JUDGMENT B.P. Dharmadhikari, J.
1. This is writ petition under Article 226 of Constitution of India and challenge in it is to the order of termination dated 30-4-1993 issued by respondent No. 1 management and the judgment of respondent No. 4 School Tribunal dated 24-1-1994 dismissing the appeal of present petitioner against said termination order. Respondent No. 2 is the School run by respondent No. 1 in which petitioner No. 1 was working while respondent No. 3 is the Education Officer (secondary) responsible for grant of approval and release of salary functioning on behalf of State Government.
2. The services of petitioner have been terminated by Impugned Order dated 30-4-1993 on the ground that he has produced false certificate of his belonging to Nomadic Tribe by name "Tirmal" to secure appointment as per advertisement dated 15-10-1989. The defence of petitioner is that his caste certificate is not sent for verification by competent caste verification committee and further no departmental inquiry as contemplated by provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977; hereinafter referred to as the Act or 1981 rules; hereinafter referred to as Rules, and in any case in accordance with principles of natural justice has been held before terminating him. As already stated above, his challenge is negated by School Tribunal.
3. I have heard Advocate Manohar with H. A. Deshpande for petitioner, Advocate A. B. Choudhary for respondent Nos. 1 and 2 and learned AGP Advocate Thakare for respondent Nos. 3 and 4.
4. Advocate Manohar with H. A. Deshpande has invited attention to the order of termination and the language employed therein, particularly statement that petitioner produced false certificate of caste, he played fraud and cheated school management, got approval by deceiving Education Officer; to urge that per se it is punitive and stigmatic. According to him this could not have been done without holding departmental inquiry. He further invites attention to the affidavit filed by Ex-president Shri Deshmukh before School Tribunal in which it is mentioned that appointment of petitioner was not made against a post/vacancy reserved for Nomadic Tribe and he was appointed as OBC candidate. It is further stated in said affidavit that petitioner came to be appointed as nomadic tribe candidate was not available. Petitioner states that even in Form of Approval submitted by management to the Education Officer, appointment of petitioner has been shown from OBC category with caste as "Tirmal-Teli" in clause Nos. 10 and 15 as also in form of Model Roster. It is contended that these documents are not disputed by respondent Nos. 1 and 2. It is further stated that subsequently respondent Nos. 1 and 2 have produced similar form to show that proposal submitted for approval was for appointment of petitioner as belonging to "Tirmal" (N.T.) category. He further invites attention to reply filed by respondent No. 3 Education Officer in appeal before School Tribunal wherein said officer has stated that petitioner was appointed as OBC candidate against vacancy at serial No. 21 in 100 point model roster and approval granted was as OBC category candidate. He thereafter invites attention to consideration of this aspect by learned School Tribunal to show how said appreciation is perverse. According to him, in the facts and circumstances of the case need for inquiry/investigation was established and termination of services of petitioner is contrary to Rule 34 to Rule 37 of the Rules and in any case, in breach of principles of natural justice. It is further argued by him that as the alleged Act on part of petitioner does not constitute misconduct, no action thereof can be taken by respondent Nos. 1 and 2. He has relied upon between Farid Ahmed v. The Municipal Corporation of the City of Ahmedabad , between Institute of Chartered Accountants of India v. L.K. Ratna and Anr. and between Basudeo Tiwari v. Sido Kanhu University to substantiate his arguments. He also argued that non-application of mind by School Tribunal is apparent because in final judgment it has done nothing but re-produced its interim order.
