JUDGMENT Radha Mohan Prasad, J. In this writ petition the prayer on behalf of the petitioner is to quash the order dated 30th August, 1994 contained in Memo no. 2165 dated 30.8.94, passed by the Director Secondary Education, Bihar, Patna (respondent no. 2) Placing the petitioner under suspension with immediate effect on certain charge. 2. In short, the relevant facts are that the petitioner claims to be Assistant teacher/Incharge Head master of Shashi Bhushan Rai High School, Simara in the district of Deoghar. It appears that earlier, on 16.11.92 the petitioner was suspended by the order passed by the Director, Secondary Education. The validity of the said order was challenged by the petitioner in C.W.J.C. no. 12442/92 in this Court. The writ petition was allowed by a Division Bench, vide judgment and order dated 22nd December, 92. In the said case the Division Bench relying on the earlier Division Bench judgment in C.W.J.C. no. 11003/92 in the case of Yadunandan Pd. Vs. State of Bihar and others) (annexure 0) now reported in 1993 (2) B.L.J.R. 31, held that the Director of Secondary Education had no authority to initiate a departmental proceeding or pass any order of suspension against an Assistant Teacher of a Nationalised secondary school. Accordingly, the order of suspension impugned in the said writ case was quashed. However, the disciplinary authority was given liberty to pass a fresh order with respect to the same. Thereafter, by the impugned order dated 30th August, 1994 the petitioner has again been placed under suspension by the order passed by the Director, Secondary Education. The learned Counsel for the petitioner contended that the impugned order is wholly without jurisdiction and cannot be sustained in view of the law laid down by the Division Bench of this Court in the aforementioned cases. 3. On the other hand, Mr. Yadav, learned Counsel appearing for the State submitted that the Director, being the appointing authority cannot be held to be divested of the power to take disciplinary action including suspending the persons appointed by him. 4. In view of the well known principle that the appointing authority will also have the power of taking disciplinary action against an appointee. I could not persuade myself to agree with the aforementioned view expressed by the Division Bench of this Court. 4. In view of the well known principle that the appointing authority will also have the power of taking disciplinary action against an appointee. I could not persuade myself to agree with the aforementioned view expressed by the Division Bench of this Court. Normally, under such circumstances, according to the well known rule the matter should have been referred to the Division Bench for consideration of the said question. But when after going through the said decision I found that neither of the said Division Benches has taken notice of the constitutional provision, as contained in Article 311 of the Constitution, I felt persuaded to consider this question afresh. Thus, I sought assistance of Mr. Rajendra Pd. Singh, learned Senior Counsel of this Court also in this case on the question as to whether clause (Kha) of sub-Rule (1) of Rule was amended by the Bihar Nationalised Secondary School (Service Conditions) Amendment Rules 1988 can be sustained in view of the provisions contained in Article 311 of the Constitution, which however, escaped notice of the Division Bench while dealing with the question relating to power of the Director, Secondary Education for taking disciplinary action. It is well known that if an order/Judgment of a Court obvio-made through some mistake or under Some misapprehension, such order/judgment is per incurium. The apex Court in its several judgments considered the doctrin of per incurium. Some of the judgments are reported in AIR 1976 SC 376 (para 6), AIR 1991 (4) SCC 139 (paras 5, 9, 36, 39 and 41). This Court also bad the occasion to deal with the said doctrine on sevaral occasions and one of the decisions of this Court dealing with the said doctrine is reported in 1982 BBCJ 302 . 5. It appears that the school in question was taken over by the State Government under Bihar Non Government Secondary Schools (taking over of Management and Control) Act, 1971 (hereinafter referred to as 'the Act'). Section 9 of the Act vested power in the State Government to lay down service conditions of the Headmasters, teachers and non-teaching staff of the Secondary Schools, which arc taken over under the said Act. Section 15 of the Act vested power in the State Government to frame rules for the purpose of implementing the provisions of the Act. Section 9 of the Act vested power in the State Government to lay down service conditions of the Headmasters, teachers and non-teaching staff of the Secondary Schools, which arc taken over under the said Act. Section 15 of the Act vested power in the State Government to frame rules for the purpose of implementing the provisions of the Act. In exercise of the power under section 9 the State Government framed rule known as Bihar Nationalised Secondary Schools (Service Conditions) Rules 1983 (hereinafter referred to as 1983 Rule 7 deals with the appointment and promotion of the teachers including headmasters. According to clause (Ga) of Rule 7, power to finalise appointment of subordinate grade teachers by direct recruitment is in the Director, Secondary Education on the re-commendation of the Schools Service Board. However, under the said clause the Director/Regional Director has been vested with the power to issue the appointment letters of such teachers from the list finalised by the Director. I am informed by the learned Counsel for the parties that there is no post of Regional Director created in the State of Bihar. Thus, it is clear that the appointing authority of the teachers in the subordinate grade is the Director, Secondary Education. 