IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7104 of 2005 YOGENDRA PRASAD MANDAL,son of Late Suba Lal Mandal, resident of village- Beloukhra, P.O. Thumha, P.S. Pipra, District-Supaul …………….. Petitioner Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education, Bihar, Patna having his office at New Secretariat, Patna 3. District Collector, Supaul 4. District Superintendent of Education-cum- SDEO (then), Saharsa 5. District Superintendent of Education, Supaul 6. Sub-Divisional Education Officer, Supaul …………… Respondents ------------ For the petitioner:- M/S Birendra Prasad Verma, Sr. Advocate, Yogendra Kumar, Dr. M.K.Gautam and Dinesh Pandey, Advocates. For the Respondents: Mr. Jagganath Singh, J.C. to G.P.IX ------------- 9. 18.11.2008 The petitioner seeks quashing of the order contained in memo no. 1448-10 Supaul dated 17.12.2004 (Annexure-20) issued under the signature of the District Superintendent of Education-cum-Sub- Divisional Education Officer, Supaul by which the services of the petitioner on the post of Assistant Teacher of Primary School, Chiknapatti has been terminated from the date of his appointment itself on the ground that the order of approval was found to be forged during the course of enquiry and further direction has been issued for recovery of entire amount received by the petitioner towards his salary, etc. on the basis of the said forged order of approval. The petitioner further seeks a direction upon the respondent-authorities to allow him to continue on the post of Assistant Teacher till the date of his superannuation and restrain them from making recovery of any amount paid to him towards salary, etc. - 2 - The petitioner claims to have been appointed as an Assistant Teacher by the then duly constituted Managing Committee of Lower Primary School, Chiknapatti which school was a Government aided school and he joined on 1.5.1970. It is stated that he was working on the post of Assistant Teacher as matric untrained. The said school was taken over by the respondent-State under the provisions of the Bihar Non-Government Primary School (Taking Over Control) Act, 1976 by order dated 9.7.1973. However, the service of only one teacher was recommended and taken over but not that of the petitioner on the ground that he was matric untrained. Subsequently, a policy decision was communicated by the State Government by letter dated 26.6.1975 wherein it was decided to recognize the services of such untrained teachers who had been appointed up to 1971. Such teachers, however, were required to undergo training in terms of the said policy decision. On the basis of the representations submitted by the petitioner, recommendation is said to have been made by the Block Education Extension Officer, Raghopur (South) by his letter dated 4.10.1980 in his favour and on the basis of the same the District Superintendent of Education, Saharsa also wrote on 25.11.1980 to the Deputy Director of Education (Primary Education), Bihar, Patna requesting to issue appropriate direction for taking over the services of the petitioner as Assistant Teacher. It is the case of the petitioner that on the basis of the further joint representation made by the petitioner and other teachers reports were sought from the Regional Deputy Director of Education, Saharsa and ultimately by letter no. 2898 Patna dated 28.11.1988 - 3 - (Annexure-10) the respondent-Director (Primary Education)-cum- Additional Secretary granted recognition to the services of the petitioner as Assistant Teacher of the school in question with certain conditions, from the date of issuance of the said letter in which it was also directed that the petitioner will be paid matric untrained scale with other admissible allowances. It is further claimed by the petitioner that the Regional Deputy Director of Education, Koshi Division, Saharsa sought verification of the said letter dated 28.11.1988 along with certain other letters from the Directorate and by letter contained in memo no. 1492 dated 24.7.1989 (Annexure-11) issued by the Deputy Director (Primary Education), Bihar, Patna as many as 63 letters were verified in which letter no. 2898 dated 28.11.1988 (Annexure-10) was at Sl. No. 13. It is alleged that the matter thereafter remained pending for nearly seven years during which also certain enquiries were made by the lower level authorities and ultimately by letter dated 13.5.1995 issued by the District Collector, Supaul the claim of the petitioner along with certain other teachers of the District was accepted. By the consequential order dated 7.7.1995 issued by the District Superintendent of Education, Saharsa direction was issued for payment of salary to the petitioner as matric untrained teacher in the pay scale of 975-1450 with certain conditions with effect from 13.5.1995. Since no salary was paid to the petitioner for the earlier period after the order of approval dated 28.11.1988 was issued vide Annexure-10, the petitioner filed CWJC No. 10151 of 1997 before this Court along with another teacher praying for payment of salary from the - 4 - date of appointment and for other consequential reliefs. In the said case it is stated that a counter affidavit was filed on behalf of the District Superintendent of Education, Supaul in which the stand of the petitioner for payment of salary for earlier