Dhirendra Singh vs State Of U.P. And Others
2018 Latest Caselaw 3049 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Case :- WRIT - A No. - 50976 of 2010
 
Petitioner :- Dhirendra Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare
 
Counsel for Respondent :- C. S. C.,K.S.Shukla,P.D.Tripathi,Ravi Shankar Prasad
 
Hon'ble Mrs. Vijay Lakshmi,J.

1. Heard Sri Siddharth Khare, learned counsel for the petitioner, Sri P.D. Tripathi, learned counsel for the respondent no. 1 and learned standing counsel appearing on behalf of the State respondents.

2. The petitioner is aggrieved by the order dated 26.6.2009 passed by the Basic Shiksha Adhikari, Kaushambi and also the order dated 15.7.2010 passed by the Secretary, Board of Basic Education, U.P. by which the appointment of the petitioner as Assistant Teacher in primary school run by the Basic Shiksha Parishad has been cancelled.

3. It has been submitted by Sri Siddhartha Khare that the petitioner's father - Umrao Singh son of Mahavir Singh was an Assistant Teacher in a primary school at Ganja, Allahabad run by Basic Education Board and he died in harness on 30.6.1975. The petitioner applied for compassionate appointment under the Dying-in-Harness Rules in 1993 and after repeated request, the Basic Shiksha Adhikari, Allahabad by his order dated 10.5.1994 granted appoinment to the petitioner as Assistant Teacher in a primary school of district Allahabad. Since his appointment, he has been continuously working and has also passed BTC Training from District Institute of Education Manjhanpur, Allahabad. In August 2000, the petitioner was transferred from district Allahabad to district Kaushambi and promoted as Assistant Teacher in a Junior High School in district Kaushambi in August 2006.

4. On 18.4.2009, the Basic Shiksha Adhikari, Kaushambi referring to a complaint by one Smt. Nirmala Devi against compassionate appointment of the petitioner, issued notice to the petitioner and fixed date of hearing as 24.4.2009.

5. It has been submitted by the learned counsel for the petitioner that before the issuance of notice dated 18.4.2009, the petitioner had no information whatsoever regarding any complaint made by Smt. Nirmala Devi or the contents of the said complaint. The petitioner appeared before the Basic Shiksha Adhikari, Kaushambi on 24.4.2009 and submitted documents regarding his identity including his High School and Intermediate Marks sheet and his Caste Certificate and affidavits of several members of the Gram Sabha, Ganja, district Allahabad where the primary school was situated in which the petitioner's deceased father had worked.

6. The petitioner was again issued a notice by the Basic Shiksha Adhikari, Kaushambi on 28.5.2009 directing him to appear for further hearing. The said notice referred to certificate filed by Nirmala Devi in support of her claim that her father - Umrao Singh son of Sarva Daman Singh was an Assistant Teacher in a primary school, Ganja, Allahabad and not the father of the petitioner - Umrao Singh son of Mahavir Singh. The petitioner again appeared before the Basic Shiksha Adhikari, Kaushambi with all documents, but the Basic Shiksha Adhikari, Kaushambi passed the order dated 26.6.2009 holding the compassionate appointment of the petitioner as invalid and cancelling the same.

7. The petitioner filed Writ Petition No. 37217 of 2009 before this Court which was finally disposed of by this Court on 27.7.2009 with a direction to the petitioner to approach the Secretary, Basic Education to prove his case that his father - Umrao Singh, son of Mahavir Singh was working as Assistant Teacher in primary school, Ganja, Allahabad and he died in harness in 1975.

8. The petitioner filed a representation along with a copy of judgment and order dated 27.7.2009 before the Secretary, Basic Education, U.P., Lucknow. The Secretary, Basic Education issued notice to the petitioner as well as Smt. Nirmala Devi, the alleged daughter of Umrao Singh and fixed 5.10.2009 as the date of hearing and directed the Basic Shiksha Adhikari, Kaushambi to appear also with all original documents.

