Uttarakhand High Court
Vikram Singh Negi vs State Of Uttarakhand & Others on 3 October, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:7331
RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (S/S) No. 254 of 2023
Vikram Singh Negi. ...Petitioner
Versus
State of Uttarakhand & others. ...Respondents
with
WRIT PETITION (S/S) No. 1275 of 2020
WRIT PETITION (S/S) No. 1939 of 2019
WRIT PETITION (S/S) No. 354 of 2020
WRIT PETITION (S/S) No. 531 of 2020
WRIT PETITION (S/S) No. 633 of 2020
WRIT PETITION (S/S) No. 1283 of 2020
WRIT PETITION (S/S) No. 1294 of 2020
WRIT PETITION (S/S) No. 1301 of 2020
WRIT PETITION (S/S) No. 1691 of 2020
WRIT PETITION (S/S) No. 1693 of 2020
WRIT PETITION (S/S) No. 265 of 2021
WRIT PETITION (S/S) No. 514 of 2021
WRIT PETITION (S/S) No. 1312 of 2021
WRIT PETITION (S/S) No. 679 of 2022
WRIT PETITION (S/S) No. 893 of 2022
WRIT PETITION (S/S) No. 1008 of 2022
WRIT PETITION (S/S) No. 1355 of 2022
WRIT PETITION (S/S) No. 1521 of 2022
WRIT PETITION (S/S) No. 1818 of 2022
WRIT PETITION (S/S) No. 1979 of 2022
WRIT PETITION (S/S) No. 2090 of 2022
WRIT PETITION (S/S) No. 98 of 2023
WRIT PETITION (S/S) No. 465 of 2023
WRIT PETITION (S/S) No. 466 of 2023
WRIT PETITION (S/S) No. 877 of 2023
2024:UHC:7331
(Mr. Alok Mahra, Mr. Niranjan Bhatt, Mr. Vinay Kumar, Mr. Anil Anthwal, Mr.
D.K. Bankoti, Mr. Lalit Samant, Mr. S.S. Yadav, Mr. Mahendra Singh Rawat,
Mr. Susheel Kumar, Mr. Anand Singh Mer, Advocates for the petitioners.
Mr. C.S. Rawat, Chief Standing Counsel, Mr. Pradeep Hariya, Mr. Gajendra
Tripathi, Mr. Narain Dutt, Mr. Atul Bahuguna, Mr. J.S. Bisht, Standing Counsel
and Mr. Devesh Ghildiyal and Mr. R.C. Joshi, Brief Holder for the State of
Uttarakhand.
Mrs. Mamta Bisht, Mr. Shivanand Bhatt, Mr. Anil Kumar Dabral and Mr. Vikas
Pande, Advocates for the private respondents.)
Reserved on :20.09.2024
Delivered on :03.10.2024
JUDGMENT
Petitioners in these writ petitions were appointed as Teacher in different Government Primary Schools and Government High Schools. Their services were terminated on the ground that they are not qualified for such appointment and the Certificate/Degree produced by them were found to be forged. Petitioners have challenged the termination order passed against them, in these writ petitions.
2. Allegation against petitioners in Writ Petition (S/S) No.514 of 2021 and Writ Petition (S/S) No.1312 of 2021 is that they secured appointment against a post reserved for Scheduled Caste; although, they do not belong to Scheduled Caste and the caste certificate produced by them for securing appointment was found to be fake.
3. Since common questions of law and fact are involved in these writ petitions, therefore they were heard together and are being decided by a common judgment. However, for the sake of brevity, facts of 2024:UHC:7331 Writ Petition (S/S) No.254 of 2023 alone are being considered and discussed.
4. Vikram Singh Negi, who was appointed as Assistant Teacher, Government Primary School, in Rudraprayag in 2005, has filed Writ Petition (S/S) No.254 of 2023, seeking the following reliefs:
"i) Issue a writ order or direction in the nature of certiorari to quash impugned termination order dated 14.10.2022 passed by respondent no.4 (contained as Annexure No.27 to this writ petition) and appellate order dated 18.11.2022 passed by respondent no.3 (contained as Annexure No.29 to this writ petition).
ii. Issue a writ order or direction in the nature of mandamus directing respondents to reinstate the petitioner in service with all consequential service benefits including continuity of service and back wages with interest."
