S.S. Sandhawalia, C.J.

1. Whether a public servant is entitled to a writ of mandamus for the payment of salary to him for work done despite the fact that his letter of appointment was forged, fraudulent or an illegal one -- is the significant question in this set of 13 connected writ petitions referred for an authoritative decision to the Full Bench. Equally at issue is some cleavage of judicial 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4813 of 1985, (Rita Mishra v. Director, Primary Education) which now remain for adjudication as the other cases were withdrawn at the close of arguments.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 procedure of advertisement, selection, etc., would prepare a list of selected candidates and submit the same to the Regional Deputy Director, who was required to carefully scrutinise the same and forward it to the Divisional Commissioner for his approval. The list of such approved candidates was then required to be sent to the District Superintendent of Education who was to issue the appointment letters strictly according to the serial number of names mentioned in the approved list. In view of the International Handicap Year 1981, by another order 50 per cent of the existing vacancies were earmarked to be filled up by handicapped persons and with certain marginal modifications the prescribed procedure was equally applicable to them. It would appear that there were a very large number of vacancies running into a thousand or more against which the appointments were made. However, later, it came to the notice of the authorities that certain forged and bogus letters of appointment had been engineered on the basis of which some per sons were claiming to have been appointed and were making a demand for the payment of their salaries. A searching enquiry was consequently got conducted which revealed that Shri Bhola Ram, the District Superintendent of Education, Sahebganj, who was the kingpin of a conspiracy, had, in consideration of illegal gratification received, engineered the issuance of innumerable forged, bogus and fraudulent letters of appointment and unauthorised persons were allowed to join the teachers posts by dubious means. Consequently, the said Bhola Ram was suspended and a criminal case against him for serious offences was registered. Later investigations disclosed the collusion and connivance of other local officers apart from the appointees to the posts and a charge-sheet was submitted also against Shri Gopi Krishna Jha Deputy Inspector of Schools, Sahebganj. Shri Chandra Mohan Singh, Block Education Extension Officer, Pakur. Shri Anandi Lal Foddar, clerk in the office of the District Superintendent of Education, Sahebganj, Shri Nishi Kant Jha, Headmaster, and a number of others for being party and privy to a deep-rooted and wide-ranging criminal conspiracy in the whole transact ion. The said criminal case is apparently yet under trial.

3. The writ petitioners herein belong to the dubious class of the aforesaid appointees to the posts of elementary 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 would appear that the salary bills of the petitioners are being withheld. Consequently the present writ petition has been filed primarily claiming a writ of mandamus commanding the respondents to pay the salary to the petitioners for the period for which they have worked prior to the issue of the termination letters of their services. Reliance is placed on a number of interim orders passed by this Court that if the petitioners have worked either under legal or illegal appointment letters, they must nevertheless be paid.

4. In the detailed counter-affidavit filed on behalf of respondent No. 4, the undisputed factual position culminating in the prosecution and the pendency of a criminal trial against Bhola Nath, the then District Superintendent of Education, Sahebganj, and his co-conspirators, is reiterated. The categoric stand taken is that not even one of the five writ petitioners, who have herein joined together, was ever considered or selected by the District Selection Committee or the District Establishment Committee, as the case may be. Not one of their names finds place in any of the selection lists, far from the approved lists at all. It is firmly averred that the mandatory procedures for the appointment of elementary school teachers qua the petitioners far from being adhered to have not even been remotely complied with and consequently, the purported appointments on this score also are wholly unauthorised, illegal and invalid. Equally it is pointed out that the petitioners names at no stage were considered by the Regional Deputy Director of Education, nor ever approved by the Divisional Commissioner, which was a prerequisite for an appointment. The overall stand of the respondent State, therefore, is that the present petitioners were equally colluding or conniving in the wide spread conspiracy and the appointment letters are forged and wholly frivolous and bogus. Consequently, the very appointment letters being not forthcoming and being wholly non est neither any right to work against the posts nor any claim for salary therefore could possibly be maintainable in writ jurisdiction. It is highlighted that the petitioners, far from producing the appointment letters, which are the sheet-anchor of their claim, have neither mentioned the date of the appointment letters, nor the appointing authority, nor the alleged place of posting, which apparently goes 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 months 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 cumbersome. Nevertheless, the respondent State is categoric in its stand in Para 19 of the counter-affidavit that none of the petitioners was ever appointed to any post or paid any salary and indeed the question of their working and the claim of any salary does not arise at all. Equally dogmatic are the assertions in Paras 23 and 24 of the counter-affidavit that the petitioners were never posted at any point of time as teachers and that they never worked at any school whatsoever, and, thus, the question of serving under the respondents at no stage arises at all. The concluding stand of the respondent State is in the terms following : --

"As stated earlier, these petitioners were never appointed by the State Government, rather their appointment is an outcome of fraud committed by these petitioners. Hence the same is not available to them. It is also wrong to say that the respondents have no power to terminate them. The termination has been ordered by the State Government itself and done by competent authority hence termination is unavoidable."

Basic reliance on behalf of the respondent State is placed on the Division Bench judgment in Diwakar Prasad Yadav v. Slate of Bihar 1986 PLJR 873. [LQ/PatHC/1986/83] Therein the issue of termination of service simpliciter in such like cases came front ally for consideration and, whilst dismissing the writ petitions, B. P. Sinha, J., speaking for the Bench, concluded as follows, in reply to the three distinct issues posed therein : --

"To sum up, I find and hold that the petitioners of these writ applications have not been validly appointed. They cannot challenge the impugned orders on the ground of alleged violation of principles of natural justice. I also hold that they are not entitled to any direction for payment of arrears of their salary for the period they claim to have worked."

6. On the aforesaid finding, the firm stand on behalf of the respondent State is that the termination of the petitioners services is unassailable and no right to salary can possibly flow from a forged, fraudulent or illegal order of appointment, and, in any case, such a relief cannot be claimed by way of a mandamus in the limited confines of the writ jurisdiction.

7. Now it is manifest that the narrow and limited claim in these writ petitions is that irrespective of the invalidity or the petitioners letters of appointment, 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 view once rendered was inevitably followed later at the motion stage and a number of similar orders have been passed in accord therewith. This view, however, has been seriously and front ally challenged on behalf of the respondent State necessitating this reference to the larger Bench for pointedly adjudicating on the significant issue.

8. Now, on behalf of the petitioners a tall claim has been pressed that even assuming that the letters of appointment of the petitioners were forged or obtained by fraud or are illegal, yet they are entitled to a writ of mandamus commanding the respondents to pay their salary for the period of actual work done. It had, however, to be conceded that no considered precedent can be cited in support of this blanket stand. Learned counsel, however, had to go to the logical length of saying that howsoever grave the infirmity in the letter of appointment may he and irrespective of the fact that the transaction may amount to a punishable crime, the salary for the period of work done could not be denied and further that the forum therefore was the writ jurisdiction and the relief of mandamus directing the payment of money due.

9. With the deepest respect, it seems to me that on principle the aforesaid stand has only to be noticed and rejected as wholly untenable. However, since the issue has been pressed with great vehemence before us, and support therefore does appear in the somewhat cryptic though axiomatic observations in a number of interim orders passed at the motion stage within this High Court, it becomes necessary to extend the compliment or a rational refutation thereto.

10. It would perhaps be apt first for the sake of clarity to consider the issue seriatum in the declining order of gravity. Here we are primarily concerned with three categories and one may examine the issue separately in the context whether the appointment letters are either-

(i) expressly forged and thus amounting to a crime;

(ii) have been obtained fraudulently or for dubious considerations but not amounting to a criminal offence; or

(iii) are otherwise illegal being flagrantly violative of the statutory procedure prescribed for selection and appointment.

11. Taking up the first category of appointment letters which are established to be forged, it would perhaps appear that this is further divisible into two sub-categories, 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 surpirsed 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 legal right to validly hold the post for which salary is claimed. It is indeed a right consequential to a valid appointment to such post. Therefore where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. Consequently if the very foundational right to hold the post is fouled by the crime of forgery, no consequential right to salary can possibly emanate therefrom. In such a situation the question is not that the appointee allegedly purported to work against the post on the basis of a forgery but the real question is whether he was at all entitled to so work and has lawfully worked thereon. The litmus test would be whether when specifically challenged, the claimant can show and uphold his lawful right to the post and thereafter alone can he possibly seek the ancillary claim of salary flowing therefrom.

