The main legal point established in the judgment is that a Para-Teacher is entitled to honorarium for the period worked if the initial appointment was in accordance with the rules and the teacher continued to work satisfactorily until stopped without prior notice of lacking qualifications.

JUDGMENT :

The petitioner has approached this Court with the prayer for payment of honorarium for the period he has worked as Para-Teacher in Upgraded Middle School, Sundertand in the district of Giridih, from November 2009 to 04.10.2012.

2. Factual matrix of the case are that the petitioner was appointed as Para-Teacher on 21.02.2008 by the Village Education Committee having found eligible. The petitioner continued to work to the satisfaction of all concerned, which resulted into confirmation of service. However, one fine morning, the petitioner was stopped to work in view of letter dated 4.10.2012. It is specific case of the petitioner that he was paid honorarium till October, 2009 and from November, 2009 till 4.10.2012, not a single penny was paid. Faced with situation, the petitioner was constrained to knock the door of this Court.

3. Mr. Shrestha Gautam, learned counsel appearing for the petitioner argues that the petitioner is entitled for honorarium for the period he worked and even the respondent authorities without any rhyme and reason have stopped the petitioner from working. It is only by way of counter affidavit, the petitioner came to know that he does not fulfill the requisite qualification as per the requirement. He further adds that nothing was brought at earlier point of time that the petitioner does not have the requisite qualification. Therefore, learned counsel submits that at least, the petitioner is entitled for honorarium for the period he has worked, as it amounts to breach of violation of the constitutional provisions.

4. Mr. Munna Lal Yadav, learned counsel representing the respondents submits that the petitioner was not fulfilling the requisite qualification and as such, he was forbidden to work. Learned counsel submits that the initial appointment of the petitioner itself is bad in law and therefore, he is not entitled for any honorarium because his appointment was dehors the rules.

5. Be that as it may, having heard the rival submissions of the parties across the Bar, this Court is of the considered view that the petitioner is entitled for honorarium for the following facts and reasons:-

(i) There is no dispute that the petitioner was appointed by the Village Education Committee. The certificates of the petitioner were duly verified and thereafter he was appointed by majority.

(ii) At the time of initial appointment, nothing was brought on record to show the petitioner was appointed dehors the Rules.

(iii) The appointment of the petitioner was duly accepted and he was paid honorarium up to October, 2009. Thereafter the same was stopped.

(iv) The petitioner continued to work till 4.10.2012. It was only after 4.10.2012, the petitioner was forbidden to work on the ground that he does not fulfill the requisite qualification.

(v) The reasonings were brought to the knowledge of the petitioner only by way of counter affidavit. At no point of time it was brought to the knowledge that the petitioner does not fulfill the requisite qualification.

(vi) The averment brought on record in the counter affidavit are not accepted to this Court on the ground that without assigning any reason, the impugned order has been issued and reasons cannot be supplemented by way of counter affidavit.

(vii) Law is well settled that what is not in the impugned order, that cannot be brought on record by way of any counter-affidavit or supplementary counter-affidavit. The impugned order stopping the petitioner from work cannot be improved by way of any affidavit.

(viii) The Hon’ble Apex Court in para 9 in case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16, has held as under:-

“9. An attempt was made by referring to the Commissioner’s affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subseque