IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1874 of 2004 1.Kedar Nath Sah, son of Hari Prasad Sah, resident of village Mahkhar, P.S. Bakhtiarpur, P.O. Simri Bakhtiarpur, District- Saharsa 2.Ram Prasad Yadav, son of Sri Binodi Yadav, resident of village Balha, P.S. Saharsa, District- Saharsa 3.Sheo Narayan Chaudhary, son of Late Anup Chaudhary, resident of village Sakra Paharpur, P.S. Bakhtiarpur, District- Saharsa 4.Ashok Kumar, son of Bindeshwari Prasad Sah, resident of village and P.O. Sonbarsa-Raj, District- Saharsa 5.Ashok Kumar Verma, son of Hariballabh Lal Das, resident of village Bargaon, P.S. Sonbarsa Raj, District Saharsa 6.Mahendra Sah, son of Mahabir Prasad Sah, resident of village Mahkhar, P.S. Bakhtiarpur, P.O. Simri Bakhtiarpur, District- Saharsa 7.Jamindar Sah, son of Asharafi Sah, resident of village Bharauli, P.S. Sahrsa, District- Saharsa 8.Dhanik Lal Sah, son of Sri Baldeo Sah, resident of village Mahkhar, P.S. Bakhtiarpur, P.O. Simri Bakhtiarpur, District- Saharsa 9.Sushil Kumar Yadav, son of Sri Dwarika Prasad Yadav, resident of village Mahakhar, P.S. Bakhtiarpur, P.O. Simri Bakhtiarpur, District- Saharsa …………… Petitioners Versus 1.The State Of Bihar 2.The Director, Primary Education, Bihar, Patna 3.The Regional Deputy Director of Education, Kosi Division, Saharsa 4.The District Superintendent of Education, Saharsa …………. Respondents ----------- For the Petitioners : M/s Siya Ram Shahi and Syed M.Ashraf, Adv. For the State : Mr.Prabhakar Tekriwal, G.A.-1 and Mr.Prabhat Kumar Singh, A.C. to G.A.1 ----------- 10. 03/05/2010 Heard learned counsel for the petitioners and learned Government Advocate No.1 for the respondents. Petitioners have filed this writ - 2 - application for quashing of Memo No.1737 dated 14.10.2003, annexed as Annexure-9 with the writ application, by which the Director, Primary Education has rejected the representation of the petitioners for grant of continuity of service and payment of their arrears of salary, which was filed before him pursuant to orders of this Court dated 20.11.2001 in C.W.J.C.No.12239 of 2001. By the impugned order, respondent Director has found that except for orders passed by the District Superintendent of Education, Saharsa contained in Memo Nos. 5002 and 5018 dated 17.6.1981, petitioners had adduced no other evidence in respect of their claim that they were appointed in the schools and their services were found valid and were approved. The said two orders, which were passed by the District Superintendent of Education, Saharsa are annexed as Annexures-5 and 5/1 with the writ application. Learned counsel for the petitioners has fairly submitted that, except for these two office orders issued from the office of the District Superintendent of Education, Saharsa, there is no other document available with them - 3 - or available on record to show that the petitioners were appointed in the respective schools prior to take over of the schools and they were found working by the Screening Committee which recommended for take over of their services. He submits that the said two office orders were issued by the respondent District Superintendent of Education pursuant to orders contained in letter nos. 3818 and 3822 dated 31.12.1980 issued from the office of the Director Primary Education. Therefore, the respondents were liable to pay salary of petitioners and grant them continuity of service and the representation of petitioners have been wrongly rejected by the impugned Annexure-9. Since the said two letters allegedly issued from the office of the Director, Primary Education were not available on record, learned counsel for the State was directed to seek instructions, get the said two letters located and produce them on records of this case. Inspite of repeated adjournments and opportunity granted to the learned counsel for the State, those letters have not come on record. Instead, a detailed counter affidavit - 4 - has been filed by the respondents, in which it is stated that after thorough enquiry it transpired that the said two letters had not at all been issued from the office of the Director, Primary Education. Learned counsel for the respondents has submitted that on the basis of said two office orders issued from the office of the District Superintendent of Education, petitioners have been agitating their claim before this Court for take over of their services since 1983 itself. He drew the attention of this Court to the orders passed in two writ applications, namely, C.W.J.C.Nos.1659 and 1670 of 1983 disposed of on 29.8.1983 and 20.8.1983 respectively, copies whereof are annexed as Annexures-1 and 2 with the writ application. Both the orders show that in 1983 itself, on the basis of said two orders issued from the office of the District Superintendent of Education, Saharsa, allegedly on the orders of the Director Primary Education dated 31.12.1980, they had raised their claim before this Court for absorption/regularization of their services and for other consequential benefits. The orders show that in those writ - 5 - applications, respondents had appeared and filed counter affidavit with a definite stand that those two letters of the Director, Primary Education never existed and they were never issued from the Secretariat. In view of this controversy, this Court in paragraph 10 of both the orders observed as follows : “10. It is made clear that any observation made above with regard to the genuineness or non-genuineness of the signature of the Director, Primary Education, Bihar, Patna on the letter dated 31.12.1980 is not binding upon the respondents and it will be open to the appropriate authorities to take such legal steps against the petitioners as would be open to them. It will be open to the appropriate authorities to make a full fledged enquiry with regard to the genuineness and non genuineness of the signature of the Director, Primary Education, Bihar on the aforesaid letter and after due enquiry, if it is found that the signature of the Director, Primary Education on the aforesaid letter in question is a forged one, the appropriate authorities may, if so advised, take such steps against the petitioners as are available to them and will pass appropriate orders only after issuing proper show cause and after giving a reasonable opportunity to the petitioners of being heard.” Both the writ applications were allowed with identical observations in paragraph 10 of the judgments. Pursuant to the said observations of this Court, notices were issued - 6 - to the petitioners and after hearing them, order dated 12.11.1983 was issued by the Director, Primary Education, as contained in Annexure-3, by which appointment of the petitioners were ordered to be terminated and the District Superintendent of Education was directed to pursue criminal case lodged against petitioners. Said order was challenged by the petitioners in C.W.J.C.No.5901 of 1983. Respondents appeared in that case and filed their counter affidavit, and it was stated that full fledged enquiry was held, report of which was annexed