IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.77 of 2008 IN (CIVIL WRIT JURISDICTION CASE 13836/2001) =========================================================== 1. THE STATE OF BIHAR 2. THE DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 3. THE DISTRICT MAGISTRATE, ARARIA, DISTRICT-ARARIA 4. THE DISTRICT SUPERINTENDENT OF EDUCATION-CUM-SUB- DIVISIONAL EDUCATION OFFICER, ARARIA, DISTRICT- ARARIA 5. THE HEAD MASTER MIDDLE SCHOOL, SAHBAJPUR ANCHAL FORBISHGANJ, DISTRICT- ARARIA .... ....Respondents/Appellants Versus 1. MD.WASIQUR RAHMAN S/O LATE MD. SAMIDUR RAHMAN, HEAD MASTER, PRIMARY SCHOOL OSIRI POST KUSMAHA, P.S.- JOGBANI ANCHAL- FORBISGANJ, DISTRICT- ARARIA 2. MD. SHAMIM AKHTAR S/O LATE ABDUR RAHMAN ASSISTANT TEACHER PRIMARY SCHOOL OSIRI, POST KUSMAHA, P.S. JOGBANI ANCHAL FORBISGANJ, DISTRICT- ARARIA .... ....Petitioners/ Respondents =========================================================== Appearance : For the Appellants : Mr. Prasoon Sinha, G.A.-2 : Mr. Satish Narain Singh, Adv. For the Respondents : Mr. Rajendra Prasad Singh, Sr. Adv. : Rakesh Kr. Singh, Adv. =========================================================== CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIKASH JAIN) 1. The present L.P.A. has been filed against the order of the learned Single Judge dated 05.07.2007 by which the orders dated 24.9.2001 and 26.9.2001 for recovery of the salary paid to the petitioners as contained in Annexures-1 and 1-A of the writ petition have been quashed, and further, the petitioners have been granted liberty to file a representation before the District Patna High Court LPA No.77 of 2008 dt.24-11-2011 2 Superintendent of Education-cum-Sub-Divisional Officer, Araria (hereinafter referred to as “the DSE”) with regard to their claim for payment of arrears of salary. 2. The facts in brief are that the petitioners herein had earlier approached this Court in C.W.J.C. No. 361 of 1991 against the cancellation of their appointment which was said to have been made on the basis of forged and fabricated certificates. The writ petition was disposed of by order dated 02.12.1991, inter alia, with liberty to the DSE to enquire, with notice to the petitioners, whether the said certificates produced by the petitioners were genuine or not. The DSE was directed to pass final orders in that behalf and also for payment of salary of the petitioners in case it was found on the basis of materials that the certificates in question were genuine. 3. Pursuant to the aforesaid order of this Court in C.W.J.C. No. 361 of 1991, it appears that an enquiry report dated 06.08.1993 was prepared under the signature of the DSE (Respondent no.4) along with that of the District Magistrate, Araria (Respondent no.3). The matter of the genuineness of the certificates of the petitioners was dealt with as heading proposal no. 3 therein, whereby the certificates were held to be fabricated. 4. It is stated by learned counsel for the petitioners that owing to non-payment of salary, the petitioners had approached the District Magistrate, Araria with an application dated 25.06.1997, requesting that the order passed by this Court on 02.12.1991 be given effect to and the requisite enquiry be held. Such a request Patna High Court LPA No.77 of 2008 dt.24-11-2011 3 was naturally made in ignorance of the existence of the enquiry report dated 06.08.1993 which was supposedly already available on records. 5. The District Magistrate, in turn, by letter dated 29.07.1997 directed the DSE to hold the enquiry in terms of the order dated 02.12.1991 passed by this Court in C.W.J.C. No. 361 of 1991, and prepare a final enquiry report. 6. Accordingly, the DSE prepared his enquiry report dated 27.08.1997 wherein he concluded that the certificates of the petitioners were genuine and in order. 7. Pursuant to the later enquiry report dated 27.08.1997, the petitioners were reinstated by issuance of Memo No. 38 dated 03.11.1997. 8. Learned counsel appearing on behalf of the State submits at the outset that the earlier enquiry report dated 06.08.1993 having been prepared in compliance with the directions of this Court in its order dated 02.12.1991 was final and conclusive and that there was no occasion for the District Magistrate to have interfered in the matter upon the petitioners’ application by directing the DSE to conduct an enquiry, as done by him. 9. He further submits that in view of the said earlier enquiry report having been validly made and the certificates having been found to be fabricated, the orders for recovery of salary (Annexure- 1 & 1-A to the writ petition) were perfectly in order and ought not to have been quashed by the learned Single Judge. There was also no question of the petitioners’ entitlement to arrears of salary in Patna High Court LPA No.77 of 2008 dt.24-11-2011 4 view of the appointment itself being founded upon forged certificates, and the observations of the learned Single Judge in this regard are therefore liable to be set aside. 