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2014 DIGILAW 719 (PAT)

Subhash Chandra v. State Of Bihar

2014-07-01

CHAKRADHARI SHARAN SINGH

body2014
ORDER 1. Heard learned counsel for the petitioner and learned counsel appearing on behalf of the Respondent-State of Bihar. 2. The petitioner in the present writ application is aggrieved by Memo No. 4214 dated 09.11.2012 issued by the District Education Officer, Bhagalpur whereby the service of the petitioner has been terminated on the ground that his initial appointment made in the year 1985 was in violation of a Circular issued by the Personnel and Administrative Department bearing letter No. 16441 dated 03.12.1980. The petitioner was working on the post of Peon in S.R. High School, Nath Nagar, Bhagalpur. 3. Facts for the purpose of adjudication of the present writ application, are very short and are not much in dispute. The petitioner was appointed as Peon for a period of three months initially by the Head Master of High School, Phuli Dumar where he had submitted his joining on 21.11.1985. Thereafter, by Memo No. 10 dated 28.02.1986, his appointment was extended till further orders. By Memo No. 3437-38 dated 01.05.1987, the petitioner was transferred by the District Education Officer, Bhagalpur to S.R. High School, Nath Nagar from High School, Phuli Duman where he joined on 06.05.1987 and, thereafter, continued till passing of the impugned order dated 09.11.2012 in that school. 4. On 03.04.2012, when the petitioner had already served for nearly 25 years in S.R. High School, Nath Nagar, the District Education Officer issued a show-cause notice to the petitioner to the effect that his appointment was made in violation of the letter No. 16441 dated 03.12.1980 and accordingly sought an explanation from him. He submitted his explanation on 25.04.2012. Again a notice was issued vide Memo No. 2658 dated 02.05.2012 to which the petitioner again replied on 22.05.2012 asserting that he was validly appointed. 5. Finally the impugned order dated 09.11.2012 came to be passed by the District Education Officer, Bhagalpur terminating the service of the petitioner on that ground that he was appointed in violation of letter No. 16441 dated 03.12.1980. 6. Learned counsel appearing on behalf of the petitioner at the very outset has relied upon a Division Bench order of this Court in case of State of Bihar Vs. 6. Learned counsel appearing on behalf of the petitioner at the very outset has relied upon a Division Bench order of this Court in case of State of Bihar Vs. Dinesh Thakur (L.P.A. No. 1492/2009 and other analogous cases) to contend that the petitioner’s appointment could not have been cancelled on the ground that it was made in violation of the Circular of Personnel and Administrative Reforms Department issued vide letter No. 16441 dated 03.12.1980. He has relied upon paragraphs No. 11 and 18 of the said order. 7. Learned counsel appearing on behalf of the State on the other hand resisting the relief sought for in the writ application has contended that the impugned order was rightly passed as the petitioner’s appointment was not made in consonance with the Circular No. 16441 dated 03.12.1980 which was mandatorily required to be followed by all concerned. He has further submitted that Division Bench order of this Court in case of State of Bihar Vs. Dinesh Thakur will not be applicable in the present case as the present case relates to appointment made in high school whereas the Division Bench has considered the said Circular in relation to appointments made in project schools. He has also submitted that the petitioner was initially appointed against a post which had become vacant because of the incumbent having gone on leave and, thereafter, he was illegally adjusted against the post. 8. From the impugned order it is evident that the petitioner’s service has been terminated on the sole ground that his appointment was made in violation of the said Circular No. 16441 dated 03.12.1980. 9. I find force in submission made on behalf of the petitioner that this could not have been the ground for terminating the petitioner’s service in view of the Division Bench order of this Court in case of State of Bihar Vs. Dinesh Thakur (supra). This Court considered two Circulars No. 16440 and 16441 dated 03.12.1980 in its order dated 06.04.2010 and held in paragraph No. 11 of the order as follows:- “11. …….As a matter of fact, the two circulars of the even date 03.12.1980 were primarily meant for filling up the post of Class-III & Class-IV employees in the Collectorate and its Muffasil offices. …….As a matter of fact, the two circulars of the even date 03.12.1980 were primarily meant for filling up the post of Class-III & Class-IV employees in the Collectorate and its Muffasil offices. The schools whether secondary, primary or even project schools of the State Government were never treated to be a part of the Muffasil offices of the Collectorate of the district and that is how at no point of time any of the authority of the Education Department had followed the procedure for appointment the two circulars dated 3.12.1980…..” 10. This Court further held in paragraph No. 18 that the two circulars dated 03.12.1980, which includes the Circular No. 16441 was never acted upon in the Education Department so far it related to appointment of Class III and Class IV in high school/project school. For the purpose of quick reference paragraph No. 18 of the said order is being quoted hereinbelow:- “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.” 11. Following Division Bench order of this Court as referred to above, I find impugned order issued by the District Education Officer, Bhagalpur issued vide Memo No. 4214 dated 09.11.2012 to be unsustainable. The impugned order is accordingly quashed with all consequential benefits. 12. This application is allowed accordingly.