Remanded

Sumitra Kumari v. the State of Bihar and Ors.

Patna HC3 Jul 2012CWJC/11031/2012

Case brief

AI extract

What is this about?

The Patna High Court set aside an order terminating the petitioner's service as a teacher, finding a violation of natural justice due to lack of hearing, and remanded the matter to the State for resolution of the administrative dispute while protecting the reverted employee's rights.

What did the court decide?

Orders dated 30.03.2010 and 20.08.2010 set aside; matter remanded to Principal Secretary to resolve administrative controversy including Sangita Kumari.

Sumitra Kumari Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2012)

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Patna High Court CWJC No.11031 of 2012 (2) dt.03-07-2012

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.11031 of 2012

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====================================================== Sumitra Kumari W/O Ram Ayodhya Prasad R/O Village- Rakashiya, P.S.Dulhin Bazar, District-Patna .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary Human Resources Development Department, Bihar, Patna 2. The Director, Primary Education, Bihar, Patna 3. The Collector Of The District, Patna 4. The Block Development Officer, Dulhin Bazar, Patna 5. The Block Education Extension Officer, Dulhin Bazar, Patna 6. The District Education Superintendent, Patna 7. The Mukhiya Of Gram Panchayat Raj, Achhua Rakashiya Under BlockDulhin Bazar, District-Patna 8. The Panchayat Secretary Of Gram Panchayat Raj Achhua Rakashiya, Under Block- Dulhin Bazar, District -Patna 9. District Teachers Employment Appellate Authority, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Dhananjay Kumar For the Respondent/s : Mr. Prabhat Kumar, A.C to G.A.-2 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 2 03-07-2012 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by order of the District Teachers Appointment Appellate Tribunal, dated 20.08.2010 rejecting her challenge to the termination of her service by order dated 30.03.2010. Learned counsel for the petitioner submits that one Sangita Kumari had been appointed as a Shiksha Mitra on 20.06.2002 possessing Matriculate qualifications. From

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Patna High Court CWJC No.11031 of 2012 (2) dt.03-07-2012

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11.08.2004 the eligibility was changed requiring the candidate to be Intermediate. Her appointment came to be cancelled. The petitioner was appointed on the consequent vacancy in 2005 as she possessed the Intermediate qualification. Subsequently on 04.07.2008 the respondents issued another notification that if a Matriculate secured the Intermediate qualification within 33 months of her appointment she was required to be reinstated. The respondents then reinstated Sangita Kumari and terminated the service of the petitioner on 30.03.2010.

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The contention is that if the petitioner was appointed on a sanctioned available vacancy created due to the removal of another for any reason and after the appointment continued to work for over three years, any notification by the respondents on 04.07.2008 giving it retrospective effect could not have been implemented in a manner to dislodge and prejudice the petitioner. Even if Sangita Kumari was required to be reinstated, it was she who was required to be adjusted and not the petitioner who was required to be terminated. The order dated 30.03.2010 was in violation of the principles of natural justice without an opportunity to defend the appointment being given to the petitioner.

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Counsel for the State submits that the petitioner

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Patna High Court CWJC No.11031 of 2012 (2) dt.03-07-2012

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had challenged the order dated 30.03.2010 earlier in C.W.J.C. No. 1800 of 2011 which was dismissed.

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The order in C.W.J.C. No. 1800 of 2011 adequately reflects that the petitioner inadvertently did not challenge the order of the Tribunal dated 20.08.2010 and therefore if there has been no adjudication on that order, the Court is not persuaded to dismiss this writ application on principles of res judicata. In the nature of the controversy where there appear to be no issues of grossly illegal appointments, the Court is not satisfied that it shall be doing justice to the petitioner by dismissing her writ application even on principles of constructive res judicata. The Court therefore rejects the objection of the State.

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Prima facie the submission on behalf of the petitioner merits serious consideration. The salient aspects noticed are that she was appointed on a sanctioned vacancy created by the termination of another. There are no allegations of any illegality/irregularity in her appointment or ineligibility. She continued to work for long three years. The respondents came out with an administrative notification in 2008 and gave it retrospective effect. Even if there be no infirmity in it, it could not be implemented in a manner to defeat the accrued and vested third party right of the petitioner and that too without hearing her. The

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Patna High Court CWJC No.11031 of 2012 (2) dt.03-07-2012

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petitioner contends that vacancies are still available. The question of whether the petitioner should be reinstated and the other candidate adjusted or vice versa is left open for the respondents to consider.

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The writ application raises the only question of law if a person like the petitioner could have been terminated in violation of the principles of natural justice. To set aside her termination on that ground only may perhaps create more administrative turmoil with the rights of the said Sangita Kumari getting affected. She has not been impleaded in the writ petition and has had no opportunity to defend her appointment.

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The order dated 30.03.2010 and 20.08.2010 are therefore set aside. It shall not result in immediate reinstatement of the petitioner by dislodging Sangita Kumari.

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The Court considers it proper to remand the matter to the Principal Secretary, Human Resources Department, Government of Bihar for resolving the administrative controversy in light of the discussion contained in the present order within a maximum period of three months from the date of receipt and/or production of a copy of this order.

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Needless to state that the Court considers it appropriate that Sangita Kumari be also noticed by the Principal

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Patna High Court CWJC No.11031 of 2012 (2) dt.03-07-2012

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Secretary at the time of such resolution.

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The application stands disposed.

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(Navin Sinha, J.) Md. Ibrarul/-

Sumitra Kumari v. the State of Bihar and Ors.

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Sumitra Kumari v. the State of Bihar and Ors.

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