Naresh Kumar Sinha vs State Of Bihar And Ors

The present appeal has emanated out of a common judgment and order passed in C.W.J.C. No.15852 of 2006 (Naresh Kumar Sinha Vs. State of

Bihar & Others) and C.W.J.C. No.10461 of 2007 (Sanjay Kumar Sinha Vs. State of Bihar & Others), whereby and whereunder the learned single

Judge has dismissed both the writ applications, which have been filed challenging the orders of termination of the petitioners. The learned single Judge

has passed the aforementioned order holding that the appointments of the petitioners have been found to be forged and fabricated.

The case of appellant Naresh Kumar Sinha (L.P.A. No.379 of 2018) is that the appellant was appointed as a Clerk in pursuance of an

advertisement dated 22.06.1981, which had been issued by the then Education Officer, Vaishali for appointment of Clerks in different Nationalized

High Schools. Consequent to his appointment by the order of the Additional Director in File No.11/Astha-1-010/89, the petitioner was issued an

appointment letter on 24.06.1989 (Annexure 3) under the signature of the Deputy Director (Secondary Education), Bihar. As such, the appellant joined

the said post on temporary basis in the S.M.T. High School, Vaishali on 04.07.1989, though his joining was resisted by the then Headmaster.

The further case of the appellant-petitioner was that though he submitted his joining on 04.07.1989 before the Headmaster, S.M.T. High School,

Vaishali, his joining was not accepted by the Headmaster but he continued to perform his duty regularly without any break and was transferred to

other places and lastly, he was trnsferred and posted in Devipad Choudhary Saheed Asmarak (Millar) School. However, all of a sudden, on

14.06.2004 (Annexure 16), D.E.O., Patna (respondent No.4) asked the Headmaster of the said School to produce the service book, appointment letter

and other certificates of the petitioner for verification and thereafter a show cause notice dated 19.09.2005 was issued alleging that the appointment

letter of the petitioner- appellant was forged and fabricated. The petitioner then submitted his show cause and replied to the said show cause notice on

27.09.2005 but to his shock and surprise, received Memo No.2678 dated 21.11.2005, by which he was dismissed from service and a direction was

issued to the Headmaster to lodge an F.I.R. against the appellant-petitioner. The said order of dismissal was placed under challenge in CWJC

No.15852 of 2006.

The writ petitioner of C.W.J.C. No.10461 of 2007 has not preferred any intra-Court appeal.

Learned counsel for the appellant submitted that the learned single Judge has dismissed the writ application without appreciating the case of the

appellant in its proper perspective and altogether ignored the pleading advanced by the appellant-writ petitioner. It was submitted that the dismissal of

the writ petitioner from service on the premise that the appointment letter of the petitioner was fake and forged simply because it was issued under the

signature of the Deputy Director of Human Resources Development Department is erroneous because the same letter was issued on the direction of

the Additional Director of the Human Resources Development Department, who was competent and authorised to order appointment of the

petitioner-appellant.

Learned counsel further strenuously urged before this Court that the learned single Judge has failed to appreciate that the appellant-petitioner had

rendered more than 15 years of uninterrupted and unblemished service and therefore he had a vested right to continue in service by the rule of

estoppel. It was further submitted that his service could not have been terminated without following the principles of natural justice and without holding

of a full-fleged enquiry as also by proving a fair opportunity of hearing to the persons against whom such an order was to be passed.

Learned counsel for the appellant-petitioner further submitted that under the instructions from the Additional Director, Human Resources

Development Department, who was competent and authorised to order appointment, requested the District Education Officer, Vaishali to accept his

joining but when the Headmaster had been opposing his joining, the D.E.O. vide his letter dated 03.08.1989, directed the Headmaster to accept his

joining with effect from 04.07.1989 and report compliance thereof. Learned counsel further submitted that the District Education Officer, Vaishali had

also accepted certifying appointment of the petitioner and if the same would have been forged and fabricated, the D.E.O., Vaishali would not have

written for payment of the salary of the petitioner. It was thus submitted that the entire allegation against the petitioner that his appointment letter was

forged and fabricated and that the Additional Director is not competent to authorize such an appointment is misconceived and any order passed

against the petitioner as also his dismissal order has no legs to stand and the same is fit to be set aside.