12. I may at the very outset narrow down the field and pinpoint that herein we are dealing with public service alone and not a private one. It is by now well settled that governmental or public service though originating in contract becomes wholly statutory in status when the appointee enters the portals thereof. It is unnecessary to dilate on this aspect because it is well settled both on the principle and on an unbroken line of binding precedent. Way back in : AIR 1967 SC 1889 [LQ/SC/1967/228] , (Roshan Lal Tandon v. Union of India) the Constitution Bench had held as follows : --

"..... It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee..... But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service 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 crimes of this nature. Both forgery under Section 463 and the making of a false document under Section 464 are couched in the widest terms. Equally well it is to recall the earlier definition of valuable security in Section 30 of the said Code. This wide ranging definition denoting it, (which is important for our purpose) as a document, whereby any legal right is created, extended, transferred, extinguished or relinquished, is again framed so broadly that a letter of appointment creating a legal right to the post would come within its ambit. How gravely the law disfavours the serious aspects of the crime is manifest from the fact that more grievous forms of forgery under Sections 467, 474 and 475 are made punishable with imprisonment for life. Once that is so, could it possibly be said that a person, who is guilty of a crime of this nature and is liable to punishment therefor, can, nevertheless, come in the writ jurisdiction and claim the right to salary on the basis of a document which steeps him in serious guilt The answer must obviously be rendered in the negative.

15. To sum up on this aspect it seems somewhat plain that where the letter of appointment is a forgery and the appointee is a partly and privy to the same, no substantive right of salary would arise, however, long the person may have fraudulently worked on the post in actuality. To my mind, no legal right can stem from a crime herein because of the original factum of forgery. Such a person is not an employee at all and far from being a public servant in the eye of law. Even if on the basis of a forged letter he has imposed himself on the post and worked thereon, he cannot take advantage of his own wrong, because he would not have worked lawfully thereon. Even in a suit under Section 70 of the Contract Act the requirement is that the claimant had lawfully done something not intending to do it gratuitously and in the absence of such lawfulness even in that forum the plaintiff might well be defeated. That being so the legal position in the case of a forged appointment letter, to which the appointee is himself a party and privy, is clear and categoric and no substantive right to salary whatsoever can accrue therefrom, far from the same being claimable by way of mandamus in the writ jurisdiction.

16. As regards the sub-category, where the appointment letter is established to be forged 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 for work done may be kept in sharp focus. The two are separate and distinct. In fairness to the learned Advocate-General, I must notice that he rightly highlighted the uphill task even in a civil suit because it is not easy to establish that a person in whose favour entirely a forged document is and who is the sole beneficiary thereof, would be wholly innocent of its true nature. It was, therefore, rightly pointed out that even a claim for compensation in such a situation could be sustained only if the bona fides of the claimant are firmly established as a question of fact that he was wholly unaware of the factum of forgery and the nature of the document and, therefore, worked against the post in perfect good faith. The onerous burden of proof in this situation would lie entirely upon the claimant Plainly enough these are tangled and contentious issues of fact, which can, if at all, be determined in a well contested and well fought out suit in the civil forum only. These are matters far remote and removed from an adjudication in the extraordinary writ jurisdiction.

17. I may now advert to Cagegory (ii) (enumerated in Para 10) where the letter of appointment has been obtained fraudulently or for dubious considerations. One may only consider the less graver situation where such fraud or dubiousness may be civil in nature but is not aggravated enough to come within the ambit or criminality and cheating as defined in Sections 415 and 416 of the Indian Penal Code and may be punishable under Sections 417, 418, 419 and 420 thereof. Even in such a situation it seems to me that if fraud or dubious considerations stand established, then in the eye of law no right or remedy can stem from such a fraudulent base. Generically, it is a maxim of law that fraud vitiates everything Reference in this connection may be made to the larger principles of contract which underlie Sections 17, 19, 23 and 24 of the Contract Act. It is well settled that both suggestio falsi and suppressioveri under Section 17 of the Contract Act defining fraud would go to the root of the agreement and would invalidate the same. Even in the realm of contract where the rule of caveat emptor or the principle of law-- let the buyer beware -- applies, still if active concealment of fraud is established, the contract would stand vitiated Again under Section 23 of the Contract Act if the consideration 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 [LQ/SC/1963/209] .

17-A. It is unnecessary to multiply authority and there is no dearth thereof that fraud would thus vitiate even bilateral rights arising from a contract. Once it is so held rights springing from law and status and the high pedestal of public employment having a statutory base deserve even greater protection and sanctity. Consequently, it must be held in no uncertain terms that where source of the right is rooted in fraud or established dubious considerations, no right stricto sensu for salary could arise and far less be enforceable by way of manmus in the writ jurisdiction.

18. Adverting now to the last Category (iii) where the letter of appointment is illegal being flagrantly violative of the statutory procedure prescribed for selection and appointment, again the position does not appear to be materially different It bears repetition and reiteration that the statutory right to salary in public service stems from the legal right to bold the post If it is once held that the very threshold stage of appointment is illegal then there is in the eye of law no appointment to the post or entry into the public service. The door stands barred and slammed in the face of such an intruder. It was contended forcefully that where the procedural requirements of selection and appointment are statutory and have not been complied with at all there is no appointment in the eye of law. Consequently, no right of salary stricto sensu can arise before the very threshold stage is tainted with illegality. The learned Advocate-General was thus right in the firm stand he took that where the original appointment is void ab initio then no question of salary for the post accruing therefrom can possibly arise. Firm reliance was placed by him and, in my view, rightly on University of Kashmir v. Dr. Mohd Yasin : AIR 1974 SC 238 [LQ/SC/1973/323] for contending that an appointment contrary to and in opposition to the teeth of the law cannot confer any legal rights. Therein even an appointment contrary to the statutory provision by so high an authority as a Vice-Chancellor of the University was held to be non est and no theory of factum valet was allowed to be countenanced with the following categoric observations : --

"The ground urged successfully, as it were, before the High Court, of an implied engagement cannot in our view, be sustained. When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement dehors the provisions and powers under the 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 Courts order of reinstatement is quashed."

19. I read the aforesaid enunciation and the ratio of the said judgment as conclusive on the point that an appointment flagrantly contrary to statutory requirements is non est and cannot be validated on any theory of factum valet.

20. On behalf of the petitioners much store was set on the allegation that one of the letters of appointment bore an endorsement by the District Superintendent of Education and allegedly the Headmaster may have allotted some work to one of the petitioners on the basis of the purported letter of appointment It was contended that having allegedly worked on the post salary stricto sensu was claimable for the period.

21. I may highlight that every material factual averment made on behalf of the writ petitioners has been hot by controverted and contested on affidavit by the respondent State.

22. However, as a matter of law even assuming (though without remotely holding) that the letter of appointment may have borne an officials endorsement or the Headmaster misled by the purported authority of such a document may have allocated some work, it would make no material difference to the legal situation. If once the order of appointment is clearly illegal, the ancillary considerations, so far as the strict right to salary is concerned are of no great relevance.

Learned Advocate-General placed reliance on Section 227 of the Contract Act for pinpointing that the ordinary law of agency is not applicable in its totality in State transactions. Particular reliance was placed on Shalimar Paint Colour and Varnish Co. Ltd v. Chief Secy. to Govt. of Travancore Cochin ILR (1954) ker 453 : AIR 1955 ker 4125 holding that if the State has not authorised its agent then the State cannot possibly be bound therefor. Even nearer home, it is now well settled that the State cannot be bound down by the unauthorised acts of its employee -- far from it being so, bound by acts which are plainly illegal No concept of promissory estoppel arises against the State if its servants either act beyond the scope of their duty or contrary to its directions or standing administrative instructions. This aspect has been recently examined by the Full Bench in Chetlal Sao v. State of Bihar : AIR 1986 Pat 267 [LQ/PatHC/1985/370] : 1986 BBCJ 109 wherein after considering both principle and precedents it has been held as under : --

"To conclude on this aspect, 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 violative of the statutory procedures prescribed for selection and appointment, the same would be illegal and there being no valid appointment in the eye of law, no consequential right to salary stricto sensu would arise. In any case, no writ of mandamus can possibly be claimed in such a situation.

25. Having dealt above with the aspect of the substantive right to salary stricto sensu in the aforesaid situation, one may now embark upon its procedural aspect in detail which appears to me of not only equal but even of greater importance. The writ petitioners herein, irrespective of the invalidity or illegality of the letter of appointment and equally of the termination of their services or otherwise, claimed a writ of mandamus commanding the respondents to pay the salary for the alleged work period in the following terms : --

"It is, therefore, prayed that your Lordships may be graciously pleased to issue rule nisi calling upon the respondents to show cause as to why a writ in the nature of writ of mandamus or any other appropriate writ, order or direction be not issued directing them to pay the salaries of the petitioners and also arrear of salaries due to them....."

