BRAJNANDAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two applications have been heard together and will be governed by this judgment. The two petitioners are Brajnandan Prasad and Harinandan Lal. Brajnandan Prasad was appointed as a temporary clerk in the Industries Department of the Government of Bihar on 18-9-1943. The appointment was temporary for one month with effect from 15-9-1943. Harinandan Lal was also appointed as a temporary assistant in the same department on 22-9-1943. Later on, 8-2-1949, these two petitioners were appointed to two temporary posts in the Upper Division in the said department. The appointment was made by means of an order, being Order No. 13S3, dated 19-2-1949. The order was in these terms:

(2.) He is further informed that the joint representation dated 3-7-1951, submitted by him has been rejected by Government. Sd/S. M. Ali Director of Industries, Bihar." The order stated, in effect, that the two temporary posts to which the petitioners were appointed with effect from 8-2-1949, were abolished with effect from 1-11-1952, and the services of the petitioners were accordingly terminated with effect from the forenoon pf that date. It appears that the peti- tioners were allowed to draw their subsistence allowance till 31-10-1952. The petitioners made certain representations against the order terminating their services; which representations were rejected. It is unnecessary in this case to state the details of these representations or to refer to certain orders alleged to have been made by the then Minister in charge of the Development Department. It has been stated on behalf of the State of Bihar opposite party 1, that the orders of the Minister relate to confidential documents regarding which the State of Bihar has claimed privilege. I do not think that those, orders have any bearing on the questions urged before us and I refrain from making any reference to them, 2. On behalf of the petitioners it has been contended that the termination of their services by the order dated 22-11-1952, is tantamount to their removal from service and such removal having taken place in violation of the rules governing their service, the order is bad and must be quashed. It has also been contended that the petitioners have been deprived of their statutory right under Clause (2) of Article 311 of the Constitution, and on that ground also the order is bad and should be quashed. Thirdly it has been contended that the order dated 22-11-1952 is a mere cloak or device, and the real purpose and effect of the order was to punish the two petitioners by reason of the criminal charge preferred against them, and the punishment was imposed without giving the petitioners any opportunity of defending themselves, even though they were subsequently discharged in the criminal case on 22-7-1953. Lastly, it has been contended that a discrimination has been made against the petitioners in the matter oi the abolition of the two posts, and that the order of suspension which was passed on 16-11-1949, with retrospective effect, was an invalid order because no order of suspension could be passed with retrospective effect. On these contentions the petitioners in the two cases have asked for a writ or a direction to cancel and set aside the two orders namely, the order of suspension passed on 16-11-1949, and the order dated 22-11-1952, terminating their services, and other consequential reliefs following therefrom.

(3.) The applications have been contested by the State of Bihar. The main contention of the State of Bihar is that the order suspending the petitioner and the order terminating their services were good orders validly made by the competent authority, and there are no good reasons for setting them aside. 3a. The principal question for determination is if the order dated 22-11-1952 terminating the services of the petitioners with effect from 1-11-1952, is a good order. I do not think that the validity of the order of suspension need be gone into in the present cases. The order of suspension was followed by the order terminating the services of the petitioners, and the petitioners admit that they got subsistence allowance in accordance with the rules up till 31-10-1952. If the petitioners think that the suspension order was invalid and they are entitled to their full salary from 15-11-1949, till 31-10-1952, they can surely bring a suit for the enforcement of their claim. I see no reason why the question of the payment of the full salary to the petitioners for the period of their suspension should be decided on the present writ applications.