TaxTMI 
TaxTMI 
1987 (7) TMI 596
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....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4813 of 1985, (Rita Mishra v. Director, Primary Education) which now remain for adjudication as the other cases were withdrawn at the close of arguments.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 proced....
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.... school teachers. Without even disclosing the date and authority of their letters of appointment, far from placing the same on the record, it is their claim that they joined different schools in pursuance of the purported appointment letter and thereafter started teaching work and receiving salary therefor. It is claimed that the service books of the petitioners were opened under the signature of the Block Education Extension Officer and salary was distributed to them through the State Bank of India by crediting the amount in the account books of the teachers concerned. It is averred that sometime in the month of August-September, 1983 a police case was registered against respondent 4, the District Superintendent of Education of Sahebganj, who secured anticipatory bail from the High Court and several other teachers were also involved who similarly were granted regular or anticipatory bail by the Court of Session or the High Court. Consequent upon the discovery of the conspiracy and the registration of criminal cases the salary of the petitioners was allegedly stopped in October, 1983. The petitioners and others similarly situated represented and even raised an agitation, but it wou....
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....es to show that the petitioners have no claim. In fact, a frontal challenge thrown to the petitioners in para No. 21 of the counter-affidavit, with a prayer that this Court may direct the petitioners to file their appointment letters and other connected papers on affidavit in support of their claim. 5. It would seem that because of the vastness of the problem and the wide-ranging fraud committed in preparing the purported appointment letters as also the pendency of the criminal prosecution against Bhola Ram and the co-conspirators, the respondent State took the policy decision to resort to the easier course of dispensing with the fraudulent and illegal appointments (barring those of the principal offenders in the criminal conspiracy) of such temporary teachers by issuing letters of termination simpliciter, which were wholly unstigmatic and complying with the terms of one month's notice prescribed for such temporary appointments. Apparently, the tortuous and prolonged process of launching criminal prosecution against every appointee for criminal forgery and fraud or the alternative of instituting departmental inquiries and thereafter dismissing them, was found to be somewhat ....
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...., they are nevertheless entitled to a mandamus for the payment of salary for actual work done in the writ jurisdiction itself. It is alleged that the salary of the writ petitioners was withheld over varying periods and they having worked for the period are right or wrong entitled to be not only remunerated but equally to claim a writ of mandamus from this Court. For such relief, the basic reliance has been placed on C.W.J.C. 5451 of 1984, (Md. Hussain v. State of Bihar) decided on the 12th Feb., 1986 wherein at the admission stage it has been observed as a dictum as follows : -- "The petitioners claim that they were appointed as teachers. Their grievance is that they have not been paid their salaries since October, 83 which they are entitled. Mr. Damodar Tiwary, learned Junior Counsel to Mr. J. N. Pandey, G.P. II, states that a large number of persons unauthorised were appointed by the District Superintendent of Education in the District of Santhal Pargana and Sahebganj and that they have not worked. It goes without saying that, if the petitioners have worked either under legal or illegal appointment they must be paid." It would seem that the aforesaid....
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....ories, namely, those where the appointee is directly a party or privy to the forgery and where, in fact, he is not so. Adverting to the first sub-category it is plain enough that a forged document is a non est and a nullity. As would be elaborated hereinafter, forgery apart from rendering the document of no value is also a punishable crime. To my mind, a relief in the extraordinary writ jurisdiction cannot be possibly rested on the foundational base of a crime. Without being dogmatic, it appears to me that this proposition is so elementary that I must confess on being somewhat surprised at the logical temerity of the petitioners to claim that even if a letter of appointment stems from a serious punishable crime, still their right of salary cannot be denied because they may have actually worked on the post on the basis of such crime. Not only that, the claim is that a mandamus in the writ jurisdiction must issue to enforce this purported right of salary therefore peremptorily. It would perhaps be apt to keep in focus two basic legal propositions for which neither authority seems to be needed nor any great elaboration is called for. The right to salary stricto sensu springs from a le....
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....rvice between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest....." 13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public 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 from it. 14. In this context it is, perhaps, equally well to recall that forgery is a serious public crime in the Indian law from the very beginning, and, in particular, since the enforcement of the Indian Penal Code, 1860, for now more than a century and a quarter. Chapter XVIII of the said Code deals with ....