Now the claim for the aforesaid relief goes to the root and scope of a mandamus in the writ jurisdiction. Even at the risk of some prolixity, it becomes necessary to reiterate the same because of the vehement claim raised on behalf of the petitioners and some precedent to the contrary within the Court

25-A. The primary scope and function of writ of mandamus has been pithily expressed in the phrase that this writ is issued to command and execute; and not to inquire and adjudicate. It is not to establish a legal right but to-enforce one. It is only where the legal public duty is clear, unqualified and specific that a writ of mandamus can be truly claimed. It is not to be granted where the claim of the petitioner has, in fact, to be first established and adjudicated upon before it can be enforced. As in the present case, a frontal challenge is laid to the petitioners claim on every aspect and the averments on their behalf are sought to be controverted at every step. It is manifest that first the petitioners claim has to be gone into, adjudicated and then established. That obviously is not scope of a writ of mandamus. Ferrls in the Law of Extraordinary Legal Remedies has said : --

"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 hot 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 Halsburys 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 some duty which the law imposes on him, and the writ may prohibit the doing of a thing, as well as command it to be done."

26. It is evident from the authoritative exposition of the law that the sine qua non for the issuance of a writ of mandamus is the existence of a statutory or a public duty devolving upon the person or the body against whom or which the said writ is directed. Equally settled it is that along with this must co-exist a corresponding right in the petitioners who were entitled to claim the enforcement of the said statutory public duty. Unless these two pre-conditions are satisfied, the requisite foundation for the issuance of a writ of mandamus can hardly be said to exist Applying the twin test in the present context, I am of the view that neither one stands satisfied. The learned counsel for the petitioners were wholly unable to pinpoint even a single statutory provision which imposed upon the respondents any statutory public duty to pay the salary, where the very appointment of the petitioners may well be forged, fraudulent or illegal Equally no provision can possibly be pointed out which would inhere in the petitioners an established enforceable right to the relief which they seek to claim.

27. I would refrain from enlarging the examination of the issue on principle because it seems to me that the matter is equally well covered by binding precedent On the scope and nature of the jurisdiction in a writ of mandamus it would suffice to recall the following observations of their Lordships in Lekhraj Sathramdas Lalvani v. Dy. Custodian-cum-Managing Officer, Bombay : AIR 1966 SC334 :--

"But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Article 226 of the Constitution The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties, prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdiction. In the present case, the appointment of the appellant as 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 jurisdiction is not and cannot be made a substitute for a regular trial by way of asuit for determination of contentious matters in which the parties are diametrically opposed on material facts. This indeed is a reason for declining to exercise the discretionary writ jurisdiction in cases where intricate and disputed questions of facts are raised unless of course as a very exceptional measure, the writ Court itself proceeds to record evidence and then arrives at a finding thereon. Apart from the fact that this is rare and is indeed resorted to for very special reasons, it is elementary that the Court would then allow the parties the right of leading evidence, production and cross-examination of witnesses and the rebuttal thereof in order to arrive at a considered finding of fact This is the position generically in the writ jurisdiction and, in my view, it would be doubly so when a writ of mandamus is sought to be claimed. As was noticed earlier, a mandamus issues only to enforce an unqualified established right and not where the petitioners claim has to be first adjudicated and thereafter established. It is unnecessary to multiply authorities because way back in Union of India v. T. R. Varma : AIR 1957 SC 882 [LQ/SC/1957/91] , Venkatarama Aiyer, J., speaking for the Court, observed as follows :--

"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 respondent to a suit"

The aforesaid view has never been deviated from and, indeed, has been reiterated times out of number and reference may instructively be made to D. D. F. Housing Construction (P.) Ltd v. Delhi Municipal Corpn. : AIR 1976 SC 386 [LQ/SC/1975/497] , Arya Vyasa Sabha v. Commr. of Hindu Charitable and Religious Institutions and Endowments, Hyderabad AIR 1976 SC 475 [LQ/SC/1975/471] (Para 3), P. Radhakrishna Naidu v. Govt. of Andhra Pradesh : AIR 1977 SC 854 [LQ/SC/1976/484] (Para 14) and Guru Nanak University v. Dr. (Mrs.) Iqbal Kaur Sandhu (FB).

29. Lastly, in this context one must hearken back to an equally hallowed rule that those who come to invoke the extraordinary jurisdiction must come with clean hands. This is a principle of long standing derived from the old equity jurisdiction as well. 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 a slippery base. Equally where the petitioners do not come to the portals of the writ Court with clean hands, they must be relegated to their ordinary remedies by way of civil suits.

32. Somewhat curiously learned counsel for the petitioners attempted to seriously invoke Article 23 in their aid It was sought to be contended that denial of salary amounts to begar and forced labour on the assumption that the petitioners may have worked on the post It was submitted that refusal of remuneration therefore would straightway be a violation of Article 23. Basic reliance herein was sought to be placed on Suraj Narain v. State of M.P. , Peoples Union for Democratic Rights v. Union of India : AIR 1982 SC 1473 [LQ/SC/1982/137] and in the matter of Prison Reforms Enhancement of Wages of Prisoners : AIR 1983 Ker 261 [LQ/KerHC/1983/118] .

33. Since the argument aforesaid was somewhat seriously pressed and pertains to a fundamental right, it becomes necessary to examine it somewhat closely. Article 23 is in the terms following : --

"23. Prohibition of traffic in human beings and forced labour.-- (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes and in imposing such service "the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them."

Even a plain reading of Clause (1) thereof would make it manifest that it pertains to three aspects and nothing more, namely, (i) traffic in human beings, (ii) begar and (iii) other similar forms of forced labour. Plainly enough no question of traffic in human beings arises in the present situation and, indeed, it was not even remotely so argued The basic issue, therefore, is whether a mere refusal of contractual or status remuneration would be begar or forced labour. The word begar has not been defined in the Constitution itself but it is sought to be defined by Molseworth as "labour or service exacted by a Government or a person in power without giving remuneration for it". Again in Wilsons Glossary it is described as-

"forced labour, one pressed to carry burden for individuals or public, under old system when pressed for public service no pay 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 human beings and begar. This is now no longer tenable in view of the recent precedent in Peoples Union for Democratic Rights v. Union of India : AIR 1982 SC 1473 [LQ/SC/1982/137] . Therein the word forced has been liberally construed so as to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice or alternative to a person in want and compels him to provide labour or service. However, even keeping that in mind, a degree of involuntariness and compulsion is still inherent in the concept of forced labour under Article 23. Consequently, the very basis of a voluntary agreement either by contract or status and the seeking and joining of government service would negate the concept of begar or forced labour. Therefore, the issue herein is whether the respondent State has forced and compelled anyone to work or labour for it. The learned Advocate-General was eminently right in contending that in these cases the boot is on the other leg and it is the petitioners who, on the basis of forged, fraudulent and illegal letters of appointment claim to have thrust and imposed themselves upon the State and entered wrongfully in the precincts of public service. It was highlighted that far from being forced to work the State Government in the eye of law had never even offered them to work and there was no appointment as such. Consequently, the very sheet anchor of An. 23 in the context of forced labour even when most liberally construed would disappear.

35. Now apart from principle, any notion of begar or forced labour in the field of civil service, to my mind, is authoritatively negatived by the Constitution Bench in S. Pratap Singh v. State of Punjab : AIR 1964 SC 72 [LQ/SC/1963/209] in the following words :

"The services to be rendered by the Government servant subsequent to such an age, in view of Rule 3.26(d), is in no sense a service which can be equated with the expression begar or forced labour in Article 23. The appellant is not forced to do any work."

Again in Dubar Goala v. Union of India : AIR 1952 Cal 496 [LQ/CalHC/1951/288] , Bose, J., had occasion to consider the concept of forced labour and begar under Article 23 and concluded as under :--

"Coming now to the question whether the work done by the petitioners can be regarded as begar or forced labour within the meaning of Article 23(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 theirwork beinga forced labour."

36. Learned counsels 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 petitioners 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 Rules aforesaid is that Article 23 of the Constitution prohibits begar. He then proceeded to hold additionally that the stoppage of salary was not only against the Rules but also offended against the spirit of Article 23 of the Constitution. With respect, the 4-line observation in this context was made as a dictum without citing principle or precedent in its support. It is manifest that the issue was not even raised far from being debated before the Court. On behalf of the respondent, the learned Advocate-General front ally assailed this as an unwarranted extension of an altogether different concept, rooted as it is in the history of the country and the concept of the involuntary and compulsive forced labour even when liberally construed. With respect the solitary observation in this case cannot be easily subscribed to and I would wish to record my dissent therefrom.

