IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5506 of 2002 Gauri Shankar Prasad, Son of late Jagdish Prasad, Resident of Village Aghaila, Police Station Siwan, Mofassil District Siwan. ------- Petitioner Versus 1. The State of Bihar. 2. The Director (Secondary-Education), Bihar, Patna. ---------- Respondents ----------- 4 12.07.2010 Heard Mr. Dilip Kumar, Tiwari, learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “1(i) For issuance of a writ in the nature of Certiorari for quashing of the order dated 26.6.2000 passed by the Respondent No.2 contained in Memo no. 804 dated 7.7.2000 by which the service of the petitioner has been terminated. (ii) For issuance of an appropriate writ directing and commanding the respondents to give the petitioner all consequential benefits after quashing the aforesaid order dated 26.6.2000 contained in Memo no. 804 dated 7.7.2000.” Mr. Tiwari in support of the aforementioned prayer would submit that the appointment of the petitioner was made in the year 1977 when the school, in question, 2 was a private school and at that point of time, the Managing Committee of the school, through its Secretary, had advertised the post in the newspaper, whereafter, the appointment of the petitioner was made. He would further submit that the said school was taken over in the year 1980 with effect from 2.10.1980 and the petitioner also had received payment of salary even thereafter for some period but then subsequently, his payment of salary was stopped. It has been submitted by the counsel for the petitioner that the impugned order dated 7.7.2000, holding the appointment of the petitioner to be illegal, is patently unsustainable, inasmuch as, the District Education Officer, by his order dated 13.11.1991, had already approved the services of the petitioner, which will have an effect of take over of his service as well. In the opinion of this Court, such submission of the counsel for the petitioner has to be only noted for its being rejected. It may be found that the petitioner had also moved this Court for payment of salary and at that point of time his writ petition CWJC 3 No. 304 of 1996 was dismissed by an order dated 12.8.1996, wherein, it was held that the there is nothing on record to show that the post on which the petitioner was claiming to have been appointed was ever advertised nor was there anything to show that there was any internal circular issued by Education Department for filling up the vacancies in question. In fact, the learned single Judge had also gone to hold that the appointment of the petitioner, therefore, cannot be said to be a valid appointment in the eye of law. After such a declaration was made by the learned single Judge in his order dated 12.8.1996, the petitioner had also assailed the same in LPA No. 839 of 1996 and the same was also dismissed affirming the order of the learned single Judge as would be evident from the copy thereof made as Annexure-7, wherein, this Court by its order dated 9.9.1997 had also distinguished the case of Indu Devi and the order passed in her favour by recording that the appointment of the petitioner was never made in the manner prescribed by law. Once the Division Bench of this Court 4 has already recorded the aforementioned findings, the ingenuity on the part of the petitioner to raise the same question once again before the Director, Secondary Education will have to be only appreciated as his undying litigating spirit. The Director, Secondary