Ram Krishna Dubey vs State of Bihar and Others

Rajesh Balia, C.J. and Barin Ghosh, J.—This appeal is against the order of learned single Judge dated 23rd bi August, 2007 dismissing the writ petition filed by the petitioner-appellant. The petitioner-appellant has challenged the Memo No. 2483 dated 26th of August, 2000, issued by the District Education Officer, Hajipur (Vaishali), by which he has been removed from services from the post of Clerk in S.S. Girls'' High School, Hajipur and also to recover all emoluments paid to him during the period he had served.

The relevant facts about the service of the petitioner-appellant art; that he was appointed on urgent temporary basis on 16th March, 1985 for a period of three months which continued through extensions granted from time to time. By order dated 17th August, 1989 the petitioner-appellant was regularly employed by absorption in L.M. High School, Bhagwanpur and was assigned seniority with effect from that date. Thereafter, in terms of the Bihar Government Orders dated 13.11.1981 the petitioner-appellant was given a time bound promotion in the Selection Grade by order dated 23rd November, 1995. It appears that on 21.6.1999 on the basis of certain Audit Objection the petitioner-appellant was required to show whether at the time of his appointment provisions relating to giving appointment has been followed or not and whether his appointment is not contrary to any of the provisions laid for such appointments and that if satisfactory reply is not given within eight days his services will be liable to be terminated. A second letter was issued on 4.9.1999 and on 10.1.2000 a show cause notice was given to him. After considering reply to show cause notice his appointment is found to be illegal and irregular including that at the time of his appointment he had crossed the upper age limit.

However, there was no allegation that in any of the irregularities pointed out, including about date of birth, the petitioner-appellant was instrumental or concealed any materials required to be disclosed by him. Yet a show cause was given why his services be not terminate and, ultimately, by the impugned order in the writ petition, his services were terminated.

The counter was filed supporting the order stated therein, namely, that since the initial appointment was not in accordance with the procedure laid, his services car�not be continued.

The learned single Judge has dismissed the writ petition principally on the ground that original appointment was given without advertisement and publicity. In the close of the judgment a passing observation was made that it further appears that he had forged his appointment letter.

It appears that whole contention and the stand taken by the respondent-State were for considering the matter from the point of view for regularization a person who has been continuing for long in service as a temporary hand.

Having, considered the facts and circumstances, which have been brought before us, as noticed above, it is clear that the petitioner-appellant has already been regularized on 17.8.1989 by absorption. Nothing has been said or alleged about invalidity of order dated 17.8.1989 as a result of which the petitioner-appellant had become permanently absorbed and thereafter his services could have been terminated only in the manner the services of a permanent civil servant can be dispensed with.

From the show cause notice or from the impugned order nowhere it is shown any complicity of the petitioner-appellant about any misrepresentation on the part of his being eligible or qualification or complicity in taking appointment letter by any illegal means has been alleged. Apparently all matters directed to the petitioner-appellant for show'' cause related to somebody else. Whether any notice was issued or ought to have been issued is not within the domain of the incumbent. Whether a person who has disclosed his correct age and could have been given appointment by relaxation is also a matter which is not answerable by the incumbent. No misconduct has been alleged or fraud to have been committed on me part of incumbent in any manner.

A permanent employee''s services can only be terminated by following the procedure laid in Rules for removal of a permanent employees and that procedure must be accorded within Article 311 (2) of the Constitution. There being no misconduct on the part of the petitioner-appellant arid there being no allegation or finding by any competent authority about any misconduct on the part of incumbent in securing appointment, the termination order of permanent employee as has been made in the case cannot be sustained.

The judgment under appeal also appears to be on the premise as if the case is for considering regularization. The reference to Uma Devi''s case (Secretary, State of Karnataka v. Uma Devi (3) and Ors. 2006 (109) FLR 826 (SC) : 2006 (42) AIC 935 and Verma''s case) State of M.P. and Others Vs. Lalit Kumar Verma, are pointer to that. The present case being not a case of claim of regularization but the termination of a permanent employee, in our opinion, both the decisions are not applicable to the present case.

So far as the observation of the learned Judge that it appears that the petitioner had forged his appointment letter is not sustainable without holding any enquiry with such allegation in accordance with rules. The forging of appointment letter is a grave misconduct and this cannot be assumed without holding proper enquiry.

Since the order of termination resulting in termination of the petitioner appellant from service has taken place contrary to any provision known for termination of a permanent employee, the termination order cannot be sustained.

Before parting with the case it may also be observed that even if the order of termination were to be valid there could be no justification for recovery of emoluments paid to the petitioner-appellant for the period he has actually discharged his duties of office. Consequently the appeal is allowed and the judgment under appeal is set aside. As a result of aforesaid discussion the writ petition is allowed and the impugned order of termination of the petitioner-appellant''s service is quashed.