IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 15214 of 2007 Kaushal Kishore Sharma, son of late Ram Charitar Sharma, resident of Village – Bhori, P S – Tekari, District – Gaya - Petitioner Versus 1 The State of Bihar 2 The Secretary, Department of Human Resources, New Secretariat, Patna 3 The Director, Secondary Education, Budha Marg, Patna – 1 4 Regional Deputy Director of Education, Magadh Division, Gaya 5 District Education Officer, Aurangabad - Respondents WITH CWJC No 16259 of 2007 Jitendra Sharma, son of Prem Narayan Sharma, resident of village – Bhori, P S – Tekari, District – Gaya - Petitioner Versus 1 The State of Bihar 2 The Secretary, Department of Human Resources, New Secretariat, Patna 3 The Director, Secondary Education, Budha Marg, Patna -1 4 The Regional Deputy Director of Education, Magadh Division, Gaya 5 The District Education Officer, Aurangabad - Respondents ----------- 3 03.05.2011 These two cases are similar. In the first writ petition, a comprehensive counter affidavit has been filed which covers the second case as well. With consent of parties, the writ petitions are heard for final disposal at this stage itself. Mr Rajive Verma, learned Senior Counsel appearing in support of the writ petitions submits that the issue involved is plain and simple. Petitioners were appointed as Assistant Teachers in 1990. They had been working as such. Suddenly, without any show cause notice vide notification No 936 dated 08th May 2004, they were dismissed by orders of Director, Secondary Education, Government of Bihar. The order is Anexure-8 alongwith supplementary affidavit filed in the second writ petition. It may be noted that by the said order, the appointment of 211 Assistant Teachers were set aside. In the said order of termination of their service, it was found that the said 211 persons had joined as Assistant 2 Teachers on fake and forged appointment letters. It was stated that while recommendation by the Vidyalaya Seva Board was in name of a person A not only that person joined but, by changing the name, a persons B also joined. When the matter of payment was being scrutinised at State level, it was found that payments far and excess of appointments were being made and it is upon that scrutiny that this illegality came to light. It appears that petitioners and their like had already moved this Court prior to this order for payment of their salaries which had been stopped. During pendency, this termination order of 08th May, 2004 was passed and challenged. Petitioners’ writ petition was CWJC No 13433 of 2003. They were taken up together with several other writ petitions by persons who were also covered by the said termination order. The writ petition was disposed of by order dated 28.11.2006 by Division Bench. The Division Bench held that the order of termination had been passed without following the minimum requirement of natural justice and, as such, it could not be supported. It was, accordingly, set aside but the authorities were given liberty to proceed in the matter in accordance with law in case such exigency arises to weed out the fake appointees. Pursuant to the aforesaid order, petitioners filed, before Director, Secondary Education, Human Resources Development Department, Government of Bihar, Patna, a detailed representation seeking payment of arrears of salary and permission to join. This was filed on or about 20.12.2006. Upon this application being filed, the grievance of the petitioners is that instead of permitting the petitioner to join, on 3 28.03.2007, the impugned order was passed by Deputy Director, Secondary Education, Department of Human Resources Development, as contained in Annexure-5, whereby holding the petitioners’ appointments as fake, permission for payment of salary or joining was refused. Against this, petitioners filed a representation before the Director, Secondary Education which was treated as an appeal and summarily dismissed. On behalf of petitioners, Shri Rajive Verma, learned Senior Counsel submits that this was again contrary to the directions of this Court. He submits that no notice was given nor any proceeding started and on an application for being permitted to join and claiming arrears of salary, the dismissal orders have been issued. Representation has then been treated as an appeal and dismissed. He further submits that large number of people, who were originally covered by the order of termination which was in respect of 211 persons, have been permitted to join and are continuing and their salaries are being paid. Thus, there is hostile discrimination as between the petitioners and others. These are the two grounds for challenging Annexure-5 and the purported appellate order (Annexure-6). A detailed counter affidavit has been filed in which it has been asserted that upon scrutiny of records, information sought for and received from the Vidyalaya Seva Board, it clearly transpired that by interpolating genuine appointment letters, fraud appointments were made over and above the original appointments. Thus, upon enquiry having been found to be fake appointments on forged appointment letters, the services of the 211 persons were cancelled. Detailed orders were already 4 with the petitioners who had already used it in the writ proceedings. It is specifically stated and it is also noted in the impugned Annexure-5 that upon the application for joining consequent to the direction in the writ petition, petitioners were noticed to come and substantiate the legality of their appointments, inspite of several opportunities granted, they failed to turn up. Accordingly, after re-examining the entire matter, the order of termination, as passed earlier, was reiterated and they were not allowed to join. Again, they preferred a representation before the Director as the order was by the Deputy Director. The Director, having examined the matter, only agreed with it. It may also be noticed that the original order of termination of the 211 persons was passed by the Director himself. Having heard the parties, in my view, the writ applications cannot succeed. Shri Verma, learned Senior Counsel is correct when he submits that before a person can be terminated from service, he must be heard as termination has grave civil consequences but at the same time, this Court would like to observe that principles of natural justice are not like an unruly horse or a bull in the China shop. Its applicability depends on the fact situation. A departmental proceeding, as envisaged under the Service Code, is in relation to a person who is a Government servant. Here the very fact that the person has posed as Government servant is an issue then not being Government servant would not entitle him to a departmental proceeding for an appointment based on fraud and forgery is an appointment void ab initio. It is no appointment in eye of law. It is well settled that fraud, which includes forgery, vitiates all. Thus, in my view, no departmental proceedings are at all envisaged in the fact 5 situation aforesaid. Even if he refers to a Division Bench order, all it says is minimal requirement of natural justice. In the facts aforesaid, in my view, the authorities have fully complied with the minimal requirement of natural justice. They asked the petitioners thrice to appear and substantiate the legality of their appointments. The petitioners refused to avail the opportunity so granted. They are to blame for their circumstances. Thus, the minimal requirement of natural justice having been met, the order impugned contained in Annexures-5 and 6 cannot be interfered with on that ground. Mr Verma, learned Senior Counsel then submits that large number of persons who figured in the list of 211 persons, originally terminated, have been allowed to join at different places and they are continuing in service. That would amount to hostile discrimination if petitioners were not also similarly treated. In my view, discrimination can only be pleaded on legal foundation. As noted above, the petitioners’ appointment was found to be forged and fictitious and inspite of opportunity granted, petitioners were unable to utilise the same to establish their bona fide. They cannot, under any circumstances, be allowed to continue with their illegally obtained appointments. I may note here that it is not an irregular appointment we are talking about. It is a rank illegality that we are talking about. If others have managed to continue in service, they are wrongly there. The State would be well advised to comply with principles of natural justice even in minimal manner and terminate their services if it is found to be based on forged and fake appointment letters. The sooner that is done, the better it would 6 be. It is a matter of serious concern where persons, on technicalities of law, are allowed to continue even though their appointments are void ab initio and based on the foundation of fraud. With the observation as aforesaid, the writ petitions merit no consideration and are dismissed as such. Let a copy of this order be immediately sent to the Principal Secretary, Department of Human Resources Development, Government of Bihar, Patna for necessary information and action. M.E.H./ (Navaniti Prasad Singh)