IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4392 of 1997 AWDHESH TIWARI, S/O LATE KEDAR NATH TIWARI, R/O VILLAGE DEWRADH, P.S.-KUDRA, DISTRICT ROHTAS, AT PRESENT ASSISTANT TEACHER PROJECT GIRLS HIGH SCHOOL, DURGAWATI, IN THE DISTRICT OF ROHTAS. ………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, AMRAPALI BHAWAN, PATNA. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA DIVISION, PATNA. 4. THE DISTRICT EDUCATION OFFICER, ROHTAS. ……………RESPONDENTS. For the Petitioner : Mr. Bishnu Kant Dubey, Adv. For the State : Mr. Sanjay Kumar, G.P.- XV. ----------- P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J: Petitioner has filed this writ application praying therein for quashing of memo no. 917 dated 13.12.1996 (Annexure-11) issued under the signature of respondent Director, Secondary Education, whereby, pursuant to directions of this Court issued in CWJC No. 8095 of 1994, which the petitioner had filed earlier for giving him continuity of service and other benefits, by a reasoned order, he has held that petitioner is not fit to be continued in service and not entitled for grant of any other benefits. A consequential prayer has been made by the petitioner for a direction to the respondents not to interfere with his appointment and pay his salary, arrears as well as current, withheld since February, 1995. Facts placed before this Court by learned 2 counsel for the petitioner are that, by letter dated 24.6.1986, as contained in Annexure-1, the respondent Regional Deputy Director of Education (for short 'R.D.D.E.') approved the proposal of appointment of the petitioner on daily wages, in reference to the letter no. 682 dated 17.5.1986 of the District Education Officer (for short ‘D.E.O’). Accordingly, the respondent District Education Officer issued a letter to the Headmistress of Ram Janki Balika Uchh Vidyalaya, Sakari, Rohtas on 28.6.1986 (Annexure-1/A) whereby, in reference to the said letter of the respondent R.D.D.E., he directed her to accept the joining of the petitioner and inform him. It is contended that inspite of the said order of the respondent D.E.O. the Headmistress of the School did not accept the joining of the petitioner. He, therefore, represented the respondent authorities in this regard, repeatedly, and the last representation of the petitioner dated 29.3.1988 is annexed as Annexure-2 to the writ application. The D.E.O., in turn, reported the matter of non-acceptance of joining of the petitioner by the Headmistress to the respondent R.D.D.E. through his letter dated 16.5.1988 (Annexure-2/A) and R.D.D.E. reported the matter to the respondent Director through his letter dated 22.6.1988 (Annexure-3), alleging that the Headmistress was disobeying the orders of the higher authorities and is taking work from two named persons, violating Departmental Orders. Hence, he recommended for 3 appropriate action by placing her under suspension. It appears that during this period, the D.E.O. changed and the successor D.E.O. received representation from the petitioner in which the petitioner had cited one similar example of one Nandji Choubey. In view of the representation, the successor D.E.O., examined the records and he found that said Nandji Choubey had joined in the School concerned on the specific orders of the respondent R.D.D.E. He also found that there were no such records in his office on the basis of which decision could be taken in his respect from his own level. Therefore, through his letter dated 21.6.1989, the successor D.E.O. informed the petitioner that, till orders are received from the higher authorities, it was not possible for him to ensure the joining of the petitioner in the said Ram Janki Balika Uchh Vidyalaya, Sakari. However, subsequently the records were further examined by the said D.E.O. and finding the claim of the petitioner as true, pending approval by the respondent Director, he issued orders for reappointment of petitioner in Project Balika Uchh Vidyalaya, Nokha by Annexure-4/A dated 21.8.1989. It has been contended that the petitioner joined in the Nokha school during pooja holidays. But after reopening he was not allowed by the Headmistress of the said School to work in the School, as it appeared to the Headmistress that the said letter of posting of the petitioner in Nokha school was a forged 4 document. When the petitioner was not allowed to function in the said Nokha school, he complained this fact to the Collector, Rohtas, through Annexure-5, with copy of the same to the other respondents. It appears that the Headmistress of Nokha school also received a communication from the office of the respondent D.E.O., in which, she was informed that the said alleged letter of reappointment of the petitioner dated 21.9.1989 was a forged document. Therefore, she communicated the petitioner, through letter dated 18.10.1989 (Annexure-6), that she had received orders for rejecting his joining, which she formally did. It appears that, thereafter some communication was sent by the respondent D.E.O. to the Department in connection with the case of the petitioner. From the said communication it appeared that the appointment of the petitioner was made by a competent authority in accordance with law. Therefore, the Additional Director, through his letter dated 15.4.1991 (Annexure-7), issued instructions to the respondent D.E.O. to absorb the services of the petitioner in any other project school. This letter referred to two Government letters namely, no. 30 of 22.1.1982 and letter no. 705 dated 12.10.1982, in the light of which, it was stated, this instruction was being issued. Accordingly, Annexure-7/A dated 27.4.1991, an office order of the office of the respondent D.E.O. was issued by which the petitioner was posted and absorbed in project Girls High School, Durgawati. 