period was refuted but by order dated 17.2.1999 this Court disposed of the writ application with a direction to the District Superintendent of Education to pay the petitioner’s salary if not already paid from the date of approval of the services of the petitioner by letter dated 28.11.1988. The said direction of this Court not having been complied by the respondent-authorities, the petitioner filed MJC No. 4145 of 1999. The District Superintendent of Education, Supaul vide letter dated 15.1.2002 sought a direction from the Director, Primary Education in the matter upon which the Director, Primary Education issued letter dated 31.1.2002 and another letter dated 12.7.2002 stating that the letter of approval dated 28.11.1988 (Annexure- 10) was not issued by the Directorate and it was a forged one. In the light of the letter dated 12.7.2002 the District Superintendent of Education issued letter dated 1.3.2004 asking the petitioner to show cause as to why his services be not terminated on the ground that letter regarding approval was not issued from the Directorate which was duly replied by the petitioner. Thereafter the respondent-D.S.E. not being satisfied with the said show cause reply, issued another show cause notice dated 13.9.2004 directing the petitioner to show cause within a week as to why his services be not terminated and necessary action be not taken against him. The petitioner again replied to the said show cause and pointed out the letter dated 24.7.1989 (Annexure11) by which the genuineness of - 5 - letter dated 28.11.1988 (Annexure-10) had been verified. However, by the impugned order dated 17.12.2004 the services of the petitioner were terminated from the date of appointment on the ground that it had been made on the basis of forged approval letter. By the said impugned order it was also directed to recover the entire amount received by the petitioner as salary during the period on the basis of such forged appointment. Learned counsel for the petitioner submits that the services of the petitioner are governed by the State Elementary Teachers (Transfer and Discipline) Rules, 2002, Rule 18 of which provides for initiation of disciplinary proceedings if it is decided to impose any punishment upon any teacher and Rule 21 lays down the punishment that could be imposed. It is submitted that a major punishment in terms of the said rule can only be imposed on the basis of a departmental proceeding in which he has been given an opportunity to defend himself. It is argued that such rights also flow to the petitioner by virtue of Article 311 (2) of the Constitution and the punishment of termination of the petitioner’s services cannot be imposed without holding such a departmental proceeding against the petitioner. It is urged that no such departmental proceeding was conducted in the matter and merely on the basis of the aforesaid two show cause notices the services of the petitioner have been terminated. It is further contended by learned counsel for the petitioner that the letter of the Director coming to a conclusion that the earlier order dated 28.11.1988(Annexure-10) is forged one is not based - 6 - upon any enquiry and merely on the ground that the said letter cannot be traced out and therefore it is forged. It is also sought to be argued that the power under the impugned order has wrongly been exercised by the District Superintendent of Education since under Rule 21(4) and (5) power to award major punishment can only be exercised by the Deputy Development Commissioner. In support of the proposition that the services of the petitioner could not have been terminated except after holding a full scale departmental proceeding, learned counsel for the petitioner relied upon two separate learned Single Judge decisions in the case of Ugra Nath Jha Vs.The Administrator, BISCOMAUN and anr. : 1998(1) PLJR 129 and in the case of Vijay Kumar Srivastava Vs. State of Bihar & ors.: 2003(2) PLJR 460. In Ugra Nath Jha’s case it was held in para 5 of the judgment as follows:- “Further, in my opinion, if the respondents wanted to impose major punishment they should have held a regular enquiry and given liberty to the petitioner to adduce his evidence. If they wanted to rely on any report or material which was obtained after the submission of the show cause and expalanation orally furnished by the petitioner, in all fairness, copies should have been given to him so that he could explain them. In the above premises, the impugned order cannot be sustained.” In Vijay Kumar Srivastava’s case it was held in paragraph nos. 8 to 10 as follows:- “8. Again in the case of Ugra Nath Jha Vs. The Administrator, Biscomaun and another (1998(1) Patna Law Journal Reports, 129) this court held that regular inquiry is necessary, where major punishment is to be imposed even if the rules do not specifically provides for the same. - 7 - 9. In the case at hand, requirement of law, as noticed above has not been followed nor any opportunity was given to the petitioner to adduce evidence when a major punishment was imposed upon him. 10. Considering the facts and circumstances of the case and the legal propositions aforementioned, the order of punishment, as contained in annexure- 12, is not sustainable in law.” In the counter affidavit filed on behalf of respondent no.5, District