STATE OF BIHAR Vs. SITA RAM KUMHAR @ KUMAR

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the orders dated 28th July, 1997 and 10th November, 2003, passed in C.W.J.C. No. 2776 of 1994 and Civil Review No. 1 of 2000 respectively. Earlier the present appeal was dismissed on account of rejection of the application for condoning the delay of 6 years, 7 months and 10 days vide order dated 20th December, 2004. This order, however, has been set aside by the Apex Court in Civil Appeal No. 3912 of 2006 vide its order dated August 25, 2006 and the matter has been remitted back to this Court with the observation that the matter should be heard on its own merit after condoning the delay. Hon ble Apex Court has also imposed cost of Rs. 5,000.00 to be paid to the respondent. Learned Counsel appearing for the respondent -writ petitioner has admitted that his client has received the cost of Rs. 5,000.00 . Under these circumstances we have condoned the delay by a separate order.

(2.) WE have heard learned Counsel appearing for the parties on the merits of the controversy, as the matter is required to be disposed of by the end of February, 2007 as directed by the Apex Court. Briefly stated the facts, giving rise to the present appeal, are that the respondent -writ petitioner applied for the post of Assistant Teacher, Geography, pursuant to the advertisement, issued by the Managing Committee of Shivlal High School, Musabani. The Selection Committee in its meeting dated 13th March, 1973 found the writ petitioner fit for appointment but recommended that the teacher should be appointed in future, if required. The writ petitioner was also interviewed on 15th March, 1973. He was appointed vide order dated 5th March, 1974, subject to approval by the Government of Bihar under the prevailing norms. The writ petitioner -respondent submitted his joining on 21st May, 1974 pursuant to his appointment. However, his joining report was forwarded to the Secretary of the Managing Committee by the Principal of the School in view of the impending summer vacation. On opening of the school, the writ petitioner joined on 24th June, 1974 and, thereafter, continued to perform his duties. The writ petitioner -respondent approached this Court seeking his regularization by filing C.W.J.C. No. 2105 of 1991(R). This petition came to be disposed of vide order dated 7th November, 1991 with a direction to the Director, Secondary Education -cum -Special Secretary, Bihar, Patna, to examine the grievance of the writ petitioner and to dispose of the same with a reasoned order. The writ petitioner was also permitted to file a representation annexing all the relevant documents before the Director, Secondary Education -cum - Special Secretary, Bihar, Patna. The representation was directed to be disposed of within a period of three months. Consequent upon the aforesaid directions, the Director, Secondary Education, Bihar, Patna, disposed of the representation, rejecting the claim of the writ petitioner for regularization of his services. Aggrieved of the action, the writ petitioner -respondent filed yet another writ petition being C.W.J.C. No. 2776 of 1994(R). This writ petition came to be disposed of vide order dated 28th July, 1997. It is relevant to notice that a large number of private schools, including the school where the writ petitioner was appointed, were taken over by the State Government. The Government had also issued Govt. Circular No. 1940 dated 18th June, 1977, whereunder, services of the teachers appointed in such private schools between 28th September, 1973 to 21st May, 1974 were required to be regularized. The writ petitioner had based his claim of regularization on this circular. His claim for regularization was rejected vide order dated 30th June, 1992 on the ground that he joined the services on 24th June, 1974 i.e. beyond the cut off date and, thus, is not entitled to seek regularization under the aforesaid circular in view of the cut off date being 21st May, 1974. Same ground was urged by the appellant -State before the writ court in C.W.J.C. No. 2776 of 1994(R). The writ court, however, rejected the contention of the State and relied upon the certificate dated 30th May, 1994 issued by the Headmaster of the school, stating therein, that the petitioner was appointed on 5th March, 1974 but due to illness he joined on 24th June, 1974. The Court also observed that the petitioner submitted his joining on 21st May, 1974 i. e. within the time prescribed in the circular and hence is entitled to regularization. Resultantly the order of the Director, Secondary Education, dated 30th June, 1992 as also the order dated 16th June, 1993, declining the regularization, were set aside and the writ was allowed with a further direction to the State -respondent to pay the salary of the petitioner for the period during which he had worked. The respondents were also directed to reconsider the case of the petitioner and regularize his services on the post of Assistant Teacher.

(3.) MR . Modi learned Counsel appearing for the appellant -State has vehemently urged that the petitioner 'sjoining the services on 24th June, 1974 is the only relevant date for the purposes of his consideration for regularization and said date being beyond the cut off date, as prescribed under the Govt. circular No. 1940 dated 18th June, 1977, he is not entitled for regularization. He has further stated that after passing of the order dated 28th July, 1997 in C.W.J.C. No. 2776 of 1994(R), an enquiry was conducted and a report was submitted wherefrom it is revealed that there were two appointment orders both dated 5th March, 1974, issued by the Principal of the School. In one of the orders the petitioner 'sappointment was made subject to approval of the authorities whereas in the 2nd appointment order it was mentioned that the petitioner 's appointment shall be effective from the date of joining. He has stated that the petitioner has procured the judgment on the basis of forged document and an F.I.R. has also been registered against him. It is, accordingly, urged that the petitioner having perpetrated fraud on the court, the order under appeal is liable to be set aside.