5. As against this, Advocate A. B. Choudhary for respondent Nos. 1 and 2 stated that in spite of several opportunities given to petitioner to place correct documents before his employer and to point out correct position, petitioner deliberately avoided it and did not take any stand. He further points out that stand as taken in defence was not there in appeal before School Tribunal. He invites attention to advertisement published by the very same Ex-president Shri Deshmukh dated 15-10-1989 which expressly required candidate from Nomadic Tribe. He points out that the approval submitted to Education Officer was for approval of services of petitioner as belonging to Nomadic Tribe. He also invites attention to proposal forwarded by next president Shri Gakare in this respect which runs contrary to the proposal annexed with writ petition and allegedly submitted by Ex-president Shri Deshmukh. He states that the proposal submitted by next president has been produced in Xerox to avoid any confusion. He also invites attention to proposal (Xerox) submitted by ex-president which is in consonance with the proposal submitted by next president and argues that its type copy produced with the petition is fabrication. He also invites attention to the records of appeal received from School Tribunal to show that earlier on 17-5-1989 while granting approval to other teachers condition of fulfilling backlog of Nomadic Tribe has been expressly put and subject to that condition, approval has been given only for academic session 1988-89. He further points out that proposal produced on record of School Tribunal reveal that petitioner was appointed against Nomadic Tribe post as PTI and this was as per advertisement. He also invites attention to representation of petitioner dated 9-11-1992 by which petitioner has replied to management that he was not appointed from reserve category and management was in fact deceiving/cheating him. He also invites attention to the legal notice forwarded by petitioner through his Advocate J. D. Tople in which it is mentioned that petitioner belonged to "Teli Tirmal" caste recognised as Nomadic Tribe. He also invites attention to last warning dated 20-4-1993 issued by management to petitioner in this respect. He invites attention to the norms prescribed in this respect by Tribal Research Department of State Government by which obligation to forward caste papers for verification to competent caste scrutiny committee is placed upon employer. In this connection he has also invited attention of this Court to the return of management placed herein to meet the case of petitioner. He further states that after termination of petitioner candidate Shri A. B. Bhakre of Nomadic Tribe has been appointed in his place, It is his arguments that there is no question of extending any more opportunity in the matter to petitioner and his initial entry into service is itself bad and void. He has relied upon Gauri Shankar v. M/s Hindustan Trust (Private) Ltd. reported at , between R. Vishwanatha Pillai v. State of Kerla between U. P. Doctors Action Committee v. Dr. B. Sheetal Nandwani, 1994(1) LLJ 1 between Ajay Kumar Mint v. State of Bihar, Full Bench decision between Rita Mishra v. Director, Primary Education, Bihar reported at to substantiate his contentions. He has further stated that reproduction of its interim order by School Tribunal in its final judgment does not show any non-application of mind. He argues that School Tribunal had applied its mind to the entire controversy in detail while refusing prayer for interim reinstatement made by petitioner and as there was no fresh hearing thereafter, it chose to reproduce said order as final judgment with purpose.
6. Learned AGP has supported the order of School Tribunal.
7. The first question which therefore falls for consideration is whether the post on which petitioner was appointed, was reserved for the Nomadic Tribe and whether petitioner was selected as candidate belonging to such tribe or as belonging to Other Backward Class category as Nomadic Tribe candidate was not available. The other question regarding power of management to take action in this respect and requirement of holding departmental inquiry in view of provisions of Rules or principles of natural justice will be required to be considered in that light in accordance with the case law.
8. The first document in this respect is the advertisement issued on 15-10-1989 and perusal of its Xerox as published in daily Lokmat reveals that the post of Physical Training Instructor has been shown as reserved for Nomadic Tribe. The said advertisement is issued under the signature of ex-president Shri Deshmukh. Prior to that, on 17-5-1989, respondent No. 3 Education Officer has granted approval only for one session to appointments made by respondent Nos. 1 and 2 with express condition that in next year, backlog of Nomadic Tribe would be removed. The typed copy of appointment order produced on record by petitioner does not reveal that the appointment was on any reserve category post. However, the typed copy of proposal submitted for approval by Ex-president Shri Deshmukh show that he submitted the proposal mentioning the caste of petitioner as "Tirmal-Teli" without specifying whether it was OBC or Nomadic Tribe in clause No. 10. However in clause No. 15 it is shown as OBC which roster point exhausted as point No. 21. The petitioner has also produced proposal submitted by respondent No. 2 to Education Officer on 17-10-1989 along with Xerox copy of order of appointment dated 16-10-1989 signed by said Ex-president Shri Deshmukh and a typed copy of proposal in which in clause No. 10 thereof words SC/ST/NT are scored off and word "OBC" has been retained to show that "Tirmal-Teli" is OBC and petitioner has been appointed as such OBC candidate. Clause No. 15 thereof also reveals that petitioner has been shown as belonging to OBC. The form of Model Roster forwarded by Ex-president Shri Deshmukh also reveals same thing. Petitioner has alleged that these documents filed before School Tribunal by respondent Nos. 1 and 2 were forged to show that petitioner was appointed as "Tirmal" candidate belonging to Nomadic Tribe. Along with petition, petitioner has also produced proposal forwarded by next president (Xerox copy) in which petitioner is shown as belonging to "Teli-Tirmal" (OBC) in clause No. 10 as also in clause No, 15. The respondent No. 3 Education Officer also appears to have stated in his reply before School Tribunal that petitioner came to be appointed as OBC candidate. The management has produced in Xerox copy of proposal forwarded by Ex-president Shri Deshmukh to demonstrate that said ex-president himself under his signature forwarded the proposal for appointment of petitioner as candidate belonging to "Tirmal" (NT) in clause No. 10 as also clause No. 15 thereof. The proposal submitted subsequently by next president Shri Gakare is treating the petitioner as belonging to Nomadic Tribe category in clause No. 10 as also clause No. 15. There is no dispute in relation to be conditional approval granted to other teachers on 17-5-1989 by Education Officer and also about the reservation shown for Nomadic Tribe in advertisement dated 15-10-1989. It is therefore difficult to envisage that management submitted proposal of petitioner as belonging to OBC and Education Officer granted approval to him as OBC ignoring his earlier warning for removing back log of Nomadic Tribe.
