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2007 DIGILAW 1229 (PAT)

Chandra Bhushan Tiwary v. State Of Bihar

2007-07-27

S.K.SINHA

body2007
Judgment 1. Heard the learned counsel for the petitioners and Mr. Prabhakar Tekriwal, learned Government Advocate no. 1 appearing on behalf of the State. 2. It is submitted on behalf of the petitioners that the Director, Primary Education, Bihar, Patna (respondent no.3) has passed the order, as contained in Memo No.1005 dated 22nd of June, 2001 (Annexure 8) cancelling the appointment of the petitioners right from the initial date of taking over of the School in question on 1.10.1981 pursuant to the judgment of the Civil Court in Title Suit No. 185 of 1981/26 of 1989 (Musafir Singh Vrs. State of Bihar and Others), contained in Annexure 5. Pursuant to the aforesaid order, as contained in Annexure 8, the District Superintendent of Education, Buxar (respondent no.4) has issued the consequential order vide Memo no.794 dated 5th of July, 2001 (Annexure 7) directing the petitioners to refund the salary and other emoluments, which they have received with effect from 1.10.1981. Learned counsel for the petitioners further submits that before passing of the order, as contained in Annexure 8, respondent no. 4 has issued a show cause notice, as contained in Letter No. 436 dated 22nd of August, 2000 (Annexure 3), which was replied as per the petitioners letter dated 14.10.2000, as contained in Annexure 6 with its supplement. However, it is submitted that the order, as contained in Annexure 8, has been passed without considering the reply submitted by the petitioners. 3. Learned counsel appearing on behalf of the State, on the other hand, submits that the respondent State had no option but to implement the direction of the Civil Court given in the said Title Suit, as contained in Annexure 5 and, as such, no other order could have been passed. Learned counsel, however, submits that the orders have been passed after giving opportunity to reply. 4. Mr. Singh, learned counsel for the petitioners submits that the judgment pronounced in the aforesaid title suit is not binding on the petitioners. In reply, learned Government Advocate no.1 further submits that if the petitioners are aggrieved by the judgment of the Civil Court as aforesaid, the remedy was to take steps in accordance with the provisions of the Code of Civil Procedure. 5. In reply, learned Government Advocate no.1 further submits that if the petitioners are aggrieved by the judgment of the Civil Court as aforesaid, the remedy was to take steps in accordance with the provisions of the Code of Civil Procedure. 5. From perusal of the order, as contained in Annexure 8, it does not appear that the reply filed by the petitioners, as contained in Annexure 6, in response to the show cause notice, vide Annexure 3, was considered or even if it has been considered it is not appearing from the said order. 6. In this view of the matter, the Commissioner-Cum-Secretary, Department of Human Resources, Bihar, Patna (respondent no.2) is hereby directed to dispose of the reply/explanation submitted by the petitioners, as contained in Annexure 6, in response to the show cause notice issued to them vide Letter no. 436 dated 22nd of August, 2000, as contained in Annexure 3, issued by the District Superintendent of Education, Buxar and after taking due consideration of the reply and also taking into consideration all aspects of the matter shall pass a fresh order in accordance with law expeditiously, preferably within a period of four months on receipt/production of the certified copy of the present order. 7. It is, however, made clear that the entitlement of the petitioners, if any, shall be dependent upon the order passed by respondent no. 2. 8. Till final order is passed by respondent no. 2, operation of the orders, as contained in Annexures 7 and 8, shall remain suspended. 9. Let a copy of this order be handed over to Mr. Prabhakar Tekriwal, learned Government Advocate no.1 for needful.