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2014 DIGILAW 431 (JHR)

Kaushlendra Kumar v. State of Bihar

2014-03-27

APARESH KUMAR SINGH

body2014
Judgment By Court. - Heard counsel for the parties. 2. In the instant writ petition, petitioner has approached this Court for quashing of the order contained in memo no. 1256 dated 14.11.1998 (Annexure-1) passed by the respondent no. 2, the Secretary, Secondary, Primary and Adult Education Department, Patna, whereby his services from the post of clerk in Project Balika Uchha Vidyalaya, Bhandariya, District-Garhwa has been terminated. 3. The petitioner claims to be appointed by a memo no. 46 dated 18.5.1992 (Annexure-2) issued by the District Education Officer, Palamau on the vacant post of clerk in Project Balika Uchha Vidyalaya, Bhandaria, District Gharwa in the scale of Rs. 1,200-1,800/- having initial qualification of Intermediate by virtue of Annexure-2, appointment letter. His case is that on 9.6.1992 he submitted his joining on the post of Clerk in the office of District Education Officer, Palamau as the school in question was closed due to summer vacation. Having marked his attendance from 9.6.1992 to 9.7.1992 during summer vacation in the District Education Officer's office he submitted his joining thereafter in the said school as Clerk and started discharging his duties sincerely. Subsequently, vide memo no. 3897 dated 12.8.1992, on his request the District Education Officer, Palamau sent him on deputation to the Project Balika Uchha Vidyalaya, Hariharganj on the same post where he joined, thereafter. The District Education Officer, Palamau directed the Headmaster of the Project Balika Uchha Vidyalaya, Bhandaria, District-Gharwa for preparation of his bill for payment. Petitioner received payment for the period from 9.6.1992 to 9.7.1992 and thereafter on monthly basis. However, since May 1993 he was not being paid salary. According to the petitioner from November 1996 because of some medical problem he was advised rest and could not attend the school till January, 1997. However, he was not permitted to join, thereafter. Correspondence took place between the District Education Officer, Palamau and the Headmaster of the School for reason of his non-acceptance of his joining and relevant documents were also called for on 27.8.1997. The Headmaster of the school was also admonished that a departmental proceeding for non-compliance of the direction of the District Education Officer vide the said letter dated 27.8.1997 (Annexure-6) would be initiated. In the aforesaid chronology of facts, however, the petitioner was not allowed to join in the said school and all of a sudden he was served with the impugned order contained in memo no. In the aforesaid chronology of facts, however, the petitioner was not allowed to join in the said school and all of a sudden he was served with the impugned order contained in memo no. 1256 dated 14.11.1998 issued by . the respondent no. 2, Secretary, Secondary, Primary and Adult Education Department, Government of Bihar terminating the services of the petitioner (Annexure-1) to the writ petition. 4. Learned senior counsel appearing on behalf of the petitioner has assailed the impugned order on the grounds inter alia that the impugned order has been passed in purported compliance of the judgment rendered on 5.7.1996 in C.W.J.C. No. 2093 of 1995(R), but without any compliance of Principles of Natural Justice and no opportunity of being heard to the petitioner, though he was not a party in the said writ petition. By referring to para 5 of the impugned order it has been stated that the services of the petitioner with few others were terminated on the ground that appointment was not made by the District Education Officer from the panel prepared for the said district in accordance with the administrative instruction of the department of Personnel, Administrative Reforms dated 3.12.1988, which has been extended thereafter from time to time. There is no dispute about the issuance of appointment letter of the petitioner as per the impugned order. The respondents have however in their counter affidavit chosen to raise a new ground that the appointment letter itself was never issued, which cannot be countenanced. Learned senior counsel by referring to the judgment rendered in C.W.J.C. No. 82 of 1999(R), in the case of some of the aggrieved persons arising out the same impugned order, enclosed as Annexure-8 series submitted that the petitioner is also entitled to similar relief as in the said case after noticing the relevant facts the impugned order was set aside and concerned petitioners were reinstated to the post with back wages. It has further been stated that the register produced by the respondents pursuant to the direction passed in this case does not conclusively show that they relate to the subject matter as the order of appointment is dated 18.5.1992 contained in memo no. 4 while the register refers to issuance of certain letters. It has further been stated that the register produced by the respondents pursuant to the direction passed in this case does not conclusively show that they relate to the subject matter as the order of appointment is dated 18.5.1992 contained in memo no. 4 while the register refers to issuance of certain letters. It has further been submitted that whether there are other register in the said office for recording the issuance of such memo is also not evident from the said letter. He has pointed out that however in the said register itself at serial no. 3262 there is reference of dispatch of letter in the name of the petitioner describing him as a clerk. It is therefore submitted that petitioner has been terminated in violation of Principles of Natural Justice and new ground raising question about the issuance of appointment letter is wholly untenable on facts and cannot be a reason to justify his termination by the impugned order. 