6. Under rule 9(1) of the 1983 Rules, the power of disciplinary action (including suspension) against the headmasters, teachers and non-teaching staff was vested in the appointing authority or an authority delegated by him and under sub-rule (2) the provision for appeal against such order was incorporated before the immediate superior authority. Thus, it is clear that the appointing authority of the teachers in the subordinate grade is the Director, Secondary Education. This Rule was however, amended by Bihar Nationalised Secondary Schools (Service Conditions) Amendment Rules 1988 hereinafter referred to as 1988 Rules. Thus, it is clear that the appointing authority of the teachers in the subordinate grade is the Director, Secondary Education. This Rule was however, amended by Bihar Nationalised Secondary Schools (Service Conditions) Amendment Rules 1988 hereinafter referred to as 1988 Rules. Under Rule 2 of 1988 Rules, rule 9(1) of the 1983 Rules was replaced, which reads as follows : 1- ljdkjh lsodkas ds fo:} vuq’kklfud dkjZokbZ ds fy;s fofgr fu;e ,oa izfdz;k dk vuqlj.k djrs gq,& ¼d½ jktdh;d`r ek/;fed fo|ky; ds iz/kkuk/;kid ds fo:) vuq’kklfud dkjZokbZ djus mUgs fuyfEcr djus ,oa oSls vuq’kklfud dkjZokbZ ds QyLo:I n.M nsus dh ‘kfDr funs’kd] ek/;fed f’k{kk dh gksxhA ¼[k½ jktdh;d`r ek/;fed fo?kky;ksa ds lHkh dksfV ds lgk;d f’k{kdksa ds fo:} vuq’kklukRed dkjZokbZ ds QyLo:i n.M nsus dh ‘kfDr {ks=h; mi&f’k{kk funs’kd dh gksxh ( ¼x½ jktdh;d`r ek/;fed fo|ky; ds f’k{kkdksÙkj deZpkfj;ksa ¼prqFkZoxhZ; deZpkfj;ksa dks NksM+dj½ ds fo:} vuq’kklukRed dkjZokbZ djus] fuyfEcr djus rFkk oSls vuq’kklukRed dkjZokbZ ds QyLo:i n.M+ nsus dh ‘kfDr ftyk f’k{kk inkf/kdkjh dh gksxh ( ¼?k½ prqFkZoxhZ; deZpkfj;ksa ds fo:} vuq’kklukRed dkjZokbZ djus] mUgas fuyfEcr djus rFkk oSls vuq’kklukRed dkjZokbZ ds QyLo:i n.M nsus dh ‘kfDr fo|ky; ds iz/kkuk/;kid dks gksxhA 7. According to the said provisions different authorities hue been vested with the power to take disciplinary action against different categories of teaching and non teaching staff of the schools. Clause (Ka) vests power in the Director to take disciplinary action including suspension against the headmaster of nationalised Secondary schools and under clause (Kha) the Regional Dy. Director has been vested with the power to take disciplinary action including suspension against Teachers of such schools. We arc not concerned in the present case with clauses (Ga) and (Gha) of the amended rules which deal with the disciplinary action to be taken against non-reaching staff and class IV employees of the schools. On plain reading of clauses (Ka) and (Kha) of the amended Rules gives impression that the Director, Secondary Education does not have the power to take disciplinary action against Assistant Teachers of such schools and only Regional Dy. Directors have been vested with the power to take disciplinary actions including to suspend the teach era of such schools. However, it does not in specific term divest the power of the appointing authority, namely, the Director to take disciplinary actions including to suspend the appointees appointed by him. 8. Directors have been vested with the power to take disciplinary actions including to suspend the teach era of such schools. However, it does not in specific term divest the power of the appointing authority, namely, the Director to take disciplinary actions including to suspend the appointees appointed by him. 8. Clause 9(1) or Article 311 of the Constitution of India provides that no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a state shall be dismissed or removed by an authority subordinate to that by which he was appointed. This provision in the Constitution clearly vests power of disciplinary action only in the appointing authority or in authority higher than the appointing authority and not subordinate to the appointing authority. As I have already noticed above that the appointing authority of the Assistant Teachers of nationalised secondary schools is the Director, which fact is also not disputed by the learned counsel for the parties. It is not the case of the petitioner that he is not holder of a civil post under the State Government after nationalisation of the school. Thus in View of the Constitutional provision contained in Article 311 (2) disciplinary action regarding dismissal, removal or reduction in rank cannot be taken by authority subordinate to that by which the petitioner was appointed. It is well settled that any rule or law, which runs contrary to the provision of the Constitution is ultra vires the said provision of the Constitution. 9. Clause (Kha) of the amended rule, which vests power in the Regional Dy. Director to take such disciplinary action against the Assistant Teachers of the nationalized schools is clearly in contravention of the provisions contained in Article 311 of the Constitution and as such, the said provision of the amended rule to that extent is ultra vires Articles 311. It is true that Article 311 does not deal with the power of suspension of persons employed in civil capacity under the Union or a State, but it has rightly been submitted by Mr. Rajendra Pd. It is true that Article 311 does not deal with the power of suspension of persons employed in civil capacity under the Union or a State, but it has rightly been submitted by Mr. Rajendra Pd. Singh, Senior Counsel, who, on the request of the Court gave his assistance that the disciplinary action includes suspension and as such, it cannot be separated from the power, which is not vested in the authority subordinate to the appointing authority for taking action under Article 311 of the Constitution. As such, clause (kha), which vests power in the regional Dy. Director of education to suspend Assistant Teachers cannot exists in the teeth of Article 311 (2) , inasmuch as the Regional Dy. Director being subordinate to the appointing authority cannot be held to be competent to either initiate a disciplinary proceeding or take disciplinary action against such teachers. 