Letters Patent Appeal No.1026 of 2010 --------------- Against the order dated 3.5.2010, passed in C.W.J.C. No.1874 of 2004 by a learned Single Judge of this Court. ---------- 1. Kedar Nath Sah, S/O Shri Hari Prasad Sah, R/O Vill.- Mahkhar, P.S.- Bakhtiarpur, P.O.- Simri Bakhtiarpur, Distt.- Saharsa 2. Ram Prasad Yadav, S/O Shri Binodi Yadav, R/O Vill.- Balha, P.S.- Saharsa, Distt.- Saharsa 3. Sheo Narayan Chaudhary, S/O Late Anup Chaudhary, R/O Vill.- Sakra Paharpur, P.S.- Bakhtiarpur, Distt.- Saharsa 4. Ashok Kumar, S/O Shri Bindeshwari Prasad Sah, R/O Vill. and P.S.- Sonbarsa Raj, Distt.- Saharsa 5. Ashok Kumar Verma, S/O Shri Hariballabh Lal Das, R/O Vill.- Bargaon, P.S.- Sonbarsa Raj, Distt.- Saharsa 6. Mahendra Sah, S/O Shri Mahabir Prasad Sah, R/O Vill.- Mahkhar, P.S.- Bakhtiarpur, P.O.- Simri Bakhtiarpur, Distt.- Saharsa 7. Jamindar Sah, S/O Shri Ashrafi Sah, R/O Vill.- Bharauli, P.S.- Saharsa, Distt.- Saharsa 8. Dhanik Lal Sah, S/O Shri Baldeo Sah R/O Vill.- Mahkhar, P.S.- Bakhtiarpur, P.O.- Simri Bakhtiarpur, Distt.- Saharsa 9. Sushil Kumar Yadav, S/O Shri Dwarika Prasad Yadav, R/O Vill.- Mahkhar, P.S.- Bakhtiarpur, P.O.- Simri Bakhtiarpur, Distt.- Saharsa ....Petitioner-- Appellants. Versus 1. The State Of Bihar 2. The Director, Primary Education, Bihar, Patna 3. The Regional Deputy Director of Education, Koshi Division, Saharsa 4. The District Superintendent of Education, Saharsa Respondents .... .... Respondents. --------- For the Appellants : Mr. Ranjit Sahay, & Mr. Syed M. Ashraf. For the Respondents: Mr. Alok Kumar, A.C. to G.A. No.I. ----------- P R E S E N T 2 HONOURABLE MR. JUSTICE SUDHIR KUMAR KATRIAR and HONOURABLE MR. JUSTICE VIKASH JAIN S.K.Katriar,J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the petitioners of C.W.J.C. No. 1874 of 2004, and is aggrieved by the order dated 3.5.2010, whereby the writ petition has been dismissed by a learned Single Judge of this Court, the prayer of the petitioners (appellants herein) for grant of continuity of service and payment of arrears of salary has been rejected, and the order dated 14.10.2003, passed by respondent no.2, rejecting the representation of the petitioners, has been upheld. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. It has a chequered history. Five of these petitioners claim to have been appointed as assistant teachers by the Managing Committee of the Girls Primary School, Basauna, in the district of Saharsa. The remaining four petitioners claim to have been appointed by the Managing Committee of the Primary School, Dholi, district Saharsa. These were elementary schools on the private side and, in view of 3 operation of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (hereinafter referred to as „the Act‟), were taken over by the Bihar Government, apart from some other kind of schools mentioned in the Act. Section 3 of the Act is headed “Taking Over of Non-Government Elementary Schools by the State Government”. Section 4 of the Act is headed „Consequences of taking over”, and sub-section (2) provides that the services of Officers, teachers, and other employees of such schools shall be taken over by the State Government after appropriate determination in accordance with the provisions of the Act. The same was enforced with effect from 1.1.1971. 2.1. The petitioners claim that respondent no.2 had issued two letters dated 31.12.1980, addressed to respondent no.4, one each with respect to the two schools, affirming take over of the services of these petitioners informing him (respondent no.4), that services of these petitioners had on determination been taken over by the State Government. Copies of the letters of respondent no.2 are not on record. Further case of the petitioners is that respondent no.4 issued the 4 consequential office orders dated 17.6.1981, with respect to the two schools in question, wherein it was allegedly stated that, in view of the direction of respondent no.2, they shall be paid salary with effect from 31.12.1980. The letters of respondent no.4 further stated that they were required to complete their training within a period of two years. Copies of the orders of respondent no.4 are marked Annexures 5 and 5/1 to the writ petition. 2.2. In spite of the orders dated 31.12.1980, the petitioners were not paid their salary leading to C.W.J.C. No. 1659 of 1983 at the instance of the five teachers of the school at Basauna. The State Government took a firm stand in the writ proceedings that respondent no.2 had never issued the said orders dated 31.12.1980, and are forged and fabricated orders. The writ petition was disposed of by a learned Single Judge of this Court by his judgment dated 29.8.1983, whereby the respondent authorities were directed to release the salary of the petitioners for the period 31.12.1980 to 30.4.1982, and also from 1.8.1982 till date. However, the respondent authorities were given the liberty to conduct an enquiry with respect to genuineness or otherwise of the aforesaid 5 orders dated 31.12.1980 of respondent no.2. 2.3. The four teachers of the school at Dholi simultaneously preferred C.W.J.C. No. 1670 of 1983, which was disposed of by the same learned Single Judge by his judgment dated 20.8.1983, on identical terms. 