Allahabad High Court
Ramanand Bharti vs State Of U.P. And 2 Others on 22 May, 2023
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:111702 Court No. - 36 Case :- WRIT - A No. - 22008 of 2022 Petitioner :- Ramanand Bharti Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kunwar Aditya Pratap Singh,Grijesh Tiwari Counsel for Respondent :- C.S.C.,Ashish Kumar Nagvanshi Hon'ble Ashutosh Srivastava,J.
1. Heard Shri Kunwar Aditya Pratap Singh, learned counsel for the petitioner, Shri Shailendra Singh, learned Standing Counsel for the State-respondent and Shri Ashish Kumar Nagvanshi, learned counsel for respondent Nos. 2 & 3.
2. This writ petition has been filed with the following reliefs:
"i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.11.2016 passed by the respondent No. 3.
ii) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 to the petitioner service as an Assistant Teacher and pay his salary month to month regularly as when it falls due"
3. The facts giving rise to the controversy involved lie in a narrow compass. The petitioner was appointed on the post of Assistant Teacher in the Primary School, Gauri Bazar, on 1.2.2016. Pursuant to the appointment letter, petitioner joined on the aforesaid post on 3.2.2016. Thereafter, vide order dated 17.11.2016, impugned in this writ petition, the petitioner's appointment has been cancelled with the allegation that TET certificate of the petitioner was found to be forged upon verification of the educational testimonial of the petitioner.
4. Learned counsel for the petitioner submits that impugned order has been passed totally on non existent and misconceived grounds. The impugned order passed by respondent No. 3 is ex-facie bad, illegal, arbitrary besides cryptic and unjust and is liable to be set aside. Learned counsel for the petitioner submits that no show cause notice was served upon the petitioner prior to passing of the impugned order dated 17.11.2016.
5. Learned counsels appearing for the respondents submit that petitioner has obtained the appointment on the basis of forged documents. The respondent No. 3 has dispensed with the services of the petitioner after verifying the TET certificate of the petitioner.
6. I have heard learned counsel for the parties and have perused the record.
7. In view of the aforesaid, the appointment obtained by the petitioner on the basis of a forged and fabricated TET certificate being a nullity has been rightly cancelled by the respondent no.3. It is settled law that fraud and justice never dwell together. Cancellation of appointment of the petitioner on account of forged and fabricated TET certificate is wholly justified under the facts and circumstances of the case and requires no interference by this Court.
8. Hon'ble Supreme Court in Union of India & Anr. v. Raghuwar Pal Singh, (2018) 15 SCC 463 had examined a case, where the appointment letter was issued without approval of the competent authority. The question arose whether such appointment letter would be a case of nullity or a mere irregularity? In case of nullity, affording opportunity to the incumbent would be a mere formality and non-grant of opportunity may not vitiate the final decision of termination of his services. Hon'ble Supreme Court held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law.
9. In Nidhi Kaim & Anr. v. State of Madhya Pradesh & Ors., (2017) 4 SCC 1, a three Judge Bench was dealing with admission of students to MBBS Course on the basis of illegal and unfair admission process. The Court held as under:
"92. ...Having given our thoughtful consideration to the above submission, we are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of "the unfair". It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in the manner suggested on behalf of the appellants would surely depict the Court's support in favour of the sacrilegious. It would also compromise the integrity of the academic community. We are of the view that in the name of doing complete justice it is not possible for this Court to support the vitiated actions of the appellants through which they gained admission to the MBBS course.
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94. ...Even in situations where a juvenile indulges in crime, he has to face trial, and is subjected to the postulated statutory consequences. Law, has consequences. And the consequences of law brook no exception. The appellants in this case, irrespective of their age, were conscious of the regular process of admission. They breached the same by devious means. They must therefore, suffer the consequences of their actions. It is not the first time that admissions obtained by deceitful means would be cancelled. This Court has consistently annulled academic gains arising out of wrongful admissions. Acceptance of the prayer made by the appellants on the parameter suggested by them would result in overlooking the large number of judgments on the point. Adoption of a different course, for the appellants, would trivialise the declared legal position. Reference in this behalf may be made to the judgments relied upon by the learned counsel representing Vyapam.
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108. ...In the facts and circumstances of the case in hand, it would not be proper to legitimise the admission of the appellants to the MBBS course in exercise of the jurisdiction vested in this Court under Article 142 of the Constitution. We, therefore, hereby decline the above prayer made on behalf of the appellants."