37. Reliance of the learned counsel for the petitioners on Sanjit Roy v. State of Rajasthan : AIR 1983 SC 328 [LQ/SC/1983/29] which, in turn, followed and reiterated : AIR 1982 SC 1473 [LQ/SC/1982/137] (supra) is yet again misplaced. These judgments are only authority for the proposition that if a person faced with the spectre of famine and death by starvation or by similar compulsions is forced and compelled to work for wages below the statutory minimum prescribed by the Minimum Wages Act then the same may well come within the meaning of forced labour under Article 23. In the end their Lordships in terms spelt out this ratio in the following words :--

"We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words forced labour under Article 23."

To my mind, extending the aforesaid enunciation to the illogical length that a person may forge or fraudulently obtain a letter of appointment and by false pretences impose his services on the unwary State and when discovered in his crime or duplicity, he may turn round and say that Article 23 is violated, appears to me as bordering on the farcical.

38. Equally no aid can be derived by the petitioners from : AIR 1983 Ker 261 [LQ/KerHC/1983/118] , (In the matter of Prison Reforms Enhancement of Wages of Prisoners) which followed in the foot-steps of the aforesaid two Supreme Court cases. This was a case 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 teachers claim for salary or remuneration is not the equivalent or the analogy of a convicted persons 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 [LQ/SC/1986/16] . 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 equal work to the present case.

40. Yet again Article 21 was sought to be invoked by the petitioners on the basis of Olga Tellis v. Bombay Municipal Corpn. : AIR 1986 SC 180 [LQ/SC/1985/219] for contending that the right to life included the right to livelihood Here again I find both the said case and the principle of the right to livelihood irrelevant to the issue.

41. Reliance was lastly placed on Gokaraju Rangaraju v. State of Andhra Pradesh : AIR 1981 SC 1473 [LQ/SC/1981/237] which case pertains to the de facto theory of holding a post and held that even where the appointment of a Sessions Judge was not sustainable de jure, the work done and the judgments rendered by him would nevertheless not be vitiated owing to the reason of his having held such post in a de facto capacity. This judgment can possibly be no authority for the proposition that a person having a forged, fraudulent or illegal letter of appointment holds the post de facto and is consequently entitled to salary. With respect 1 am unable to find what aid can be derived by the petitioners from the ratio of the aforesaid case. However, even here the learned Advocate-General rightly distinguished it and pointed out that even on this basis the only result would be that the teaching work, if any, at all done by the petitioners would not be deemed to be vitiated Just as in the said case judgments rendered would not be void, so in the present case with regard to students it could not be said that they had not been taught at all.

42. Repelled on all other fronts learned counsel for the petitioners had then clutched at a straw by relying on a solitary cryptic observation of Sarwar Ali, J. in Bijoy Kumar Bharti v. State of Bihar 1984 B.B.CJ. 335 (HC) : 1983 Lab IC 1884 (FB) observing that such appointees cannot be deprived of their right to receive salary etc. provided they have worked on the post on which they were appointed (at page 348 of B.B.CJ.) : (at p. 349 of Lab. I. C) of the Report. It would appear that the observation was made in the contest of irregular appointment though, as a matter of somewhat loose terminology, the word "illegal" was also used along therewith. It is, however, more than manifest that the issue of salary was not even remotely before the Pull Bench in the said case. In the very opening part of the judgment Sarwar Ali, J. himself noticed that only two controversies therein arose, firstly that whether certain 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 imployees, 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 as a dictum. It is thus clear and manifest that the said observation cannot even remotely be the ratio of the judgment and is entirely an obiter dictum. One has to remind himself of the hallowed rule enunciated by Halsbury in Quinn v. Leathem 1901 AC 495 that what is of essence in a decision is the logic, reasoning and ratio and not every observation found therein nor all that may logically flow from the observations made therein. This has been expressly approved in State of Orissa v. Sudhansu Sekhar Misra : AIR 1968 SC 647 [LQ/SC/1967/319] with the added warning that it is not profitable task to extract a sentence here and there from a judgment and to build upon it It is thus manifest that solitary, isolated and passing observation by one of the learned Judges in the Full Bench aforesaid on a matter, which was not even remotely before the Bench and was neither argued nor adjudicated upon and for which no principle or precedent has been cited is totally an obiter dictum and not even remotely a ratio of the Full Bench. No aid can, therefore, be derived therefrom by the learned counsel for the petitioners.

43. Lastly, a faint attempt was made on behalf of the petitioners to refer to the provisions of Section 70, Contract Act, for contending (on the assumption that the petitioners had worked on the posts which, however, is categorically controverted by the State) that the petitioners could not possibly have intended to work on the posts gratuitously and the State was, therefore, bound to pay compensation to them in respect thereof. This stand, to my mind, boomerangs severely on the petitioners. It is more than well settled that Section 70, widely couched as it is, is rested on the larger principles of quasi-contract, unjust enrichment and of restitution. These are matters which can indeed only be determined in a well contested suit on the basis of the evidence adduced. They are indeed things alien to a writ jurisdiction. It is not the scope of mandamus to assess and determine compensation for allegedly quasi-contractual rights or the infraction of the rule of unjust enrichment in the alleged claim of services rendered not gratuitously. Even in the context of civil suit the learned Advocate-General highlighted that in order to succeed the plaintiff must show that he had lawfully worked or done something to claim relief. It was forcefully argued that the word lawfully 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 petitioners, which indeed had necessitated this reference to the Full Bench. No considered judgment on the point could be brought to our notice but there is no gainsaying the fact that a number of motion orders of the same tenor were passed which were (mechanically) followed thereafter. As a representative order reference may be made to Md. Hussain v. State of Bihar (CW.J.C 5451 of 1984) dated 12-2-1985. Undoubtedly, this would give more than ample support to the stand of the petitioners because it was observed therein as under :

"It goes without saying that if the petitioners have worked either under legal or illegal appointment they must be paid."

With deepest respect the aforesaid dictum only pinpoints the pitfalls which lie in the way of summarily disposing of the significant and wide ranging legal issues at the motion stage itself. A reading of the short order would indicate that there is not even a hint of either principle or precedent for holding summarily that salary must be paid for all illegal appointments as well. It is significant that the firm stand in that case also on behalf of the State was that a large number of persons had been unauthorisedly and illegally appointed by the District Superintendent of Education, Sahibganj, and further that they had even not worked at their posts, nevertheless a mandamus in the aforesaid terms was issued For the detailed and somewhat exhaustive reasoning given earlier I am of the view, with great respect, that no such axiomatic or all pervading dictum could be laid down nor a relief by way of mandamus could be granted where the basic stands on both appointment and working were denied on behalf of the respondent State. With great deference the order does not lay down the law correctly and is hereby overruled. It is unnecessary to advert individually to a host of other similar orders passed by other Benches following and taking the same view. With respect it has to be held that they are not good law and are hereby overruled.

45. In this somewhat exhaustive judgment it is indeed apt if not necessary to collate the basic conclusion arrived at. In the light of the aforesaid discussion it is subsequently held :--

(1) Where the letter of appointment is a forged one and the appointee is either a party or a privy thereto, then no substantive right to salary can accrue therefrom.

(2) Where 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 precribed 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) Where the petitioners had not come to the portals of a Writ Court with clean hands, they must be relegated to their ordinary remedies.

(7) That Article 23 of the Constitution is not attracted in a situation of statutory service, where the letter of appointment is forged fraudulent or illegal.

(8) That the doctrine of equal pay for equal work is not at ail attracted to the case.

(9) That Article 21 of the Constitution or the right of livelihood thereunder has not the remotest analogy to the particular context.

(10) That the de facto doctrine of working on a post is distinct and separate and cannot possibly be invoked to sustain any claim for salary stricto sensu, where the very appointment thereto is in serious doubt.

46. To finally conclude on the legal aspect, the answer to the question posed at the very outset is rendered in the negative and it is held that the public servant is not entitled to a writ of mandamus for the payment of salary to him for any work done in the event of his letter of appointment being forged fraudulent or illegal.