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....ged but the appointee is not a party or privy to the same, the position would only be step down the same ladder. What has been said above would mutatis mutandis apply to this situation as well. As observed earlier, the very forged letter of appointment itself is non est and a nullity, and, therefore, no consequential right to statutory salary stricto sensu can flow from it. This is so on the basic principle that public service is a matter of status and governed by statute and no rights of this nature can stem from a crime. Therefore, as a matter of pristine law the substantive right to salary which is statutory in nature has, strictly speaking, to be negatived in this sub-category as well. Hence, no question of a writ of mandamus in such a situation can possibly arise. However, such an appointee might well perhaps be at a slightly better footing in a claim for compensation for services rendered not gratuitously in a situation under Section 70 of the Contract Act or any other analogous law. It is neither necessary nor desirable for us to pronounce on this aspect and I would advisedly refrain from doing so. Herein the sharp distinction between salary stricto sensu and compensation fo....
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.... of the object of the agreement is fraudulent, the agreement is rendered void Now if that be so, could it possibly be said that in the higher realm of status, obligations and the liability of the State for public services rendered, fraud, which is now universally condemned in the eye of law, could nevertheless become the source of a legal right to salary stricto sensu against the State ? The answer seems to me as somewhat plain and frontally against the petitioners. In Lazarus Estates Ltd v. Beasley (1956) 1 All ER 341 at page 345, Lord Denning observed as under : "..... I cannot accede to this argument for a moment No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever....." The aforesaid observations were expressly quoted with approval by their Lordships of the Supreme Court in S. Pratap Singh v. State of Punjab AIR 1964 SC 72. 1....
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....nd circumscribes its powers by specifying limitations, the doctrine of implied engagement dehors the provisions and powers under the Act and would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute. If a Vice-Chancellor by administrative drift allows such employment it cannot be validated on any theory of factum valet. We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law. In short, the respondent has no presentable case against the direction to quit. ... ... ... We, therefore, declare that Annexure 'A' is void but further hold that the respondent has no right- to continue in service and the direction to him that he should leave his post as Professor and head of the Post Graduate History Department is good The High Court's order of....
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....pect, the answer to question No. 3 is rendered in the negative and it is held that the State is not bound by the doctrine of promissory estoppel for the acts of its subordinates done in violation of its directions or administrative instructions." 23. Before parting with this aspect, one must notice the somewhat fair stand of the learned Advocate-General that the legal position might well be different when there is only a minor irregularity in the letter of appointment and the same is not void ab initio. An example which he gave was where the initial entry into the service is valid but further continuation may not be in absolute conformity with the law. In such a situation perhaps the person having bona fide and diligently worked on a post may be entitled to be compensated For example, if a public servant is appointed on an ad hoc basis for a limited time but allowed to continue far beyond that, he may become entitled to some emolument However, in the present case we are not called upon to adjudicate on this aspect and I would decline to express any opinion thereon. 24. To sum upon this aspect, I am inclined to the view that where the very letter of appointment is flagrantly v....
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....id : -- "The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must be first established in some other form of action; mandamus will not lie to establish as well as enforce a claim of uncertain merit. It follows, therefore, that mandamus will not be granted where the right is doubtful" Equally instructive it is to notice the scope and nature of a writ of mandamus authoritatively described as follows in Halsbury's Laws of England : -- "The order of mandamus is an order of a most extensive remedial nature, and is, in for, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty." The statement of the law on the scope of mandamus in Corpus Juris Secundum is- "..... as a writ commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. It is a proceeding to compel someone to perform som....
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....a Manager by the Custodian by virtue of his power under Section 10(2)(b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 226 of the Constitution." It would be manifest from the aforesaid authoritative enunciation that herein the two basic conditions precedent for the issuance of a writ of mandamus are, thus, nonexistent. 28. There isyet another impassable hurdle in the way of the petitioners in this context As stands already noticed, every conceivable material fact averred on their behalf has been categorically contradicted and challenged in the pleadings and even more forcefully assailed at the Bar. It needs no great erudition to see that the writ jurisdiction is clearly confined to facts alleged and admitted on affidavits or those not seriously traversed on the record. As is well known, it is an extraordinary remedy resorted to when the basic factual position is not in dispute. It is to be borne in mind that the writ juri....
