IN THE HIGH COURT OF JUDICATURE AT PATNA (CIVIL WRIT JURISDICTION) C.W.JC. No.9631 OF 2006 DILIP KUMAR SINGH-------------------------------------------------------(Petitioner) -:Versus:- THE STATE OF BIHAR & ORS----------------------------------------(Respondents) For The Petitioner : RATAN KUMAR For The Respondent : (SC16) P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA M.K. Jha, J. :- In this writ application, the petitioner had initially made a prayer for a direction to Education Commissioner, Purnea to dispose of his service appeal. During pendency of this writ application, such service appeal had been disposed of by the Commissioner, Purnea Division by his order dated 8.9.2006 which has been sought to be assailed in I.A. No. 3806/2007. In view of the fact that the impugned appellate order dated 8.9.2006 sought to be assailed through I.A. No. 3806/2007 is part of the cause of action for which this writ application was filed, I.A. No. 3806/2007 is hereby allowed and the amendment in the relief portion of the writ application as with regard to seeking a further relief for quashing of the aforesaid appeal order dated 8.9.2006 is allowed. It is not in doubt that the petitioner had earlier moved this Court in C.W.J.C. No. 9686/2005 assailing the order passed by the District Superintendent of Education cum Sub-Divisional Education Officer, Kishanganj contained in Memo No. 1133 dated 20.7.2004 whereby and whereunder 2 not only his earlier promotion in I.A. Trained Scale of Pay and B.A. Trained Scale of pay had been cancelled but even a direction was given to make recovery of excess amount paid to the petitioner within a period of 30 days either in lump-sum or in installment. The aforesaid writ application of the petitioner, against the aforementioned order dated 20.7.2004 however was permitted to be withdrawn by an order dated 9.2.2005 with a liberty to him to represent his case before the Director of Primary Education for redressal of his grievance. It is the case of the petitioner that pursuant to the said order dated 9.2.2005 in CWJC No. 9686 of 2004, he had filed service appeal before the Director of the Primary Education on 28.2.2005 but the same was transferred by the Director, Primary Education vide his order dated 13.09.2005 to the Divisional Commissioner, Purnea Division, Purnea on the ground that under the relevant disciplinary and appeal rules, such an appeal against an order passed by the District Superintendent of Education would lie only before the Divisional Commissioner. The Divisional Commissioner however after keeping the appeal pending for almost one year had dismissed the appeal by the present impugned order dated 08.09.2006 not on merits but only on the ground that the said appeal was time barred in terms of Rule 14 of the Bihar Rajkiya Prathmik Pronnati Niyamawali, 1993 inasmuch as the order was passed by D.S.E., Kishanganj on 20.7.2004 whereas the petitioner had filed an appeal on 19.09.2005. The petitioner has thus a grievance that his statutory right of appeal has been negated on technicality by the Divisional Commissioner who failed to take into 3 consideration that the matter had remained pending before this Court in CWJC No. 9686 of 2004 and that as a matter of fact there was no delay in filing of the appeal by him which was filed on 28.02.2005 within three weeks of disposal of CWJC No. 9686 of 2004 by an order dated 9.2.2005. This Court after hearing the parties in the facts of this case is of the considered opinion that when the petitioner had preferred an appeal under the relevant service rules, the same ought to have been disposed on merits, instead of its being dismissed on the ground of limitation as has been done by the Commissioner, Purnea Division in his appellate order dated 8.9.2006 as contained in Annexure-16 to the I.A. No. 3806 of 2007. As a matter of fact the period which was consumed by the petitioner in pressing his writ application CWJC No. 9686 of 2004 was fit to be condoned and the Commissioner of Purnea Division ought to have decided the appeal of the petitioner on merit specially when it is found that the petitioner had preferred the appeal within 19 days of the order of this Court dated 9.2.2005 in CWJC No. 9686 of 2004. Consequently, this Court quashes the aforementioned impugned appellate order passed by the Commissioner, Purnea Division dated 8.9.2006 and remits the matter back to the competent appellate authority who shall now dispose of the appeal of the petitioner which was filed by him before the Director, Primary Education on 28.2.2005 and which on being transferred on 13.09.2005 was disposed of by the Commissioner of Purnea Division by his order dated 8.9.2006. This Court is informed that now such power of appeal has been vested in the Regional Deputy Director of 4 Education and as such, the Regional Deputy Director of Education, Purnea is directed to dispose of the appeal within a period of six months from the date of receipt/production of copy of this order. The office of the Divisional Commissioner, Purnea is accordingly also directed to make the entire records of the appeal filed by the petitioner, which was disposed of by an order of the Divisional Commissioner dated 8.9.2006, available to the Regional Deputy Director of Education, Purnea within a period of one month from the date of receipt/production of copy of the order. The petitioner may also file a copy of such appeal which was filed by him before the Director, Primary Education and which was transferred to the Divisional Commissioner, Purnea. The period of six months given for disposal of an appeal would start running from the date the Regional Deputy Director of Education, Purnea receives the records of the appeal from the office of Divisional Commissioner, Purnea. It is also made clear that this time the appeal of the petitioner against the order of cancellation of the promotion as contained in Memo No. 1133 dated 20.7.2004 passed by the District Superintendent of Education, Kishanganj will be disposed of on merits. Accordingly, this writ application is allowed to the extent indicated above with the aforesaid observations and directions. PATNA HIGH COURT (Mihir Kumar Jha, J.) Dated, the 20th August, 2008 Rsh