Kamini Kumari v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNALetters Patent Appeal No.1219 of 2023In Civil Writ Jurisdiction Case No.8020 of 2022 ====================================================== Kamini Kumari W/o Late Mohan Raut R/o- Ward No.12, G.M. Road, nearIncome Tax Chowk, P.S.- Darbhanga Sadar, District Darbhanga- 846004. Versus ... ... Appellant/s 1.The State of Bihar through the Additional Chief Secretary, EducationDepartment, Govt. of Bihar, New Secretariat, Patna.Department, Govt. of Bihar, New Secretariat, Patna. 2.The Director (Admn)- Cum- the Additional Secretary, Education Deptt.Govt. of Bihar, New Secretariat, Patna- Cum- the Disciplinary Authority.Govt. of Bihar, New Secretariat, Patna- Cum- the Disciplinary Authority. 3.The Deputy Director (Admn), Education Deptt. Govt. of Bihar, NewSecretariat, Patna.Secretariat, Patna. 4.The Director, Secondary Education Department, Govt. of Bihar, Patna. 5.The Treasury Officer, Darbhanga. 6.The Accountant General, Birchand Patel Path, Patna. ... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1249 of 2023 In Civil Writ Jurisdiction Case No.20610 of 2021 ====================================================== Sauda Khatun Wife of Md. Ashfaque Alam Resident of Millat Nagar, WardNo. 28, P.S. Araria, District- Araria. Versus ... ... Appellant/s 1.The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2.The Regional Deputy Director of Education -cum- the DisciplinaryAuthority, Purnea Division, Purnea.Authority, Purnea Division, Purnea. 3.The District Education Officer -cum- the inquiry Officer, Araria. 4.The District Programme Officer (Establishment), Education Department -cum- the Presenting Officer, Araria.cum- the Presenting Officer, Araria. ... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1252 of 2023 In Civil Writ Jurisdiction Case No.693 of 2022 ====================================================== Smt. Tara Singh W/o Baidyanath Singh, Resident of Village- Purab Bazar,Bhagwan Lal Gola, Ward No. 30, P.S. and District- Saharsa, Pin Code-852201. Versus ... ... Appellant/s 1.The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2.The Disciplinary Authority-cum-the Regional Deputy Director of Education,Koshi Division, Saharsa.Koshi Division, Saharsa. 3.The District Education Officer, Saharsa. 4.The District Programme Officer (Establishment), Saharsa-cum-thePresenting Officer.Presenting Officer. 5.The District Education Officer, Supaul-cum-the inquiry Officer. ... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1253 of 2023 In Civil Writ Jurisdiction Case No.439 of 2022 ====================================================== Smt. Meera Pathak Wife of Mr. Arun Kumar Jha Resident of Basghraha, P.O.-Vasudeopur, P.S.-Kotwali, Town and District- Munger. Versus ... ... Appellant/s 1.The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2.The Disciplinary Authority-cum-the Regional Deputy Director of Education,Munger Division, Munger.Munger Division, Munger. 3.The District Education Officer, Munger. 4.The District Programme Officer (Establishment), Munger- cum- the Presenting Officer. 5.The District Education Officer, Jamui- cum- the inquiry Officer. ... ... Respondent/s ====================================================== withLetters Patent Appeal No. 1254 of 2023InCivil Writ Jurisdiction Case No.439 of 2022 ====================================================== 1.Smt. Rita Rani W/o Sri Shyamdeo Bhagat, R/o Munger Road, Jamalpur,P.S.-Jamalpur, Dist.-Munger.P.S.-Jamalpur, Dist.-Munger. 2.Smt. Vimla Kumari W/o Kamlesh Prasad Gupta, R/o Bekapur, MayaurChowk, P.S.-Kotwali, Town and Dist-Munger.Chowk, P.S.-Kotwali, Town and Dist-Munger. Versus ... ... Appellant/s 3.The District Education Officer, Munger. 4.The District Programme Officer (Establishment), Munger- cum- the Presenting Officer. 5.The District Education Officer, Jamui- cum- the inquiry Officer. ... ... Respondent/s ====================================================== withLetters Patent Appeal No. 1254 of 2023InCivil Writ Jurisdiction Case No.439 of 2022 ====================================================== 1.Smt. Rita Rani W/o Sri Shyamdeo Bhagat, R/o Munger Road, Jamalpur,P.S.-Jamalpur, Dist.-Munger.P.S.-Jamalpur, Dist.-Munger. 2.Smt. Vimla Kumari W/o Kamlesh Prasad Gupta, R/o Bekapur, MayaurChowk, P.S.-Kotwali, Town and Dist-Munger.Chowk, P.S.-Kotwali, Town and Dist-Munger. Versus ... ... Appellant/s 1.The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2.The Disciplinary Authority-cum-the Regional Deputy Director of Education,Munger Division, Munger.Munger Division, Munger. 3.The District Education Officer, Munger. 4.The District Programme Officer (Establishment) Munger-cum-thePresenting Officer.Presenting Officer. 5.The District Education Officer, Jamui-cum-the inquiry Officer. ... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1257 of 2023In Civil Writ Jurisdiction Case No.2364 of 2023 ====================================================== Bansuri Acharya D/o Late Paresh Keshre Acharya, W/o Tridib TaranMukharjee, R/o Tripolia, BNR Road, Bairia, P.S. Alamganj, Patna 800007,presently residing at Subarnalata Apartment, 3rd Floor, Flat No. 5, 68 D DMondal Ghat Road, Dakshineshwar, P.S. - Dakshineshwar, North 24 Pargana,West Bengal - 700076. Versus ... ... Appellant/s 1.The State of Bihar Through the Chief Secretary, Govt. of Bihar, Patna. 2.The Disciplinary Authority cum the Regional Deputy Director of Education,Tirhut Division,Muzaffarpur.Tirhut Division,Muzaffarpur. 