Ashraf Khan vs Bihar School Examination Board ...
2023 Latest Caselaw 3650 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.2774 of 2014
     ======================================================

Ashraf Khan, Son of Md. Jahangir Khan, Resident of Village- Govindpur Khajuri, Post Office- Khajuri, P.S. Kalayanpur, District- Samastipur ... ... Petitioner Versus

1. Bihar School Examination Board, Patna through its Chairman.

2. The Secretary, Bihar School Examination Board, Patna

3. The Assistance Secretary (Darbhanga), Bihar School Examination Board, Patna.

... ... Respondents ====================================================== with Miscellaneous Jurisdiction Case No. 1637 of 2017 In Civil Writ Jurisdiction Case No.221 of 2013 ====================================================== Ashraf Khan son of Md. Jahangir Khan, resident of Village- Govindpur Khajuri, P.O.- Khajuri, P.S.- Kalyanpur, District- Samastipur.

... ... Petitioner Versus

1. The State of Bihar through Sri R. K. Mahajan, the Principal Secretary, Human Resources Development Department, Government of Bihar, Patna.

2. Sri M. Ram Chandra Tuddu, the Director, Primary Education, Human Resources Development Department, Government of Bihar, Patna.

3. Sri Braj Kishore Ojha, The District Education Officer, Samastipur.

4. Sri Ram Chandra Mandal, The District Program Officer Establishment Samastipur.

5. Sri Dhananjay Kumar, The Block Development Officer-cum-Secretary Block Employment Unit, Kalayanpur, District-Samastipur.

6. Sri Nandan Kumar, The Block Education Extension Officer, Kalyanpur, District- Samastipur.

7. Smt. Krishna Devi, Pramukh, Panchayat Samiti, Kalyanpur, District-

Samastipur.

8. Sri Baijnath Paswan, The Mukhiya, Gram Panchayat Raj, Govindpur, Khajuri, Block- Kalyanpur, Distric

9. Sri Vivekanand Bharti, The Head Master, Govt. Upgraded Middle School, Hasanpur Kirat, Kalyanpur, District-Samastipur.

... ... Opposite Parties ====================================================== Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

with Civil Writ Jurisdiction Case No. 8420 of 2017 ====================================================== Ashraf Khan Son of Md. Jahangir Khan, Resident of Village- Govindpur Khajuri, P.O.- Khajuri, P.S.- Kalyanpur, District- Samastipur. ... Petitioner Versus

1. The State of Bihar through the Principal Secretary, Human Resources Development Department, Government of Bihar, Patna.

2. The Director, Primary Education, Human Resources Development Department, Government of Bihar, Patna.

3. The District Education Officer, Samastipur.

4. The District Superintendent of Education, Samastipur.

5. The District Program Officer (Establishment), Samastipur.

6. The Block Development Officer- Cum- Secretary Block Employment Unit, Kalayanpur, District- Samastipur.

7. Pramukh, Panchayat Samiti, Kalyanpur, District- Samastipur.

8. Mukhiya, Gram Panchayat Raj, Govindpur, Khajuri, Block- Kalyanpur, District- Samastipur.

9. The Head Master, Govt. Upgraded Middle School, Hasanpur Kirat, Kalyanpur, District- Samastipur.

... ... Respondents ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 2774 of 2014) For the Petitioner/s : Mr. Sanjay Kumar Mishra, Advocate For the Respondent/s : Mr. Piyush Lall, Advocate For the BSEB : Mr. Girijesh Kumar, Advocate (In Miscellaneous Jurisdiction Case No. 1637 of 2017) For the Petitioner/s : Mr. Sanjay Kumar Mishra, Advocate For the Opposite Party/s : Mr. Prabhat Ranjan Singh, AC to AAG-13 (In Civil Writ Jurisdiction Case No. 8420 of 2017) For the Petitioner/s : Mr. Sanjay Kumar Mishra, Advocate For the Respondent/s : Mr. Kamal Nayan, AC to SC-28 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT

Date : 09-08-2023

Heard learned counsel for the petitioner, learned counsel

for the State and learned counsel for the Bihar School Examination

Board (hereinafter referred to as the 'Board'). Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

2. These three matters have been tagged and on the request

of the parties, these are being taken up for consideration together.

