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1993 DIGILAW 76 (PAT)

Dhananjay Pathak v. State of Bihar

1993-02-25

G.C.BHARUKA, S.B.SINHA

body1993
JUDGMENT S.B. SINHA, J. 1. This application is directed against an order dated 26.7.1991 passed by the respondent no. 4 and as contained in Annexure-4 to the writ application whereby the petitioner's services has been terminated. 2. The fact of the matter lies in a very narros compass. 3. The petitioner allegedly was appointed as Intermediate Science Examination untrained teacher on 16.4.1983. A question arose as to whether the appointment of the petitioner was proper and the District Superintendent of Education by a letter dated 29.8.1987 opinted that appointment of the petitioner was proper and thus payment of his salary be made regularly. 4. However, by an order dated 26.7.1991 the services of the petitioner were terminated alleging therein that the said order has been issued in the light of the judgment of the Supreme Court in S.L.P. No. 11099, 10190, 11968, 11700, 11654 of 1990 and 429 of 1988. 5. The petitioner has contended that the said order of the Supreme court has no application in the case of the petitioner inasmuch as, those cases arose out of orders of termination of those teachers who were appointed in the year 1981-82. 6. According to the petitioner the services of the said teachers were terminated as their appointments were found to be illegal. It has been contended neither the services of the petitioner had been terminated alongwith the said teachers nor his appointment was illegal. 7. It has also been contended that the petitioner had applied against the regular advertisement published on 7.3.1981 in 'Aryavart' newspaper. 8. According to the petitioner that the matter relating to the termination of the services of the petitioner was taken up by the Deputy Development Commissioner and the Regional Deputy Director of Education who obtained the opinion of the Government Pleader, Godda and the Government Pleader opined as order of termination passed against the petitioner was illegal being violative of the principles of natural justice. 9. In this case, a counter affidavit has been filed on behalf of the State. The said counter affidavit has been shown by the District Superintendent of Education who had joined on 13.5.1991. In that counter affidavit it has been contended that the petitioner was illegally appointed by Shri Bhola Ram the then District Superintendent of Education on the basis of letter no. F/V 1-08/80 E 50 dated 20.2.1981. 10. The said counter affidavit has been shown by the District Superintendent of Education who had joined on 13.5.1991. In that counter affidavit it has been contended that the petitioner was illegally appointed by Shri Bhola Ram the then District Superintendent of Education on the basis of letter no. F/V 1-08/80 E 50 dated 20.2.1981. 10. It has been submitted that the said circular letter dated 20.2.1981 was applicable to non-tribal Area and the District Sahibganj, Godda Deoghar Dumka and other districts of Chotanagpur Division have been declared as Tribal areas. 11. It has been stated that all such appointments had been cancelled by the State Government which were found to have been made without following the procedures laid down therein. It has been admitted that against the said orders of termination 331 teachers filed writ applications which ultimately went up to the Supreme Court of India. 12. It has been contended that thereafter pursuant to the order of the Supreme Court fresh advertisement has been issued. 13. It has further been submitted that in terms of Annexure-6 to the writ application the impugned order as contained in Annexure-4 to the writ application has been issued. 14. The petitioner has filed a rejoinder to the said writ application wherein he has contended as follows:– "That in reply to the para 2 of the counter affidavit it is true that letter no. 50 dated 20.2.1981 of the education department lays down principle for appointment of untrained science teachers in non-tribal areas (Gair Janjatiy Kshetra) only. But the assertion of the respondent DSB Godda, that all the districts of Santhal Parganas and Chotanagpur divisions are tribal areas, is not only incorrect but also misconceived, mala fide and mischievous. As a simple perusal of letter no. 12021 dated 2.12.1985 of Supply Department letter no. 3924 dated 24 3.1981 of Finance Department and letter no. 1971 dated 18.12.1986, No. 202 dated 24.1.1987, No. 201 dated 24.1.1987 and No. 2043 dated 30.9.1986, of Education Department will show no block of Deoghar District and only two blocks of Godda District namely Sunderpahari and Boarijore are tribal areas. Rest six Blocks of Godda (Pathargama) Godda, Poraiyahat, Mahagama, Moharama Gangti and all seven blocks of Deoghar District (Deoghar, Mohanpur, Madhupur, Sarawan, Karon, Sarath, Palojori) are non-tribal." 15. Mr. Rest six Blocks of Godda (Pathargama) Godda, Poraiyahat, Mahagama, Moharama Gangti and all seven blocks of Deoghar District (Deoghar, Mohanpur, Madhupur, Sarawan, Karon, Sarath, Palojori) are non-tribal." 15. Mr. Azfar Hussain, the learned counsel appearing on behalf of the petitioner submitted that the order of termination passed as against the petitioner had been passed on wrong premises inasmuch as the services of the petitioner could not have been terminated on the basis of the order passed by the Supreme Court of India. The learned counsel appears to be correct. 16. In the counter affidavit filed on behalf of the State it has not been denied that the petitioner was appointed only in the year 1983 in terms of Annexure-1 to the writ application. It has also not been denied that the services of only those teachers who were illegally appointed in 1981 had been terminated resulting in for their filing of the writ application in this court and thereafter an application for special leave to appeal before the Supreme Court of India. 17. It has not been denied that such teachers had been appointed in the year 1981 and not in the year 1983. 18. It has also not been denied that the petitioner's appointment was found to be regular by the District Superintendent of Education Godda in terms of Annexure-3 to the writ application. If the petitioner was not a party to the Special Leave application referred to in Annexure-4 to the writ application nor he was a person who was similarly situated to those petitioners, the order passed by the Supreme Court could not have been made applicable in his case and thus the impugned order must be held to have been passed on wrong premises. 19. Further in this case that the statement made by the petitioner in paragraph 13 to the writ application to the effect that he was appointed pursuant to advertisement issued in the newspaper 'Aryavart' on 7.3.1981 has not been controverted. 20. Further the grounds for such termination has not been mentioned in Annexure-4 that petitioner was appointed in a tribal area, although Annexure-6 applied only to non-tribal area. 21. For the reasons aforementioned, the impugned order cannot be sustained. 22. This application is, therefore, allowed and the impugned order as contained in Annexure-4 is quashed. 20. Further the grounds for such termination has not been mentioned in Annexure-4 that petitioner was appointed in a tribal area, although Annexure-6 applied only to non-tribal area. 21. For the reasons aforementioned, the impugned order cannot be sustained. 22. This application is, therefore, allowed and the impugned order as contained in Annexure-4 is quashed. However, it may be observed that if the petitioner's appointment was found to be otherwise illegal and/or if it be held that the petitioner does not fulfill the conditions of appointment, the State will be entitled to take appropriate action in this regard. 23. In the facts and circumstances of the case, there will be no order as to costs.