IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.7706 OF 1997 ================================================= MEENA KUMARI, D/O SRI KRISHNA KUMAR VERMA, R/O MOHALLA BABHANI GHAT, P.S CIVIL LINES, DISTRICT GAYA AT PRESENT POSTED AS ASSISTANT TEACHER, HIND MADHYA VIDYALAYA, GEBALBIGHA UNDER GAYA DISTRICT. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE DISTRICT EDUCATION ESTABLISHMENT COMMITTEE, THROUGH ITS CHAIRMAN, DISTRICT MAGISTRATE, GAYA. 3.THE DISTRICT EDUCATION SUPERINTENDENT, GAYA. 4.THE HEADMASTER, HINDI MADHYA VIDYALAYA, GEBALBIGHA, UNDER GAYA DISTRICT. ………………………RESPONDENTS. ======================================================== Appearance:- For the Petitioner: Mr. Dinu kumar & Mr. Sunil kumar. For the Respondents:Mr. (GP4) ======================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT Date: 08-09-2011 (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) Mihir Kumar Jha,J. Heard Mr. Dinu Kumar, learned counsel for the petitioner and learned counsel for the State. 2. The prayer of the petitioner in this writ application reads as follows:- “a. For quashing the office order vide memo no. 2096 Gaya dated 25.06.1997 issued under the signature of District Education Superintendent, Gaya, Respondent no. 3 as contained in Annexure-3 to the present writ application, whereby and whereunder, the petitioner has been communicated the decision taken by the District Establishment Committee on 08.06.1997 terminating the services of the petitioner with effect from 07.07.1995; b.For non-payment of salary for the due period for which the petitioner has not been paid her salary in terms of Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 2 / 34 2 the order dated 27.01.1996 passed in C.W.J.C No. 3640 of 1995 after taking into account of the explanation submitted by the petitioner pursuant to the explanation asked for vide Memo No. 653 dated 01.03.1997: c. Also for directing the State respondents to allow the petitioner to function as Assistant Teacher in Hindi Madhya Vidyalay Gebalbigha, Gaya; d. For directing the State respondents to make payment of salary of the admitted working period since month July, 1995 to the date of dismissal i.e. 25.06.1997;” 3. Let it be noted that this writ application was earlier dismissed by a reasoned order passed by this court on 15.07.2010, which has been set aside by a Division Bench vide order dated 26.07.2011, in L.P.A No. 565 of 2011 (Meena Kumari vs The State of Bihar & Ors), wherein, it has been held as follows:- “By the order under appeal dated 15.07.2010 writ petition preferred by the petitioner bearing C.W.J.C No. 7706 of 1997 has been dismissed on merit after noticing that no one appears on behalf of the petitioner. The usual practice is to dismiss the case for default in case of non- appearance of counsel for the petitioner or appellant. In such a case the option available to the petitioner is to pray for restoration of the case for being heard on merit. In view of grievance raised on behalf of appellant against dismissal of a writ petition on merit when the counsel could not appear, the order under appeal is set aside without going into the merits of the case and the matter is remitted to the writ Court for deciding the matter after affording opportunity to the writ petitioner.” 4. The attention of the Division Bench Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 3 / 34 3 having been not drawn to an earlier judgment of the co-ordinate Bench in the case of Kedarnath Tripathy vs The State of Bihar & Ors, reported in 2008(3) PLJR 470, the better recourse for this Court could have been to refer the matter to a larger Bench for getting the issue as to whether a writ petition can be disposed of on merit even in the absence of the counsel for the petitioner settled for once and all. In this regard it has to be noted that a Division Bench of this Court in the case of Kishori Prasad vs The State of Bihar & Ors, reported in 2008(2) PLJR 458 had held as follows:- “The appeal is directed against the order of the learned Single Judge dated 03.10.2007. It appears from the order under appeal that the learned counsel for the petitioner was not present and in the presence of learned counsel for the respondents, on his submission, the writ petitioner has been dismissed on merit instead of dismissing the writ petition for want of prosecution which could have enabled the appellant to pursue the remedy of restoration and seeking hearing on merit. 