Kaushal Kishore Tiwary, vs The State of Bihar

Heard the parties.

The appellant, being aggrieved by the order dated

19.01.2015 passed in CWJC No.18056 of 2010 by a learned Single

Judge of this Court, has filed this intra-court appeal for setting aside

the impugned order allowing CWJC No.18056 of 2010 by setting

aside the order dated 29.07.2010 passed by the District Teachers''

Employment Appellate Tribunal, West Champaran (hereinafter

referred to as the ''Appellate Tribunal'') by which the Appellate

Tribunal had ordered cancellation of the appointment of the writ-

petitioner (respondent no.6 in the present appeal) with immediate

effect and also for lodging a criminal case against him and the

Panchayat Secretary.

The facts in brief for purpose of the present appeal

are as under:-

In the year 2003, the appellant as well as the

respondent no.6 applied for their engagement against the post of

Panchayat Siksha Mitra in Gram Panchayat Raj Chanayan Bandh in

the District of West Chamapran. The appellant had passed the

matriculation examination in 1st division obtained 583 marks out of

total 900 marks in the examination held by the Bihar School

Examination Board, Patna. He had also passed the intermediate

examination in 2nd division. The respondent no.6 in the present appeal

was appointed against the said post by virtue of a matriculation

marksheet allegedly submitted by him showing 626 marks obtained

by him out of total 900 marks. The appellant submitted representation

dated 12.08.2005 before the District Magistrate, West Champaran at

Bettiah raising his grievance against the appointment of respondent

no.6. According to appellant, the respondent no.6 had got lesser

marks, but he was appointed as Panchayat Siksha Mitra by dint of a

fake and forged marksheet showing his marks as 626 out of total 900

marks. The appellant has enclosed Annexure-4 series and Annexure-5

to the writ application to demonstrate that he was always approaching

one authority or another and had even approached the Panchayat

Secretary of the Gram Panchayat (respondent no.10 in the writ

application) for supplying the marksheet produced by the respondent

no.6, but the respondent no.10 vide his letter no.20 dated 24.09.2007

informed the appellant that no marksheet of respondent no.6 is

available on the record.

The appellant approached the District

Superintendent of Education-cum-Public Information Officer, West

Champaran at Bettiah under Right to Information Act, 2005 and

thereupon he was supplied a copy of the marksheet of respondent

no.6. A copy of the marksheet obtained with the help of the provisions

of the RTI Act has been enclosed as Annexure-6 series to the writ

application. The appellant obtained the original marksheet procured

by the respondent no.6 which he finally got showing that the

respondent no.6 had obtained only 356 marks out of total 900 marks

and had passed the matriculation examination in 3rd division. The

marksheet produced for purpose of engagement as Panchayat Siksha

Mitra by the respondent no.6 was a fake and forged marksheet which

was attested by the Panchayat Secretary and the respondent no.6 was

appointed/engaged on that basis.

The appellant thereafter requested the District

Magistrate, West Champaran (respondent no.4) to take appropriate

action including lodging of FIR against the persons who were

involved in the conspiracy to give engagement to the respondent no.6

on the basis of a forged marksheet and in the process they rejected the

candidature of the appellant who was otherwise entitled to be engaged

by virtue of the marks obtained by him in the matriculation

examination. The appellant moved before the Appellate Tribunal

against the engagement of the respondent no.6 giving rise to Case

No.254 of 2009. The Appellate Tribunal called for a verification

report from the Principal, R.N. High School, Kehuniya, Narkatiyaganj

as regards the matriculation marksheet produced by the respondent

no.6. The Principal of R.N. High School, Kehuniya through his letter

no.46 dated 15.06.2010 informed the Appellate Tribunal that the

respondent no.6 had passed the matriculation examination in 3 rd

division. In view of the apparent proof of fact that the respondent no.6

had obtained engagement as Panchayat Siksha Mitra on the basis of a

forged marksheet and it is a case of ousting the meritorious candidates

by fraudulent means and modes the Appellate Tribunal directed for

cancellation of the engagement of the respondent no.6 as Panchayat

Siksha Mitra and to lodge a criminal case against the Panchayat

Secretary and the respondent no.6. Here it is worth mentioning that by

virtue of a policy decision taken by the Government of Bihar and by

virtue of a scheme of employment of Panchayat Siksha Mitra at gram

panchayat level, the post of Panchayat Siksha Mitra was abolished

with effect from 01.07.2006 and by operation of Rule 20(iii) of the

Bihar Panchayat Elementary Teacher (Employment and Service

Conditions) Rules, 2006 the respondent no.6 came to be absorbed as

Panchayat Teacher. A copy of the order passed by the Appellate

Tribunal in Case No.254 of 2009 is Annexure-1 to the writ

application.

The respondent no.6 being aggrieved by the order

passed by the Appellate Tribunal filed a writ application being CWJC

No.18056 of 2010. The learned Single Judge of this Court heard the

said writ application on 04.11.2010 and while issuing notice to the

present appellant who was respondent no.6 in the said writ application

passed an interim order saying that until further order continuation of

the petitioner on the post of Panchayat Teacher will be subject to the

result of the writ petition.

The present appellant also moved this Court by

filing CWJC No.18407 of 2010 with a prayer for issuance of a writ in

the nature of mandamus commanding the respondent authorities to

appoint him on the post of Panchayat Teacher in pursuance of the

order dated 29.07.2010 passed in Case No.254 of 2009 by the

Appellate Tribunal (Annexure-9 to the writ application).

