IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3051 of 2006 Mushtaque Ahmad Khan, Son of Late Mukhtar Ahmad Khan, R/o village – Chintamnpur, P.S. Gobindganj, District – East Champaran ….. Petitioner Versus 1. The State Of Bihar 2. The Commissioner-cum-Secretary, Department of Primary Education, Government of Bihar, New Secretariat, Patna. 3. The Director, Primary Education, Government of Bihar, Patna 4. The Deputy Director, Primary Education, Government of Bihar, Patna 5. The Commissioner, Tirhut Division, Muzaffarpur 6. The District Magistrate, East Champaran at Motihari 7. The Deputy Development Commissioner – cum – Chairman, District – Establishment Committee, Primary Education, East Champaran 8. The District Superintendent of Education, East Champaran at Motihari 9. The Area Education Officer, Areraj, East Champaran 10. The Block Education Extension Officer, Harsidhi – 1, East Champaran 11. The Headmaster, Primary School, Bhada (Boys) Harsidhi – I, East Champaran. …. Respondents ----------- For the petitioner : M/s Satish Chandra Mishra, Md. Nurul Hoda, Advocates For the State : Mr. Chandra Shekhar Singh A.C. to G.P. 16 ------ 3 02.02.2011 Heard learned counsel for the petitioner and the State. Petitioner has preferred this writ petition for quashing the order dated 11.7.2000 passed by District 2 Superintendent of Education, East Champaran at Motihari (as contained in Annexure 15) as well as the appellate order passed by the Commissioner, Tirhut Division, Muzaffarpur in Case No. 103-Service appeal/2005 (as contained in Annexure 25). According to the petitioner, he was appointed as Assistant Teacher in Primary School, Bhada in Harsidhi Anchal of East Champaran on a sanction post vide office order issued on 27.5.1976 (Annexure 1) and, thereafter, he gave his joining in the aforesaid school on 2.6.1976 and was imparted training etc. from time to time and was given his due salary. He became seriously ill and, thus, remained absent from 31.3.1979 to 31.8.1980 as he was being treated for Kalazar and, subsequently, he joined school on 1.9.1980 with an application to the Headmaster seeking grant of medical leave for the period 1.4.1979 to 31.8.1980. However, the petitioner was stopped from work on 5.1.1981. The District Superintendent of Education, East Champaran at Motihari vide his letter No. 676 dated 22.1.1981 cancelled his earlier joining on 1.9.1980. Thereafter, according to the petitioner, he was moving from pillar to post for justice 3 but his efforts proved in vain. The petitioner again gave representation to the authorities and requested for accepting rejoining. Respondent nos. 8 and 9 made recommendation in favour of the petitioner for sympathetic consideration of his grievance. However, since no action could be taken for redressal of his grievance, the petitioner approached this Court by filing a writ petition bearing C.W.J.C. No. 12623/1999. During the pendency of the said writ petition, petitioner was served a show cause notice dated 22.6.2000 regarding the absence of the petitioner from duty for about 10 years. After submission of his show cause during the pendency of the aforesaid writ petition, petitioner was removed from service by office order contained in memo no. 3837 dated 11.7.2000. Then the petitioner was permitted to withdraw his writ petition vide order dated 28.1.2005 passed in the aforesaid writ petition with liberty to take recourse to the remedy of appeal. Subsequently, Case No. 103-Service appeal/2005 was preferred by the petitioner before the competent authority. It is submitted that the Commissioner, Tirhut Division, Muzaffarpur has dismissed the appeal by order dated 28.12.2005 contained 4 in Annexure 25 which is under challenge in the present writ application. The petitioner challenges the appellate order chiefly on two grounds. First, that his case has not been given due consideration by the appellate authority and secondly, that the authorities have terminated / removed from the services under Rule 76 of the Bihar Service Code without following the procedure laid down as the same mandates that if a Government servant without any leave granted to him exceeds absence of continuous period of 5 years, he could be removed from the service after following the procedure laid down in Civil Services (Classification, Control and Appeal) Rules, 1930 and Bihar and Orissa Subordinate Services (Discipline & Appeal) Rules, 1935. The learned counsel submits that neither charges have been framed followed by enquiry nor has any opportunity been given under the said Rules to the petitioner to defend and simply on the basis of his show cause, order of his removal has been passed. Counter affidavit has been filed on behalf of the State defending its action. So far the first ground put 5 forth by the petitioner is concerned, learned counsel appearing for the State submitted that his show cause notice has been considered by the original as well as appellate authorities. However, learned counsel fairly submitted that though a show cause notice was given but he was not in a position to show that any enquiry under Civil Services (Classification, Control and Appeal) Rules, 1930 and Bihar and Orissa Subordinate Services (Discipline & Appeal) Rules, 1935 as per the mandate of Rule 76 of the Bihar Service Code has made before passing order of dismissal / removal of the petitioner. For better appreciation, it would be pertinent to quote the Rule 76 of the Bihar Service Code under which admittedly the State authorities have proceeded to impart a major punishment upon the petitioner, as under: “76. Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a Government servant, after five years’ continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ. [(a) No Government servant shall be granted leave of any kind for a continuous period 6 exceeding five years. (b) Where a Govt. servant does not resume duty after remaining on leave for a continuous period of 5 years, or where a Government servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him, exceeds a continuous period of 5 years, he shall unless the State Government otherwise determine be removed from service after following the procedure laid down in eh Civil Service (Classification, control (appeal) Rules 1930 and the Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935.]” From bare perusal of the aforesaid Rule it is apparent that in case of a Government servant exceeding his continuous period of absence for more than 5 years, he shall, unless the State Government otherwise determine, be removed from the service, however, only after following the procedure laid down in the Civil Service (Classification, Control Appeal) Rules, 1930 and the Bihar Orissa Subordinate Services (Discipline & Appeal) Rules, 1935. In my opinion, the aforesaid 7 procedure laid down having admittedly not been followed, the entire State action suffers from the vice of infraction of the provisions as contained in Article 311 of the Constitution of India as well as the Rule concerned itself. Thus, this Court does not have any option than to quash the entire original order passed by the District Superintendent of Education, East Champaran at Motihari contained in Annexure 15 as well as the appellate order passed by the Commissioner, Tirhut Division in Case No. 103 – Service appeal / 2005 contained in Annexure 25. Necessary consequence would follow. However, since it has been claimed by the respondents that the petitioner has remained absent from duty for more than 10 years without any authorization, it would be open for them to initiate a proper proceeding strictly in accordance with law and the existing rules. Accordingly this writ petition stands allowed. Spd/- ( Dr. Ravi Ranjan, J.)