IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10156 of 2009 ******** RAM PRAYAG SINGH S/O SHRI RAM PRABESH SINGH, EX-ASSISTANT TEACHER, MIDDLE SCHOOL, BANKA, BAHUARA, POLICE STATION- RAMGARH (MUAON), DISTRICT- KAIMUR (BHABUA). PERMANENT ADDRESS- R/O VILLAGE DERA, POLICE STATION- NOKHA, DISTRICT- ROHTAS. …………….. Petitioner Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA 3. THE DISTRICT MAGISTRATE-CUM-CHAIRMAN, DISTRICT ESTABLISHMENT COMMITTEE, ROHTAS AT SASARAM 4. THE DISTRICT SUPERINTENDENT OF EDUCATION-CUM- SUB DIVISIONAL EDUCATION OFFICER, KAIMUR (BHABUA) 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, ROHTAS (SASARAM) 6. THE SUB DIVISIONAL EDUCATION OFFICER, BHABUA 7. THE HEADMASTER, MIDDLE SCHOOL, BANKA BAHUARA, POLICE STATION- RAMGARH, DISTRICT- ROHTAS. …………………. Respondents ----------- For the Petitioner : 1. M/s Pushkar Narain Shahi : 2. Om Prakash Upadhyay : 3. Mithilesh Kumar For the Respondents : 1. Mr. Sunil Kumar Mandal : 2. Mr. Bipin Kumar 8. 09.11.2010 As per the case of the petitioner, he was appointed as Assistant Teacher on 20.6.1983 vide Annexure-1, pursuant to a selection process held by the respondents. Later on some controversy arose and petitioner’s services were terminated by order dated 31.10.1990 passed by the District Superintendent of Education, Rohtas in which reason had been assigned that in the office memo no. 3780 dated 20.6.1983 the petitioner’s name was 2 not mentioned as a selected candidate. The said termination order was without any inquiry and without any opportunity having been granted to the petitioner to defend his appointment. Accordingly, petitioner filed a writ application before this court, namely, C.W.J.C. No. 7345 of 1990. The said writ application was allowed by order dated 13.4.1992, as contained Annexure no.-3, and order of termination of petitioner was set aside with liberty to the respondents that if they were still of the view that the appointment of the petitioner was not valid, they could proceed in the matter in accordance with law. In view of the order of the termination being set aside by this court, petitioner kept on approaching the respondent for his reinstatement and for payment of his salary. He also filed a representation dated 17.1.2001, as contained Annexure -4. In spite of the same, he was neither reinstated by the respondents nor his salary was paid nor any fresh inquiry was held by giving him adequate opportunity. Hence the petitioner has moved this court through this writ application for a 3 direction to the respondents to appoint him in the school where he was last working, in the light of the order passed by this court in the earlier writ application. When, on the last date this court found that, in spite of setting aside of him termination order, the petitioner was neither reinstated nor paid his salary and there was nothing on record to show that inspite of liberty granted by this court, any fresh inquiry was held and fresh order was passed, this court directed the Director, Primary Education to examine the matter and file a counter affidavit personally sworn by him. Pursuant to the said order the Director has filed an affidavit. The affidavit itself shows that after the said order dated 9.9.2010 passed by this court was made known to the respondents the respondent D.S.E., Kaimur examined the records made available to him on 1.10.2010 and passed an order that very day as contained in memo no. 1255 dated 1.10.2010 holding the appointment of the petitioner as invalid. Hence he rejected the representation of the petitioner for his joining and payment of salary. 4 This order has been challenged by the petitioner through I.A. no. 9127 of 2010, which, in the facts and circumstances of the case, is allowed. Learned counsel for the petitioner submits that the impugned order of respondent D.S.E., Kaimur itself shows that there were two reports before him and two list of selected candidates forwarded by the District Superintendent of Education, Rohtas. In one list, which was photo copy of a list of candidates selected for appointment, enclosed with the office order dated 20.6.1983 of the District Superintendent of Education, Rohtas, the name of the petitioner was not there, and at serial 36 and the name of one Ram Vilas Singh was mentioned. However, another authenticated list, was also made available to him, which was forwarded with letter dated 24.12.2005 of the District Superintendent of Education, Rohtas to District Superintendent of Education, Kaimur, within whose jurisdiction the school fell after the creation of the district. The copy of the said forwarding letter dated 24.12.2005 of the District Superintendent of Education, Rohtas, along with the 5 authenticated list, is contained in Annexure-10 with the reply of the petitioner to the counter affidavit. It appears that the present District Superintendent of Education, Rohtas, in reply to some query made by District Superintendent of Education, Kaimur, sent him another letter on 1.10.2010 enclosing therewith, the photo copy of original office order dated 20.6.1983 issued from the office of District Superintendent of Education, Rohtas, and the said photocopy of list of the letter enclosed selected canditates in which the name of the petitioner was not there, However, in the said letter of District Superintendent of Education, Rohtas, as contained in Annexure-B to the counter affidavit, it has been categorically mentioned that apart from the office order