TAPEN SEN, J. - (1.) THE petitioner in the instant case prays for quashing the order dated 18.12.1999 issued under Memo No. 2369 by the Director. Social Welfare. Government of Bihar, Patna (Annexure -1), whereby and whereunder the appointment of the petitioner as an Assistant Teacher of the Government Deaf & Dumb School. Dumka was ordered to be cancelled with immediate effect. The petitioner also makes a prayer that upon setting aside of the aforementioned order, appropriate direction be passed reinstating him together with all consequential benefits, including arrears of pay as well as current, salary and other benefits.
(2.) ACCORDING to the petitioner, he was appointed on the post of an Assistant Teacher of the Government Deaf & Dumb School. Dumka by order dated 16.6.1987. Upon his joining, the District Welfare Officer, Dumka duly accepted the same by Memo dated 11.7.1987 (see Annexures -2 and ). On 26.2.1986, the Director. Social Welfare issued a direction to the Deputy Director. Social Welfare, Bhagalpur Division. South Chhotanagpur and Darbhanga Divisions, By reason of this, it was directed that vacant posts of teacher in the Blind, Deaf & Dumb Schools should be filled up within a fortnight. It is stated that the post of Deputy Director, Santhal Pargana was non -existent and, therefore, the Director, Social Welfare authorized one Shri Ramyagya Singh, who was then functioning as Deputy Director, Bhagalpur Division to discharge ail the functions and duties of Deputy Director, Social Welfare. Thereafter, the Deputy Director, accordingly took steps to fill up the vacant posts and a requisition was sent to the Employment Exchange. Consequently, the Employment Exchange sent names where after various candidates, including the petitioner were subjected to interview. It is the case of the petitioner that it was only thereafter that he got his appointment on the basis of the recommendation of the Establishment Committee/Selection Committee. Further case of the petitioner is that the Deaf & Dumb School was not only under staffed but they were also running without qualified and trained teachers. In fact, only "Graingola Chawkidars", who were matriculates and who were untrained, had been deputed as teachers and the petitioner was the first and the only qualified teacher who was recruited to teach the Deaf and Dumb children. The petitioner has further stated that subsequently, the Commissioner Bhagalpur and Santhal Pargana Divisions, termed the appointment of the petitioner in the district of Dumka as illegal on the sole ground that he belongs to the district of Samastipur. Thereafter, on 14.8.1987, the Deputy Director, Welfare, Dumka by Memo No. 249 (Annexure 7) and in the light of the order of the Commissioner, Bhagalpur and Santhal Pargana Divisions, directed the District Welfare Officer, Dumka, to terminate the services of the petitioner. In compliance thereof, the District Welfare Officer issued an order dated 17.8.1987 (Annexure -8), whereby and whereunder the services of the petitioner as an Assistant Teacher, Government Deaf and Dumb School, Dumka was sought to be terminated. Being aggrieved, the petitioner filed CWJC No. 5234 of 1987 challenging the order dated 17.8.1987 as also the order of the Commissioner, Bhagalpur and Santhal Pargana Divisions. On 8.2.1995 the High Court allowed the aforementioned writ petition and set aside the order dated 17.8.1987 by An -nexure -9. By reason of the said order, it was also directed that the petitioner shall be reinstated In service with full backwages on and from the date of his joining till the date of his reinstatement. Let it be recorded that from paragraph 6 of the aforementioned order, it is evident that the High Court while delivering judgment in the aforementioned case, observed as follows : "...it is apparent that the petitioner was appointed on regular basis against a vacant sanctioned post following the prescribed procedure. As such, the cancellation of his appointment by the impugned order after he joined service in, ex facie, arbitrary and cannot be sustained. Even if, the respondents have any reservation about the appointment of the petitioner, he ought to have been afforded an opportunity to show cause and/or of being heard before the cancellation of his appointment." After having observed as above, the High Court further observed that if, however the respondents have any reservation about the petitioner 'sappointment for any valid ground, it will be open to them to pass appropriate orders as regards his appointment after affording him with a reasonable opportunity to show cause and in that event, the petitioner should be deemed to be under suspension during the period from the date of cancellation of his appointment till the date of his reinstatement and he shall be paid subsistence allowance for that period. It is on account of the aforementioned observation that on 14.2.1996 the Director, Social Welfare. Government of Bihar, Patna passed an order directing one Shri Ramjeet Singh, who was then functioning as a Deputy Director (Women), Social Welfare, Government of Bihar, Patna to collect materials from Bhagalpur and Dumka for further action. However, in the meantime, on 20.2.1996, the petitioner was reinstated. About a month thereafter i.e. 23.3.1996, Shri Ramjeet Singh submitted a report and on 25.3..1996, the Director, Social Welfare, Bihar, Patna asked him to submit his proposal with his comments. Accordingly, Shri Ramjeet Singh submitted his proposals along with a recommendation to initiate departmental proceedings as against the petitioner. On 18.9.1996 the