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2004 DIGILAW 288 (PAT)

State Of Bihar v. Abhay Kumar @ Abhay Kumar Singh

2004-03-10

NAVIN SINHA, RAVI S.DHAVAN

body2004
Judgment 1. Firstly, this matter is barred by limitation. This in itself is a bad case. It does not show any seriousness in filing a letters patent appeal on a judgment dated 18 July 2003. The appeal is being filed virtually after more than 6 months. No valid explanation is available in the application seeking condonation of delay. 2. But such matters are becoming rampant at the High Court. The court is cluttered with matters relating to State employees particularly of petty persons, mostly of Class IV and others of Class III. A new style has been found by the State of Bihar in attempting to dislodge appointments which have been made more than a decade ago. In a given case, perhaps, there may be occasions where appointments made have been obtained by fraud and there may have been rackets in making such appointments. Such a possibility cannot be ruled out. But this cannot be made a ready excuse for every department or every. district administration to start hacking appointments at the drop of a hat. The government cannot be in litigation to become the biggest litigant at the High Court in fighting with its employees. If an employee has obtained an appointment by fraud then this is a circumstance which rests on facts. There can hardly be any issue that fraud is criminality and both must go, the person who obtained the appointment by fraud and the official who gave it. But, satisfaction of such an act of fraud having occurred has to be beyond a reasonable doubt. It cannot be a one sided affair to terminate the appointment of an employee and leaving the person who gave the appointment to get away. This in itself is a lingering racket and a fraud. 3. The present case has its origin in an earlier writ petition filed by the same petitioner. The earlier petition was CWJC. No. 1192 of 1998; Abhay Kumar @ Abhay Kumar Singh vs. The State of Bihar & Ors. When the salary of the petitioner had been stopped, he filed a writ petition. The court granted an opportunity to the State to file a counter affidavit. A counter affidavit was not filed. This also is a racket. The earlier petition was CWJC. No. 1192 of 1998; Abhay Kumar @ Abhay Kumar Singh vs. The State of Bihar & Ors. When the salary of the petitioner had been stopped, he filed a writ petition. The court granted an opportunity to the State to file a counter affidavit. A counter affidavit was not filed. This also is a racket. Yet another order was passed giving further time to file a counter affidavit with the court making it clear in its order dated 13.1.1999 (Hon ble A.K. Ganguly, J.) that it is made clear that no further time will be granted. Despite such an order a counter affidavit had not been filed. This left the averments made in the writ petition uncontroverted. The State of Bihar was given. opportunities to confront the petitioner on whatever he had submitted in the writ petition but for reasons best known a counter affidavit was not filed or, perhaps, evaded. The petitioner had pleaded that other persons also, when their salary had been stopped, had received orders from the High Court. 4. In the circumstances, his case is similar to the other cases. He referred to yet two earlier writ petitions (CWJC. No. 5663 of 1997 decided on 19.8.1997 and CWJC. No. 4438 of 1998 decided on 1.9.1998). Thus, on the basis of two earlier writ petitions in which also no counter affidavit was filed, the learned judge directed that the salary of the petitioner which had been stopped be paid. It needs be emphasized that in the two cases, which the court had relied upon in similar circumstances a counter affidavit had not been filed in either of the cases. In the circumstances, it is a matter of record that in three cases and in this one filed by the petitioner CWJC. No. 11192 of 1998 ns counter affidavit was filed. Thus, the State of Bihar cannot say that it was not granted an opportunity to file a reply to the petitions. The presumption is that it could not reply to the facts and evaded filing a reply, 5. With an order that the petitioners salary be paid on the petitioners making a representation and two months time being given to make an inquiry regarding the validity of appointment, no inquiry, as was permitted, was made. The salary of the petitioner was not delivered. With an order that the petitioners salary be paid on the petitioners making a representation and two months time being given to make an inquiry regarding the validity of appointment, no inquiry, as was permitted, was made. The salary of the petitioner was not delivered. The petitioner, thus, filed a petition for the second time. 6. This time a