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1. Whether a public servant is entitled to a writ of mandamus for the payment of salary to him for work done despite the fact that his letter of appointment was forged, fraudulent or an illegal one -- is the significant question in this set of 13 connected writ petitions referred for an authoritative decision to the Full Bench. Equally at issue is some cleavage of judicial opinion on this point within this Court.

2. The broad matrix of relevant facts may be noticed from C.W.J.C. No. 6061 of 1985, (Ram Mohan Mandal v. State of Bihar) with a brief reference to those in C.W.J.C. No. 4813 of 1985, (Rita Mishra v. Director, Primary Education) which now remain for adjudication as the other cases were withdrawn at the close of arguments. It emerges from the pleadings that the erstwhile district of Santhal Praganas was carved into four districts including that of Sahebganj. At the material time in 1981-83 the District Superintendent of Education, Sahebganj was one Shri Bhola Ram to whom detailed reference follows hereinafter. In exercise of the powers under Section 8 of the Bihar Government Elementary Schools (Take Over and Control) Act, 1976 the Government issued notification dated the 15th Dec., 1981 (Annexure A to counter-affidavit) laying down in detail the procedure for selection and appointment of the teachers of an elementary school. Thereby, the power of appointment of elementary school teachers was clearly vested in the District Establishment Committee. The procedure prescribed was that the said committee after going through the prescribed procedure of advertisement, selection, etc., would prepare a list of selected candidates and submit the same to the Regional Deputy Director, who was required to carefully scrutinise the same and forward it to the Divisional Commissioner for his approval. The list of such approved candidates was then required to be sent to the District Superintendent of Education who was to issue the appointment letters strictly according to the serial number of names mentioned in the approved list. In view of the International Handicap Year 1981, by another order 50 per cent of the existing vacancies were earmarked to be filled up by handicapped persons and with certain marginal modifications the prescribed procedure was equally applicable to them. It would appear that there were a very large number of vacancies running into a thousand or more against which the appointments were made. However, later, it came to the notice of the authorities that certain forged and bogus letters of appointment had been engineered on the basis of which some per sons were claiming to have been appointed and were making a demand for the payment of their salaries. A searching enquiry was consequently got conducted which revealed that Shri Bhola Ram, the District Superintendent of Education, Sahebganj, who was the kingpin of a conspiracy, had, in consideration of illegal gratification received, engineered the issuance of innumerable forged, bogus and fraudulent letters of appointment and unauthorised persons were allowed to join the teacher's posts by dubious means. Consequently, the said Bhola Ram was suspended and a criminal case against him for serious offences was registered. Later investigations disclosed the collusion and connivance of other local officers apart from the appointees to the posts and a charge-sheet was submitted also against Shri Gopi Krishna Jha Deputy Inspector of Schools, Sahebganj. Shri Chandra Mohan Singh, Block Education Extension Officer, Pakur. Shri Anandi Lal Foddar, clerk in the office of the District Superintendent of Education, Sahebganj, Shri Nishi Kant Jha, Headmaster, and a number of others for being party and privy to a deep-rooted and wide-ranging criminal conspiracy in the whole transact ion. The said criminal case is apparently yet under trial.

53. In C.W.J.C. No. 4813 of 1985 (Rita Mishra v. Director, Primary Education, Bihar), the facts and circumstances are identical. Herein also the appointments were again purported to be made by the then District Superintendent of Education, Sahibganj. This writ petition has been jointly preferred by as many as 15 petitioners who, to my mind, have distinct and separate causes of action, if any. Not a single letter of appointment was attached to the writ petition and it had been averred that they would refer to the respective appointment letters at the time of hearing of the application. As noticed earlier, despite pinpointing, no letter of appointment was ever adduced on the record However, a claim is laid on behalf of the petitioners for having joined in different schools on different dates extending over one year and eight months beginning from 20th Feb., 1982, to the 1st Oct., 1983. Whilst petitioners 9 to 12 are alleged to have not been paid their salaries from the very inception of their appointment, other petitioners claim to have received salaries up to individual different dates whereafter they are stated to have been stopped Thereafter, they represented several times to the District Superintendent of Education, Sahibganj, but their salaries are allegedly not being paid without assigning any reason. On the basis of the earlier motion orders of the Court, the petitioners herein also seek a mandamus for the payment of their salaries.

99. In an attempt to clutch the last straw the learned counsel for the petitioners took the stand that the impugned action of the State in terminating the services of the petitioners was discriminatory and violative of Article 14 of the Constitution. It has been stated by him that a number of teachers were appointed for the district of Dumka as well as for the district of Sahebganj from the same panel prepared for the erstwhile district of Santhal Parganas but the two sets of teachers have not been treated alike. It has been said that the services of the teachers appointed for the district of Sahebganj were terminated without any notice to show cause whereas those appointed for the district of Dumka were given notice to show cause and they are still continuing in service. The petitioners have, however, themselves explained the cause of this discrimination in para 20 of their petition. It is evident therefrom that the teachers of Dumka district had filed various writ petitions as detailed therein against the termination of their services without giving them an opportunity of showing cause and it was on the basis of the direction of this Court in those writ petitions that the teachers of Dumka were given notice to show cause and were allowed to continue in the meantime. This averment is hardly sufficient to make out a case of discrimination which can be said to be violative of Article 14. Evidently, the State wanted to treat both the sets of teachers equally by terminating the services of all of them without any notice to show cause but the State had to issue notice of show cause to the teachers of Dumka District, not voluntarily, but on the direction of this court in various writ petitions. Had the State made this difference voluntarily, it might have been accused of discrimination but if it had to treat the teachers of Dumka differently under the orders of the Court, I wonder, how it can be held guilty of discrimination in such circumstances. Obviously, the question of discrimination cannot arise on the basis of involuntary action of the State. The action of the State cannot be challenged as discriminatory if it is forced to take that action under the orders of the Court. There was no legal or moral duty cast on the State to give notice of show cause to the teachers of Sahebganj when the law did not cast such duty on it nor there was any direction of the court to do so. Simply because it had to issue notice of show cause to the teachers of Dumka under the orders of the Court which it was obliged to comply with, the petitioners cannot complain of discrimination on that account. Thus, no case of discrimination is established even on the basis of the averments made in the writ petition. Indeed, it has been asserted on behalf of the State in its counter-affidavit that the Government has not allowed anyone appointed by either Bhola Ram at Sahebganj or by Hari Narain Thakur and Narain Jha at Dumka to continue as teachers. It has also been asserted that the Director of Primary Education has not decided any case declaring the appointment made for the district of Dumka from the said panel as valid. All the assertions made on behalf of the petitioners in this behalf have been emphatically denied on behalf of the State. In these circumstances the stand of the learned counsel on the plea of discrimination has to be rejected outright.