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2012 DIGILAW 963 (PAT)

Raghunath Marandi v. State Of Bihar

2012-07-13

RAVI RANJAN

body2012
Oral ORDER 1. Heard learned counsel for the petitioners and the State. 2. Through this writ application the petitioners seek quashing of the order contained in Memo No. 148(P) dated 28.7.2009 as contained in Annexure-1 passed by the Director, Secondary Education, Government of Bihar rejecting the representation of the petitioners filed in light of Court’s order dated 7.7.2008 passed in C.W.J.C. No. 4282 of 2004 as contained in Annexure-10. 3. In the earlier application the petitioners had challenged the two separate orders dated 23.10.2003 terminating their services from the Class IV post. It was reflected in the impugned orders that the appointment of the petitioner was of a temporary nature that was extended from time to time, however, the initial appointment itself was not in consonance with law. A stand was taken by the petitioners that they were entitled for consideration of the appointment being wards of the persons who had donated lands for establishment of project school. This Court, in view of a decision rendered by a Division Bench of this Court in Sudarshan Ram v. The State of Bihar & ors. [ 2004(3) PLJR 553 ], had disposed of the writ application with a direction to the respondents to consider the case of the petitioners in accordance with the observations made by the Division Bench. Thereafter, the impugned order has been passed by the authority concerned. It has been pointed out on behalf of the petitioners that the impugned order has been passed on the basis of circular nos. 16640 and 16441 dated 3.12.21980 which was issued by the Personnel and Administrative Reforms Department for the purpose of making appointment of Class III and Class IV posts of the Project School. However, a Division Bench of this Court in its order dated 6.4.2010 passed in L.P.A. No. 1492/2009 and other connected matters has held that both the circulars are dead letters as they remained inoperative since their inception. Thus, it has been urged that they could not have been relied upon by the respondent no. 3 for rejecting the representation filed on behalf of the petitioners. A Xerox copy of the order has been produced at the time of hearing. Let the copy of the order be kept in records of this case. 4. A counter affidavit has been filed on behalf of the State defending the order that has been passed by the concerned authority. 5. A Xerox copy of the order has been produced at the time of hearing. Let the copy of the order be kept in records of this case. 4. A counter affidavit has been filed on behalf of the State defending the order that has been passed by the concerned authority. 5. However, from perusal of the impugned order it definitely appears that the same is based on the Circular Nos. 16440 and 16441 dated 3.12.1980. The relevant passages of the order passed by the Division Bench of this Court in L.P.A. No. 1492/2009 and other connected matters are being reproduced for better appreciation: - “16. Thus, from the different circulars issued by the Education Department on the subject of appointment on the post of teaching and non-teaching staff of the project school, it would become clear the Government had never seriously intended to make appointment on Class-III & Class-IV post in the Project Schools from the panel prepared by the Collector for appointment on Class-III & Class-IV post in the Collectorate and Muffasil offices as per the Circular of the Personnel & Administrative Reforms Department in its two letter nos. 16440 and 16441 both of the even date 3.12.1980. It was in this back ground that for the individual Project School for which Regional Deputy Director of Education was the controlling authority that he had followed the procedure of appointment of issuance of advertisement in newspaper and making selection from amongst the eligible candidate 17. In such a situation, can it be said that mere non-observance of making appointment through the panel of the Collector for Class-III & Class-IV post by itself would become fatal after the concerned Class-III & Class-IV employees of the Project School had continued in service for more than fifteen years? 18. In the opinion of this Court, the two Circulars dated 3.12.1980 having been not acted upon at any point of time in Education Department, so far it relates to the appointment of Class-III & Class-IV post in the high school/project school, must be taken to have become dead letter because of its long disuse, which in the legal parlance is also known as desuetude.” X X X X X X X X X X 20. Thus, we have no hesitation in holding that the alleged violation of the Circular dated 3.12.1980 by itself cannot be made the solitary ground for terminating the services of the Class-III & Class-IV employees of the Project School as the same was never put in force even in a single Project School of this State though such Project Schools are in the vicinity of more than five hundred in number. X X X X X X " (emphasis made) 6. In above view of the matter and the stand taken by the Division Bench, in my considered opinion, it was not open for the respondent no. 3 to place reliance upon the aforesaid circulars for taking a decision on the representation of the petitioners. Thus, the impugned order as contained in Annexure-1, cannot be sustained in law. 7. Accordingly, the same is quashed and the matter is remitted back to the respondent no. 3 to take a fresh decision in accordance with law also considering the observations made in the order dated 7.7.2008 in C.W.J.C. No. 4284/2004 and by the Division Bench in Sudarshan Ram (supra) (specially paragraph 6) as well as the decision of the Division Bench passed in L.P.A. No. 1492 of 2009 and other batch cases specially the paragraph nos. 16, 17 and 18 and 20. 8. Let such exercise be completed by the respondent no. 3 within three months from the date of receipt/production of a certified copy of this order by the petitioners. 9. Accordingly, this writ application stands disposed of with the aforesaid direction.