Allahabad High Court
Zila Basic Shiksha Adhikari , Balrampur vs Anand Kumar Tripathi And Others on 15 May, 2024
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:37313-DB Court No. - 2 Case :- SPECIAL APPEAL No. - 110 of 2024 Appellant :- Zila Basic Shiksha Adhikari , Balrampur Respondent :- Anand Kumar Tripathi And Others Counsel for Appellant :- Rishabh Tripathi Counsel for Respondent :- Surya Kumar,C.S.C.,Girish Chandra Verma,Ran Vijay Singh Hon'ble Rajan Roy,J.
Hon'ble Om Prakash Shukla,J.
1. Heard Shri Rishabh Tripathi, learned counsel for the appellant, learned Additional Chief Standing Counsel for the State and Shri Girish Chandra Verma, learned counsel for the respondent no. 1.
2. This is a Special Appeal against the judgment/order of the learned Single Judge allowing the writ petition of the opposite party no. 1 against the order dated 12.08.2023 by which the services of the opposite party no. 1 were terminated on the ground that his appointment was fraudulent.
3. The facts of the case in brief are that opposite party no. 1's father Janardan Prasad Tripathi, as claimed by him, was an employee in the Office of Basic Education Officer, Gonda. He died on 15.12.1985. Consequent to his death the opposite party no. 1 the son, as claimed, was given compassionate appointment as per Rules/Government Orders prevailing at that time. Shri Janardan Prasad Tripathi, as informed by Shri G.C. Verma, learned counsel for respondent no. 1, was a permanent resident of Village- Puranpur Arjunpur, Post Office- Tulsipur, District- Balrampur. An appointment letter was issued to the opposite party no. 1 on 13.12.1997, copy of which is annexed as Annexure No. 3 to the writ petition and is on the record of this appeal at page 48. The said letter is dated 31.12.1997 and is said to have been issued from the Office of the District Basic Education Officer, Balrampur. A general complaint was made about illegal compassionate appointments in the Basic Education Departments, especially, at Gonda and Balrampur, therefore, an inquiry was setup, however, as alleged by the appellant herein, the opposite party no. 1 did not cooperate in the inquiry conducted by the B.S.A., Balrampur and ultimately, the B.S.A., Balrampur sent his report along with letter dated 20.07.2023. Based thereon show cause notices were issued one after the other by the appellant to the opposite party no. 1 but he did not participate in the aforesaid inquiry and his Parentage/Succession Certificate, which was necessary for seeking such compassionate appointment, was not on record. Hence, the appointment was, prima facie, mentioned as fraudulent and illegal. The respondent no. 1 claims to have submitted his reply on 17.05.2023 to response to the notice dated 09.05.2023 stating that he could not appear in the inquiry due to his medical condition and his leave was duly sanctioned by the competent authority. On account of absence he could not produce the document, however, after regaining health he has submitted all the relevant documents and letters in the Office of the B.S.A., Balrampur on 30.11.2022, however, so far as 'Parivarjan Pramanparttra' was concerned, he has lost it. He is trying to find the same. As soon as, it is available it would be submitted.
4. Learned counsel for the respondent no. 1 submitted that same has now been found and brought on record along with short counter affidavit, copy of which has been annexed as SCA No. 7 page 10. The said certificate has been issued on behalf of the District Magistrate, Balrampur on 24.09.1997 and it is of date prior to his appointment letter. It mentions the name of respondent no. 1 as one of the legal heirs i.e. son, of Late Janardan Prasad Tripathi. As per appellant's counsel this document was not submitted prior to passing of the termination order. This resulted in the order of termination of services which was impugned before the writ Court, a copy of which is on record at Page 41 to the paper book of this Special Appeal.