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....l. It is more than well settled that far from criminality even a calculated and designed suppression of material facts from the writ Court would by itself non-suit the petitioners at the very threshold without any examination of merits Reference in this connection may be made to the long line of English precedent and the observations of Viscount Reading, C. J., in King v. General Commissioner (1917) 1 KB 486. The same view has been unreservedly adhered to within this country as well and reference may well be made to the Full Bench judgment in Charanji Lal v. Financial Commr., Haryana, Chandigarh 30. Now once it is so that even a calculated and designed suppression of material facts in the writ jurisdiction would non-suit the petitioners then it seems the more so that where the stand of the respondent State is that the claim is based on a punishable crime like forgery or fraud the lis cannot be gone into in the writ jurisdiction. 31. To conclude on the procedural aspect, it appears to me that where the basic and material facts are categorically controverted and traversed, the exercise of the writ jurisdiction would be inapt and doubly so no mandamus can possibly issue on such ....
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....ay was given." It would thus appear that invoking the concept of begar in the field of public service and remuneration therefore is something wholly bizzare. Such a contention forgets the long drawn out historical retrospect of the evil institution of begar in our country which Article 23 sought to prohibit. It needs no great erudition to recall that begar was a relic of a dictatorial practice of feudal times earlier in the country where hordes of weaker subjects were compelled to bondage and forced labour and, therefore, Article 23 sought to prohibit and abolish the same and even envisaged that it should be made an offence punishable in accordance with law. Therefore the analogy of begar in its historical perspective as against a claim to remuneration and salary for the voluntary rendering of public service is so remote as to be bordering on the irrelevant 34. What would then call for notice is the fact that Article 23 envisages some kind of force or involuntariness in the commandeered labour. The learned Advocate-General had attempted to argue that the phrase "other similar forms of forced labour" must be read as ejusdem generis to the previous two concepts of traffic in hu....
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....1) of the Constitution it appears to me that upon the facts of this case it cannot be said that the petitioners are doing begar or forced labour. As I have pointed out already the very idea that the petitioners had voluntarily agreed to do this extra work by entering into a contract to that effect repeals the idea of their work being forced labour." 36. Learned counsel's reliance on Suraj Narain v. State of M.P. (supra) is hardly well placed Therein it was the admitted position that the petitioner was lawfully, appointed to the job and was lawfully working on his post. The Madhya Bharat Civil Service (Classification, Control and Appeal) Rules, 1956, which were applicable to the situation did not even remotely prescribe for the withholding of salary by way of punishment It was consequently held that an order of the stoppage of the petitioner's salary was unwarranted and was ultra vires the said Rules. This reasoning is impeccable and there can possibly be no quarrel with such a proposition and the judgment is thus distinguishable. However, the learned single Judge proceeded to observe that the reason why the withholding of pay is not one of the punishments retained in the....
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....e of persons convicted to life imprisonment or other imprisonment terms and the issue was whether during such imprisonment they could be compelled to work in jail either without remuneration or a measly wage of Rs. 1.60 per day. The Bench held that on the principle of the Minimum Wages Act a reasonable wage should be paid to such prisoner and fixed Rs. 8 per day subject to alteration. I think no elaboration is necessary to show that a school teacher's claim for salary or remuneration is not the equivalent or the analogy of a convicted person's claim to remuneration for compelled work whilst confined in a jail. 39. Clutching at straws, learned counsel for the petitioners attempted to invoke the principle of equal pay for equal work whilst relying on Surinder Singh v. The Engineer in Chief, C.P.W.D. AIR 1986 SC 584. In the said judgment their Lordships reiterated the doctrine of equal pay for equal work and directed that persons employed on a daily wage basis by the Central Public Works Department should be paid same wages as other employees doing identical work. With respect, I am unable to discern even the remotest analogy of this case and the doctrine of equal pay for e....