3.The District Education Officer, Vaishali- cum - the inquiry Officer. 4.The District Programme Officer (Establishment), Vaishali - cum - thePresenting Officer.Presenting Officer. 5.The District Education Officer, Muzaffarpur - cum - the inquiry Officer. ... ... Respondent/s ====================================================== Appearance :(In Letters Patent Appeal No. 1219 of 2023)For the Appellant/s: Mr.Purushottam Kumar Jha, AdvocateFor the Respondent/s: Mr.Sarvesh Kr. Singh (AAG-13) Mr.Ravi Kumar, Advocate Mr.Rajat Kumar Tiwary, Advocate Mr.Abhinav Alok, Advocate Mr.Arya Achint, AC to AAG-13 Mr.Tej Pratap Singh, AC to AAG-13 Ms.Sunita Kumari, AC to AAG-13For AG: Mr.Raj Nandan Prasad, Advocate Mr.Vishesh Kr. Singh, Advocate(In Letters Patent Appeal No. 1249 of 2023)For the Appellant/s: Mr.P.N. Shahi, Sr. Advocate Mr.Shivam, Advocate Ms.Deeksha Singh, Advocate Mr.Amit Anand, AdvocateFor the Respondent/s: Mr.Sarvesh Kr. Singh (AAG-13)(In Letters Patent Appeal No. 1252 of 2023)For the Appellant/s: Mr.Purushottam Kumar Jha, AdvocateFor the Respondent/s: Mr.Sarvesh Kr. Singh (AAG-13) Mr.Ravi Kumar, Advocate Mr.Rajat Kumar Tiwary, Advocate Mr.Abhinav Alok, Advocate Mr.Arya Achint, AC to AAG-13 Mr.Tej Pratap Singh, AC to AAG-13 Ms.Sunita Kumari, AC to AAG-13For AG: Mr.Raj Nandan Prasad, Advocate Mr.Vishesh Kr. Singh, Advocate(In Letters Patent Appeal No. 1253 of 2023)For the Appellant/s: Mr.Purushottam Kumar Jha, AdvocateFor the Respondent/s: Mr.Sarvesh Kr. Singh (AAG-13) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE HARISH KUMARCAV JUDGMENT(Per: HONOURABLE THE CHIEF JUSTICE) Date : 27-02-2024 The appeals arise from the common judgment of alearned Single Judge in analogous writ petitions. The petitionerswere teachers appointed in the early 1980s whose appointmentswere subject of an inquiry, conducted by the CBI, on directions ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE HARISH KUMARCAV JUDGMENT(Per: HONOURABLE THE CHIEF JUSTICE) Date : 27-02-2024 The appeals arise from the common judgment of alearned Single Judge in analogous writ petitions. The petitionerswere teachers appointed in the early 1980s whose appointmentswere subject of an inquiry, conducted by the CBI, on directions of this Court in a Public Interest Litigation (PIL). A report wassubmitted by the CBI and no action was taken. Again, a PIL wasfiled which led to further action against the teachers who werealleged to have been appointed illegally; in the CBI report. Thevarious punishments imposed were set aside, in some of thecases, finding the departmental inquiry initiated against each ofthem to be improper. By reason of the liberty left by this Courtto proceed afresh, the Department proceeded de novo against thesaid teachers. Many of them had retired, against whom, afterinquiry, punishment was imposed withdrawing their pension intoto. Those who were in employment at the time of the de novoinquiry were terminated from service. Both these categories ofpersons along with others who were issued with show-causenotices approached this Court with a number of writ petitions,all of which were rejected by the judgment impugned in theappeals. 2. The learned Single Judge had at the outsetcategorized the writ petitions into three; (i) those whosepensions were withdrawn in entirety, having retired fromservice, (ii) those who were terminated from service and (iii) theteachers who were issued with show-cause notices. Thecommon thread in the proceedings against all the petitioners, some of whom are the appellants herein, was the CBI inquiry.The impugned judgment which relied on the CBI inquiry report;which supported the allegations raised of illegal appointments,to find the penalty imposed to be perfectly in order, especiallywhen the illegal appointments were held to have interfered withand violated the rule of equality, a fundamental right guaranteedunder Articles 14 and 16 of the Constitution of India. Theappointments were found to be made in collusion, based onextraneous considerations, without proper advertisements, non-compliance of roster points, no transparent selection processhaving been carried out; all very compelling factors vitiating thevery appointments, was the finding. The appointments thusmade, by reason of the fraud employed, make suchappointments void ab initio according to the writ court. 3. Sri Purushottam Kumar Jha, learned counselappearing for the appellants would argue that the findings in theimpugned judgment are erroneous, misdirected and fail toreckon the principles and procedures which validate a properdepartmental inquiry. The mere reliance on the CBI reportwhich was kept in the back-burner for a number of years andwhich did not lead to registration of any FIRs was completelywrong. The inquiry initiated, after retirement did not follow the rules of procedure and hence the very initiation was flawed.After retirement there is no employer employee relationshipsubsisting. There was absolutely no evidence led at the inquiryand even the report was not marked in the inquiry as adocument. 3. Sri Purushottam Kumar Jha, learned counselappearing for the appellants would argue that the findings in theimpugned judgment are erroneous, misdirected and fail toreckon the principles and procedures which validate a properdepartmental inquiry. The mere reliance on the CBI reportwhich was kept in the back-burner for a number of years andwhich did not lead to registration of any FIRs was completelywrong. The inquiry initiated, after retirement did not follow the rules of procedure and hence the very initiation was flawed.After retirement there is no employer employee relationshipsubsisting. There was absolutely no evidence led at the inquiryand even the report was not marked in the inquiry as adocument. 