Education, in such circumstances, has rightly rejected the claim of the petitioner by recording the following findings in the impugned order :- “vkosnd }kjk miLFkkfir rF;] {ks=h; f'k{kk mi funs'kd }kjk miLFkkfir rF; rFkk foHkkxh; fu;eksa@ifji=ksa ds voyksdukFkZ fuEufyf[kr fLFkfr curh gSA foHkkxh; izko/kku ds vkyksd esa izca/k lfefr }kjk lapkfyr fo|ky; esa dk;Zjr f'k{kd@f'k{kdsRrj deZpkfj;ksa ds lkFk fo|ky; dh izLohd`fr ek/;fed f'k{kk cksMZ }kjk nh tkrh FkhA vkosnd }kjk ,slk dksbZ Hkh rF; miyC/k ugha djk;k x;k ftlls ;g Kkr gks fd vkosnd dh fu;qfDr Lohd`r in ds vUrxZr dh x;h Fkh rFkk mudh izLohd`fr fcgkj ek/;fed f'k{kk cksMZ }kjk nh x;h gksA blds lkFk gh ;g Hkh vjktdh; ek/;fed fo|ky; (izca/k ,oa fu;a=.k xzg.k) vf/kfu;e] 1981 }kjk izca/k lfefr@izLohd`fr fo|ky; ,oa muesa dk;Zjr f'k{kdsRrj deZpkjh dh lsok dk Hkh vf/kxzg.k jkT; ljdkj }kjk fnukad 2&10&80 ls fd;k x;kA vkosnd }kjk dksbZ ,slk lk{; ugha miyC/k djk;k x;k ftlls Li"V gks fd mDr vf/klwpuk ds vkyksd esa muds lsok dk Hkh vf/kxzg.k jkT; ljdkj }kjk fd;k x;k ;k ughaA Li"V gS fd vkosnd }kjk fiNys njokts ls xyr rjhds ls lsok esa vkus dk iz;kl fd;k x;kA ;kfpdk la[;k 304@99 ,oa ,y0ih0,0 la0 839@96 esa U;k;ky; }kjk ikfjr vkns'k ds ckn ftyk f'k{kk inkf/kdkjh] floku dks ;g pkfg, Fkk fd vkosnd dks lsok ls eqDr dj ns ijUrq muds }kjk ,slk ugha fd;k x;k tkuk mfpr ugha gSA tgkW rd ,l0,y0ih0 la[;k 5 6580@98 fnukad 22&11&99 dks ikfjr vkns'k dk iz'u gSA izFker% vkosnd blesa oknh ugha Fks nwljk ;g fd ;kfpdk la[;k 338@99] ;kfpdk la[;k 403@99 esa fnukad 8&3&99 esa ikfjr vkns'k ds vkyksd esa izfrokfn;ksa dh nh x;h NqV ds vkyksd esa vkosnd dh fu;qfDr dh oS/krk dh tkWp djus ,oa leqfpr vksn'k ikfjr djus esa dksbZ oS/kkfud dfBukbZ ugha gSA mijksDr of.kZr rF;ksa ls Li"V gS fd vkosnd dh lsok ekU;rk ugha nh x;h Fkh rks fo|ky; esa dk;Zjr f'k{kdsRrj deZpkfj;ska dh fu;qfDr dh ekU;rk u rks ek/;fed f'k{kk cksMZ }kjk nh x;h vkSj u gh fo|ky; dk vf/kxzg.k ds le; dk;Zjr deZpkfj;ksa dh lsok vf/kx`fgr gh fd;k x;kA Li"V gS fd vkosnd fiNys njokts ls fu;qfDr es vkus dk iz;kl fd;k ftlesa foHkkxh; inkf/kdkjh ,oa deZpkjh dk Hkh ;ksxnku jgk gSaA Li"V gS fd vkosnd voS/k :i ls lsok esa cus gq, gSA vr% mudh fu;qfDr dks voS/k ekurs gq, lsok lekIr dh tkrh gSA funs'kd (iz'kklu)lg&mi lfpo] lsdsUM~h] izkFkfed ,oa O;Ld f'k{kk dks vuq'kalk dh tkrh gS fd bl voS/k fu;qfDr esa lafyIr inkf/kdkjh ds fo:) vko';d dkjZokbZ dh tk;A” The aforementioned declaration by the Director, Secondary Education by itself, therefore, is nothing new but only amount to reiterating the aforementioned findings already recorded against him both by the learned single Judge and Division Bench of this Court. Any person claiming to be absorbed or taken over in the Secondary Education School taken over from 2.10.1980 will have to fulfill the yardstick as laid down by the State Government in the light of the provisions made in Take over Act 1981 6 and its connected Government decisions. Once this Court, therefore, had come to a finding that the very appointment of the petitioner was in teeth of the terms and conditions of the recognition of the school and there was also no approval of such appointment of the petitioner between 1977 to 1980, there would be little option for this Court but to hold there is no flaw in the impugned order adopting same reasonings on which even the earlier writ petition and the consequential appeal of the petitioner were dismissed. That being so, there is no merit in this application and the same is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)