5. As per the pleadings made in the Writ Petition (S/S) No.254 of 2023, petitioner was appointed as Assistant Teacher vide order dated 30.10.2005. His services were terminated by District Education Officer (Elementary), Rudraprayag vide order dated 14.10.2022, which is under challenge in this writ petition.
6. The impugned order is on record as Annexure No.27 to the writ petition. Perusal of the said order reveals that complaints were received that B.Ed. Degree produced by petitioner at the time of his appointment, is fake; Deputy Education Officer, Jakholi referred his B.Ed. mark sheet for verification to Chaudhary Charan Singh University, Meerut and the University replied that the mark sheet was not issued by the University; based on University's reply, a charge 2024:UHC:7331 sheet was issued to petitioner on 06.07.2017 and petitioner, with his reply, submitted an envelope, allegedly issued by the University, containing a letter, in which the University verified his mark sheet; thereafter, the matter was referred to Special Investigation Team and when the officer of Special Investigation Team visited the University for verification of the B.Ed. Degree/Mark Sheet of petitioner, then the University issued a letter dated 25.05.2018 stating that "the above mentioned details are not as per university enrolment & confidential record. It seems otherwise". Based on the report submitted by Inspector, Special Investigation Team, petitioner was put under suspension and, on 20.07.2018, charge sheet was issued to him and since the reply given by petitioner was not found satisfactory, therefore, his services were terminated on 28.08.2018. Petitioner successfully challenged his termination by filing Writ Petition (S/S) No.952 of 2019, and he was reinstated, thereafter enquiry was again initiated against him, which resulted in passing of the termination order, impugned in this writ petition.
7. Mr. Lalit Samant, learned counsel appearing for the petitioner submits that the services of the petitioner were terminated by way of punishment, therefore, provision contained in Article 311(2) of the Constitution are attracted. He further submits that although charge sheet was issued to petitioner, however, list of witnesses was not supplied to him, oral evidence of the witness was not recorded and petitioner was denied opportunity of cross-examining the departmental witnesses. Thus, he submits that the 2024:UHC:7331 provision contained in Uttarakhand Government Servants (Discipline and Appeal) Rules, 2003, as amended in 2010, were not followed, therefore, termination order passed against the petitioner is unsustainable in the eyes of law. It is further contended that Disciplinary Authority appointed Inquiry Officer while issuing charge sheet and petitioner was asked to submit reply to Inquiry Officer, which is contrary to Rules. It is further contended that Inquiry Officer recommended punishment to be imposed, which is impermissible in view of provision contained in Rule 8 of the aforesaid Rules.
8. Per contra, learned State Counsel submits that termination order was passed against the petitioner as per law and he was given full opportunity to defend himself, and the allegation of violation of provision contained in Discipline and Appeal Rules, 2003, is unfounded. He submits that reasonable opportunity was given to petitioner, however, he could not produce any evidence in support of his contention that he was awarded B.Ed. Degree by Chaudhary Charan Singh University, Meerut. He submits that, without B.Ed. Degree, which is an essential qualification for appointment, petitioner is ineligible for appointment as Assistant Teacher; several attempts were made to verify the B.Ed. Degree of petitioner and, every time, University responded by stating that, as per records, it had not issued B.Ed. Degree to petitioner.
9. Learned State Counsel submitted that several complaints were being received since last several years that unqualified persons have managed to secure 2024:UHC:7331 appointment as Teacher in Government/Government Aided Schools, on the strength of fake mark sheets/ certificates and a P.I.L. was also entertained by Division Bench of this Court, in which certain directions were issued to the State Authorities. Relevant portion of the order dated 05.10.2023 passed by Division Bench of this Court in Writ Petition (PIL) No.37 of 2020, relied by learned State Counsel, is extracted below:
"5. We fail to understand, as to why the State is dragging its feet in the matter. In the present electronic age, it should have been possible for the State to verify all the certificates of all the serving teachers by now.
6. Mr. Pande submits that the State has addressed a communication to all the Institutions, which have issued the certificates produced by the teachers, and some of them have not responded. In all such cases, the State should, firstly, verify from the concerned State, wherever the Institution is stated to exist, whether such an Institution exists. Secondly, the onus should be placed on the teacher concerned, who has produced the certificate(s) to establish its authenticity. Otherwise, the teacher, who may have produced a completely forged certificate from a non-existent Institution, would continue to serve as a teacher, only because there is no response from the non-existent Institution.