43) In another three Judge Bench judgment in Chairman and Managing Director, Food Corporation of India & Ors. v. Jagdish Balaram Bahira & Ors.(2017) 8 SCC 670, the Court was examining the consequences of false caste certificate produced to seek appointment. The Court held as under:
"69. For these reasons, we hold and declare that:
xx xx xx 69.3. The decisions of this Court in R.Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 : 2004 SCC (L&S) 350] and in Union of India v. Dattatray, (2008) 4 SCC 612 :(2008) 2 SCC (L&S) 6, which were rendered by Benches of three Judges laid down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution--on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est. xx xx xx 69.7. Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;"
(Emphasis supplied by me) A Full Bench of the Hon'ble Patna High Court in the case of Rita Mishra & Ors. v. Director, Primary Education, Bihar & Ors. AIR 1988 Patna 26 has dealt with appointment in the education department claiming salary although the letter of appointment was forged, fraudulent or illegal. The Full Bench declined to grant such claim and held that "the right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is 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. 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."
10. The aforesaid judgment of Full Bench of the Hon'ble Patna High Court in the case of Rita Mishra (supra) was approved by a three Judges Bench of Hon'ble Supreme Court in R. Vishwanatha Pillai Vs. State of Kerala & Ors. (2004) 2 SCC 105.
11. Hon'ble Supreme Court by three Judge Bench in the State Of Bihar Vs. Kirti Narayan Prasad, decided on 30 November 2018, 2019 (1) ESC 3 considered the matter of appointments made on the basis of forged appointment letter and held as under:
"17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio.We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularization of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311of the Constitution or under any other disciplinary rules shall not arise."
12. The aforesaid judgment in the case of the State Of Bihar Vs. Kirti Narayan Prasad has been followed by Hon'ble Supreme Court in the State Of Bihar Vs. Devendra Sharma, 2019 AIR 1158 (S.C.). In the case of Devendra Sharma (supra), Hon'ble Supreme Court also considered fraudulently obtained appointments and held as under:-
"19) The cases in the second category i.e. appointment on the basis of forged nursing registration stands on the same footing as category one though it is argued by the appellants in three appeals that nursing registration certificate is not forged but the matriculation certificate on the basis of which the candidates have undergone Auxiliary Nurse Mid-Wife, (for short 'ANM') course was found to be forged. The State Committee has found that ANM certificate is a forged certificate. Even if, the certificate of ANM is not forged as argued before this Court but the Matriculation Certificate is said to be forged, the fact is that the educational qualification, a pre-condition for undergoing nursing course, was found to be forged. Therefore, the forgery is in the basic eligibility condition to undertake ANM course, which will vitiate the process of appointment. For the reasons recorded in Kirti Narayan Prasad, Civil Appeal Nos. 7906 of 2019, 7919 of 2019 and 7920 of 2019 are dismissed.
20) Coming to third category of cases, Mr. Mukherjee, learned counsel for the State referred to the separate Government Circulars dated December 3, 1980 in respect of Class III and Class IV category posts. It is contended that appointments on such circulars have been found to be illegal by this Court in Ashwani Kumar, which view was in fact, approved later by Constitution Bench judgment in Uma Devi, wherein this Court held as under:
"33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non- available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.
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53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071], R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment................" (Emphasis Supplied)
21) In Uma Devi, the argument that the employees have legitimate expectations was negated when this Court held as under:
"46. .............. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn... There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court....
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees...."
13. Supreme Court in Chairman and Managing Director, Food Corporation of India and others vs. Jagdish Balaram Bahira and others, 2017 (8) SCC 670, held that:
"Thus, where a benefit is secured by an individual - such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est."
14. It follows that when a candidate is found to have put forth a false claim on the strength of forged and manufactured documents and obtained appointment, it would be a negation of the rule of law to exercise jurisdiction under Article 226 to protect that individual. Societal good lies in ensuring probity. That is the only manner in which the sanctity of the system can be preserved. The legal system cannot be seen as an avenue to support those who make untrue claims based on forged educational documents.
15. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilized to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. (Refer: Nidhi Kaim vs. State of M.P. (2017) 4 SCC 1)
16. Thus, where a person secures appointment on the basis of a forged marksheet or certificate or appointment letter and on that basis he or she has been inducted in Government service then he becomes beneficiary of illegal and fraudulent appointment. Such an appointment is illegal and void ab initio. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution of India or under any disciplinary rules including the Uttar Pradesh Basic Education Staff Rules, 1973 or the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999, shall not arise.
17. The forgery committed by the petitioner, for obtaining public employment on the basis of forged TET certificate; is in the basic eligibility conditions for appointment on the post of Assistant Teacher. Therefore, it vitiates the process of his appointment. Thus, the appointment of the petitioner is void ab initio and he can not be said to be a government servant. Therefore, his appointment has been lawfully cancelled by the impugned order.
18. For all the reasons aforestated, I do not find any error of law in the impugned order dated 17.11.2016, which has been passed by the respondent no.3. Therefore, the writ petition is dismissed.
Order Date :- 22.5.2023 Ravi Prakash