Narendra Nath Tiwari, J. - (1.) In this writ application the petitioner has prayed for quashing the order dated 1-1-97 issued by the Secretary, Dinbandhu Middle School, Deoghar discharging the petitioner from the service as contained in Annexure-28 to the writ application. Further prayer is for a direction to the respondents to pay all the arrears of her salary and other allowances and for further direction to the respondents to consider the case of the petitioner for her promotion to the post of Head Mistress and, if found suitable, to promote her to the post of Head Mistress.
(2.) The petitioner case in brief is that she was appointed as an Assistant Teacher on Matric trained scale in Dinbandhu Middle School (a linguistic minority), Deoghar. The School is an aided school by the State and is guided by the provisions of the Bihar Non - Government Elementary School's (Taking over Management and Control) Act, 1976 and the rules framed thereunder. The petitioner's services were approved by the Sub-Divisional Education Officer, who was the competent authority, by order dated 24-10-72. The petitioner was given I.A. trained scale with effect from 19-9-84. The petitioner then passed B.A. examination in July 1981 but she was not given Graduate trained scale. The petitioner is senior most Assistant Teacher next only to the Head Master. One Satyendra Nath Nandan was Head Master, he retired on attaining the age of superannuation on 31-1-94. The petitioner was the next below and was eligible to get Graduate trained pay scale. But after retirement of the said Head Master, one Birendra Mandal whose date of appointment as a matric Trained Teacher was 1-8-93 and was much junior to the petitioner, was being favoured by the secretary of the managing Committee for his posting as the Head Master, on the retirement of Satyendra Nath Nandan. The petitioner, under the said circumstance, filed representations before the authorities of Education Department. The Area Education Officer, Deoghar, considering the grievance of the petitioner, issued a direction dated 29-1-94 to the then Head Master to hand over his charge to the petitioner as she was the senior most Assistant Teacher of the school and had requisite qualification. In compliance of the said direction the then Head Master Shri Satyendra Nath Nandan handed over his charge to the petitioner on 31-1-94 by Memo No. 520 dated 8-3-94. The District Superintendent of Education, Deoghar approved the services of the petitioner as Acting Head Mistress of the school. As the Secretary of the Managing Committee could not succeed in his mission owing to the intervention of the Government authorities, he picked up grudge and hostility against the petitioner. In the meanwhile, the petitioner took over the charge as Head Mistress with effect from 1-2-94 against the will and wishes of the Secretary. On 28-2-94 the Secretary issued a queer direction to the petitioner to enter the name of said Satyendra Nath Nandan (by then retired) and allow to run at Serial No. 1 in the School Attendance register. The direction being unusual, the petitioner sought guidance from the Area Education Officer, Deoghar. On the said letter of the Secretary, the Area Education Officer issued letter No. 910-12 dated 6-4-94 replied that it is not proper under departmental rule to enter the name of the retired Head Master in the Teachers' Attendance register of the school. In accordance with the said guidance of the A.E.O., the petitioner deleted the name of Sri Nandan from the Attendance register and being in-charge Head Mistress entered her name in that place against Serial No. 1 of the Teachers' Attendance register of the School. Taking the same in bad taste, the Secretary of the Managing Committee of the School issued a show cause notice to the petitioner dated 23-4-94 asking her as to why disciplinary action should not be taken against her for violating the order of the Secretary, by not keeping Serial No. 1 of the Attendance register recorded for the retired H.M. The petitioner filed her reply stating, inter alia, that she acted on the basis of the direction of the Area Education Officer who is the competent authority and she is not at fault. But ignoring the said reply of the petitioner, the Secretary by order dated 24-6-94 directed her to hand over the charge of the Head Master to Birendra Mandal who was much junior to the petitioner. By another letter dated 26-4-94 another show cause notice was issued to the petitioner alleging that the Secretary had received complaints from three teaching staffs imputing serious allegation of misconduct against the petitioner. The petitioner gave a detailed reply to the said show cause refuting the allegation. She was then asked to hand over the postal savings bank pass book of the school to the Secretary. She complied with the same and handed over the pass book on 4-7-94. On 14-7-94 Birendra Mandal entered into the offence of the petitioner and tried to take over the charge from the petitioner forcibly. On petitioner's resistance, Shri Mandal hurled abuses and used filthy language and threatened to assault the petitioner with his slippers. However, on intervention of some staff an untoward incident was averted. The petitioner then informed the Secretary about the incidence and requested him to take appropriate action against Sri Mandal who was still openly threatening to assault her. But the Secretary maintained deliberate silence. The petitioner having no alternative and having apprehension of assault at the hand of Sri Mandal, informed the local police and the authorities of the Education Department in writing. In