IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.93 of 2010 1. THE STATE OF BIHAR 2. The Secretary cum Commissioner, Secondary Education, Govt. of Bihar, Patna 3. The Director, Secondary Education, Patna, Bihar 4. Regional Deputy Director of Education, Tirhut Division, Muzaffarpur 5. District Education Officer, West Champaran, Bettiah 6. Headmaster, Gutti Lal Girls High School, Ramnagar, District West Champaran … Respondents/Appellants Versus RAM REKHA MISHRA, son of Sri Ganesh Mishra, resident of village Singari, P.S. Bagha, District West Champaran … Petitioner/Respondent. ----------- For the Appellant : Mr. Sunil Kr. Mandal, S.C.-15 Mr. Arjun Prasad, Advocate For the Respondents : Mr. Ramnivas Tiwary, Advocate ---------- 3. 2.2.2010 I.A.No. 403/2010 Having heard counsel for the parties as also after taking into accounts the facts and circumstances mentioned in this application seeking condonation of delay of 234 days in filing this appeal is allowed. I.A.No. 403/2010 is accordingly disposed of. L.P.A. No. 93 of 2010 Having condoned the delay, we have also heard the counsel for the parties on the merits and are inclined to dispose of this appeal at the stage of admission itself. 2 The appellants being the State and its authorities are aggrieved by the order dated 10.2.2009 in C.W.J.C.No. 2051/2001 whereby and whereunder the learned Single Judge has set aside the order of termination of the respondent writ petitioner with a further direction to reinstate him on the post on which he was working with consequential benefits. The writ application was filed by the respondent writ petitioner assailing his order of termination of service dated 20.6.2000 based on the ground that his appointment itself was illegal. The learned Single Judge, however, on the basis of the pleadings on record has held that in view of continued service of the respondent writ petitioner for a period of ten years as also recording a finding with regard to genuineness of the appointment of the petitioner in the enquiry held on two occasions earlier, it could not be held that any forgery was made by the petitioner in order to get his appointment. It has been also held that the District Education Officer had himself made the appointment of the respondent writ petitioner, who was working as regular employee and therefore, he could not 3 have been removed from service simply by asking a show cause notice and without following the prescribed procedure for removal of a regular employee. Learned counsel for the appellants while assailing the impugned order of the learned Single Judge has contended that the District Education Officer had no jurisdiction to make such appointment of the respondent writ petitioner, inasmuch as under the statutory rules such power was vested in the Headmaster of the School who also could have made such appointment from a district panel prepared by the Collector of the District in terms of the circular of the Personnel and Administrative Reforms Department in letter no. 16441 dated 3.12.1980. It was further submitted that from the appointment letter of the respondent writ petitioner itself it would be clear that no such procedure for regular appointment was followed and as such, the same was not binding on the State. It was further submitted that as the appointment of the petitioner itself was not regular, there was no occasion for holding regular departmental proceeding meant only for the permanent employees and therefore, if the writ petitioner was given a show cause notice to 4 which he had also filed his reply, the principles of natural justice had been sufficiently followed before passing of his order of termination. Counsel for the respondent writ petitioner, on the other hand, has submitted that it would be too late in the day to describe the appointment of the respondent writ petitioner as illegal, inasmuch as he had not only continued in service for a period of ten years but had also been screened for the purposes of his being appointed as a Class III employee which by itself would be an evidence of the fact of his appointment being valid and legal. In the opinion of this Court there is no denial to the fact that the appointment of the petitioner was made by the District Education Officer, who under the statutory rules, namely, Bihar Rajkiyakrit Madhayamik Vidyalaya (Sevasarta) Niyamawali, 1983 framed under section 9 of the Bihar Arajkiya Madhayamik Vidyalaya (Prabandh Awan Niyantran Grahan) Adhiniyam, 1981 was not authorized to make appointment of a Class IV post. Rule 8(2) of the aforementioned Rules being relevant for this purposes as quoted hereinbelow: 5 ^^prqFkZ oxhZ; deZpkjh dh fu;qfDr%& ¼d½ prqFkZ oxhZ; deZpkfj;ksa dh fu;qfDr 16441 fnukad 3-12-80 esa fofgr izko/kkuksa ds vkyksd esa jkT; ljdkj }kjk le; le; ij tkjh vkns'kksa ds v/khu ¼ns[ksa dkfeZd foHkkx dk i=kad 16441 fnuakd 3-12-80 ifjf'k"V&4½ rS;kj fd;s x;s iSuy ls iz/kkuk/;kid }kjk dh tk;sxha prqFkZ oxhZ; deZpkjh dh fu;qfDr ds fy, U;wure ;ksX;rk v/kksfyf[kr gksxh& ¼i mEehnokj LoLFk gksA ¼ii mEehnokj lkbZfdy pykuk tkurk gksA ¼(iii½ mEehnokj i<+uk&fy[kuk tkurk gksA ¼[k½ prqFkZ oxhZ; deZpkfj;ksa dk ftyk lEoxZ gksxkA ftyk f'k{kk inkf/kdkjh