Smt.Usha Singh vs State Of U.P. And Others
2017 Latest Caselaw 8024 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 7 												AFR
 

 
Case :- WRIT - A No. - 22906 of 2011
 

 
Petitioner :- Smt.Usha Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Radha Kant Ojha,Neeraj Shukla
 
Counsel for Respondent :- C.S.C.,A.K.Singh,Mrigraj Singh,P.K.Bhrdwaj,P.K.Upadhyay,Rajendra Prasad
 

 
Hon'ble Surya Prakash Kesarwani,J.

1- Heard Sri Neeraj Shukla, learned counsel for the petitioner, Sri I.S. Tomar, learned Additional Standing counsel for the State-respondents and Sri Brigraj Singh, learned counsel for respondent no.3.

2- On 3.10.2017, this writ petition was heard at length and the following order was passed:

"Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Neeraj Shukla for the petitioner, the learned Standing Counsel for the State-respondents and learned counsel for respondent No.3.

Learned counsel for the petitioner submits that the petitioner was working as assistant teacher in the respondent no.5 institution since beginning. She has no B.T.C. training certificate. By letter No.3188- 89/97-98 dated 31.12.1997, the Assistant Director of Education (Basic), Varanasi Region, Varanasi, granted exemption to the petitioner from the requirement of B.T.C. training in terms of G.O.No.860/15(13)/97-1499/77 dated 15.5.1997.The petitioner had completed five years of service as on 13.4.1997.

Pursuant to the aforesaid order of the Assistant Director of Education (Basic), Varanasi Region, Varanasi, an order being letter No.7379-82/98-99 dated 24.12.1997, was passed by the District Basic Education Officer, Jaunpur, granting exemption to the petitioner from B.T.C. training. Thereafter, an advertisement dated 23.7.1999 was issued by the Basic Education Officer, Jaunpur to fill up two posts of assistant teacher. The petitioner was selected in the said selection and an order dated 6.10.1999 was issued by the District Basic Education Officer directing to issue appointment letter. In compliance to the said order, the Manager of the institution issued an appointment letter dated 16.10.1999 to the petitioner and since then the services of the petitioner stood regularised. The institution in question was included in grant-in-aid list in 2006-07 session and the name of the petitioner was mentioned in the MR at Serial no.5, which was forwarded to the government, but without any reason the authorities stopped payment of salary to the petitioner. No heed was paid by the authorities despite several representations and as such the petitioner filed Writ-A No.55040 of 2010, which was disposed of by order dated 8.9.2010.

It is submitted that pursuant to the aforesaid order of this Court dated 8.9.2010, the petitioner filed a representation which was rejected by the impugned order dated 8.3.2011 on the ground that the exemption granted by the Assistant Director of Education (Basic), Varanasi Region, Varanasi on 31.12.1997, does not find mention in the despatch register and as such it is forged. Such an inference drawn by the respondents is wholly arbitrary and illegal, inasmuch as merely for the reason that the said letter does not find mention in the despatch register, it cannot be said to be forged.

Reliance in this regard has been placed by the learned counsel for the petitioner on the decision of this Court dated 7.3.2008 in Civil Misc. Writ Petition No.41838 of 2007 (Ashok Kumar Gupta and others v. State of U.P. and others), Om Prakash v. District Inspector of Schools, Badaun and another, 1982 UPLBEC 232 and the decision of Hon'ble Supreme Court in the case of Subodh Kumar Prasad v. State of Bihar and others, (2001) 10 SCC 282.

