Patna High Court
Meena Kumari vs The State Of Bihar & Ors on 8 September, 2011
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL WRIT JURISDICTION CASE NO.7706 OF 1997
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MEENA KUMARI, D/O SRI KRISHNA KUMAR VERMA, R/O MOHALLA
BABHANI GHAT, P.S CIVIL LINES, DISTRICT GAYA AT PRESENT
POSTED AS ASSISTANT TEACHER, HIND MADHYA VIDYALAYA,
GEBALBIGHA UNDER GAYA DISTRICT.
.....................PETITIONER.
VERSUS
1.THE STATE OF BIHAR.
2.THE DISTRICT EDUCATION ESTABLISHMENT COMMITTEE,
THROUGH ITS CHAIRMAN, DISTRICT MAGISTRATE, GAYA.
3.THE DISTRICT EDUCATION SUPERINTENDENT, GAYA.
4.THE HEADMASTER, HINDI MADHYA VIDYALAYA, GEBALBIGHA,
UNDER GAYA DISTRICT.
...........................RESPONDENTS.
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Appearance:-
For the Petitioner: Mr. Dinu kumar & Mr. Sunil
kumar.
For the Respondents:Mr. (GP4)
========================================================
CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
ORAL JUDGMENT
Date: 08-09-2011
(Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA)
Mihir Kumar Jha,J. Heard Mr. Dinu Kumar, learned counsel for
the petitioner and learned counsel for the State.
2. The prayer of the petitioner in this
writ application reads as follows:-
"a. For quashing the office order
vide memo no. 2096 Gaya dated 25.06.1997
issued under the signature of District
Education Superintendent, Gaya,
Respondent no. 3 as contained in
Annexure-3 to the present writ
application, whereby and whereunder, the
petitioner has been communicated the
decision taken by the District
Establishment Committee on 08.06.1997
terminating the services of the
petitioner with effect from 07.07.1995;
b.For non-payment of salary for
the due period for which the petitioner
has not been paid her salary in terms of
2 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011
2 / 34
the order dated 27.01.1996 passed in
C.W.J.C No. 3640 of 1995 after taking
into account of the explanation submitted
by the petitioner pursuant to the
explanation asked for vide Memo No. 653
dated 01.03.1997:
c. Also for directing the State
respondents to allow the petitioner to
function as Assistant Teacher in Hindi
Madhya Vidyalay Gebalbigha, Gaya;
d. For directing the State
respondents to make payment of salary of
the admitted working period since month
July, 1995 to the date of dismissal i.e.
25.06.1997;"
3. Let it be noted that this writ application was earlier dismissed by a reasoned order passed by this court on 15.07.2010, which has been set aside by a Division Bench vide order dated 26.07.2011, in L.P.A No. 565 of 2011 (Meena Kumari vs The State of Bihar & Ors), wherein, it has been held as follows:-
"By the order under appeal dated 15.07.2010 writ petition preferred by the petitioner bearing C.W.J.C No. 7706 of 1997 has been dismissed on merit after noticing that no one appears on behalf of the petitioner.
The usual practice is to dismiss the case for default in case of non- appearance of counsel for the petitioner or appellant. In such a case the option available to the petitioner is to pray for restoration of the case for being heard on merit. In view of grievance raised on behalf of appellant against dismissal of a writ petition on merit when the counsel could not appear, the order under appeal is set aside without going into the merits of the case and the matter is remitted to the writ Court for deciding the matter after affording opportunity to the writ petitioner."
4. The attention of the Division Bench 3 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 3 / 34 having been not drawn to an earlier judgment of the co-ordinate Bench in the case of Kedarnath Tripathy vs The State of Bihar & Ors, reported in 2008(3) PLJR 470, the better recourse for this Court could have been to refer the matter to a larger Bench for getting the issue as to whether a writ petition can be disposed of on merit even in the absence of the counsel for the petitioner settled for once and all. In this regard it has to be noted that a Division Bench of this Court in the case of Kishori Prasad vs The State of Bihar & Ors, reported in 2008(2) PLJR 458 had held as follows:-
"The appeal is directed against the order of the learned Single Judge dated 03.10.2007. It appears from the order under appeal that the learned counsel for the petitioner was not present and in the presence of learned counsel for the respondents, on his submission, the writ petitioner has been dismissed on merit instead of dismissing the writ petition for want of prosecution which could have enabled the appellant to pursue the remedy of restoration and seeking hearing on merit.
3.We have also earlier made it clear and we again make it clear that where the learned counsel for the petitioner is not present, the ordinary course is either to postpone the hearing or to dismiss it for want of prosecution but in no circumstances it is to be decided on merit. The same view has also been taken by the Hon'ble Supreme Court in number of matters."
5. Subsequently however another Division Bench of this Court in the case of Kedar Nath 4 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 4 / 34 Tripathi vs The State of Bihar & Ors, reported in 2008(3) PLJR 470 had taken a contrary view wherein it was held that:-
"We heard Mr. Kamal Nayan Choubey, Senior Counsel for the appellant. He vehemently contended that when the petitioner or his counsel did not appear, the Single Jude had two options viz;(i) adjourn the case; or (ii) dismiss the case for default. He would, thus, contend that because of non-appearance of the petitioner or his counsel, the Single Judge could not have considered the matter on merit. He placed heavy reliance upon a Division Bench decision of this court in the case of Kishori Prasad vs The State of Bihar and Others [2008(2) PLJR 458], more particularly, paragraph 3 of the report. That reads thus:-
"We have also earlier made it clear and we again make it clear that where the learned counsel for the petitioner is not present, the ordinary course is either to postpone the hearing or to dismiss it for want of prosecution but in no circumstances it is to be decided on merit. The same view has also been taken by the Hon'ble Supreme Court in number of matters."