buds fu;a=h inkf/kdkjh gksaxsA izokj dksfV esa ;fn dksbZ in gks] rks ftyk f'k{kk inkf/kdkjh }kjk izksUufr mDr lEoxZ ls nh tk ldsxhA** From the perusal of the aforementioned Rule it would be clear that whereas the power of appointment has been vested only in the Headmaster of the School, the appointment of the petitioner was made by the District Education Officer, West Champaran, Bettiah on 22.7.1990. Thus, the appointment of the petitioner was in violation of the statutory rules. The order of termination, however, was not passed on the aforesaid ground, rather it was based on the following four grounds: ^^1- budh fu;qfDr esa foHkkxh; fofgr izfdz;k dk ikyu fu;qfDr ds le; ugha fd;k x;k vkSj u gh 6 jksLVj Dyh;jsal djk;s x;s ,oe~ vkj{k.k ds fu;eksa dk ikyu ugha lqfus'pr fd;k x;kA 2- dk;kZy;&vfHkys[kksa dks ns[kus ls ,slk izrhr gksrk gS fd budk fu;qfDr i= dk;kZy; }kjk fuxZr ugha fd;k x;k gSa 3- budh fu;qfDr gsrq uk rks foKkiu gh fudkyk x;k vkSj uk gh varZfo{kk yh x;hA 4- bl izdkj budh fu;qfDr ds izR;sd izdze esa vfu;ferrk] voS/k ,oe~ iwoZ fu;ksftr <ax ls fu;qfDr i= izkIr djus ds iqf"V gksrh gS] D;ksafd budh fu;qfDr esa dkfeZd foHkkx ds i=kad 16440 fnukad 3-12-80 esa fu:fir izko/kkuks dk mYya?ku fd;k x;k gSA** The aforesaid four grounds would go to show that the authorities including the District Education Officer while passing the order of termination had taken into account such factors by even alleging the writ petitioner to have obtained the appointment by practicing fraud, inasmuch as one of the ground was that even the order of appointment was not issued from the issue register of the office of the District Education Officer. Such stigmatic order touching the fringe of fraud practiced by the respondent writ petitioner in obtaining his appointment therefore had definitely required holding of a departmental enquiry. However there is no denial to this fact that no such departmental enquiry was 7 conducted and the services of the respondent writ petitioner were terminated only by subjecting him to a show cause notice. Such slip-slod procedure in case of a charge of obtaining of appointment by practicing fraud definitely required a regular departmental proceeding. Reference in this connection may be made to the case of Subodh Kumar Prasad vs. the State of Bihar & ors., reported in (2001) 10 SCC 282= 2001(3) PLJR 187 (S.C.), wherein while examining the plea of the State supporting the order of termination on the ground that since the order of appointment was not issued from the issue register of the concerned Civil Surgeon, such appointment letter had conferred no right and was good enough for termination of service the Apex Court had held as follows: “ What should have been really examined in the case is the letter of appointment itself and not the mere registers which indicate dispatch of letters. If the letter of appointment issued to the appellant was a fake one, there was certainly a cause for disciplinary action, but not by merely looking to the register such conclusion could be inferred for numbers noted therein may 8 have been as a result of mistake. Therefore, the inquiry should have been as to the actual nature of the order or the letter of appointment issued to the appellant” The minimum requirement of natural justice in such cases therefore was that the writ petitioner had to be informed of the charges against him and could have been given an opportunity to prove that the rules of appointment were not followed and that there was some sort of hara-kiri at his behest in obtaining his appointment. That having been admittedly not done this Court would not find any error in the order of the learned Single Judge and consequently that part of the order whereby and whereunder the order of termination of the petitioner was set aside does not require any interference by this Court. The next issue would be as to whether the petitioner would be entitled for reinstatement with back wages from 20.6.2000 and till date, by way of consequential benefit as directed by the learned Single Judge. It has been noticed that the appointment of the petitioner was not in keeping with the statutory rules and 9 therefore, the petitioner would not be entitled for payment of back wages till it is held that the order of appointment of the petitioner was made in accordance with law. For this purpose an enquiry has to be held and all the four grounds of termination have to be specifically addressed to by way of charge against the petitioner. Such enquiry in view of the fact that both the appointment and termination was made by the District Education Officer should be conducted by the Director of Secondary Education himself who under the rules is the Head of the Department. It is, accordingly, directed that the respondent writ petitioner will be reinstated in service on the post of Peon and a departmental enquiry by the Director, Secondary Education, would be conducted after affording opportunity of hearing of the Respondent writ petitioner and the same would be concluded within a period of six months from the date of receipt of this order. The Director, Secondary Education on the basis of evidence led before him by the writ petitioner and the District Education Officer, Bettiah will be under obligation to pass a reasoned order in the aforementioned period of six months. 