Learned Standing Counsel as well as the learned counsel for Basic Shiksha Adhikari, Jaunpur, submits that the exemption letter dated 31.12.1997 bears an alleged despatch number which does not find mention in the despatch register. This shows that no such letter was ever issued by the Assistant Director of Education (Basic), Varanasi Region, Varanasi to the petitioner. Thus, this letter is a forged letter and, therefore, appointment of the petitioner on the basis of the forged letter was ab-initio void. That apart, there is no statutory provision either relaxing necessary requirement of B.T.C. training certificate or empowering any authority to grant any such relaxation. There are some decisions on this point of this Court, which shall be placed on the next date of hearing. It is further pointed out that the exemption letter dated 31.12.1997 is forged on own showing of the petitioner as evident by alleged consequential letter being letter No.7379-82/98-99 dated 24.12.1997, which contains the reference of

the aforesaid exemption letter dated 31.12.1997. It is wholly impossible that the alleged letter of the Basic Shiksha Adhikari, Jaunpur, dated 24.12.1997 may contain a reference to the alleged exemption letter dated 31.12.1997.

Sri R.K. Ojha, learned counsel for the petitioner prays for and is granted a week's time to file copy of the relevant Government order dated 15.5.1997, as has been referred in the alleged exemption letter dated 31.12.1997. The respondents are also directed to produce the record relating to the matter in question as well as the relevant Government Orders.

List peremptorily on 10.10.2017".

3- On 13.10.2017, this writ petition was again heard at length and the following order was passed:

"Heard Sri Neeraj Shukla, learned counsel for the petitioner, learned standing counsel for respondent no.1, Sri Mrigraj Singh and Sri B.P. Singh, learned counsel for respondent nos. 2,3 and 4 and Sri P.K.Upadhyay, learned counsel for respondent no.5.

Pursuant to order dated 10.10.2017, learned counsel for the petitioner has produced a copy of the Government Order No.860/15(13)/97-1499(8)/77, dated 15.5.97, which is reproduced below:

la[;k&[email protected] ¼13½@97&1499 ¼8½@77

isz"kd]

Jh vkyksd jatu ¼lfpo½] mRrj izns'k 'kkluA

lsok esa]

f'k{kk funs'kd ¼csfld½] m0iz0 y[kuÅ@bykgkcknA

f'k{kk ¼13½ vuqHkkx fnukad 15-05-1997

fo"k; % mRrj izns'k csfld f'k{kk ifj"kn ds fu;a=.kk/khu izkFkfed mPp izkFkfed fo|ky;ksa esa e`rd vkfJr ds vUrxZr fu;qDr o dk;Zjr vizf'kf{kr v/;[email protected]/;kfidkvksa dks ch0Vh0lh0 izf'k{k.k ls NwV fn;k tkuk vFkok mUgsa lsokjr izf'k{k.k iznku fd;k tkukA

egksn;]

'kklukns'k la[;k&[email protected] ¼13½@94&1499 ¼8½@77 fnukad 21-10-1994 ds dze esa eq>s ;g dgus dk funsZ'k gqvk gS fd mRrj izns'k csfld f'k{kk ifj"kn ds fu;U=.kk/khu [email protected] izkFkfed fo|ky;ksa esa dk;Zjr e`rd vkfJr ds :i esa fu;qDr ftu vizf'kf{kr v/;[email protected]/;kfidkvksa dh vuojr lsok fnukad 30-4-1997 dks 5 o"kZ gks x;h gks vFkok ftudh lsok fuo`fRr esa ek= nks o"kZ 'ks"k jg x;s gksa] mUgsa izf'k{k.k ls eqfDr iznku dh tk;saxhA ,sls v/;[email protected]/;kfidkvksa ds laca/k esa izf'k{k.k ls eqfDr ds vkns'k lacaf/kr e.Myh; lgk;d f'k{kk funs'kd ¼csfld½ }kjk fuxZr fd;s tk;saxsA

2- d`i;k rn~uqlkj lacaf/kr vf/kdkjh ds laKku esa ykrs gq, vko';d dk;Zokgh lqfuf'pr dh tk;sA

Hkonh;

vkyksd jatu] ¼lfpo½

Learned counsel for the petitioner has also produced in original a letter/certificate No.3188-89/97-98, dated 31.12.1997 said to have been issued by the Assistant Director of Education (Basic) 5th Division, Varanasi, granting exemption to the petitioner from B.T.C. Training on the basis of the aforequoted Government Order. This certificate/letter is addressed to the District Basic Education Officer, Jaunpur, and its copies are shown to have been sent to Vitta Evam Lekha Adhikari, Basic Shiksha Parishad, Jaunpur and Prabhandhak Smt. Pati Raji Devi Rang Bahadur Singh Kanya Junior High School, Kalika Nagar, Golhana Mau, Jaunpur and Up-Basic Shiksha Adhikari, Jaunpur.

