IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5360 of 2006 Bimala Devi, wife of late Om Prakash Singh, resident of Matiara, P.O. Bhojpatti via Sarai, P.S. Sarai, District Vaishali … Petitioner Versus 1. The State Of Bihar through Chief Secretary, Old Secretariat Building, Patna 2. The Director-in-Chief, Health Services, Bihar, Patna 3. The Regional Dy. Director, Health Services, Muzaffarpur 4. The Civil Surgeon, Hajipur at Vaishali 5. The District Leprosy Officer, Hajipur at Vaishali 6. The Incharge Medical Officer, Primary Health Centre, Mahua … Respondents ---------------------------------- 9. 3.8.2011 Heard Mr. Chandrashekhar, learned Senior counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “(i) For quashing of the order contained in memo no. 33(11) dated 25.1.2006 whereby and whereunder the respondent no.2 rejected the representation of the petitioner for payment of salary and dismissed the petitioner from service with immediate effect. (ii) For a direction to the respondents not to act upon the impugned order dated 25.1.2006 as if the impugned order never existed and allow the petitioner to continue in service notwithstanding the order dated 25.1.2006. (iii) For a direction to the respondents to make payment of all the arrears and outstanding dues to the petitioner particularly the salary for the period May, 1993 to April, 1997 and also salary for the period May, 2005 to January, 2006. (iv) For a further direction to the respondents to calculate and make payment of the arrears of salary of the petitioner with interest as well as current salary month to month.” 2 Let it be made clear that this writ application was filed on 25.4.2006 when the employee, the writ petitioner Om Prakash Singh, was alive and he has died only during the pendency of this writ application, whereafter his wife, the present petitioner, has been substituted by an order of this Court dated 24.2.2011 in I.A.No. 6910/2010. Thus, reference to the original petitioner in this order will mean the husband of the petitioner and of course the petitioner being substituted petitioner in place of her husband. Under the changed circumstances, the petitioner has filed an amendment petition wherein the relief claimed by her on account of the death of the original petitioner has been summarized as follows: “(I) For quashing of the order contained in Memo No. 33(11)dated 25.1.2006 whereby and whereunder the respondent no.2 rejected the representation of the petitioner for payment of arrears of salary and also dismissed him from service with immediate effect. (ii) For a direction to the respondents to make payment of all the arrears and outstanding dues as admissible in law with interest thereon particularly the salary for the period May, 1993 to April, 1997 and also the salary for the period May, 2005 to January, 2006 (salary not paid due to paucity of fund) with all other consequential benefits including family pension in accordance with law. (iii) For a further direction to the respondents to consider one of the L.Rs. (Legal representatives) of deceased Om Prakash Singh for compassionate appointment to suitable post as soon as possible as the L.Rs. are facing many hardships and have bare 3 minimum resources for survival.” As would be apparent that the entire relief being claimed by the petitioner is based on an order of the authority dated 25.1.2006. The said order being relevant is quoted in extenso and read as follows: funs'kky; LokLF; lsok,a fcgkj] iVukA vkns'k lh-0MCyw0ts0lh0 la0 7994@2004 vkse izdk'k flag ouke fcgkj jkT; esa fnukad 19-1-2005 dks ekuuh; mPp U;k;ky;] iVuk us fuEufyf[kr vkns'k ikfjr djus dh d`ik dh