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....tain departments, agencies or corporations were industries within the meaning of the Industrial Disputes Act, 1947, and their employees were entitled to the protection of Section 25F thereof, and, secondly, whether such employees, whose services had been terminated, were entitled to an opportunity of being heard The intricate issue of a right to salary in the peculiar circumstances was not even remotely before the Full Bench and was neither debated, argued nor adjudicated upon. A reading of the exhaustive judgment-would indicate that the whole attention was focused on the aforesaid two matters. Indeed, N. P. Singh, J., who prepared the more exhaustive judgment, did not even remotely advert to or opine on any question of salary. A perusal of both the judgments would make it manifest that the whole focus of attention was whether the Departments of Forest, Health, Irrigation, Agriculture and the Bihar Hill Area Lift Irrigation Corporation came within the sweep of 'industry' and whether some of the terminated employees were entitled to an opportunity of being heard. Neither any reasoning, principle or precedent was referred to by Sarwar Ali, J. in making the observation wholly ....
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....was the core of the section and had been designedly employed by the statute. Consequently, where the letter of appointment is forged, fraudulent or illegal, there may well be no question of having worked lawfully. The argument, therefore, was that even in a suit the petitioners may risk failure to secure even compensation and cannot possibly either claim or hope for success in seeking mandamus in the writ jurisdiction for salary. Even with regard to burden of proof it was pointed out that the moment defence plea of the nature as in this case is pressed not from a private but from a public or Governmental source, onus would forthwith shift and it is for the petitioners to first establish the validity of their appointment and having lawfully worked thereunder. This can possibly be done only in a properly constituted suit and on the basis of credible and acceptable evidence and not in narrow confines of the writ jurisdiction and in particular even in more narrow ones for the issuance of a writ of mandamus. 44. It remains now to advert to the judgments of this Court, all passed at the motion stage itself directing the payment of salary in some cases somewhat similar to those of the ....
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....re the letter of appointment is forged but the appointee is neither a party nor a privy to the same, even then, no substantive right to statutory salary can arise from a document which is non est or a nullity. It is neither necessary nor desirable to pronounce on the aspect, whether a civil suit for compensation under Section 70, Contract Act for services rendered not gratuitously or any other analogous law would be successfully maintainable. (3) Where the letter of appointment has been obtained by the appointee fraudulently or for dubious considerations, no substantive right to salary stricto sensu would arise. (4) Where the letter of appointment is flagrantly violative of the prescribed statutory procedure for selection and appointment to the post, the same would be illegal and there being no valid appointment in the eye of law, no substantive right to salary would arise, (5) On the procedural aspect, where the basic and material facts are categorically controvered and traversed the exercise of writ jurisdiction would be inapt and this would be doubly so in the case of a writ of mandamus, which cannot possibly issue on such a slippery base. (6)....
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....these averments not one of the petitioners had cared to produce the sheet anchor of their claim, namely, the original letter of appointment along with the writ petition. Only by way of supplementary affidavit in reply to the counter-affidavit, annexure 4/1 purporting to be an indecipherable photostat copy of the alleged letter of appointment was sought to be placed on the record. Despite repeated pinpointing even by the Court, the original was never produced during the long pendency of the writ petition and its hearing. It is somewhat surprising how a photostat copy had been averred to be a true copy but the original thereof is not being traced and is not being produced on the record, despite several demands. Indeed, the learned Advocate-General challenged that the production of the purported original appointment letter of the petitioners herein could only lead to the prosecution of the writ petitioners for forgery far from affording them any relief by way of mandamus for salary. It was pointed out that photostat copy (annexure 4/1) did not bear the signature of the competent authority and the column for such signature was admittedly left blank. The desperate stand on behalf of the....
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....gative. The claim of a full-dress inquiry after associating the petitioners in a writ of mandamus is plainly ill-founded and does not lie in the mouth of the petitioners. On principle and even on the basis of precedent on which reliance was placed by the petitioners too, it is wholly settled that where the very original appointment to the service is invalid or forged or fraudulent then in the eye of law there is no appointment at all and declaration by the State that the alleged appointment is non est does not attract any principle of natural justice. It is unnecessary to elaborate this on principle because it is covered by the observation of the Full Bench in the aforementioned case of Bijoy Kumar Bharti 1983 Lab IC 1884 (supra). Therein S. Sarwar Ali, Acting C.J., observed- "No one has a right to be appointed irregularly. His position is that of a person who has no right to the post. There is no stigma attached in the removal.....do not think, therefore, that in such a situation there is anything unfair in taking the decision without hearing the person likely to be affected." In his concurring judgment, N. P. Singh, J., observed- "It cannot be disputed that w....