9. However, the Basic Shiksha Adhikari, Kaushambi wrote that the appointment of the father of the petitioner and that of the petitioner was done a long time ago in district Allahabad before its bifurcation and therefore no record was available at Kaushambi. The Basic Shiksha Adhikari, Allahabad also expressed his inability to produce original documents as his office had shifted from its original location to a different location in the city of Allahabad.

10. It has been submitted by the learned counsel for the petitioner that despite best efforts in the office of the Basic Shiksha Adhikari, Allahabad and Basic Shiksha Adhikari, Kaushambi, no original documents could be produced. An Inquiry Officer was also appointed for conducting enquiry i.e. Assistant, Basic Shiksha Adhikari, Karchana. He submitted his report on 3.3.2010 against the petitioner without giving him proper hearing.

11. On 30.4.2010, the Secretary, Basic Education again issued notice to the petitioner directing him to produce five categories of documents pertaining to his father as specified in the notice.

12. The petitioner in response to the said notice filed a detailed representation on 12.5.2010 expressing his inability to produce the documents as desired by the Secretary after such a long lapse of time.

13. It has been submitted that the Secretary, Basic Education, then passed the order impugned in this writ petition dated 15.7.2010 rejecting the representation of the petitioner and upholding the termination of his service/ cancellation of his appointment by the Basic Shiksha Adhikari, Kaushambi.

14. It has been submitted by Sri Siddharth Khare that Smt. Nirmala Devi had filed her complaint only in 2006. The petitioner had been appointed in 1994 and had continued in service without any complaint for twelve years. The petitioner is a confirmed employee of the Board of Basic Education and only a regular departmental proceedings could have been held against him with issuance of charge sheet and holding of enquiry thereafter, before the order terminating his service could have been passed. In absence of a regular departmental enquiry in this case, there was a complete violation of principles of natural justice.

15. Sri P.D. Tripathi, learned counsel appearing for the respondent no.4, in support of the original order passed by the Basic Shiksha Adhikari dated 26.6.2009, has submitted that Smt. Nirmala Devi, daughter of Umrao Singh had submitted papers in the office of the Basic Shiksha Adhikari, Kaushambi verifying the truth of her claim that her father and not the petitioner's father was working as Assistant Teacher in primary school, Ganja, Allahabad and he had died in harness in 1975 Smt. Nirmala Devi moreover had only brought the fraud played by the petitioner to the notice of the Authorities. She did not claim any compassionate appointment for herself.

16. Learned standing counsel appearing on behalf of the State respondents has on the basis of counter affidavit filed, submitted that adequate opportunity of hearing was given to the petitioner not only by the Basic Shiksha Adhikari, Kaushambi, but also by the Secretary, Basic Education. Only because of bifurcation of Allahabad District and Kaushambi district and the petitioner being transferred to Kaushambi, the original records relating to his appointment got misplaced in shifting of offices from one place to other. It was therefore required of the petitioner himself to produce documents in support of his claim that his father-Umrao Singh son of Mahavir Singh had worked as Assistant Teacher in primary school, Ganja, Allahabad, the petitioner could not produce any evidence to show that it was his father who was working as Assistant Teacher. Smt. Nirmala Devi on the other hand, had produced copy of Hindustani Teaching Certificate of Umrao Singh, son of Sarv Daman Singh and also a copy of Khatauni of the village concerned wherein the petitioner's father - Umrao Singh son of Mahavir Singh was shown as a farmer and on his death, he was succeeded by his three sons including the petitioner - Dhirendra Singh. All the documents produced by the Dhirendra Singh could not prove that his father - Umrao Singh was working as Assistant Teacher in the primary school run by Basic Shiksha Parishad. The petitioner produced copies of his High School and Intermediate pass Certificates, his Caste Certificate and affidavits of certain villagers. None of the documents proved the petitioner's case at all. It was also argued by the learned standing counsel that this Court in disposing of Writ Petition No. 37217 of 2009 on 27.7.2009 had observed that the controversy can be resolved by examining the original records qua the appointment of Umrao Singh so that his exact parentage could be ascertained. On such verification, the claim of petitioner for compassionate appointment would depend. A direction has been issued to the Secretary, Basic Education to summon the original service records of Umrao Singh.