CWJC No. 2774 of 2014

3. This writ application has been filed questioning the

Publication No. 02/14 in daily newspaper dated 08.01.2014 by which

the respondents have declared the marksheet and the certificates of

the petitioner illegal and prohibited him from their use.

4. The case of the petitioner is that he passed the

Secondary School Examination (Supplementary) in the year 1995

from High School Siropatti, Khatuaha in 1 st Division under Roll

Code- 6302, Roll No. 09 and Registration No. 631-46/10505 of the

year 1994. He was appointed as Shiksha Mitra in the year 2003 and

was confirmed as Panchayat Teacher in the year 2006 in the Primary

School Hasanpur Kirat.

5. The petitioner claims that he received a Letter No. DP

2694 dated 12.12.2011 addressed to the student, namely, Ashraf Ali

Khan whose Roll Code was mentioned as 6307, Roll No.-22, date of

birth-03.01.1968 and was shown passed the Annual Examination in

the year 1983. He was directed to produce the original certificate,

marksheet and admit card before the Joint Secretary of the Authority

at Darbhanga within a week otherwise it was informed that the Board

will take an ex-parte decision.

6. The petitioner claims that the petitioner received the

said letter only because his name is Ashraf Khan. According to him, Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

the envelope was not related to him, therefore, the petitioner replied

to the Board that the said letter is not related to him. Again a

registered envelope was received by the petitioner wherein he was

informed that since he had not appeared before the respondent with

certificates of Secondary Examination issued to him in compliance of

Letter No. 2694, as such he was directed to produce himself

physically before the respondent failing which an ex-parte decision

will be taken by the respondent. Again, the petitioner replied the

same and one thing. Admittedly, he did not appear before the

respondent Board and its authorities. In the aforementioned

background, the impugned publication/ communication was made in

daily newspaper dated 08.01.2014 by which the respondent Board

cancelled the result of the Supplementary School Examination, 1995

of the petitioner and the marksheet and other certificates issued to

him have been declared illegal and prohibited him from their use.

CWJC No. 8420 of 2017

7. This writ application has been filed for the following

reliefs:-

"i. For quashing the order passed by the Block Development Officer-cum-Secretary Block Employment Unit, Kalayanpur, circulated vide Memo No. 588 dated 15/04/2017 (Annexure-13), by which appointment of the petitioner as "Prakhand Sikshak" has been declared illegal and accordingly been terminated from service.

ii. For a direction to respondents to reinstate the petitioner with his post and posture with effect from 15.04.2017 i.e. from the date of the termination.

Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

iii. For any other relief/reliefs for which petitioner be entitled to get from this Hon'ble Court."

8. In this writ application, the petitioner has questioned

his termination as 'prakhand Shikshak'. According to him, one

Jagdish Mahto had filed one CWJC No. 221 of 2013 against

appointment of the petitioner alleging that the petitioner had

obtained his appointment on the basis of forged certificate of

Matriculation. The said writ application was heard by this Court

and vide order dated 07.01.2014, this Court had allowed the

petitioner to continue pending inquiry into his appointment on the

basis of alleged forged Matriculation certificate. A perusal of the

order dated 07.01.2014 shows that this Court had directed the

Secretary of the Board to conduct the inquiry himself, inspect all

the documents of the two schools either by visiting those schools

or calling for the relevant records and the case was ordered to be

listed after three months. The Court specifically recorded in its

order that the writ petitioner who was respondent no. 12 in the writ

application of Jagdish Mahto may continue in service and would

also get his salary but then in the event of it is being found that he

had got his appointment on the basis of forged Matriculation

certificate, he will be bound to refund the entire money drawn

from the Government Exchequer and will also be subjected to

criminal proceeding.

Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

9. The grievance of the petitioner in this writ application

is that despite there being an interim order in CWJC No. 221 of

2013, the Board has cancelled the result of the petitioner on

08.01.2014 i.e. on the very next day. In this writ application, it is

stated that the said notification has been challenged by the

petitioner in CWJC No. 2774 dated 2014 and vide order dated

04.07.2014, CWJC No. 2774 of 2014 and CWJC No. 221 of 2013

were tagged for hearing.

MJC No. 1637 of 2017

10. This application has been filed for initiation of a

proceeding for contempt against the opposite parties for their

willful disobedience and disregard shown to the order dated

07.01.2014 passed in CWJC No. 221 of 2013. The grievance of the

petitioner is that on the very next day of the interim order i.e.

07.01.2014, the Board had cancelled the result of the petitioner

vide notification dated 08.01.2014, therefore, it may be a case of

contempt.

Submissions of the Petitioner

11. Mr. Sanjay Kumar Mishra, learned counsel for the

petitioner in these matters has submitted that the result of the

petitioner was cancelled without giving appropriate opportunity of

hearing to the petitioner and the same is not in accordance with the

direction of this Court as contained in the order dated 27.08.2018 Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

passed in CWJC No. 221 of 2013 and the present two writ

applications which were also heard together with CWJC No. 221

of 2013.

12. Learned counsel has drawn the attention towards the

order dated 27.08.2018 in which this Court has no doubt taken a

prima-facie view against the petitioner but then granted one

week's time to the petitioner to file an affidavit for deposit of

Rs.50,000/- so that the Board may again examine the entire issue

afresh after hearing the petitioner and pass an appropriate order on

the validity of the certificate. Learned counsel submits that the

Board has not examined the matter afresh in the light of the order

of this Court. It is submitted that the petitioner had deposited

Rs.50,000/- with the Board.

Submissions on behalf of the Board

13. Mr. Girijesh Kumar, learned counsel for the Board

submits that after the order dated 27.08.2018 was passed by this

Court in CWJC No. 221 of 2013 and other analogous matters, this

Court passed yet another order dated 01.10.2018 and the direction

of this Court was to inquire into the genuineness of the certificates

of the petitioner whereafter the Board has examined the matter

afresh which would be evident from Letter No. DP 2364 dated

04.12.2018 written by the Examination Controller (Secondary) of

the Board to the Secretary of the Board. This is in the nature of a Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

report from which it would appear that on re-examination of the

entire matter once again, the Board has found that the same and

one examinee had appeared in the Board Examination in two

different years from two different schools by changing his name

and the date of birth was changed to the extent of nine years.

Learned counsel submits that this Court had taken a prima-facie

view with regard to the cancellation notification in its order dated

27.08.2018 and thereafter the petitioner has not brought on record

any material fact which may lead this Court to take any other view.

14. It is submitted that on his own averment in the writ

application, this Court has noticed that the petitioner was earlier

called upon to appear in person but he did not make it and kept on

avoiding his cooperation with the Board. Learned counsel submits

that when CWJC No. 221 of 2013 was taken up for final

consideration on 18.04.2023, this Court was informed of the

interim order dated 07.01.2014 and then the notification of the

Board that led to cancellation of his result. The said writ

application was rendered infructuous and accordingly dismissed.

15. Learned counsel has taken this Court through the

supplementary counter affidavit filed on behalf of the Board as per

direction of this Court and Annexure 'H' to the said affidavit is the

fresh report of the Controller of Examination as contained in Letter

No. DP 2364 dated 04.12.2018 which has been referred Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

hereinabove. It is submitted that in the given facts and

circumstances of the case where on repeated examination of the

records which are in possession of the Board if it has been

concluded that it is the same and one person who had appeared in

the two examinations by changing his name only slightly and by

reducing his age, this Court sitting under Article 226 of the

Constitution of India may not act as a fact finding Court to reverse

the finding of the Board.