5. The services of opposite party no. 1 were terminated on account of failure to produce relevant documents as regards his parentage etc. The termination order clearly mentions about failure of the opposite party no. 1 to produce relevant documents as demanded which is the Parentage/Succession Certificate. It refers to reply dated 30.10.2023 wherein the respondent no. 1 had stated that he had submitted all other documents but the 'Parivarjan Pramanpattra' had been lost by him. Learned Single Judge has allowed the writ petition of the opposite party no. 1 on the ground that no proper inquiry has been conducted. In fact, by a similar order several writ petitions were allowed, although, the grounds of termination were different in some of them. In the case at hand, it was not the ground that elder brother had already secured compassionate appointment and opposite party no. 1 then secured a second appointment on compassionate basis fraudulently or illegally. Here, the ground of termination was that the parentage of the respondent no. 1 was not clear as the Parentage (valdiyat)/Succession Certificate which should have been in the records of the Basic Education Officer, Balrampur or Gonda, as the case may be, was not available, therefore, he was asked to produce the same which he failed to do so. Hence, an inference was drawn that the initial appointment was illegal.
6. Learned counsel for the appellant says that as regards the appointment of the opposite party no. 1 some of the documents were in the Office of the B.S.A., Gonda and as subsequently on account of bifurcation of the districts, district Balrampur was created, therefore, some of the documents were at District- Balrampur. The documents at District- Gonda were not available, therefore, the respondent no. 1 was asked to furnish the document. He did not do so and therefore, inference has been drawn that the appointment is illegal as he has failed to provide the document inspite of sufficient opportunity and did not even participate in the inquiry.
7. However, while filing the writ petition the opposite party no. 1 had annexed various documents such as his educational testimonials wherein his father's name is mentioned as Janardan Prasad Tripathi. He has, now, brought on record a document as already mentioned hereinabove annexed as Annexure No. SCA -7 to the short counter affidavit which, according to him, had been issued from the Office of the District Magistrate, Balrampur and pertains to the legal heirs of Late Janardan Prasad Tripathi. This, according to the opposite party no. 1, satisfies the queries of the appellant, however, appellant's counsel says that this document was not filed earlier.
8. Be that as it may, now, that the documents which were being demanded have been annexed with the writ petition and also in these appellate proceedings are available and the case of the opposite party no. 1 is different from the other cases in which we had passed interim orders on an appeal filed by the appellant herein, we are of the opinion that the matter should be got verified/ inquired by the appellant as per law to ascertain the veracity of these documents, the permanent residence of erstwhile employee Shri Janardan Prasad Tripathi whose records must be available in the Officer of B.S.A. from where he has retired or from any other office from which he may have retired and then the veracity of the documents submitted by the opposite party no. 1, especially, the document annexed as Annexure No. SCA -7 which is dated 24.09.1997 should also be got verified/ inquired and thereafter a considered decision should be taken in the matter with adequate opportunity to the opposite party no. 1 in this regard to defend himself.
9. Now, in this very context a question has arisen as to whether in such a case show cause notice should be issued and thereafter order of cancellation of appointment should be passed or full-fledged inquiry in terms of U.P. Government Servants (Discipline and Appeal) Rules, 1999 should be held followed by removal or dismissal. We must keep in mind that Disciplinary Proceedings are ordinarily initiated if any misconduct has been committed after joining service.
10. We are of the opinion that if the initial appointment itself was fraudulent, then, the Supreme Court decision in the case of R. Vishwanatha Pillai vs. State of Kerala and others reported in (2004) 2 SCC 105 comes into the picture and we may in this context fruitfully quote from the said judgment. Paragraphs 15, 16, 17 and 18 thereof.
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. 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 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 practising 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 [1987 Lab IC 390 : 1987 BBCJ 48 (Pat)] 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:
"If the very appointment to civil post is vitiated by 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 [AIR 1988 Pat 26 : 1988 Lab IC 907 : 1987 BBCJ 701 (FB)] . 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:
"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."
11. On a bare perusal of it, it is evident that the ratio of said judgment is that an appointment secured by fraud is no appointment in the eyes of law and, therefore, such an appointee cannot claim a right to the post as he had usurped the post in the said case meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the person can lay a claim to the post on the basis of his appointment he cannot claim constitutional guarantee given under Article 311 of the Constitution of India. 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. After noticing the finding of Scrutiny Committee in the said case, it further held that it cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant therein had obtained 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. The Supreme Court further observed that 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 of India is not attracted at all.
