Santosh Kumari and Kamla Kumari vs State and Another

Ajay Rastogi, J.—Instant petitions have been filed assailing order dated 13th September, 2000 whereby respondents intended to make recovery for the period they rendered service as Teacher Gr. III in the government.

Both the petitioners obtained BTC Certificates from Bihar Pradesh Shiksha Parishad, Sripalpur, District Patna. On the basis of said certificates, they submitted application for the post of Teacher Gr. III advertised by Zila Parishad, Sikar. After due consideration of their candidature, both were found suitable and as per their placement in the order of merit, they were appointed as Teacher vide orders dated 31st March, 1989 and 30th November, 1988 in the regular pay scale of Rs. 880-1680. While they were serving in the government it later on transpired that BTC certificates possessed by petitioners, were not recognized by the Government and its recommendation was withdrawn much before issuance of advertisement vide order dated13th October, 1987 - as a consequence whereof, their services have been terminated vide order dated 15th June, 1993. But, it appears that their order of termination was stayed by this Court. But since writ petitions were finally dismissed, order was passed with respect to their termination later on after rejection of writ petitions on 5th March, 1994 and further order was passed for making recovery from petitioners with respect to salary which had been paid to them during the period they worked in the office of respondents as Teacher vide order dated 15th December, 2000.

Counsel for petitioners submits that there was no mis-representation on the part of petitioners and the documents/certificates which were in their possession were submitted before the appointing authority to consider their candidature, the same found them eligible and suitable for the post of Teacher and as per their placement in the order of merit they were appointed. As such if their certificates are de- recognized by the government that will not make the respondents entitled to make recovery, particularly, when they served institution under the orders passed by them. In support of his submission, counsel has placed reliance on the judgments of apex court in Sahib Ram Vs. State of Haryana and Others, & Jai Gopal Sharma v. Punjab State Electricity Board (2005) 11 SCC 591./p> 4. Counsel for respondents have filed reply to the writ petition wherein it has been averred that certificates possessed by petitioner were de-recognized by the government vide its notification dated 5th August, 1987 and the selection process was initiated later on. As such, they were not eligible to seek appointment on the post of Teacher on the basis of certificates possessed by them. As such, once appointment of petitioners was illegal, no error has been committed by respondents in making recovery from petitioners for the period they rendered service in the facts of instant case.

I have considered the submission of counsel for parties and with assistance examined the material on record.

It is not the case where petitioners submitted their BTC Certificates which as alleged by respondents to be forged while seeking appointment in reference to advertisement in question. Petitioners submitted their BTC certificates possessed by them along with their application form and it is not the case of respondents that petitioners were aware of de-recognition of relevant certificates furnished at the time of seeking appointment. If officials of the respondents consider petitioners to be eligible on the basis of certificates furnished by them permitted them to participate and offered appointment pursuant to which they have joined. In opinion of this Court, there was no mis-representation which was made by petitioners and thus, even if the certificates possessed by them were de-recognized by the government even prior to their participation in the selection process they cannot be held at fault and no recovery can be made for the period they rendered service.

The apex court in Sahib Ram v. State of Haryana & Jai Gopal Sharma v. Punjab State Electricity Board [supra] has also observed that in absence of any misrepresentation made by an incumbent concerned, even if order is found to be erroneous or incumbent was not eligible if he has worked for the period in question, recovery cannot be made for the said period.

Consequently, both the writ petitions stand allowed. The orders making recovery from petitioners vide order dated 13th September, 2000 are hereby quashed and set aside. No order to as to costs.