Consideration

16. Having heard learned counsel for the parties and

upon going through the materials on the record, this Court finds

that admittedly, the petitioner was called upon to make available

the certificates and also to appear before the Board. He admits in

paragraph '8' of the writ application (CWJC No. 2774 of 2014)

that he was directed to produce himself physically before the

respondent. He did not comply with the said direction and kept on

non-cooperating with the Board in the inquiry by sending the same

and one reply that the letter of the Board does not relate to him.

The facts and circumstances under which the entire inquiry has

been made by the Board repeatedly at the instance of this Court

have been fully explained in the counter affidavit and the

supplementary counter affidavit by the Board. The findings of the Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

Board in Annexure 'H' to the supplementary counter affidavit are

being reproduced hereunder for a ready reference:-

" i=kad DP- 2364 fcgkj fo|ky; ijh{kk lfefr] iVukA

izs'kd %& ijh{kk fu;a=d ¼ek/;fed½ fcgkj fo|ky; ijh{kk lfefr] iVukA

lsok esa] lfpo] fcgkj fo|ky; ijh{kk lfefr] iVukA iVuk] fnukad& 04@12@2018 fo'k; %& ekuuh; mPp U;k;ky; iVuk esa nk;j okn la[;k& 221@2013 esa fnukad & 01-10-2018 dks ikfjr U;k;kns"k ds vkyksd esa oknh v"kjQ [kku ds izek.k i=ksa ds oS/krk ds tk¡p ds laca/k esaA egk"k;] mi;qZDr fo'k; ds lca/k esa funs"kkuqlkj lwfpr djuk gS fd ekuuh;

mPp U;k;ky; iVuk esa nk;j okn la[;k & 221@2013 esa fnukad 01-10-2018 dks ikfjr U;k;kns"k ds vkyksd esa ekuuh; mPp U;k;ky; }kjk ;g vkns"k nsus ds d`ik dh x;h gS fd "The Bihar School Examination Board(hereinafter referred to as the 'Board') is herby directed to enquire in to the genuineness of the certificate of Ashraf Khan" ds laca/k esa iz"kk[kk esa miyC/k vfHkys[kksa ls muds izek.k i=ksa dh tk¡p dh x;h tks fuEuor~ gS& 2- ekeyk nks vyx&vyx ijh{kk o'kksaZ esa vyx&vyx fo|ky;ksa ls nks ckj ek/;fed ijh{kk esa mŸkh.kZrk izkIr djus ls lacaf/kr gSa ftlesa oknh Nk= v"kjQ [kku] firk&eks0 tgk¡xhj [kku us o'kZ 1995 iwjd ek/;fed ijh{kk esa lfEefyr gksdj dqy izkIrkad & 559 izFke Js.kh ls mŸkh.kZrk izkIr fd;k] ftlesa mudk tUefrfFk 10-08-1977 ,oa iath;u la0&631&46@10505@94 gSA mDr ijh{kk ls lacaf/kr oknh Nk= v"kjQ [kku dk lfefr esa jf{kr vfHkys[k (DTR/OTR) ds vuqlkj iw.kZ fooj.k fuEuor~ gS %& vfHkys[k (DTR) dk fooj.k vfHkys[k (OTR) dk fooj.k jkSy dksM & 6302 jkSy dksM& 6302 esa jkSy u0& 01 ls jkSy ua0 & 09 11 rd dk dksbZ Hkh fooj.k ;Fkk jkSy iath;u & 631&46@10505@94 ua0] Nk= dk uke] firk dk uke tUe Nk= dk uke & ASHRAF KHAN frfFk ,oa fo'k;okj vad eqfnzr ugha gS] firk dk uke &MD. JAHANGIR KHAN tUe frfFk & 10-08-1977 cfYd jkSy ua0 & 12 ls eqfnzr gSS] mlesa dqy izkIrkad & 559/1st div. Hkh jkSy ua0 yxkrkj vafdr ugha gS cfYd fo|ky;dkuke & H.S. SIROPATTI KHATUAHA chp&chp dk jkSy ua0 NksM+ dj eqfnzr gSa dksVh & PRIVATE tcfd OTR esa ist la[;k yxkrkj gSA izek.k i= ds fuxZr la[;k & 0416279 okfn Nk+= v"kjQ [kku dk jkSy ua0& 09 gSAa ftldk fooj.k OTR esa miZ;qDr ds vuqlkj eqfnzr ugha gSA mDr ijh{kk ls lacaf/kr Nk= v"kjQ [kku dk iath;u cgh dk iw.kZ fooj.k fuEu izdkj gS%& iath;u la0 & 631&46@10505@94 Nk= dk uke & ASHRAF KHAN firk dk uke &MD. JAHANGIR KHAN tUe frfFk & 10-08-1977 dksVh & REGULAR Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