12. Taking a cue from the ratio of the decision of the Supreme Court, we are of the opinion that if it is ultimately found on inquiry referred earlier that the opposite party no. 1 had practiced fraud or deceit to obtain the appointment as already discussed, then, it would be a case to proceed for cancellation of appointment by issuing a show cause notice for the said purpose annexing the inquiry report and material collected in such inquiry and then considering the reply of the appointee in this regard and taking a reasoned decision after affording an opportunity of personal hearing for cancellation of appointment and not necessarily for dismissal or removal of service, therefore, there is no question of any inquiry to be held in terms of Rules, 1999 as has already been held in the aforesaid decision of the Supreme Court.
13. This will be sufficient observance of principles of natural justice. It may also be pointed out that an employee of Basic Education Department does not have the benefit of Article 311 of the Constitution of India as Article 311 of the Constitution of India would not apply, however, the relevant rules for disciplinary proceedings for imposition of major punishment such as removal, dismissal etc. would apply, but, for the reasons aforesaid, those will also not apply if on a fact finding inquiry it is found that the appointment was obtained by fraud, as already observed hereinabove and thereafter the aforesaid procedure is followed.
14. Now, the Supreme Court in R. Vishwanatha Pillai's case (supra) did not only stop at this it also considered the question as to whether salary already paid to such a person who has obtained appointment by fraud should be recovered or not. In this context, it referred to a Full Bench decision of the Patna High Court in the case of Rita Mishra Vs. Director, Primary Education, Bihar reported in AIR 1988 Patna 26 wherein it had been held as already quoted above that rights of salary, pension and another service benefits are entirely statutory in nature in public service. Therefore, these rights including the rights 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 eyes of law, no statutory entitlement for salary of constitutional rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested in forgery, no statutory right can flow it. After noticing these observations of the Full Bench of Patna High Court, the Supreme Court in para 18 of its report expressed agreement with the view taken by Patna High Court. We say no more in this case, as, we have not reached at that stage and the inquiry is still to be held.
15. We may in this context refer to certain decisions cited by Shri G.C. Verma, learned counsel opposite party no. 1. He has very conveniently referred to Para 13 of the judgment in the case of R. Vishwanath Pillai's case (supra) while omitting to read para 15, 16, 17 and 18, which, in fact are relevant and applicable as discussed earlier. Para 13 only refers what the High Court had held and not what the Supreme Court was of the opinion. He has, thereafter, referred to the decision of Hon'ble Supreme Court reported in 2010 2 SCC 772; State of Uttar Pradesh and Ors. Vs. Saroj Kumar Sinha, which was a case relating to the procedure to be followed in a disciplinary proceeding governed by Rules known as 1999 Rules. We have already held that Rules, 1999 will come into play only when a punishment of removal, dismissal is sought to be imposed but not in a case of cancellation of appointment, as, discussed in R. Vishwanatha Pillai's case (supra).
16. He has also referred to two other decisions, one is by a Division Bench of this Court in Special Appeal Defective No. 110 of 2014; Smt. Parmi Maurya Vs. State of U.P. and Ors. wherein the decision in R. Vishwanatha Pillai's case (supra) was considered, however, that was a case where services of a Health Worker had been terminated without holding any inquiry whatsoever. The writ Court instead of noticing the fact that no inquiry was held wherein the said petitioner may have been involved arrogated to itself the task of scrutinizing the records to arrive at a conclusion as to whether the Certificate and Mark sheet submitted by the appellant were genuine or otherwise, therefore, against this factual background a Coordinate Bench of this Court disapproved such action and observed that this was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. As regards the reliance placed by learned Single Judge in the said case upon the decision of R. Vishwanatha Pillai (supra) the Coordinate Bench observed that in the case of R. Vishwanatha Pillai (supra), the appellant was appointed to the Indian Police Service on the basis of a scheduled caste certificate. A full-fledged inquiry was conducted by the Scrutiny Committee. The order of the Scrutiny Committee invalidating the caste claim was upheld both before the High Court and the Supreme Court. Due opportunity was given to the appellant by the Scrutiny Committee to put forth his defence. The Coordinate Bench further observed that It was, in this background that the Supreme Court held that issuance of fresh notice under the Rules was not necessary as the genuineness of the certificate had already been examined by an independent body constituted under the direction of the Supreme Court in Kumari Madhuri Patil Vs. Additional Commissioner reported in AIR 1995 SC 94. It has then mentioned that the facts of the present case i.e. in Smt. Parmi Maurya were clearly distinguishable.
