-3-
order had already been set aside by the Director, Department of
Human Resources as recently as on 07.4.2009 (Annexure-4). He also
directed therein that till permanent Headmaster is selected the senior
most teacher should be appointed as the Headmaster. It is further
submitted that the moment petitioner became eligible to be considered
for the post of acting Headmaster another teacher who was junior
started all this trouble. He gets rid over the petitioner that he would
assume charge as the acting Headmaster.
In the counter affidavit realizing these facts, it is stated
that the Deputy Director visited the school, in question, on 10.08.2009
and submitted a report and acting upon the said report now action has
been taken. Unfortunately, no report has been annexed to the counter
affidavit in support of the said assertion. In view of the fact that the
report has not been annexed this Court should have rejected the
counter affidavit but the report has been brought on record by the
petitioner himself in reply to the counter affidavit. A perusal of the
report would show that that report is not really against the petitioner. It
is a monthly report which discusses the conduct of another teacher. It
is only in the end at one place a suggestion has been given by the
Deputy Director that the Director may consider transferring petitioner
to some other place but this is not possible as under the new Rules as
applicable to the Government teachers the post has been made non
transferable. Therefore, to make way this ply of suspension has been
used.
Having considered these matters, it is very clear that the
-4-
power to suspend is being abused. It is a colorable exercise of power.
It cannot be sustained, thus, it is set aside. The writ application is
allowed. However, the departmental proceeding, if any, would
continue in accordance with law.
Trivedi/ (Navaniti Prasad Singh, J.)