3.We have also earlier made it clear and we again make it clear that where the learned counsel for the petitioner is not present, the ordinary course is either to postpone the hearing or to dismiss it for want of prosecution but in no circumstances it is to be decided on merit. The same view has also been taken by the Hon’ble Supreme Court in number of matters.” 5. Subsequently however another Division Bench of this Court in the case of Kedar Nath Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 4 / 34 4 Tripathi vs The State of Bihar & Ors, reported in 2008(3) PLJR 470 had taken a contrary view wherein it was held that:- “We heard Mr. Kamal Nayan Choubey, Senior Counsel for the appellant. He vehemently contended that when the petitioner or his counsel did not appear, the Single Jude had two options viz;(i) adjourn the case; or (ii) dismiss the case for default. He would, thus, contend that because of non-appearance of the petitioner or his counsel, the Single Judge could not have considered the matter on merit. He placed heavy reliance upon a Division Bench decision of this court in the case of Kishori Prasad vs The State of Bihar and Others [2008(2) PLJR 458], more particularly, paragraph 3 of the report. That reads thus:- “We have also earlier made it clear and we again make it clear that where the learned counsel for the petitioner is not present, the ordinary course is either to postpone the hearing or to dismiss it for want of prosecution but in no circumstances it is to be decided on merit. The same view has also been taken by the Hon’ble Supreme Court in number of matters.” In our view, the aforesaid observations cannot be said to laying down an absolute proposition that in absence of the party or his counsel, writ petition cannot be decided on merits. It could not have been because there is no such fetter imposed upon the Single Judge exercising high prerogative jurisdiction under Article 226 of the Constitution of India. It needs no elaboration that the proceedings under Article 226 of the Constitution are not governed by the Code of Civil Procedure, 1908. Section 141 of the Code of Civil Procedure excludes the applicability of the provisions contained in the Civil Procedure Code to the proceedings under Article 226 of the Constitution. No Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 5 / 34 5 judgment of the Supreme Court has been brought to our notice holding otherwise in so far as writ jurisdiction under Article 226 of the Constitution of India is concerned. We are, thus, of the view that in writ jurisdiction, even in absence of the party of his counsel, it is open to the Court to proceed with the matter on merits and decide accordingly.” 6. Today, Mr. Dinu Kumar, learned counsel for the petitioner would however frankly concede the position in law that not only this Court but even the Apex Court has repeatedly held that a writ petition or an appeal before the High Court or the Supreme Court arising out of a proceeding under Article 226 of the constitution of India can be disposed of on merits even in the absence of the counsel for the petitioner. 7. Be that as it may in view of the aforementioned settled proposition of law in the latest Division Bench judgment in the case of Kedarnath Tripathi (supra) and in deference to the order of Division Bench dated 26.07.2011 in the case of the petitioner Meena Kumari (supra) this Court has heard counsel for the parties on merit with a view to dispose of this writ application. 8. In this writ application, as has been noted above, the challenge is to the order of termination of the services of the petitioner Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 6 / 34 6 dated 25.06.1997, wherein, her services have been dispensed with on the ground that she had obtained her appointment by playing fraud on the basis of her claim of being appointed as Madhyama Sent-up candidate (Madhyama Utpreshit). 9. Mr. Dinu Kumar, learned counsel for the petitioner, would submit that in the year 1987, when the petitioner was appointed she had already completed the teachers training course and had also passed Madhyama Examination and as such it cannot be said that she had made an attempt to play a fraud by claiming herself to be Madhyama Utpreshit, (Madhyama Sent-up candidate). He has also submitted that even if there was an allegation of fraud against the petitioner, a regular Departmental Proceeding should have been held instead of adopting the shortcut mode and method of merely issuing a show cause notice and dispensing her services after obtaining her show cause reply. He has also submitted that the impugned order does not deal with the defence of the petitioner, as specifically taken in the show cause reply filed by her to the show cause notice dated 01.03.1997. 