While the writ petition was being heard, in pursuance of the directions issued by this Court, a comprehensive counter affidavit was filed. The case

of the State as contained in the counter affidavit is that the order of termination passed by the District Education Officer, vide Memo No.2678 dated

21.11.2005, is wholly legal and valid in view of the fact that the matter of validity of appointment of Clerk working in nationalized Secondary School of

Patna district who were transferred by the then District Education Officer, Patna was examined on the basis of the report submitted vide District

Education Officer, Patna Letter No.1126 dated 31.05.2005. On receipt of the aforesaid report, the matter of appointment was duly scrutinized in the

Department. During the verification of such appointment, it revealed that the total number of 36 Clerks were transferred by the District Education

Officr, Patna on 31.12.2003 and out of which twelve Clerks were appointed before 01.10.1980 i.e. before the take over of the School, two Clerks

were appointed on the recommendation of Bihar Public Service Commission and eleven were appointed on compassionate ground. It is further stated

in the counter affidavit that the matter of the rest eleven Clerks, including the petitioner, was examined and the process was initiated for the

verification of their appointment. The matter of the petitioner was examined in the Department and it was found that the petitioner and one Sri Sanjay

Kumar Sinha were said to be appointed by the then Deputy Director (Secondary Education). During the course of verification, it revealed that the

appointment letter produced by the petitioner and Sri Sanjay Kumar Sinha shown issued vide letter No.11/Esth.1-010/89-365 dated 21.06.1989 and

Letter No.11/Esth- 1-010/89-367 dated 21.05.1989. Thereafter, the concerned Section Officer of Section-11, Human Resources Development

Department, vide letter No.928 dated 27.08.2005, was requested to verify the appointment letters of both the Clerks. The concerned Section Officer

informed that both the appointment letters were not issued from their Section. It is further stated in the counter affidavit that on perusal of the

information and the concerned page of the despatch letter, it revealed that vide letter No.365 dated 26.06.1989 (Annexure B) issued from File

No11/Aa-9020/86 and the letters were sent to the District Education Officer, Purnia, Regional Deputy Director of Education, Saharsa and the

Chairman, D.I.F.I. Kishanganj. This letter was sent by registered post in sealed cover, vide letter No.367 dated 27.06.1989 (Annexure C), issued from

File No.11/Bi-1-09, and the letters were sent to the Regional Deputy Director of Education, Hazaribagh and the Principal Primary Teachers Training

College, Hazaribagh. This letter was sent by Special Messenger. It is further stated that when it was proved that the appointment letter produced by

the petitioner was not issued from the Department and so-called appointment letter is forged, the services of the petitioner was terminated by the

District Education Officer, Patna, vide Memo No.2678 dated 21.11.2005.

Against the order of termination of service, the petitioner moved the Secretary of the Department by filing an appeal petition. On receipt of the

Appeal of the petitioner, the same was considered by the Commissioner-cum-Secretary of the Department and after due consideration, he was

pleased to remand the matter before the Director(Secondary Education). On the aforesaid direction, the matter of the petitioner was duly heard by the

Director(Secondary Education) and after hearing the parties, a detailed order was passed and communicated vide Memo no.3235, dated 13.10.2006.

During the course of hearing, when it revealed that the so-called appointment letter was not issued from the Directorate and when no proof was

produced by the petitioner that he was duly appointed in accordance with the provision of rules and circulars, the claim of the petitioner for

reinstatement in the service was rejected.

It is further needful to mention here that this Court while hearing the writ application directed a further enquiry and after due search of the

concerned file bearing File No.11/stha 1- 010/89, though the original file was not made available, but the part file was traced and on the basis of such

file, it came to light that the file has been maintained for the purposes of transfer of employees of Secondary Schools. The aforementioned file was

opened and maintained only for the purpose of newly appointed Clerks in the +2 Secondary Schools and it was not for the purposes of appointment to

the post of Clerks in the Nationalised Secondary Schools. The extract of the report marked Annexure E in the counter affdavit filed before the Court

in C.W.J.C. No.15852 of 2006 in pursuance of the order dated 27.07.2011 is extracted hereunder :

“Report in respect of the genuineness and correctness of the order of the appointment of the petitioner as contained in the office order no. 365,

dated 24.06.89 said to be issued vide file No. 11/stha 1-010/89:-

The Hon’ble High Court while hearing CWJC No.15852/2006 Naresh Kumar Sinha v/s State on 27.07.11 was pleased to direct the undersigned to

submit a report before the Hon’ble High Court with regard to genuineness and correctness of the order of the appointment of the petitioner as

contained in the office order no.365, dated 24.06.89 said to be issued vide file no. 11/stha 1-010/89.