with the counter affidavit, in which it was found that no such letter of the Government existed and therefore, appointments of the petitioners were not found genuine and valid. It was also said that a criminal case had been instituted against the petitioners for producing forged and fabricated appointment letters. In view of such stand of the respondents, the writ application was dismissed vide order dated 3.12.1992, as contained in Annexure-4. However, this Court observed that `in case criminal case lodged against petitioners is decided in their favour, - 7 - petitioners shall be at liberty to raise all the points which have been raised in the writ application before an appropriate forum available in law’. From Annexure-6 it appears that the trial against petitioners ended in their acquittal by order dated 9.2.1999 in which trial court found that since the said alleged forged and fabricated letters of the Government had not been produced, charges could not be held proved. After the order of the trial court was passed in favour of the petitioners, they filed representation before the Director on 16.6.1999, a copy whereof is annexed as Annexure-7. Representation of the petitioners having not been disposed of, they moved this Court again through C.W.J.C.No.12239 of 2001. The said writ application was disposed of by order dated 20.11.2001, as contained in Annexure-8, with a direction to the petitioners to file a representation before the Director, Primary Education within a period of three weeks and who was directed to dispose of the same within a period of two months thereafter. It was observed that if the petitioners desire to be heard in person or through their counsel, they should be granted permission for the same. - 8 - Pursuant to the said order, petitioners filed representation before the Director, Primary Education, which has been rejected by the impugned order, contained in Memo No.1737 dated 14.10.2003. Learned counsel for the petitioners submits that the office orders of the office of the District Superintendent of Education show that the same were issued confirming their services pursuant to the orders of the Director, Primary Education. He submits that prima facie the same were in accordance with law. Therefore, if the respondents disputed the genuineness of the said two letters of the Director, Primary Education, onus was on them to produce the letters and satisfy this Court that the letters were forged and fabricated. He submits that the respondents not having done that, this Court should accept the orders issued from the office of the respondent District Superintendent of Education as genuine and having been issued on genuine and valid orders of the Director, Primary Education, should accept that the petitioners were validly absorbed in service and therefore they should be held entitled for payment of consequential - 9 - benefits. Learned counsel for the respondents submits that existence of the said two letters allegedly issued from the office of the Director, Primary Education is denied by the respondents since 1983 itself. He submits that, inspite of best efforts of the respondents, no record of the Department has been traced out to show that the said two letters were issued from the office of the Director, Primary Education. He submits that since the said two letters were not in existence, and there was no record to show that the same were issued from the office of the Director, the same could not be produced in the trial and therefore, charges against petitioners, of having obtained confirmation of their service on the basis of forged and fabricated documents, failed. Learned counsel for the respondents has referred to a document, annexed as Annexure-D with the counter affidavit filed on behalf of respondent no.2 the Director, Primary Education on 28.4.2010. The document shows that in view of the said claim raised before this Court by the petitioners in 1983 itself, the Director, Primary Education, who was holding the post at - 10 - the relevant time i.e. in December, 1980, was asked to certify as to whether the said letters were issued under his signature or not. By this Annexure-D, in 1983 itself, the then Director, Primary Education clearly certified that the said two letters, namely, letter nos.3818 and 3822 dated 12.1.1980 were not issued from his office. He lastly submitted that in view of serious dispute with regard to existence of those two letters and specific denial from 1983 onwards at every stage that the said two letters did not exist, orders passed by the District Superintendent of Education vide Annexures-5 and 5/1 issued on the basis of the said alleged letters of the Director, Primary Education, cannot be treated as valid so as to give a right to the petitioners to be treated as absorbed in the service of the Government on take over of the schools with continuity of service and other consequential benefits. Considering the submissions of learned counsels for the parties and after going through the documents produced on record, this Court is of the view that it is not possible for this Court to accept the claims of the petitioners only on the basis of said two - 11 - office orders issued by the respondent District Superintendent of Education, Saharsa, as contained in Annexures-5 and 5/1. Petitioners were aware of the dispute and denials of respondents in the matter from 1983 itself. Still, till today they have not produced any contemporaneous document to show that they were appointed in the schools by their Management prior to take over, they continued in schools at the time of their take over, their names were considered by the Screening Committee which had taken up the matter of take over of the schools, accepting their existence in the schools and making any comments, in their favour or otherwise, in its report. It is true that if a document is in exclusive possession of a party, onus is on that party to produce the same. Learned counsel for the petitioners submits that since the alleged letters of the Director, Primary Education were addressed and sent to the respondent District Superintendent of Education, Saharsa, petitioners cannot be called upon to produce the same and failure of which cannot be made basis for rejecting the claims of the petitioners. However, when the - 12 - existence of the said letters is being denied by the respondents since 1983 itself, it was incumbent upon the petitioners to produce any contemporaneous document to establish their existence in the schools at the time of take over and that their cases, at any point of time, were considered by the authorities thereafter. There being not a single contemporaneous or collateral document in support of Annexures-5 and 5/1, these two solitary documents in the form of office order of the District Superintendent of Education, Saharsa, cannot be treated as sufficient and conclusive to establish their right. In the circumstances, this Court does not find any merit in this writ application and the same is accordingly dismissed. Pradeep/ ( J.N. Singh, J.)