10. Learned counsel for the State on the other hand with the help of the counter affidavit filed by him has submitted that the impugned order Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 7 / 34 7 has been passed in compliance of a direction given by this Court in the order dated 21.01.1997 passed in C.W.J.C No. 3640 of 1995, wherein, the petitioner of this case was also made party by the writ petitioner of that case namely, Ragini Verma. In this context, it has been stated that Ragini Verma after coming to know of the appointment of the petitioner and few others had initially filed C.W.J.C No. 8712 of 1993 seeking her appointment on the post of Assistant Teacher in Primary School by citing the example of the petitioner and others claiming them to be junior to her in the panel. 11. In this regard, he has also pointed out a judgment of the Division Bench of this Court dated 24.09.1993 passed in C.W.J.C No. 8712 of 1993, wherein, the Director Primary Education was directed by this Court for considering the entitlement of Ragini Verma within a period of six weeks of the receipt of her representation by the Director of Primary Education. He has also submitted that when the Director of Primary Education had passed his final order on the representation of Ragini Verma on 02.11.1993, it was held therein that the petitioner of this case was not junior to Ragini Verma, inasmuch as, she was a selected candidate in the panel of the year 1981 whereas Ragini Verma was the candidate of the Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 8 / 34 8 panel of the year 1982-84. 12. He has also pointed out that when the representation of Ragini Verma was rejected by a reasoned order by the Director of the Primary Education dated 02.11.1993 as communicated by memo no. 1785 dated 06.11.1993(Annexure-7) distinguishing her case as against the petitioner Meena Kumari and two others namely, Lalita Kumari and Abha Kumari. Ragini Verma had again filed another writ application being C.W.J.C No. 3640 of 1995 and at that stage it was held by this Court in its order dated 27.01.1997 passed in C.W.J.C No. 3640 of 1995, though Ragini Verma had no case as against Lalit Kumari and Abha Kumari who were made respondent nos. 4 and 5 to that writ application but this Court had found prima facie material against the petitioner of this case, Meena Kumari who was made respondent no. 6 to that writ application. 13. In this regard he has further submitted that from perusal of the order of the Director of Primary Education itself, it would be clear that the name of the petitioner was included in the 1981 panel as Madhyama Sent-up (utpreshit) candidate and therefore, the petitioner cannot be heard to say that in the year 1981 when she had appeared in the interview pursuant to the Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 9 / 34 9 advertisement she had passed either Madhyama Examination or that her appointment in the year 1987 was made on the basis of her being trained candidate. In this regard, learned counsel for the State has also placed reliance on the extract of the interview register showing the name of the petitioner to be in the list of madhyama sent-up candidates and also her signature against her name in the interview register. 14. He has, accordingly, submitted that the petitioner was given adequate opportunity to produce any material that she was a madhyama sent- up candidate in the year 1981, so as to justify her appointment on the basis of her name included in 1981 panel as a madhyama sent-up candidate but she had failed to produce any material to this effect and on the contrary she had claimed that her name was included as madhyama passed candidate and in the madhyama utpreshit(sent-up) candidate. 15. Learned counsel for the State has thus summed up his submission that since the petitioner had obtained appointment by playing fraud and misrepresenting that she has been a madhyama sent- up candidate, her appointment having been found to be fraudulent was cancelled by the order of the competent District Authority namely, the District Education Establishment Committee, which in its Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 10 / 34 10 meeting held on 08.06.1997 had considered all aspects of the matter including the fact stated by her in her show cause reply. 