IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13971 of 2001 Suchit Kumar Singh, son of Sri Yogendra Prasad Singh, resident of village- Ashwani Bisunpur, Post- Banka, District- Banka. ………. Petitioner Versus 1.The State Of Bihar 2.The Director, Secondary Education, Bihar, Patna 3.The District Education Officer, Banka. ………… Respondents ----------- For the Petitioner : Mr.Rajendra Prasad Singh, Sr.Adv. with M/s Rajeev Kumar Singh and Nawal Kishore Singh, Adv. For the State : Mr.Sunil Kumar Mandal, S.C.15 with Mr.Bipin Kumar, Adv. ----------- 7. 16/03/2010 Heard learned senior counsel for the petitioner and learned counsel for the State. Petitioner had initially filed this writ application for quashing of letter of the District Education Officer, Banka dated 16.9.2000 (Annexure-1) by which he was asked to submit his service book, appointment letter, order of payment of salary and certificates in respect of his educational qualifications, in view of the report submitted by the District Education Officer, Bhagalpur, to the effect that the petitioner’s appointment was against rules and without following the procedures. By this letter, payment of salary of the petitioner was also stopped. - 2 - During the pendency of the writ application, orders were issued by the District Education Officer, Banka on 12.4.2007 terminating the services of the petitioner, which was affirmed by the Director, Secondary Education by his order dated 26.3.2008. Therefore, I.A.No.2332 of 2008 was filed for amendment in the writ application and grant of liberty to challenge those two orders also, which were annexed as Annexures-8 and 6 respectively with the I.A. The said I.A. was allowed by this Court by order dated 3.12.2009. Learned senior counsel for the petitioner submits that the petitioner was issued notice by the District Education Officer, vide Annexure-1, only to submit his papers in respect of his employment and educational qualifications. No specific show cause was asked from him as to in what manner his appointment was found to be not in accordance with the rules and without following the procedures. He submits that since it was not asked from him to satisfy the authorities that his appointment was in accordance with law, the order of the District Education Officer dated 12.4.2007 is in - 3 - violation of Principles of Natural Justice. He further submits that the said order of the District Education Officer was rescinded by the Regional Deputy Director of Education, Bhagalpur by his order dated 20.4.2007, annexed as Annexure-9 with the I.A., and he was posted in High School, Babhangama. He points out that the Director, Secondary Education by the impugned order dated 26.3.2008 has held this order of the Regional Deputy Director of Education as invalid and the order of the District Education Officer has been restored. Therefore, before reversing the order of the Regional Deputy Director of Education, a notice ought to have been given to the petitioner to satisfy the Director, Secondary Education with regard to correctness of the said order. However, that not having been done, the Director, Secondary Education has also acted in breach of Principles of Natural Justice. Counter affidavit and supplementary counter affidavit have been filed in this case by the respondents. With the counter affidavit, respondents have annexed a number of show cause notices issued to the petitioner as Annexures-B, - 4 - C, C-I and C-II, which appear to have been issued on the directions of the Director, Secondary Education, as contained in Annexure-A. These Annexures show that in the preliminary enquiry petitioner’s appointment was found to have been made in violation of rules and procedures as laid down by the Government. Annexure-B specifically refers to Government letter No.16440 dated 3.12.1980 and specifically mentions that the appointment of the petitioner was without following the conditions laid down in the said letter. Learned counsel for the State submits that the said letter of the Government dated 3.12.1980 clearly laid down that all public appointment have to be made only after publishing advertisements, giving opportunity to all eligible candidates and after holding due selection processes, roster clearance etc., which was not done in the case of the petitioner. These notices show that repeatedly opportunity was given to the petitioner to file reply and satisfy the authorities that his appointment was in accordance with law and the procedure as laid down in the said Government - 5 - letter has been followed. Learned senior counsel for the petitioner submits that this amounts to putting onus on the petitioner to satisfy the authorities that his appointment was legal and valid and made in accordance with law, which is not permissible. This submission of learned senior counsel for the petitioner is not acceptable. Legal and valid appointment of a person is a question of fact and to establish it positively is the burden on the person who claims the same to be as such. Petitioner has to prove that he had submitted his application for appointment pursuant to some advertisement and that he had participated in selection processes after having received notice from the office of the concerned authority. Petitioner has not put on record any reply filed by him in response to any of the notices issued to him. Therefore, there is nothing on the record to show that petitioner raised any grievance that any of the notices was vague or was not clear and he had failed to appreciate as to what was being asked from him to show cause. The grievance that the notices were vague having not been raised by the - 6 - petitioner before the authorities, it is not open to him to raise it before this Court now. The appointment letter of petitioner is Annexure-3 dated 1.11.1991. This letter does not show in any manner that he was appointed pursuant to any advertisement or selection process. On the other hand, this shows that he was appointed by the then District Education Officer, Bhagalpur on purely temporary and provisional basis. Petitioner has failed to produce any material on record to show that this appointment of his on temporary and provisional basis was in any way regular or was later on regularized. Submission of learned senior counsel for the petitioner that, before invalidating the order of the Regional Deputy Director of Education, the Director, Secondary Education ought to have issued notice to the petitioner, has also no force. The order of the Director, Secondary Education clearly shows that he found that the order of the District Education Officer terminating the services of the petitioner had been issued after due enquiry and upon finding that it was in violation of rules and without following the procedure. - 7 - Therefore, he found that the Regional Deputy Director of Education had acted illegally in rescinding the order of the District Education Officer. In the circumstances, he nullified the order of the Regional Deputy Director of Education and has only restored the order of the District Education Officer dated 12.4.2007 terminating the services of the petitioner. Since petitioner was given full opportunity before the said order was passed by the District Education Officer, there was no further requirement of issuing any further show cause notice to him before restoring the said order again. The order of the Regional Deputy Director of Education shows that he had rescinded the order of the District Education Officer merely on the ground that there are many orders of this Court in similar matters, therefore, petitioner should be given the benefit of the same. The order of the Regional Deputy Director of Education shows that no facts of the case was considered by him and he did not take into account any specific order of this Court to give similar treatment to the petitioner. Obviously, the order of the Regional Deputy Director of - 8 - Education was not sustainable. Since the Director, Secondary Education has held the order of the Regional Deputy Director of Education as not valid and has merely restored the order of the District Education Officer, no separate show cause notice was required to be given to the petitioner by him in the facts and circumstances of the case. In the circumstances, this Court does not find any merit in this writ application and the same is accordingly dismissed. Pradeep/ (J. N. Singh, J.)