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2000 DIGILAW 983 (PAT)

Satish Kumar v. State Of Bihar

2000-08-10

S.N.JHA

body2000
Judgment S.N.Jha, J. 1. This writ petition on behalf of five petitioners is directed against the order as contained in Memo No. 1208 (22) dated 18.11.95 of the Directorate of Health, Government of Bihar, by which their services have been terminated. The facts of the case briefly stated are as follows. 2. The Bihar State Subordinate Services Selection Board (in short, Board) invited applications for appointment to the post of Assistant vide Advt. No. 6/85, better known as Second Graduate Standard Assistants Examination 1985. The petitioners claim to have applied pursuant to the said advertisement and appeared at the written examination held for the purpose on 27th & 28th December 1986. Before the results could be finalised the Board was dissolved. Writ petitions being CWJC No. 4392/91 and CWJC No. 1412/92 were filed seeking suitable directions upon the respondents to take steps for appointment on the basis of said examination. Pursuant to the order passed in those writ petitions as well as MJC No. 242/93 arising therefrom, the Bihar Public Service Commission (in short, Commission), which had taken over the left over work of the Board, took the follow up steps. As the records of the Board were found to be in disarray the Commission by notice dated 6.7.93 asked the candidates who had appeared at the examination to submit second i.e. duplicate application. The petitioners claim to have submitted applications pursuant to the said notice. Finally on 30.11.93 the Commission recommended the names of 268 persons including those of the petitioners for appointment. The Health Department apparently in order to satisfy itself about the genuineness of candidature of the recommended candidates called upon them to furnish their papers for the purpose of verification by a Committee. Between 27.12.93 and 31.12.93 the verification of certificate etc. was made in course of interview. Ultimately on 14.2.94 the recommended candidates including the petitioners were issued appointment letters and they joined their respective posts. 3. Between 27.12.93 and 31.12.93 the verification of certificate etc. was made in course of interview. Ultimately on 14.2.94 the recommended candidates including the petitioners were issued appointment letters and they joined their respective posts. 3. Later on 24.8.94 and again on 21.10.94 the Commission informed the Commissioner and Secretary of the Health Department that the roll numbers mentioned by some of the candidates, including the petitioners herein, in their second/duplicate application filed before the Commission (pursuant to notice dated 6.7.93) had been found to have been allotted by the Board to other candidates and thus it appeared that they were not genuine candidates who had appeared at the examination conducted by the Board and hence recommendations in their cases were being withdrawn. In the light of the said letters, on 21.6.95 the Deputy Director, Health Services (Administration) issued notice to the petitioners and others to show cause as to why they should not be removed from the service on the ground of securing employment by fraudulent means. The petitioners filed their show cause denying the allegations. Not satisfied with the explanation their services were terminated by the impugned order on 18.11.95 vide Annexure 8 to the writ petition. 4. In the meantime the Commission had issued a show cause notice to the petitioners on 8.1.96 and upon consideration of the show cause filed by them issued order on 5.5.97 debarring them from all future examinations to be held by the Commission. It may not be out of place to mention here that in respect of one such person against whom also similar action had been taken namely Ratnesh Kumar, the Commission later retracted from its stand and decided to resend the recommendation. Ratnesh Kumar who had also moved this Court in CWJC No. 5194/96 at about the same time has since been reinstated in service. 5. The case of the Commission is that as the petitioners were recommended on the basis of the bio-data furnished by them, pursuant to the notice dated 6.7.93, against the roll numbers which were found to have been allotted to other candidates, they cannot be treated as bonafide candidates. It has been stated (and there is no dispute about it) that in their second application filed pursuant to notice dated 6.7.93 the petitioners had mentioned their roll numbers as 01/03023 in the case of petitioner no. It has been stated (and there is no dispute about it) that in their second application filed pursuant to notice dated 6.7.93 the petitioners had mentioned their roll numbers as 01/03023 in the case of petitioner no. 1 Satish Kumar, 01/05094 in the case of petitioner no. 2 Md. Rafique Ahmad, 12/24137 in the case of petitioner no. 3 Sachidanand Pandey, 01/02611 in the case of petitioner no. 4 Shashi Bhushan Pandey and 01/01695 in the case of petitioner no. 5 Pramod Kumar but from the flaps of the General Hindi paper of the concerned examination it had transpired that the said roll numbers had been allotted to Chandra Bhushan, Lal Mohan Prasad, Ranjana Kumari, Binda Prasad and Ashish Kumar Sinha respectively. It is thus suggested that the petitioners did not appear at the examination which was held on 27th and 28th December 1996 and as notice dated 6.7.93 inviting second/ duplicate application were made for only such candidates who had appeared in the said examination, the petitioners could not be treated as bonafide candidates and thus recommended for appointment. The petitioners are thus alleged to have played fraud upon the Commission in securing their recommendation/ appointment. 