In our view, the aforesaid observations cannot be said to laying down an absolute proposition that in absence of the party or his counsel, writ petition cannot be decided on merits. It could not have been because there is no such fetter imposed upon the Single Judge exercising high prerogative jurisdiction under Article 226 of the Constitution of India. It needs no elaboration that the proceedings under Article 226 of the Constitution are not governed by the Code of Civil Procedure, 1908.
Section 141 of the Code of Civil Procedure excludes the applicability of the provisions contained in the Civil Procedure Code to the proceedings under Article 226 of the Constitution. No 5 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 5 / 34 judgment of the Supreme Court has been brought to our notice holding otherwise in so far as writ jurisdiction under Article 226 of the Constitution of India is concerned.
We are, thus, of the view that in writ jurisdiction, even in absence of the party of his counsel, it is open to the Court to proceed with the matter on merits and decide accordingly."
6. Today, Mr. Dinu Kumar, learned counsel for the petitioner would however frankly concede the position in law that not only this Court but even the Apex Court has repeatedly held that a writ petition or an appeal before the High Court or the Supreme Court arising out of a proceeding under Article 226 of the constitution of India can be disposed of on merits even in the absence of the counsel for the petitioner.
7. Be that as it may in view of the aforementioned settled proposition of law in the latest Division Bench judgment in the case of Kedarnath Tripathi (supra) and in deference to the order of Division Bench dated 26.07.2011 in the case of the petitioner Meena Kumari (supra) this Court has heard counsel for the parties on merit with a view to dispose of this writ application.
8. In this writ application, as has been noted above, the challenge is to the order of termination of the services of the petitioner 6 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 6 / 34 dated 25.06.1997, wherein, her services have been dispensed with on the ground that she had obtained her appointment by playing fraud on the basis of her claim of being appointed as Madhyama Sent-up candidate (Madhyama Utpreshit).
9. Mr. Dinu Kumar, learned counsel for the petitioner, would submit that in the year 1987, when the petitioner was appointed she had already completed the teachers training course and had also passed Madhyama Examination and as such it cannot be said that she had made an attempt to play a fraud by claiming herself to be Madhyama Utpreshit, (Madhyama Sent-up candidate). He has also submitted that even if there was an allegation of fraud against the petitioner, a regular Departmental Proceeding should have been held instead of adopting the shortcut mode and method of merely issuing a show cause notice and dispensing her services after obtaining her show cause reply. He has also submitted that the impugned order does not deal with the defence of the petitioner, as specifically taken in the show cause reply filed by her to the show cause notice dated 01.03.1997.
10. Learned counsel for the State on the other hand with the help of the counter affidavit filed by him has submitted that the impugned order 7 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 7 / 34 has been passed in compliance of a direction given by this Court in the order dated 21.01.1997 passed in C.W.J.C No. 3640 of 1995, wherein, the petitioner of this case was also made party by the writ petitioner of that case namely, Ragini Verma. In this context, it has been stated that Ragini Verma after coming to know of the appointment of the petitioner and few others had initially filed C.W.J.C No. 8712 of 1993 seeking her appointment on the post of Assistant Teacher in Primary School by citing the example of the petitioner and others claiming them to be junior to her in the panel.
11. In this regard, he has also pointed out a judgment of the Division Bench of this Court dated 24.09.1993 passed in C.W.J.C No. 8712 of 1993, wherein, the Director Primary Education was directed by this Court for considering the entitlement of Ragini Verma within a period of six weeks of the receipt of her representation by the Director of Primary Education. He has also submitted that when the Director of Primary Education had passed his final order on the representation of Ragini Verma on 02.11.1993, it was held therein that the petitioner of this case was not junior to Ragini Verma, inasmuch as, she was a selected candidate in the panel of the year 1981 whereas Ragini Verma was the candidate of the 8 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 8 / 34 panel of the year 1982-84.
12. He has also pointed out that when the representation of Ragini Verma was rejected by a reasoned order by the Director of the Primary Education dated 02.11.1993 as communicated by memo no. 1785 dated 06.11.1993(Annexure-7) distinguishing her case as against the petitioner Meena Kumari and two others namely, Lalita Kumari and Abha Kumari. Ragini Verma had again filed another writ application being C.W.J.C No. 3640 of 1995 and at that stage it was held by this Court in its order dated 27.01.1997 passed in C.W.J.C No. 3640 of 1995, though Ragini Verma had no case as against Lalit Kumari and Abha Kumari who were made respondent nos. 4 and 5 to that writ application but this Court had found prima facie material against the petitioner of this case, Meena Kumari who was made respondent no. 6 to that writ application.
13. In this regard he has further submitted that from perusal of the order of the Director of Primary Education itself, it would be clear that the name of the petitioner was included in the 1981 panel as Madhyama Sent-up (utpreshit) candidate and therefore, the petitioner cannot be heard to say that in the year 1981 when she had appeared in the interview pursuant to the 9 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 9 / 34 advertisement she had passed either Madhyama Examination or that her appointment in the year 1987 was made on the basis of her being trained candidate. In this regard, learned counsel for the State has also placed reliance on the extract of the interview register showing the name of the petitioner to be in the list of madhyama sent-up candidates and also her signature against her name in the interview register.
14. He has, accordingly, submitted that the petitioner was given adequate opportunity to produce any material that she was a madhyama sent- up candidate in the year 1981, so as to justify her appointment on the basis of her name included in 1981 panel as a madhyama sent-up candidate but she had failed to produce any material to this effect and on the contrary she had claimed that her name was included as madhyama passed candidate and in the madhyama utpreshit(sent-up) candidate.