47. The findings aforesaid would conclude the case against the petitioners as a matter of law. However, even assuming entirely as a matter of argument (without in the least holding so) that a writ could possibly issue, not the least ground for its grant has been made out on merits herein. Turning first to C.W.J.C. 6061 of 1985 (Ram Mohan Mandal v. The State of Bihar) it bears repetition that the categoric stand on behalf of the respondent State is that the names of all the five petitioners at no stage figured in the selection list prepared by the District Selection Committee or the District Establishment Committee. Nor were the names forwarded to the Regional Director and consequently no question of their approval would arise. Thus the respondent States firm stand is that no letter of appointment was issued in favour of any of the petitioners by any competent authority and consequently there is no appointment in the eye of law. Further it is the stand that no posting order was ever made by the State nor any one of the petitioners joined at any particular place of posting or served there and no question of paying any salary to them arises.

48. It is against the aforesaid pleadings of the respondent State that the learned Advocate-General forcefully contended that despite 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 petitioners in reply was that the forwarding memo below the letter purported to be signed by one Bhola Ram. Herein again it was pointed out on behalf of the respondent State that annexure 4/1 was dt. 14th Sept., 1983 purporting to direct the petitioners to join on the 25th Sept., 1983. However, in the writ petition the averment in para 8 was that the petitioners who were previously being paid their salary were denied such salary in the month of October, 1983. On behalf of the respondents it was, therefore, highlighted that on the petitioners own showing there could hardly be any question even of the payment of salary prior to October, 1983 and the whole thing was fraudulent because no question of any payment for the month of October would arise inasmuch as there was little or no possibility of any meaningful services being rendered in the month of September which alone could possibly become payable in October, 1983. The petitioners own purported document (annexure 4/1) thus seems to run counter to the petitioners own stand. It is significant to recall that even though at the close of the argument learned counsel for the petitioners had stated that he would file the original letters of appointment on affidavit, no such document was ever filed right from the filing of the writ petition on 12th December, 1985 till the date of rendering the judgment. The inference therefrom seems to be somewhat obvious.

49. A somewhat curious and a last ditch attempt was then made on behalf of the petitioners to invoke the principles of natural justice. It was sought to be contended that the burden instead of being on the petitioners should be entirely shifted on to the shoulders of the respondent State. It was argued that it was incumbent that the State should have first held a full dress inquiry and after affording a reasonable opportunity to the petitioners should have established that the purported letters of appointment (which are admittedly in the petitioners possession and within their special knowledge) are forged, fraudulent and illegal and only thereafter the petitioners" salary should be denied or stopped.

50. This stand has only to be noticed to be rejected. Undoubtedly, the burden must lie on the petitioners and it is they who have to establish their claim on the basis of a valid appointment and not for the respondent State to prove the negative. The claim of a fulldress 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 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."

Even at the cost of repetition, particular reference is called for afresh to the case of Diwaker Prasad Yadav v. State of Bihar 1986 PLJR 873 (supra) wherein B. P. Sinha, J. speaking for the Division Bench held as follows :--

"To sum up I find and hold that the petitioners of these writ applications have not been validly appointed. They cannot challenge the impugned orders on the ground of alleged violation of principles of natural justice. I also hold that they are not entitled to any direction for payment of arrears of their salary for the period they claim to have worked."

51. It would be manifest from the authoritative findings of the Full Bench and the Division Bench that even in cases of termination of services, the rules of natural justice are not attracted where the original appointment itself is void ab initio. Now once that is so, a fortiori, no question of any rules of natural justice arises merely in the case of refusal of salary in an identical context.

52. In the light of the aforesaid exhaustive discussions both as a matter of law and on merits, C.W.J.C. No. 6061 of 1985 (Ram Mohan Mandal v. State of Bihar) must fail No mandamus for the payment of salary can possibly issue. The petitioners, if so advised, are relegated to their ordinary remedies by way of a suit. The parties will bear their own costs.

53. In C.W.J.C. No. 4813 of 1985 (Rita Mishra v. Director, Primary Education, Bihar), the facts and circumstances are identical. Herein also the appointments were again purported to be made by the then District Superintendent of Education, Sahibganj. This writ petition has been jointly preferred by as many as 15 petitioners who, to my mind, have distinct and separate causes of action, if any. Not a single letter of appointment was attached to the writ petition and it had been averred that they would refer to the respective appointment letters at the time of hearing of the application. As noticed earlier, despite pinpointing, no letter of appointment was ever adduced on 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 States stand herein is not the least different and, therefore, same consideration should apply herein as well For the detailed reasons recorded earlier, I am unable to take, in any way, a different view in this writ petition either.

55. Indeed the petitioners herein face another impassable hurdle in their way. On their own, averments, the 15 petitioners had earlier preferred C.W.J.C No. 5485 of 1984 seeking the same relief and indeed the present petition is virtually a carbon copy thereof. In the said writ petition, the respondent State had filed a count er-affidavit stoutly controverting the stand of the petitioners. Specific application therein was moved seeking a direction to the respondents to make payment of salaries and arrears of salaries due to the petitioners for the period they had worked This, however, was declined by the Bench by its order on the 5th Sept., 1985. Thereafter on the 27th Sept., 1985, the following order was recorded : --

"Mr. Rajiv Roy learned counsel for the petitioners seeks permission to withdraw this application. Let this application be dismissed as withdrawn as prayed for.

R. C. P. Sinha, J."

It is plain from the above that the writ petition was withdrawn unconditionally without liberty to file a fresh one or thesame cause of action. The case would thus come squarely within the ambit of AIR 1985 Pal 298, (Kishore Singh v. State of Bihar) wherein it was held as under : --

"6. To conclude, the answer to the question posed at the very outset is rendered in the affirmative and it is held that the unconditional withdrawal of a writ petition would operate as a bar to the filing of a second petition on the same facts and in respect of the same cause of action."

It calls for notice that barely three days after the unconditional withdrawal of the earlier writ petition, the present one was filed on the 30th Sept., 1985.

56. For the reasons aforesaid the claim for mandamus on behalf of these petitioners for salary alone cannot possibly be sustained. This Civil Writ application (CW.J.C No. 4813 of 1985) is consequently dismissed without any order to costs. The petitioners, if so advised, are relegated to the ordinary remedy by way of a civil suit.

57. As was noticed at the outset, the remaining 11 applications were withdrawn after the close of arguments and separate orders therein to that effect be separately recorded

Ram Nandan Prasad, J.

58. I agree with my Lord, the Chief Justice.

Lalit Mohan 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 Honble Chief Justice and Honble 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 and C.W.J.C. 4787/85 the very right of the petitioners to continue in service has to be determined, they assume greater importance than C.WJ.C. 6061/85. When C.W.J.C. 6061/85 and C.W.J.C. 4813/85 were being heard during the summer months of 1986, I repeatedly pointed out during the course of arguments that all the four cases should be disposed of together. The learned counsel for all the parties including the Advocate-General indicated their agreement and the judgment in C.W.J.C. 6061/85 and C.W.J.C. 4813/85 was therefore, reserved and not delivered.

61. Recently the office pointed out that the cases have remained pending and then CW.J.C 747/85 was placed on the list. The hearing was concluded on 10-7-87. C.W.J.C. 4787/85 was not listed as it was not ready for hearing. Now if these three cases are disposed of at this stage, as we are proposing to do the main case, i.e. C.W.J.C 4787/85 of Subhadra Mishra (petitioner 5 of C.W.J.C. 6061/85 and petitioner 1 of CW.J.C. 4787/85) will be, in substance, disposed of without hearing her on the main issue. However, Honble Chief Justice and my Brother Mr. Justice R. N. Prasad have proceeded to decide the other three cases by two separate judgments and so I have also to express my opinion which I am doing briefly by this judgment. Besides, as she (Subhadra Mishra) is, in my view, entitled to succeed, it is immaterial for the purpose of my judgment that she has not been heard.

62. Although in the counter-affidavit of the State in CW.J.C. 747/85, irregularities and illegalities in the appointment of the petitioners have been mentioned, Mr. J. N. Pandey, learned Government Pleader No. 2 made only one argument in support of the impugned termination letters to the effect that they purported to terminate the services of the petitioners simpliciter and they, therefore, were not entitled to be heard Reliance was placed on the observations in Bijoy Kumar Bharti v. State of Bihar 1984 BBCJ 335 (HC) : 1983 Lab IC 1884 (FB). During his argument, the learned Government Pleader emphasised the fact that the State has taken a liberal attitude towards the petitioners inasmuch as they were given one months notice expiring on 18-2-1985. I have understood the argument to mean that the petitioners would be paid their salary for the period till 17-2-85; otherwise do not see any purpose of serving one months notice 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 annot 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 States 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 to the petitioners at any point of time or not can be conclusively determined by examining the relevant records of the schools and the Education Department of the State of Bihar. The learned advocates for the petitioners had suggested in their arguments that if this Court be so desirous, it might call for the necessary documents and might allow an opportunity to the petitioners to lead evidence in support of their case I have been of the view since the time C. W. J. C. 6061/85 was being argued and I still hold the same opinion that an enquiry should have been made by the State authorities in presence of the petitioners so that they could have produced their evidence. As this was not done, this Court should remit the matter to the State authorities for a proper legal enquiry in which the petitioners should be given a chance to prove their case. At such an enquiry, the, petitioners should further be allowed to prove the facts on which they rely in support of their case that their appointments were made regularly and validly. I do not find it practicable for me to reject the case of the petitioners on the basis of mere denial by the respondents.