10. Mr. Tej Bahadur Singh, learned counsel for the petitioner also ventured to submit that assuming that in view of the said constitutional provision the power of suspension should be exercised not by authority subordinate to the appointing authority, but this would apply in the absence of any different intention under the statutory provision. According to him, in the present case clause (kha) of Rule 9 of the amended Rule specificially vests power in the Regional Dy. Director of Education and as such, the power of the appointing authority namely, the Director shall stand excluded for the said purpose. I find it difficult to accept the laid submission of Mr. Singh. Section 19 of the Bihar and Orissa General Clauses Act 1977 provides that the authoriy having power to make appointment hall also have the power to suspend of dismiss any person appointed by it in exercise of that power unless a different intention appears. It is true that under clause (kha) of the amended Rule 9 (1) the Regional Deputy Director of Education has been vested with the power of suspension of the Assistant teachers of nationalised secondary schools, but there is nothing in the said Rule to indicate that the power of appointing authority to take disciplinary action including that of suspension has been taken away. 11. 11. Recently, in a case Balbir Chand vs. Food Corporation of India and others, reported in (1997) 3 S.C. 371 the petitioner, who was working as Manager in the Food Corporation of India and was removed from the service by the Managing Director of Corporation after a joint departmental enquiry against several officials of the Corporation including the petitioner, had challenged the order of his removal on the ground that the same could be passed only by the Zonal Manager and not by the Managing Director. The supreme court, rejecting his contention held as follows:- “In the instant case, a joint enquiry war conducted against all the delinquent officials. The highest in the hierarchy of competent authority who could take disciplinary action against the delinquents was none other than the managing Director of the corporation. In normal circumstance the Managing Director being the appellate authority should not pass the order of punishment so as to enable the delinquent employee to avail of right of appeal. An authority lower than the appointing authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action, en that basis, it cannot be said that in doing so there will be discrimination violating Article 14 of the Constitution or causing material prejudice.” 12. This point was never argued before the Division Bench either in the case of Yadunandan Pd. (Supra) or in the earlier writ aforementioned (CWJC no. 12442/92). The vires of clause (kha) of the amended rule 9 (1) was also not challenged before the Division Bench. The question raised before the Division Bench was as to whether the provision of the Bihar service code or other relevant Rules relating to disciplinary proceeding, under which the appointing authority has been vested with the power in relation to disciplinary proceeding or suspension will have application in relation to teaching and non-teaching employees of the nationalized secondary school. The court following the well known maxim “quneralia speciali bus derogant” held that the general power given under different rules or notifications of the Government has to be read subject to specific power conferred on other authorities under the rules, issued subsequent to them, and the later provision impliedly repeals the earlier one. The court following the well known maxim “quneralia speciali bus derogant” held that the general power given under different rules or notifications of the Government has to be read subject to specific power conferred on other authorities under the rules, issued subsequent to them, and the later provision impliedly repeals the earlier one. Accordingly, the Division Bench of this court held that in view of the provisions contained in clause (kha) of the amended rule, the Director Secondary Education had no authority to initiate a departmental proceeding or to pass any order of suspension against Assistant Teachers working ill a nationalised secondary school, which, in my opinion is per incurium in the absence of consideration on the question of vires of clause (kha) of the amended rule and now the said question finally stands settled by the apex court in the case of Balbir Chand (supra). 13. I am thus, left with no Option, but to hold that the director who, is the appointing authority of the Assistant Teachers of the nationalised Secondary Schools is the competent authority to take disciplinary action and has also the power to suspend them. As such, the impugned order cannot be held to be without jurisdiction or bad in law. The writ petition is thus, dismissed, but in the facts and circumstance, there shall be no order as to costs. 10. Before parting with this Judgment, I would like to observe that since the petitioner has been under suspension for the last, now about three years, there cannot be any justification to delay the matter of holding enquiry on the charges, on which he has been placed under suspension. The Director (respondent no.2) is thus, directed to take immediate steps for holding of enquiry against the petitioner and to conclude the same within a period of four months of the receipt/production of a copy of this order. It is made clear that the petitioner shall extend full cooperation in the said enquiry and even if he fails to cooperate, the disciplinary authority will be fully entitled to proceed with the said enquiry exparte in accordance with law, but in any case, the enquiry must be concluded within the aforesaid period, failing which the order of suspension shall stand revoked. Petition Dismissed.