IN THE HIGH COURT OF JUDICATURE AT PATNA -------- Letters Patent Appeal No.866 of 2011 --------- Appeal against the Judgment and Order dated 18.3.2011 passed by a Bench of this Court in C.W.J.C. No. 3280/2010. ------- (Grishnandan Chauhan , son of late Khiru Chauhan, Resident of Village- Yamunapur, P.O. Pariyauna, P.S. Noorsarai, district- Nalanda......................... Appellant Versus 1. The State Of Bihar through its Chief Secretary, Patna. 2. The Principal Secretary-cum- Commissioner, Education, Bihar, Patna. 3. The District Magistrate, Nawada, 4 The Deputy Development Commissioner, Nawada 5. The Prakhand Pramukh, Nawada Sadar, Nawada 6. The District Superintendent of Education, Nawada 7. Ram Pravesh Sharma, Block Education Extension Officer,NawadaSadar, Nawada............... Respondents ------------ 2 29-8-2011 Heard learned counsel for the appellant and perused the order of the writ court under appeal dated 18-3- 2011 whereby writ petition preferred by the appellant bearing C.W.J.C. No. 3280 of 2010 has been dismissed in view of clear finding given by the Principal Secretary of the department that the appointment claimed by the appellant/writ petitioner was no appointment in the eyes of law because his name was clandestinely introduced by the Block Development Officer, Nawada, when in fact his 2 name was not in the select list of physical trained teachers nor he appeared in the counseling nor there was any recommendation for his appointment. Learned counsel for the appellant submitted that the Principal Secretary of the department does not have any jurisdiction to determine the issue relating to illegality and r that only the lower grade officers, who are entrusted for hearing the appeals as Appellate Tribunal, could have entertained the grievance and decided the issue as per law. This contention is without any merit because earlier the appellant had approached this Court in the year 2008 through C.W.J.C. No. 14600/2008 claiming that in spite of appointment as block teacher, he was not being paid salary for his post. By order dated 31-3-2009 the said writ petition was disposed of with a direction to the Principal Secretary to personally enquire into the relevant issue and dispose of the representation of the appellant in accordance with law within four weeks. The Principal Secretary was also directed to pass a reasoned and speaking order in case he found the appellant to be not entitled for salary. In the aforesaid circumstances, under the lawful order of this court 3 , the Principal Secretary was obliged to decide the relevant issues for coming to a conclusion that the appointment of the appellant is illegal or not and whether he is entitled for any salary. The second issue raised on behalf of appellant is that in a judgment reported in 2009 (3) PLJR 488 ( Subhash Chandra Vrs. State of Bihar ) a Division Bench of this Court has held that ad hoc appointment should not have been cancelled with retrospective effect so as to debar the concerned employee from receiving payment for the period he has worked. To the same effect there is another judgment, reported in 2009 (3) PLJR 1062 , State of Bihar Vrs. Satyendra Kumar Singh. Both the aforesaid judgments were dealing with termination of service and not with cases of illegal appointment. The status of an employee, who has entered service by fraud or on account of illegal appointment is different from an employee engaged on daily wages or on ad hoc basis. A fraud can be detected by any competent person of the department and definitely by the Principal Secretary, who is Head of the department. The effect of 4 fraudulent appointment upon the right of a person to claim salary, stands on a different footing. A fraudulent appointment must be deemed to be void ab initio. If salary had been paid, we may or may not have ordered for recovery, but issuance of a direction for payment of salary would, in our view, amount to giving premium to a fraud. That should not be done in exercise of powers in writ jurisdiction. We find no merit in this appeal. It is accordingly dismissed. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J) z