IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10007 of 2007 Ganesh Sah, son of Laxmi Sah, resident of Mohalla Merchai Bari, P.S. Katihar (Muffasil), Dist. Katihar. -------- Petitioner Versus 1. The State of Bihar. 2. Director, Primary and Secondary Education, Secretariat (Old), Patna. 3. District Magistrate, Katihar. 4. District Education Officer, Katihar, Dist. Katihar. 5. Head Master, Girls Project High School, Bastoll, Dist. Katihar. 6. Head Master, High School, Kumaripur, Dist. Katihar. -------- Respondents --------------------- 3 20.12.2011 Heard learned counsel for the parties. The challenge of the petitioner to an order of termination dated 18.8.2006 is based on the ground that the impugned order is a bald and non-speaking order, wherein, none of the facts mentioned by him in the show-cause reply has been taken into consideration. He has further submitted that it was not the fault of the petitioner that he got transferred from Project School to Nationalized School and that such an order was passed by the competent authority in terms of the decision taken by the District Education Establishment Committee and also notified by District Education Officer, Katihar and hence no adverse inference can be drawn against the petitioner as against his 2 initial engagement on the post of Mazdoor in a Project School, which was also subsequently regularized in the present school by order of the Headmistress. Learned counsel for the State, on the other hand, has submitted that if the initial appointment of the petitioner was not made in terms of the Government Circular No. 16441 dated 3.12.1980 and the appointing authority also had not followed the prescribed procedure as laid down in the Seva Sart Nimawali dated 9.6.1983, the petitioner cannot be said to have acquiesced any right so as to claim continuance in service. He would also submit that the District Education Officer has made an enquiry and had found that neither the name of the petitioner was registered in the employment exchange nor the name of the petitioner was ever recommended by the Collector from his panel in terms of the circular dated 3.12.1980. In the considered opinion of this Court, this writ application has to be allowed in view of the bald nature of the impugned order. The impugned order was admittedly issued after giving a show-cause 3 notice to the petitioner and the petitioner had filed his show-cause reply but, in the impugned order, there is absolutely no consideration of such show-cause reply, which in fact seems to have been passed in the line of the dictation given to him by the higher authority, namely, the District Education Officer and/or Director, Secondary Education. It is true that a Class-IV employee in a Project School could not have been transferred to the Nationalized High School, inasmuch as, both of them had a separate cadre and service condition. The petitioner, therefore, will be entitled only for his rights that he had acquired in capacity of a Class-IV employee in a Project School. This aspect of the matter, therefore, as to whether the petitioner’s appointment in the Project School was made in accordance with the existing guidelines/circular and whether there was a sanctioned post available for the petitioner in the Project School, in question, where he was appointed, can be gone into by the Director, Secondary Education, who will also necessarily go into the issue as to whether the absorption of the 4 petitioner against a post of Peon in Project School was/is permissible. Such matters in fact have also been remitted related to absorption/continuation in service in Project schools to the Director, Secondary Education by the Division Bench of this Court by order dated 6.4.2010 in LPA No. 1492 of 2009. Accordingly, this application is allowed and the matter is remitted back to the Director, Secondary Education, who would decide the case of the petitioner in the light of the observations and direction given in the order dated 6.4.2010 in LPA No. 1492 of 2009. It is, however, made clear that if the petitioner is taken back in service in a Project School, he will not be entitled for any payment of arrears of salary but, his continuity in service shall be protected for counting the same towards his qualifying service for the purpose of earning his post retirement benefit. With the aforesaid observations and direction this writ application is disposed of. Rsh (Mihir Kumar Jha, J.) 5