10 This Court while holding that the respondent writ petitioner would not be entitled for back wages in the peculiar facts and circumstances of this case has taken into account the judgment of the Apex Court in the case of State of Maharashtra & ors. vs. Reshma Ramesh Meher & anor., reported in (2008) 8 SCC 664, wherein it was held that: “24. It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back wages, which is independent of reinstatement. While dealing with the prayer of back wages, factual scenario, equity and good conscience, a number of other factors, like the manner of selection, nature of appointment, the period for which the employee has worked with the employer etc., have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case. 25. In Haryana Roadways v. Rudhan Singh a 11 three-Judge Bench of this Court has observed that there cannot be a straitjacket formula for awarding relief of back wages and an order of back wages should not be passed in a mechanical manner. It has been held that a host of factors, like the manner and method of selection and appointment; the nature of appointment, namely, whether ad hoc, short term, daily wages, temporary or permanent in character’ and the length of service, which the workman had rendered with the employer are required to be taken into consideration before passing any order for award of back wages. (See also Haryana State Electronics Development Corpon. Ltd. vs. Mamni; U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey and U.P. SRTC v. Mitthu Singh) 26. Having considered the matter on the touchstone of the aforenoted broad principles, we are of the opinion that the facts in hand do not warrant payment of back wages to the respondents. In the instant case, though there is no allegation against the respondents that originally the caste certificates were obtained by them fraudulently and, in fact, none of the authorities have recorded any findings to that effect, yet we feel that non-disclosure of the Caste Scrutiny Committee’s Report dated 12 23.3.1996/ 27.3.1996 by the respondents before the Tribunal is tantamount to suppression of material and vital information from the Court, bordering fraud.” The case in hand in fact is almost identical, inasmuch as even the respondent writ petitioner in his show cause reply (Annexure 14 to the writ petition) had admitted that the procedure prescribed under the statutory rules in his appointment i.e. preparation of a panel in terms of the circular of Personnel and Administrative Reforms Department dated 3.12.1980 was not followed. It has to be noted that under the aforementioned circular having been given statutory effect under the Rules an advertisement had to be published by the Collector of the District and the appointment to be made by the Headmaster from the panel prepared by the Collector of the District, whereas the petitioner had in his show cause reply taken the following plea: ^^vkids }kjk Hksts x, Li"Vhdj.k ds vkyksd esa fuosnu gS fd eSa ,d cgqr xjhc O;fDr gwWA esjs ;ksX;rk eSfVz`d ikl dh gSA o"kZ 1986 ls xqVhyky dU;k mPp fo|ky; esa vkns'kiky dk in fjDr Fkk ftl ij cgkyh ds fy, ckj&ckj izk/kkuk?;kfidk us vkxzg fd;k FkkA o"kZ 1990 esa LFkkuh; foKkiu fudkyk x;k tks fo|ky; 13 f'k{kk foHkkx ds dk;kZy; esa fpidk, Hkh x, FksA blh foKkiu ds }kjk eq>s fjDfr dh tkudkjh feyh Fkh rFkk eSus vkosnu fn;k FkkA ftyk f'k{kk inkf/kdkjh }kjk fu;kstuky; ls uke ekaxk x;k FkkA ftlesa esjk uke vk;k FkkA ,oa fo|ky; dh rkRodkyhu izHkkjh iz/kkuk/;kid rRdkyhu ftyk f'k{kk inkf/kdkjh ,oa dqN vU; yksxkas ds mifLFkfr esa esjh vUrjh{kk gqbZ FkhA ftlds ckn esjh fu;qfDr laEcU/kh vkns'k fuxZr fd, x;A vkns'kiky dh Hkh cgkyh gqbZ Fkh esjh cgkyh lEcU/kh lkjs dkxtkr ftyk f'k{kk v/kh{kd dk;kZy; esa ekStqn gksxsA** Obviously if the appellants had taken a decision to terminate such appointment of the respondent writ petitioner which was allegedly made dehors the statutory rules the same would require a further enquiry as has been directed above and therefore this Court by following the ratio of the Apex Court in the case of Reshma Ramesh Meher & anor. (Supra) would hold that the respondent writ petitioner will not be entitled for payment of salary and emoluments for the period 20th June, 2000 i.e. the date of his termination to the date of his reinstatement. The Respondent writ petitioner however will be paid his full salary from the date of acceptance of his joining in terms of this order and such payment would be made for the period he would render 14 his service till an order is passed by the Director Secondary Education in the manner indicated above in this order. The further continuance in service of the Respondent writ petitioner and payment of his salary beyond six months and/or date of completion of enquiry would however abide by the decision and final order to be passed by the Director, Secondary Education. With the aforementioned modification in the impugned order passed by the learned Single Judge this appeal is disposed of. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/