JUDGMENT
S.B. Sinha, J.
1. This writ application is directed against the order as contained in Annexure-1 to the writ application confined in Memo No 10958-61 dated the 4th February 1985, whereby and whereunder, the petitioner was informed that her Service were being terminated as not required.
2. The aforementioned order was allegealy passed in view of the order passed by the Special Sunkay Education Department, Government of Bihar, as contained in this latter No. 3103 dated the 18th November, 1984 ‘
3. The facts of the case lie in a very narrow compass.
4. The petitioner was appointed as a teacher in the Primary School at Jistbar in the district of Dumka on May, 1973. The offer of appointment is contained in the annexure to the writ application. The petitioner-thereafter continued work as a teacher till the 30th November 197f However, thereafter, the impugned order dated the 11th February 1985 without assigning any reason whatsoever, was passed.
5. In this case, a counter-affidavit has been filed. Relevant portion there i.e. paragraph 3 of the counter-affidavit is as follows :-
That, in order to appreciate the facts of the case it is relevant to mention here that there is no provision of re-appointment of the petitioner in any rules and regulations of the department. The case of the petitioner is that she joined as Assistant Teacher on 2.5.73 and continued on the post as such till 30-11-76. After that on the lapse of years she suffers from tuberculosis, it is relevant to state here that no correspondence during this period was made by the petitioner, accordingly her services were terminated. It will also be relevant to mention here that the period of absence may be treated as extraordinary leave without pay or break in service but power of so being treated is vested in the directorate and not with the D.S.E.
In the said counter-affidavit, it has been further stated that in view of Circular No. 2060 dated 15 12.1981, a panel is required to be prepared by the District Education Establishment Committee and appointment is to be made from the said panel. As alleged in the said case no such direction was followed by the then District Superintendent of Education, Dumka, the State Government found the appointment of the petitioner to be illegal and passed the order of termination as contained in Annexure 1 to the writ application.
6. It is now well settled by a judgment of a Division Bench of this Court in Sabhana Das Gupta v. State of Bihar and Anr. that the services of an employee cannot be terminated for his/her continuous absence in terms of rule 76 of the Bihar Service Code as the said provision is itself ultra vires. In the said judgment, it has been held that before terminating the services of such employee on the ground of continuous absence or otherwise a departmental proceeding should be drawn up and the services of such employee can be terminated only thereafter. In the said judgment, it has further been held that continuous absence from duty itself may amount to misconduct.
7. In this view of the matter, as the petitioner evidently was appointed by an offer of appointment as contained in Annexure-2 to the writ application, her services could not have been terminated only because, allegedly, she was absent from duty for a long period, i.e., after the 30th November, 1976, till the 17th December, 1982. Although in Annexure-3 the petitioner was purported to have been re-appointed with effect from the 17th December, 1982, it must be held that she was allowed to rejoin her duty and the period during which she was absent would be treated as dies non.
8. Mr. G.C.P. Sinha. learned Junior Counsel to Standing Counsel No. 1, appearing on behalf of the respondents, in this connection, has relied on a Full Bench decision of this Court in the case of Binoy Kumar Bharti v. State 1984 B.B.CJ. 335. In my opinion, the aforementioned decision is not applicable to this ease. It is now well settled by various decisions of the Supreme Court that the services of an employee cannot be terminated on ipse-dixit of the employer. It has been further held by the Supreme Court in its various decisions that the services of a permanent employee cannot be terminated only on giving one month’s notice. Such a power has been held to be ultra vires Articles 14 and 16 of the Constitution of India.
Reference in this connection may be made to the cases of West Bengal State Electricity Board v. Desh Bandhu Ghosh and Ors. 1985 P.L.J.R. 9 S. C. Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguli and Anr. 1987 (35) B.L.J.R. 2 (S.C.) Sum, O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and Ors. 1986(53)F.L.R. 752 (S.C.) and M.K. Agarwal v. Gurgaon Gramin Bank and Ors. . In view of the aforementioned authoritative pronouncements of the Supreme Court of India, the impugned order as contained in Annexure-1 must be ex facie held to be illegal and without jurisdiction. Although in the counter-affidavit it has been mentioned that the petitioner’s appointment was legal but her re-appointment as contained in Annexure-3 is illegal, however from Annexure-1, it would be evident that the same has not been shown as the cause for termination of the services of the petitioner. Apparently, the impugned order as contained in Annexure-1 was issued on the ground that her services were not required.
9. The very fact that the services of the petitioner were terminated on the ground mentioned therein and upon service of one month prior notice, it must be held that the State of Bihar accepted her appointment to be a legal one. In this view of the matter, in my opinion, this writ application must succeed.
10. In the result, this application is allowed and the order as contained in Annexure 1 to the writ application is hereby quashed. But, in the circumstances of this case, there shall be no order as to costs.