4. The CBI report having not been marked in theinquiry, the reliance placed by the learned Single Judge on thesubmissions made before Court on behalf of the CBI, by theirCounsel was not in order. None of the legal contentions raisedagainst the inquiry conducted and the punishment imposed werelooked into by the learned Single Judge. Comparing the abovecase to other cases, where illegal appointments were made, towhich interference was caused by this Court, affirmed by theHon’ble Supreme Court; was irregular since the facts weredifferent and distinct. The allegations in the inquiry report aredemonstrated, by the documents on record, to be false. Theappellants are entitled to seek for resumption of their pensionwith arrears paid and those who were terminated, to bereinstated with all attendant benefits. The learned counselmeticulously took us through the various documents producedin the records, in the individual cases. 5. Learned AAG-13, Sarvesh Kumar Singh, on the other hand sought to uphold the judgment impugned, whichsustained the various penalties imposed. A proper departmentalproceeding was conducted, in which there was no violation ofprinciples of natural justice. The appointments interfered with,were found to have been carried out without properadvertisement in the local newspapers and without a transparentselection process. There was also no roster clearance obtained,all of which makes the subject appointments backdoor entries;void ab initio for not having conformed with Articles 14 and 16of the Constitution of India. State of Karnataka v. Umadevi (3)reported in (2006) 4 SCC 1 was specifically relied on along withvarious other decisions of this Court and the Supreme Court tosustain the penalties imposed. 6. The controversy arose by reason of a CBIinvestigation ordered by this Court. Though the same did notresult in any criminal case being instituted, the departmentproceeded with the domestic enquiries leading to thepunishments imposed. It is trite that criminal prosecution anddepartmental inquiry are parallel proceedings and often cannotbe mixed up. Proof beyond reasonable doubt is mandatory in acriminal prosecution, while departmental proceedings requireonly a preponderance of probabilities. The preponderance of probabilities leans in favour of the allegation of illegalappointments which resulted in the penalties imposed.Principles of natural justice cannot be put into a straitjacketformula and the learned Single Judge has found that the factscoming out from the inquiry is undisputed and the entireproceedings validates the commitment of the State Governmentto act against corruption, nepotism and ensure that there is nofrustration of the equality clause. The impugned judgment has tobe sustained, concludes the learned AAG. probabilities leans in favour of the allegation of illegalappointments which resulted in the penalties imposed.Principles of natural justice cannot be put into a straitjacketformula and the learned Single Judge has found that the factscoming out from the inquiry is undisputed and the entireproceedings validates the commitment of the State Governmentto act against corruption, nepotism and ensure that there is nofrustration of the equality clause. The impugned judgment has tobe sustained, concludes the learned AAG. 7. We do not intend to go merely on the basis of thedifferent categories of cases as placed before us. After hearingthe parties and after looking at the documents, we are convincedthat each of the cases have to be taken up separately and thefacts studied. The contention regarding a proper departmentalinquiry not having been carried out and the validity of aninquiry after retirement, are all common grounds which have tobe looked into, on the basis of the binding precedents. 8. Before that, we notice that it was in the year 1998that in CWJC No. 9847 of 1998 (Brajesh Kumar Singh andOthers vs. State of Bihar and Others), by an order dated16.12.2019, there was a direction to the CBI to carry outinvestigation in the matter of appointments/promotion of Assistant Teachers in the Lower Subordinate Education Service(for brevity ‘LSES’) (women wing) who were appointedbetween 1980 to 1988. The CBI submitted its report on09.11.2004 before the Chief Secretary, State of Bihar. 9. In the report, out of 305 teachers, only 27 werefound to be regularly appointed. Recommendation was made fortaking action against the illegally appointed teachers and alsoagainst those officers who made such appointments. Accordingto the CBI, the appointments were made withoutadvertisements, without roster clearance and without followingthe reservation rules. There was also allegation of over age andlack of required mandatory qualification raised against certainindividuals. The CBI did not register any FIR to put the criminallaw into motion and the State slept over the matter. 10. Only in the year 2016 when CWJC No. 10022of 2016 was filed the State woke up to the alleged illegality saidto have been committed by its own officers. In the writ petitionthe Principal Secretary and the other officers of the Departmentof Education were called upon to appear in person to put forth,the action taken by the State on the report of the CBI. Based onthe orders issued in the Public Interest Litigation, show-causenotices were issued and punishment imposed of termination, in some of the cases. 