15. Learned counsel for the State has thus summed up his submission that since the petitioner had obtained appointment by playing fraud and misrepresenting that she has been a madhyama sent- up candidate, her appointment having been found to be fraudulent was cancelled by the order of the competent District Authority namely, the District Education Establishment Committee, which in its 10 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 10 / 34 meeting held on 08.06.1997 had considered all aspects of the matter including the fact stated by her in her show cause reply.
16. In the considered opinion of this court, the petitioner's appointment on the post of matric untrained teacher was made on the basis of her being sent up madhyama candidate. In this regard, it is significant to note that the petitioner claims that she had passed the madhyama examination from Kameshwar Singh Darbhanga Sanskrit University in the year 1980 and in support of this fact, photocopy of her marksheet issued by the University had been produced. Such marksheet being not the original copy rather an attested copy cannot be a proof of the fact that the petitioner had passed madhyama examination conducted by the University in the year 1980. On the other hand, from the endorsement made on the marksheet it becomes clear that such marksheet was prepared in the year 1982 or 1984, inasmuch as, the date has been deliberately sought to be interpolated by changing the figure zero to two and again to one and again to four.
17. In any event, this document was never produced by the petitioner in response to the show cause notice, wherein, she had claimed that she had appeared in the year 1981 as madhyama passed 11 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 11 / 34 candidate. As a matter of fact, in the show cause notice dated 01.03.1997, the petitioner was directed to explain as to why her appointment should not be cancelled on account of misrepresenting the fact with regard to her being a madhyama sent-up candidate, for the shake of brevity and clarity the show cause notice dated 01.03.1997 is quoted hereinbelow:-
izs'kd ] v"kksd dqekj ftyk f"k{kk v/kh{kd] x;kA lsok esa Jherh ehuk dqekjh lgk;d f"kf{kdk] fgUnh e/; fo|ky;] xsoy foxgk] x;kA fo'k; %& Jherh jkfxuh oekZ }kjk ekuuh; mPp U;k;ky; ds nk;j fjV ;kfpdk la0 36401@95 esa fnukad 27-1-97 ds ikfjr vkns"k ds laca/k esAa egk"k;] mi;qZDr fo'k; ds lEcU/k esa bl dk;kZy; ds i=kad 1430 fnukad 7-7-95 ,oa 1667 fnukad 26-7-95 dh vkSj vkidk /;ku vkd`'V djrs gq, dguk gS fd vkius viuh fu;qfDr laLd`r mRizsf'kr e/;ek dh ;ksX;rk ds vk/kkj ij lk{kkRdkj 1981 esa "kkfey gksdj bl dk;kZy; ds Kkikad 8158&8408 fnukad 25-6-87 ls izkIr dh gSA ijUrq mi;qZDr i=ksa ds }kjk vkils mRizsf'kr gksus lEcU/kh ekaxs x;s izek.k i= vkt Ms<+ o'kZ ls vf/kd gksus ds ckn Hkh vkius ugh fn;k gSA blds lkFk gh ekuuh; mPp U;k;ky; esa fo'k;k/khu okn esa vki oknh la0 6 gksus ds ukrs Hkh vkius vius opko esa mRizsf'kr gksus dk dksbZ izek.k i= ugh fn;k tcfd vkids }kjk fu;qDr vf/koDrk Hkh U;k;ky; esa mifLFkr Fks tSlk fd QSlys ds voyksdu ls Kkr gksrk gSA blls Li'V izekf.kr gS fd vki laLd`r e/;ek mRizsf'kr ds vk/kkj ij xr~ 1981 esa lk{kRdkj esa "kkfey gksdj foHkkx dks /kks[kk/kM+h esa j[kk gSA ;gka ij ;g dguk vko";d gS fd vkidh fu;qfDr i= esa Li'V vafdr gS fd vkidh fu;qfDr laLd`r e/;ek mRizsf'kr ds vk/kkj ij gqbZ gS eSfVªd izf"kf{kr ds vk/kkj ij ugha vkids }kjk ekuuh; mPp U;k;ky; us bldk izfrokn ljdkj dh vksj ls nk;j izfr"kiFk i= dk ugha fd;k x;k gSA vafdr djuk gs fd ekuuh; mPp U;k;ky; us lquokbZ ds mijkar vius vkns"k fnukad 27-1-97 esa vkns"k fn;k gS fd dkuwu ds vkyksd esa bl ekeys dks vkns"k izkfIr ds nks ekg ds Hkhrj fuiVk fy;k tk;A vki ;g Hkh tkurh gS fd vkids fu;qfDr i= dh dafMdk 6 esa Li'V vafdr gS fd fu;qDr O;fDr;ksa ds izek.k i= tkyh ik;s tkus ij Lor% jn~n ekuh tk;sxh vkSj muds fo:) dkuwuh dkjZokbZ dh tk;sxhA pqfa d vc ;g ekeyk ekuuh; mPp U;k;ky; ds vkns"k ds vkyksd esa ns[kuk gS vkSj fu.kZ; ysuk gS vkius vius opko i{k esa mRizsf'kr gksus dk dksbZ izek.k i= Ms<+ o'kZ chrus ds ckn Hkh ugha fn;k gSA blls Li'V gS fd foHkkx dks /kks[kk esa j[kdj Ny&iwoZd laLd`r e/;ek mRizsf'kr ds vk/kkj ij fu;qfDr gkfly dh gS tcfd vki mRizsf'kr ugha FkhA vr% vkils ekuuh; mPp U;k;ky; ds vkns"k fnukad 27-1-97 ds vkyksd esa ,d i{k ds Hkhrj Li'Vhdj.k ekaxh tk jgh gS fd vkidh lsok D;ksa ugha lekIr dj nh tk; vkSj Ny iwoZd /kks[kk/kM+h ds vk/kkj ij fu;qfDr izkIr djus ds vfHk;ksx esa vkids fo:) dkuwuh dkjZokbZ D;ksa ugha tk; \ vkidk Li'Vhdj.k i= fuxZr dh frfFk ls ,d i{k ds Hkhrj v/kksgLrk{kjh ds dk;kZy; esa vkuk vfuok;Z gS vU;Fkk le>k tk;sxk fd vkidks vius cpko esa dqN ugha dguk gSA ;g vkidks vfUre ekSdk fn;k tk jgk gS D;ksafd iwoZ esa nks i= vkidks fn;s tk pqds gSA bls vR;ko";d le>sA fo"oklHkktu 12 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 12 / 34 g0 vLi'V ftyk f"k{kk v/kh{kd x;kA Kkikad 653 fnukad 1-3-97 izfrfyfi & iz/kkuk/;kid] fgUnh e/; fo|ky;] xsoy foxgk x;k dks lwpukFkZ ,oa vko";d dk;kZFkZ izsf'kr g0 vLi'V ftyk f"k{kk v/kh{kd x;kA