16. In the considered opinion of this court, the petitioner’s appointment on the post of matric untrained teacher was made on the basis of her being sent up madhyama candidate. In this regard, it is significant to note that the petitioner claims that she had passed the madhyama examination from Kameshwar Singh Darbhanga Sanskrit University in the year 1980 and in support of this fact, photocopy of her marksheet issued by the University had been produced. Such marksheet being not the original copy rather an attested copy cannot be a proof of the fact that the petitioner had passed madhyama examination conducted by the University in the year 1980. On the other hand, from the endorsement made on the marksheet it becomes clear that such marksheet was prepared in the year 1982 or 1984, inasmuch as, the date has been deliberately sought to be interpolated by changing the figure zero to two and again to one and again to four. 17. In any event, this document was never produced by the petitioner in response to the show cause notice, wherein, she had claimed that she had appeared in the year 1981 as madhyama passed Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 11 / 34 11 candidate. As a matter of fact, in the show cause notice dated 01.03.1997, the petitioner was directed to explain as to why her appointment should not be cancelled on account of misrepresenting the fact with regard to her being a madhyama sent-up candidate, for the shake of brevity and clarity the show cause notice dated 01.03.1997 is quoted hereinbelow:- izs’kd ] v”kksd dqekj ftyk f”k{kk v/kh{kd] x;kA lsok esa Jherh ehuk dqekjh lgk;d f”kf{kdk] fgUnh e/; fo|ky;] xsoy foxgk] x;kA Jherh jkfxuh oekZ }kjk ekuuh; mPp U;k;ky; ds nk;j fjV ;kfpdk la0 36401@95 esa fnukad 27-1-97 ds ikfjr vkns”k ds laca/k esaA mi;qZDr fo’k; ds lEcU/k esa bl dk;kZy; ds i=kad 1430 fnukad 7-7-95 ,oa 1667 fnukad 26-7-95 dh vkSj vkidk /;ku vkd`’V djrs gq, dguk gS fd vkius viuh fu;qfDr laLd`r mRizsf’kr e/;ek dh ;ksX;rk ds vk/kkj ij lk{kkRdkj 1981 esa “kkfey gksdj bl dk;kZy; ds Kkikad 8158&8408 fnukad 25-6-87 ls izkIr dh gSA ijUrq mi;qZDr i=ksa ds }kjk vkils mRizsf’kr gksus lEcU/kh ekaxs x;s izek.k i= vkt Ms<+ o’kZ ls vf/kd gksus ds ckn Hkh vkius ugh fn;k gSA blds lkFk gh ekuuh; mPp U;k;ky; esa fo’k;k/khu okn esa vki oknh la0 6 gksus ds ukrs Hkh vkius vius opko esa mRizsf’kr gksus dk dksbZ izek.k i= ugh fn;k tcfd vkids }kjk fu;qDr vf/koDrk Hkh U;k;ky; esa mifLFkr Fks tSlk fd QSlys ds voyksdu ls Kkr gksrk gSA blls Li’V izekf.kr gS fd vki laLd`r e/;ek mRizsf’kr ds vk/kkj ij xr~ 1981 esa lk{kRdkj esa “kkfey gksdj foHkkx dks /kks[kk/kM+h esa j[kk gSA ;gka ij ;g dguk vko”;d gS fd vkidh fu;qfDr i= esa Li’V vafdr gS fd vkidh fu;qfDr laLd`r e/;ek mRizsf’kr ds vk/kkj ij gqbZ gS eSfVªd izf”kf{kr ds vk/kkj ij ugha vkids }kjk ekuuh; mPp U;k;ky; us bldk izfrokn ljdkj dh vksj ls nk;j izfr”kiFk i= dk ugha fd;k x;k gSA vafdr djuk gs fd ekuuh; mPp U;k;ky; us lquokbZ ds mijkar vius vkns”k fnukad 27-1-97 esa vkns”k fn;k gS fd dkuwu ds vkyksd esa bl ekeys dks vkns”k izkfIr ds nks ekg ds Hkhrj fuiVk fy;k tk;A vki ;g Hkh tkurh gS fd vkids fu;qfDr i= dh dafMdk 6 esa Li’V vafdr gS fd fu;qDr O;fDr;ksa ds izek.k i= tkyh ik;s tkus ij Lor% jn~n ekuh tk;sxh vkSj muds fo:) dkuwuh dkjZokbZ dh tk;sxhA pqafd vc ;g ekeyk ekuuh; mPp U;k;ky; ds vkns”k ds vkyksd esa ns[kuk gS vkSj fu.kZ; ysuk gS vkius vius opko i{k esa mRizsf’kr gksus dk dksbZ izek.k i= Ms<+ o’kZ chrus ds ckn Hkh ugha fn;k gSA blls Li’V gS fd foHkkx dks /kks[kk esa j[kdj Ny&iwoZd laLd`r e/;ek mRizsf’kr ds vk/kkj ij fu;qfDr gkfly dh gS tcfd vki mRizsf’kr ugha FkhA vr% vkils ekuuh; mPp U;k;ky; ds vkns”k fnukad 27-1-97 ds vkyksd esa ,d i{k ds Hkhrj Li’Vhdj.k ekaxh tk jgh gS fd vkidh lsok D;ksa ugha lekIr dj nh tk; vkSj Ny iwoZd /kks[kk/kM+h ds vk/kkj ij fu;qfDr izkIr djus ds vfHk;ksx esa vkids fo:) dkuwuh dkjZokbZ D;ksa ugha tk; \ vkidk Li’Vhdj.k i= fuxZr dh frfFk ls ,d i{k ds Hkhrj v/kksgLrk{kjh ds dk;kZy; esa vkuk vfuok;Z gS vU;Fkk le>k tk;sxk fd vkidks vius cpko esa dqN ugha dguk gSA ;g vkidks vfUre ekSdk fn;k tk jgk gS D;ksafd iwoZ esa nks i= vkidks fn;s tk pqds gSA bls vR;ko”;d le>sA fo”oklHkktu Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 12 / 34 12 g0 vLi’V ftyk f”k{kk v/kh{kd x;kA Kkikad 653 fnukad 1-3-97 izfrfyfi & iz/kkuk/;kid] fgUnh e/; fo|ky;] xsoy foxgk x;k dks lwpukFkZ ,oa vko”;d dk;kZFkZ izsf’kr g0 vLi’V ftyk f”k{kk v/kh{kd x;kA 18. From perusal of the show cause notice, two things are very clear namely, that such show cause notice was issued in terms of the direction given in the order dated 27.01.1997 passed by this Court in C.W.J.C No. 3640 of 1995 filed by Ragini Verma, inasmuch as, this Court in the said order dated 27.01.1997 had recorded as follows:- “So far as respondent no. 6 is concerned in the previous order dated 02.01.1997 it was noticed that State has been taking different stands. Mr. Krishna Murari, G.P. 5 was directed to take full instructions. He states that in the previous counter affidavit