11. A batch of writ petitions were filed anddisposed of on 17.01.2017 in Shanti Kumari vs. State of Bihar& Ors., CWJC No. 17904 of 2016. The petitioners, some ofwhom are also the appellants in the instant appeals, were foundto be deprived of a reasonable opportunity to canvas theirrespective cases, produce relevant documents together withsupporting case laws. It was categorically stated that theobservations against the inquiry would not be a shield againstfurther proceedings when the appointments were said to havebeen plagued by fraud. The said liberty left to the departmentresulted in the present proceedings and the various penaltiesimposed. 12. Now we look at the individual facts. Theappellant in LPA No. 1219 of 2023 retired from the BiharEducation Service after long service, commencing from theappointment to the Lower Subordinate Education Service Cadre(‘LSES Cadre’ for short) as an Assistant Teacher on 01.08.1981.She retired as a District Program Officer (Accounts andPlanning) from the Bihar Education Service, Class-II, on31.01.2016. The memorandum of charges was framed on13.10.2016 after her retirement, for the alleged illegal appointment which took place in 1981. 12. Now we look at the individual facts. Theappellant in LPA No. 1219 of 2023 retired from the BiharEducation Service after long service, commencing from theappointment to the Lower Subordinate Education Service Cadre(‘LSES Cadre’ for short) as an Assistant Teacher on 01.08.1981.She retired as a District Program Officer (Accounts andPlanning) from the Bihar Education Service, Class-II, on31.01.2016. The memorandum of charges was framed on13.10.2016 after her retirement, for the alleged illegal appointment which took place in 1981. 13. The appellant in LPA No. 1252 of 2023 wasappointed as an Assistant Teacher in the LSES cadre on07.06.1988 and she retired from the same post on 30.11.2014.The memorandum of charge came to be framed against her on24.11.2021, after her retirement, for the incident which tookplace in 1988. 14. There are two appellants in LPA No. 1254 of2023, the first of whom was appointed as Assistant Teacher inLSES cadre on 29.02.1988 and retired from the said post on31.05.2017. After retirement, a memorandum of charge came tobe framed against the petitioner on 27.10.2018 for the incidentthat took place in 1988. The second appellant, Vimla Kumarialso was appointed as Assistant Teacher, in the LSES cadre on14.09.1981 and retired on 31.12.2017. She was also issued witha memorandum of charges after her retirement on 27.10.2018for the incident which took place in the year 1981; ie: her initialappointment. The above three writ petitions with respect to fourappointees in the present batch of cases, project & bring forth aconspectus of the proceedings initiated against the retiredteachers. 15. The three appeals are noticed first since in the first two appeals, the proceedings were first initiated afterretirement and in the last, though initiated while in service, thepunishment imposed was set aside by this Court and the de novoproceedings were commenced after retirement. These appealsare representative of the batch of appeals. 16. One of the main grounds raised against theaforesaid proceedings, is violation of Rule 43 (b) of BiharPension Rules, 1950. Rule 43(b) reserves the right of the StateGovernment to withhold or withdraw the pension or any part ofit, whether permanently or for a specified period along withright of ordering the recovery from a pension, of any pecuniaryloss caused to the Government. When the pensioner is found tobe guilty of grave misconduct or caused pecuniary loss to theGovernment by misconduct or negligence, the proviso to therule kicks in. The proviso prescribes that if proceedings are notinstituted when the government servant is on duty, then it shallnot be instituted without the sanction of the State Government.It is also provided that such inquiry shall only be in respect ofan event which took place not more than four years before theinstitution of such proceedings. Both these mandatoryrequirements, one of sanction, and the other, of an absolution forany incident prior to four years prior to retirement, are not complied with, is the compelling argument. 17. Admittedly, there is no sanction issued by theState Government and the illegal appointments alleged are farprior to the retirement; more than three decades beforeretirement, which recruitment and appointment are termedillegal. The allegation raised against the individual teachers, isof the appointment itself being vitiated for illegality. In thiscontext, we have to notice that earlier there was a proceedinginitiated before retirement which culminated, in this Courtinterfering with the penalty imposed at least in the case ofcertain teachers against whom the CBI adversely reported. complied with, is the compelling argument. 17. Admittedly, there is no sanction issued by theState Government and the illegal appointments alleged are farprior to the retirement; more than three decades beforeretirement, which recruitment and appointment are termedillegal. The allegation raised against the individual teachers, isof the appointment itself being vitiated for illegality. In thiscontext, we have to notice that earlier there was a proceedinginitiated before retirement which culminated, in this Courtinterfering with the penalty imposed at least in the case ofcertain teachers against whom the CBI adversely reported. 