7. We are very clear that a teacher, who has submitted forged and fabricated documents to obtain employment, cannot impart either good moral teachings, or values to the students, and such a teacher would be most undesirable to continue in service. It is a well settled principle that fraud unravels all, and such teachers do not acquire any vested right to continue in employment, and should be removed from service forthwith.
8. So far as the 69 teachers, whose certificates have been found to be forged, are concerned, Mr. Pande states that 52 of them have been dismissed. In relation to others, show cause notices have been issued, or they have approached this Court by filing petitions.
9. We would like the respondents to finalize the show cause notices without any delay, 2024:UHC:7331 positively within the next three weeks. The State should also place the list of Writ Petitions pending before this Court, which have been preferred by the teachers, against whom the allegations is that they have produced forged and fabricated certificates. The list be filed before the next date. The process of verification of certificates of all other teachers should positively be concluded within the next six weeks. A further status report should be filed before the next date."
10. Learned State Counsel submits that the Departmental Authorities were justified in terminating services of petitioners, as educational certificate relied by them for securing appointment was found to be fake. He further submits that all the petitioners were given reasonable opportunity of defending their educational certificates/mark sheets, however, they could not get verification report from the concerned Education Board/University, supporting their claim that Certificate/Degree possessed by them is valid. Learned State Counsel further submits that some of the petitioners have not passed 10th Standard (High School Examination) and they have produced fake High School Certificate/Mark Sheet. Thus, he submits that permitting such persons to serve as Teacher in Government Schools of Uttarakhand, would be detrimental to the interest of students and will set a bad example for young children of impressionable mind.
11. Learned counsel for the petitioners submitted that since petitioners' have put in long services after regular appointment, therefore, holding departmental inquiry would be necessary before passing order of termination. He further submitted that report of the 2024:UHC:7331 Enquiry Officer was not supplied to the petitioner, which is necessary as held by Hon'ble Supreme Court in the case of "Union of India & others Vs. Mohd. Ramzan Khan", reported in (1991) 1 SCC 588.
12. Per contra, learned State Counsel submits that since petitioner is not educationally qualified for appointment as Teacher in Government Schools and the B.Ed. Degree relied by him was declared to be fake by Chaudhary Charan Singh University, Meerut, therefore, the very basis of his appointment as Teacher goes and his appointment is void ab initio. He, thus, submits that petitioner does not have any right to hold the post, as he had usurped the post meant for a qualified candidate; he practiced fraud upon the authorities, therefore, he cannot argue that he became holder of a civil post. He further submits that petitioner obtained appointment by playing fraud, therefore, he cannot be allowed to take advantage of his fraud for claiming that he is entitled to protection of Article 311 of the Constitution, which is available to holder of a civil post. He relied upon a judgment rendered by Three Judges Bench of Hon'ble Supreme Court in the case of "R. Vishwanatha Pillai Vs. State of Kerala & others, reported in (2004) 2 SCC 105. Relevant extract of paragraph no.15 of the said judgment heavily relied by learned State Counsel is reproduced below:
"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."
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13. In paragraph no. 19 of the said judgment, Apex Court has summarised law on the point in following words:
"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 practising fraud."
14. Learned State Counsel refers to another judgment rendered by Three Judges Bench of Hon'ble Supreme Court in the case of "State of Bihar & others Vs. Kirti Narayan Prasad", reported in (2019) 13 SCC
250. Paragraph no. 16 of the said judgment is extracted below:
"16. In the instant cases, the writ petitioners have filed the petitions before the High Court with a specific prayer to regularise 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 the Civil Surgeon-cum-Chief Medical Officer concerned 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 2024:UHC:7331 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 regularisation of their services by invoking para 53 of the judgment in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753] 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 311 of the Constitution or under any other disciplinary rules shall not arise."
(emphasis supplied)
15. Hon'ble Supreme Court in the case of "Meghmala & others Vs. G. Narasimha Reddy & others", reported in (2010) 8 SCC 383, while laying down the consequences of fraud by a party, held as under:
"28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal."