65. Since the Honble Chief Justice and Mr. Justice R. N. Prasad are of the view that the matter need not be remitted back and further since I am not in a position to reject the case of the petitioners, I assume for the purpose of C W. J. C 6061/85 in their favour that they actually joined their respective schools as claimed by them and were paid their salary at least for a month, and further that they continued to work till their services were terminated by Annexures 2 series. In these circumstances, to deny the petitioners of C W. J. C 6061/85 their wages for the period they worked, even on the assumption that their services were bad from the very beginning would be illegal as being contrary to the decision in the Full Bench case of Bijoy Kumar Bharti, (1983 Lab IC 1884) (supra). The Acting Chief Justice Mr. S. Sarwar Ali (as he then was) observed in para 20 of his judgment as follows with which I agree :

"Of course, so far as acts done by these appointees are concerned, they would be valid so far as third parties are concerned. Further the appointees cannot be deprived of the right to receive salary etc. provided they have worked on the posts on which they were appointed."

66. The case of the State is that it served one months 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 was contended that the initial appointments of the petitioners were illegal from the very beginning. That is clearly at variance with the stand taken by the learned Government Pleader No. 2 in C W. J. C 747/85 as mentioned above. On his argument, the services were terminated with effect from 18-2-85. In other words, the petitioners were in State service ear Her, but the services were so vulnerable in nature that they could be put to an end by merely passing an order to that effect. If the petitioners had not been appointed at all or, in other words, they were not in service at all, there could not be anything in the eye of law which could be terminated and that also with effect from a future date, I, therefore, hold that in view of the stand of the State in C.W.J.C 747/85, the argument addressed on its behalf in the other two cases to the effect that the petitioners were not appointed or, in any event, not validly appointed as claimed by them must be rejected.

69. Let me examine this question from another angle. The petitioners have been accused by the State of being parties to acts of fraud and forgery. According to the States case, as presented by Mr. Advocate General in C W. J. C. 6061/85, an enquiry was department ally made which led to this conclusion. It was further stated that a criminal case had also been started and in this background a decision to terminate the services of the petitioners and other teachers was taken, and the District Education Superintendent was directed to act accordingly, as a result whereof, the termination letters, Annexures 2 series, were issued. It is significant to note that although these letters state that the services of the petitioners were not required, they have also mentioned that they were being issued in pursuance of the Governments decision, as contained in the letter dt. 13-11-84. Mr. B. P. Pandey, counsel for the petitioners, argued that since the aforesaid letter, Annexure 4, in its turn, refers to the decision of the State in this regard on the basis of the departmental enquiry, Annexures 2 series cannot be treated to be terminating the services of the petitioners simpliciter. He appears to be right. It follows that stigma is attached to the impugned terminal ion of the petitioners services.

70. Even assuming that the letters, Annexures 2 series on their face be treated to be terminating the services simpliciter, the circumstances are such that the petitioners must be allowed to refer to the reasons therefor, as detailed in the States 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 in the present case is so thin to be almost transparent and cannot conceal the reality undrneath. In my view, it is fully established that stigma attaches to the termination orders. The case is, therefore, directly governed by the following observations in para 16 of the judgment in Bijoy Kumar Bhartis case 1983 Lab IC 1884 (FB) (supra) :

"Even in the case of a temporary appointment if the aclion taken is by way of punishment or casts a stigma the provisions of Article 311 of the Constitution are attracted Again, where on the face of the order, it is a termination simpliciter, yet if the foundation of the order. as distinguished from the motive of the order, is infliction of punishment or casting of stigma, Article 311 would be attracted. That is the extent to which the veil can be permitted to be pierced."

Since the petitioners were not given an opportunity to place and prove their case before their services were terminated with stigma attached, the impugned orders are fit to be quashed. It would, however, be open to the authorities concerned to make a fresh enquiry in which the petitioners should be given a hearing.

71. Elaborate arguments were addressed by the learned counsel for the parties on the general principle discussed in the judgment of Honble Chief Justice, but in view of the facts of the present case, I do not consider it necessary to express my opinion thereoan. Besides, the time available to me for preparing this judgment (after I had received the draft judgments of Honble Chief Justice and Brother Mr. Justice R. N. Prasad) is limited, I do not propose to go into those questions. I would now close, but before I do so, I would briefly refer to the question dealt with by Mr. Justice R. N. Prasad in paras. 19 and 22 of his judgment.

72. The advertisement in pursuance of which the petitioners claimed to have applied was published in April, 1981 under the signature of District Superintendent of Santhal Parganas before it was bifurcated in several districts. According to their case, the petitioners and others were interviewed in September and November, 1981 by the Establishment Committee which took a decision to issue letters of appointment. The districts, however, were bifurcated in the meantime and separate sets of appointment letters were issued by respective District Superintendents of Education. It has been argued 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 [LQ/PatHC/1986/83] , 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 was on account of specific directions by this Court in other writ petitions.

73. It has not been shown before us by the respondents that the writ petitioners whose applications were dismissed by the reported judgments in Diwakar Prasad Yadav v. State (supra) were similarly situated as the present petitioners, except for the fact that all these teachers were appointed by aforementioned three State Officers Messrs Bhola Ram, Hari Narain Jha and Hari Narain Thakur. The fact that their appointing authorities were same cannot by itself prove that the merits of their individual cases were also same or similar. The decision in Diwakar Prasad Yadavs case, therefore, is of no help to the respondents. Further the Supreme Court cannot on the basis of the order in Annexure C be deemed to have considered the merits of the case of the petitioners before them. The Supreme Court merely refused to exercise its discretion in granting special leave and no inference can be drawn therefrom. So far the High Courts judgment as a precedent is concerned, it is not binding on the present Full Bench which has been constituted for examining its correctness.

74. The reply of the State counsel with respects to the teachers of Dumka district, as mentioned earlier, is that differential treatment which they received was as a result of the judgment of this Court in other writ petitions. I do not think, the grievance of discrimination can be brushed aside on this explanation. If the case of Dumka teachers is exactly identical as the present petitioners, as has been asserted by the petitioners, the petitioners are entitled to equal treatment not only from the State authorities but from this Court also and that may be an additional reason for allowing the present writ petitions.

75. It was stated by the learned counsel for the parties that the position of the petitioners in C.W.J.C. 4813/85 is the same as the petitioners in C.W.J.C. 6061/85.

76. In the result, the decision to terminate the services of the petitioners in C.W.J.C. 747/85 and the letters, Annexure 2 series, are quashed. The petitioners shall be treated to be in service and shall be entitled "to their salaries throughout, but it will be open to the respondent to institute a fresh enquiry in presence of and with opportunity to the petitioners. The three applications in C.W.J.C. 747/85, 6061/85 and 4813/85 are accordingly allowed, but in the circumstances without costs.

