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2002 DIGILAW 262 (PAT)

Sanjay Kumar Yadav v. State Of Bihar

2002-02-25

S.N.JHA

body2002
Judgment 1. The petitioner seeks quashing of the letter dated 15.9.2001 of the District Magistrate, Supaul and the letters dated 22.10.2001 and 29.12.2001 of the Regional Deputy Director of Education (RDDE) Kosi Division, Saharsa containing direction for show cause notice and institution of criminal case in respect of illegal appointment of the petitioner and stoppage of salary to him. Copies of the said letters are annexures 13, 14 and 18 to the writ petition. The petitioner further seeks a consequential direction upon the respondent-authorities to allow him to work on the post and pay him salary which has been withheld since October 2001. 2. The petitioner claims to have been appointed on the post of Clerk in High School, Nirmali district-Saharsa on 23.5.95. According to him there are two sanctioned posts of clerk in the school, one of which fell vacant after the transfer of Sarvesh Kumar on 17/20.2.94. The post was earmarked for the OBC as per roster. The Headmaster of the school requested the RDDE, Kosi Division to post someone in place of Sarvesh Kumar on 1.6.94. On 26.4.95 the petitioner filed representation before the RDDE to appoint him against the said sanctioned vacant post. Considering his pitiable condition his case was also recommended by an MLA. Applications were invited by publishing notice on the notice Board of the School. As the petitioner fulfilled all the criteria on 23.5.95 by memo no. 1571 he was appointed. On 25.5.95 he joined the school and started working. He also started getting salary. Provident Fund account was also opened in his name. In due course he appeared and passed the Hindi Noting and Drafting examination. 3. One Jeevaneshwar Sah who had filed a title suit with respect to the land on which the school building situated, filed a complaint case before the SDJM alleging that the petitioner had been appointed by fraudulent means. The complaint was sent to the police for instituting and investigating the case where it was registered as Nirmali P.S. Case No. 17/96 under Sections 409, 420, 467, 468 and 120B of the Indian Penal Code. The police submitted final report which was accepted by the Magistrate. Later a complaint registered on the basis of protest petition also dismissed. This happened on 26.8.98. 4. fn the meantime on complain in that regard the District Magistrate, Supaul directed the District Education Officer, Supaul to make an enquiry. The police submitted final report which was accepted by the Magistrate. Later a complaint registered on the basis of protest petition also dismissed. This happened on 26.8.98. 4. fn the meantime on complain in that regard the District Magistrate, Supaul directed the District Education Officer, Supaul to make an enquiry. It is said that though no show cause notice was issued to him, the petitioner filed a show cause before the District Magistrate. On 15.9.2001 the impugned letter was issued by the District Magistrate which was followed by the other two letters dated 22.10.2001 and 29.12.2001. At this stage he filed the present writ petition seeking quashing of the said three letters and the mandamus to allow him to work and pay him salary as indicated above. 5. Counsel for the petitioner Shri S.B.K. Mangalam submitted that without cancelling the appointment the petitioner cannot be restrained from working on the post and in any case salary cannot be stopped to him. He relied on certain order of this Court in this regard. He also submitted that the petitioner stands exonerated of the charge relating to the validity or otherwise of his appointment in the criminal case instituted earlier, and therefore, he cannot be subjected to any proceeding. 6. It is true that salary cannot be stopped on doubt and surmises unless the appointment is cancelled. I have also passed orders to this effect in many cases. The facts of the instant case however, appear to be different. 7. It is an admitted fact that the petitioner was appointed on the so-called recommendation (read Pairvi) of an MLA. The petitioner has himself said so in his hand written show cause said to have been filed on or about 23.11.2001 vide Annexure-15. Therein he did not disclose the name of the MLA but from the supervision note of the Superintendent of Police, Supaul in connection with Nirmali P.S. Case No. 17/96 it appears that the concerned MLA was Shri Deonath Yadav. The petitioner has been described as relative of the Headmaster of the school Shri Yasodhar Pd. Yadav a fact not disputed by the petitioner in the writ petition. 8. The appointment is said to have been made under memo no. 1571 dated 23.5.95 but the records shows that one Sanjay Kumar son of Late Birendra Nath Shil resident of village Barsoi district-Katihar was appointed by memo no. Yadav a fact not disputed by the petitioner in the writ petition. 8. The appointment is said to have been made under memo no. 1571 dated 23.5.95 but the records shows that one Sanjay Kumar son of Late Birendra Nath Shil resident of village Barsoi district-Katihar was appointed by memo no. 1571 dated 24.5.95 on compassionate ground on the death of his father, Birendra Nath Shil as Headmaster of Primary School, Narayanpur district-Katihar. Both the letters were issued under the hand of the same Officer, namely, Madan Lal Rajak, the then RDDE, Kosi Division. Curiously while in the appointment letter with respect to said Sanjay Kumar, the signature of Shri Madan Lal Rajak is dated 24.5.95, in the appointment letter of the petitioner, he (Madan Lal Rajak) signed it on 23.5.95. Apparently the date "23.5.95" was mentioned to appear as if that letter was earlier signed and hence genuine which is indicative of intention of Shri Rajak to use the terminology of criminal law "mens rea". It is significant to mention that the appointment letter of the petitioner does not contain the counter signature of the dealing assistant, which is usual phenomenon, whereas the appointment letter of said Sanjay Kumar contains signature of the then dealing assistant Shri Prem Narayan Singh. Apparently, there was an attempt to take advantage of similarity of name between Sanjay Kumar and Sanjay Kumar Yadav and thus manipulating the records and committing forgery the petitioner was appointed. A prima facie case, in my opinion, is thus made out against the petitioner and others. 9. The above aspect of the matter does not seem to have been investigated in the criminal case instituted earlier. At any rate, though there was general allegation that the appointment was forged and fraudulent, this particular aspect of the case was not stated in the complaint in so many words. Interestingly relying on the statement of Shri Madan Lal Rajak that appointment letter had been issued in his hands and that the appointment was valid, the police submitted final form. In the facts and circumstances, in any opinion, the Investigating Officer, and indeed the Supervising Officer as well, seem to have misdirected themselves and the submission of the final form was result of complete non-application of mind. In any view of the matter, the findings can be treated as conclusive of the validity of appointment. 10. In the facts and circumstances, in any opinion, the Investigating Officer, and indeed the Supervising Officer as well, seem to have misdirected themselves and the submission of the final form was result of complete non-application of mind. In any view of the matter, the findings can be treated as conclusive of the validity of appointment. 10. It is also an admitted fact that no interview was held at the time of appointment of the petitioner. He has said so in his aforementioned hand written show cause dated 23.11.2002. It is relevant to mention here that in his said show cause he did not even whisper about notice inviting applications. He said so far as the first time in the supplementary show cause which he claims to have filed stating that by mistake he had forgotten to mention the same. 11. The above observations have been made in response to the sustained arguments of the counsel for the petitioner. In the normal course I would have relegated the petitioner to the departmental authorities because the appointment has not been cancelled. Besides the observation became somewhat necessary to point out the distinction and the reasons why this Court was not inclined to direct the authorities to continue paying salary until completion of the enquiry as has been done in other cases. Though such observations are prima facie adverse to the petitioner, it is clarified that they may not be taken as the concluded opinion of this Court and therefore they would not cause prejudice to the petitioner while taking final decision in respect of validity of his appointment. 12. In the result, the writ petition stands dismissed.