IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10483 of 2009 VINOD KUMAR ROY Versus THE STATE OF BIHAR & ORS ----------- 2 6.10.2009 Heard counsel for the petitioner. No one appears for the State. Petitioner has filed this application for quashing of the order contained in letter dated 20.10..2008 bearing Memo No. 18 issued by the Secretary, Gram Panchayat Raj, Rasulpur Habib, whereby his appointment as Panchayat Teacher has been cancelled and further a direction has been issued to refund entire amount received by him as salary for the period for which he worked as Panchayat Teacher. The Panchayat Secretary has issued such an order in compliance of letter No. 497 dated 28.8.2008. It has been stated by the petitioner in the writ petition that these two letters were never supplied to him, as such, he is not in a position to bring those letters on record of the case. It transpires that petitioner was initially appointed as Panchayat Shiksha Mitra and subsequently he was absorbed as Panchayat Teacher after coming into force of Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules, 2006. Petitioner’s case is that at the time of his initial appointment he had furnished documents which disclosed that his date of birth is 2.12.1972 and he never misrepresented so far his date of birth is concerned. Despite the fact that his date of birth was 2.12.1972 he was appointed as Panchyat Shiksh Mitra and subsequently absorbed as Panchayat Teacher. Later on it was noticed by the - 2 - authorities that at the time of his initial appointment, petitioner was overage and had crossed the maximum age limit prescribed for appointment as Panchayat Shiksha Mitra. Considering this fact vide Annexure-1 the Panchayat Secretary in compliance of letter no. 497 dated 28.8.2008 and letter no. 596 dated 23.9.2008 has cancelled his appointment on the ground that his initial appointment itself was bad, as he was not eligible for appointment being overage. Petitioner’s Counsel submits that prior to the issuance of the order contained in letter dated 20.10.2008 he had never received any show cause notice by the authority and no opportunity was given to him to defend his case. It has been admitted by the petitioner that his date of birth is 2.12.1972 and at the time of his initial appointment he had furnished all documents in support of his date of birth. He had never misrepresented that his date of birth is on any date subsequent to 1972. It was for the appointing authority to consider, whether his prayer for appointment has been considered or not. Since he was appointed and continued to discharge his duty, he had received salary. Only grievance which the petitioner has raised is that even if his appointment was considered as an illegal appointment on account of his date of birth, there is no reason for asking him to refund the money received by him as salary. For this period, on account of his appointment as a Panchayat Teacher he had continued on the post and discharged his duty. The respondent could not have asked him to refund the amount considering the fact that rightly or wrongly petitioner continued on the post from the date of his initial - 3 - appointment under the valid appointment letters issued in his favour by the respondent. In the impugned order it has not been mentioned that at any point of time petitioner had misrepresented so far as his date of birth is concerned. In the given circumstance petitioner could not have been asked to refund the money paid to him as a salary. For all these period he continued on the post and had discharged his duty. Accordingly, that part of the order contained in Memo no. 18 dated 20.10.2008, whereby the petitioner has been asked to refund the money received as salary is quashed. So far cancellation of his appointment is concerned, it needs no consideration for the reason that admittedly petitioner was overage at the time of his initial appointment. This writ application is partly allowed. (Mridula Mishra,J.) A.kumar