18. From perusal of the show cause notice, two things are very clear namely, that such show cause notice was issued in terms of the direction given in the order dated 27.01.1997 passed by this Court in C.W.J.C No. 3640 of 1995 filed by Ragini Verma, inasmuch as, this Court in the said order dated 27.01.1997 had recorded as follows:-
"So far as respondent no. 6 is concerned in the previous order dated
02.01.1997 it was noticed that State has been taking different stands. Mr. Krishna Murari, G.P. 5 was directed to take full instructions. He states that in the previous counter affidavit the appointment of respondent no. 6, Mina Kumari was described as valid in view of the fact her name figures in the select list. Later it transpired, during the course of scrutiny of the certificates, that she had secured appointment by playing fraud. In that view of the matter notice has been issued to her to show cause why the appointment be not cancelled vide annexure E to the counter affidavit.
Inasmuch as the controversy
regarding validity of appointment of
respondent no. 6 is pending consideration by the authorities below, I do not think it would be proper on my part to go into the merit of the grievance of the petitioner.
The writ petition is disposed of with direction to the District Selection Committee, Gaya, to look into the matter and take appropriate decision in accordance with law within a period of two months of receipt of a copy of this order." 13 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 13 / 34
19. It is significant to take note of the fact that the petitioner had filed her reply on 08.03.1997, wherein, she had altogether denied to have been appointed on the post of teacher on the basis of being madhyama sent-up candidate and her specific stand before the authority was that in the year 1981 she had already passed madhyama examination and had appeared in the interview as madhyama passed candidate as would be also evident from the following extract of her show cause reply:-
;g fd eSa o'kZ 1981 esa ek= e/;ek ;ksX;rk ds vk/kkj ij lk{kkRdkj esa mifLFkr gq;h u fd e/;ek mRizsf'krA Li'V gS fd mDr Kkiu laLd`r] mnwZ rFkk fodykaxrk ds vk/kkj ij fd;k x;k FkkA
20. As a matter of fact such stand of the petitioner is also clear from paragraph no. 15 of the writ application, wherein, she has stated as follows:-
"That the petitioner submitted explanation on 08.03.1997 to the District Education Superintendent, Gaya stating therein that the petitioner has participated in the interview on the basis of the marks obtained in Madhyama Utpreshit which is evident from the Notification. In absence of non-
availability of the trained candidates and untrained candidates in the subject of Sanskrit, Urdu and Science will be appointed."
21. Such stand of the petitioner, however, has been contested by the respondents in paragraph 14 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 14 / 34 no. 22 of the counter affidavit, wherein, it has been stated as follows:-
"That with regard to the statement made in paragraph no. 15 of the writ application is concerned, the deponent most humbly states and submits that the statement of the petitioner is incorrect the fact is this that the she appeared in interview of 1981 as Sanskrit Madhyama Utpreshit and put her signature there and not as untrained candidate.
Photostat copy of the
interview register is annexed
herewith and marked as Annexure-B to this counter affidavit."
22. Confronted with this documentary evidence, which was sufficient to expose the false claim being made by the petitioner that she had appeared in the interview as a Madhyama passed candidate not as Madhyama Utpreshit candidate but then she has changed her stand as would be apparent from paragraph no. 9 of her rejoinder to the aforesaid counter affidavit, wherein, as with regard to the aforementioned statement in paragraph no. 22 of the counter affidavit supported by the document namely, the interview register has been sought to be explained by her in the following words:-
"That the Statement made in paragraph no. 22 of the counter affidavit is denied. It is stated and submitted that the petitioner has already been qualified in the earlier examination and in the main writ application the petitioner was appointed as UTPRESHIT Candidate and 15 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 15 / 34 before appointment the petitioner has already become trained in the year 1985 for the session 1982-84 and, there was no illegality or irregularity in appointment as per the advertisement."
23. Thus from the pleadings on record, it becomes more than clear that when the advertisement was issued for the post of Sanskrit teacher and a person could also apply if he or she had appeared in Madhyama examination by demonstrating that she had already been sent up for such Madhyama examination, the petitioner had projected herself to be Madhyama Sentup (Utpreshit candidate) and later on when inquiry began on account of an order passed by this Court, she had altogether changed her stand because she had/has no document to support that she had already been a sentup candidate for Madhyama examination on the date of interview.
