YOGENDRA RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) WITH minor inconsequential differences, the basic facts in all these writ petitions are similar and hence they are taken up together for final disposal at the stage of admission itself as pleadings are complete. The petitioners were appointed to the Post of Matric Trained Teachers in Government Basic School in the year, 1982 -83. At the Bar, it is stated that there were about 24, such appointments. These appointments came to be cancelled on or about 7th October, 1985 by the Regional Deputy Director of Education, Saran Division, Chapra. The ground given for cancellation of the appointment was that they were appointed without following any procedure. In fairness to Learned Counsel for the State, he points out that one of the grounds, as contained in not following the procedure, was lack of eligibility. State Counsel means thereby that they were appointed on a Matric Trained Post without having Matric Training and because of that and other irregularities, the termination took place. Against the termination order, petitioners moved this Court. this Court dismissed the writ application. Then the matter was taken to the Apex Court. The Apex Court disposed of the matter by order dated 30.9.1986 (Annexure -3) holding that the petitioners be put back on the post of Teachers as was occupied by them in Government Basic School until proper selection in accordance with Rules is made afresh. In course of making fresh appointments, the petitioners would be entitled to apply and if permissible, age relaxation would be given but till selections and fresh appointments were made, they would be taken back. Accordingly, petitioners and their like were taken back in service. It then appears a dispute again arose as to what would - be their status and they once again filed applications in the earlier case before the Supreme Court which had been disposed of as noted earlier and this time, the Apex Court held that as by order dated 30.9.1986, the Apex Court had directed their reinstatement till fresh appointments, their reinstatement would put them back as if they were continuing and would get the benefit of past experience and service. Accordingly, petitioners were reinstated and granted continuity. Thereafter, once the petitioners were reinstated with continuity, show cause notices were issued to them in the year 1988 as to why they be not dismissed for not possessing requisite qualification of teaching experience. Petitioners replied and the matter rested for some time. Then in May 1999, it seems, pursuant to the decision taken at the Regional level, petitioners and some persons, situated similarly who were untrained, were sent for training which was meant for in -service people. This is evidenced by Annexure -10. This clearly evidences that the respondents were clearly of the opinion that the petitioners were initially untrained Teachers. This was then followed by order, as contained in Annexure -12, wherein it was clearly stated by the respondents that as petitioners had been drawing for some time Matric Trained Scale though in fact they were not Matric Trained, the excess money paid to them was to be recovered in sixty instalments. This was so done. Petitioners and some of their like did receive training. Learned Counsel for the State pointed out to the resolution of the Regional Committee dated 6.9.1999 pursuant to which these decisions to recover money and send people to training was taken. This was based on the principle that those persons, who were trained, should be retained and those who were untrained should be sent for training. Now the petitioners and their like are visited with the show cause and consequential order of termination, as contained in Annexures -14 and 15 respectively. The whole basis of the show cause is that petitioners had sought appointment on the post of Matric Trained Teacher. Petitioners were not Matric Trained at that time. From this, an inference was drawn that the appointment must have been obtained on basis of a forged Matric Trained Certificate. At the very outset, I may point out that it is an inference as in none of the counter affidavits even a single forged certificate, as a matter of fact, has been produced. Even otherwise from the tenure of the show cause notice and the final order, it is only an inference that is being drawn. The petitioners have challenged the validity of this action on a very simple ground. Their submission is that the initial action to terminate in 1985 was taken and one of the things therein was lack of eligibility and irregularity in seeking employment. That order was ultimately dealt with by the Apex Court with regard to the presons who had gone there and the benefit thereof was given to all petitioners by the State in regard to reinstatement. Now, it was not open to the State to once again reopen that matter. That would amount to taking a complete U -turn or going back to the very initial stage which had become history.

(2.) IN my view, the contention, as raised on behalf of petitioners, must succeed. The initial termination as being noted above and as submitted by the Learned Counsel for the State was on ground of not being eligible and yet illegally being taken into service. Now again, the ground is that not being eligible, they were taken into service which meant that they must have used forged certificates though no such forgery has been brought on record in any of the counter affidavits. Forgery is merely an inference that is being drawn. I am afraid forgery is a matter of fact and not an inferential fact. That being so, the result is that reinitiating a proceeding which had culminated in orders of the Supreme Court and reinstatement of petitioners cannot be permitted or countenanced. Such an action would be wholly without jurisdiction. In that view of the matter, I am not impressed, with the argument that petitioners have alternative remedy to file an appeal when the exercise itself is arbitrary and without jurisdiction.

(3.) IT goes without saying that as the order of termination has been set aside, the petitioners would be entitled to continuity of service. This is, however, subject to the clarification as given by the Apex Court itself that their services would continue till the fresh appointments are made. Petitioners are at liberty to move the appropriate authority for sending them to in -service training as per seniority.