Director, Social Welfare initiated department proceedings against the petitioner under the provisions of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 and one Shri Krantideo Pandey, the then Deputy Director, Social Welfare, Bihar, Patna was appointed as an Enquiry Officer vide Memo dated 18.9.1996 as contained in Annexure 10. Upon perusal of the pleadings, it is evident that five charges were framed against the petitioner but finally after conclusion of the proceedings and on 19.8.1998, the Enquiry Officer submitted his report by Annexure -13. Upon perusal thereof, it is evident that the Enquiry Officer did not find charge Nos. 1 to 4 proved. So far as charge No. 5 is concerned, the said charge was as follows : "On 15.1.1987, the Cabinet Secretariat had issued a direction to the effect that for Class -111 and IV employment, only local persons of the district would be appointed." Let it be recorded that the petitioner was appointed in the Deaf and Dumb School and by the earlier communication of the Commissioner dated 13.8.1987, his appointment was termed to be illegal on the sole ground that he could not have been appointed at Dumka because he belonged to the District of Samastipur. 3 Learned counsel for the petitioner has submitted that in a similar case, the aforementioned district criteria was challenged by some aggrieved persons in CWJC No. 6753 of 1990 before the Patna High Court. Those persons were aggrieved by an order dated 30.8.1990 passed by the Commissioner, Santhal Parganas Division, who had directed the Superintending Engineer, Dumka to terminate the services of all Class III & IV employees, who were not the residents of the Santhal Pargana district. While allowing the said writ application by an order dated 21.1.1992 (see running page 62 of the writ application), it was observed as follows : ".....It has also been held that residents of one district neither form a class separate from the residents of other districts of the State nor is there any reasonable object which is sought to be achieved, in the circumstances, it was held that such an order was violative being discriminative and without any rational basis. The same principle applies to the fact of this case also." Reverting back to the contents of the enquiry report, the Enquiry Officer submitted that by reason of the order passed in CWJC No. 6753 of 1990, the order dated 30.8.1990 passed by the Commissioner. Santhal Parganas had been quashed but the letters of the Cabinet Secretariat issued on 5.1.1987 in respect of this case imposing the district criteria had not been quashed and, therefore, those would be deemed to be still in force. Consequently, it was held that the petitioner, who belonged to Samastipur, could not have secured an appointment at Dumka. Thus, the Enquiry Committee did not find charge Nos. 1 to 4 proved but found charge No. 5 proved only for the aforementioned reasons. Upon perusal of the enquiry report, it is evident that after the same had been submitted, an endorsement was made by the Director on 11.9.1998 (see page -79) and it is evident that the file was once again sent to the same Shri Ramjeet Singh to look into the matter and submit his report on the basis of latest circulars. It is evident that after the order was passed by the Patna High Court on 8.2.1995 (Annexure -9) setting aside the earlier order dated 17.8.1987 cancelling the petitioner 'sappointment and directing his reinstatement to the manner stated above holding that the petitioner 'sappointment was regular, the Director Social Welfare had ordered the same Ramjeet Singh by his order dated 14.2.1996 to collect materials from Bhagalpur and Dumka for further action in pursuance of the aforementioned order of the High Court. Thus, Shri Ramjeet Singh was the first investigator, who collected materials and after doing so, on 23.3.1996, he submitted a report where after departmental proceedings were drawn up against the petitioner. Thus, after exhausting the procedure in relation to departmental proceedings and after conclusion thereof by submission of the enquiry report, the matter should not once again have been entrusted to the same Ramjeet Singh. The matter does not end there because after he received the file, the same Ramjeet Singh on 1.11.1999, once again made a recommendation that the petitioner 's appointment should be cancelled for the same so -called irregularity relating to the district criteria. It is thereafter that on 18.12.1999, the respondent authorities cancelled the appointment of the petitioner.
(3.) EVEN in the counter affidavit, at paragraph 3, it has been repeated that the petitioner was appointed by Incharge Deputy Director, Santhal Parganas without following the procedure etc. and, therefore, the services of the petitioner were terminated. At paragraph -4. the fact relating to the submission of the enquiry report has been admitted and it has further been stated at paragraph -9 that the name of the petitioner was received from the Employment Exchange at Bhagalpur and not from the Employment Exchange at Santhal Par -gana. It has also been stated in the same paragraph that the petitioner 'sappointment at Dumka could not have been done in view of the circular of the Cabinet Secretariat dated 15.1.1987 as contained in Annexure -11/1, which had circulated, inter alia, that only local people of the district should be appointed, which in the instant case, had been violated. Thus, the counter affidavit also proceeds on the aforementioned grounds of justifying the cancellation of appointment of the petitioner on the basis of the aforementioned district criteria.;