9. It is interesting to note the case of petitioner as pleaded in appeal before the School Tribunal. In paragraph 4 of his appeal, petitioner has stated that he submitted all documents to respondent Nos. 1 and 2 at the time of seeking employment. According to him his school certificate show caste "Teli' which is recognized as OBC while the certificate issued by Executive Magistrate as also by Talathi reveal his caste "Tirmal" which is recognized as Nomadic Tribe. He further stated that after scrutinizing these documents respondent Nos. 1 and 2 have shown his appointment in OBC with caste "Teli". He has contended that his appointment was not in the post reserved for Nomadic Tribe and in any case, he did not misrepresent his caste. He contended that on account of rival group coming in power and assuming management of respondent No. 1 institution, he was sought to be victimised. In short, it was not his case then that as no Nomadic Tribe candidate became available for the post of physical training instructor, he was selected as OBC candidate. Here, it cannot be forgotten that provisions of Rule 9(9)(a) of Rules permit management to fill in post reserved for Nomadic Tribe through other categories of backward class mentioned in some Rule (7) thereof, i.e. the vacancy of Nomadic Tribe can be filled in by OBC if Nomadic Tribe candidate is not available. However, such case is not pleaded before School Tribunal by petitioner. Legal notice forwarded by petitioner through his Advocate on 12-1-1993 in paragraph 1 states that petitioner was not appointed as teacher in Nomadic Tribe category. The caste of petitioner as "Teli-Tirmal" has been accepted and it is further stated that said caste is covered as Nomadic Tribe. In paragraph 3 it is asserted that petitioner is member of Nomadic Tribe and he has obtained certificate from proper authority about it. It is further stated that petitioner is ready and willing to show that certificate at appropriate stage to proper authority and management is not proper authority. It is further stated that management cannot demand caste certificate from petitioner and petitioner is not ready to submit it to management. In this background, when affidavit of Ex-president Shri Deshmukh produced by petitioner as Annexure-F with his writ petition is looked into, the ex-president has on oath stated that petitioner was not appointed against post/vacancy reserve for Nomadic Tribe Category and he was appointed as OBC candidate. Said ex-president has also disclosed that as Nomadic Tribe candidate was not available, petitioner came to be appointed as he was belonging to OBC category and as such appointment is permissible. The accompanying appointment order issued to petitioner does not contain any such stipulation and there is no mention about it even in form for approval i.e. proposal allegedly submitted by said Ex-president Shri Deshmukh to Education Officer. However, proposal allegedly submitted by him mentions petitioner as OBC and next proposal submitted by next president (Xerox copy annexed with writ petition as Annexure-H) show petitioner as OBC. The Education Officer, in his reply before School Tribunal has accepted petitioner as appointed against point No. 21 in 100 point model roster in vacancy meant for OBC. However, the Xerox copy of form for approval submitted by next president and produced by respondents 1 and 2 reveals that it was for seeking approval to the appointment of petitioner as NT candidate. On record before School Tribunal, copy of representation forwarded by petitioner on 9-11-1992 in reply to letter dated 6-11-1992 of management is available and in it petitioner has mentioned that he has been appointed from direct quota and not from reserved quota.
