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2004 DIGILAW 995 (PAT)

Arun Kumar Jha v. State Of Bihar

2004-09-20

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 22.6.2001 passed by Respondent No. 2 whereby the appointment of the petitioner was held to be void, ab initio with a direction to recover the amount of the salary paid to him. Further prayer made by the petitioner is to quash the consequential order dated 14.5.2003 (Annexure-2) passed by Respondent No. 4. 2. According to the petitioner, he was appointed as an Assistant Teacher in the matric trained scale and posted at Primary School, Chaknathan in Paroo Block in the district of Muzaffarpur by memo No. 8088 dated 16.5.1988. According to him, by memo no. 507 dated 18.12.1993, he was transferred to Primary School, Larua Bejha within Sakra Block in the district of Muzaffarpur. Petitioner asserts that after he was relieved by the Block Extension Officer, Paroo, in pursuance of the said order, he joined Primary School, Larua Bejha on 20.12.1993. Later on, according to him he and one Harikant Jha prayed for mutual transfer and by order dated 16th of October, 1996, the District Education Establishment Committee, Muzaffarpur, allowed their request and by order dated 11th of November, 1996, the petitioner was transferred to Primary School, Harikholia within Gayaghat Block and said Harikant Jha was transferred to Larua Bejha. However, by order dated 16.12.1996, the District Superintendent of Education, Muzaffarpur, stayed the implementation of the said order and directed for stoppage of salary of the petitioner. Thereafter, an inquiry was held by the order of the District Superintendent of Education by the Area Education Officer was according to the petitioner, submitted a favourable report dated 21.5.1997 in regard to the appointment of the petitioner. However, the District Superintendent of Education, on account of personal vengeance did not pay him the salary. 3. Left with no option, petitioner earlier filed C.W.J.C. No. 751 of 1998 (Arun Kumar Jha V/s. The State of Bihar & Ors.) before this Court, inter alia, praying for payment of salary from December, 1996 as well as the current salary. In the counter affidavit, plea of the District Superintendent of Education was that the appointment of the petitioner is forged and therefore, he is not entitled for the salary. This Court, by order dated 16.9.1999 (Annexure-8), disposed of the writ application with the following observation: "The point for consideration is whether the petitioner is entitled to salary. In the counter affidavit, plea of the District Superintendent of Education was that the appointment of the petitioner is forged and therefore, he is not entitled for the salary. This Court, by order dated 16.9.1999 (Annexure-8), disposed of the writ application with the following observation: "The point for consideration is whether the petitioner is entitled to salary. Answer to this question, in the facts of the case, obviously would depend upon the answer to the moot question as to whether the petitioner holds a valid appointment or an appointment at all. If what the respondents have stated in their affidavits is correct, no direction for payment of salary to him can be issued. Rather, if I may say so, in such a situation, he even be liable to refund of the amount which he has already received as salary. The principle that a person should be paid salary for the work performed by him, will then not be applicable because no person can be allowed to take advantage of his own fraud. If the petitioner was never appointed and the order of appointment etc. are found to be forged and fabricated, he may be liable for the consequences." 4. In pursuance of the aforesaid order, the Director of Primary Education had adjudicated the matter and found the appointment of the petitioner to be forged and while doing so, it observed that from the appointment register it seems that one Arun Kumar Jha of village Sabhuta, P.O. Bhalua Block Aurai in the district of Muzaffarpur was appointed who is still functioning at Primary School, Teja Dumri Block Paroo in the district of Muzaffarpur. Accordingly, it observed that no appointment letter was ever issued to the petitioner and he is working as such on the basis of the forged letter of appointment. For coming to the aforesaid conclusion, the Director had referred to the appointment register, the letter of the Regional Deputy Director of Education as also the District Superintendent of Education and on appraisal of the same, it observed that the petitioner claims to be resident of Village Bishanpur Shri Ram, Tikar Ashanand in the district of Muzaffarpur and posted at Primary School, Chaknathan but the appointment register shows appointment of one Arun Kumar Jha of Village Sabhuta, of Block Aurai in the district of Muzaffarpur who is still working. 