counter affidavit was filed by the Deputy Director, Secondary Education. The counter affidavit does not reply to pleadings in the writ petition and instead states "the deponent at the very outset craves the gracious indulgence of this Hon ble Court and he further reserves his right to file supplementary counter affidavit on the points which have not been specifically dealt in the instant counter affidavit, as and when required by this Hon ble Court". The counter affidavit does not reply to paragraphs in the writ petition but makes a general statement that the appointment of the petitioner and others were illegal; prescribed procedures were not followed; it was against so-called newly created post and the so-called letter by which the post was said to have been created was found to be fake. 7. The specific pleading in the writ petition was that the petitioner along with two others had been appointed on sanctioned posts. This is the government order dated 25 May 1989 No. 3699/ Begusarai, a copy of which had been appended to the Principal, Government High School, Garhpura, the Treasury Officer, Begusarai and the Deputy Director Education, Darbhanga. The order has been signed by the District Education Officer, Begusarai. it clearly refers sanctioned posts. To plead in the counter affidavit that this was a so-called newly created post is mischief. This pleading is in paragraph-8. It has been sworn from information derived from the record. It is not disclosed as to which record renders the so-called post as a newly created post when the appointments were not made of the petitioner alone but others also on sanctioned posts. 8. The petitioner then refers to a gradation list. It mentions persons between 128 to 186. There is a reference to 54 persons. The petitioners name is mentioned at serial 173. The gradation list is a published list, which has been kept in the normal course of administration. It has persons above the petitioner. It has persons -below the petitioner. 8. The petitioner then refers to a gradation list. It mentions persons between 128 to 186. There is a reference to 54 persons. The petitioners name is mentioned at serial 173. The gradation list is a published list, which has been kept in the normal course of administration. It has persons above the petitioner. It has persons -below the petitioner. This part of the pleading in which the petitioner refers to a gradation list has conveniently been avoided in the counter affidavit. Reference to the gradation list is made in paragraph 6 of the petition, not replied to in the counter affidavit. 9. With such a state of record, a counter affidavit which takes no responsibility in replying to the petition and is callous in its approach, now the State of Bihar has filed letters patent appeal belatedly with manufactured pleas which were not taken in the writ petition. The jurisdiction of letters patent appeal rests on justice, equity and good conscience. The court does not expect that a State, which is a leviathan and a giant against a citizen, will take inequitable, incorrect and unfair pleas in an appeal and that also in a letters patent appeal to defeat judgments and orders of courts. There has been evasion of replying to the pleadings in the writ petition and of earlier and similar cases with no counter affidavit filed. 10. The court is dismayed that the State generates litigation so lightly as has been done in the present case making it one of the largest litigants at the High Court with no responsibility either of the officers, who are indulging in litigations, the legal department not excluded, not to have laid a base for the case and then filed a time barred appeal with no legs to stand upon. 11. The court has often observed before in others matters that if it is a matter of fraud, collusion and cheating in giving appointments the State, by all means, may make a threadbare inquiry. The satisfaction has to be beyond reasonable doubt. Such are the principles which rest to detect fraud and then inevitably the conclusion is that the giver or the taker both must be punished with the same punishment. 12. The satisfaction has to be beyond reasonable doubt. Such are the principles which rest to detect fraud and then inevitably the conclusion is that the giver or the taker both must be punished with the same punishment. 12. The Law Secretary will ensure that the order of the Court (Hon ble A.K. Ganguly, J.) which was passed on 11 February 1999 will be honoured without any further delay and the arrears of salary that has to be paid to the petitioner Abhay Kumar @ Abhay Kumar Singh is delivered to him within one month from today. 13. This letters patent appeal is frivolous and is dismissed. 14. Let a copy of this order be sent to the Law Secretary, Government of Bihar.