The aforesaid original letter appears to have been allegedly sent to the Prabandhak of the respondent no.5 -Institution. In paragraph 4 of the counter affidavit filed by respondent no.5 it is stated that the aforesaid exemption certificate dated 31.12.1997 was submitted by the petitioner and on verification from the office of the Assistant Director of Education Basic, Varanasi, Region - Varanasi, it was found that no such letter has been dispatched through dispatch No.3188-89 on 31.12.1997. That apart the consequential letter No.7379-82/98-99, dated 24.12.1997 containing the reference of the aforesaid alleged certificate dated 31.12.1997 was issued by the District Basic Shiksha Adhikari, Jaunpur. This is quite impossible that a letter by the Basic Shiksha Adhikari, Jaunpur dated 24.12.1997, may be issued on the basis of the aforesaid alleged certificate dated 31.12.1997. Thus, on the very face of it the alleged certificate dated 31.12.1997 appears to be a forged piece of paper which is the foundation of the entire claim of the petitioner.

Learned counsel for the respondent nos. 2,3 and 4 has neither produced the record nor affidavit has been filed giving reasons for not producing the record.

Since the matter is serious and the approach of the authorities in assisting the Court in the matter is not appreciable and as such the Court called upon Sri M.C. Chaturvedi, learned Additional Advocate General, who is present in Court; to assist in the matter.

Sri M.C. Chaturvedi, learned Additional Advocate General, submits that some breathing time may be granted to file an affidavit and to produce the record. He further states that factual and legal position shall be stated by means of affidavit which shall be filed on behalf of the respondent nos. 1 to 4.

As prayed, put up on 25.10.2017 to enable the respondent nos.2,3 and 4 to comply with the order dated 10.10.2017.

The alleged certificate bearing dispatch No.3188-89/97-98, dated 31.12.1997 as produced by learned counsel for the petitioner is directed to be kept in sealed cover by the Registrar General of this Court which shall be produced on the next date fixed".

4- The very basis of claim of the petitioner is the alleged exemption certificate of the Assistant Director of Education (Basic) dated 31.12.1997 and the letter of the District Basic Education Officer, Jaunpur, dated 24.10.1997, which have been found to be forged. The petitioner has continued in service on the basis of an interim order dated 25.4.2011 and had retired on 31.3.2017.

5- According to the petitioner in terms of the aforesaid interim order he continued to serve as an assistant teacher in the institution in question, but was not paid salary.

6- The alleged exemption certificate dated 31.12.1997, bears despatch No.3188/89/97-98 which has been found to be forged, inasmuch as neither this letter was issued by the office of the Assistant Director of Education Vth Region Varanasi, nor such a despatch number is available in the regular despatch register on 31.12.1997. That apart, the Government Order referred in the aforesaid alleged exemption letter itself does not provide for any such exemption rather it was issued in respect of untrained teachers appointed under Dying in Harness Rules. No provision could be pointed out by the petitioner which provides for exemption from training as on the

date when the aforesaid alleged exemption letter/certificate dated 31.12.1997 is shown by the petitioner to have been issued. The alleged letter dated 24.12.1997, allegedly issued by the District Basic Education Officer, Jaunpur, is based on the aforesaid alleged letter of the Assistant Director of Education (Basic), Varanasi dated 31.12.1997.Thus, apparently, letter dated 24.12.1997 is also forged, as it cannot have reference of a letter of a subsequent date.

7- Thus, I do not find any infirmity in the impugned orders dated 8.3.2011 and 12.3.2011, that the appointment of the petitioner was based on forged and fabricated papers. The findings recorded in the impugned orders in this regard are based on consideration of relevant material on record and, therefore, the findings cannot be interfered.