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....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. 54. It is somewhat plain that the position herein is virtually identical with the previous writ petition with indeed an added infirmity that a joint writ petition for distinct and separate causes of action would hardly be maintainable. The learned Advocate General took the firm position that even though no counter-affidavit could be filed in this writ petition yet the State's stand herein is not the least ....
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....Prasad, J. 58. I agree with my Lord, the Chief Justice. L.M. Sharma, J. 59. I need not repeat the facts relevant to CW.J.C. Nos. 747/85, 4813/85 and 6061/85 which have been stated in the judgments delivered just now by Hon'ble Chief Justice and Hon'ble R. N. Prasad. The other eleven cases, that is, CW.J.C. Nos. 5711/85, 747/86, 748/86. 749/86, 752/86, 753/86, 754/86, 884/86, 1161/86, 1266/86 and 1308/86 were not pressed and are, therefore, dismissed as such. 60. The petitioners 1, 2 and 3 of C.W.J.C 6061/85 are petitioners 27, 28 and 32 in CW.J.C 747/85. The nature and validity of the same appointments are involved in the two cases and it is manifest that this Court will not be justified in giving two interpretations to them and in deciding the rights of the parties differently. In CW.J.C 747/85, the petitioners have challenged the letters of termination of their services while in CW.J.C. 6061/85 the petitioners have merely claimed their salary for the period they actually rendered service. Similarly, petitioners in CW.J.C 6061/85 (along with other petitioners) has challenged the order of termination of service in C.W.J.C. 4787/85. Thus, as in C.WJ.C. 747/85 ....
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....ce or any meaning in the claim of the State to have taken a "liberal attitude" towards the petitioners. On this plea alone, the reliefs asked for by the petitioners of C.W.J.C. 6061/85 or at least the petitioners 1, 2 and 3 thereof have to be allowed and they have to be paid their salary for the entire period till 17-2-85. 63. So far as petitioner 5 of C. W. J. C. 6061/85 is concerned, she cannot be put in a disadvantageous position merely because the High Court has not been able to hear her writ case, C. W. J. C 4787/85. If it be assumed that the stand of the State with respect to her case is the same as the other petitioners, she should also get her salary for the period till 17-2-85 and on the same basis petitioner 4 also should be entitled to similar relief, 64. It was argued on behalf of the State in C W. J. C 6061/85 that the allegations of the petitioners about their actually working in the schools and receiving their salaries for some period are incorrect. The petitioners have emphatically denied the State's case and have asserted that they actually received their salary for a short period before the payments were stopped. The question whether payments were made t....
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....is that it served one month's notice on the petitioners on 18-1-85 terminating their services with effect from 18-2-85. Can it be suggested that the petitioners did not act rightly, if they rendered their services between 18-1-85 and 18-2-85? Why, then, should they not be paid for this period? A necessary corollary what should be the decision with respect to the claim for the earlier period? In my view, they are entitled to their salaries 67. Alternatively, let me assume that the petitioners were actually not allowed to work between 17-1-85 and 18-2-85. It has never been suggested on behalf of the State that the petitioners non-co-operated on receipt of the notices. Annexures 2 series. In this background, the further question is as to what is the effect of these notices. Did the State authorities convey through these notices that the petitioners would be paid their salaries for the period 18-1-85 to 17-2-85? In my view, the answer is in the affirmative. I, therefore, reject the argument addressed on behalf of the respondents in C. W. J. C 6061/85. 68. The State was represented by other counsel in C. W. J. C. 6061/85 and C. W. J. C. 4813/85 which were heard in 1986 and it ....
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....he services simpliciter, the circumstances are such that the petitioners must be allowed to refer to the reasons therefor, as detailed in the State's counter-affidavits and the annexures, which condemn the petitioners as parties to fraud and forgery. In this connection, the following observations of the Supreme Court in Anoop Jaiswal v. Govt. of India AIR 1984 SC636, relied upon by Mr. B. P. Pandey are relevant : "Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause of the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed, then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution." The veil i....