5 Petitioner finally joined in pursuant to the said office order of the respondent D.E.O. in the said Durgawati School and started receiving payment. However, it appears that, petitioner, desiring to get his services counted w.e.f. 28.06.1986 itself, moved this Court through CWJC No. 8095 of 1994, for direction for grant of continuity of service to him from the date of his initial appointment by said order dated 28.06.1986. In view of the writ application filed by the petitioner, a report was called for from the respondent D.E.O., which was submitted by him to the respondent R.D.D.E., through his letter dated 17.2.1995 annexed as Annexure-8, in which he dealt with the entire history of appointment of the petitioner and sought for guidelines. The report was examined by the respondent R.D.D.E, who found that the appointment of the petitioner was not legal. Therefore, by letter dated 20.2.1995, he asked the petitioner to submit his explanation as to why his services may not be dispensed with in the light of the irregularities found in his appointment. Simultaneously, with this order, it is contended that, salary of the petitioner was also stopped. The pending writ application was therefore, disposed of vide order dated 31.8.1995, a copy whereof is annexed as Annexure-10 to the writ application, whereby, in view of the controversies in respect of appointment of the petitioner, this Court held that the same should first be decided by the Director, Secondary Education. 6 Therefore, the petitioner was directed to file a representation before the Director, who was directed to dispose it of within six months. Accordingly, petitioner filed a representation which was considered and by a speaking order (Annexure-11, impugned in this writ application) the same was rejected. Learned counsel for the petitioner drew the attention of this Court to Annexure-A with the counter affidavit and has submitted that after disposal of the writ application, the respondent D.E.O. had submitted another report on 27.4.1996 to the Director, in the light of the representation filed by the petitioner in terms of the orders of this Court. He submitted that in this report the respondent D.E.O. had committed an error of record in respect of the letter referred by the respondent R.D.D.E. in his order, contained in Annexure-1, by which, he approved the appointment of the petitioner on daily wages at the initial stage. He submitted that the letter which was considered by the respondent R.D.D.E., while issuing Annexure-1, was letter no. 682 dated 17.5.1986, whereas in his report he has referred to a letter no. 882 dated 30.6.1986. He submitted that due to this factual mistake the Director came to a wrong conclusion that there was no appointment of the petitioner by the respondent D.E.O. by the said letter no. 682 dated 17.5.1986, which was approved by the respondent R.D.D.E. by Annexure-1, and rejected the representation of the petitioner. In respect of the case of the petitioner he relied upon 7 an order of this Court passed in a batch of cases, annexed as Annexure-13 with the supplementary affidavit, in which this Court found that, so far as project schools taken over in the first phase in 1981- 82 are concerned, the earlier order of this Court finding that the D.E.O. was empowered to make appointment in such schools had become final. Lastly it was contended that, since the respondent D.E.O. has appointed the petitioner through letter no. 682 dated 17.5.1986, which was approved by the respondent R.D.D.E., the appointment of the petitioner was valid in law and, therefore, the rejection of the representation of the petitioner is fit to be quashed and the petitioner is fit to be allowed to continue in service with payment of salary, arrears as well as current. He also relied upon a wireless message from the compendium of Government circulars and orders dated 14th April, 1987 and contended that clear instructions had been issued to retain the services of the teachers in the project schools, appointed by the D.E.O. in regular service, and for payment of their salary. Thus, learned counsel for the petitioner submitted that the petitioner's initial appointment was itself valid and, therefore, he was entitled to be reinstated in service with all consequential benefits. Counter affidavits have been filed in this case. Learned counsel for the State submitted that the case of the petitioner was considered in detail by the Director and was rejected on the basis of the admitted 8 facts which showed that the initial appointment of the petitioner was itself void and, hence, he was not entitled to continue in service. He submitted that, from the very beginning the validity of the appointment was doubted by different authorities and, therefore, he was not allowed to join in the Ram Janki Girls High School. His letter of reappointment, namely, annexure 4/A was also found as forged and, therefore, his joining in Nokha School was also refused. Later on, it appears that, it was projected by the then D.E.O. in his report that appointment of the petitioner was valid, and under that mistaken impression orders were issued by Annexure-7 for adjustment of the service of the petitioner in any other project school. However, when petitioner filed representation before respondent Director for continuity of service w.e.f. 28.06.1986, in terms of the orders passed in his earlier writ application, the entire matter was examined threadbare and it was found that