KUMAR CHANDRA KANT SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE petitioner's father, late Chandra Sekhar Singh, was working as an Assistant Teacher in Kabir Keshaw Madhya Vidyalaya, Nawdiha, Hilsa (Nalanda) (A Government-aided-school) died on 21.3.1996. THE petitioner being the son made an application for his appointment on compassionate ground, the District Compassionate Appointment Committee made recommendations on 16.12.1996, certain instructions were sought, thereafter the Managing Committee of the school passed Resolution No. 3 on 2.7.1998 and issued the order of appointment on 4.7.1998. THE said appointment was approved by the District Superintendent of Education, Nalanda vide his letter No. 1968 dated 11.7.1998. THE Special Director, Secondary Education vide his letter No. 329 dated 3.2.1999 required sanction for fixation of salary and pay, no orders were received from the Government, therefore, the petitioner came to this Court in CWJC No. 16204/2001. THE petitioner made a submission that as he has been validly appointed in a Government aided School, the Government is obliged to provide certain funds to the school so that the salary to the petitioner is paid. THE respondents in their affidavits submitted that the father of the petitioner was a teacher in a Government aided School and for the reasons mentioned in the affidavit, consent of the Personnel Department was being obtained and as soon as the same was received necessary orders regarding pay fixation and payment of salary would be issued.

(3.) AFTER hearing the parties this Court must immediately observe that the petitioner came in CWJC No. 16204/2001 with a prayer that the petitioner be paid his salary. The issue before the High Court was that whether the petitioner is entitled to his salary or not. The respondents submitted before this Court that the matter pertaining to salary has been sent for consent of the Personnel Department and as soon as the consent is obtained the payment of the salary etc. would be made. The question of petitioner's appointment-whether it was valid or invalid or \void-ab-initio, was not in issue in Annexure-13.lf Annexure-13 was circumscribed only to the salary portion then taking an advantage from it the respondents could not be allowed to take further mileage by considering the question of appointment of the petitioner. The respondents, if wanted to take an action against the petitioner on the ground that his appointment was void-ab- initio then under the law the petitioner was entitled to show cause from the respondents. The respondents were obliged to inform the petitioner that for particular reasons in place of his father he could not be appointed as the policy of compassionate appointment is not applicable in Govemment-aided-Schools or an untrained person cannot be appointed either on regular or on compassionate basis. Unless a notice to show cause was issued to the petitioner the respondents could not issue such an order observing that the petitioner's appointment itself was bad. The respondents, in the opinion of this Court, were absolutely unjustified in issuing the order contained in Annexure-14. From a perusal of Annexure-14 it would appear that the respondents were alive to the fact that the writ petition, CWJC No. 16204/2001 was filed in the High Court because there was a delay in making the payment of the salary. If that was the issue and the respondents wanted to take further action against the petitioner then under the law they were obliged to issue a notice to the petitioner to show cause as to why his appointment itself be not disapproved as it runs contrary to the Government Circulars etc. The order contained in Annexure-14, Memo No. 1076 dated 28.6.2002 is hereby quashed. The respondents, if wish to consider the question of petitioner's appointment then they would be obliged to issue a notice to the petitioner to show cause. At this stage I must make it clear that the questions regarding the Circulars and their applicability are not taken into consideration by this Court because the writ application is disposed of on a short ground of non-issuance of the show cause notice to the petitioner. AFTER receiving the notice from the respondents, the petitioner would be entitled to raise all the pleas which are available to him under the law.