5. Learned counsel appearing on behalf of the respondent-State in his response has submitted that the contention of the petitioner that he applied pursuant to the advertisement pasted on the notice board which led to his appointment is wholly incorrect. Statements have been made in para 8 of the first counter affidavit that there was no record of such advertisement circulated from the said office. The respondents have also questioned the issuance of the appointment letter which though bears memo no. 46 dated 18.5.1992 but is purportedly signed by the District Education Officer on 28.5.1992. Therefore, the said letter could not have been dispatched before the signature of the District Education Officer, Palamau. It is submitted that the aforesaid facts therefore discredit the very foundation of the petitioner's case and a plea of fraud can be raised at any point of time as it vitiates the entire substratum of any action. Learned counsel for the respondent-State further submits that the Headmaster of the Project Balika Uchha Vidyalaya, Bhandaria, District-Gharwa has categorically given a report that petitioner had never joined and worked in the said school. They have also denied the statement of the petitioner that he had worked from 9.6.1992 to 9.7.1992 in the office of District Education Officer, Palamau. Learned counsel for the respondent-State further submits that the Headmaster of the Project Balika Uchha Vidyalaya, Bhandaria, District-Gharwa has categorically given a report that petitioner had never joined and worked in the said school. They have also denied the statement of the petitioner that he had worked from 9.6.1992 to 9.7.1992 in the office of District Education Officer, Palamau. However, it has been argued that the said Project Balika Uchha Vidyalaya, Bhandaria, District-Gharwa was a school of Government Programme of 1984-95 and no appointment letter could have been issued by the District Education Officer for the said school. It is also stated that the report (Annexure-1) itself indicates that the impugned order was issued after giving notice and obtaining show cause from the concerned persons including the petitioner. Therefore, there has been compliance of Principles of Natural Justice. In the aforesaid background, the respondents have strongly contested the case of the petitioner. They have also produced the register relating to the period of issuance of the said appointment letter and stated at para 6 of the supplementary counter affidavit that from the said register it is evident that on the issuance date of appointment letter i.e. 18.5.1992 it ranges from serial no.1760-1762 and the next date i.e. 19.5.1992 it ranges from 1762-1776 and no such appointment letter was issued during this period. 6. Upon hearing the learned counsel for the parties and after going through the relevant materials on record, it appears that the respondents had undertaken an exercise pursuant to the direction passed in C.W.J.C. No. 2093 of 1995 relating to the inquiry about certain illegal appointment. The impugned order refers to direction issued by the Regional Deputy Director of Education dated 26.7.1997, 2.5.1998, 30.5.1998 seeking reply from the affected persons. It further indicates that in respect of those whose replies/show cause were not received, vide letter dated 565 dated 3.7.1998, they were asked by the Directorate itself to submit their response. There were 30-31 persons whose appointment were being inquired into. At para 5 of the impugned order the Secretary, Secondary, Primary and Adult Education Department, Patna-respondent no. 2 has found that the appointments were made in violation of specific administrative instruction issued by the DOPT, Government of Bihar for preparation of panel for such appointment in Class-III posts. There were 30-31 persons whose appointment were being inquired into. At para 5 of the impugned order the Secretary, Secondary, Primary and Adult Education Department, Patna-respondent no. 2 has found that the appointments were made in violation of specific administrative instruction issued by the DOPT, Government of Bihar for preparation of panel for such appointment in Class-III posts. Though direction has been made about other candidates in the other paragraphs but the petitioner's case is covered by the reasons as indicated in para 5 that the such appointments including that of the petitioner were made in violation of the aforesaid circulars. 7. In the writ petition, though the petitioner has made out a case that the petitioner had applied on issuance of an advertisement in 1992 pasted on the notice board by the District Education Officer, Palamau by inviting application for the post of clerk, but the said statement has been categorically denied by the respondents and there is no evidence of' such advertisement either, neither has it been brought on record by the petitioner. The petitioner, however, has relied upon the cases of other persons who were removed by the impugned order dated 14.11.1998, but pursuant to the judgment passed in the said case which is at Annexure-8 series they were reinstated. However, perusal of the said judgment shows that the question relating to the genuineness and authenticity of the appointment letters of such petitioners were neither raised or argued in the said case., In the present case, however the specific stand has been taken by the respondents that no such appointment letter was issued by the office of District Education Officer, Palamau. The photo copy of the appointment letter produced by the petitioner, thereafter only shows that it has been issued vide memo no. 46 of Daltanganj of 18.5.1992, while it was signed by the District Education Officer, Palamau on 28.5.1992 and there is no reference of any advertisement or any sanctioned vacant post on which it was made. 8. The register which the respondents have produced upon direction of this Court also does not show issuance of any such appointment letter from the said office on the relevant date. 8. The register which the respondents have produced upon direction of this Court also does not show issuance of any such appointment letter from the said office on the relevant date. In the aforesaid state of facts the contention of the counsel for the petitioner that the register so produced by the respondents cannot be relied upon for the purpose of examining whether the appointment letter of the petitioner was issued on the relevant date or not is not tenable as according to the petitioner himself there is evidence of another letter issued to the petitioner bearing serial no. 3262 of the subsequent date. Therefore, the absence of any entry in the register showing issuance of appointment letter makes the claim of the petitioner wholly incredible relating to the origin of his appointment. The petitioner's appointment therefore appears to be doubtful. In such circumstances, the reliance of the petitioner upon the judgment rendered in the case of other persons who were also removed by the order dated 14.11.1998 is distinguishable on the facts. 9. In the writ jurisdiction when the petitioner has failed to establish the authenticity and genuineness of the appointment letter and advertisement itself, it is difficult to accept the contention of the petitioner that he was validly appointed at the relevant point of time by the order of the District Superintendent of Education, Palamau. In fact the Headmaster categorically reported that no such person has worked in the said school in the said period. These facts therefore create a cloud over the very source of appointment of the petitioner. 10. Therefore, in exercise of writ jurisdiction, this Court is not inclined to interfere with the impugned order as' no case is made out by the petitioner. Accordingly, the writ petition is dismissed.