Ramnandan 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 whose names figured in the said panel were appointed for the various Elementary Schools of the District of Dumka and a list of some of the candidates of that panel was forwarded to respondent 5 Bhola Ram, who was then the District Superintendent of Education, Sahebganj. In due course respondent 5 issued appointment letters (Annexure 1 series) to the petitioners and posted them to different elementary schools within the district of Sahebganj. The petitioners joined their respective posts and were getting their salary till October. 1983. after which the payment was suddenly stopped for the reason not disclosed to them. There was an agitation against this stoppage and eventually the Finance Department of the Government of Bihar issued wireless message on 22-2-1984 directing the authorities to make payment of salaries to them, whereupon a direction was issued by the Deputy Commissioner, Sahebganj, to make payment, but still no payment was made to them. Being aggrieved, some of the teachers moved this Court and a direction was issued by this Court to pay the salary until they were legally terminated. In the meantime, a letter No. 2836 dt. 13th Sept., 1984 (Annexure 4) was issued by the State (respondent 1) for cancelling the appointment made by respondent 5 excepting those teachers who were appointed by the State in the reserved quota of handicaps and those appointed on compassionate grounds. In continuation of this letter the State Govt. issued another letter No. 3103 dt. 13-11-1984 (Annexure 4/1) directing the District Superintendent of Education to terminate the services of all the teachers whose names appeared in the list enclosed therein. In pursuance of this direction the District Superintendent of Education issued letters dt. 18-1-1985 (Annexure 2 series) to different teachers separately terminating their services after giving them one months notice. It is these letters of termination of services of the petitioners that is under challenge in this writ application. It has been alleged by the petitioners that the termination of their services is illegal, inasmuch as no notice to show cause was issued to them nor any enquiry regarding legality or illegality of their appointments was made in their presence. It has also been alleged that the termination of their services is discriminatory inasmuch as the teachers similarly appointed in the district of Dumka 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 months 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 petitioners it has been stated on behalf of the State that no record is available in the office which could show that the petitioners were interviewed and a waiting list was prepared by the Establishment Committee excepting with regard to the Science Candidates in respect of whom a panel was prepared, but this panel was also not approved by the Regional Deputy Director of Education Sahebganj, who returned the panel to the District Superintendent of Education for meeting certain objections. It has been asserted that the names of the petitioners did not find place in any panel, much less in any approved panel. It has further been averred that none of the petitioners possesses the minimum qualification for appointment, as none of them was trained which was the minimum requirement for the appointment as a teacher. It is also the stand of the State that no panel was sent to the Regional Deputy Director of Education for scrutiny and the Commissioner of the Division for approval as required by the Government Notification dt. 15-12-1981, according to which the panel prepared by the District Establishment Committee has to be sent to the Regional Deputy Director of Education, who, after scrutiny, has to send the same to the Divisional Commissioner for approval and it is only after the latters approval that the appointment can be made by the District Superintendent of Education from the approved list in order of seniority in the list. In this back ground it has been contended that the alleged appointment of the petitioners are wholly illegal and there was no appointment at all in the eye of law. It has been asserted that their alleged appointment letters are forged and fabricated documents. In this connection it has further been pointed out that respondent 5, who is said to have issued these appointment letters, was put under suspension for his various acts of omissions and commissions in the matter of appointment of teachers while he was posted at Sahebganj and he is also being prosecuted for offences under Sections 465, 468, 419, 420, 567 and 120-B, Penal Code. Regarding the allegation of discrimination it has been stated that no teacher appointed in the district of Dumka by aforesaid Bhola Ram, Hari Narain Thakur and Narain Jha have been allowed to continue in the district of Dumka and only those teachers have been allowed to continue in respect of whom an injunction 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 months notice by Annexure 2 series even though they were purely temporary appointees having no right to a particular post. This would indicate that the Government took extra precaution in this regard to make sure that there was no violation of any rule or principle of natural justice while terminating the services of the petitioners. This circumstance further indicates that the Government had shown some consideration to the petitioners by giving one months notice to which they were not entitled to under the Rules.

82. It is also apparent from Annexure 2 series that no reason has been assigned for the termination. So, prima facie, these termination letters fulfil the requirements of the rules, and, in any event, they do not seem to violate any rule.

A close reading of the termination letters (Annexure 2 series) would make it abundantly clear that nothing has been said against the conduct of the petitioners nor any stigma has been attached to them. So, evidently, these termination letters are termination simpliciter since no reason has been assigned in these letters for the termination of the petitioners. N. P. Singh, J. in a concurring judgment in the aforesaid Full Bench decision of Bijay Kumar Bharti has observed that "it is settled on all counts that neither Article 311 is attracted nor the principle of natural justice required that the Government to give any show cause notice in case of such termination order." So, there appears no infirmity in these termination orders.

83. Mr. B. P. Pandey, learned counsel for the petitioners has, however, contended that the termination letters have to be read with the two letters issued by the State Government (Annexures 4 and 4/1). It was pointed out that it was on the basis of Annexure 4/1 that the termination orders were actually issued to the petitioners, as stated in the termination orders themselves. Nothing, however, has been said against the petitioners in this letter, but it was submitted by the learned counsel that this letter has to be read along with Annexure-4, as there is a reference of Annexure-4 in this letter. In this letter (Annexure-4) it has been stated that the former District Superintendent of Education of Sahibganj and Godda and the District Superintendents of Dumka and Deoghar had made many irregular temporary appointments against the unsanctioned posts and hence the Government had taken a decision to terminate the services of such illegally appointed teachers. It was contended by the learned counsel 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 termination orders were passed on the ground of invalidity of the appointment of the petitioners, there was no necessity of giving notice to the petitioners to show cause and an opportunity to be heard before the termination orders were passed. There appears substance in this submission, as it is now the settled law that where the very original appointment to the service is invalid in the eye of law, there is no appointment at all and the declaration by the State that the alleged appointments are invalid and, therefore, non est, the principle of natural justice is not at all attracted. Applying this principle to the present case, it can be said that the termination orders of the petitioners are merely a declaration that there has been no valid appointment of the petitioners and the effect of the termination orders is simply to declare that their appointments are void ab initio. In effect the impugned orders simply provide for termination of appointments which are invalid ab initio. This legal position has been made clear in the Full Bench decision in the case of Bijay Kumar Bharti 1983 Lab IC 1884 (supra). S. Sarwar Ali, Acting Chief Justice, summarised the legal position in this regard in the following terms : --

" 17. I now come to the more difficult cases where reason has been given for the termination of temporary service. For the present purposes, I would sub-divide this into two categories one category consisting of cases where the person affected has not acquired any right in relation to future appointments by virtue of the impugned temporary appointment. The other class would constitute cases of persons who have by virtue of temporary appointment for a certain period of time acquired some further right.

18. Now, if the appointment of persons in the first category is termination, I am of the view that it would not be unfair to terminate such appointments without hearing the persons affected. The illegality or irregularity is at the level of the administrator/appointing authority. 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. Of course, if the authorities proceed on some wrong factual basis or are actuated by malice, or guided by irrelevant considerations and the like, the order of termination may be open to challenge in a court of law....."

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."

85. In the present case the termination of the services of the petitioners was not with effect from any retrospective date, rather their termination was to be effective from a future date after giving them one months notice and no direction was given to them to refund anything and, so, it cannot be said that the petitioners have been visited with civil consequences by the termination orders. The question of violation of natural justice cannot arise in a case like this where the petitioners are not visited with any civil consequence. The rule of audi alteram partem is intended to inject justice into law and it cannot be applied to defeat the ends of justice.

86. The Full Bench decision in the case of Bijay Kumar Bharti 1983 Lab IC 1884 (supra) was followed by a Division Bench of this Court in the case of Diwakar Pd. Yadav v. State of Bihar 1986 PLJR 873. [LQ/PatHC/1986/83] In this decision B. P. Sinha, J., speaking for the Bench observed that where the termination was on the ground of illegality or irregularity in the initial appointment it was only to declare that from the beginning there was no valid appointment and in such a situation, the petitioners were not entitled to any show cause and no question of violation of natural justice could arise. The judgment was concluded with the observation that the petitioners of the writ application having not been validly appointed, they could not challenge the impugned order of termination on the ground of alleged violation of the principle of natural justice. I find myself in full agreement with the views expressed in these two decisions on this point.

87. This view also finds support from the decision of the Supreme Court in the case of University of Kashmir v. Dr. Md. Yasin : AIR 1974 SC 238 [LQ/SC/1973/323] in which the appointment which was made contrary to the statutory provision, even though by the authority as high as the Vice-Chancellor of an University, was held to be non est and no theory of factum valet was allowed to be countenanced. It was observed by his Lordship that: --

"8. The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained. When a statute creates a body and vests it with authority and circumstances its powers by specifying limitations, the doctrine of implied engagement dehors the provisions and powers under the 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."

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, the sands of time ran out."

In this case although their Lordships declared the termination order as void, but still they declared that the petitioner had no right to continue in service and the order of the High Court of reinstatement in his favour was quashed.

88. Evidently, this decision supports the view that if the appointment itself is invalid, there can be no necessity of following the statutory rule for termination of service by giving notice and an opportunity of being heard to the person affected, as he had no right to continue on the post at all. In the present case also the services of the petitioners were terminated as their appointments were invalid. As said above. nothing has been said in the termination orders against the petitioners and the termination orders are prospective in effect. Whatever has been said therein has been said against the officers who had issued the appointment letters and nothing against the petitioners. It has been stated in the counter-affidavit that Bhola Ram, who had issued the appointment letters of the petitioners, has been prosecuted on various charges of forgery, cheating etc. The ratio of the Full Bench case in Bijay Kumar Bharti 1983 Lab IC 1884 (supra) is, therefore, fully applicable to the present case and the termination orders cannot be challenged on the ground that they were not given notice to show cause and an opportunity of being heard, as the principle of natural justice cannot be invoked when no stigma has been attached and no allegation whatsoever has been made against the petitioners and they have not been visited by any civil consequence.