5. Mr. 5. Mr. Rajendra Prasad Singh, Senior Advocate, appearing on behalf of the petitioner submits that in view of the order of this Court, the Director was under an obligation to go into the question in regard to the forgery of letter of appointment but in fact, he had gone into its validity and this itself, renders his order illegal in the eye of law. 6. Junior Counsel to Standing Counsel no. I, however, appearing on behalf of the State submits that the very assumption of the petitioner that the Director while passing the impugned order had gone into the validity of the appointment of the petitioner, is unfounded on fact and as such, the submission aforesaid deserves to be rejected outright. 7. Having considered the rival submission I do not find any substance in the submission of Mr. Singh. He is right in saying that this Court had given liberty to the Director to go into the question of forgery of the order of appointment but he is not correct in his submission that the Director had gone into the illegality or otherwise of the same. The Director had found that another person having the same name, as that of the petitioner, was appointed and petitioner although not appointed, had joined the service on the basis of a forged letter of appointment. The appointment register, according to the Director, does not show that the petitioner was ever appointed but another person having the same name had been appointed who is still working and as the Director is right in holding that petitioner claimed appointment on the basis of a forged letter of appointment. 8. Mr. Singh then contends that the order impugned is a violation of principle of natural justice as in the inquiry, no witness was examined, the copy of the appointment register was not given to the petitioner. Not only this, the reports given by the Regional Deputy Director of Education and the District Superintendent of Education although were considered by the Director but copies thereof were not given to the petitioner. This according to Mr. Singh is in the teeth of the principle of natural justice. I do not find any substance in it. It is to be borne in mind that under the order of the Court, no regular inquiry as contemplated under Article 311 of the Constitution of India was required to be held. This according to Mr. Singh is in the teeth of the principle of natural justice. I do not find any substance in it. It is to be borne in mind that under the order of the Court, no regular inquiry as contemplated under Article 311 of the Constitution of India was required to be held. The inquiry according to the order of the Court was limited to the question of forgery of the appointment letter. In the inquiry, the petitioner appeared and in fact, he was represented by the Counsel. During the course of inquiry, the appointment register and the two letters written by the Regional Deputy Director of Education and the District Superintendent of Education were produced and on consideration thereof the Director came to the conclusion that no letter of appointment was even issued in favour of this petitioner and although a person bearing the name of this petitioner was selected but that was not the petitioner. In that view of the matter, mere non-supply of the documents referred to above shall not vitiate the inquiry. 9. Mr. Singh lastly submits that the Director had not recorded any finding that the signature on the letter of appointment given to the petitioner is forged. In this connection, he submits that the best person to say about the same was the signatory of the letter of appointment but he was not called as the witness and as such, finding recorded by the Director that the letter of appointment is forged, is fit to be reversed by this Court in exercise of its writ jurisdiction. I do not find any substance in this submission of the learned counsel. 10. As stated earlier, the appointment register does show that the person bearing the name of the petitioner was appointed but the same does not show that this petitioner was ever appointed. When the petitioners name does not find place in the appointment register, the question of issuance of appointment letter to him does not arise at all. The Director, on consideration of the relevant material, came to the conclusion that another person of the name of the petitioner was appointed who is still working and hence, letter of appointment of this petitioner is forged. The Director, on consideration of the relevant material, came to the conclusion that another person of the name of the petitioner was appointed who is still working and hence, letter of appointment of this petitioner is forged. It is well settled that this Court, in exercise of its power under Article 226 of the Constitution of India, does not upset the finding of the fact unless the finding recorded is perverse. I am of the opinion that the finding recorded by the Director does not suffer from any such error. 11. In the result, I do not find any merit in this application and it is dismissed accordingly but without any orders to cost.