as contained in memo no. 3780 dated 20.6.1983 along with which the list of selected candidates was enclosed, which did not contained the name of the petitioner, there was another list available in the records of the office of the District Superintendent of Education, Rohtas. That list, contained the name of the petitioner. It is mentioned in the said letter that the duly 6 authenticated list along with letter no. 3192 dated 24.12.1995 had already been forwarded to the District Superintendent of Education, Kaimur. The said letter with list on record as Annexure-10. The facts mentioned above shows that there is controversy with regard to the entry of the name of the petitioner in the original select list, in the light of the said office order dated 20.6.1983 of the D.S.E., Rohtas and the order of appointment issued vide list enclosed with the same (Annexure-B). The said letter dated 1.10.2010 of District Superintendent of Education, Rohtas mentions that the list along with letter no. 3780 dated 20.6.1983 was not the original and was only an old photo copy. Learned counsel for the petitioner has submitted that a criminal case was also instituted against the petitioner for having obtained the appointment on forged appointment letter. Petitioner was put on trial and the prosecution contested and produced witnesses. The witnesses deposed in favour of the petitioner and supported the genuineness of his appointment and therefore, by judgment dated 10.4.1995 he was acquitted. 7 From the impugned order of the D.S.E., Kaimur, it is clear that he has not examined the original records himself and has only placed his reliance on the said letter of the District Superintendent of Education, Rohtas dated 1.10.2005 and has passed his order on the same day he remind the same. From a bare reading of the impugned order, it is apparent that the D.S.E., Kaimur has placed his findings on the first part of the said letter (Annexure-B) and has ignored the second part of the letter where it has been categorically stated that in the records of the office of the District Superintendent of Education, Rohtas, another list of the selected candidates was available in which the name of the petitioner was mentioned. Clearly, this is non application of mind by the respondent D.S.E., Kaimur. It appears that only in view of the order passed by this court and pendency of the matter since 1992, he has hurriedly passed this order without examining the records himself. This is also clear that though the earlier writ application of the petitioner was allowed and his termination was set aside in 1992, primarily on the ground that the petitioner was not allowed any 8 opportunity of hearing before adverse order was passed against him, the D.S.E., Kaimur has done again. Since he has given his findings in the impugned order on basis of said letter of the District Superintendent of Education, Rohtas dated 1.10.2010 and has passed his orders on the same very day, by no stretch of imagination, it can be inferred that he held any inquiry or granted any opportunity to the petitioner to explain the situation and defend his appointment. In this situation the impugned order of the D.S.E., Kaimur, as contained in Annexure-c, clearly suffer from non-application of mind and in violation of principles of natural justice. The same is accordingly quashed. It may also be submitted that, although by order dated 9.9.2010, this court had directed the Director, Primary Education examine the matter and file affidavit, he has filed affidavit merely enclosing the order of the D.S.E., Kaimur and stating facts as disclosed therein. Clearly the Director has not applied his independent mind to the matter as expected by this court. However, since there is a controversy with regard to selection and mention of the name of the 9 petitioner in the select list for appointment, the Director is given liberty to examine the matter himself by calling for the original records and examining the same himself with due opportunity to the petitioner to appear in the inquiry personally and be present at the time of verification of the original records to ascertain the truth as to whether the petitioner was in fact a selected candidate or not. It is emphasized that without affording such an opportunity, the Director shall not pass any orders behind the back of the petitioner. Now the question arises, whether the petitioner is entitled for being treated as reinstated after the order of this court was passed in his favour in 1992 and whether he is entitled for payment of salary or not. It is settled law that if an appointment is found to have been obtained fraudulently or on account of some forgery, the appointment can be cancelled from the initial date itself and in that situation the incumbent cannot claim salary for the period he has actually worked. As such, this court is unable to pass orders for his reinstatement and payment of back wages at this stage. However, it is made clear that in case such an inquiry after giving 10 full opportunity to the petitioner as indicated above, is not completed and orders are not passed within two months from today, the petitioner shall be reinstated in service from the next date as consequence of setting aside of his termination order by this Court by order dated 13.4.1992 and he shall also be entitled for his salary for the entire period. Writ application is allowed with the aforesaid observation and directions. Fahad. ( Jayanandan Singh, J. )