IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4644 of 2005 Surya Shekhar Singh, son of Late Gokul Singh, resident of village Bariarpur, P.O. Rahatpur via Lakhminia, District- Begusarai ……. Petitioner Versus 1. The State Of Bihar through the Chief Secretary, Government of Bihar, Patna 2. Director, Secondary Education, Bihar, Patna 3. District Education Officer, Begusarai 4. Headmaster, GDH High School, Bari Ballia, Begusarai …….. Respondents ----------- For the Petitioner : Sri Ashok Kumar Chaudhary,Adv. For the State : Sri Shankar Kumar, A.C. to A.A.G.-V ----------- 4. 28/10/2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of office order dated 2.12.2004 contained in memo no.832(vidhi) passed by respondent no.2, whereby and whereunder he has been discharged from service without giving any opportunity of being heard, on the basis of letter no.7820 dated 28.10.2003 issued by respondent no.1. Further prayer has been made for reinstatement of petitioner in service with all consequential benefits. Case of the petitioner, in short, is that after due advertisement and selection process he was appointed as Assistant Teacher - 2 - in a nationalized High School. In due course, he was transferred to Rajkiyakrit G.D.R.High School, Bari Ballia (Begusarai) where he continued. Shorn of other details of service, it has been stated that on 21.8.1994 there was some land dispute in the village among petitioner and his gotiyas and altercation followed in which one person died. Accordingly, Ballia P.S.Case No.136 of 1994 was registered under sections 302, 307 and 149 of the Indian Penal Code read with section 27 of Arms Act. Petitioner was made accused in the case and he was taken into custody on 26.8.1994 on account of which he was put under suspension by the orders of respondent District Education Officer. After investigation charge sheet was submitted and petitioner was put on trial and by judgment delivered by the trial court on 24.6.1998 petitioner was convicted and sentenced. Petitioner filed appeal against the said judgment in this Court, namely, Cr.Appeal No.430 of 1998. Pursuant to order dated 5.11.1998 passed in the said appeal, petitioner was released on bail. After release from - 3 - custody, petitioner reported for joining with a request to release him from suspension and post him on a suitable post. The Regional Deputy Director of Education, Munger Division, vide his letter no.79 dated 8.1.1999, as contained in Annexure- 5, directed respondent District Education Officer to release petitioner from suspension and allow him to join. Accordingly, order was passed, vide Annexure-6, releasing petitioner from suspension and he was allowed to join his duty in the school concerned. While releasing petitioner from suspension, the District Education Officer held that the matter of payment of salary of the petitioner of suspension period shall be considered after final orders passed in the appeal. However, petitioner was paid current salary after his joining pursuant to the said order of the District Education Officer. Subsequently, petitioner came to know that an order has been issued discharging him from service. He obtained the said order which has been annexed by him as Annexure-7 and has been impugned in this case. - 4 - Learned counsel for the petitioner submits that the order impugned shows that petitioner was discharged from service in the light of a letter of the Government No.7820 dated 28.10.2003. He has obtained the said letter and annexed it as Annexure-8. This letter affects amendment in the earlier letter of the Government No.10158 dated 23.8.1963. He submits that the said earlier letter of 1963 provided that if a Government servant is convicted in a criminal case, he shall be removed from service on that count; but it was also provided that if he has preferred an appeal before the higher Court, no action should be taken against the Government servant until appeal is finally disposed of or time limit for filing appeal has expired. He submits that in terms of the provisions of letter of 1963, petitioner was entitled to continue in service as his appeal had been admitted by this Court and was pending. However, said exception to the said clause had been removed by letter dated 28.10.2003. He submits that since appeal of the petitioner was filed earlier and petitioner’s service was restored in view of - 5 - stipulation of 1963 letter which was in operation at that time, right had accrued to the petitioner to continue in service and the same could not be taken away by subsequent amendment by applying the same with retrospective effect in his case. In support of his submission, he has relied upon two judgments of the Apex Court, one in the case of Chairman, Railway Board Vs. C.R.Rangadhamaiah, reported in (1997)6 S.C.C. 623 and the other in the case of Star India (P) Ltd. Vs. Commissioner of central Excise, Mumbai, reported in (2005)7 S.C.C. 203. He submits that there is nothing in the said letter dated 28.10.2003 to show that it had retrospective operation. Therefore, amendment in 1963 letter abolishing protection given to the convicted Government servant whose appeal is pending before higher Courts has to be applied only in cases which falls for consideration after the said amendment came into force. A counter affidavit has been filed in the case by the Acting Headmaster of the School in support of the impugned order that petitioner was not entitled to continue any - 6 - further in service. Time was granted to the learned counsel for the state to assist this Court in respect of operation of the said letter dated 28.10.2003. However, learned counsel for the State has not been able to produce any material before this Court to contend that the said letter shall operate retrospectively and Government servants, who had already got protection under 1963 letter shall also be affected by the said amendment. No counter affidavit has been filed in the case by the higher officials of the Department. However, learned counsel for the State submits that in case appeal of the petitioner is dismissed and his conviction and sentence is affirmed, petitioner will be liable to be treated as dismissed from service from the date of his conviction and in that situation, respondents may find it difficult to realize the payments made to him during intervening period and during the period his appeal is pending. Learned counsel for the petitioner, in reply, submitted that appeal of the petitioner is still pending in this Court and may take - 7 - some more time in disposal. He submits that petitioner is hand to mouth and his source of livelihood has extinguished and his entire family is on the verge of starvation. On merits of the appeal, learned counsel for the petitioner has pointed out that specific allegation against petitioner is of having assaulted the deceased by farsa whereas post- mortem report rules out any injury of farsa on the deceased. Thus, he submits that prima facie appeal of the petitioner is likely to be allowed and hence if he is not restored in service, there will be irreparable loss to the petitioner as his family is on the verge of starvation. He has referred to Annexure-4, order of this Court passed in appeal of the petitioner which shows that while directing petitioner to be released on bail, this Court had noticed that there was no injury of farsa on the deceased. Learned counsel for the petitioner has also, upon instructions, given an undertaking that in case appeal of the petitioner is dismissed and his conviction and sentence is affirmed, petitioner shall refund all the - 8 - amounts paid to him during this period by way of salary etc. to the respondents, failing which respondents shall be at liberty to realize the same from the petitioner as public demand in accordance with law. He also submits that on every salary bill petitioner will give the undertaking in writing that salary drawn by him shall be subject to final result of the appeal. Question of retrospective operation of the said amendment by letter dated 28.10.2003 is a matter of deeper scrutiny. However, in peculiar facts and circumstances of the case and purely on humanitarian grounds and considering the observations of the Division Bench directing release of petitioner on bail, this Court is of the opinion that petitioner should be reinstated in service with effect from the date of issue of Annexure-7 by which his services were discharged. However, it is made clear that petitioner will draw his salary for subsequent period only at the rate last paid to him and he shall not be entitled for any increments, revision etc. till final disposal of the appeal. In other words, salary - 9 - which petitioner had drawn in November, 2004 shall only be continued to be paid to him till final disposal of his appeal which, as indicated above, shall be subject to final disposal of the appeal and shall be governed by the undertaking given by learned counsel for the petitioner on behalf of petitioner. Accordingly, Annexure-7 is quashed to the extent indicated above and this writ application is allowed with the observations and directions as above. Pradeep/ (J. N. Singh, J.)