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2018 Supreme(Pat) 370
IN THE HIGH COURT OF JUDICATURE AT PATNA
AHSANUDDIN AMANULLAH, J.
Managing Committee of Sarswati Bilash Sanskrit High School – Appellant
Versus
The State of Bihar – Respondent
Civil Writ Jurisdiction Case No.6066 of 2015
Decided on : 23-04-2018
For the Petitioners:Mr. Siya Ram Shahi with Ms. Shally Kumari, Advocates
For the State : Mr. Md. Nadeem Seraj, with Mr. Sahilesh Kumar
For the Board :Mr. Satyam Shivam Sundaram, Advocate
For the Respondents:Mr. Yugal Kishore, Sr. Advocate with Mr. Ajay Kumar, Mr. Virendra Prasad and Mr. Sanjay Kumar, Advocates, Mr. Kundan Kumar Sinha, Advocate
The main legal point established in the judgment is that appointments leading to liability on the State/Board for payment require prior approval and adherence to a proper procedure. The court also emphasized the consequences of fraud and nepotism in the appointment process.
Headnote:
Fraud - Appointment of Teachers - Bihar Sanskrit Shiksha Board Act, 1981 - Chapter 3, Rules 1, 3, 4, 5, 6, 7, 8 - Summary of Acts and Sections: The court discussed the appointment of teachers in a private school under the Bihar Sanskrit Shiksha Board Act, 1981, and the relevant Rules in Chapter 3, specifically Rules 1, 3, 4, 5, 6, 7, and 8. The court highlighted the requirement for prior approval of the Board for recruitment and the absence of a proper procedure followed in the appointment process, leading to a finding of fraud on the system.
Fact of the Case:
The respondents no. 7, 8, and 9 were appointed as teachers in a private school, and the petitioners challenged the appointment, alleging fraud and nepotism. The State conducted an inquiry and found substance in the allegations.
Finding of the Court:
The court found the appointment of respondents no. 7, 8, and 9 to be void ab initio due to a total and complete fraud on the system. It set aside all subsequent orders in their favor and directed them to refund the money taken on the basis of the appointment within three months.
Issues: The issues involved the validity of the appointment process, compliance with the Rules, and allegations of fraud and nepotism.
Ratio Decidendi: The court held that in the absence of a proper procedure and prior approval of the Board, the appointment was void. It also found evidence of fraud and nepotism in the appointment process.
Final Decision: The writ petition was allowed, and the appointment of respondents no. 7, 8, and 9 was declared void ab initio. They were directed to refund the money taken on the basis of the appointment within three months, and the respondents no. 3 and 4 were tasked with ensuring compliance.
Heard learned counsel for the petitioners; State; Bihar Sanskrit Shiksha Board (hereinafter referred to as the ‘Board’) and respondents no. 7, 8 and 9. Despite valid service of notice, and respondent no. 10 having filed counter affidavit, when the case was heard at length today, nobody has appeared on behalf of respondent no. 10.
2. The petitioners have moved the Court for the following reliefs:
“(i) For issuance of an appropriate writ in quashing the order passed by the Special Director (Secondary Education) Deptt. Of Education, Bihar vide Memo No. 14 dated 20.02.2015 contained in Annexure-8.
(ii) For issuance of an appropriate writ in quashing the order vide Memo No. 4530 dt. 26.11.2014 passed by Chairman, Bihar Sanskri Siksha Board, Patna contained in Annexure-7.
(iii) For issuance of an appropriate writ commanding the respondents to take steps to recover the amount paid to the respondents no. 7, 8 and 9 against their salary by a process of law.
(iv) For any other relief or reliefs for which the petitioner is entitled under law as well as on facts of the case.”
3. The undisputed factual position is that the respondents no. 7, 8 and 9 were appointed in May/June, 1997 on teaching and non teaching posts in Sarswati Bilash Sanskrit High School, Shokhara in the district of Begusarai which is recognized by the State of Bihar and the Board, being managed by a private Managing Committee. Upon their appointment, the matter was referred to the Board for approval but when the same was not forthcoming, the respondents no. 7, 8 and 9 moved this Court in C.W.J.C. No. 2463 of 2010, which was disposed off by order dated 15.03.2013, directing the Chairman of the Board to take a decision with regard to the request of approval of their service. When the order was not complied with, they again filed C.W.J.C. No. 10800 of 2014, directing final decision to be taken in accordance with law within three months. In terms thereof, the Chairman of the Board passed order contained in Memo No. 4530 dated 26.11.2014, granting approval to the appointment of respondents no. 7, 8 and 9. The same was challenged before the Special Director (Secondary Education), Education Department, Bihar, by the petitioner no. 2 in Appeal No. 25 of 2014, which was rejected by order dated 20.02.2015. After that, on 14.03.2015, the Secretary of the Board, by communication under letter No. 2405 dated 14.03.2015 to the District Education Officer, Begusarai directed for payment to respondents no. 7, 8 and 9. Upon proper bill being raised by the petitioner no. 2, who was the Headmaster and in case the same was not done, then to make payment of the bills on the basis of individual affidavits given by the respondents no. 7, 8 and 9, on the basis of bill presented by the respondent no. 10. In the said communication, respondent no. 10 was described as the Secretary of the Managing Committee of the school. It further appears that within two days thereof, a sum of almost Rs. 22 ½ lakhs was paid to the respondents no. 7, 8 and 9. Being aggrieved by these developments, the petitioners have moved the Court in the present writ application.
4. Learned counsel for the petitioners submitted that the very appointment of the respondents no. 7, 8 and 9, is a fraud as there is not even a semblance of any procedure adopted, much less, as required under the Bihar State Non-Government Sanskrit High School (Service Conditions) Rules, 1976 (hereinafter referred to as the ‘Rules’). He submitted that in terms of the said Rules, especially Clause 1, 3, 4, 5, 6, 7 and 8 of Chapter 3, which deals with the procedure for making such appointment. Learned counsel submitted that for appointment, the same should be through publication in a prominent Hindi daily but if it is for a period of three months, it could be done on the basis of local advertisement. It was submitted that though the appointments have been made in regular terms but without any advertisement, as there is nothing to show that any advertise