18. In understanding the contention with respect toSection 43(b), we have to look into the facts a little more, indetail. We will look at the writ petitions again to betterunderstand the appointments and the progression of service ofthe respective petitioners. C.W.J.C. No.8020 of 2022 gave riseto L.P.A. No. 1219 of 2023. It is seen from the records of thewrit petition that Bihar Education Manual, 1961 by clause97(xi) (Annexure-1) empowered the District Inspectoress ofSchools (for brevity ‘D.I’) to appoint teachers in the scale ofRs.50-90 or below, in the schools under the D.I’s Control and tosanction pension to all such cases. The scales of pay definitely would have undergone a change by the time the petitionersherein were appointed in the early 1980s. The power of D.I ofSchools to appoint teachers was reiterated in Memo No.1441dated 03.11.1979, as seen from Annexure-2, issued just prior tothe subject appointments. Annexure-4 is said to be theadvertisement brought out by the D.I of Schools in Madhubanidated 01.08.1981. The petitioner, who was registered with theemployment exchange, as is revealed from Annexure-3 wasappointed by Annexure-5 order dated 20.10.1981 and she joinedon 05.11.1981. 19. The appointment by Annexure-5 was confirmedby the Inspectoress of Schools-cum-Deputy Director ofEducation, Bihar as per Annexure-6 dated 20.10.1981. Theextracts of the service book of the petitioner produced asAnnexure-7, Annexure-8 and Annexure-9 evidences herpromotion to the Subordinate Education Services as Lecturerwith effect from 17.05.1990, her pay fixation thereat and herfurther promotion to the Bihar Education Services on11.04.2013. Annexure-10 and 11 are again the orders grantingher the first financial progression in service and her payfixation. 20. Annexure-12 indicates her retirement on 31.01.2016, later to which, Annexure-13 show-cause noticedated 29.05.2019 was issued. In the show-cause, a memo ofcharges dated 13.10.2016 and a reminder to show-cause noticedated 17.01.2017 were referred to; which thepetitioner/appellant submits was never issued to her.Immediately, we also have to notice that the memo of charges,in any event, was after the retirement, almost 10 months aftersuperannuation. Even after the issuance of notice underAnnexure-13, the Department kept mum till Annexure-17reminder was issued on 26.02.2021, wherein the memo ofcharges (Annexure-18) and the CBI report (Annexure-19) basedon which the accusation was raised, was issued to the petitioner.Annexure-21, is the final order withholding 100% of thepension under Rule 139 (c) of the Bihar Pension Rules. 21. It is on the above facts that the grounds raisedof violation of Rule 43(b) has to be considered. We have alreadynoticed rule 43(b) which goes to the root of initiation ofproceedings since the grounds raised are that, no sanction wasobtained from the Government and further that the incident onwhich the allegation is raised occurred at the initial appointmentof the petitioner, that is more than 3 ½ decades back. 22. There is one additional contention raised on Rule 139(c) for which we need to notice the said rule, which isextracted hereunder. 21. It is on the above facts that the grounds raisedof violation of Rule 43(b) has to be considered. We have alreadynoticed rule 43(b) which goes to the root of initiation ofproceedings since the grounds raised are that, no sanction wasobtained from the Government and further that the incident onwhich the allegation is raised occurred at the initial appointmentof the petitioner, that is more than 3 ½ decades back. 22. There is one additional contention raised on Rule 139(c) for which we need to notice the said rule, which isextracted hereunder. R139. (a) The full pension admissible under therules is not to be given as a matter of course, orunless the service rendered has been reallyapproved. (b) If the service has not been thoroughlysatisfactory, the authority sanctioning the pensionshould make such reduction in the amount as itthinks proper. (c) The State Government reserve to themselves thepowers of revising an order relating to pensionpassed by subordinate authorities under theircontrol, if they are satisfied that the service of thepensioner was not thoroughly satisfactory or thatthere was proof of grave misconduct on his partwhile in service. No such power shall, however, beexercised without giving the pensioner concerned areasonable opportunity of showing cause againstthe action proposed to be taken in regard to hispension, nor any such power shall be exercisedafter the expiry of three years from the date of theorder sanctioning the pension was first passed.” 