IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.426 of 2010 1. THE STATE OF BIHAR THROUGH CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY HUMAN RESOURCES DEVELOPMENT DEPARTMENT GOVT. OF BIHAR, PATNA 3. THE DIRECTOR. HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE REGIONAL DEPUTY DIRECTOR , SARAN DIVISION, CHAPRA 5. THE HEADMASTER SARVODAYA HIGH SCHOOL, BHAGWANPUR, CHAPRA. …Respondents/ Appellants Versus 1. BIRENDRA KUMAR S/O SHRI SHILA NATH RAI , R/O MOHALLA- NAI BAZAR, P.S- BHAGWAN BAZAR, DISTRICT- SARAN ( CHAPRA). … petitioner/Respondent For the appellants : Mr. Shashi Bhushan Kumar, SC-16 : Mr. P. K. Shahi ( AG) For the respondent : Mr. Rajendra Narain, Adv : Mr. Gyan Prakash, Adv. ----------- Present : HON'BLE THE CHIEF JUSTICE HON'BLE MIHIR KUMAR JHA, J. ----------- As per Mihir Kumar Jha, J. I. A. No. 2266 of 2010 1. Having heard learned counsel for the parties as also after taking into consideration the facts and circumstances mentioned in this application, the delay of 76 days in filing of this appeal is, hereby, condoned. 2. I. A. No. 2266 of 2010 is, accordingly, allowed. L. P. A. No. 426 of 2010 3. As we have condoned the delay, we are also inclined to dispose of this appeal on merit and for this 2 purpose we have heard learned counsel for both the parties at length. 4. This appeal is directed against the order of learned single Judge dated 28.10.2009 in CWJC No. 6506 of 2009 whereby and whereunder he has set aside the order of termination of respondent-writ petitioner dated 30.4.2009 while allowing the writ application. 5. Assailing the aforementioned order leaned counsel for the appellants- State would submit that the respondent-writ petitioner, in fact had obtained his appointment on the basis of a matriculation certificate which in course of enquiry conducted by Bihar School Examination Board was found to be forged and fabricated. He has, accordingly, contended before us that since the respondent-writ petitioner had obtained his appointment by playing fraud the impugned order removing from service cannot be faulted merely because he could manage to continue in service for a period over 19 years. Counsel for the State, in this context, has also invited our attention towards two matriculation certificates of the writ petitioner on record and the letter of Bihar School Examination Board dated 22.4.2009 for supporting his submission that 3 the certificate on which the appointment of the petitioner made was itself found to be forged and fabricated by the Bihar School Examination Board. 6. Per contra learned counsel for respondent- writ petitioner supporting the impugned order passed by learned single Judge has submitted that the question of respondent-writ petitioner obtaining his appointment on a forged matriculation certificate was never made a subject of full fledged enquiry and in fact on an earlier occasion, after the respondent-writ petitioner had continued in service from 18.8.1990 to 30.11.1998, his services were terminated with 56 others on the ground that they were illegally appointed without observing the rules of appointment but such order of termination dated 30.11.1998 was set aside by this Court in CWJC No. 1748 of 1999 and the same was also affirmed in L. P. A. No. 1049 of 2000 by only making an observation that alleged illegality in the appointment of the petitioner could be re- examined. He has also relied upon two different orders by this Court to show that the respondent-writ petitioner was also allowed to continue in service from 2000 to 2007 before his services were again terminated, by the 4 respondent no. 4 but such order of termination of his service was again set aside by the appellate authority, Director, Secondary Education dated 4.8.2008 on the ground that in course of detailed enquiry from Bihar School Examination Board it had been found that the writ petitioner had not obtained his appointment on the basis of any forged or fabricated matriculation and/or educational qualification certificate and consequently, the respondent- writ petitioner was once again reinstated in service. It however appears that the Respondent no. 4, the Regional Deputy Director of Education (R.D.D.E.) had preferred an appeal before the Principal Secretary of Human Resources Development Department against the order of Director, Secondary Education dated 4.8.2008 leading to impugned order dated 30.4.2009 wherein it had been recorded that one of the matriculation certificate of the writ petitioner was forged. He has thus submitted that the view taken by the learned single Judge holding that the writ petitioner was being repeatedly harassed as with regard to his same appointment is fit to be accepted in the facts and circumstances of the case and would require no interference in this intra-court appeal. 