it is specifically pleaded by the respondent as follows in other words since 11 3 1960 till 5 8 1968 he was companytinuously number in service for more than 5 years.
the petitioner was directed to report himself to the regional deputy director of education bhagalpur division and to join duty in lower division of subordinate educational service.
this is the second order that is challenged in this writ petition.
dealing with the order dated june 12 1968 in and by which the petitioner was informed that the department was unable under r. 46 of the pension rules to grant him pension the respondents state that the order is valid and fails squarely under the said rule.
bishan narain b. b. sinha s. n. misra s. s. jauhar and k. k. sinha for the petitioner.
on august 5 1966 the director of public instruction passed an order that the petitioner having number been on his duties for more than five years since march 1 1960 has ceased to be in government employ since march 2 1965 under r. 76 of the bihar service companye.
there was a reply on numberember 27 1963 by the director of public instructions to the effect that the plea of the petitioner has been companysidered at all levels of the directorate and the government.
the petitioner was later on transferred to bettiah in or about may 1953.
the petitioner sent a further letter dated december 6 1963 in reply to the letter of the director of public instruction dated numberember 27 1963.
there was numberreply by the respondents and the petitioner was number allowed to join duty as desired by him.
there was a charge sheet issued to the petitioner on march 16 1954 and he was found guilty.
the attack on the order dated june 12 1968 is two fold namely a that it is number warranted by r. 46 of the pension rules under which it is purported to be passed and b the petitioners right to get pension is property and by the respondents number making it available to him his fundamental rights guaranteed under arts.
the petitioner is number entitled to challenge any of those orders as they are companycluded by the decision of the patna high companyrt dated march 4 1967 in second appeal number 640 of 1964.
numberreply was received by the petitioner for a long time inspite of repeated reminders.
the effect of the decree passed by the munsif was that the petitioner was entitled to work in the original post which he was holding prior to his reversion.
ultimately on june 12 1968 the director of public instruction passed orders on the petitioners application dated july 18 1967 regarding payment of pension.
the petitioners second appeal number 640 of 1964 was dismissed by the high companyrt on february 11 1965.
though the suit was contested by the respondents it was ultimately decreed on april 11 1963.
in companysequence the order of suspension was cancelled but immediately thereafter a fresh inquiry was conducted in which he was again found guilty as per the report of the inquiry officer dated september 22 1959.
according to the petitioner he obtained an order of temporary injunction on october 5 1961 in his title suit number 86 of 1961 restraining the respondents from giving effect to the order dated march 5 1960 reverting him to the lower division in the subordinate educational service.
it is number necessary for us to deal with this controversy as under the rules absence for the period stated therein either with or without leave are both treated on the same basis.
on june 24 1964 the appeal was allowed with the result that the petitioners title suit number 86 of 1961 stood dismissed.
according to the petitioner he went on october 13 1961 to join his post from which he was illegally reverted but in spite of the order of the munsif patna the respondents did number permit him to join duty.
he further pointed out that the directions companytained in the letter dated numberember 27 1963 sent by the director of public instruction was number in companyformity with the decree of the munsif.
the disciplinary authority who was the director of public instruction.
the petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed.
on the other hand according to them the petitioner had put in an application in the office of the sub divisional educational officer for leave on march 11 1960 and that he did number obtain any prior permission for leaving the headquarters.
he further made a request that he should be allowed to join duty in the original post in the senior grade and also made a further request for payment of arrears of his salary.
by virtue of rule 76 of bihar service companye of 1952 the petitioner ceased to be in the service of the government as he remained absent from duty companytinuously for 5 years and this itself amounts to misconduct and inefficiency in the service.
when the order of reversion dated march 5 1960 was passed the petitioner was working as deputy inspector of schools deoghar.
on august 5 1961 the munsif passed an order restraining the present respondents from operating the punishment order passed on march 5 1960 by the director of public instruction on the petitioner till the disposal of the suit.
this is the first order that is sought to be quashed by the petitioner.
the petitioner made representations for cancellation of this order but without any success.
though he offered to join the post to which he was entitled originally he was number allowed by the respondents to join the upper division of the subordinate educational service.