23. In understanding the rigor of Rule 43(b) &139(c) we need only refer to the decision of the Hon’bleSupreme Court in State of Bihar v. Md. Idris Ansari 1995 Supp3 SCC 6. Paragraph 7 of the said judgment is extracted hereinbelow:- 7. A mere look at these provisions shows thatbefore the power under Rule 43(b) can be exercisedin connection with the alleged misconduct of a retired government servant, it must be shown thatin departmental proceedings or judicial proceedingsthe government servant concerned is found guiltyof grave misconduct. This is also subject to therider that such departmental proceedings shall haveto be in respect of misconduct which took place notmore than four years before the initiation of suchproceedings. It is, therefore, apparent that nodepartmental proceedings could have been initiatedin 1993 against the respondent under Rule 43(a)and (b), in connection with the alleged misconduct,as it is alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at leastsix years' old, Rule 43(b) was out of picture. Eventhe respondent authorities accepted this legalposition when they issued notice dated 27-9-1993.It was clearly stated therein that no action can betaken under Rule 43(b) of the Rules as the periodof charges has been old by more than four years. Itis equally not possible for the authorities to rely onthe earlier notice dated 17-10-1987 as proceedingspursuant to it were quashed by the High Court inWrit Petition No. 6696 of 1991 and only libertyreserved to the respondent was to start freshproceedings. The High Court did not permit therespondent to resume the earlier departmentalinquiry pursuant to the notice dated 17-10-1987from the stage it got vitiated. The respondent also,therefore, did not rely upon the said notice dated17-10-1987 but initiated fresh departmental inquiryby the impugned notice dated 27-9-1993.Consequently, it is not open to the learned advocatefor the appellant to rely upon the said earlier noticedated 17-10-1987. The above extract clearly interprets the provisionunder Rule 43(a) and (b) succinctly. In the present case, there is The above extract clearly interprets the provisionunder Rule 43(a) and (b) succinctly. In the present case, there is clear violation of Rule 43(b); in that no sanction is produced onthe part of the Government for the inquiry initiated afterretirement. The incident based on which the allegation is raisedalso relates back to the year 1980, when even the memo ofcharges, deemed as the first initiation of proceedings was dated13.10.2016. In this context, we also have to reiterate that theCBI inquiry was ordered in 1998, the report was before theGovernment in 2004, and proceedings were taken far later tothat. Again, the action was based on a direction issued by thisCourt in a public interest litigation, which specifically directedthat any proceedings taken would be in accordance with law. Itwas made clear that no termination of teachers shall take placepursuant to the notice of the CBI inquiry and without followingdue process of law, hence there cannot be a digression from theprocedure stipulated under the Bihar Pension Rules to proceedagainst the retired employees of the Government. 24. Now, we come to Rule 139 of the BiharPension Rules, which also has been interpreted in Md. IdrisAnsari (supra); paragraph 9 and 10 from the cited decision isextracted hereunder: - 9. So far as that rule is concerned, itempowers the State Authorities to decide thequestion whether full pension should be allowed toa retired government servant or not in the circumstances contemplated by the rule. The firstcircumstance is that if the service of thegovernment servant concerned is not found to bethoroughly satisfactory, appropriate reduction in thepension can be ordered by the sanctioningauthority. The second circumstance is that if it isfound that service of the pensioner was notthoroughly satisfactory or there is proof of gravemisconduct on the part of the government servantconcerned while in service, the State Governmentin exercise of revisional power may interfere withthe fixation of pension by the subordinate authority.But such power flowing from Rule 139, under theaforesaid circumstances, is further hedged by twoconditions. First condition is that revisional powerhas to be exercised in consonance with theprinciples of natural justice and secondly suchrevisional power can be exercised only within threeyears from the date of the sanctioning of thepension for the first time. A conjoint reading ofRule 43(b) and Rule 139 projects the followingpicture: 1. A retired government servant can beproceeded against under Rule 139 and his pensioncan be appropriately reduced if the sanctioningauthority is satisfied that the service record of therespondent was not thoroughly satisfactory. 2. Even if the service record of the officerconcerned is found to be thoroughly satisfactory bythe sanctioning authority and if the StateGovernment finds that it is not thoroughlysatisfactory or that there is proof of gravemisconduct of the officer concerned during hisservice tenure, the State Government can exerciserevisional power to reduce the pension but thatrevision is also subject to the rider that it should beexercised within 3 years from the date, an ordersanctioning pension was first passed in his favour by the sanctioning authority and not beyond thatperiod. 2. Even if the service record of the officerconcerned is found to be thoroughly satisfactory bythe sanctioning authority and if the StateGovernment finds that it is not thoroughlysatisfactory or that there is proof of gravemisconduct of the officer concerned during hisservice tenure, the State Government can exerciserevisional power to reduce the pension but thatrevision is also subject to the rider that it should beexercised within 3 years from the date, an ordersanctioning pension was first passed in his favour by the sanctioning authority and not beyond thatperiod. 