PRAMATH PATNAIK,J. - (1.) In the accompanied writ application, the petitioner has inter alia prayed for quashing office order dated 29.08.2011 whereby services of the petitioner has been terminated w.e.f 30.08.2011 and for declaration that the action of the respondents in initiation of departmental proceeding and passing order of termination against the petitioner is ab initio void.
(2.) The facts, as disclosed in the writ application, in brief, is that in pursuance to the advertisement issued by Municipal Education Project Committee, the petitioner along with others applied for the post of Assistant Teacher and after going through the selection process, a merit list was prepared and vide decision dated 14.04.1975 four persons were appointed and it was decided, as and when vacancy would arise the name of the candidates shall be recommended for appointment. It has been averred that since the name of the petitioner was in panel, he represented before Chairman, Madhupur Municipality, accordingly, appointment letter was issued in favour of petitioner vide memo dated 03.09.1975 as Matric Science Teacher at Amar Sanskrit Unch Prathmik Vidyalaya, Madhupur and vide same memo another candidate Paresh Chandra Jha, was appointed initially for the period of three months, which was extended from time to time for the same period. However, later on, the services of the petitioner was confirmed w.e.f. 01.07.1976 to the scale of Middle Trained Teacher. It has further been averred after serving more than three and half decades, all of a sudden vide letter dated 06.01.2009, two members committee was constituted to enquire into the matter of appointment of petitioner, accordingly, enquiry report was submitted finding the appointment of the petitioner void ab initio and accordingly, departmental proceeding was initiated against the petitioner, which led to passing of impugned order of dismissal from services.
(3.) Learned counsel for the petitioner submitted that since the petitioner happens to be the District President of Teachers' Association, the District Superintendent of Education has got bias against the petitioner and submitted its report against the petitioner. Learned counsel for the petitioner submitted with vehemence that after 36 years of initial appointment, the respondents have alleged that the appointment of the petitioner was void ab initio whereas the petitioner has been regularized in the year 1976 as per Annexure 6 to the writ application. Therefore, initiation of the departmental proceeding at the fag end of service career is illegal. Learned counsel for the petitioner further submitted that the relevant documents were not supplied and basis of the enquiry by the D.S.E basing on which charges were framed, were not supplied to the petitioner. Learned counsel for the petitioner further submitted that second show cause notice was not considered and the pleadings made in this regard in the writ application has not been controverted by the respondents. Furthermore, the departmental proceeding has been initiated without affording any opportunity of hearing and without supply prejudicial documents so as to petitioner could put forth his case by way of filing effective show cause reply. It has been submitted that on the one hand, the enquiry officer himself admit that no document with respect to appointment of the petitioner was available for perusal for enquiry officer or disciplinary officer but on the other hand, a finding has been recorded that the initial appointment is void ab initio. Further, the enquiry officer as well as disciplinary authority has heavily relied upon typed copy of resolution of Madhupur Municipality, which is nothing but a forged documents. It has been submitted that the said documents were supplied after disposal of appeal under R.T.I Act, from bare perusal of which, it clearly manifests that appointment of the petitioner was made validly. So far as non-supply of documents is concerned, learned counsel for the petitioner referred to the judgments rendered in the case of Kashinath Dikshita v. Union of India & Ors. as reported in (1986) 3 SCC 229. Learned counsel for the petitioner further submitted that the entire departmental proceeding has been initiated by Mr. Shivendra Kumar, D.S.E. and final order has also been passed by the same person, meaning thereby he is judge of his own cause. In this regard, learned counsel for the petitioner referred to the judgment rendered in the case of Mohd. Yunus Khan v. State of U.P. & Ors as reported in (2010) 10 SCC 539. Equating the case of petitioner with one Paresh Chandra Jha, learned counsel for the petitioner submitted that he along with Paresh Chandra Jha was appointed as untrained Matric Science Teacher from the same penal prepared by the Madhupur Municipality, and said Paresh Chandra Jha died in harness and his son namely, Dilip Jha was given compassionate appointment, which was duly approved by the respondents but the petitioner has been ousted from services.;