AJAY KUMAR Vs. STATE

JUDGEMENT

(1.) THIS application has been filed for issuance of a writ in the nature of certiorari for quashing the order as contained in memo dated 1.3.2004 (Annexure -1) whereby the Regional Deputy Director of Health Services had directed the Civil Surgeon -cum -Chief Medical Officer, Muzaffarpur to hold enquiry in regard to the genuineness of the appointment of the petitioner. Further prayer made by the petitioner is to issue a writ in the nature of mandamus commanding the respondents to pay to the petitioner the salary of the post which he is holding.

(2.) IN view of the order, which I propose to pass in this application it is inexpedient to give in detail the facts of the case. Suffice it to say that the petitioner claims to have been appointed validly as Clerk and according to him the report of the District Leprosy Eradication Officer, Muzaffarpur addressed to the Regional Deputy Director of Health Service dated 28.2.2004 (Annexure -7) clearly establishes that fact. By the impugned order the Regional Deputy Director of Health Services had directed the Civil Surgeon to make enquiry in regard to the genuineness of the letter of appointment of the petitioner. Till such time the enquiry is held salary of the petitioner has been stopped.

(3.) I do not find any force in the submission of Mr. Madhup and the authority relied on in no way supports his submission. The provision of the service rule or for that matter Article 311 of the Constitution of India shall be attracted when the appointment of the public servant is in accordance with lav;. The service of the petitioner is not sought to be terminated on the ground of any misconduct which he had committed during the course of service but the authority desires to enquire into the genuineness of his letter of appointment. In my opinion, such an enquiry shall not be a detailed enquiry as provided under the Bihar and Orissa Subordinate Service (Discipline and Appeal) Rules, hereinafter referred to as the Rules, by which the petitioner is governed. In my opinion in a case in which the genuineness or otherwise of the letter of appointment is an issue no detailed enquiry as provided under the Rules is required to be held but an enquiry in conformity with the principle of natural justice is required to be conducted so as to meet the requirement of Article 14 of the Constitution of India. Article 311 of the Constitution or for that matter protection granted under the Service Rules shall be available to such employees who are validly appointed and not occupying the office under the strength of a forged letter of appointment. The Supreme Court in the case of Parshotam Lal Dhingra (supra) was considering the right of public servants validly appointed and procedure required to be followed in case of different kinds of employees i.e. permanent, temporary etc. when such employees are dismissed or removed from service. An employee entering into service on the strength of a forged letter of appointment, has no right to hold the post as his very appointment is void ab initio. However, before declaring his appointment as void ab -initio, an enquiry limited to genuineness of the letter of appointment is required to be held to meet the principle of natural justice. Obviously in such a limited enquiry such public servant is required to be given opportunity to place its view point.