10. So far as the second type of cases areconcerned the proof of grave misconduct on thepart of the government servant concerned duringhis service tenure will have to be culled out by therevisional authority from the departmentalproceedings or judicial proceedings which mighthave taken place during his service tenure or fromdepartmental proceedings which may be initiatedeven after his retirement in such type of cases. Butsuch departmental proceedings will have to complywith the requirements of Rule 43(b). Consequently,a retired government servant can be found guilty ofgrave misconduct during his service careerpursuant to the departmental proceedingsconducted against him even after his retirement,but such proceedings could be initiated inconnection with only such misconduct which mighthave taken place within 4 years of the initiation ofsuch departmental proceedings against him. In thepresent case, the respondent retired on 31-1-1993and the show-cause notice was issued on theground of grave misconduct on 27-9-1993 and noton the ground that service record of the pensionerwas not thoroughly satisfactory. It was issued bythe State Government as sanctioning authority. Ithad, therefore, to be read with Rule 43(b). Suchnotice therefore, could cover any misconduct ifcommitted within 4 years prior to 27-9-1993meaning thereby it should have been committedduring the period from 26-9-1989 up to 31-1-1993when the respondent retired. Only in case of such amisconduct, departmental proceedings could havebeen initiated against the respondent under Rule43(b). In such proceedings, if he was found guiltyof misconduct he could have been properlyproceeded against under Rule 139(a) and (b). Onthe facts of the present case it must be held, agreeing with the High Court that the notice dated27-9-1993 invoking powers under Rule 139(a) and(b) was issued wholly on the ground of alleged pastmisconduct and was not based on the ground thatservice record of the respondent was notthoroughly satisfactory. So far as that ground wasconcerned, on a conjoint reading of Rule 43(b) andRule 139(a) there is no escape from the conclusionthat as the alleged misconduct was committed bythe respondent prior to 4 years from the date onwhich the show-cause notice dated 27-9-1993 wasissued, the appellant authority had no power toinvoke Rule 139(a) and (b) against the respondenton the ground of proved misconduct. Consequently,it had to be held that proceedings under Rule 139were wholly incompetent. The High Court wasequally justified in quashing the final order dated13-12-1993 as there is no proof of such amisconduct. No question of remanding theproceedings under Rule 139(a) and (b) wouldsurvive as the alleged grave misconduct could notbe established in any departmental proceedingsafter the expiry of four years from 1986-87, as suchproceedings would be clearly barred by Rule 43(b)proviso (a)(ii). Consequently, the show-causenotice dated 27-9-1993 will have to be treated asstillborn and ineffective from its inception. Such anotice cannot be resorted to for supporting anyfresh proceedings by way of remand. For all thesereasons no case is made for our interference in thisappeal. In the result appeal fails and is dismissed.There is no order as to costs. 25. We have to notice that there are two situations 25. We have to notice that there are two situations provided under Rule 139 as per clause (b) and clause (c), wherethere can be a reduction of pension. Clause (b) comes into play when the service is found to be thoroughly unsatisfactory. Nosuch finding has been entered into any of the cases before us.Clause (c) relates to the power of revising an order of pensionby the State Government, on the order being passed of any sub-ordinate authority. Therein also, there should be satisfaction,either that the pensioners service was not thoroughlysatisfactory or that there was proof of grave misconduct on hispart, while in service. There is no allegation of unsatisfactoryservice raised against any of the appellants, we recall. There isalso no allegation of misconduct and what is alleged is anappointment having been obtained irregularly, which relatesback to more than three decades. The disciplinary inquiryinitiated itself is illegal for want of sanction and the incidentcomplained of being far earlier to that provided under Rule43(b); thus the initiation itself stands vitiated. The punishmentimposed under Section 139(c) is also not sustainable, going bythe Pension Rules. We have to set aside both the impugnedorders in C.W.J.C. No.8020 of 2022. 26. Now, we come to C.W.J.C. No.693 of 2022which gave rise to L.P.A. No.1252 of 2023. Therein, thepetitioner was appointed on 07.06.1988 for three months by theDistrict Schools Inspectoress under Rule 97(xi) of the Bihar Education Manual and on 14.10.1988, the School Inspectoress-cum-Deputy Director of Education granted extension and shecontinued till her retirement. 27. Annexure-A2 and A3, are the impugned ordersof financial progression and Annexure-A4 evidences herretirement on 30.11.2014, further evidenced by the PensionPayment Order (for brevity ‘PPO’)-(Annexure-5) issued on25.06.2015. Six and a half years later, a second show-causenotice dated 15.06.2021 wasissued and a reply was promptlyfiled by the petitioner as Annexure-A6 dated 28.06.2021. Thememo dated 24.11.2021 initiating the departmental proceeding,the memorandum of charges of even date and the CBI report areproduced in the writ petition as Annexures-11 to 13 respectively. 