5 7. In our considered opinion the learned single Judge has made a threadbare discussion on this aspect as would be evident from the following extract of the impugned order "..........The fact of this case reveals a very sordid state of affairs in the State Government. If a Government Servant is continuously hounded on one ground after another repeatedly with regard to the security of his service it requires no imagination what efficiency and performance he will give have in his duties. His mind shall be pre-occupied with what the next move of the State Government in this game of chess of appointment and termination will be. In the process it is the Government work which suffers and public money wasted by payment of salary to one who is not mentally at peace to discharge his duties. If a person is stated to have been appointed illegally, surely all aspects as issues must be examined at the same time. The respondents cannot be permitted to act at their whims and caprice and pick out issues in a manner at different times to suit their own convenience. On the facts of this case, if there was an enquiry report dated 29.5.2003 and 4.8.2008 in favour of the petitioner all that this Court is concerned with does the subsequent order dated 30.4.2009 6 adequately deal with the aforesaid final orders on finding of fact and set them aside by a process of reasoning and discussion of the reasons contained therein This Court has gone through the order dated 30.4.2009. Except for reciting in the opening paragraph that the order dated 4.8.2008 was being reopened on the request of the successor RDDE. There is no discussion whatsoever of the order dated 4.8.2008 and the specific findings of fact recorded therein including of verification of the certificates from the Bihar School Examination Board. The impugned orders virtually ignore the earlier enquiry reports and proceeds on its own as a fresh and independent enquiry. This Court is satisfied that this act of the respondent alone in completely ignoring the earlier enquiry report which was sought to be reopened, the complete failure to discuss the reasons stated therein and to set aside the same without process of reasoning and discussion that the earlier reports were erroneous renders the order dated 30.4.2009 arbitrary. . If an administrative order refuses to take into consideration relevant materials and ignores material issues it shall be held to be arbitrary..........." 8. To that extent, we fully endorse and approve 7 the aforesaid findings recorded in the impugned order and we also hold that reliance placed by learned Single Judge on a judgment of this Court in the case of Brij Mohan Prasad & Anr. Vs. Bihar State Electricity Board and Ors., reported in 1998(1) PLJR 622 is quite apt in the facts and circumstances of this case. There is no iota of doubt that respondent- writ petitioner was a permanent government servant and after long 20 years of his service if the same was being sought to be questioned on the ground of any fraud/forgery, the same could not have been decided on a slipshod manner by collecting evidence in the midst of such proceeding and infact without conducting a full fledged departmental proceeding as was held by the Apex Court in the case of Subodh Kumar Prasad Vs. State of Bihar reported in (2001)10 S.C.C. 282. 9. It is also clear from the materials on record that the main basis for the appellants to now act upon the respondent-writ petitioner is a document dated 22th April 2009 in form of a report of the Assistant Secretary of the Bihar School Examination Board addressed to the Director Secondary Education submitted in response to letter of the Education Department dated 19.3.2009 describing one of 8 the two matriculation certificate of the petitioner recording his date of birth as 30.7.1970 to be forged. It is however undisputed that the entire action against the respondent- writ petition was initiated in the year 2003 on the basis of observation/ liberty given in the order of this Court in LPA No. 1049 of 2000 and the said report of Bihar School Examination Board was no where in existence when the Regional Deputy Director had passed the order of termination of service of the respondent- writ petitioner on 5.4.2007. It is in this background that one has to also appreciate the order of Director, Secondary Education dated 4.8.2008 setting aside the order of termination of the petitioner dated 5.4.2007 passed by R.D.D.E. after obtaining a report from Bihar School Examination Board for coming to a finding that there was nothing wrong in the matriculation certificate submitted by the petitioner. Thus, if fresh materials were being collected in round of enquiries at different levels in Education Department at each and every stage, the services of respondent- writ petitioner should not have been done away in a whimsical manner and on a mere guess work by collecting materials behind his back. Such action therefore could have been 9 taken only after conducting a full-fledged departmental proceeding against the Respondent writ petitioner, admitted a permanent employee. There is however no dispute on this aspect that the appellants had never conducted a full-fledged departmental enquiry and had sought to terminate his service only by giving a show cause notice. Such procedure of removal of a permanent government servant like the Respondent writ petitioner cannot be countenance in law specially when it involved the charge of obtaining appointment by committing forgery in matriculation certificate. . 