24. The reliance placed by learned counsel for the petitioner on Government notification dated 05.03.1983 is also of no avail, inasmuch as, first of all that was issued after the interview and for fresh transaction of appointment to be undertaken in the year 1983 or thereafter. In the said order dated 05.03.1983, it was decided that for the post of Sanskrit or Urdu teacher candidate should have passed their 16 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 16 / 34 examination from Kameshwar Singh Darbhanga University and Bihar Madarsa Education Board to be appointed on such post. The notification which would in fact govern the petitioner has not been brought on record and the petitioner has also not produced the advertisement on the basis of which she had filed her application. It has to be also noted here that as per the Government decision even a Sanskrit teacher had to not only possess the requisite qualification of Madhyama which is equivalent to matriculation but have to be trained and the only relaxation given in the case of Sanskrit school/teacher was that an untrained Madhyama passed candidate could also be considered in absence of trained Madhyama candidates. These provisions, however, come in the year 1983 but prior to that for the 1981 selection process, two categories of candidates were empanelled namely who had passed Madhyama and the other who were already sentup for Madhyama examination and having appeared in Madhyama examination were waiting for their Madhyama examination. This infact would become clear from perusal of Annexure-B to the counter affidavit as also the appointment letter of the petitioner herself, wherein, the two categories of teachers namely Madhyama passed and Madhyama 17 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 17 / 34 Sentup were separately offered appointment.
25. Thus the changed plea of the petitioner that since in the year 1987 she had already passed Madhyama examination as also her Teacher Training Examination, her initial misrepresentation of being Madhyama Utpreshit candidate got cured is factually incorrect and legally impermissible, inasmuch as, large number of candidates who were undergoing Madhyama course but had not been sent-up for Madhyama examination were not eligible for applying on the post of Sanskrit teacher. Thus if the petitioner had misrepresented that she was a Madhyama Utpreshit (sent up) candidate and that was found to be wrong in course of inquiry undertaken under the direction of this Court, the fraud played by the petitioner itself came to the fore vitiating her appointment and rendering it as an ab-initio- void.
26. It is very difficult to accept this explanation which has been taken for the first time only before this Court. In the considered opinion of this Court, the stand taken by the petitioner in her show cause reply, wherein, she had claimed that she had already passed madhyama examination before appearing in the interview on 19.11.1981 would not now permit her to take such a 18 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 18 / 34 changed plea. In any event, the sent-up candidate is a student who has already completed the regular course from the particular institution and has been allowed to appear in the examination. The best proof of the petitioner being a sent up candidate could be the admit card issued by Kameshwar Singh Darbhanga Sanskrit University or even a certificate from the School in question from where she had completed the course of madhyama and was allowed to appear in the examination. In fact once, the petitioner claims that she had already passed the madhyama examination prior to the date of interview i.e. 19.11.1981, it was quite easy for her to produce either certificate of the University showing the declaration of result of her madhyama examination in the year 1980 on or before 19.11.1981. Nothing however, was produced by the petitioner either before the Authority in response to the show cause reply or even before this Court to satisfy that the reason given for termination of her service of she being not the sent up candidate of madhyama examination is based on non est and/or non existent material.
27. A question in this respect would also arise as to what had prevented the petitioner to produce the original certificate issued by the 19 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 19 / 34 University showing the petitioner to have passed madhyama examination in the year 1981, well before her appearance in the interview on 19.11.1981? As conclusively shown in Annexure-B to the counter affidavit, the extract of the interview register containing the signature shows that the petitioner had appeared in interview as Madhyama Sentup candidate and thus this Court would not find any flaw in the consequential impugned order dated 25.06.1997 which reads as follows:-
dk;kZy; ftyk f'k{kk v/kh{kd] x;k dk;kZy; vkns'k Jherh ehuk dqekjh] f'kf{kdk] fgUnh e/; fo|ky;] x;koy foxgk uxj fuxe ds }kjk cy iwoZd laLd`r e/;ek mRizsf"kr ds vk/kkj ij fu;qfDr i= gkfly djus ds dkj.k buds fo:) Jherh jkxuh oekZ xzk0& csukjpVh Fkkuk& cthjx x;k ds }kjk ekuuh; mPp U;k;ky; esa nk;j jhV ;kfpdk la0 3640@95 esa ekuuh; mPp U;k;ky; }kjk fnukad 21-1-1997 ls ikfjr vkns'k ds vkyksd esa dk;kZy; ds Kkikad 653 fnukad 1 ekpZ 1997 ds }kjk iwNs x;s Li"Vhdj.k ds vk/kkj ij ftyk f'k{kk LFkkiuk lfefr dh cSBd fnukad 8-6-97 esa fy, x, fu.kZ;kuqlkj vfHk;ksx izekf.kr gksus ds QyLo:i fnukad 7-7-95 ls lsok lekIr fd;k tkrk gSA lkFk gh lkFk budk yfEor vof/k dk Hkqxrku ugha fd;k tk;sxkA g0& v'kksd dqekj ftyk f'k{kk v/kh{kd] x;k Kkikad 2096 x;k fnukad 25 twu 1997 izfrfyfi {ks= f'k{kk inkf/kdkjh] lnj] f'kf{kdk] iz0m0] foi= fyfid rFkk dks"kksxkj inkf/kdkjh] x;k dks lwpukFkZ ,oa vko';d dk;kFkZ izsf"krA g0& vLi"V ftyk f'k{kk v/kh{kd] x;k
28. As a matter of fact, the petitioner has always been changing her case, inasmuch as, initially when Ragini Verma had filed the writ application alleging the discrimination, the petitioner at that stage had taken a plea that her appointment had been made on the basis of her qualification of being matric trained teacher and 20 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 20 / 34 not on the basis of Madhyama. In the counter affidavit filed by the District Superintendent of Education, Gaya in C.W.J.C No. 8712 of 1993 i.e. in the case of Ragini Verma it was however, clarified that the petitioner, who was respondent no. 7 in that case, was appointed on the basis of madhyama utpreshit candidate from 1981 panel which also becomes clear from the reading of following portion of paragraph no. 4 and 6 of the said counter affidavit (contained in Annexure-5 of this writ petition):-
"----- That the petitioner comes from 1982-84 training session while the others persons including with respondent no. 5 and 6 from 1981-83 training session and respondent no. 7 was appointed as Madhyama Utpreshit candidate from 1981 panel, that there is not instituted of the petitioner appointment as Assistant Teacher. No appointment has been made from amongst the candidates of 1982-84 training session and other subsequent training session.
