Sanjay Singh vs The State Of Bihar & Ors on 18 April, 2014

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Patna High Court - Orders

Sanjay Singh vs The State Of Bihar & Ors on 18 April, 2014

2. This Court having perused the impugned order passed by the District Teachers Employment Appellate Authority, Rohtas at Sasaram (hereinafter referred to as the Tribunal) in Appeal Case No. 15/2013 does not find any error, inasmuch as the onus was on the petitioner to prove that that his qualification of Intermediate on the basis of which he had procured his employment on the post of Panchayat Teacher was in keeping with the requirement of the Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 2 statutory Rules, namely, Bihar Panchayat Prarambhik Shikshak (Niyojan Awam Seva Sarta) Niyamawali, 2006. The Tribunal in fact has gone into the aspect in a very elaborate manner and its finding would not require any interference, wherein it has been held as follows:

^^ fookn dk fcUnq ;g gS fd D;k vihykFkhZ dk bUVjehfM,V dk izek.k i= iapk;r f'k{kd ds fu;kstu gsrq oS/k laLFkk dk gS vFkok ugha\ bl laca/k eas iz[kaM f'k{kk inkf/kdkjh djxgj dh vksj ls fcgkj ljdkj] f'k{kk foHkkx dk vkns'k la[;k&7@fo03 18@12&314 fnukad 09-05-2012 izLrqr fd;k x;k gS ftlesa ;g mfYyf[kr gS fd mPprj ek/;fed f'k{kk ifj"kn fnYyh dk uke ekuo lalk/ku fohkl ea=kh;] Hkkjr ljdkj }kjk tkjh ekU;rk izkir cksMZ dh lwph esa ugha gS vkSj mDr laLFkk dk LFkyh; tkp djuk lEHko ugha gSaA i= ds var esa ;g nf'kZr gS fd mPprj ek/;fed f'k{kk ifj"kn~ ubZ fnYyh ls fuxZr izek.k i= ds vk/kkj ij jkT; ds fo|ky;ksa esa f'k{kd ds in ij fu;qfDRk ugh dh tk ldrh gSA mDr rF; ds vkyksd esa vihykFkhZ ds fo}ku vf/koDrk dk rdZ gS fd mDr vkns'k la[;k&7@fo03&18@12&314 fnukad 09-05-2012 esa var esas ;g fu"d"kZ fn;k x;k gS fd mPprj ek/;fed f'k{kk ifj"kn~ ubZ fnYyh ds izek.k i= dks oS/k fcgkj ljdkj us ugha ekuk gS] tcfd vihykFkhZ dk bUVjehfM,V dk izek.k i= mPprj ek/;fed f'k{kk ifj"kn~ fnYyh ls fuxZr gS rFkk bls dHkh vekU; ?kksf"kr ugha fd;k x;k gSA mudk nwljk rdZ ;g gS fd mPprj ek/;fed f'k{kk ifj"kn~ fnYyh ls fuxZr izek.k i= dh oS/krk ds fcUnq ij ekuuh; mPp U;k;ky;] iVuk }kjk lh0MCyw0ts0lh0 la[;k 16278@2011 ,oa lh0MCyw0ts0lh0 la[;k 153@2013 fu.kZ; fn;k tk pqdk gSA bl izdkj vihykFkhZ lat; flag ds izek.k i= ¼bUVjehfM,V½ dks oS/k Bgjk dj mls osru Hkqxrku dk vkns'k ikfjr fd;k tk;A mudk ;g Hkh rdZ gS fd iz[kaM f'k{kk inkf/kdkjh] djxgj us vihykFkhZ dks iYyo izf'k{k.k esa lfEefyr gksus gsrq Kkikad 521 fnukad 29-11-2013 ls Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 3 funsZ'k fn;k FkkA bl vk/kkj ij Hkh mls osru Hkqxrku dk vkns'k ikfjr fd;k tkuk U;k;laxr gS vkSj bl izdkj vihykFkhZ ds i{k eas vkns'k ikfjr fd;k tk;A 10- eSua s vihykFkhZ ds fo}ku vf/koDrk ds rdZ ds vkyksd esa loZ izFke lh0MCyw0ts0lh0 la[;k 16278@2011 ,oa lh0MCyw0ts0lh0 la[;k 153@2013 ds fu.kZ; esa izfrikfnr fl|kUr dk llEeku voyksdu fd;k rks ;g rF; Li"V gqvk fd ekuuh; mPp U;k;ky; us mPprj ek/;fed f'k{kk ifj"kn fnYyh ;k mPprj ek/;fed f'k{kk ifj"kn~ ubZ fnYyh }kjk iznRr izek.k i= dks dgha Hkh vafre :i esa oS/k izek.k i= fu;kstu gsrq