8. In the case of United India Insurance Company Ltd. V. B. Rajendra Singh and others, JT 2000(3) SC.151, considering the consequences of fraud, Hon'ble Supreme Court held in paragraph 3 as under :

"Fraud and justice never dwell together". (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that "no judegment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702).

(Emphasis supplied by me)

9. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court defined fraud and considered the effect of fraud and misrepresentation and held in paragraphs 15, 16, 17, 18, 25 and 37 as under :

"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.

16. 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 former either by word or letter.

17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.

25. Although in a given case a deception may not amount to fraud, 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 including res-judicata.

37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."

(Emphasis supplied by me)

10. In the case of S.P. Chengal Varaya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :

"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."

(Emphasis supplied by me)

11. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10

as under :

"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.

29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.

29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.

29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.

29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.

29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.

29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.

29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.

29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.

29.10The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."

(Emphasis supplied by me)

12. Similar principles with regard to fraud have been laid down by Hon'ble Supreme Court in the case of JT 2005(6) SC 391, para 7 to 15, JT 2007(4) SC 186, para 19 to 39, JT 2009(9) SC 365, para 22 and 23, JT 2008 (3) SC 452, para 12.3 to 15, JT 2009(5) SC 278, para 13 to 18 and 28 and JT 2008(8) SC 57.

13. Thus, the law in case of appointment obtained fraudulently is well settled. Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppal against the employer/ authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppal against the employer to cancel such appointment or approval since "Fraud and justice never dwell together."

14. To the aforesaid effect is also a Division Bench judgment of this Court dated 1.9.2010 in Special Appeal No.1669 of 2006 (Union of India and others v. No.031518484 CT/GD Manish Kumar and others in which the Division Bench of this Court has held as under:

"Fraud includes intention to deceive and the possible injury or gain by such deceit or secrecy. The production of false certificates of educational qualification to become eligible for selection and false caste certificates to claim reservation in appointment is misrepresentation of the fact, which such person knows. The petitioners were aware that they were not eligible for appointment. They have not denied that the certificates produced by them were fake. They have no rights acquired, based on such fraud, to be protected by the Court. They are, in fact, liable for prosecution and punishment under Indian Penal Code. Fraus et dolus nemini patrocinari debent (Lat.) (3 Rep. 78 b) Fraud and deceit ought not to benefit anyone. Their enlistment on fake certificates was thus of no effect and once detected and not denied it created no right to be enforced.

The opportunity of hearing allowed by the learned Single Judge would therefore be undue sympathy to the persons, who have played fraud with the Central Reserve Police for enlistment.

The Special Appeal is allowed.

The judgment of the learned Single Judge dated 4.8.2006 is set aside".

15- In the case of Chairman and Managing Director, FCI and others v. Jagdish Balaram Bahira, AIR 2017 SC 3271 (Para-39) Hon'ble Supreme Court held "that once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab-initio. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim, on the basis of which a scarce public resource is obtained. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mensrea or the intent underlying the assertion of a false claim. In a case of criminal prosecution, intent would be necessary".

16- No legitimate right can be claimed by any person, who was dismissed from service, but has been allowed to continue in service on the basis of an interim order. It is settled law that mere institution of litigation by itself shall not confer an advantage on the party responsible for it. If the writ petition is eventually dismissed, the advantage derived out of an interim order can not be allowed to continue in favour of the litigant. It has to be nullified when Court passes the final order. The settled law that " act of Court shall prejudice no-one, becomes applicable in such a case.Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.

17- In view of the above discussions, I do not find any merit in this writ petition Consequently, the writ petition fails and is hereby dismissed. The alleged letter No.3188-89/97-98 dated 31.7.1997 showing it to have been issued by the Assistant Director of Education (Basic)-Vth Region, Varanasi Division, Varanasi, as produced by the petitioner is returned to him.

Order Date :- 15.12.2017.

Ak/