2.4. This was followed by order dated 12.11.1983 (Annexure-3), passed by respondent no.2, whereby the services of the nine petitioners were dispensed with on the ground that the said orders dated 31.12.1980 were forged documents and, therefore, the consequential orders were also forged and fabricated, leading to C.W.J.C. No. 5901 of 1983. The State Government took the stand that, in view of the aforesaid judgments in the two writ petitions, a full fledged enquiry was held and it was found that the letters were forged documents. Copy of the enquiry report is marked Annexure-F to the writ proceedings of the counter affidavit of the State Government. The Court was also informed about pendency of the criminal case against the petitioners with respect to the same. This writ petition, therefore, was disposed of without any relief to the petitioners. However, they were given the liberty to raise these issues 6 if the criminal trial ended up in their favour. This order was upheld by a Division Bench of this Court by order dated 27.8.1998, passed in L.P.A. No.1 of 1993. 3. The petitioners were acquitted by judgment dated 9.2.1999, passed by the learned Judicial Magistrate, First Class, Saharsa, in Trial No. 440 of 1985/374 of 1999 (State of Bihar V. Brijnandan Sinha). 4. In view of the liberty given by the learned Single Judge in the judgment dated 3.12.1992, the petitioners preferred C.W. J.C. No. 12239 of 2001, which was disposed of by a learned Single Judge of this Court with the liberty to file representation(s) before respondent no.2 for determination of issues of facts. These petitioners filed representation before respondent no.2, who has disposed of the same by his order dated 14.10.2003, wherein he has in substance held that the orders being relied upon by the petitioners are forged and fabricated documents, has therefore rejected the representation, and impugned in the present C.W.J.C. No. 1874 of 2004. The same has been dismissed by a learned Single Judge of this Court. Hence this appeal at the instance of the writ petitioners. 7 5. Learned counsel for the appellants submits that the learned Single Judge has over-looked a vital flaw in the impugned order wherein respondent no.2 has observed that he has no jurisdiction to deal with the matter. In stead of dealing with the matter on merits, the learned Single Judge should have referred the matter to an appropriate forum for determination of issues of facts. He next submits that the learned Single Judge has erred in holding that the appellants have failed to produce documents in support of their cases, in a situation where the entire relevant documents are in possession of the State Government. 6. Learned Government Counsel has supported the impugned order passed by respondent no.2. He submits that the appellants have never raised at any stage the question of taking over of their services, and indeed there is complete lack of adequate pleadings on their behalf. In his submission, he has proceeded on the presumption that their services have been taken over by the State Government and raised question of non-payment of salary only. He next submits that Annexures F and F/1 only direct for payment of salary, and there is no 8 indication of taking over the services of the appellants and continuity of their services. He lastly submits that the appellants never produced relevant documents in support of their cases before respondent no.2. 7. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The primary question for consideration in the present case is whether or not the aforesaid two letters dated 31.12.1980, of respondent no.2, allegedly conveying take over of the services of the appellants, are forged and fabricated documents, and the secondary question is whether or not the consequential orders marked Annexures 5 and 5/1 are forged and fabricated documents. The State Government has from the inception taken a clear stand that the two orders dated 31.12.1980, were never issued by respondent no.2, and are forged and fabricated documents. They have equally taken a clear stand that the consequential orders marked Annexures 5 and 5/1 are also forged and fabricated documents. They have equally been clear in their stand that the appellants were never in the services of the private management of the school and, therefore, there was no question of their 9 absorption in Government service. The matter has gone on for too long and ultimately, by order dated 20.11.2001, learned Single Judge directed respondent no.2 to consider the representation of the appellants on merits, and dispose of the same by a reasoned order. After affording a reasonable opportunity to the appellants, and on consideration of the representation of the appellants and other materials before him, respondent no.2 came to a firm conclusion that the two orders dated 31.12.1980 of respondent no.2 are forged orders. 8. He has, inter alia, observed as follows in support of his conclusion: ^^ funs”kd izkFkfed f”k{kk vius Lrj ls fdlh Hkh ekeys esa lsok vf/kxzg.k djus laca/kh vkns”k fuxZr djus gsrq l{ke ugha gSa] D;ksafd ,slk vkns”k jkT; ljdkj }kjk gh fuxZr fd;k tk ldrk gS A** We take it to mean that the position that the Director could not have passed an order for take-over of the services of a person, which could have been done only by the State Government, and is a very strong circumstance to conclude that the letters could not have been issued by respondent no.2. Therefore, the then Director of Primary Education, who is purported to have issued the aforesaid orders dated 31.12.1980, could not 10 have done so, because such an order taking over of the services of a teacher can only be passed by the State Government. The extracted portion could not be taken to mean that the functionary, who passed the impugned order dated 14.10.2003, had no authority to deal with the representation. In other words, the logic in the extracted portion of the order above was an additional ground in support of the conclusion that respondent no.2 had no authority to pass an order for take over of the services of teachers lending support to the conclusion that the orders dated 31.12.1980 were forged and fabricated documents, apart from the materials on record. The first contention raised on behalf of the appellants is rejected. 