That the Lalita Kumari and Abha Kumari respondent no. 5 and 6 of the writ petition all come from the training session 1981-83. Their training sessions were initially mentioned wrongly is the said panel under a resolution of the District Education Establishment committee in its meeting held on 23.05.1985 corrected their training session from 1982-84 to 1981-83. The Meena Kumari respondent no. 7 of the writ petition was appointed from 1981 panel as a Madhyama Utpreshit Mahila candidate not from the 1985 panel.----" That it is mentioned Lakita Kumari and Abha Kumari were wrongly placed in the training of 1982-84 in the said panel which was corrected under a resolution of District Education Establishment 21 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 21 / 34 Committee in its meeting held on 23.05.1988." (underlining for emphasis)
29. It has to be also borne in mind that this fact was further reiterated when the Director of Primary Education had passed the order on 02.11.1993 while disposing of the representation of Ragini Verma in compliance of the order dated 24.09.1993 passed in C.W.J.C No. 8712 of 1993, relevant portion whereof reads as follows:-
vius vH;kosnu fnukad 7-10-93 esa vkosfndk us nkok fd;k gS fd Jherh yfyrk dqekjh] ehuk dqekjh ,oa vkHkk dqekjh oekZ vkosfndk ls duh; gS vkSj fu;qfDr gks pqdh gS vkSj blfy;s vkosfndk dh fu;qfdr dh tkuh pkfg;sA ftyk f"k{kk v/kh{kd dks lquk vkSj vfHkys[kksa dk v/;;u fd;kA ftyk f"k{kk LFkkiuk lfefr }kjk vuqeksfnr 1985 ds iSuy esa vkosfndk dk uke 1982&84 l= ds e/;ek iqf"kf{kr lkekU; dksfV ¼efgyk½ iSuy ds 71 Øekad ij gSA ftyk f"k{kk v/kh{kd us cryk;k fd lkekU; dksfV e/;ek iqf"kf{kr ¼efgyk½ dksfv ds iSuy ls ek= 81&83 l= rd ds mEehnokjksa dh fu;qfDr dk iz"u ugh mBrkA vkosfndk us ftu rhu ekeyksa dk n`'Vkar fn;k gS mudh fLFkfr fuEu izdkj gS %& ¼1½ Jherh ehuk dqekjh budh fu;qfDr 1981 o'kZ ds iSuy ls e/;ek mRizsf'kr Js.kh esa dh x;h gS tks fd iwoZ dk VªkutsD"ku FkkA Jherh ehuk dqekjh dk uke xyrh ls 1985 ds iSuy es 82&84 l= esa vafdr gks x;k FkkA okLro esa mudk uke 1981 o'kZ ds iSuy ds e/;ek mRizsf'kr dksfV es FkkA ¼2½ Jherh yfyrk dqekjh budk uke 1985 o'kz ds iSuy esa Øekad 67 ij gSA vkosfndk dk ;g dguk gS fd vkosfndk ds vad yfyrk dqekjh ds uke ij p<+ x;s Fks vkSj yfyrk ds vad vkosfndk ds uke ij p<+ x;s Fks a tkpksia jkUr vkosfndk dk ;g dFku lgh ik;k x;kA ftyk f"k{kk LFkkiuk lfefr us cSBd fnukad 23&5&88 esa bl ekeysa dk fu'iknu fd;kA vkosfndk ds lgh vad p<+k nsus ij Hkh mldk uke 82&84 l= ds Øekad 71 ds LFkku ij 67 ij gksuk pkfg;sA LFkkiuk lfefr us ;g ik;k fd yfyrk dqekjh dk l= xyrh ls iSuy esa 82&84 p<+ x;k FkkA okLro es mldk l= 81&83 Fkk vkSj bl izdkj yfyrk dqekjh dk uke 81&83 l= esa ekurs gq;s LFkkiuk lfefr us mldh fu;qfDr djus dk fu.kZ; fy;k FkkA ¼3½ Jherh vkHkk dqekjh oekZ & budk uke 82&84 l= ds Øekad 75 ij gS ysfdu okn esa tkpksia jkUr ftyk f"k{kk LFkkiuk lfefr dh cSBd 23&5&88 esa tkpksia jkUr ;g ik;k fd vkHkk dqekjh dk l= xyrh ls 82&84 p<+ x;k FkkA okLro esa mudk l= 81&83 gS bl izdkj mudk l= 81&83 ekurs gq;s mudh fu;qfDr djus dk fu.kZ; fy;k x;kA bl i`'VHkwfe es ;g fufookZn izekf.kr gksrk gS fd okLro esa mijksDr rhuksa f"kf{kdk;sa vkosfndk ls duh; ugh Fkh vkSj ,slh ifjfLFkfr esa vkosfndk ds nkos dks vLohd`r fd;k tkrk gSA osru esa bl izdkj ds xyrh l= ,oa vU; lwpuk;sa vafdr djus ds fy;s dkSu&dkSu O;fDr ftEesnkj gS blds laca/k esa ftyk f"k{kk v/kh{kd tkap dj vkSj lacaf/kr O;fDr;ksa ls Li'Vhdj.k izkIr dj izfrosnu Hksts rkfd muds fo:) vko";d dkjZokbz dh tk ldsA g0@& ¼Qqy flag½ funs"kd] izkFkfed f"k{kk½ Kkikad 1785 iVuk] fnukad 6 uoEcj 93 22 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 22 / 34 izfrfyfi ekuuh; egkf/koDrk] mPp U;k;ky; iVuk@ ftyk f"k{kk
30. It therefore remains an undisputed fact that an advertisement was issued sometime in the year 1981 and interview was also held on 19.11.1981 and on that day neither the petitioner had been sent up (Utpreshit) for Madhyama Examination nor she had passed Madhyama Examination nor even she had even been admitted in the teachers training course and yet by claiming to be a sentup candidate she had got herself appointed. The reliance on annexure-1i.e.