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....ued that as the same Establishment Committee interviewed two sets of candidates and took a decision in regard to their appointments, the teachers in the two districts should not be treated differently. The respondents have denied to have retained the services of any teacher appointed by three State Officers Messrs Bhola Ram, Hari Narain Jha and Hart Narain Thakur, as they are supposed to have acted illegally in making the appointments. It has further been said that a Division Bench of this Court in Diwakar Prasad Yadav v. State of Bihar 1986 PLJR 873, while considering the case of some teachers appointed by these officers rejected their writ petitions and the Supreme Court dismissed an application for special leave against the judgment by the following order as contained in Annexure C to the counter-affidavit : "Special leave petition is dismissed with the observation that the petitioners may avail of the alternative remedy of a suit, if available." In reply to the petitioners' argument of discrimination by the State with reference to several other teachers of Dumka district, it was contended by the State counsel that whatever benefit was bestowed on such teachers w....
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....cordingly allowed, but in the circumstances without costs. Ram Nandan Prasad, J. 77. The substantial question which arises for determination in this case is : Whether the termination of the services of the petitioners is bad for being violative of the principle of natural justice on the ground that they were not given an opportunity to show cause against termination before the termination orders were issued? 78. The case of the petitioners is that in response to an advertisement for the posts of Assistant Teachers in different Elementary Schools in the erstwhile district of Santhal Parganas published in the newspaper on 7-4-1981 under the signature of District Superintendent of Education, Santhal Parganas, these petitioners and others submitted their applications. They were eventually interviewed by the District Establishment Committee of the Santhal Parganas in between 17th and 19th Sept., 1981 and the committee prepared a panel for appointment known as 'Waiting List'. Soon thereafter the erstwhile district of Santhal Parganas was split into four districts, namely, Dumka, Sahebganj, Godda and Deoghar. After the creation of these districts some candidates ....
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....a have been allowed to continue, whereas the services of the teachers appointed in the district of Sahebganj have been terminated, although both sets of teachers were appointed from the same panel prepared for the erstwhile district of Santhal Parganas. 79. The State has filed a counter-affidavit in which it has been staled that the appointments of the petitioners were purely temporary and their services could be terminated without any notice, but even then they were given one month's notice. The course adopted by the State is quite legal, as the termination of the services of the petitioners is 'termination simpliciter' and no stigma of any kind is attached thereto. Nothing has been said against the conduct of the petitioners in the termination letters and hence there was no necessity of issuing a separate notice to them for showing cause against their termination and as such they cannot call in aid the violation of the principles of natural justice. It has been averred that plea of the violation of the principle of natural justice cannot be available to the petitioners in such a situation. Regarding the facts stated in the writ petition about the appointment of the....
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....unction order has been passed by this Court against their termination. 80. It is the undisputed position that the petitioners were appointed on purely temporary basis and had no right to any post. This is also borne out by Annexure 1 series which are appointment letters of the petitioners. It is also the undisputed position that services of such purely temporary teachers were liable to be terminated without any notice. The legal position in this regard has been clearly laid down in the following terms in the Full Bench decision of this Court in the case of Bijay Kumar Bharti v. State 1984 BBCJ 335 : 1983 Lab IC 1884 : "It can now be said, to be firmly established that in case of a temporary appointee, who has no right to the post, his termination can take place without giving him any opportunity of being heard before taking the decision. The reason is that he has no right to the post and in most cases termination is in conformity with the terms of the appointment itself." 81. In the present case it is obvious that the petitioners were given one month's notice by Annexure 2 series even though they were purely temporary appointees having no right to a particular po....
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....ounsel that the statement in the letter that these appointments were irregular and illegal is not correct and, in any case, before issuing the termination order the Government should have held enquiry in this regard in presence of the petitioners after giving them due notice to show cause and an opportunity of being heard. The firm stand of the learned counsel is that the failure of the Government to hold enquiry into the illegal character of the appointments after giving notice to the petitioners to show cause and an opportunity of being heard violates the principle of natural justice and the duty to act fairly, as this principle is applicable in case of administrative orders also. 84. Learned counsel appearing for the State did not dispute the legal position that the principle of natural justice or the duty of the Government to act fairly in administrative matters is applicable in the case of administrative orders also, but his submission was that the principle of natural justice is not at all attracted in the present case, inasmuch as nothing has been said against the petitioners in the impugned termination orders. His stand is that even if it is assumed that these terminatio....