10. The inconsistency in the stand of petitioner in his representation, legal notice and appeal memo is apparent. Management has served upon him at least seven letters earlier calling upon him to furnish documents for caste verification. Instead of co-operating with the management, he has questioned very right of management to call documents from him. He was given last warning on 20-4-1993 in which it was expressly stated that all his conduct reveal that he procured false caste certificate. He was called upon to explain why his services should not be terminated and why complaint should not be lodged to police as also why salary paid to him should not be recovered back. In spite of this, he did not take any specific stand in appeal memo. Perusal of impugned judgment of School Tribunal reveals that this was pointed out to School Tribunal and it has found that petitioner deliberately did not submit the documents and concealed his caste for procuring appointment. The School Tribunal also found that approval of his predecessor for that post was from Nomadic Tribe category. It cannot be forgotten that post advertised was also for Nomadic Tribe and there was an express warning just two months prior to advertisement in this respect by Education Officer. At least when petitioner had approached this Court, in this background, it was expected of him to take a definite stand in writ petition about the post occupied by him. However, again no such stand is taken in writ petition and only contention in writ petition is that petitioner did not play any fraud on management and that there has to be an inquiry before terminating him. The stand taken in affidavit by Ex-president Shri Deshmukh has not been taken as his own case by petitioner either in the appeal or before this Court. For the first time in writ petition, express stand has been taken that respondent No. 1 chose to appoint him as candidate from OBC category and School Tribunal has merely restricted its inquiry into non-issues. No steps have been taken to explain inconsistencies mentioned above. It is alleged that School Tribunal has only reiterated its interim order as final judgment. Perusal of record reveals that said interim order was challenged in writ petition and this Court directed School Tribunal to decide appeal itself on merits within two months. The appeal has been accordingly dispose off. However, nothing new was filed before School Tribunal by appellant/petitioner or by respondent Nos. 1 and 2. Hence, Presiding Officer of School Tribunal has adopted earlier application of mind in interim order while passing final order. Perusal of order sheet maintained by School Tribunal reveals that the learned Presiding Officer closed the appeal for judgment on 19-1-1994 after waiting for counsel for petitioner and permitted petitioner to file written notes of argument before delivery of judgment. No such written notes were filed. It appears that on 13-12-1993 School Tribunal learnt about direction of High Court to decide appeal within two months and thereafter it fixed the appeal for hearing on 17-12-1993, 11-1-1994 and 18-1-1994. On last date matter was adjourned to next day i.e. 19-1-1994 and on said date it was closed for judgment. Thus, practically there was no change of situation and additional hearing after the interim order was passed. The said interim order as reproduced in final judgment is not mere mechanical reproduction but it has been reproduced/quoted deliberately to avoid duplication. The reasoning contained therein is not shown to be either perverse or erroneous. Taking overall view of the matter, I find that the post against which petitioner was appointed, was reserved for Nomadic Tribe candidate and petitioner did not belong to such Nomadic Tribe. He also did not co-operate with management by producing originals to enable it to get the same verified through competent scrutiny committee and continued to take inconsistent stands creating confusion. It was actually necessary for him to make clean breast of matter to show his bona fides and his omission to do so clearly necessitates drawing of adverse inference.
