Judgment

DUA, J. :- This appeal is by special leave and is directed against the order of the High Court of Judicature at Patna dated September 3, 1965 dismissing the appellant s writ petition.

2. The appellant, a teacher of Araria Higher Secondary School was dismissed from service by the Managing Committee of the said school at a meeting held on February 27, 1958 on a charge of misappropriation of school money. On appeal by him the President of the Board of Secondary Education, set aside the order of dismissal by order dated April 22, 1960 and directed his reinstatement in service. By the same order of reinstatement a further direction was given that the appellant should be paid full salary, dearness allowance and increment from the date of his suspension till the date of reinstatement after adjusting the amount already paid. When this order was received by the Managing Committee it was obeyed so far as the reinstatement of the appellant is concerned but the Managing Committee requested the President of the Board of Secondary Education "to review the whole matter specially with regard to the payments for the period of suspension". The President by his order dated February 25, 1961, reviewed the matter and modified his earlier order made on appeal by providing that the appellant would be entitled only to subsistence allowance for the period of his suspension. That decision was conveyed by the Secretary, Board of Secondary Education to the District Education Officer in letter no. 2799-100-1 dated February 25, 1961 which reads :

"With reference to your letter No. 957, dated 29th July, 1960, I have, under orders of the President to say that you direct the Managing Committee of the Araria High School, to treat the period during which Shri Sayeed-Ur-Rahman remained off duty, as period of suspension and pay him subsistence allowance according to the rules."

It is not disputed before us that this order was made without affording the appellant any hearing. After the said order the appellant is said to have made several representations to the President of the Board but reconsideration of the order dated February 25, 1961, was declined and it was reiterated that the appellant was entitled only to subsistence allowance during the period of suspension. That order was conveyed by the Secretary, Board of Secondary Education to the appellant as per communication no. 233/4A-97-58 dated January 18, 1964 which reads :

"With reference to your representation dated 27the December, 1963, I have to state that the President, Board of Secondary Education, Bihar had been pleased to order that Shri Sayeedur Rahman should be paid subsistence allowance only during his suspension period. The order cannot be revised now."

It is not disputed that this order was also made without affording any hearing to the appellant.

3. The appellant thereupon filed an application under Arts. 226 and 227 of the Constitution in the High Court of Judicature at Patna in which it was contended on his behalf that the President of the Board of Secondary Education could not modify the earlier order dated April 22, 1960 without giving to the petitioner an adequate opportunity of being heard. The High Court considered this argument to be without merit because according to an earlier Bench decision of the High Court in Liladhar Jha v. Board of Secondary Education, Patna. 1963 BLJR 880 the President as appellate authority was empower only direct reinstatement of a dismissed teacher and had no jurisdiction to make any order with regard to the payment of any arrears due to him. Though the correctness of this decision was questioned before the High Court by the counsel representing the appellant in that Court the Bench hearing the writ petition did not consider it to be a fit case for reference to a larger bench to re-examine the view taken in the case of Liladhar Jha (supra). On this view the High Court held the order of the President of the Board of Secondary Education dated April 22, 1960 dir