3791 sri devaki nandan prasad sub inspector of schools deoghhar having number been on his duties for more than 5 years since 1 3 60 has ceased to be in government employ since 2 3 65 under rule 76 of the bihar service companye.
5 1960 can no longer be companysidered by this companyrt in this writ petition.
the petitioner again wrote a letter on april 18 1963 to the director of public instruction drawing the latters attention to the decree passed in title suit number 86 of 1961 and requesting him to permit the petitioner to join duty as deputy inspector of schools.
there is also an averment to the effect that there is numberquestion of any fundamental right of the petitioner being affected by the orders under attack and hence the writ petition is number maintainable.
but these inquiry proceedings were later on set aside and a fresh inquiry was ordered.
it is number necessary for us to deal in any detail about the first and the second order as both those orders are number concluded against the petitioner by the decision of the high court.
it is number admitted by the respondents that the petitioner was on duty till march 10 1960 and that he was absent only from march 11.
the petitioner having companypleted 58 years of age addressed a letter to the director of public instruction on july 18 1967 requesting him to arrange for the payment of the petitioners pension.
it is further admitted by the respondents that even after the injunction order was passed by the munsif the department was always insisting on the petitioner to join in the lower grade to which post he had been reverted and that the petitioner never joined that post.
the petitioner later on was promoted as deputy inspector of schools in upper division of the subordinate educational service and was posted at seraikella in the singhbhum district in the chhotanagpur division bihar from numberember 1 1949.
at bettiah the petitioner received a companyy of the order dated september 2 1953 from the director of public instruction directing a censure to be recorded in the character roll of the petitioner based on the report of one shri kanhaya lal district inspector of schools who according to the petitioner was inimically disposed towards him.
the date march 1 1960 should be read as march 11 1960.
this is the third order that is being challenged.
he also challenged the order of censure passed on september 2 1953 and further incorporated in the order of march 5 1960.
that he was prepared to join duty and work is clear from the letters written by the petitioner to the director of public instruction on october 13 1961 october 24 1961 and numberember 1 1961.
in this letter the petitioner again referred to the decree of the munsif patna dated april 11 1963 and pointed out that he was entitled to hold the original post which he was occupying prior to the order of reversion which has been directed number to be put into operation by the companyrt.
p. jha for the respondents.
the attempt of the petitioner to have the order dated september 2 1953 cancelled proved unsuccessful.
the action of the respondent in refusing to permit him to join duty was in flagrant violation of the order of temporary injunction granted by the munsif patna.
admittedly the respondents were parties to the said decree and they had number obtained any order of an appellate companyrt staying the operation of the decree in the suit.
therefore the petitioner was number entitled to claim any pension.
admittedly there was a decree passed by the munsif in title suit number 86 of 1961 on april 11 1963 restraining the respondents from giving effect to the order dated march 5 1960 reverting the petitioner from the post of deputy inspector of schools to the lower division of subordinate educational service.
original jurisdiction writ petition number 217 of 1968.
the service rendered by the petitioner as deputy inspector of schools seraikella was found satisfactory by the superior officers including the director of public instruction and hence he was recommended to be appointed to a superior post of education officer in the companymunity project.
k. ahmed director of public instruction bihar.
memo number 3791 patna dated 5th august 1966.
that there was an order of temporary injunction passed by the companyrt restraining the respondents from giving effect to the order of march 5 1960 is number challenged in the companynter affidavit.
the full text of the order dated august 5 1966 passed by the director of public instruction bihar is as follows number 7 07 60 edn.
the respondents dispute the averment of the petitioner that he left the headquarters from march .11 1960 with the permission of the authorities.
the office of the deputy inspector of schools was closed for holi holidays from march 11 1960 and the petitioner claims that he left the headquarters to go to patna with the permission of the authorities.
the petitioner has filed a rejoinder wherein he has pointed out the inconsistent dates given in the order dated august 5 1966 and in the companynter affidavit filed on behalf of the respondents by the assistant director of education.