11. The contention of petitioner about grant of opportunity to him in this respect before management issued termination order needs to be looked into, 2001(1) Mh.L.J. 887 particularly paragraphs 25 and 24 are relied upon to state that non-compliance with provisions of rules dealing with departmental inquiry contained in the Rules is fatal and to show that reasonable opportunity means opportunity in terms of rules. However, at the same time other argument of petitioner is that, if there is any misconduct, it has taken place before he entered the service and therefore, there cannot be any departmental inquiry about it. School Tribunal has accepted this contention. In this background and particularly for the reasons being recorded little latter here in, I find that the argument is erroneous and irrelevant in the facts and circumstances of this case between Farid Ahmed v. The Municipal Corporation of the City of Ahmedabad has been relied upon to contend that when there is non-compliance with mandatory provision of law/rule, the impugned order is invalid at its inception and must be quashed and set aside. Again, the reliance is upon provisions of the Rules to show that services of permanent employee cannot be terminated without holding departmental inquiry. The Hon'ble Apex Court has laid down this law while considering provisions of Section 5A of Land Acquisition Act and has held that where order for acquisition is passed without granting the personal hearing it is a case of absolute non-compliance with a mandatory provision and order being invalid at its inception, its invalidity cannot be cured subsequently. Therefore cannot be any debate about this proposition, however, it is not attracted in the facts and circumstances of the case. More reasons in this respect are being recorded little latter. AIR 1936 PC 253 is relied upon for same purpose and for same reasons, I find that it is not relevant. between Institution of Chartered Accountants of India v. L. K. Ratna and Anr., particularly paragraph 17 has been pointed out to contend that the consideration of controversy by School Tribunal or by this Court on merits cannot be a substitute for opportunity required to be given to petitioner by management before ordering his termination. The Hon'ble Apex Court was considering issue of removal of name of chartered accountant (respondent before it) by Institute of Chartered Accountants in exercise of its disciplinary powers and the Institute had proposed removal of his name from the Register of Members for period not exceeding five years after finding him guilty of professional misconduct. Observations relied upon read :--
17. It is then urged by learned counsel for the appellant that the provision of an appeal under Section 22-A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council, and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal, Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on "Administrative Law". But as that learned author observes, "in principle there ought to be an observance of natural justice equally at both stages", and If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing : instead of fail-trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.
And he makes reference to the observations of Megarry J, in Leary v. National Union of Vehicle Builders (1971)1 Ch, 34. Treating with another aspect of the point, that learned Judge said :
If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless, have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.
The view taken by Megarry J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall 42 DLR (3d) 323. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practitioners Disciplinary Committee (1974)1 NZLR 29 and so was the Court of Appeal of New Zealand in Reid v. Rowley (1977)2 NZLR 472.
12. between Basudeo Tiwari v. Sido Kanhu University is pressed into service for same purpose. In this judgment, Hon'ble Apex Court has considered provisions of Section 35(3) of Bihar State Universities Act, 1976. It permitted appointment to be terminated at any time without notice if the same was made contrary to provisions of the Bihar Act, Statutes, Rules or Regulations or in any irregular or unauthorised manner. The Hon'ble Apex Court found that condition precedent for exercise of power was that the appointment in question had been made contrary to Bihar Act etc. in order to arrive at a conclusion in that respect a finding is required to be reached and termination cannot be ordered without recording such finding. Hence Hon'ble Apex Court found that it necessity holding of inquiry and for that purpose person whose appointment is under scrutiny, will have to be sure notice. If employee concerned whose rights affected is not given notice of such proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable. Hence, Hon'ble Apex Court has held that it was necessary to read implied requirement of hearing in Section 35(3) of Bihar Act.
13. All these rulings, therefore, consider cases in which existing right of a person is sought to be defeated. In the facts of present case, it is necessary to find out whether petitioner did acquire any such right. On answer to this question shall depend the issue about requirement of holding inquiry as per the Rules framed under the Act.
14. In this background, it would now be appropriate to consider the case law cited by respondent No. 1 and 2. In between U.P. Doctors Action Committee v. Dr. B. Sheetal Nandwani Hon'ble Apex Court has held that when the benefit procured is on account of fraud, it is not necessary to grant hearing. In that case cancellation of selection examination for post graduate course was obtained on the basis of fabricated orders of High Court in nonexistent writ petition directing admission on the basis of M.B.B.S. results. Those admissions were cancelled without giving opportunities hearing and Hon'ble Apex Court upheld the cancellation by making above observations. It is held that the circumstances in which benefit was taken by the candidates concerned did not justify attraction of application of rules of natural justice of being provided an opportunity to be heard. 1994(1) LLJ 1 between Ajay Kumar Mint v. State of Bihar in fact follows the above 1991 judgment of Hon'ble Apex Court and holds that when appointments made are found to be vitiated by mala fides, manipulation and nepotism, cancellation of such appointments without notice and hearing is not vitiated. In Full Bench decision between Rita Mishra v. Director, Primary Education, Bihar reported at it has been held that where the letter of appointment is forged but the appointee is neither party nor a privy to the same, still, no substantive right to claim statutory salary rises in his favour. If the very appointment is rested on forgery, no statutory right can flow from it.