That, the petitioner Sri Naresh Kumar Sinha has filed the present writ petition against the order of termination of his services vide District Education

Officer, Patna memo no.2678, dated 21.11.2005. The services of writ petitioner was terminated on the ground of the appointment letter produced by

him was not issued from the department and the so- called appointment letter; by which he was shown appointed as clerk S.M.T. High School, Vaisali

was found forged.

That, while examining the order of the appointment of the petitioner it revealed that the appointment letter produced by the petitioner is not found

issued from the general dispatch register of the Directorate of Human Resources Authorities, but the appointment letter in question has been issued by

the appointing violation of requisite procedure of the appointment with a view to give benefit to the petitioner. The appointment in Nationalised

Secondary Schools are to be made following the provisions of Personal and Administrative Reform Department’s circular no.16440, dated

03.12.80. But the so-called appointment letter shows that this was issued in contrary to the provisions of the aforesaid circular; which can not be said

genuine.

That, as per the direction of the Hon’ble High Court the Directorate of the Secondary Education was directed to trace and produce the

concerned file bearing No. 11/stha 1- 010/89. The Directorate Secondary Education informed that the Original file is not available, but a part file of the

original file bearing no. 11/stha 1-010/89(part) was traced and produced before the undersigned. On going through the aforesaid part file, it revealed

that this file was opened in respect of the transfer of the newly appointed clerks in the +2 Secondary Schools. On perusal of the notings and

documents preserved in the correspondence side of the aforesaid part file, it appears that the file has been maintained for the purposes of the transfer

of the employees of the +2 Secondary Schools. Aforesaid facts shows that the file in question vide No. 11/stha 1-010/89 was opened and maintained

only for the purposes of the transfer of newly appointed clerks in the +2 Secondary Schools and this was not maintained for the purposes of

appointment to the post of clerks in the Nationalised Secondary Schools.

From the facts and circumstances stated above it is clear that the petitioner’s appointment on the basis of the appointment letter produced by him

is not genuine and correct as the same was not found issued from the dispatch register of the Directorate and the concerned file bearing no.11/stha 1-

010/89 was also not concerned with the appointment of the petitioner.â€​

The learned single Judge after full consideration of the report submitted by the Principal Secretary, Human Resources Development Department,

Bihar, Patna, vide his letter dated 19th December, 2011, conclusively came to the decision that the very appointment of the petitioner was made by an

authority, who was not duly authorized to issue such appointments and, further, the appointment letter was in itself not in part file as it was referred to

in the concerned record as the same relates to only all transfers and postings of newly appointed Clerks. The concerned Principal Secretary has

moreover categorically noticed from the report that the concerned Principal Secretary has specifically averred that the appointment in the Nationalized

Secondary Schools are to be made by following the procedure of Personnel and Administrative Reforms Department Circular No.1640 dated

03.12.1980, whereas the so-called appointment letter in favour of the petitioner was issued contrary to the aforementioned circular and thus is not a

genuine and valid document.

We have heard learned counsel for the appellant and also learned counsel for the State of Bihar and perused the materials on record.

Learned counsel for the appellant has strenuously urged that it was wrong on the part of the respondents to consider the appointment of the

appellant to be illegal. It was submitted that the appointment of the appellant had been made by the authority and in exercise of such authority, the

Additional Director, vide his Memo No.365 dated 21.06.1989, got the petitioner appointed under the signature of the Deputy Director, Secondary

Education. It was submitted that the appointment of the petitioner had not been obtained either by means of fraud or any misrepresentation and,

therefore, the action of the authorities in terminating his services was wholly erroneous and ought to be recalled. It was further submitted that the

appellant after having worked for a considerable number of years, it was not open to the authorities to open an issue regarding the appointment of the

petitioner and without any notice to him terminating his services after putting the validity of his initial appointment under a cloud.

It may be noted further that right from the outset, we have observed that the Headmaster was having serious reservation regarding joining of the

petitioner, but the District Education Officer, Vaishali on receiving a communication dated 27.07.1989 (Annexure 4) from the Deputy Director,

Secondary Education, by which the said authority had confirmed the said appointment of the petitioner, directed the Headmaster to accept the joining

of the petitioner with effect from 04.07.1989. Furthermore, he had also issued further directions for payment of salary to the appellant.