Superintendent of Education, Supaul, the stand taken is that the appointment of the petitioner was illegal since it had not been approved by the Director, Primary Education, Bihar as so called approval letter no. 2898 dated 28.11.1988 (Annexure-10) was not issued by the office of the Director, Primary Education, Bihar, Patna and the same was forged and fabricated. It was also claimed that the petitioner cannot rely upon the verification letter no. 1492 dated 24.7.1989 (Annexure-11) because the same was issued not by the Director, Primary Education, Bihar but by his subordinate the Deputy Director, Primary Education, Bihar. The further stand is that at the time of filing the counter affidavit on behalf of District Superintendent of Education in the previous CWJC No. 10151/1997 the aforesaid facts had not come into light and therefore the counter affidavit was filed on the basis of the aforesaid approval letter dated 28.11.1988 and accordingly the said writ petition had been disposed of with a direction to pay salary from the date of approval; but when the contempt petition was filed the deponent, District Superintendent of Education sought guidelines from the Director, Primary Education, Bihar through his letter dated 31.1.2002 whereupon the Director, Primary Education, Bihar, Patna informed that - 8 - so called approval letter dated 28.11.1988 is not issued from the office of the Director and the same is forged. Another letter was also issued by the Director on 12.7.2002 in this regard. On the basis of the said two letters the matter was reported by the Respondent no. 5 to the Deputy Development Commissioner, Supaul for further action and the same was further referred to the District Magistrate, Supaul for taking action against the petitioner. Thereafter the show cause dated 1.3.2004 was issued which was replied by the petitioner by his explanation dated 5.4.2004. The said explanation was considered and the matter was placed before the District Establishment Committee which considered the same and again the second show cause notice dated 13.9.2004 was served upon the petitioner to which he submitted reply and the matter was again placed before the District Establishment Committee on 27.11.2004 which held that since the approval letter was found to be forged and on the basis of the same the petitioner somehow got appointed and was able to get salary his services would be terminated and also resolved to recover the salary already paid to him. Accordingly, the impugned order dated 17.12.2004 under the signature of the District Superintendent of Education, Supaul has been issued. It is also pointed out that when the said facts were brought to the notice of this Court in MJC No. 4145/1999, the petitioner’s plea could not find favour with this Court and accordingly on the prayer of learned counsel for the petitioner, the application was dismissed as withdrawn by order dated 15.10.2003 of this Court. In view of the respective stand taken by the parties, - 9 - regarding genuineness of the letter no. 2898 dated 28.11.1988 (Annexure-10) and its so called verification by letter no. 1492 dated 24.7.1989, (Annexure-11) this Court called for the two original files from which the said letters were purported to have been issued and the said two files along with other connected files of this case were produced by the Department. On a perusal of the said two files as well as the other connected files, it is evident that the alleged letter no. 2898 dated 28.11.1988 has not been issued from the file from which it is purported to have been issued, namely, file no. 9-Wa3-93/88 nor letter no. 1492 dated 24.7.1989 has been issued from the file no. 8/Wa3/417/88 from which the latter letter is purported to has been issued. Further from the said two files and other connected files it is evident that there is no reference to the consideration of the case of the petitioner in the said files and thus, the plea of the respondent-authorities cannot be lightly brushed aside. Besides, it is rightly contended by the respondents that the subsequent verification letter dated 24.7.1989 (Annexure-11) has not been issued by the Director (Primary Education), who is the alleged author of the letter dated 28.11.1988 (Annexure-10). That being the situation, the present matter would come within the category of an appointment having been obtained on the basis of fraud, forgery, crime and illegality. In such circumstances, no constitutional rights under Article 311 of the Constitution can flow in favour of the petitioner and he cannot claim that the same is a matter of dismissal from service on the ground of any misconduct committed by him while in service. His very appointment would thus be no - 10 - appointment in the eye of law and cannot entitle him to the benefit of Article 311 or the Service Rules which provide for holding of a full scale departmental enquiry for imposing any major punishment. In fact, what is sought to be done in the present matter is a cancellation of the alleged illegal appointment obtained by the petitioner on the basis of such fraud or forgery for which no requirement of either Article 311 or of service Rules regarding holding of departmental enquiry would come into play. The aforesaid propositions have clearly been laid down by a Division Bench of this Court in the case of