(Vide S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1 : AIR 1994 SC 853] .) In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA)] the Court observed without equivocation that : (QB p.
712) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
29. In A.P. State Financial Corpn. v. GAR Re- Rolling Mills [(1994) 2 SCC 647 : AIR 1994 SC 2151] and State of Maharashtra v. Prabhu [(1994) 2 SCC 481 :
1994 SCC (L&S) 676 : (1994) 27 ATC 116] this Court observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith. "Equity is always 2024:UHC:7331 known to defend the law from crafty evasions and new subtleties invented to evade law."
30. In Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC 534 : AIR 1992 SC 1555] it has been held as under : (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."
31. In United India Insurance Co.
Ltd. v. Rajendra Singh [(2000) 3 SCC 581 :
2000 SCC (Cri) 726 : AIR 2000 SC 1165] this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766] , Union of India v. M. Bhaskaran [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] , Kendriya Vidyalaya Sangathan v. Girdharilal Yadav [(2004) 6 SCC 325 : 2005 SCC (L&S) 785] , State of Maharashtra v. Ravi Prakash Babulalsing Parmar [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5] , Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co. [(2007) 8 SCC 110 : AIR 2007 SC 2798] and Mohd.
Ibrahim v. State of Bihar [(2009) 8 SCC 751 :
(2009) 3 SCC (Cri) 929] .)
33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice.
Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn. [AIR 1963 SC 1572 : (1963) 2 Cri LJ 434] , Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550] , State of A.P. v. T. Suryachandra Rao [(2005) 6 SCC 149 : AIR 2005 SC 3110] , K.D. Sharma v. SAIL [(2008) 12 SCC 481] and Central Bank of 2024:UHC:7331 India v. Madhulika Guruprasad Dahir [(2008) 13 SCC 170 : (2009) 1 SCC (L&S) 272] .]"
16. Similarly, in the case of "Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir & others, reported in (2008) 13 SCC 170, Hon'ble Supreme Court was dealing with the case, where a person had obtained appointment on the basis of a false caste certificate, and it was held that fraud vitiates everything and, therefore, if a person has continued to work on the post for over 20 years, even then, having obtained appointment on the basis of false and forged caste certificate, cannot claim any equity or benefit on that basis. Paragraph nos.14, 15, 16, 17 & 18 of the said judgment are extracted below:
"14. Similarly, the plea regarding rendering of services for a long period has been considered and rejected in a series of decisions of this Court and we deem it unnecessary to launch an exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment to the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, and does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour.
15. An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or 2024:UHC:7331 letter. (See R. Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC 105 : 2004 SCC (L&S) 350] , Bank of India [(2005) 7 SCC 690 : 2005 SCC (L&S) 1011] , BHEL [(2007) 5 SCC 336 :
(2007) 2 SCC (L&S) 152] , Derry v. Peek [(1889) 14 AC 337 : (1886-90) All ER Rep 1 (HL)] , Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311] and Bhaurao Dagdu Paralkar v. State of Maharashtra [(2005) 7 SCC 605] .)
16. In Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] this Court had observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine.
17. Recently, in State of Maharashtra v. Ravi Prakash Babulalsing Parmar [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5] dealing with a similar situation, this Court has observed thus: (SCC p. 89, para 23) "23. The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
18. Having considered the matter in the light of the aforestated legal position, in our judgment, the decision of the High Court is untenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must necessarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim 2024:UHC:7331 in respect of the post merely on the ground that she had worked on the post for over twenty years. The post was meant for a reserved candidate but she usurped the same by misrepresentation and deception. In our opinion, the fact that caste certificate was referred to the Scrutiny Committee for verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appointment."
17. Cancellation of appointments obtained by producing false caste certificates, and by playing fraud, has also been upheld by Hon'ble Supreme Court in the case of Chief Regional Officer, Oriental Insurance Company Limited Vs. Pradip, reported in (2020) 11 SCC 144; Chandrabhan Vs. State of Maharashtra, reported in (2021) 9 SCC 804; and Chief Executive Officer, Bhilai Steel Plant, Bhilai Vs. Mahesh Kumar Gonnade, reported in 2022 SCC Online SC 866.
