Retrospective cancellation of appointment and recovery of salary are illegal. Departmental proceedings must adhere to the principles of natural justice, including providing the delinquent staff with a proper opportunity to defend themselves and present evidence.

Sia Saran Sinha, J.

1. Smt. Lalita Kumari has prayed, inter alia, for quashing Annexures 5 and 15 to the writ application filed under Articles 226 and 227 of the Constitution of India.

2. The facts of the case lie in a narrow compass and the point for decision is a simple one. After passing the middle school examination as a private candidate, the petitioner applied for the post of a teacher in a Government lower primary school, the minimum qualification required for the post, undisputedly, being middle school examination certificate. She was appointed to the post by the District Superintendent of Education, Patna, and she joined the post as a teacher in the lower primary school at Dubharah on 19-3-1959. She worked as a Primary School Teacher for a considerable long period till the year 1976, when by Annexure 5 which is dated 18-6-1976, a suspicion having arisen about her passing the Middle School Examination, she was noticed to appear in the office of the District Education Officer, Patna, on the date specified therein viz to produce her original School leaving Certificate. The further orders as contained in Annexure-5 was that till the final decision about the genuineness of her certificate she will not be allowed to withdraw her salary. It appears that the department enquired into the matter and the authority concerned was satisfied that in fact she had not passed the Middle School Examination and the certifictate produced by her was a forged one. Emboldened by this enquiry the department launched upon a departmental proceeding against her, Annexure-3 being the charge that was served on her which substantially stated that the Middle School Examination certificate produced by her was found to be forged one. An enquiry proceeded and according to the department she did not take part in the same. The result was that the department came out with the order as contained in Annexure-15. It stated that since the Middle School certificate produced by her, which was the basis of her appointment as a teacher was found to be forged, her appointment was cancelled with retrospective effect from the date of her appointment itself. A further order was passed for realisation of all the salary which she had withdrawn from the Government Treasury since the time of her appointment, Annexure-15 is dated 18th July, 1978. It is in these circumstances that the petitioner has approached this Court. The respondents have contested her claim by filing counter affidavit. The sole point for consideration is whether the orders as contained in Annexure-15 is legal and valid.

3. The petitioner was appointed as far back as in the year 1959. Her appointment was cancelled on the 18th of July, 1978. The order as contained in Annexure-15, however, cancelled her appointment retrospectively from the date of her appointment itself with the further orders for recovery of the entire amount of salary drawn by her from the date of her appointment till the cancellation of her appointment. Retrospective termination of service or cancellation of the appointment, as the case may be, is totally unjustifiable and similar is the position with regard to recovery of the salary drawn for the period she worked as a teacher, Conscious of this legal position, the learned Additional Advocate General representing the respondents frankly conceded that this part of the order could not be supported. The result is that the cancellation of her appointment from the date of her appointment and orders for recovery of the salary drawn by her during the period she actually worked as a teacher is held to be unsustainable in law and is bound to be quashed.

4. The learned Additional Advocate General, however, argued that the cancellation of her appointment or the termination or her removal from service with effect from the 18th July, 1978, was justified, on the facts and in the circumstances of this case. Learned Counsel for the petitioner seriously refuted this contention.

5. It is well