28.The disciplinary authority has issuedAnnexure-C, produced in the State’s Counter affidavit,withholding the pension of the petitioner, which is the order ofpunishment challenged by the appellant; producing the same asAnnexure-P1 dated 11.05.22 in I.A. No.01 of 2023 in the writappeal. The second show-cause notice dated 08.04.2022 and thepetitioner’s representation are also produced in I.A. No.01 of2023 as Annexure-P2 and P3. The illegality found in theinitiation of proceedings and the order passed, as found by us with respect to the appeal already discussed, applies hereinsquarely. The proceedings are found to be illegally initiated andthe order passed is also liable to be set aside and we do so. 29. C.W.J.C. No.439 of 2022 has been filed bythree retired teachers from the rejection of which, L.P.A.No.1254 of 2023 is filed by two of them. The initialappointment of the petitioners 1 and 2 were respectively on29.02.1988 and 14.09.1981. Earlier, departmental proceedingwas initiated against the petitioners and their services terminatedvide Annexure-10 and 11 orders, which was challenged inC.W.J.C. No.1576 of 2017, wherein final order was passed on21.02.2017 where the termination of the petitioner’s came to beset aside vide Annexure-12. Liberty was reserved to proceedagainst the petitioners but no proceeding was initiated beforetheir retirement respectively on 31.05.2017 and 31.12.2017. 29. C.W.J.C. No.439 of 2022 has been filed bythree retired teachers from the rejection of which, L.P.A.No.1254 of 2023 is filed by two of them. The initialappointment of the petitioners 1 and 2 were respectively on29.02.1988 and 14.09.1981. Earlier, departmental proceedingwas initiated against the petitioners and their services terminatedvide Annexure-10 and 11 orders, which was challenged inC.W.J.C. No.1576 of 2017, wherein final order was passed on21.02.2017 where the termination of the petitioner’s came to beset aside vide Annexure-12. Liberty was reserved to proceedagainst the petitioners but no proceeding was initiated beforetheir retirement respectively on 31.05.2017 and 31.12.2017. 30. Initiation of proceedings occurred by memo ofcharges dated 27.10.2018 against the two petitioners producedrespectively as Annexure-19 and 20. The orders of the DeputyRegional Director, Munger Division, under Rule 43(b) and139(c) of the Bihar Pension Rules issued, subsequent to thedisposal of the writ petition are produced respectively asAnnexure-P4 and P5 both dated 21.11.2023. The interpretation of Rules 43(b) and 139 of the Bihar Pension Rules squarelyapplies in the above case also. 31. We have to notice the Explanation to Rule 43which saves the application of the requirement, as per theproviso to the Rules for sanction or for the misconduct to be onecommitted within four years prior to retirement. TheExplanation deems valid, any disciplinary proceeding institutedby framing of charges or by putting the Government servantunder suspension, from an earlier date, as properly institutedfrom that earlier date. The appellants were not suspended beforeretirement. Though, disciplinary proceedings were initiatedprior to retirement, the punishment imposed was set aside. Denovo proceedings were permitted but despite opportunity so todo prior to retirement was available, no such proceedings wereinitiated till their retirement. The subsequent proceedingsinitiated hence, had to comply with the proviso to Rule 43(b).The proceedings are found to be illegally initiated and hence,the order of punishment also is liable to be set aside. 32. CWJC No. 2364 of 2023, was rejected fromwhich arises LPA No. 1257 of 2023. The petitioner wasappointed as a Music Teacher pursuant to the advertisementproduced at Annexure-2. Annnexure-2, provided for the maximum age of 30 years as on 01.04.1988. The petitioner’sdate of birth as revealed from the matriculation certificateproduced as Annexure-1 is 30.08.1959, and she had not attainedthe maximum age, as prescribed in the advertisement. Thepetitioner was appointed as per Annexure-4 and she was alsotransferred as per Annexures-5 and 6. The petitioner’s financialprogressions, in the post she was appointed, are indicated atAnnexures-7 and 8. 33. The Regional Deputy Director of Education,Tirhut Division, Muzaffarpur, issued Annexure-9 i.e. showcause notice dated 22.08.2016, enclosing the CBI report atAnnexure-10; which was a second show cause notice withoutany issuance of memorandum of charges. The petitionersubmitted her explanation as per Annexure-11, which wasignored and by Annexure-12 order she was terminated. 34. The petitioner, along with others who wereterminated approached this Court in CWJC No. 15713 of 2016(Prema Kumari & Anr Vs. The State of Bihar and Ors) whichwas allowed, with liberty left to proceed in accordance with law(Annexure-13). The judgment of the learned Single Judge, wasalso affirmed by a Division Bench as per Annexure-14. ByAnnexure-15 dated 20.02.2017 the petitioner was reinstated in 33. The Regional Deputy Director of Education,Tirhut Division, Muzaffarpur, issued Annexure-9 i.e. showcause notice dated 22.08.2016, enclosing the CBI report atAnnexure-10; which was a second show cause notice withoutany issuance of memorandum of charges. The petitionersubmitted her explanation as per Annexure-11, which wasignored and by Annexure-12 order she was terminated. 34. The petitioner, along with others who wereterminated approached this Court in CWJC No. 15713 of 2016(Prema Kumari & Anr Vs. The State of Bihar and Ors) whichwas allowed, with liberty left to proceed in accordance with law(Annexure-13). The judgment of the learned Single Judge, wasalso affirmed by a Division Bench as per Annexure-14. ByAnnexure-15 dated 20.02.2017 the petitioner was reinstated in se