18. In the case of "Devendra Kumar Vs. State of Uttaranchal", reported in (2013) 9 SCC 363, Hon'ble Supreme Court upheld the cancellation of appointment of a person, who had obtained the same by suppressing material facts regarding the criminal case pending against him and said decision was followed and relied upon by Hon'ble Supreme Court in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited Vs. Anil Kanwariya, reported in (2021) 10 SCC 136.
19. In the case of "State of Chhattisgarh & others Vs. Dhirjo Kumar Sengar, reported in (2009) 13 SCC 600, while dealing with the case of fraud to obtain appointment, Hon'ble Supreme Court has held as under:
2024:UHC:7331 "18. Legality of grant of a valid appointment was dependent upon the proof that the respondent was the adopted son of Chittaranjan Singh Sengar. He not only failed to do so, the materials brought on record by the parties would clearly suggest otherwise. His application for grant of appointment on compassionate ground was rejected by the Joint Director of Education. He did not question the legality or validity thereof. He, it can safely be said, by suppressing the said fact obtained the offer of appointment from an authority which was lower in rank than the Joint Director viz. the Deputy Director. When such a fact was brought to the notice of the Deputy Director that the offer of appointment had been obtained as a result of fraud practised on the Department, he could, in our opinion, cancel the same.
19. The respondent keeping in view the constitutional scheme has not only committed a fraud on the Department but also committed a fraud on the Constitution. As commission of fraud by him has categorically been proved, in our opinion, the principles of natural justice were not required to be complied with."
20. Similarly, in the case of "Superintendent of Post Offices & others Vs. R. Valasina Babu, reported in (2007) 2 SCC 335, Hon'ble Supreme Court reiterated that appointment obtained by practicing fraud, cannot be allowed to be continued.
21. In a recent judgment rendered in the case of "Indian Oil Corporation Ltd. Vs. Rajendra D. Harmalkar, reported in 2022 SCC Online SC 486, Hon'ble Supreme Court has considered the issue of fake certificate for securing appointment.
22. Hon'ble Supreme Court in the case of "Aligarh Muslim University & others Vs. Mansoor Ali Khan, reported in (2000) 7 SCC 529, has considered and discussed the 'useless formality theory', as an exception to principle of 'audi alteram partem'.
2024:UHC:7331 Paragraph nos.21, 22, 23, 24 & 25 of the said judgment are extracted below:
"21. As pointed recently in M.C. Mehta v. Union of India [(1999) 6 SCC 237] there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828 : (1966) 2 SCR 172] it is not necessary to quash the order merely because of violation of principles of natural justice.
22. In M.C. Mehta [(1999) 6 SCC 237] it was pointed out that at one time, it was held in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 (HL)] that breach of principles of natural justice was in itself treated as prejudice and that no other "de facto" prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] Chinnappa Reddy, J.
followed Ridge v. Baldwin [1964 AC 40 :
(1963) 2 All ER 66 (HL)] and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L. Kapoor case [(1980) 4 SCC 379] laid down two exceptions (at SCC p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
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24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31) "[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] . In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. [(1996) 5 SCC 460]
25. The "useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta [(1999) 6 SCC 237] referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some 2024:UHC:7331 others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
23. Learned State Counsel submits that Special Investigation Team was constituted to examine genuineness of educational certificates produced by petitioners at the time of their appointment; the officers of Special Investigation Team visited the concerned University/Board and, upon enquiry, the educational certificate/mark sheet relied by petitioners for securing appointment were found to be forged, as a corollary to this, petitioners are not qualified for appointment and they have secured appointment by playing fraud upon the Authorities. He submits that they are not entitled to protection to Article 311(2) of the Constitution, as held by Honble Supreme Court in the case of R. Vishwanatha Pillai (Supra). He further submits that petitioner cannot be permitted to serve as Teacher, as he is ineligible for appointment and he produced fake documents for securing appointment, therefore, his case is different from dismissal of a Government servant for some misconduct after appointment. He further submits that, in view of categorical finding recorded by Special Investigation Team that petitioners are not educationally qualified for appointment as Teacher, petitioners have no right to continue as Teacher and the grounds taken for challenging their termination are unsustainable. He further submits that none of the petitioners has made statement, based on personal knowledge that all the educational certificates, relied by him for securing appointment, are genuine.