89. Being faced with the aforesaid decisions, the learned counsel for the petitioners tried to wriggle out of the situation by submitting that these decisions are not good laws after the decision of the Supreme Court in the case of Olga Tellis v. Municipal Corporation : AIR 1986 SC 180 [LQ/SC/1985/219] . It was contended that since the right to livelihood has been included in the right to life under Article 21 of the Constitution the services of the petitioners could not be terminated as that would deprive them of their right of livelihood. I am really surprised at this curious line of argument. In my opinion, the learned counsel has stretched the right of livelihood too much and if this interpretation is accepted the services of nobody can be terminated even if he is guilty of criminald offence. 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 beeh 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 nobodys 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 support such an absurd stand. In that case Sections 312, 313 and 314, Bombay Municipal Corporation Act, were examined by the Court and the main question involved was as to whether it was approrpiate for the Municipal Corporation to remove the encroachment without any notice to the encroachers and it was held that in the circumstances of the case where the question of livelihood of the encroachers was involved it was only fit and proper that the encroachments should have been removed only after giving them notice and an opportunity of being heard. The operative part of the order itself shows that the direction of the court was that the encroachment shall not be removed until 31st Oct. 1985 and thereafter in accordance with the judgment. This judgment was evidently given in a different context, where the very profession and consequently the source of livelihood of encroachers was at stake. The present case stands on a quite different footing. Here the petitioners, who are untrained graduates, are not at all eligible for the post of teachers. Besides, they are quite young persons and can still choose their own profession/vocation and no question of deprivation of their livelihood can arise in their case. Indeed, the question of deprivation of livelihood of the petitioners cannot be considered, when their very appointment was ab initio void and illegal. If a right of livelihood is so wide as submitted by the learned counsel for the petitioners, then nobody can be removed from employment even if his appointment is non est or is tainted with fraud or even if he is guilty of gross criminality. I am, therefore, of the definite opinion that the decision in the case of Olga Tellis (supra) does not in any way affect the Full Bench decision in the case of Bijay Kumar Bharti 1983 Lab IC 1884 (supra) and University of Kashmir : AIR 1974 SC 238 [LQ/SC/1973/323] (supra).

90. Reliance was placed by Mr. Pandey on the decision of the Supreme Court in the case of Anoop Jaiswal v. Govt. of India : AIR 1984 SC 636 [LQ/SC/1984/23] for the proposition that the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2). 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 [LQ/SC/1980/450] 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 [LQ/SC/1984/304] , but the facts of the case were quite distinguishable as in that case the termination of service of the petitioner was made in a different background. There was allegation about his unsuitability. Then, there was also a charge of contracting a second marriage in violation of the Conduct Rules. It was found that earlier also a charge for contracting a second marriage was framed against the petitioner which was, however, dropped. In this background it was held that with the dropping of the enquiry, the allegation remained unverified. It was found by the court as a fact that the services of the petitioner were terminated on the ground that his reputation of corruption made him unsuitable for retention in service. It was in this background that the court held that the provision of Article 311(2) of the Constitution was attracted as the court felt that the State must take care when proceeding to terminate the career on the ground of unsuitabilily is initiated.

93. To sum up, it is categorically held I that no notice is required to be given in a case of termination simpliciter. It is further held that no notice is required to be given even if the termination is on the ground that the appointment itself was invalid and the principle of natural justice or Article 311 is not attracted in such a case. The substantial question posed at the outset is, therefore, answered in negative, and it is held that no notice was required to be given to the petitioners before terminating their services since termination of their services was termination simpliciter and no stigma was attached to it. It is further held that no notice was required to be given to the petitioners even if their termination was on the ground that their appointment itself was invalid.

94. As a last ditch it was contended by the learned counsel for the petitiones that if the Court makes an enquiry about the allegation of the invalidity of the appointment of the petitioners it would be convinced that their appointment did not suffer from any infirmity. It is, however, difficult for this court in exercise of its power under Article 226 of the Constitution to embark upon such an enquiry specially when the facts are so disputed and tangled. Indeed, the stand of the State is that no panel was prepared at all and no appointment was made at all. An enquiry about all these complicated questions of fact is obviously beyond the scope of Article 226 of the Constitution. This view is supported by the following observations of the Supreme Court in the case of Union of India v. T. R. Varma : AIR 1957 SC 882 [LQ/SC/1957/91] :

"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. Ineed, 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 which was filed for identical relief besides the relief for payment of salary. Against this order some of the teachers moved the Supreme Court for special Leave of Appeal. Their Lordships of the Supreme Court dismissed the Special Leave Application with the observations that the petitioners may avail of the alternative remedy of a suit, if available. Since the facts of the case are almost identical, the present petitioners may also be relegated to the same remedy, if available, as it would not be proper for this Court to adjudicate on such a tangled disputed question of fact.

96. Indeed, there appears no necessity at all for making an enquiry about the allegation of the invalidity of the appointment of the petitioners as it is apparent that Rules regarding appointment as contained in Annexure-A which were framed under Section 8 Bihar Non-Government Schedules (Taking Over Control) Act, 1976 have not been followed at all. According to these Rules, the District Establishment Committee was required to send the panel prepared by it to the Regional Deputy Director of Education for scrutiny and the latter was obliged to send the panel after scrutiny to the Divisional Commissioner. It was only after the approval of the Divisional Commissioner that the District Superintendent of Education could make appointment of teachers strictly in accordance with panel approved by the Divisional Commissioner. The petitioners, no doubt, alleged that a panel was prepared by the Establishment Committee but they nowhere aver that the panel was scrutinised by the Regional Deputy Director of Education or that it was approved by the Divisional Commissioner. Undisputedly, Annexure-A came into force from the date of its issue i.e. from 13th Sept., 1981 and the alleged appointments of the petitioners were made long after that date, evidently, without complying with the requirements of the Rule in this regard. So, the appointments made in the teeth of the rules regulating the appointment of teachers and without complying with the same must be held to be invalid on this ground alone.

97. Then, none of the petitioners was eligible for appointment as the basic qualification for appointment as teacher was trained Matric/I.A./Graduate but none of the petitioners is trained. So, evidently the petitioners were ineligible for appointment for not possessing the basic qualification for the post. 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 discrimination in para 20 of their petition. It is evident therefrom that the teachers of Dumka district had filed various writ petitions as detailed therein against the termination of their services without giving them an opportunity of showing cause and it was on the basis of the direction of this Court in those writ petitions that the teachers of Dumka were given notice to show cause and were allowed to continue in the meantime. This averment is hardly sufficient to make out a case of discrimination which can be said to be violative of Article 14. Evidently, the State wanted to treat both the sets of teachers equally by terminating the services of all of them without any notice to show cause but the State had to issue notice of show cause to the teachers of Dumka District, not voluntarily, but on the direction of this court in various writ petitions. Had the State made this difference voluntarily, it might have been accused of discrimination but if it had to treat the teachers of Dumka differently under the orders of the Court, I wonder, how it can be held guilty of discrimination in such circumstances. Obviously, the question of discrimination cannot arise on the basis of involuntary action of the State. The action of the State cannot be challenged as discriminatory if it is forced to take that action under the orders of the Court. There was no legal or moral duty cast on the State to give notice of show cause to the teachers of Sahebganj when the law did not cast such duty on it nor there was any direction of the court to do so. Simply because it had to issue notice of show cause to the teachers of Dumka under the orders of the Court which it was obliged to comply with, the petitioners cannot complain of discrimination on that account. Thus, no case of discrimination is established even on the basis of the averments made in the writ petition. Indeed, it has been asserted on behalf of the State in its counter-affidavit that the Government has not allowed anyone appointed by either Bhola Ram at Sahebganj or by Hari Narain Thakur and Narain Jha at Dumka to continue as teachers. It has also been asserted that the Director of Primary Education has not decided any case declaring the appointment made for the district of Dumka from the said panel as valid. All the assertions made on behalf of the petitioners in this behalf have been emphatically denied on behalf of the State. In these circumstances the stand of the learned counsel on the plea of discrimination has to be rejected outright.

100. For the reasons given above the writ application is dismissed but without costs.