3- mDr ijh{kk ls lacaf/kr oknh Nk= v"kjQ [kku dks mŸkh.kZrk izkIr gksus ij lfefr }kjk fuxZr ewy vad i= ,oa ewy izek.k&i= la[;k & 0416279 dk lR;kiu lfefr esa jf{kr vfHkys[k (DTR/OTR) ls fd;k x;kA ewy vad i= ,oa ewy izek.k&i= dk tk¡pksijkUr fooj.k fuEuor~ gSA %& ¼i½ oknh Nk= v"kjQ [kku ds ewy vad i= tks o'kZ 1995 iwjd ijh{kk ls lacaf/kr gS ds iw.kZ izfof'V dk feyku lfefr vfHkys[k (DTR/OTR) ls fd;k x;k] tks DTR ds vk/kkj ij lgh gSA 4- ;g Hkh mYys[kuh; gS fd iwoZ esa okf'kZd ek/;fed ijh{kk 1983 esa Nk= v"kjQ vyh [kku] firk& tgk¡xhj [kku jkSy dksM&6307] Øekad & 22] tUefrfFk 03-01-1968 ds lkFk mŸkh.kZ gksus dk iw.kZ fooj.k fuEuor~ gS %& vfHkys[k (DTR) dk fooj.k vfHkys[k (OTR) dk fooj.k jkSy dksM & 6307 Nk= dk uke & ASHRAF ALI KHAN jkSy ua0 & 22 firk dk uke &JAHANGEER KHAN Nk= dk uke & ASHRAF ALI KHAN tUe frfFk & 03-01-1968 firk dk uke &JAHANGEER KHAN dqy izkIrkad ds txg ij dkxt dkQh iqjkuk tUe frfFk & 03-01-1968 jgus ds dkj.k QksYM iM+ x;k gS] ijUrq dqy dqy izkIrkad & 547/1st Div. vadks dks tksM+us ij dqy izkIrkad & 547@1st fo|ky; dk uke & feYyr ,dSMeh] leLrhiqj Div. gksrk gSA ¼DTR esa fizaVsM ugha gS] cfYd gLrfyf[kr gS ½ fo|ky; dk uke & vafdr ugha gSA dksVh & Regular dksfV & Regular