marksheet of the 1980 examination issued sometime in the year 1982 cannot be a proof of the petitioner being qualified Madhyama in the year 1980 when she had appeared for interview. The fact that the petitioner had put her signature in the interview register amongst the candidates of Sanskrit teacher as Madhyama sent up candidates on 19.11.1981 as shown in Annexure-B to the counter affidavit is also established from averments made in paragraph no.4 and 5 of the counter affidavit in this reading as follows:-
"That with regard to the statement made in paragraph no. 1 of the writ application is concerned, the deponent most humbly states and submit that in compliance of the direction given by this Hon'ble Court passed in C.W.J.C No. 3640/95 dated 21.01.1997 as would be apparent from the perusal of Annexure-8 of the writ application, the Establishment Committee in it's meeting held on 08.06.1997 decided to terminate the 23 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 23 / 34 services of the petitioner and the respondent, District Superintendent of Education communicated the said decision under his signature in the capacity of secretary of the Committee to the petitioner and the petitioner has been given ample opportunity by way of calling shoe cause by the three letters vide dated 07.07.1995, dated 26.07.1995 and lastly on 01.03.1997 as would be apparent from the perusal of Annexure 9 of the writ application.
It is relevant to mention here that if the petitioner has not been interviewed in the year 1981 as a candidate of Sanskrit Madhyama Utpreshit and put her signature in the interview Register her name would not have been inclined in Utpreshit mahila candidate and as a result she would not have been appointed.
The deponent further submits that if the petitioner was not Utpreshit Madhyama why did she join the post specially when in the chart attached with appointment order her name was in Utpreshit Madhyama category.
That in continuation to above para the deponent most humbly states and submits that the petitioner annexed the type copy of letter of appointment and also chart wherein, she concealed the main point i.e., heading over the chart only view to mislead the Hon'ble Court which would be apparent from the perusal of Annexure-4 of the writ application. The petitioner accepted that the Director, Primary Education, in compliance of the direction given by this Hon'ble court passed in C.W.J.C No. 8712/93 in which the petitioner was a respondent as Respondent No. 7 decided the matter by order dated 02.11.1993 as would be apparent from the perusal of Annexure-8 of the writ application. The petitioner was appointed from the panel of 1981 as Sanskrit Madhyama Utpreshit and not appointed from the panel of 1985. The then District Superintendent of Education also stated in para 5 of the counter affidavit that the 24 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 24 / 34 petitioner was obtained from the panel of 1981 as Sanskrit Madhyama Utpreshit and not even a single candidate from the Session 1982-84 was appointed."
31. Even though the petitioner has filed reply, its paragraph no. 3 reads as follows:-
"3. That the statement made in paragraph no. 4, 5, 6, 8 & 12 of the counter affidavit are denied. It is stated and submitted that the petitioner has participated in the interview and she has also passed Teachers' Training Examination in the year 1985, as she was the candidate of session 1982-84 and earlier also the District Education Superintendent has made specific averment in the counter affidavit that she was appointed as UTPRESHIT candidate of panel 1981 and the said stand of the District Superintendent of Education has also been accepted by the Director, Primary Education and to that effect statements have already been made in the writ application by annexing necessary documents. She has been illegally terminated without following the Rule and procedure of the termination."
32. From the aforesaid statement, it therefore, becomes clear that the petitioner has not said a word that she had not appeared in the interview in the year 1981 or that she had not put her signature in the interview register among the category of the Madhyama Utpreshit Candidates. Her other pleas that she has passed training examination in the year 1985 or that she had become qualified after the interview would not be 25 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 25 / 34 relevant, inasmuch as, on the date of interview she having filed her application as an untrained candidate could have defended her employment if she has produced any proof of her Madhyama Utpreshit Kshatra (Madhyama sent up Candidate).
33. Considering this aspect of the matter this Court does not find any merit in the submission of the learned counsel for the petitioner that the Authorities had not considered the case of the petitioner, inasmuch as, when the petitioner was initially confronted with the allegation by separate show cause notice which was produced before this Court in Annexure-E vide counter affidavit in C.W.J.C. No. 3640 of 1995 and had submitted her reply, the same having been considered again by the District Superintendent of Education and District Education Establishment Committee had led to issuance of a fresh notice dated 01.03.1997. The petitioner therefore, having been given opportunity of one and a half year to produce her document relating to Madhyama Utpreshit candidate and given sufficient opportunity by giving two show cause notices, cannot make a grievance as with regard to the violation of the principles of natural justice.