Both the writ applications were taken up together

and have been disposed of by a common order. The learned Single

Judge took note of the submissions made at the bar particularly the

stand of the respondent no.6 (petitioner in CWJC No.18056 of 2010)

saying that the alleged forged marksheet was deliberately got inserted

by someone inimical to the petitioner. The learned Single Judge took

a view that on the basis of the rival pleadings the Court would not

record a finding on this point. The learned Single Judge took note of

the submissions made on behalf of the respondent no.6 that it has been

brought to the notice of the State respondent that a fraud has been

committed by the petitioner then surely an FIR could have been

registered initiating an in-depth investigation into the said allegation

for which no direction of the statutory authority is required and as the

Court was informed that an FIR has already been lodged after the

impugned order was passed by the Appellate Tribunal and the same is

under investigation.

The learned Single Judge proceeded to quash/set

aside the order dated 29.07.2010 passed by the Appellate Tribunal

(Annexure-1 to the writ application) with an observation that quashing

of the order of the Authority would not preclude the concerned

respondent(s) from initiating and/or pursuing the criminal

case/proceeding and the subsequent action/proceeding, if need be, in

accordance with law.

CWJC No.18407 of 2010 preferred by the present

appellant for a writ of mandamus was dismissed by the learned Single

Judge holding that no relief can be granted to the petitioner by

directing his engagement/appointment as Panchayat Siksha Mitra in

view of the principles laid down in the case of Smt. Renu Kumari

Pandey Vs. State of Bihar reported in 2011 (4) PLJR 297 and in view

of the Full Bench judgment of this Court in the case of Kalpana Rani

Vs. State of Bihar reported in 2014(2) PLJR 665.

The present appeal has been preferred only against

the order passed in CWJC No.18056 of 2010 by which the learned

Single Judge has set aside the order of the Appellate Tribunal. The

grievance of the appellant is that the learned Single Judge has failed to

appreciate that it is an open and shut case. The respondent no.6 was

appointed as Panchayat Siksha Mitra on the basis of a marksheet

showing him to have obtained 626 marks out of total 900 marks. It is

not in dispute now that the marksheet on the basis of which the

respondent no.6 was appointed is a forged and fabricated marksheet

and there is no dispute of the fact that the respondent no.6 had

obtained only 356 marks out of total 900 marks and had passed the

matriculation examination in 3rd division. It is also not in dispute that

this appellant had applied for his engagement as Panchayat Siksha

Mitra by virtue of having obtained 1st division in the matriculation

examination but was ousted by the respondent no.6 who was engaged

by dint of the forged marksheet. The submission is that the learned

Single Judge has completely erred in being swayed away by the

submission on behalf of the respondent no.6 that the said forged

marksheet was deliberately got inserted by someone inimical to the

petitioner. The learned Single Judge, according to the appellant, could

not appreciate that admittedly the respondent no.6 had got

appointment as Panchayat Siksha Mitra on the basis of the said

marksheet alone and therefore his plea that the said marksheet was

deliberately got inserted by someone inimical to the petitioner was out

rightly a false and frivolous plea just to save his skin. Attention of this

Court has also been drawn to the counter affidavit filed on behalf of

the respondent no.6 in the present appeal. In paragraph 6 of the

counter affidavit the respondent no.6 has stated that he had submitted

his marksheet of matriculation 3rd division, but the marksheet of the

1st division was submitted deliberately by someone inimical to the

respondent no.6. The marksheet supplied to the appellant under the

provisions of the RTI Act, 2005 is in the name of respondent no.6

which is admittedly a forged marksheet and is being disowned by

respondent no.6 but it is admitted that the same was used by the

Panchayat Secretary to help the respondent no.6 in the

appointment/engagement as Panchayat Siksha Mitra.

In view of the admitted position that the respondent

no.6 had obtained 3rd division whereas he was given appointment as

Panchayat Siksha Mitra on the basis of a forged marksheet showing

him to have obtained 626 marks out total 900 marks in 1st division and

thereby ousting the appellant from getting appointment, we are of the

considered opinion that the order passed by the Appellate Tribunal

was just and proper and no interference was required at the level of

the learned Single Judge. It is well settled law that fraud includes all

acts, omissions and concealments which involved breach of legal or

reputable duty, trust or confidence justly reposed and which causes

injuries to another, or by which, undue and unconscious advantage is

taken by the person playing fraud and such person can be thrown out

at any stage of the litigation.

In the present case, we are of the opinion that the

materials available before the Court are clearly indicating that the

respondent no.6 got appointment as Panchayat Siksha Mitra on the

basis of a fake and forged marksheet in his name showing him to have

passed matriculation examination in 1st division with better marks

than the present appellant. The respondent no.6 has himself admitted

that he had obtained 3rd division in matriculation examination. Thus,

the facts being clear that the appointment of the respondent no.6 was

based on a fake and forged marksheet, the same cannot be allowed to

be continued. The learned Single Judge has, in our opinion, erred in

interfering with the order of the Appellate Tribunal. We, therefore, set

aside the impugned order dated 19.01.2015 passed in CWJC

No.18056 of 2010 and restore the order dated 29.07.2010 passed by

the Appellate Tribunal, West Champaran in Case No.254 of 2009.

Since the criminal case is said to have been lodged pursuant to the

direction of the Appellate Tribunal, it is expected that the State

respondents shall pursue the same to its logical end.

The Letters Patent Appeal is allowed. There will

be, however, no order as to cost.