mDr Nk= dk mDr ijh{kk esa ijh{kkQy iwoZ esa viw.kZ Fkk ftls VScys"ku ds i"pkr iw.kZ dj dqy izkIrkad 547@izFke Js.kh ls mŸkh.kZ gq, gS ftldk ewy izek.k& i= la[;k & 264801] fnukad 06-03-1991 lfefr vfHkys[k (DTR) esa fuxZr ,oa vafdr gSA 5- f"kdk;r dŸkkZ Jh txnh"k egrks }kjk oknh Nk= v"kjQ [kku dk nks ckj ijh{kk mŸkh.kZ gksus ds laca/k esa yksd lwpuk ds varxZr yksd lwpuk inkf/kdkjh lg iz[kaM xzke iapk;r jkt inkf/kdkjh] dY;k.kiqj] leLrhiqj ds dk;kZy; esa nk;j okn la[;k & 44297@10&11 esa vij lekgŸkkZ ftyk& leLrhiqj ds funs"kkuqlkj voj fUkjh{kd dY;k.kiqj Fkkuk ftyk & leLrhiqj ds }kjk fo'k;&oLrq dh foLr`r tk¡p dh xbZ ftlesa muds }kjk ;g ik;k x;k gS fd Nk= v"kjQ vyh [kku firk & eks0 tgk¡xhj [kku] jkSy dksM&6307] Øekad & 22 o'kZ & 1983 ¼Annual½ ,oa oknh Nk= v"kjQ [kku firk & eks0 tgk¡xhj [kku] jkSy dksM& 6302] Øekad & 09] o'kZ& 1995 ¼Supp.½ ,d gh Nk= gSA tk¡p izfrosnu dks vij lekgŸkkZ ds }kjk vfHkizekf.kr ¼ATTESTED½ Hkh fd;k x;k gS ¼tk¡p izfrosnu dh Nk;kizfr layXu½A 6- mDr tk¡p izfrosnu ds vk/kkj ij lfefr dh fofu;ekoyh & 1964 dh /kkjk ¼V½ dh dafMdk&19 esa fufgr izko/kkuksa ds varxZr Nk= dk nwljk ijh{kkQy vFkkZr Nk= v"kjQ [kku] firk& eks0 tgk¡xhj [kku] jkSy dksM& 6302] Øekad& 09 iwjd ek/;fed ijh{kk] 1995 dk izdkf"kr ijh{kkQy dks lfefr }kjk jÌ dj fn;k x;k gSA 7- ;|fi oknh Nk= v"kjQ [kku firk & eks0 tk¡xhj [kku] jkSy dksM&6302] Øekad& 09] iwjd ek/;fed ijh{kk o'kZ& 1995 esa lfEefyr gksdj mŸkh.kZ gq, gS ,oa mudk izek.k i= lgh gS ijUrq ;g ekeyk ,d gh ijh{kkFkhZ dk nks vyx&vyx ijh{kk o'kksZ esa vyx&vyx fo|ky;ksa ls viuk uke] firk uke esa ekewyh cnyko dj ,oa tUefrfFk esa yxHkx 09 ¼ukS½ o'kZ ?kVkdj voS/k rjhds ls ijh{kk esa lfEefyr gksdj mŸkh.kZ gksus ds dkj.k lfefr ds fu;ekoyh ,oa lfefr ds fu.kZ; ds vkyksd esa muds }kjk fn;s x;s ckn dk ijh{kk ¼1995 iwjd ijh{kk½ dk ijh{kkQy jÌ dj fn;k x;k gSA fo"oklHkktu g0@& ijh{kk fu;a=d ¼ek/;fed½ fcgkj fo|ky; ijh{kk lfefr] iVuk"

17. On the face of the finding recorded by the Board,

this Court finds no reason to record its own finding on the basis of Patna High Court CWJC No.2774 of 2014 dt.09-08-2023

mere submissions of the petitioner. This Court sitting under

Article 226 of the Constitution of India would not act as a fact

finding Court in such disputed matters where the Board has twice

conducted the inquiry and came to the same and one finding.

18. In result, this Court finds no merit in the writ

applications. The order terminating service of the petitioner is only

a consequential order because his certificates are not genuine and

the Board has cancelled those certificates which were the basis of

getting his appointment.

19. Thus, both the writ applications as well as the

contempt application have no merit and are dismissed accordingly.

(Rajeev Ranjan Prasad, J) SUSHMA2/-

AFR/NAFR
CAV DATE
Uploading Date             10.08.2023
Transmission Date