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24. Learned counsel for the petitioner submitted that since petitioner's services were confirmed and he became permanent employee, therefore, he could have been terminated only after holding disciplinary enquiry, as provided under Article 311(2) of Constitution of India. In support of this submission, learned counsel for petitioner has relied upon judgment rendered by Hon'ble Supreme Court in the case of Avtar Singh Vs. Union of India and others, reported in (2016) 8 SCC
471. Relevant paragraphs of the said judgment, on which heavy reliance is placed by learned counsel for the petitioners, are reproduced below:
"33. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran case [Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 :
(1996) 32 ATC 94] , it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however, we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.
38.3. The employer shall take into consideration the government orders/ instructions/rules, applicable to the employee, at the time of taking the decision.
38.9. In case the employee is confirmed in service, holding departmental enquiry would 2024:UHC:7331 be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form."
25. Learned counsel for the petitioner further submits that one similarly situate Teacher, namely, S.S. Gayatri has been re-instated in service, pursuant to order of this Court passed in Writ Petition (S/S) No.1798 of 2019 and no further action has been taken against her.
26. Learned State Counsel denies the submission that services of the petitioner were confirmed and submits that no such averment is made in the writ petitions. He further submits that in the order dated 16.06.2022 passed by District Education Officer (Elementary), Pauri Garhwal, it is provided that, after permitting S.S. Gayatri to resume duties, disciplinary proceedings shall be held against her, as per Rules. Thus, he submits that S.S. Gayatri will be subjected to appropriate action. He further submits that petitioner cannot claim negative equality with someone, who has not been terminated so far and, if petitioner lacks basic qualification for appointment as Teacher, then he has no right to continue as Teacher.
27. Learned counsel for petitioner submitted that the University has never responded to the query raised Special Investigation Team regarding petitioner's B.Ed. Degree and the letter issued by Chaudhary Charan Singh University, Meerut to District Education Officer, Jakholi, District Rudraprayag merely states that particulars of the B.Ed. Degree of petitioner, which were supplied to the University, are not as per 2024:UHC:7331 University record. Thus, he submits that the reply given by the University is not sufficient to draw the inference that B.Ed. Degree possessed by petitioner is forged. He further submits that the Inquiry Report submitted by Special Investigation Team was never supplied to petitioner, which is another irregularity, which vitiates disciplinary proceedings.
28. The submission made by learned counsel for petitioner, however, has been disputed by learned State Counsel who, by referring to impugned termination order, submits that Special Investigation Team's Report was duly supplied to petitioner alongwith charge sheet and 15 days time was given to petitioner to respond to the charge levelled in the charge sheet. Learned State Counsel refers to letter issued by Registrar, Chaudhary Charan Singh University, Meerut to Block Education Officer (Elementary) Jakholi, District Rudraprayag, which is on record at page no.47 of the writ petition, for contending that the entire particulars of petitioner and his B.Ed. Degree, which he allegedly obtained from the University in the year 1994, were supplied to the University and the Registrar was asked to verify whether the said Degree was issued by the University, however, the Registrar responded to the said letter, by stating that the details, as supplied to the University, do not match with the University records. Thus, he submits that answer of the University was in the negative and burden was upon the petitioner to prove that the Degree relied upon by him for obtaining appointment, is genuine and not fake.
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29. Learned State Counsel produced in Court judgment dated 29.06.2024 passed by Chief Judicial Magistrate, Rudraprayag in Criminal Case No.52 of 2019. Perusal of the said judgment reveals that Vikram Singh Negi (petitioner in WPSS No.254 of 2023) was held guilty of securing appointment as Teacher, based on fake educational certificate and he was convicted for offences punishable under Section 420 and 471 I.P.C. and sentenced to 5 years rigorous imprisonment, with fine of ₹10,000/-. Learned counsel for petitioner, however, submits that the said judgment is challenged in Appeal, which is pending before this Court.
30. Mr. Vinay Kumar, learned counsel for the petitioner in WPSS No.1283 of 2020 refers to preliminary report submitted by Principal, Government Inter College, Daulatpur, District Haridwar, which is annexed as Annexure No.9 to the said writ petition. By referring to the said report, learned counsel for petitioner submits that the Inquiry Officer himself had expressed opinion that a High Level Inquiry needs to be undertaken, as the Inquiry Committee constituted by the Vice Chancellor had expressed opinion that the relevant page, on which petitioner's name is mentioned, appears to have been changed.