10. Learned senior counsel, Mr. Rajendra Prasad Singh, appearing on behalf of the petitioners, on the other hand, primarily questions the sustainability of the earlier enquiry report dated 06.08.1993, which according to him, was prepared without any prior notice or hearing, and denies having received a copy thereof even after its preparation. It was in fact for this reason that it had become necessary to approach the District Magistrate for having the enquiry conducted in view of their salary not being paid as their appointments had been cancelled. 11. He further submits that the enquiry conducted and the resultant enquiry report prepared on 06.08.1993 remained within the confines of the files of the authorities without seeing the light of day and never came to be formalized in terms of any order passed. As such, he contends that no significance can be attached to such enquiry report which must be ignored in favour of the later enquiry report which alone could be considered for basing future action. 12. Learned counsel for the petitioners also took objection to the impugned orders for recovery of salary (Annexures-1 & 1-A to the writ petition) and submitted that the same are not sustainable inasmuch as the same have been issued without serving any prior notice and are thus in violation of the principles of natural justice. 13. The learned Single Judge in his order dated 05.07.2007 has Patna High Court LPA No.77 of 2008 dt.24-11-2011 5 upheld the later enquiry report dated 27.08.1997 and while doing so, he has rejected the stand of the State that such enquiry report was not valid having not been placed for approval before the District Education Establishment Committee. He found no infirmity in such later enquiry report, the same having been prepared by the DSE in pursuance of the specific observations of this Court in C.W.J.C. No. 361 of 1991. 14. We have heard the parties at length and considered their submissions as well as the available materials on record. There are admittedly two enquiry reports, both bearing the signatures of the DSE, but however are diametrically opposed and in contradiction to each other. 15. It is noteworthy that the impugned orders of recovery (Annexure-1 & 1-A to the writ petition) are completely silent with respect to the earlier enquiry report dated 06.08.1993, rather they refer merely to the reinstatement order dated 03.11.1997 which is founded upon the later enquiry report holding the petitioners’ certificates to be genuine, on the ground that such later enquiry report had not been approved by the District Education Establishment Committee. It is well settled that the validity of an order has to be adjudged on the basis of the reasons contained therein and cannot be improved upon subsequently through affidavits. Authority if any be needed, may be had of the decision of the Apex Court in Mohinder Singh Gill v. Chief Election Patna High Court LPA No.77 of 2008 dt.24-11-2011 6 Commissioner (1978) 1 SCC 405, at page 417 whereof it was held as follows - “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.” 16. There can be no gainsaying that the petitioners were not noticed prior to passing of the impugned orders of recovery and particularly also in the context of the earlier enquiry report dated 06.08.1993. Learned counsel for the State has also not been able to repudiate this aspect of the matter. 17. Be that as it may, it is not the case of the State that the petitioners were otherwise either unqualified or ineligible for being appointed, rather it is only a case where genuineness of the certificates has been doubted but even this remained an open question as the two enquiry reports contradicted each other. 18. In view of the conflicting enquiry reports available on record and also in view of the failure of nature justice as aforesaid, the impugned orders for recovery of salary of the petitioners (Annexure-1 & 1-A to the writ petition) cannot be sustained and as such we find no error in the order of the learned Single Judge who has rightly quashed the same. 19. However, the fact of the existence of the earlier enquiry Patna High Court LPA No.77 of 2008 dt.24-11-2011 7 report, for whatever it be worth, considering that the authorities themselves have ignored it while passing the impugned order of recovery, cannot also be lost sight of. 20. As such, in the peculiar facts and circumstances of the case, we are of the further opinion that the petitioners would not be entitled to any arrears of salary, rather the ends of justice will be met if directions are issued to the Respondent-State to make payment of salary to the petitioners for the period they have actually worked, after deducting any amount as may have already been paid to them on that account. 21. It is made clear that this judgment shall not stand in the way of the Petitioners should they choose to apply for any employment in the private sector hereafter. 22. The observations/directions of the learned Single Judge in this regard stand modified to the above extent, and the L.P.A. accordingly stands disposed of. ( T.Meena Kumari, J. ) ( Vikash Jain, J. ) Patna High Court, Patna Dated: 24th November, 2011 AFR/ Fahad.