the meantime, the retired Head Master Sri Nandan got extension of service for further two years in accordance with the policy decision of the Government extending age of superannuation of the teacher from 58 years to 60 years and rejoined. On joining of Shri Nandan, the petitioner immediately handed over the charge to him on 26- 6-94 and she remained working as an Assistant Teacher. The authorities of Education Department in the meanwhile held an enquiry on the petitioner's said representation and submitted a report giving the finding that there has been politicking among the school staffs which led to the said incidence, reported by the petitioner. The said Sri Mandal and the petitioner were then asked by the Managing Committee to settle their disputes, to which the petitioner agreed. From the side of the Police a report was submitted to the Sub-Divisional Magistrate recommending initiation of a proceeding under Section 107 Criminal Procedure Code However, acting on the said instruction of the Managing Committee, the petitioner also compromised the proceeding under Section 107 I Criminal Procedure Code and the same was ended. On 10-2-95 a charge-sheet was served on the petitioner containing several articles of charges alleging misconduct, indiscipline and certain irregularities on her part during her tenure as the in-charge Head Mistress. In the said article of charges the petitioner was imputed with the allegations that she called the police in the campus of the school and that she did not keep serial No. 1 vacant for the retired Head Master in spite of the direction of the Secretary and that she had not handed over the postal pass book of the school to the Secretary. It was also mentioned that the petitioner as well as Birendra Mandal acted in very irresponsible and unbecoming way not befitting to a teacher and the same was derogatory. The petitioner filed her reply dated 27-2-95 denying all the charges in detail. The Secretary then issued an order vide his Memo No. 3/95 dated 30-3-95 holding that the reply of the petitioner was thoroughly unsatisfactory and that she is liable to be proceeded against. The petitioner was also put under suspension. On the other hand, the proceeding against Birendra Mandal on similar charge of unbecoming behaviour was dropped and by order dated 30-3-95 (Annexure-17 to the writ petition) he was only warned and directed to be cautious in future. Against the petitioner, another charge-sheet was served containing several article of charges which included all the earlier charges. She was again imputed with the charge that in spite of the clear direction, she did not keep serial No. 1 reserved in Teachers' Attendance register for the said Satyendra Nath Nandan (retired Head Master). However, there was a new addition of charge of financial irregularity against the petitioner alleging that during the month of March, April and May 1994 some cash was received by her amounting to Rs. 2,900.50, but the same was not deposited in the pass book and Rs. 800/- only was deposited on 27-5-94. Further that fund collected from the students during the month of June and July amounting to Rs. 3894.50/- was also not deposited. It was also alleged that she entered into an altercation with Birendra Mandal Leading to a complaint to the police and that she alleged the Secretary carrying malice against her and siding with the said Mandal.
(3.) The petitioner's further case is that she again filed her detailed reply denying and refuting each and every charge whereupon one Subrat Roy Advocate, own brother's son of the Secretary, was appointed as the Enquiry Officer, on the objection of the petitioner, however, the Enquiry Officer was changed by appointing one Shri Nirmalendu Sarkar @ Malay Sarkar, a retired Clerk of Postal Department as the Enquiry Officer in place of said Shri Roy. The said Enquiry Officer proceeded with the enquiry against the established rules and procedure. There was blatant violation of principles of natural justice. The petitioner was not supplied with the documents which were made basis of the charges framed against her. She was denied proper opportunity of representation even in the said mock enquiry. Ultimately the enquiry was concluded holding the petitioner guilty of the charges and Enquiry Officer recommended severe punishment against the petitioner. The Enquiry Officer in course of enquiry found Birendra Mandal equally guilty but recommended for giving only a warning to Shri Mandal. On that basis, a second show cause was issued to the petitioner asking her to explain as to why she should not be severely punished. The petitioner then filed a detailed reply claiming her innocence and praying exoneration from the charges. However, the petitioner having been vexed and aggrieved by her suspension and repeated enquiries for the same and similar charges, separately filed a representation to the Chairman, Bihar State Minority Commission, Patna who directed an enquiry through the District Superintendent of Education, Deoghar. After through enquiry the District Superintendent of Education by his order dated 5-11-95 (Annexure-21) found that there was no grave lapses on the part of the petitioner warranting her suspension. Thereafter, by order dated 11-12-95 the Deputy Development Commissioner (D.D.C) directed revocation of the petitioner's suspension. The said direction was issued by the order of the Deputy Commissioner, vide Annexure-22. In spite of the same, the Secretary of the School by the impugned order dated 1-1-97 as contained in Annexure-28, arbitrarily and illegally discharged the petitioner from her services.;