9. It is relevant to state that one such enquiry report dated 5.11.1983, is marked Annexure F to the counter affidavit in C.W.J.C. No. 5901 of 1983, is marked Annexure-E to the counter affidavit of the present writ proceedings, and is to the effect that some of the candidates did not have minimum educational qualification on 1.1.1971. The relevant portion of the enquiry report is reproduced hereinbelow: ^^ bl ckr dh Hkh tkWap dh x;h fd oknh foHkkxh; fu;eksa ds vkyksd esa lsok vuqeksnu dh vkgZrk j[krs gSa ;k ugha fdUrq tkWap ds dze esa irk yxk fd ,d 11 f”k{kd us 1&1&71 ds ckn eSfV~zd ikl fd;k A nks f”k{kdksa ds nks fofHkUu ;ksX;rk ds izek.k&i=ksa dks feyku djus ls irk yxk fd mudh tUe frfFk;kWa nksuksa esa fHkUu&fHkUu gS vkSj muesa nks&nks] rhu&rhu o’kksZ dk vUrj gS A ,d f”k{kd us eSfFkyh fo”ofon~;k&ihB njHkaxk ls ;ksX;rk izkIr dh gS ftldh dksbZ ekU;rk ugha gS A vr% bu f”k{kdksa dks f”k{kk foHkkx }kjk lsok dk vuqeksnu nsuk fdlh izdkj ls laHko ugha gS A vr% tkyh vkns”k i= ds vk/kkj ij bu 9 O;fDr;ksa dks dh x;h fu;qfDr dks vkns”k fuxZr dh frfFk ls jn~n fd;k tkrk gS A ** It is thus evident that these petitioners have fabricated documents in support of their cases and have embroiled the State Government as well as this Court in incessant litigations. This must stop forthwith. 10. Learned counsel for the appellants next contends that the learned Single Judge should not have taken upon himself the responsibility of deciding issues of facts, and should have instead referred the same to an appropriate forum. While passing the impugned order, respondent no.2 did discharge the duty and function of determination of issues of facts, as directed by this Court. We are in doubt that he was indeed an appropriate forum of facts. He was in seisin of the matter, examined the stand taken in the representation, and reached a firm conclusion that the documents in question were forged and fabricated documents. Secondly, the learned Single Judge in exercise of powers of judicial review, wanted to satisfy 12 himself whether or not respondent no.2 has disposed of the representation of the petitioners in the right spirit. The learned Single Judge has observed as follows in his order: “Considering the submissions of learned counsels for the parties and after going through the documents produced on record, this Court is of the view that it is not possible for this Court to accept the claims of the petitioners only on the basis of said two office orders issued by the respondent District Superintendent of Education, Saharsa, as contained in Annexures-5 and 5/1. Petitioners were aware of the dispute and denials of respondents in the matter from 1983 itself. Still, till today they have not produced any contemporaneous document to show that they were appointed in the schools by their Management prior to take over, they continued in schools at the time of their take over, their names were considered by the Screening Committee which had taken up the matter of take over of the schools, accepting their existence in the schools and making any comments, in their favour or otherwise, in its report. It is true that if a document is in exclusive possession of a party, onus is on that party to produce the same. Learned counsel for the petitioners submits that since the alleged letters of the Director, Primary Education were addressed and sent to the respondent District Superintendent of Education, Saharsa, petitioners cannot be called upon to produce the same and failure of which cannot be made basis for rejecting the claims of the petitioners. However, when the existence of the said letters is being denied by the respondents since 1983 itself, it was incumbent upon the petitioners to produce any contemporaneous document to establish their existence in the schools at the time of take over and that their cases, at any point of time, were considered by the authorities thereafter. There being not a single 13 contemporaneous or collateral document in support of Annexures 5 and 5/1, these two solitary documents in the form of office order of the District Superintendent of Education, Saharsa, cannot be treated as sufficient and conclusive to establish their right.” (Emphasis added) With great respect to the learned Single Judge, he has assigned sound reasonings in support of his conclusion, and has rightly dismissed the writ petition. We can do no better than to adopt the same as part of our own order. The second contention is also rejected. 11. In the result, we agree with the order of the learned Single Judge. The appeal is dismissed. There shall be no order as to costs. Vikash Jain, J. I agree. Patna High court, Dated 5th July, 2011 Vinay/ A.F.R. ( S. K. Katriar, J.) ( Vikash Jain, J.)