15. In caste matters, judgment of Hon'ble Apex Court between R. Vishwanatha Filial v. State of Kerala assumes importance has been quoted with approval in it. Relevant observations as contained in paragraphs 11, 13, 15, 16, 17 and 18 need to be reproduced :--
11. In Kumari Madhuri Patil's case (supra), the admissions were taken by two sisters to the professional courses on the basis of false caste certificate produced by them, which were cancelled after the report submitted by the Verification Committee to the effect that the certificates produced by the appellants therein were false and that the appellants did not belong to the Scheduled Castes/Scheduled Tribes. The Court observed that all citizens were to be treated equally. That the Constitution guaranteed to the citizens equality before law and the equal protection of law. Though Articles 14 and 15(1) prohibit discrimination among citizens but Article 15(4) empowers the State to make special provisions for advancement of Scheduled Castes and Scheduled Tribes. Article 16(1) requires equality of opportunity to all citizens in the matters of appointment to an office or a post under the Union or a State Government or a public undertakings etc. But Article 16(4) empowers the State to make provision for reservation of appointments or posts in favour of castes not adequately represented in the services under the State. That the admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. Thereafter the Court laid down the procedure for the grant of social status certificate, its due verification and the examination by the Scrutiny Committee of its genuineness. If the certificate was found to be genuine then no further action was required to be taken but if the caste certificate produced was found to be false or fraudulently obtained then immediate action was required to be taken. The findings recorded by the Scrutiny Committee were made final and conclusive which could not be challenged in any suit or any proceedings except in the High Court under Article 226 of the Constitution of India. The Scrutiny Committee was required to communicate its report under a registered cover to the educational institution as well as the appointing authority. The educational institution or the appointing authority on receipt of the said report was required to cancel the admission/appointment without any further notice to the candidate and debar the candidate from the further study or continue in office in a post. This was done to simplify the procedure for grant of the social status certificate as well as its scrutiny, and, if found to be false the follow-up action to be taken. It was done primarily for quick disposal of such matters so that the genuine Scheduled Castes and Scheduled Tribes persons are not deprived of the benefits conferred on them under the Constitution of India and to debar the non-genuine Scheduled Castes and Scheduled Tribes from taking advantage of the benefit conferred under the Constitution on the basis of false caste certificate obtained by them by committing a fraud. The persons who had obtained admission or got the appointment on the basis of false caste certificate thereby usurping the seat/post reserved for the Scheduled Castes/Scheduled Tribes were required to be weeded out by prompt action. It was held :
13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.
13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court, Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely. (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) The Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer having intimate knowledge in the verification and issuance of the social status certifies, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put-forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld upto this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority.
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 eyes of 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 the 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 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 Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. 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 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 1987 Lab IC 390, 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 therefore void. It was contended that he could not be terminated from service without holding departmental enquiry 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 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 : 1988 Lab IC 907
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 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 it.
18. We agree with the view taken by the Patna High Court in the aforesaid cases.
16. Recently, in case between Bank of India and Anr. v. Avinash D. Mandivikar and Ors. reported at . Hon'ble Apex Court has reiterated same view. In paragraph 9, the above judgment in case of R. Vishwanatha Pillai v. State of Kerala has been quoted and followed. In paragraph 11, while dealing with fraud, observations made by Hon'ble Apex Court in earlier ruling between Bhaurao D. Paralkar v. State of Maharashtra reported at JT 2005(7) SC 530 are thus quoted which state that fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. It is further stated that suppression of material document would also amount to fraud on Court. In paragraph 13, Hon'ble Apex Court has stated that by giving protection for even a limited period, the result would be that a person who has legitimate claim shall be deprived of the benefits. It is further mentioned that the person who obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment. In the facts of present case, it is apparent that the post being claimed by petitioner was and is reserved for Nomadic Tribe candidate. It is not the case of petitioner that he belongs to Nomadic Tribe. It is also on record that after terminating him, management has appointed one A. B. Bhakare, a candidate belonging to Nomadic Tribe with effect from 14-9-1993. The failure of petitioner to respond to letters issued by management, his fluctuating stand all reveal his dishonest intention. If he belonged to OBC, it was not necessary for him to obtain two certificates showing that he belonged to Nomadic Tribe. His conduct in obtaining two different mutually contradictory caste certificates is sufficient to deny him any relief in exercise of writ jurisdiction. He did not obtain any right to post at any time and has not been deprived of any right by order of termination dated 30-4-1993.
17. No cases therefore made out for interference in writ petition. The same is accordingly dismissed. Rule discharged. No costs.