6. There is no dispute about the roll numbers mentioned by the petitioners in their second application. The photostat copies of the flaps of the general Hindi paper enclosed with the counter affidavit (originals whereof were also produced in course of hearing of the case) prima facie show that the roll numbers claimed by the petitioners had been allotted to other candidates i.e. Chandra Bhushan and others, mentioned above. The case of the petitioners however is that in the admit cards which had been issued to them by the Bihar State Subordinate Services Selection Board, the same very roll numbers were mentioned and that is how in their second application they mentioned those roll numbers. This plea too prima facie is borne out from the photostat copies of the admit cards enclosed with the writ petition. This plea too prima facie is borne out from the photostat copies of the admit cards enclosed with the writ petition. There cannot be any doubt even for a moment that if petitioners had used the roll numbers which were allotted to other candidates who had appeared in the examination, they (petitioners) cannot be said to be bonafide candidates because it is only those candidates who had appeared in the examination held in December 1996 who had been given chance to submit duplicate application to enable the Commission to take steps for publication of the result of candidates who had appeared at the examination. But in view of the admit cards issued to the petitioners vide Annexure 1 series, it cannot be conclusively said that the roll numbers were not those of the petitioners and they committed any fraud on the Commission. That the petitioners were issued admit cards with the same roll numbers vide Annexure 1 series has not been controverted by the Commission in its affidavit, this may understandably be on account of the fact that the Commission did not have the full records of the Board relating to the concerned examination. Whether it would be proper to conclude that the petitioners had played fraud by using roll numbers allotted to others merely on the basis that the same roll numbers were found allotted to other candidates, vide flaps of the General Hindi Paper? Having given my anxious consideration I have come to the conclusion that it would not be proper to hold so merely on the basis of single piece of evidence. In my opinion this would amount to accepting the Commissions case on hypothesis. No doubt the fact that the same roll numbers were found allotted to other candidates creates suspicion but it is well settled that suspicion howsoever strong cannot take the place of proof. The possibility of the Board issuing admit cards with duplicate roll numbers on account of mistake of Computer or otherwise cannot be ruled out. It is significant to mention here that in the chart described as merit list, photo copy of which was produced at the time of hearing, against two out of five roll numbers in question viz. roll numbers 01/03023 and 12/24137, the names of Chandra Bhushan and Ranjana Kumari have been mentioned by hand unlike names of other candidates which have been typewritten/printed. roll numbers 01/03023 and 12/24137, the names of Chandra Bhushan and Ranjana Kumari have been mentioned by hand unlike names of other candidates which have been typewritten/printed. Curiously, against three other roll numbers in question i.e. 01/05094, 01/02611 and 01/01695 the column is completely blank, that is to say, the names of the so called other candidates namely Lal Mohan Prasad, Binda Prasad and Ashish Kumar Sinha have not been mentioned even by hand. Not only names, as a matter of fact, other columns meant for date of birth and category also are blank against those roll numbers (in fact, against some other roll numbers also those columns are blank). Another fact which is worth mentioning is that in the said chart/ merit list, with respect to the candidates whose names have been printed, as indicated above, two sets of roll numbers have been mentioned while with respect to candidates whose names have been written by hand or not written at all, any one set of roll number is mentioned i.e. Roll Nos. 01/03023, 01/05094, 12/24137, 01/02611 and 01/01695, amongst others. There is no explanation as to how the columns meant not only for the name but date of birth and category with respect to those roll numbers are blank in the chart/ merit list. 7. It is the own case of the commission that the records of the Board were found to be in complete mess. It may not be out of place to mention here that the functioning of the Bihar State Subordinate Services Selection Board had become a subject matter of controversy and enquiries at different levels, some of which conducted pursuant to orders of this Court in MJC NO. 242/93 and other cases, had revealed bunglings committed by the Board. If I may say so, these were the reasons which led to dissolution of the Board. In these premises I do not think it would be proper to uphold the action of the Commission which is based on incomplete records of the Board and, if I may say, on suspicion and hypothesis. But hypothesis and suspicion cannot take the place of proof. The action of the Commission in withdrawing the recommendation and the subsequent action of the Department in terminating the services of the petitioners therefore cannot be said to be in accordance with law. 8. The communication of the Commission vide letter nos. But hypothesis and suspicion cannot take the place of proof. The action of the Commission in withdrawing the recommendation and the subsequent action of the Department in terminating the services of the petitioners therefore cannot be said to be in accordance with law. 8. The communication of the Commission vide letter nos. 770 dated 24.8.94 and 1072 dated 21.10.94 vide Annexure R2/F & R2/F1 and the consequential impugned order of the Department dated 18.11.95 Annexure 8, terminating their services are accordingly quashed. 9. Coming to the question of consequential relief, as the Department terminated the petitioners services on the basis of and pursuant to the de- recommendation by the Commission and not on its own, I do not think it would be proper to saddle the Government with the burden of salary for the intervening period. As a matter of fact, in the case of Ratnesh Kumar (Supra) whose services too had been terminated by the same order, has been denied salary for the intervening period vide order dated 24.2.97 (sic24.1.97) in CWJC No. 5194/86 (sic5194/96). The petitioners however would be entitled to continuity of seniority as if the impugned order dated 18.11.95 had never been passed at all 10. In the result this writ petition is allowed but subject to observations and directions mentioned above. There will be no order as to costs.