Jagarnath Ram vs The State of Bihar and Others

V.N. Sinha, J.—Heard learned counsel for the petitioner and the State, who has filed counter affidavit duly affirmed by the Deputy Director, Primary Education, Bihar, Patna. During the pendency of this writ petition the petitioner died on 27.3.2006 leaving behind his heirs and legal representatives mentioned in paragraph 2 of Interlocutory Application No. 2515 of 2006 which fact is admitted by counsel for the State.

In the circumstances, the name of the petitioner is expunged from the records of this case and in his place those named in paragraph 2 of Interlocutory Application No. 2515 of 2006 be substituted.

Original petitioner, who served as a Class-Ill employee in the office of the District Superintendent of Education, Muzaffarpur, was aggrieved by the orders bearing Memo No. 455 dated 14.7.2004, Annexure-9, whereunder he has been dismissed from service by resorting to the powers contained in Rule 3(b) of the Bihar and Orissa (Subordinate Services, Discipline and Appeal) Rules, 1935 as he is alleged to have defalcated 445.11 Quintals of wheat meant for Mid Day Meal Scheme for the school children. It appears from perusal of the dismissal order bearing Memo No. 455 dated 14.7.2004, Annexure-9 that the same has been passed by the Secretary, Primary and Adult Education, Department of the State Government.

Learned counsel appearing in support of this application has submitted that the Secretary of the Department is neither the appointing nor the disciplinary authority of the original petitioner, as such, was not competent to dismiss the original petitioner which submission appears to have been admitted in paragraph 20 of the counter affidavit itself with caveat that this Court under orders dated 21.7.2004 passed in C.W.J.C. No. 13973 of 2001, Annexure-10 made queries from the authorities and in response to the queries the impugned order has been passed by the Secretary of the Department, as at the relevant time the office of Director, Primary Education, who is the competent authority to consider the allegations made against the petitioner was vacant. Vacancy in the office of Director, Primary Education in the opinion of this Court will not confer jurisdiction on the Secretary of the Department to pass the order dismissing the petitioner all the more when the Secretary of the Department happens to be the appellate authority.

In the circumstances, this Court has no option but to quash the dismissal order bearing Memo No. 455 dated 14.7.2004, Annexure-9 with further direction to the authorities to clear the retiral dues of Jagarnath Ram (original petitioner) in favour of those named in paragraph 2 of the Interlocutory Application No. 2515 of 2006 within a period of three months from the date of receipt/production of a copy of this order. This application is disposed of. No cost.