(1.) By this writ application the petitioner challenged the order passed in appeal by the Chief Secretary, Government of Bihar dated 19.9.02 (Annexure-1). By the said impugned order, upon the petitioner's giving an undertaking that the order of compulsory retirement as passed in terms of Rules 74(a) and 74(b)(2)(H) of the Bihar Service Code (Annexure-4) was withdrawn and substituted by other set of major punishments and the same was prayed to be quashed by an amendment petition which amendment was allowed. Petitioner has also challenged the original order dated 26.2.02 (Annexure-4) by which in terms of Rule 74(a) and Rule 74(b)(2)(ii) of the Bihar Service Code petitioner was asked to retire compulsorily with effect from 28.2.02 as he was not found fit to be continued in service. Counter affidavit has been filed to which rejoinder has been filed. Thereafter, further counter affidavit and today a second supplementary counter affidavit has been filed.
(2.) Heard the parties and with their consent the writ application is being disposed of at this stage itself.
(3.) At the very outset, I may notice and mention that in the counter affidavit in paragraphs 14 and 18 it was stated on behalf of respondents and an objection was taken by the respondent as against the petitioner moving this Court under Article 226. It was stated in the counter affidavit that the act of the petitioner in moving the present writ application itself amounted to in subordination resulting in misconduct for which appropriate proceedings would be taken up, this Court by the very first order being order dated 1.9.03 had observed, the desirability of the State to file a further affidavit withdrawing the aforesaid submissions. The reason apparently was that any attempt to stop a person from seeking his constitutional remedy on threat of disciplinary proceeding amounts to criminal contempt as has been held by the Constitution Bench of the Apex Court in the case of Pratap Singh V/s. Gurubakesh Singh, 1962 AIR(SC) 1172. Regrettably though, three counter affidavits have been filed, but the said submission has not been withdrawn rather in the last counter affidavit, which was filed today, similar statement is recorded. However, in fairness to the learned counsel for the State when this fact was brought to his notice by the Court, he fairly conceded and agreed that let it be recorded that State would take no such action against the petitioner for having moved the constitutional forum for redressal of his grievance. This matter is thus closed.