10. Normally, in a case of this nature after noticing that there was an allegation of respondent- writ petitioner obtaining his appointment on a forged matriculation certificate, we could have still allowed the Appellant State to initiate a regular departmental proceeding but then what has really weighed upon us in not giving such liberty is that not only such opportunity given earlier in the year 2000 in L.P.A. No. 1049 of 2000 to the State and its official was squandered and wasted but also because respondent- writ petitioner even otherwise is armed with a matriculation certificate showing his date of birth as 10 30.6.1974 while declaring him to have passed his matriculation examination in the year 1988 vide Annexure- 17 to the writ application. This matriculation certificate in course of enquiry has been found to be genuine even in the latest report of Bihar Scholl Examination Board and therefore if the respondent- writ petitioner had a valid matriculation certificate at the time of his appointment, the only allegation of the appellants that on such matriculation certificate the respondent- writ petitioner could not have been appointed in the year 1990 as he was only 16 years and 2 months on the date of his appointment would at best be a mere irregularity in his appointment for which he could not be proceeded and punished in 2009. Moreover it can also be not said with certainty and conviction that the Appellant writ petitioner was appointed on the basis of the forged matriculation certificate produced by the writ petitioner and not the other matriculation certificate which was found to be genuine and correct by the Bihar School Examination Board. As a matter of fact the Director, Secondary Education for this very reason in his detailed order dated 4.8.2008 while setting aside the order of termination dated 15.4.2007 had 11 gone to held that the appointment of the writ petitioner was based on a valid and genuine matriculation certificate. 11. One thing however which needs to be clarified here is that on the strength of the matriculation certificate as per Annexure-17 recording the date of birth of the Respondent writ petitioner as 30.6.1974, on the basis of which he claims to have been appointed despite being a minor, he can continue in service for a maximum span of 42 years and therefore if he had taken advantage by entering in service before attaining 18 years of his age he has to be made to superannuate on completion of maximum 42 years of permissible government service as per the policy decision of the State Government of the year 1998, also approved by a Full Bench Judgment of this Court in the case of Ragiawa Narayan Mishra Vs. Bihar Rajya Khadi Gramoudyog Board and others reported in 2006(1) PLJR 410, even though he will not be completing 60 years of age i.e. the age of normal superannuation of a clerk in a secondary school governed by Bihar Shiksha Anusachivia Niyamabali, 1974. 12. This court thus while upholding the order of learned single Judge would make it clear that since it is the 12 case of respondent- writ petitioner that his matriculation certificate bearing No. 88C 218334 recording his date of birth as 30.6.1974 is the one, on the basis of which he got appointed on 18.8.1990, he would accordingly also superannuate from service upon completing 42 years of maximum service permissible to a government servant as he cannot take benefit of the date of birth of 30.7.1970 shown in his another matriculation certificate subsequently found to be forged, as was held by a division bench of this Court in the case of Baidyanath Prasad Sinha Vs. State of Bihar and others reported in 1983 Labour and Industrial Cases 162. Accordingly, the date of superannuation of the petitioner will be 18.8.2032 the date on which he would complete 42 years of service and not 30th June 2034 the date on which he would complete 60 years of age. 13. Subject to the aforesaid observations and directions, this appeal is dismissed. 14. However, there shall be no order as to costs. Patna High Court Dated, the 10th March, 2010 A.F.R./Kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.) 13