17. Having gone through said judgment in Smt. Parmi Maurya (supra) we do not see as to how this comes to the aid of the respondent herein, as, in this case the Disciplinary Proceedings have already been quashed by the learned Single Judge on the ground of Rules and Procedure not being followed with which we are not interfering. No such proposition of law has been laid down by the Coordinate bench in Smt. Parmi Maurya (supra) that in every case involving allegation of obtaining appointment by fraud, concealment or misrepresentation, disciplinary proceedings only as per Rules 1999 have to be held for proving misconduct and not for cancellation of appointment. The ratio of the judgment is that any such action disengaging such appointee has to be preceded by due and proper inquiry wherein he has to be given adequate opportunity of hearing, which we have taken care of in the earlier part of the judgment. The Coordinate Bench in the case of Smt. Parmi Maurya (supra) nowhere says that the course of action being ordered by this Court hereinabove and hereinafter is impermissible, therefore, the said judgment does not come in our way.
18. The other decision relied upon has been rendered by Hon'ble the Supreme Court and is reported in 2011 AIR SCW 1814 (Union of India & Ors. Vs S.K. Kapoor). The said decision is on the point of supply of inquiry report in disciplinary proceedings about which there can be no quarrel.
19. We accordingly modify the impugned judgment in so far the learned Single Judge has issued a direction for initiation of fresh Disciplinary Proceedings/ Inquiry as per the Rules, 1999, for the reasons already given hereinabove. Instead, it is ordered that a fact finding inquiry should be held keeping in mind the observations made by us here-in-above. This will necessarily entail a fact finding inquiry for verification for the aforesaid issues/documents wherein the opposite party no.1 shall also be involved. We further clarify that if it is found on the basis of such inquiry that it is a case of obtaining appointment fraudulently i.e. if the opposite party no.1 was not the son of Janardan Prasad Tripathi who was an employee of the B.S.A. Department and/ or if the certificates and documents submitted by him as regards his parentage are found to be false or fictitious, then, it would not be a case for his dismissal or removal but a case where a notice should be issued to him for cancellation of his appointment because his inception in service itself would be fraudulent. Such show cause notice shall be accompanied by the inquiry report and material on which it is based. He shall be given reasonable time to file his reply. The version/reply of respondent, if any, shall be taken into consideration. He shall also be given personal hearing, unless he declines it, wherein he can explain his version and then a speaking order shall be passed considering his reply, if any.
20. Needless to say that after inquiry if it is found that there was no fraud, rather it was mere absence of relevant material before the appellant which has resulted in the action against the opposite party no. 1, then, the matter shall rest as it is and the opposite party no. 1 shall be entitled to all benefits including continuity of service and consequential salary etc. for the period he has remained out of service on account of the termination order which has been quashed, but, this will be only after the aforesaid fact finding inquiry is conducted as ordered by us. The order of learned Single Judge is modified, accordingly, in terms of aforesaid.
21. Consequent to this and subject to the above, the opposite party no. 1 shall be reinstated forthwith and shall be paid current and future salary as per Rules however, arrears of salary and other benefits would be dependent upon the result of the inquiry as aforesaid.
22. The special appeal is disposed of with modification of the judgment of the learned writ Court in the light of what we have stated hereinabove.
(Om Prakash Shukla,J.) (Rajan Roy,J.)
Order Date :- 15.5.2024
R.K.P./Vipul