R.K.MERATHIA, J. - (1.) HEARD . The amendment is allowed. The prayers made in paragraph 4 of the Interlocutory application are added in the prayer portion. I.A. No. 1131 of 2006 is disposed of. C.W.J.C. No. 5155 of 2000 1. Petitioner has challenged the appellate order dated 22.3.2000 as contained in Memo No. 41/PS dated 22.3.2000 (Annexure -1), passed by the Secretary to the Government, Planning and Development, Bihar, Patna affirming the order bearing No. 407 dated 28.10.1999 (Annexure -2), passed by the Director, Planning Division (Statistical and Evaluation Department), Government of Bihar, Patna, by which he was dismissed from service and order was passed for recovery of emoluments received by him.
(2.) PETITIONERS case is that he was appointed after due selection and he joined his post on 11.7.1990. After eight years, the department dismissed him from service on the alleged ground of impersonation. By letter dated 15.12.1998 ( Annexure -3) he was asked to produce certain documents. He could not produce the receipt of application, admit card mark -sheet and letter of recommendation issued by the Board (Bihar Subordinate Service Selection Board), though he produced letter of interview and the letter of appointment. It is submitted that usually the said documents such as receipt, admit card, mark sheet, recommendation letter and envelopes are not preserved and accordingly they could not be produced by the petitioner. Thereafter, the impugned action was taken on the ground that the photographs affixed in the application form filed before the Board and the photo graph of the person working, were different. It is submitted that changes in the photograph is bound to happen in a span of ten years. It is further submitted that provisions of article 311 of the Constitution of India was not followed, before removing petitioner. According to the respondents, when it was detected that one Sunil Kumar was an imposter, a complete screening was done. It was found that 22 persons, including petitioner, were impostors. Petitioner and others were asked to appear before the Director of the department, with all the original papers. But inspite of sufficient opportunity, petitioner failed to prove that he was not imposter. It is also stated in the counter affidavit that a departmental proceeding/ criminal case for the charge of defalcation was initiated against petitioner. Following portion of the judgment, R. Vishwanatha Pillai v. State of Kerala was referred. Where an appointment in a service has been acquired by practicing fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all. It was also submitted that in that case, dismissal of employee, after twenty seven years of service was upheld when it was found that employment was obtained by practicing fraud.
(3.) IN this writ petition, this Court cannot decide the aforesaid disputed questions of fact. The only thing which can be seen is whether petitioner was given opportunity to prove his case?;