RAM CHANDRA PRASAD SINHA, J.

1. In this writ application the petitioners have prayed for quashing the order contained in Memo No. 3577–3601 dated 13th July, 1981, issued under the signature of the District Superintendent of Education, Gopalganj (Respondent No.2) terminating the services of the petitioners as well as ordering them to deposit the entire amount of salaries received by them in Treasury, a true copy of which has been annexed as Annexure 4 to this writ application.

2. The petitioners have challenged the validity of Annexure 4 mainly on two grounds firstly, that Annexure 4 has not been passed by the competent authority and secondly that the order contained in Annexure 4 is penal in nature, but before passing the order, no opportunity either to explain or to show cause was given to them.

3. Petitioner No.1 was appointed by the competent authority as an assistant teacher in the primary school vide Memo No. 4096 dated 30th of April, 1966, a true copy of which has been annexed as Annexure 1 to this writ application. In pursuance of Annexure 1, petitioner No. 1 joined Uchhya Prathmik Vidyalaya, Nandpur, Anchal Basantpur, in Siwan district on 11.5.1966. At the time of initial appointment, he was only a Matriculate, but after his appointment, he passed the Sahitya Bhusan Examination from Hindi Vidyapith, Deoghar, in the year 1970 as a private candidate, and thereafter in the year 1980, he passed Bachelor of Arts Examination from the Gopalganj College as a private candidate from the Bihar University. He also claimed to have received training under the UNISEF scheme from the Teachers Training College, Bangra–Jalalpur. True copy of the certificate of the aforesaid training bas been annexed as Annexure 2. Thereafter the Petitioner No.1 was transferred to several schools and at Present he is posted in Harijan Prathmik Vidyalaya, Mirganj.

4. Petitioner No.2 was appointed as Middle pass assistant teacher by the District Superintendent of Education, Saran, vide Memo No. 20029 dated 31st October 1970 and she was posted in Prathmik Vidyalaya Nandpur, Anchal Basantpur, in the district of Siwan, where she joined on 16.12.1970 and 4 since then she has been teaching and was transferred in different schools. Lastly, she was transferred in Harijan Prathmik Vidyalaya, Mirganj and where she is still working. After her appointment, she claimed to have passed Uttar Madhyama examination from Kameshwar Singh Sanskrit University, Darbhanga, in the year 1971. While both the petitioners were working as assistant teachers in the aforesaid Harijan Prathmik Vidyalaya, Mirganj, the order contained in Annexure 4 was passed without giving them any opportunity of show cause/explanation.

5. Counter–affidavit has been filed on behalf of the respondents, in which, inter alia it has been asserted that the impugned order has been passed after obtaining permission from the Chairman. Appointment Committee (District Magistrate) and the District Education Officer, Gopalganj on the ground that the certificates of the petitioners were found to be forged. According to the allegation in the counter–affidavit, the petitioners were appointed on the basis of fake and forged certificates. It has further been alleged that since the appointments of the petitioners were by the District Superintendent of Education he was competent to take disciplinary action with the approval at the Chairman of the Establishment Committee which was done in this case.

6. Learned counsel appearing on behalf of the petitioners has submitted that since the school in which the petitioners were working as assistant teachers was taken over by the employees of the State Government by virtue of section 4 of the Bihar Non–Government Elementary Schools (Taking over of Control) Act, 1976 (hereinafter to be referred to as 'the 'Act') and they should not have been dismissed from service without giving an opportunity of showing cause/explanation as it has been done in this case.

7. The taking over of the