gSA "Having heard Learned Cousnel for the party and taking into consideration the facts and circumstances of the case, I deem it expedient that respondent No. 3 the Director of Health Services, takes decision in the mater, if already not taken, within four months from the date of receipt/production of a copy to this order, I direct accordingly. On such consideration if any amount is found due to the petitioner, same be paid to him within the aforesaid period. It is made clear that I have not expressed any opinion in regard to the entitlement of the petitioner and that shall be decided by respondent No. 3 in accordance with law. In order to facilitates early decision, petitioner shall annex the copy of the letter dated 22.9.2004 (Annexure-F) with his representation. bl lEcU/k esa fnukad 3-9-2005 dks funs'kd izeq[k ds }kjk lquokbZ dh frfFk fu/kkZfjr Fkh ftlesa oknh }kjk okafNr dkxtkr izLrqr ugha fd;k x;kA Qyr% lefiZr dkxtkrksa ds vykok Jh vkse izdk'k flag dks fuEufyf[kr dkxtkrksa dh ekax dh xbZ& 1- lek;kstu gsrq lk{kkRdkj esa mifLFkr gksus lEcfU/kr i= 2- fu;qfDr i= 3- {ks=h; mi funs'kd] frjgqr e.My eqtIQjiqj }kjk fuxZr LFkkukUrj.k i=A 4- lsok iqLr dh Nk;k izfra mijksDr ds vkyksd esa oknh }kjk flfoy ltZu eksrhgkjh ds i=kad 243 fnukad 17-4-67 dh Nk;k izfr@fu;qfDr vkns'k la0 4 1116 fnukad 14-8-86 tks flfoy ltZu eksrhgkjh }kjk fuxZr gS dh Nk;kizfr ,oa lsok iqLr dh Nk;kizfr lefiZr dh x;hA oknh Jh flag us vius i= fnukad 26-9-2005 esa fy[kk gS fd mUgksaus fnukad 15-2-76 ls 20-12-76 rd nSfud etnwj ds :I esa lpZj ds in ij dk;Z fd;k gS lacaf/kr izek.k i= ls Li"V gqvk fd ;g izek.k i= MCyw0,p0vks0 dk;kZy; ls fuxZr gqvk gS u fd LokLF; fohkkx ds fdlh dk;kZy; ls jh flag us vius vH;kosnu esa dgk gS fd bUgsa lk{kkRdkj esa lek;kstu gsrq i=kad 268¼22½ fnukad 31-3-1987 dh izfr miyC/k djkus esa vleFkZ jgsA vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh iwohZ pEikj.k i=kad 1816 fnuad 24-9-2005 ls irk pyrk gS fd Jh vkse izdk'k flag uke O;fDr vfpfdRlk lgk;d ds in ij dHkh Hkh dk;Zjr ugha jgsA flfoy ltZu eksrhgkjh dk i=kad 1816 fnukad 24-9-05 ,oa izHkkjh fpfdRlk inkf/kdkjh izk0 LokLF; dsUnz fpjS;k iwohZ pEikj.k dk i=kad 268 fnukad 22-9-05 ,oa ftyk dq"B fuokj.k inkf/kdkjh iwohZ pEikj.k ds i=kad 225 fnukad 24-9-2005 esa dgk x;k gS fd oknh Jh vkse izdk'k flag dh Hkqxrku ls lEcfU/kr dksbZ vfHkys[k dk;kZy; esa miyC/k ugha gSA tgka rd izHkkjh ftyk dq"B fuokj.k inkf/kdkjh oS'kkyh ds i=kad 226 fnukad 22-9-04 dk iz'u gS bl lEcU/k esa jkT; dq"B fuokj.k inkf/kdkjh fcgkj] iVuk ds i=kad 80 fnukad 20-1-98 dk voyksdu fd;kA bl i= esa jkT; dq"B fuokj.k inkf/kdkjh us izHkkjh ftyk dq"B fuokj.k inkf/kdkjh] oS'kkyh ds U;;kf;d n.Mkf/kdkjh gkthiqj }kjk ikfjr vkns'k ds vkyksd esa flQZ ;ksxnku ysus dks dgk x;k gSA lefiZr dkxtkrksa ,oa dk;kZy; esa miyC/k vfHkys[kksa ls Li"V gS fd Jh flag dks osru Hkqxrku ds iwoZ fu;qfDr lEcfU/kr dkxtkr ekaxk x;k tks bUgksaus izLrqr ugha fd;k] QyLi:I budk osru Hkqxrku ugha fd;k tk ldka oknh us vius vH;kosnu esa dgk gS fd budh izFke fu;qfDr izkFkfed LokLF; dsUnz fpjS;k iwohZ pEikju us vius i=kad 268 fnukad 22-9-2005 ds }kjk lwfpr fd;k gS fd oknh Jh vkse izdk'k flag dh fu;qfDr@LFkukUrj.k@Hkqxrku laca/kh dksbZ vfHkys[k muds dk;kZy; esa miyC/k ugha gSA mi;qZDr of.kZr rF;ksa ls Li"V gS fd oknh Jh flag us tkylkth ds vk/kkj ij fu;qfDr i= rS;kj dj ljdkjh ukSdjh ik;hA rkRi;Z ;g gS fd budh fu;qfDr QthZ gSA pwafd budh fu;qfDr gh QthZ gS blfy, ;s osru ds gdnkj ugha gSA Qyr% oknh Jh vkse izdk'k flag dks vH;kosnu vLohdkj djrs gq, rRdky izHkko ls lsok ls c[kkZLr fd;k tkrk gSA bl vkns'k dh ,d izfr oknh Jh vkse izdk'k flag dks fucaf/kr Mkd ls HkstsA g0@& vLi"V Mk0 ¼ds0½ ,l0 ,u0 flag funs'kd izeq[k LokLF; lsok,a] fcgkj] iVukA