ugha ekuk gS cfYd mDr nksuksa fu.kZ;ksa esa ;g vo/kkfjr fd;k fd lEcaf/kr i{kksa dks lquus ds ckn izek.k i= ds vk/kkj ij fu;kstu ds lEcU/k esa dkj.k lfgr vkns'k ikfjr fd;k tk;sxkA bl izdkj lh0MCyw0ts0lh0 la[;k 16278@2011 ,oa lh0MCyw0ts0lh0 la[;k 153@2013 dk dksbZ ykHk vihykFkhZ lat; flag dks izkIr ugha gks ikrk gSA 11- iz[kaM f'k{kk inkf/kdkjh] djxgj dh vksj ls izLrqr fcgkj ljdkj f'k{kk foHkkx ds vkns'k la[;k 7@fo03&18@12&314 fnukad 09-05-2012 dks Hkh eSsus voyksdu fd;k rFkk bl lEca/k esa vihykFkhZ ds fo}ku vf/koDrk ds rdZ ij Hkh fopkj fd;kA mDr vksn'k ds voyksdu ls Li"V gksrk gS fd fcgkj ljdkj us mPprj ek/;fed f'k{kk ifj"kn~ fnYyh ,oa mPprj ek/;fed f'k{kk ifj"kn~ ubZ fnYyh nksuksa dks fcgkj jkT; esa f'k{kd in ds fu;kstu gsrq vekU; ?kksf"kr fd;k gSaA fcgkj ljdkj dk mDr fu.kZ; fufrxr fu.kZ; gS vkSj mDr fu.kZ; dh leh{kk dk vf/kdkj izkf/kdkj dks izkIr ugha gSA bl izdkj vihykFkhZ dks mlds fo}ku vf/koDrk ds rdZ ds vkyksd esa dksbZ ykHk ugha fn;k tk ldrk gSA 12- vc eSa vihykFkhZ ds fo}ku vf/koDrk ds vksj ls i=kad 521 fnukad 29-11-2013 ij fn;s x;s rdZ dks fopkj gsrq xzg.k djrk gwWA mDr i= ds voyksdu ls Li"V gks jgk gS fd vihykFkhZ lat; flag dks fnukad 25-11-2013 ls fnukad 29-11-2013 rd iYyo izf'k{k.k gsrq iz[kaM f'k{kk inkf/kdkjh us Hkstus dk vkns'k fuxZr fd;k gSA okLro esa mDr vkns'k esa vuqlkj vihykFkhZ lat; flag izf'k{k.k fy;k ;k ugha Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 4 ;g Li"V ugha gks ikrk gSa blds lkFk gh ;g Hkh mYys[kuh; gS fd tc vihykFkhZ dk fu;kstu dk izek.k i= gh fcgkj ljdkj ds fu.kZ; ds vuqlkj fu;kstu gsrq ekU; ughas gS] rks izf'k{k.k esa Hkkx ysus gsrq vkns'k ikfjr gks tkus ls muds 'kS{kf.kd izek.k izek.k i= dks oS/krk izkIr ugha gks ldrh gSa bl izdkj mDr rdZ dk Hkh ykHk vihykFkhZ dks izkIr ugha gks ldrk gSA 13- mijksDr foospu ds vk/kkj ij eSa bl jk; dk gwW fd vihykFkhZ lat; flag dk fu;kstu oS/k laLFkk ds 'kS{kf.kd izek.k i= ds vk/kkj ij ugha fd;k x;k gS vkSj mDr izek.k i= ds vuqlkj gq, fu;kstu dks vk/kkj ekudj ekg ebZ 2012 ds i'pkr ekg twu 2012 esa osru Hkqxrku dk vkns'k ugha fn;k tk ldrk gS vkSj vihykFkhZ lat; flag dh vihy fujLr gksus ;ksX; gSa rnuqlkj vkns'k ikfjr fd;k tkrk gSA**

3. Learned counsel for the petitioner has, however, submitted that the issue with regard to validity of the qualification of Intermediate acquired from the Board of Higher Secondary Education, Delhi has not yet been decided by the State Govt. of Bihar though some other person has obtained an information under the Right to Information Act from the Ministry of Human Resources Development Department dated 20.6.2009, wherein it has been stated that the Board of Higher Secondary Education, Delhi is a certified Institute from 28th February, 1964 and that the Board is recognized for employment under Central/ Bihar Government/ Union Territory Government/ Administration and for Education/ Higher Education in Indian Boards/ Universities. On the basis of this learned counsel for the petitioner has Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 5 submitted that the aforesaid finding of the Tribunal cannot be sustained.