It has been further observed by us from the record of the case that the concerned Headmaster had again responded to the directions of the

D.E.O. in a negative manner inasmuch as he had not agreed to pay the appellant his salary and on the contrary, on receipt of Memo No.5491-92

dated 15.11.1989 had, in fact, relieved the appellant-petitioner. Thus, it was evident that the Headmaster had clearly not accepted the appointment of

the petitioner. It is further relevant to note here that once the appellant was relieved by the Headmaster from S.M.T. High School, Vaishali, he joined

the office of the D.E.O., Vaishali on 16.11.1989, who himself relieved the petitioner to submit his joining in the office of the Additional Director for

“adjustmentâ€. What is indeed strange is that it is not known as to under what authority the Additional Director had proceeded to make such an

appointment even though a Committee had been constituted, vide Annexure 2, to consider the appointment of the teaching and non- teaching staff,

which consisted of the District Education Officer, Vaishali, District Education Inspectress, Vaishali and one Nagina Singh, Headmaster, Government

High School, Vaishali. Thus, the appointment of the petitioner under the instructions from the Additional Director appears to be collusive and in

violation of the procedure which was stated in Memo No.3826 (Hajipur) dated 10th July, 1984.

Learned counsel for the appellant has also drawn our attention to a decision of this Court in the case of Ashok Kumar and others Vs. The State of

Bihar & Others, reported in 1994(2) BLJ 499, wherein learned counsel for the appellants, while referring to paragraphs 9, 12 to 15 of the said

judgment, have tried to persuade this Court in their favour. It is important to indicate that the question of validity of appointment was under

consideration in the same case and the Court held that the validity of the appointment made 12 years back cannot be opened. We do not find ourselves

in agreement with a reliance on such a judgment as the facts of the said case was adequately different, whereas in the present case, the appointment

of the appellant was in pursuance of the wrong perpetuated at the hands of an official who was neither authorised by any order of the Government

nor was he entitled to issue order of confirmation. That apart, the respondents, in the instant case, have now clearly come up with a stand that the

entire file referred to in the appointment letter of the appellant is, in fact, in a file which was created for the transfer and appointment of newly

appointed Clerks and, therefore, by no stretch of imagination, could the same file be considered to have been for the purposes of issuance of the

appointment letter of the appellant. Thus, this Court is wholly in agreement with the finding arrived at by the learned single Judge that the appointment

of the appellant-writ petitioner was not in conformity with the provision of the Personnel and Administrative Reforms Department contained in

Circular No.16440 dated 03.12.1980, which clearly enunciated that the appointments were to be made at the level of the Directorate.

Delving further into the matter, we also find ourselves in agreement with the learned single Judge that the contention of the respondents that the

appointment letter was not issued by the Directorate of Human Resources has not been controverted, but has been issued from the Office of the

Deputy Director, Secondary Education. Furthermore, we have observed that the file in question from which the appointment of the appellant is said to

have emanated is, in fact, a part file, which was opened and maintained only for the purposes of transfer of Clerks in +2 Secondary Schools and this

was not maintained for the purpose of appointment to the post of Clerk in the Nationalized Secondary Schools. Thus, on this score also, this Court is of

the considered opinion that the continuance of the appellant-petitioner could not be sustained and the order of termination was wholly legal and valid.

A perusal of Annexure A to the counter affidavit also reveals that the appointment letters of the present appellant was verified along with all other

11 Clerks and it was found that during the course of verification, the appointment letter produced by the petitioner was shown to be issued vide Letter

No.11/Esth.1-010/89-365 dated 21.06.1989 and it came to light that the appointment letters of the present appellant as well as one Sanjay Kumar

Sinha was not issued from their Section, namely, Section 11 of the Human Resources Development Department. Furthermore, it reveals that vide

Letter No.365 dated 21.06.1989 issued from File No.11/Aa-9020/86, the letters were sent to the District Education Officer, Purnia, the Regional

Deputy Director of Education, Saharsa and other places, but the appointment letter produced by the petitioner was not issued from the Department.

Having noticed the above and upon consideration of the entire facts of the case, we are of the considered opinion that the learned single Judge has

rightly upheld the order of termination of the appellant and even in this appeal, there being no cogent explanation controverting the situation which has

emerged on enquiry, we uphold the judgment and order passed by the learned single Judge.

The appeal stands dismissed.