From the said order it becomes clear that the matter has come on remand, inasmuch as earlier also the original petitioner had moved this Court for the same relief and this Court did not find it appropriate to pass any order except remitting the 5 matter to the Director-in-Chief, who is the head of the Department of Class III and Class IV employees. From the reading of the order it becomes clear that there has been a dispute with regard to initial appointment of the petitioner on the post of non-medical Assistant. It is being said by the respondents in the impugned order as also in the counter affidavit that his initial appointment order was forged and in fact there was no direction given by the Headquarter as mentioned in the order of appointment of the petitioner. It has further been shown that after initial appointment made by the Civil Surgeon the transfer order of the petitioner issued by the Regional Deputy Director was also forged as was confirmed from his office. On all these grounds way back in the year 1996 the authority had decided to institute a criminal case against the original petitioner for committing forgery and obtaining appointment on the basis of fraud played by him. Therefore, it becomes clear that if any order has to be passed for directing payment of salary as a result of the original petitioner being reinstated in service a finding will have to be recorded again whether his initial order of appointment was forged or his order of transfer was forged or he is in service by playing a fraud. The issue relating to forgery or fraud cannot be adjudicated under writ jurisdiction as it would require leading of evidence both oral and documentary by both the parties. Way back this Court in the Full Bench judgment of this Court in the case of Rita Mishra & ors. vs. the Director, Primary Education, Bihar & ors., reported in 1987 PLJR 1090, had held that the claim of a 6 person for payment of salary on the basis of a fraud appointment letter cannot be gone into under writ jurisdiction. Mr. Chandrashekhar, however, has tried to wriggle out of the situation by saying that there was a criminal case lodged against the petitioner for the same allegation and since the petitioner was acquitted of the charge therein, the benefit of continuation of service as also payment of salary should have given to the original petitioner and now to the substituted petitioner. From the judgment of the criminal court it is clear that not only the original petitioner had been given the benefit of doubt but in that case neither the Investigating Officer nor the informant was examined. It is, thus, clear that the judgment of the criminal court will have no bearing on the issue of forgery or fraud played by the original petitioner in his appointment. To that extent this Court does not find any error in the impugned order passed by the authority rejecting the claim for payment of salary. The rejection of such prayer, however, would not mean that the petitioner, the wife of the deceased employee, the original petitioner, will be without any remedy. She can still file a civil suit and seek a declaration that his appointment letter and the transfer order on the strength of which he is said to have continued in service were genuine documents and not forged as alleged by the respondents. In the event the petitioner would succeed in such a suit after impleading all the respondents herein, she will 7 automatically be entitled to all the relief which have been sought by her in modification of the prayer made by the original petitioner in this writ application. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/