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......." In a concurring judgment N. P. Singh, J. observed in para. 59 as follows : -- "59. It cannot be disputed that whenever the service of a person appointed on temporary basis is terminated saying that the appointment in question had been made in an irregular or illegal manner, it does not amount to any stigma or penalty. In my view, such orders cannot be held to be invalid because before passing such orders opportunity to show cause was not given to the person concerned. Such employees know very well that their services could be terminated at any time even without notice. Merely because in the order there is reference to the nature of their appointment will not change the legal position. The position, however, will be different where the authority concerned is purporting to terminate the service with effect from the date of appointment. In that event, the employee has to refund the salary and allowances received by him, and in that event, an opportunity has to be given before passing such order. But where order purports to terminate the service from the date of the issuance of the order, it for all practical purposes amounts to an order of termination simpliciter." ....
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.... statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute. If a Vice-Chancellor by administrative drift allows such employment it cannot be validated on any theory of factum valet. We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law. In short, the respondent has no presentable case against the direction to quit." It was further observed that : -- ".....No case of statutory termination of service is called for, the basis of statutory employment being absent. The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because the Vice-Chancellor went through the irregular exercises of extending his probation etc. We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of ti....
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....nce. Indeed Article 21 of the Constitution simply lays down that no person shall be deprived of his life, which now includes the right to livelihood, or personal liberty except according to the procedure established by law. Undisputedly, the right of life also can be taken away in accordance with the procedure of law and indeed the death sentence is an illustration of this deprivation. What this article requires is that the right of life or livelihood can be taken away only in accordance with the procedure established by law. The learned counsel for the petitioner has not been able to show that any procedure established by law has been violated in the present case. His only submission was that the principle of natural justice was violated which submission has been rejected above after considerable discussions. Article 21 cannot be interpreted to mean that nobody's right of livelihood can be taken away under any circumstance as this interpretation would lead us to a very deep well as in that case the employees will be free to commit any offence and the authorities would remain helpless spectators. The decision in the case of Olga Tellis (supra) cannot be pressed into service to ....
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..... This principle of law is well established and there can be no difference of view in this regard. But, in the present case this principle has no application at all and is simply inapt, inasmuch as it is not the case of the petitioners that any enquiry regarding the misconduct of the petitioners was made or that there is any allegation of grave misconduct on their part as was the position in the case before the Supreme Court. Whatever allegation is there is against the appointing authority and not against the appointees and, indeed, the appointing authority is being prosecuted in a court of law for his acts of omissions and commissions. 91. Similarly the reliance of the learned counsel for the petitioners on the cases of Roshan Lal v. International Airport Authority of India, AIR 1981 SC 597 and I.T.C. Ltd. v. State of Karnataka 1985 Suppl SCC 476 is equally misplaced as the ratio of these cases is wholly inapplicable to the facts of the present case. 92. Reliance was also placed by the learned counsel on the case of Nepal Singh v. State of U. P. AIR 1985 SC 84, but the facts of the case were quite distinguishable as in that case the termination of service of the petitioner w....
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....the Supreme Court in the case of Union of India v. T. R. Varma AIR 1957 SC 882 : "That is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondents to a suit." 95. I need, in an identical case the Supreme Court relegated the petitioners to the remedy of suit by an order passed in Annexure-C. This order was passed in the Special Leave of Appeal (Civil) No. 5041 of 1986 which was filed against the decision of the Division Bench of this Court in the case of Diwakar Prasad Yadav 1986 PLJR 873 (supra) in which one of the questions raised was as to whether the teachers whose services were terminated in the identical circumstances were entitled to any show cause. Indeed, facts of that case were identical and the teachers who figured as the petitioners were similarly appointed and removed from service by identical termination orders. A Division Bench of this Court had dismissed the writ petitions of the teachers....
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....t. Their appointments, therefore, must be held to be invalid on this ground also. 98. In view of these two major infirmities, the alleged appointment of the petitioners must be held to be illegal and non est and further enquiry about the stand of the State that no panel was prepared and no appointment was made at all appears redundant. 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 dis....