IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13895 of 2001 KISHORI CHOUDHARY, S/O SHRI GANOURI CHOUDHARY, ASSISTANT TEACHER, SAHTHA, GOVERNMENT BASIC HIGH SCHOOL, SAHTHA, P.S.- BHAGWANPUR, DISTRICT-VAISHALI. …PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, TIRHUT DIVISION, MUZAFFARPUR. 3. THE DISTRICT EDUCATION OFFICER, VAISHALI. ………RESPONDENTS. For Petitioner : Mr. Tej Bahadur Singh, Sr. Adv., Mr. Brajesh Kumar, Adv. and Mr. B.S.Pandey,Adv. For the State : Mr. Sunil Kr. Mandal, SC-XV. ----------- 7 08.12.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for a direction to the respondents to release his salary of the period May, 2001 till date, which was withheld pending some enquiry. It was stated in the writ application that by a common order of the office of Regional Deputy Director of Education, Tirhut Division dated 15.10.1990 as many as 43 scheduled caste candidates were appointed in different schools in the pay scale of matric trained/untrained teachers. After his appointment, he was allowed to join the Government Teachers Training College 2 at Turki, Muzaffarpur for completing the training. Petitioner appeared in the teachers’ training examination held in December 1998, but failed in one paper. While he was awaiting to clear the paper, in the subsequent supplementary examination, he was served with a show cause notice dated 19.5.1999, annexed as Anneuxre-7, to show cause as to why his appointment be not cancelled on the sole ground that at the time of his appointment he was untrained. Petitioner filed his show cause vide Anneuxre-8. Vide Anneuxre-9 dated 11.6.2001, payment of salary of the petitioner was stopped pending enquiry with regard to validity of his appointment and he was directed to appear before the Regional Deputy Director of Education with all original papers. Petitioner appeared and filed all relevant papers before the authority vide Anneuxre-10. As petitioner had submitted all the relevant papers as directed, pending enquiry, the respondent Regional Deputy Director of Education, by order dated 24.7.2001, directed for release of his salary, vide Annexure-11. However, inspite of such direction, salary was not paid to the petitioner. Hence, he filed this writ 3 application on 15.10.2001. After filing of the writ application, respondent Regional Deputy Director of Education issued order dated 2.11.2001, as contained in Annexure-12, by which, his services were terminated and direction was issued to recover the amount of salary paid to him in one installment. The said order dated 2.11.2001 was challenged by the petitioner in this case through I.A. No. 5692 of 2001 which was allowed by order dated 24.8.2005. Learned counsel for the petitioner submits that as petitioner had failed in one paper in the B.Ed Examination, he was intending to clear the same in the supplementary examination. But, in the meanwhile, proceeding started against him and show cause notices were issued. Therefore, he could not get opportunity to apply to the authorities for permission to clear the examination. He also submits that solely on the ground that at the time of his appointment he was untrained and, therefore, not qualified for appointment, show cause notice was issued to him to which he replied and specifically mentioned that he had already 4 appeared in the examination. However, in the impugned order of termination, the Regional Deputy Director of Education although noticed that he was untrained, has terminated his service solely on the ground that his appointment was irregular and illegal. It is mentioned in the order that the name of the petitioner was not there in the list of candidates interviewed as well as in the waiting list of successful candidates. He submits that petitioner was never apprised of this ground earlier and was never asked to show cause and was never given any opportunity to meet the same. Counter affidavit has been filed by the respondents saying that petitioner has not completed his training till today and, therefore, he is not entitled to continue in service. Learned counsel for the petitioner has relied upon two orders of this Court passed in C.W.J.C. No. 11052 of 1997 dated 19.8.1990 and orders passed in analogous cases led by C.W.J.C. No. 11208 of 1997 dated 2.5.2005 to contend that the writ application of other incumbents, who 5 were also appointed by the same order (Annexure- 2) were earlier terminated, were allowed by this Court by the above said orders. He submits that all the incumbents appointed by Annexure-2 are in service except for the petitioner. Since the writ application can be disposed of on a short point, this Court does not intend to go into the question as to whether the said writ applications were allowed by this Court under identical circumstances or not. This much is established that in respect of the sole ground for his termination that his name did not appear in the list of candidates called for interview and in the waiting list of successful candidates, petitioner was never given any opportunity. Therefore, to satisfy ends of justice, the order, as contained in Annexure-12, is quashed. The petitioner shall treat Annexure- 12 as a fresh show cause to him and shall file his comprehensive reply to the respondent Regional Deputy Director of Education within one month from today. If the petitioner files such reply, the respondent Regional Deputy Director of Education shall consider the same and pass fresh orders in accordance with law within three 6 months thereafter. It is made clear that respondents will be at liberty to allow the petitioner to join his service and function as a teacher, but shall not pay his salary, arrears or current, till the expiry of four months or till fresh orders are passed by the Regional Deputy Director of Education, whichever is earlier. In case, fresh orders are passed by the Regional Deputy Director of Education in favour of the petitioner, petitioner will be entitled to his arrears as well as current salary. Also, in case no orders are passed within four months, petitioner shall be entitled to his salary from the next day of expiry of four months. In case, petitioner files an application for permission to appear in the examination afresh to clear the paper in which he has failed earlier, the respondents shall consider the said application in accordance with law. With the above observations and directions this writ application is disposed of. Arvind/ (J. N. Singh, J.)