there was no valid appointment of the petitioner in the eye of law. He submitted that from the examination of the records, it transpired that the letter no. 682 dated 17.5.1986, referred to by the respondent R.D.D.E. in Annexure-1, was not an appointment letter issued by the respondent D.E.O. in respect of the petitioner, rather the said letter was only a forwarding of application of the petitioner to the respondent R.D.D.E. Therefore, there was no question of approval of appointment of the petitioner 9 by the R.D.D.E. which he wrongly did by Annexure-1. Under this mistaken impression the orders were wrongly issued by the D.E.O. vide Annexure-1/A for his appointment. Since the appointment of the petitioner by Annexure-1/A itself was invalid, there was no question of his reappointment which document was also found to be forged. The entire basis of claim having been found to be false, there was no question of his adjustment in Durgawati High School which was wrongly done under the mistaken impression that the petitioner had been appointed by a competent authority and in accordance with law, but had not been able to join his post. Learned counsel for the State further submitted that the judgment, as contained in Annexure- 13, relied upon by the learned counsel for the petitioner, is of no help to him, as the same notices the settled position in respect of power of D.E.O. to make appointment in project schools for 1981-82 scheme only, whereas on his own showing, the alleged appointment of the petitioner was in 1986. He also submitted that the wireless message relied upon by learned counsel for the petitioner was also of no help to him as it protected the appointments made by the D.E.O. prior to 13th February, 1985 only. Hence, on the date of the alleged appointment of the petitioner the respondent D.E.O. had no power to make appointments and there could be no approval of the same by the respondent R.D.D.E., even if it is assumed that the 10 respondent D.E.O. had, in fact, appointed the petitioner, which was approved by the respondent R.D.D.E., by Annexure-1, which in fact is not borne out from the records. Facts of the case shows that at one point of time the respondents believed that the appointment of the petitioner was by a competent authority and in terms of the Rules for such appointment. Therefore, the Additional Director under this misconception issued order, vide Annexure-7, for adjustment of the petitioner in some other school. Petitioner was accordingly adjusted in Durgawati High School by the order of the respondent D.E.O. dated 27.4.1991 (Annexure-7/A) and started getting his salary. However, petitioner was not satisfied with this. He moved this Court for continuity of his service with effect from 28.6.1996 the date on which the D.E.O. had issued order for his joining in Ram Janki Girls High School. This led to opening of the entire issue which stood closed by adjustment of the petitioner in Durgawati High School. It was the own over-ambition of the petitioner that gave an opportunity to the respondents, under the orders of this Court, to re- examine the case of the petitioner threadbare, which lead to the discovery that there was no valid appointment of petitioner in the eye of law. It was discovered that the letter no. 682 dated 17.5.1986, referred to in the letter of approval of the respondent R.D.D.E. (Annexure-1), was not a letter of 11 appointment of the petitioner by the respondent D.E.O., rather it was just a forwarding of application of the petitioner to the respondent R.D.D.E. Thus it was discovered that at no point of time the petitioner was appointed by the respondent D.E.O., even if, it is assumed that he had power to appoint. There is no material on record to show that appointment of petitioner was made pursuant to some advertisement and some process of selection. Therefore, the very approval by the respondent R.D.D.E. of so-called appointment of the petitioner was misconceived and without any authority of law. The judgment of this Court (Annexure-13), and the wireless message relied upon by learned counsel for the petitioner, makes the picture clear that the D.E.O. of the district was empowered to make appointment only in the project schools for 1981-82 scheme and the appointments made by the D.E.O. in such project schools on daily wages up to the cut-off date had only to be converted into regular service. Petitioner's alleged appointment by the D.E.O., if at all, was much beyond the cut-off date and the same was fraught with controversy from day one. Still petitioner’s lust brought him to this Court for claiming the same to be perfectly regular and valid appointment. Now that on the orders of this Court the entire matter was examined and it became clear that the petitioner had no valid appointment in the eye of law from day one, it was also not possible to allow him to continue in Durgawati High School, as 12 the order of his adjustment there was passed only under the wrong impression that his appointment had been made by a competent authority and in accordance with law and Rules of the Government, but some how or other he could not join his service earlier. Facts, finally discovered were otherwise. In the circumstances, the Director has rightly rejected the representation of the petitioner. This Court also does not find any merit in the claim of the petitioner that he was entitled to continue in service with payments of salary, arrears as well as current. As a result, this Court does not find any merit in the writ application and the same is dismissed. Patna High Court, The 26th March, 2010 N.A.F.R./Arvind (J. N. Singh, J.)