IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6506 of 2009 BIRENDRA KUMAR Versus THE STATE OF BIHAR & ORS ----------- 3. 28.10.2009 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 30.4.2009 at Annexure-23 passed by the Secretary, Department of Human Resources Development Department, Government of Bihar terminating the services of the petitioner on the ground that the educational qualification certificate on the basis of which he secured his appointment was fraudulent and forged. The contention of the petitioner is that in pursuance of an advertisement dated 31.5.1989 having applied and responded to the same and having undergone the selection process he came to be appointed on a Class-III post and joined on 18.8.1990. The appointment was made by the Regional Deputy Director of Education who was competent to make such appointment. On 30.11.1998 the appointment of the petitioner along with 56 other persons working against Class III and IV posts were declared illegal and terminated, only on the issue of irregularity in the appointment and no issue of any forged educational certificates of the petitioner was raised. 2 This Court upon challenge in C.W.J.C. No. 1748 of 1999, set aside the termination order which came to be modified in L.P.A. No. 1049 of 2000 only to the extent that liberty was given to re-examine issues restrained by the Single Judge. In the fresh enquiry the Director by his order dated 29.5.2003 stated that the original certificate etc. had also been examined and recorded a finding that the appointment was legal and valid. The tribulations of the petitioner did not end, when again four years later on 28.1.2007 fresh show cause notice was issued to the petitioner which was replied too by him. On 5.4.2007 at Annexure-16 followed the order of the Regional Deputy Director of Education, that on enquiry, including from the institution in question, it has transpired that the educational qualification certificate was fraudulent. He was again dismissed from service. The petitioner preferred an appeal before the Director who again by his order dated 4.8.2008 (annexure-21) after calling for fresh report from the institution in question as also the Bihar School Examination Board held by a reasoned and discussed order held that the petitioner had not obtained his appointment on basis of any forged and fraudulent educational qualification certificate. The petitioner was reinstated. This Court has gone through the order and 3 finds it to be well reasoned and discussed. It appears that the successor Director then wrote to the Principal Secretary, of the Human Resources Department that the matter should be re-opened when the impugned order of termination has followed afresh. Learned counsel for the petitioner raises a very short issue to contend that there has to be a finality in government orders. A successor officer cannot reopen matters decided by a predecessor except for justifiable and cogent reason which must be properly considered adjudicated reflected in the fresh order properly dealing with the earlier order sought to be reassessed. The fresh order of dismissal dated 30.4.2009 does not at all deal with, consider the earlier order of the Director dated 4.8.2008 much less the earlier enquiry report dated 29.5.2003 in pursuance of the liberty granted by this court. Learned counsel for the State urged that in a case of fraud, the State always has the authority to reopen matters and any earlier decision can be of no relevance. The earlier order of the Director dated 4.8.2008 being illegal, the Principal Secretary after verification was satisfied that the order of the RDDE dated 5.4.2007 was correct. This Court should therefore not interfere in the matter. This Court under Article 226 of the Constitution 4 of India sits in exercise of powers of judicial review over administrative action. Therefore, this Court is primarily concerned with the decision making process and not the decision itself. There can be no two opinions about the fact that where fraud may be alleged mere passage of time may not be sufficient to hold that it was not permissible to reopen the matter. Likewise, even a matter which is stated to have achieved finality can be reopened. But such action has to be fair, reasonable, transparent and speaking in nature. 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 5 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 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 6 issues it shall be held to be arbitrary. This Court can do no better than rely upon a Bench decision of this Court in 1998(1) PLJR 622. This Court consider it appropriate to quote Paragraph 34 to 36 of the same hereinafter:- “Here the respondents are precisely trying to do the same thing. The disqualified candidates may not be co-accused of the petitioners but in a proceeding initiated by them there are some observations and it is precisely being influenced by those observations, the disciplinary proceeding was re-started against the petitioners. In the instant case the petitioners are on stronger grounds inasmuch as here the disciplinary proceeding was not dropped but was concluded with a finding of exoneration. Therefore, on the ratio of the judgment in Prafulla Chandra Mahapatra (supra), the attempt to re- start the disciplinary proceeding against the petitioners cannot be permitted. The matter can be looked at from another angle also. It has been held by the Supreme Court in Jai Singhani’s case reported in A.I.R. 1967 S.C. Page 1427 that predictability is the very essence of the rule of law. A citizen must know where does he stand and it is this predictability in executive function which ensures the absence of arbitrariness. In the instant case on the facts disclosed once the petitioners are allowed to be exonerated and the same exoneration is acted upon by giving promotion to petitioner No. 1 and allowing petitioner No. 2 to superannuate, this state of affair cannot be reversed or upset by re- starting the disciplinary proceeding when there is no legal sanction for doing so but just by taking a different view of the enquiry officer’s report. If 7 the Court permits the administrative authority to indulge in such tinkering with the finality achieved in a proceeding which is judicial in nature, that would mean promoting uncertainty and may be flippancy in administration and these are the known enemies of the principles of Rules of law. Principles of public interest which are an inbuilt content of Rule of law are envisaged to promote certainty and consistency in the action of administrative authorities”. For the aforesaid reasons of the gross error in the decision making process, this Court finds it difficult to uphold the order dated 30.4.2009 in its present form. It is accordingly set aside. The writ application stands allowed. P. Kumar (Navin Sinha, J.)