Ishwar Dayal Sah Vs. The State of Bihar and ors.: 1987 BBCJ 48, in para 12 of which it has been held as follows:- “If the very appointment or the threshold entry into the service or the very holding of the civil post is put in issue, the rights under Article 311 cannot possibly arise. To put it tersely, the pre-requisites of Article 311 is a valid and lawful membership of a service or the holding of a post. If the very appointment thereto is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional right under Article 311 can possibly flow from such a tainted force. In such a situation the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311. To put it picturesquely, a person must first validly and lawfully crossed the threshold to enter the arena of the civil service of the State or the Union to claim the umbrella or shelter of Article 311. If the very entry or the crossing of the threshold is put in issue and the door is barred against him, the cloak of protection, under Article 311 is not attracted or available.” The issue was again examined by a Full Bench of this Court in the case of Rita Mishra and others Vs. Director, Primary Education,Bihar & ors.: AIR 1988 Patna 26, in the context of the claim - 11 - by certain Assistant Teachers for entitlement to payment of salary to them for the works done despite the fact that their letters of appointment were forged, fraudulent or illegal. In paragraph nos. 13,15, 17A and 30 of the said judgment it has been held as follows:- “13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if his very appointment is rested on forgery, no statutory right can flow from it. 15. To sum up on this aspect it seems somewhat plain that where the letter of appointment is a forgery and the appointee is a party and privy to the same, no substantive right of salary would arise, however, long the person may have fraudulently worked on the post in actuality. To my mind, no legal right can stem from a crime herein because of the original factum of forgery. Such a person is not an employee at all and far from being a public servant in the eye of law. 17-A. It is unnecessary to multiply authority and there is no dearth thereof that fraud would thus vitiate even bilateral rights arising from a contract. Once it is so held rights springing from law and status and the high pedestal of public employment having a statutory base deserve even greater protection and sanctity. Consequently, it must be held in no uncertain terms that where source of the right is rooted in fraud or established dubious considerations, no right stricto sensu for salary could arise and far less be enforceable by way of mandamus in the writ jurisdiction. 30. Now once it is so that even a calculated and designed suppression of material facts in the writ jurisdiction would non-suit the petitioners then it seems the more so that where the stand of the respondent State is that the claim is based on a punishable crime like forgery or fraud, the lis cannot be gone into in the writ jurisdiction.” The view taken by this Court in the above Division - 12 - Bench and Full Bench decisions have been approved by the Supreme Court in the case of R. Vishwanatha Pillai Vs. State of Kerala and others: (2004) 2 SCC 105, para 15 of which is quoted below:- “This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the scrutiny committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of law. He cannot claim a right to the post as he had usurped the post meant for a reserve candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment, he cannot claim the Constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate, he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.” It is evident from a consideration of the facts of the present case that they are fully covered by the law laid down by the aforesaid Division Bench and Full Bench decisions of this Court and that - 13 - of the Supreme Court in Vishwanatha Pillai’s case (supra). When an appointment is based upon fraud, forgery, crime or illegality, no rights can be claimed by such an employee as a public servant or as one holding a civil post under the State. Hence, there can be no question of the application of the provisions of Article 311 of the Constitution or the Service Rules to hold full scale departmental enquiry before a major punishment is imposed upon the public servant. Such rights can only flow to a person whose entry into the service is on the basis of a valid appointment. Where the appointment itself is void from its inception, it is open to the authorities to cancel the same on grounds which have been held in numerous decisions of this Court and the Supreme Court, as valid and legal for the said purpose including fraud, forgery, crime or illegality. In such circumstances, no benefit can be derived by the petitioner from the cases of Ugra Nath Jha or Vijay Kumar Srivastava which were based on entirely different facts and circumstances in the context of misconduct committed in the course of service by regular employees of the State or semi-government body. Thus, on a consideration of the entire facts and circumstances of the case and in the light of the above discussions, this Court does not find it a fit case for interference in its writ jurisdiction. It is accordingly dismissed. S.Pandey (Ramesh Kumar Datta, J.)