JUDGMENT
S.B. Sinha and G.C. Bharuka, JJ.
1. In this application the petitioners have prayed for issuance of a writ of or in the nature of mandamus directing the respondents to pay their salary with effect from August, 1991.
2. The fact of the matter lies in a very narrow compass.
3. The petitioners are said to be regular teachers of Pronnat Middle School (Hindi) situated in Mohalla Shivganj in the town of Narkatiaganj, in the district of West Champaran at Bettiah (hereinafter referred to as the ‘Middle School’). There is a Girls High School at Narkatiaganj in the name of Matisara Kuer Balika Uchha Vidyalya (hereinafter referred to as the ‘High School’).
4. By reason of an order dated 11th July, 1990 the District Education Officer Bettiah deputed five Assistant Teachers from different Elementary Schools including the petitioners. The said order is contained in Annxeure-1 to the writ application.
By reason of the said order dated 11th July, 1990 it was directed that the petitioners would be paid their salary on the basis of the absentee list sent to the aforementioned Pronnat Middle School, Shivganj, Narkatiaganj, pursuant whereof they were relieved from the Middle School and Joined the High School. On 8-8-1991 the petitioners were suspended allegedly on the ground that they had not been attending classes in the aforesaid Middle School,
5. However when the matter was reported to the District Superintendent of Education that the petitioners had been deputed in the said School and they had been working therein, the order of suspension was withdrawn and the salary due to the petitioners was directed to he paid. Despite the said order, however, the Headmaster of the said School did not make any payment of salary to the petitioners. Allegedly the District Education officer had been creating complications and he issued orders for cancellation of deputation on 5-3-1992 but again issued and order on 16-3-1992 cancelling the earlier order dated 5-3-1992.
6. The petitioners have contended that the matter relating to non-payment of their salary was brought to the notice of respondent No. 2 who by a letter dated 9th April, 1992 requested the Director, Primary Education, Government of Bihar to see that the Headmaster of the Middle School may not create unnecessary problem in relation to payment of salary to the petitioners (Annexure-4).
7. It was further alleged that on 24th April, 1992 the District Education Officer issued orders directing the Headmaster of the Middle School to pay salary to the petitioners.
8. It has been contended by the petitioners that despite the same the respondent No. 5 did not obey the said order and prevailed upon respondent-District Education Officer to treat the letter of respondent No. 2 dated 9th April, 1992 (Annexure-4) as doubtful and further had prevailed upon him to implement his earlier order cancelling the deputation.
9. It is alleged that the matter was again brought to the notice of the Director of Secondary Education and he by his letter dated 14th July, 1992 affirmed that his earlier letter dated 9-4-1990 was a genuine document. Thereafter, the District Education Officer by his letter dated 20th July, 1992 (Annexure-9) directed that the petitioners would continue to work on deputation in the High School.
10. A caveat petition has been filed on behalf of respondent No. 5, namely, the Headmaster of the School wherein it has been stated that he is not responsible for payment of salary to the petitioners as the Headmistress of the Middle School was the drawing and disbursing Officer in relation to the petitioners. It has further been pointed out that the purported order of deputation passed in favour of the petitioner was illegal.
11. It has further been asserted that the Director, Primary Education, who is the controlling Officer of the teachers of elementary Schools has not issued any order directing the District Superintendent of Education to allow the petitioners to work on deputation in the High School.
12. It has further been asserted that the District Superintendent of Education has stated that if the petitioners joined their parent School, their salary would be paid.
13. A counter affidavit has also been filed on behalf of the respondent Nos. 2 to 4.
In the said counter-affidavit it has specifically been pointed out that the respondent No. 5 is not the drawing and disbursing Officer in respect of the petitioners as would be evident from Annexure-2 to the writ application.
14. It has further been asserted that the orders of deputation were cancelled wherein it had further been mentioned that those persons, should return back to the original place of posting or else they would not be paid their salary. The said letter is contained in Annexure-A to the counter affidavit.
15. According to the State, despite several orders the petitioners did not join their original places of posting. Thereafter another letter was issued on 17-2-1992 wherein it was pointed out that the persons who have been deputed the High School, would automatically be relieved from the postings therein.
16. It has further been pointed out that although the Director Secondary Education Patna had requested to the Director Primary Education, Bihar to pass order with respect to deputation of teachers to High School, but no such order has been passed by the Director, Primary Education, Bihar Patna.
17. Mr. Rajendra Prasad Singh, learned Counsel appearing on behalf of the petitioner submitted that the petitioners were deputed to the High School by an order of competent Officer and the said order has also been affirmed by the Director Primary Education as would be evident from Annexure-4 to the writ application.
The learned Counsel further submitted that the contents of the counter affidavit cannot be accepted in view of the fact that even in 1992 the Director Secondary Eduction as also the District Education Officer directed the petitioners to continue on deputation in the said High Schools.
The learned Counsel, therefore, submitted that the petitioners have been deprived from their rights to received their salary.
18. This case depicts a sordid state of affiairs. It has not been disputed nor could it be disputed that the qualification, process of recruitment as also the procedures for transfer and posting of the teachers of the Elementary Schools and those of High Schools are absolutely different and are governed by the different statutes and rules.
19. The District Education Officer is not the controlling authority in relation to the teachers of Primary Schools and thus he had absolutely no jurisdiction to issue the purported order of deputation as contained in Annexure-1 to the writ application.
20. The Director, Secondary Education, has also committed a grave error in law in making a request to the Director Primary Education to allow the petitioner to be on deputation in terms of his letter dated 9th April, 1992 as contained in Annexure-2 to the writ application.
21. However, apparently in terms of his letter dated 9th April, 1992 the Director, Secondary Education did not pass any order either directing payment of salary to the petitioner or affirming the order of deputation of the petitioners passed by the District Education Officer in terms of Annexure-1 to the writ application. The said letter dated 9th April, 1992 (Annexure-4y was issued merely by way of request to the Director Primary Education. It is not the case of any of the parties that pursuant to Annoxure-4 any order had been passed by the Director Primary Education or the District Supdt. of Education who is the controlling authority in relation to the petitioners.
22. Evidently, therefore, the purported order of deputation as contained in Annexure-1 as also the subsequent letters issued either by the Director Secondary Education and/or District Education Officer allowing the petitioners to continue on deputation in the High School despite issuance of Annexures-A and B to the counter affidavit must be held to be wholly illegal and without jurisdiction.
23. The petitioners thus have not deprived any legal right to continue to be posted on deputation in the said High Schools either pursuant to Annexure-1 or any other letter and /or direction issued by the Director Secondary Education and/or District Education Officer.
24. However, our aforementioned finding should not be construed as a direction to the State not to pay salary to the petitioners inasmuch as if the petitioners had been working in the High School pursuant to Annexure-1 and/or subsequent orders issued by the Director of Secondary Education and/or District Education Officer, they should, in our opinion, be paid their due salary. The respondents, therefore, are hereby directed to pay due salary to the petitioners immediately after they join their parent Schools.
25. We, however, before parting with this case may observe that it is intriguing that such illegal orders are passed by the authorities of the Education Department, as a result whereof the petitioners had so far been deprived from receiving their due salary in time. We, therefore, direct; the Special Secretary, Human Resources Development to make an enquiry in the matter so that responsibilities of the individual officers may be fixed upon the officers who are responsible for creating such a situation.
26. We hope and trust that action shall be taken as against the erring Officers so that in future such illegalities are not committed.
27. This writ application, for the reasons aforementioned is disposed of with the aforementioned directions and observations.