34. A question therefore, would also arise as to whether a regular Departmental Proceeding 26 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 26 / 34 was to be conducted in the case like the present case, when the issue is one relating to fraud and illegality which was made the subject matter of the inquiry, the appointment letter itself contains Clause-6 in paragraph no. 5 reading as follows:-
tc rd izek.k i=ksa dk lR;kiu ugha gks tkrk gS osru Hkqxrku yfEcr jgsxkA izek.k i= tkyh lkfcr gksus ij vH;kfFkZ dh lsok Lor% lekIr gks tk;xh rFkk dk;kZof/k dk dksbZ nkok ekU; ugha gksxk ,oa muds fo:) vko';d dkjokbZ dh tk;sxhA
35. The appointment of the petitioner, therefore, having been obtained on a forged document relating to Madhyama Utpreshit student did not require holding of Departmental Proceeding, inasmuch as, all that was to be shown by the petitioner was existence of such a document. That having been not done the petitioner cannot now claim immunity by way of requiring Departmental Proceeding especially when her appointment had remained under clouds before this Court in C.W.J.C No. 3640 of 1995.
36. Admittedly the ground on which such termination of service of the petitioner has been made is only the forged nature of appointment.
Such fraudulent appointments in fact could confer no right in the petitioner as had been held by a Full Bench of this Court in the case of Rita Mishra Vs. The State of Bihar and Ors. reported in 27 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 27 / 34 1987 BBCJ 701 which has been also approved by the Apex Court in the case of R. Vishwanatha Pillai Vs State of Kerala & Ors reported in 2004(2) SCC 105 wherein it was held that:-
"15. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
28 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 28 / 34
16. In Ishwar Dayal Sah vs the State of Bihar, the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held: (Lab IC pp. 394-95, para
12) If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possible flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Art.
311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and door is barred against him, the cloak of protection under Art. 311 is not attracted."
17. The point was again examined by a Full Bench of the 29 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 29 / 34 Patna High Patna in the case of Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held:
13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow it."
18. We agree with the view taken by the Patna High Court in the aforesaid cases.
19. It was then contended by Shri Ranjit Kumar, learned senior counsel for the appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate
30 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 30 / 34 and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal.
Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud."
(Underlining for emphasis)
37. As with regard to the submission of Mr. Dinu Kumar learned counsel for the petitioner of lack of adequate reasons in the impugned order, this Court must indicate that the same would invariably depend on the contents of show cause notice and its reply filed by the petitioner. The 31 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 31 / 34 petitioner has however very conveniently suppressed not only show cause notice which was Annexure-E to the counter affidavit filed in C.W.J.C. No. 3640 of 1995 but also her explanation wherein, she actually did not deny the fact that the appointment letter had shown her to have been appointed as assistant teacher as a Madhyama Utpreshit Candidate. The appointment letter which has been produced by the petitioner before this court in Annexure-4 is only truncated and incomplete part of the original appointment letter which records the names of such candidates of year wise waiting list and therefore the truncated appointment letter cleverly produced by the petitioner would be itself sufficient to show that her appointment was made as Madhyama Utpreshit Candidate, inasmuch as, in the year 1981 when she appeared for inverview she had neither passed the Madhyama Examination, whose result was actually declared in the year 1982 nor even was a trained candidate, inasmuch as, her training session was of 1982-84 and its result was declared in 1985.
38. It is thus not a case of lack of qualification as on the day of passing the impugned order which has led to ultimate cancellation of appointment of the petitioner rather it is one of those cases where the 32 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 32 / 34 petitioner had misrepresented as with regard to her being qualified at the time of filing of application and appearing in interview. In fact it is a case, whether the persons similarly situated alike the petitioner had complained before this Court of being discriminated in the matter of appointment in filing of their application and appearing in interview and this court having gone into the whole aspect in the reasoned order dated 21.01.1997 and on being informed by the official respondents that the matter relating to fraudulent appointment of the petitioner was under inquiry had disposed of the matter by an order dated 21.01.1997 in C.W.J.C. No. 3640 of 1995 by recording as follows:-
"So far as respondent no. 6 is concerned in the previous order dated 02.01.1997 it was noticed that State has been taking different stands. Mr. Krishna Murari, G.P. 5 was directed to take full instructions. He states that in the previous counter affidavit the appointment of respondent no. 6, Mina Kumari was described as valid in view of the fact her name figures in the select list. Later it transpired, during the course of scrutiny of the certificates, that she had secured appointment by playing fraud. In that view of the matter notice has been issued to her to show cause why the appointment be not cancelled vide annexure E to the counter affidavit.
Inasmuch as the controversy regarding validity of appointment of respondent no. 6 is pending consideration by the authorities below, I do not think it would be 33 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 33 / 34 proper on my part to go into the merit of the grievance of the petitioner.
The writ petition is dosposed of with direction to the District Selection Committee, Gaya, to look into the matter and take appropriate decision in accordance with law within a period of two months of receipt of a copy of this order."
39. It therefore, also becomes clear that the impugned order has been passed by way of carrying out the direction of this Court after giving opportunity to the petitioner and also after consideration her show cause reply.
40. Normally, this court could have allowed the petitioner to continue in service even by taking into account that the petitioner had subsequently become qualified after acquiring the degree of teachers training but the conduct of the petitioner of producing the forged certificate and/or admit card of Madhyama Examination for creating an impression of being a Madhyama sent up (Utpreshit) candidate for getting her appointment would disentitle her from claiming such discretionary relief of Article 226 of the Constitution of India, specially when she has already remained out of service for more than last 14 years. This Court would therefore find no flaw in the impugned order of termination of service of the petitioner.
34 Patna High Court CWJC No.7706 of 1997 dt.08-09-2011 34 / 34
41. Thus having given anxious consideration to the submissions made by the parties as also perusing the materials on record, this Court would find that there is no merit in this application. It is accordingly, dismissed. There would be however, no order as to costs.
Patna High court, (Mihir Kumar Jha, J) Dated the 8th of September 2011, A.F.R./Ranjan