IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9375 of 2002 JAGDEO PRASAD son of Late Janki Nath Ram resident of village Kharar P.S. Sherghati District Gaya. Versus 1. THE STATE OF BIHAR 2. The District Education Establishment Committee through its Chairman District Magistrate, Gaya. 3. The District Superintendent of Education, Gaya. 4. The Area Education Officer, Gaya. ----------- 3 16.09.2010 Having heard counsel for the petitioner and counsel for the State as with regard to the impugned order of punishment dated 14th February, 2002 as contained in Annexure-3 to this writ application inflicting punishment of compulsory retirement on the petitioner, this Court would find the same to be unsustainable only on the ground that under the relevant Discipline, Control and Appeal Rules, namely, fcgkj jkT; jktdh;d`r izkjfEHkd fon~;ky; f'k{kd@LFkkukUrj.k ,oa vuq'kklfud dkjZokbZ@ fu;ekoyh] 1994 (hereinafter referred to as the Rules), the punishment provided under Rule 8 reading as follows:- “naM A @1@ vuq'kklfud dkjZokbZ ds v/khu f'k{kd dks fuEukafdr y/kq naM fn;k tk ldsxk A @ i @ psrkouh] @ ii @ fuUnu] @ iii @ osru&o`f) ij jksd %vra;k;kRed vFkok lapk;kRed izHkko ls % @iv @ n{krkvojks/k ikj djus ij jksd A @2@ ljdkj dks gqbZ vkfFkZd {kfr dh olwyh % ijUrq ,slk y/kq naM nsus ds iwoZ f'k{kd ls Li"Vhdj.k ekaxk tk;sxk A @2@ vuq'kkklfud dkjZokbZ ds v/khu f'k{kd dks fuEukafdr o`gn naM fn;k tk ldsxk A @1@ inkoufr % @11@ lsok & foeqfDr % @111@ lsok ls c[kkfDrxhZ % ijUrq ,slk c`gr naM nsus ds iwoZ f'k{kd ds fo:) foHkkxh; dk;Zokgh dh tk;sxh A @3@ ftyk f'k{kk v/kh{kd f'k{kd dks y/kq naM ns ldsxk rFkk LFkkiuk lfefr ds vuqeksnu ls f'k{kd dks c`gr naM ns 2 ldsxk A” do not contemplate the punishment in form of compulsory retirement. It is true that Rule 9 provides for compulsory retirement as a separate measure, but then for such compulsory retirement by way of punishment the procedure prescribed for holding a departmental proceeding will have to be undergone. In the present case, admittedly the departmental proceeding was never conducted nor memo of charge was issued against him and it is only on the fact finding report of the Block Extension Officer, the District Superintendent of Education had issued show cause notice and thereafter had passed an order of compulsory retirement pursuant to the decision taken by the District Education Establishment Committee. Counsel for the State, however, tried to defend the order of compulsory retirement by referring to Rule-9 of the Rules, but then if Rule 9 has to be read in isolation that by itself will become ultra-vires because if the compulsory retirement has the effect for removal of a person from service he has to be at least given an opportunity of hearing in the departmental proceeding. It is true that under Rule 74 of the Bihar Service Code, there is provision for compulsory retirement in the public interest, but then there also a safeguard including three months notice and clear recital of the public interest has to be made in the order of compulsory retirement. Apparently, the impugned order cannot be 3 said to be one under Rule 74 of the Bihar Service Code in absence of either three months notice or pay thereof to the petitioner or clear mention of existence of public interest for compulsory retirement of the petitioner. Thus, this Court would find it difficult to uphold the validity and correctness of the impugned order passed against the petitioner inflicting punishment of compulsory retirement of the petitioner and the same is hereby quashed. It is, however, made clear that as most of the allegations against the petitioner were of very serious nature, it will be open for the respondents to initiate a fresh departmental proceeding which would be treated a continuing proceeding for the purpose of Rule 43 B of the Bihar Pension Rules. Such departmental proceeding shall be therefore initiated within a period of three months from the date of receipt/production of a copy of this order by the District Superintendent of Education and a final decision would now be taken by the District Education Establishment Committee, the appointing authority of the petitioner, wherein it will have not only jurisdiction to passed an appropriate order in terms of Rule 43 B of the Bihar Pension Rules, but also to take decision with regard to payment of salary for the period 21st June, 1999 to the date of the impugned order of punishment as also the future salary till the date of his superannuation. Any payment to the petitioner shall be made only on 4 conclusion of the departmental proceeding, which as noted above, must be concluded expeditiously and preferably within a period of nine months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)