31. Per contra, learned State Counsel has produced in Court the recommendation dated 03.01.2018 made by a Three Member Committee of Deen Dayal Upadhyaya Gorakhpur University that B.Ed. Degree of Poonam of the year 1994, with Roll No.4043, is fake and is liable to be cancelled. Thus, he submits 2024:UHC:7331 that, after the said recommendation made by a Three Member Committee of the University, the claim raised by petitioner in WPSS No.1283 of 2020, has no legs to stand.
32. Mr. Vinay Kumar, learned counsel for the petitioner, however, submits that the said recommendation made by a Three Member Committee of the University was never produced before the Inquiry Officer and, in view of law laid down by Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and others, reported in (2009) 2 SCC 570, inquiry is vitiated, as every evidence has to be proved before the Inquiry Officer. He further submits that, before passing the termination order, report of the Inquiry Officer was not supplied to petitioner, which is in violation of law declared by Hon'ble Supreme Court in the case of "Union of India & others Vs. Mohd. Ramzan Khan, reported in (1991) 1 SCC 588 and also in the case of "Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others, reported in (1993) 4 SCC 727.
33. From the rival submissions made by learned counsel for the parties, it is apparent that charge sheet was issued to petitioners alleging that the educational certificates/degree produced by them at the time of appointment was found to be fake. Petitioners now allege that the disciplinary inquiry was not done strictly as per the Discipline & Appeal Rules, applicable to State employees, and there were some lapses here & there. The question is whether a person, who is not eligible for appointment for want of necessary qualification, if 2024:UHC:7331 manages to get appointed by playing fraud, can claim protection of Article 311 of the Constitution. Hon'ble Supreme Court in the case of R. Vishwanatha Pillai (Supra) and various other judgments referred to above has held that a person, who has secured appointment under the State by playing fraud, cannot claim protection of Article 311.
34. A Division Bench of this Court in Writ Petition (PIL) No.37 of 2020 has taken judicial notice of the alarming situation prevailing in the State of Uttarakhand, where scores of persons have managed to get appointed as Teacher, even though they lack the basic qualification needed for such appointment. Learned State Counsel is right in submitting that petitioners have not shown the courage of making a statement on personal knowledge that all educational certificates produced by them for securing appointment are genuine and the statement, if any, made in one or two petitions, is evasive and based on record.
35. National Council for Teacher Education (for short "NCTE") has been established by a Parliamentary Legislation (Act No. 73 of 1993). NCTE is the regulatory body which lays down qualification necessary for appointment as Teacher in Primary and Secondary Schools. Anyone, who does not possess the qualification prescribed by NCTE is not eligible for appointment as Teacher and appointment of such ineligible person, if made due to mistake on the part of the Authorities, will be void ab initio and no benefit will ensue to the person so appointed.
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36. In the present case, petitioners were appointed not because of any mistake on the part of the Authorities, but due to the fake educational certificate(s) produced by them. As per provision of The National Council For Teacher Education Act, 1993, anyone, who does not possess a qualification prescribed by NCTE, cannot be appointed as Teacher, and if appointed, his appointment would be illegal. There is yet one more requirement of law that Teacher's Training Qualification, e.g. B.Ed., D.El.Ed. etc. must be obtained from a University/Institute recognised by NCTE. Petitioner, who does not possess a valid B.Ed. Degree, is ineligible for appointment as Teacher and the challenge thrown by him to termination of his services is thus unsustainable. Law is settled that there cannot be any estoppel against Statute.
37. In such view of the matter, this Court does not find any reason to interfere with the order of termination passed against the petitioners.
38. The writ petitions, thus, fail and are dismissed. There shall be no order as to costs.
(MANOJ KUMAR TIWARI, J.) Arpan ARPAN Digitally signed by ARPAN JAISWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eabb68a3895e41937c266c23964c0485365445e3a20dddb739339 JAISWAL 8f9fe45ba3e, postalCode=263001, st=UTTARAKHAND, serialNumber=060FC17022BEAE3DE215D68D9D454C5109CB987446351E 4DF04AADAA2C2CEA66, cn=ARPAN JAISWAL Date: 2024.10.03 14:36:47 +05'30'