4. In the considered opinion of this Court first of all this document was well considered by the Tribunal and the Tribunal had held that the petitioner did not possess the requisite Intermediate qualification. As a matter of fact the qualification having been reduced in the statutory Rules, relevant portion whereof reads as follows:

^^2- ljdkj }kjk ekU;rk izkIr f'k{kd.k laLFkku ls mPprj ek/;fed@bUVjehfM,V vFkok led{k ijh{kk mRrh.kZ gksA 3- jk"Vzh; v/;kid f'k{kk ifj"kn~ (N.C.T.E.) }kjk ekU;rk izkIr izf'k{k.k laLFkku ls nks o"khZ; f'k{kd izf'k{k.k fMIyksek ;k lfVZfQdsV vFkok izkjfEHkd f'k{kk esa LUkkrd ¼ch0,y0,M0½A ijUrq bl fu;ekoyh ds v/khu izFke fu;ktu esa oSls mEehnokjksa dk Hkh fu;kstu fd;k tk ldsxk] tks ljdkj }kjk ekU;rk izkIr fo|ky; ls eSfVzd vFkok led{k ijh{kk mRrh.kZ gks rFkk jk"Vzh; v/;kid f'k{kk ifj"kn~ (N.C.T.E.) vf/kfu;e ykxw gksus ds iwoZ ekU;rk izkIr izf'k{k.k fo|ky;@egkfo|ky; ls nks o"kksZa dk f'k{kd izf'k{k.k ijh{kk ikl gksA** (underlining for emphasis)

5. Thus, the onus will be always on the petitioner to show as to which State Government had given recognition to the Board of Higher Secondary Education, Delhi. As is well known every State has got its examination Board. For example, the State of Bihar there is Bihar School Examination Board which has been Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 6 created by an Act Legislature. Such Boards have been authorized to hold Matriculation Examination/ Intermediate Examination under the statutory provisions. Thus, for the Board having recognition of the Government there has to be a conscious decision and the order of the Government with regard to such recognition. This was only to be produced by the petitioner either before his appointing authority who had initially questioned the qualification of the petitioner or before the Tribunal where he had tried to espouse his case for continuation and payment of salary. Unfortunately this document has not been produced by the petitioner either before the authorities or the Tribunal or even before this Court.

6. The opinion obtained under the Right to Information Act by one Sunil Kumar cannot be even remotely understood in absence of what query he had actually made from the Ministry of Human Resources Department. Admittedly the Government of India has never issued any order of recognition relating to Board of Higher Secondary Education, Delhi and therefore, the presumptive opinion recorded therein will not bind at least the authorities requiring full compliance of the statutory Rules relating to appointment on the post of Panchayat Teacher.

7. An aspect that the petitioner's appointment was made Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 7 by the Panchayat and therefore, he had also started working will entitle him to claim payment of salary or continuation in service is also no longer res integra. If the petitioner's appointment was made on the basis of invalid qualification of Intermediate he will not be entitled for payment of salary. Reference in this connection may be usefully made to the judgment of the Full Bench in the case of Rita Mishra & ors. vs. Director, Primary Education, Bihar & ors., reported in 1987 PLJR 1060 which has also been approved by the Apex Court in the case of R. Vishwanatha Pillai v. State of Kerala & ors., reported in (2004)2 SCC 105, wherein approving the judgment of the Full Bench of this Court in the case of Rita Mishra (supra) it has been held as follows:

"15. --------- Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 8 enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. 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.

16. In Ishwar Dayal Sah v. State of Bihar the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and was therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held: (Lab IC pp. 394-95, para

12) If the very appointment to civil post is vitiated by Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 9 fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and the door is barred against him, the cloak of protection under Article 311 is not attracted.

17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13) "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 the 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."

18. We agree with the view taken by the Patna High Court in the aforesaid cases.

19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 10 has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing Patna High Court CWJC No.3888 of 2014 (2) dt.18-04-2014 11 fraud."

(Underlining for emphasis)

8. In view of above, this Court does not find any error in the impugned order of the Tribunal. This application, accordingly, fails and is, accordingly, dismissed.

(Mihir Kumar Jha, J) surendra/-

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Patna High Court - Orders