IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9216 of 2006 AYODHYA PRASAD SINGH, son of Late Damodar Singh, resident of village-Shermari Pirpainty, District-Bhagalpur………Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Human Resources Development Department, Bihar, Patna 3. The Director, Secondary Education, Bihar, Patna. 4. The Deputy Director, Secondary Education, Bihar, Patna 5. The Regional Deputy Director of Education, Bhagalpur Division Bhagalpur. 6. District Education Officer , Bhagalpur 7. The Headmaster, Shermari High School, Pirpainti, Bhagalpur …………………………Respondents ----------- For the petitioner: Mr. Ambar Nath Banerjee, Advocate For the State : Mr. Shambhu Nath, A.C. to G.P-.X 2. 12.02.2009 Heard the counsel for the petitioner and the State. Petitioner has filed this application to quash the office order contained in Memo No. 1434 dated 18.05.2006 issued by the Director, Secondary Education, Govt. of Bihar, Patna whereby the petitioner has been dismissed from service w.e.f. 14.12.2001 retrospectively on account of his conviction in a Criminal case and in the light of letter No. 1820 of Chief Secretary dated 20.10.2003. Petitioner who was working as Assistant teacher in State Subsidised School, Ramgarh, Dumka, Santhalpargana in the year, 1997, was named as an accused in Pirpainti Isipur P.S. Case No. 121/97 registered for offence u/Ss 302/201, 120B of the Indian Penal Code. He was convicted by the Ist Additional Sessions Judge-cum-Special Judge, Bhagalpur vide his judgment and order dated 06/12/2001/14.12.2001 passed in - 2 - S.Tr. No. 161/2000/ Trial No. 03 of 2000. Petitioner was taken into custody on 14.12.2001 i.e. the date sentence was awarded. Against the judgment of conviction, Cr. Appeal No. 19/02 was preferred by the petitioner and he was released on bail vide the order dated 11/01/2002. On being released on bail, the petitioner gave his joining in Shermari High school , Pirpainti , Bhagalpur on 06.02.2002 which was duly accepted by the Principal as well as Regional Deputy Director by order dated 16.02.2002 (Annexure-5). Appeal preferred by the petitioner is still pending. However, the Chief Secretary, Govt of Bihar in the light of the judgment of Supreme Court reported in AIR 1995 S.C. 1364 amended the earlier provision relating to the stand of the Government in such matters, where a Government servant is convicted in a criminal case. The earlier Circular of the State Government was that since the appeal is the continuation of the trial as such, any government servant who has been convicted in a Criminal Case will not be discharged or dismissed till the date for filing an appeal is expired or the appeal preferred against the conviction finally disposed of. However, the Personnel & Administrative Reforms Department, Bihar vide letter No. 7820 dated 28.10.2003 amended this provision and the amended Provision read as follows: “Under proviso (a) to Article 311(2) of the Constitution a Government servant may be dismissed or removed or reduced in rank without being put through department - 3 - proceedings on the ground of conduct which has led to his conviction on a criminal charge. Government desire that this proviso should be fully utilized.” In the light of this decision of the Government vide order dated 08.05.2006, the petitioner has been dismissed from service w.e.f. the date of his conviction in the year, 2001. Counsel for the petitioner has assailed the impugned order on two grounds; firstly, that the discharge order being retrospective in nature is bad. Secondly, he has relied upon a decision reported in 2007(1) PLJR 289. Counsel for the state, however, stated that the question of retrospectivity cannot be raised as information regarding petitioner’s conviction was not available to the authority immediately. I find no force in this submission considering Annexures- 5 & 6. Sufficient information was there to the authorities regarding petitioner’s conviction, his custody and grant of bail by the appellate court. What I find that the amended Circular of 2003 cannot have any impact in case of petitioner for the reason that he was convicted in the year, 2001. At that time, the provision contained in Letter No. 111/R- 1-12/-63-1-10158 dated 23.8.1963 was in operation. Clause 9 of this letter read as follows: “Under proviso (a) to Article 311(2) of the Constitution after Government servant may be dismissed or removed or - 4 - reduced in rank without being put through departmental proceedings on the ground of conduct which led to his conviction on a criminal charge. Government desires that this proviso should be fully utilized. But an appeal being continuation of trial , action under this proviso should be taken until (1) the criminal Appeal has been disposed of or (2) the time limit for filing an appeal has expired ” It was the view of the Government that if appeal is preferred against conviction, the appeal being continuation of trial till disposal of the trial, no action can be taken against government servant. On the basis of subsequent Circular giving it retrospective effect, no order could have been passed by the respondent-state by order dated 18.05.2006 issued by the Director, Secondary Education, Bihar, Patna. Any circular or executive order cannot be made effective retrospectively. Considering these facts, prayer the impugned order contained in letter No. 1434 dated 18.05.2006 is quashed. The petitioner has already retired on 13.10.2005. So, order for reinstatement need not be passed but post retrial benefit for which the petitioner is legally entitled, in spite of the pendency of the Criminal Appeal, should be released in favour of the petitioner. This writ application is allowed. AKV/ (Mridula Mishra,J.)