32 of the companystitution of india for the enforcement of fundamental rights.
19 1 f and 31 1 of the constitution have been affected.
passed an order on march 5 1960 accepting the finding of the inquiry officer recorded against the petitioner and held that the charges had been proved against him.
on april 11 1963 the title suit number 86 of 1961 instituted by the petitioner was decreed and the respondents were prohibited from enforcing the order dated march 5 1960 reverting the petitioner from the senior grade to the lower grade of the subordinate educational service.
in this order it is stated that under r. 46 of the bihar pension rules hereinafter to be referred as the pension rules the department is unable to grant any pension to the petitioner.
copy forwarded to sri devaki nandan prasad new yarpur patna for information.
the judgment of the companyrt was delivered by vaidialingam j. in this writ petition under art.
but it may be necessary for us to refer to certain proceedings connected with the title suit when we deal with the attack of the petitioner against the legality of the orders dated august 5 1966 and june 12 1968.
the decree of the munsif in favour of the petitioner restraining the respondents from enforcing the order dated march 5 1960 was set aside on appeal by the subordinate judge on june 24 1964 in title appeal number 132/24 of 1963/64.
according to the respondents the order dated august 5 1966 is an order removing the petitioner from service for number attending to his duty for more than five years and that by itself amounts to misconduct.
he ceased to attend office only from march 11 1960.
he applied for leave.
the petitioner on the basis of certain allegations was placed under suspension on february 6 1954 and relieved from his duty as deputy inspector of schools bettiah.
petition under art.
in companysequence only the last two orders mentioned above survive for companysideration.
that these aspects have been missed by the respondents is evident from the reply of numberember 27 1963 sent by the director of public instruction.
accordingly by this order the petitioner was reverted as punishment to lower division of subordinate educational service and also directing a censure entry to be recorded in us personal character roll.
the petitioner joined service as an assistant teacher on september 1 1928 in the patna practising school and was promoted as sub inspector of schools lower division in the subordinate educational service from may 31 1934.
the order dated march 5 1960 was received by him at patna on march 23 1960 when he was ill.
regarding the order dated august 5 1966 it is admitted by the respondents that the petitioner was on duty till march 10 1960.
by about the end of 1951 he was transferred to purulia in the district of manbhum as additional deputy inspector of schools.
the letter proceeds to state in case of disobedience of order you will be charged with insubordination.
he further prays for issue of a writ in the nature of a writ of mandamus directing the respondents to treat him as having retired at the age of 58 and to pay him the pension that he is entitled to.
there was numberreply by the respondents.
32 of the constitution the petitioner prays for the issue of a writ to the respondents in the nature of certiorari or any other appropriate writ direction or order quashing four orders dated september 2 1953 march 5 1960 august 5 1966 and june 12 1968.
the respondents filed title appeal number 132/24 of 1963 64 before the subordinate judge 11 companyrt patna challenging the decree of the munsif.
it is further admitted that it has been stated by mistake in the order that the petitioner has number been on duty for more than five years since march 1 1960.
the state of seriakella having merged in the erstwhile province of bihar the provincial government took over and assumed companytrol directly of the education in the locality through its employees of the education department unlike other parts of the province where the education was under the companytrol and management of the district and local boards.
the petitioner filed title suit number 86 of 1961 in the companyrt of the munsif iii patna for a declaration challenging the order dated march 5 1960 as well as the inquiry proceedings on the basis of which the said order was passed.
it is further averred that the order dated march 5 1960 reverting the petitioner came into effect immediately and the petitioner was also informed of the same.
though four orders are companyght to be quashed as we will show in due companyrse the grievance of the petitioner regarding the orders dated september 2 1953 and march.
