IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8608 of 2003 RAM PRASAD SINGH, son of Late Garjan Singh, resident of village- Hamirpur, Chand, District- Kaimur. … Petitioner. Versus 1. THE STATE OF BIHAR through Secretary, Secondary Education, Govt. of Bihar, New Secretariat, Vikash Bhawan, Patna. 2. District Education Officer, Kaimur Bhabhua. 3. Head Master, Raj Narayan High School, Hamirpur, Bhabhua. 4. Harendra Singh son of late, Rama Prasad Singh @ Ghurbhari Singh, resident of village- Hamirpur, P.S.- Chand, District- Kaimuar (Bhabhua). … Respondents. With CWJC No.2255 of 2005 HARENDRA SINGH, son of Late Rama Prasad Singh resident of village- Hamirpur, P.S. Chand, District- Kaimur at Bhabua. … Petitioner. Versus 1. THE STATE OF BIHAR 2. Secretary, Department of Secondary Education, Government of Bihar, Secondary Education Board Office in the building of Intermediate Council Budh Marg, Patna. 3. Director, Secondary Education, Government of Bihar, Madhyamik Sikchha Office, Intermediate Council Building, Budh Marg, Patna. 4. District Compassionate Appointment Committee, through its Chairman i.e. the Collector and District Magistrate, Kaimur at Bhabua. 5. District Magistrate, Kaimur at Bhabua. 6. District Education Officer, Kaimur at Bhabua. … Respondents. ----------- 3. 06.09.2010 Heard learned counsel for the parties in both the cases. The first writ application, CWJC No. 8608 of 2003 is against an order of termination of petitioner, Ram Prasad Singh wherein he has prayed for following 2 reliefs; “1.i) For quashing of office order bearing Memo No. 477 dated 21.7.2003 issued under the signature of District Education Officer, Kaimur, Bhabhua whereby and whereunder the Office Order bearing Memo No. 697 dated 21.12.2000 by which petitioner was allowed to rejoin the post of peon in Raj Narayan High School, Hamirpur, Bhabhua, has been cancelled which amounts termination of service of the petitioner. Further, the Head Master of the said school was directed to dispense with the service of the petitioner and to act upon in terms of order/direction passed in Cr. Appeal No. 44 of 2003 and to send compliance report forthwith.” Mr. Rajendra Prasad Singh, learned senior counsel for the petitioner in the first case would submit that the impugned order based on some judgment of Criminal Court could not have been made solitary ground for removal of the petitioner from service specially when the petitioner was also given no opportunity of personal hearing. In the opinion of this Court, a right of hearing for that purpose to the petitioner would arise only if he was ever a government servant. In the present case, from the materials on record as placed by Mr. Singh it would appear that while the school was not a non-governmental 3 high-school, the alleged appointment of the petitioner was made in the year 1971 by the Managing Committee on 15.10.1971 and the said appointment is also claimed to have been approved by the Sub-Divisional Educational Officer on 2.4.1974. The aforesaid documents however cannot be proof of the fact that the petitioner had also become a government servant inasmuch as the school was taken over in the year 1980 in terms of Bihar Non-Governmental Secondary School (Take Over and Control) Act, 1981 which was in continuance to the 1980 Ordinance and Section 4 whereof clearly envisaged take over of service of individual employee. The petitioner admittedly on 12.10.1980 when the school was taken over was not in service and thus it would be difficult for this Court to hold that the petitioner had become a government servant so as to get the benefit of judgment of trial court for his reinstatement and allowing his joining as was done by the District Education Officer, Bhabhua vide his order dated 21.12.2000. Such a dispute in fact as to whether the services of the petitioner were ever taken over by the 4 State Government was to be decided by the Director, Secondary Education and therefore while this Court may not interfere with the impugned order inasmuch as both the order in favour of the petitioner dated 21.12.2000 and one against him dated 21.7.2003 have been passed by the District Education Officer, Bhabhua, this court would direct the Director, Secondary Education to consider this part of the case of the petitioner as to whether his services were taken over by the State Government in terms of either 1980 Ordinance or 1981 Act. Let it be made clear that there has to be a specific order of take over of the service of the petitioner inasmuch as there can be take over of his service by inference and therefore the name of the petitioner must find place in the list of teaching and non-teaching employee as approved by the State Government after take over of the school in the year 1980. While the aforementioned direction would apply in full force for the petitioner of the first case it will have also a direct bearing on the result of second case. The claim of the petitioner, Harendra Singh that his father was a peon who was appointed by the 5 Managing Committee and had become government servant after take over of the school in the year 1980 will have to be again examined on the same yardstick and on the same basis whether there is a specific government order covering the name of the father of the petitioner whose services were taken over along with other teaching or non-teaching employees of the school pursuant to its take over w.e.f. 2.10.1980. In course of such examination of the case of the petitioner, Harendra Singh, it will be also verified as to whether his father’s name was Rama Prasad Singh or Ram Prasad Singh and if it is found from the authentic official documents that the service of Rama Prasad Singh was taken over, only in that case the claim of petitioner, Harendra Singh for compassionate appointment will be processed on the compassionate ground on other paramaters including the income from all sources as also the liability of the family. As both the writ applications relate only to the post of peon having two claims one from Ram Prasad Singh, petitioner in CWJC No. 8608 of 2003 and the other Harendra Singh, claiming to be the son of Rama 6 Prasad Singh, in CWJC No. 2255 of 2005, this Court would also additionally give liberty to both of them to produce any document to substantiate their respective claim which has to be adjudicated by the Director Secondary Education strictly in accordance with law. With the aforementioned observations and directions, both these writ applications are disposed of. kanchan ( Mihir Kumar Jha, J.)