the appointment of respondent no. 6, Mina Kumari was described as valid in view of the fact her name figures in the select list. Later it transpired, during the course of scrutiny of the certificates, that she had secured appointment by playing fraud. In that view of the matter notice has been issued to her to show cause why the appointment be not cancelled vide annexure E to the counter affidavit. Inasmuch as the controversy regarding validity of appointment of respondent no. 6 is pending consideration by the authorities below, I do not think it would be proper on my part to go into the merit of the grievance of the petitioner. The writ petition is disposed of with direction to the District Selection Committee, Gaya, to look into the matter and take appropriate decision in accordance with law within a period of two months of receipt of a copy of this order.” Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 13 / 34 13 19. It is significant to take note of the fact that the petitioner had filed her reply on 08.03.1997, wherein, she had altogether denied to have been appointed on the post of teacher on the basis of being madhyama sent-up candidate and her specific stand before the authority was that in the year 1981 she had already passed madhyama examination and had appeared in the interview as madhyama passed candidate as would be also evident from the following extract of her show cause reply:- ;g fd eSa o’kZ 1981 esa ek= e/;ek ;ksX;rk ds vk/kkj ij lk{kkRdkj esa mifLFkr gq;h u fd e/;ek mRizsf’krA Li’V gS fd mDr Kkiu laLd`r] mnwZ rFkk fodykaxrk ds vk/kkj ij fd;k x;k FkkA 20. As a matter of fact such stand of the petitioner is also clear from paragraph no. 15 of the writ application, wherein, she has stated as follows:- "That the petitioner submitted explanation on 08.03.1997 to the District Education Superintendent, Gaya stating therein that the petitioner has participated in the interview on the basis of the marks obtained in Madhyama Utpreshit which is evident from the Notification. In absence of non- availability of the trained candidates and untrained candidates in the subject of Sanskrit, Urdu and Science will be appointed." 21. Such stand of the petitioner, however, has been contested by the respondents in paragraph Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 14 / 34 14 no. 22 of the counter affidavit, wherein, it has been stated as follows:- "That with regard to the statement made in paragraph no. 15 of the writ application is concerned, the deponent most humbly states and submits that the statement of the petitioner is incorrect the fact is this that the she appeared in interview of 1981 as Sanskrit Madhyama Utpreshit and put her signature there and not as untrained candidate. Photostat copy of the interview register is annexed herewith and marked as Annexure-B to this counter affidavit." 22. Confronted with this documentary evidence, which was sufficient to expose the false claim being made by the petitioner that she had appeared in the interview as a Madhyama passed candidate not as Madhyama Utpreshit candidate but then she has changed her stand as would be apparent from paragraph no. 9 of her rejoinder to the aforesaid counter affidavit, wherein, as with regard to the aforementioned statement in paragraph no. 22 of the counter affidavit supported by the document namely, the interview register has been sought to be explained by her in the following words:- "That the Statement made in paragraph no. 22 of the counter affidavit is denied. It is stated and submitted that the petitioner has already been qualified in the earlier examination and in the main writ application the petitioner was appointed as UTPRESHIT Candidate and Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 15 / 34 15 before appointment the petitioner has already become trained in the year 1985 for the session 1982-84 and, there was no illegality or irregularity in appointment as per the advertisement." 23. Thus from the pleadings on record, it becomes more than clear that when the advertisement was issued for the post of Sanskrit teacher and a person could also apply if he or she had appeared in Madhyama examination by demonstrating that she had already been sent up for such Madhyama examination, the petitioner had projected herself to be Madhyama Sentup (Utpreshit candidate) and later on when inquiry began on account of an order passed by this Court, she had altogether changed her stand because she had/has no document to support that she had already been a sentup candidate for Madhyama examination on the date of interview. 24. The reliance placed by learned counsel for the