17. The original service records of Umrao Singh, the Assistant Teacher who had died-in-Harness in 1975 were not available in the office because of shifting of offices. After detailed enquiry, the Basic Shiksha Adhikari, Allahabad had also filed an FIR in Kotwali Colonelganj on 23.9.2010 regarding loss of documents from his office.

18. Smt Nirmala Devi-daughter of Umrao Singh had produced the Hindustani Teaching Certificate of her father issued in 1968 and also a copy of the Will made out by her grand-father - Sarv Daman Singh in her favour, as Sarv Daman Singh had noted in his Will that his son Umrao Singh had predeceased him and he was survived by his only daughter Smt. Nirmala Devi to whom the grandfather was bequeathing his property.

19. Learned standing counsel has also referred to the Khatuani of the year 1991 of the village concerned where the name of Umrao Singh, son of Mahavir Singh - the father of the petitioner was only deleted after 1991, and substituted by the names of his three sons, namely Karan Singh, Indradev Singh and Dhirendra Singh. It has been submitted that the father of the petitioner was a farmer and not a teacher.

20. Having considered the submissions made by the counsel for the rival parties and after going through the documents filed along with the pleadings, it is apparent that Smt. Nirmala Devi-daughter of Umrao Singh had made a complaint only in 2006 after nearly twleve years of the appointment of the petitioner in a primary school run by the Basic Shiksha Board. In her complaint, she had stated that it was her father, who was working as Assistant Teacher and the petitioner had obtained the appointment fraudulently by taking advantage of the fact that the name of her father and that of the petitioner's father was the same. The petitioner claims to have been appointed on compassionate grounds after the death of Umrao Singh on 30.6.1975, only on 10.5.1994 i.e after 18 years of the death of his alleged father.

21. The Basic Shiksha Adhikari, Allahabad before giving appointment to the petitioner had issued a notice on 16.3.1994 asking him to submit a Succession Certificate and the affidavit of his brothers and sisters and other dependents of Umrao Singh giving no objections to his appointment. No other document was called for by the Basic Shiksha Adhikari, Allahabad at the time of the appointment of the petitioner in 1994, to show that it was the petitioner's father, Umrao Singh, who was working as Assistant Teacher in primary school, Ganja, Allahabad and who had died in harness in 1975.

22. It seems that the petitioner did not produce any such Succession Certificate as desired by the Basic Shiksha Adhikari, Allahabad, nevertheless, he succeeded in securing the appointment on 10.5.1994. Smt. Nirmala Devi - the complainant came to know of the fraud played by the petitioner after twelve years and she approached the State respondents by filing repeated complaints and applications under Right to Information Act. Smt. Nirmala Devi however did not claim any compassionate appointment for herself.

23. The Secretary, Basic Education and Director, Basic Education instituted an enquiry and issued directions also to the Basic Shiksha Adhikari, Kaushambi. In pursuance of such directions, the Basic Shiksha Adhikari issued a notice to the petitioner to appear before him along with documents supporting his case. The petitioner could not produce any documents to show that it was his father- Umrao Singh son of Mahavir Singh, who was working as Assistant Teacher in primary school run by the Board. In his application, the petitioner stated that he was born on 1.1.1963 and was only twelve years of age at the time when his father died on 30.6.1975, therefore he had no knowledge of the documents relating to the employment of his father.

24. If the petitioner was aged 12 years in the year 1975, when his father had died, he would have become major in the year 1981. However, it is not clear as to why the petitioner waited for eighteen long years and reached thirty years of age before he filed his application for compassionate appointment. Moreso, there is no evidence as to whether any enquiry was conducted by the then Basic Shiksha Adhikari, Allahabad to determine whether the father of the petitioner had actually worked as Assistant Teacher in primary school in Allahabad since eighteen years ago.

25. As per the documents submitted by the petitioner, it appears that he was only class XII pass at the time of his appointment as Assistant Teacher in the primary school run by the Basic Education Board. The eligibility qualification for appointment of a teacher in primary schools run by the Board were notified in 1981 by the U.P. Basic Education Teachers Service Rules, 1981. The essential qualification of candidates for appointment as Assistant Teacher in a Junior Basic School or a primary school as initially notified required an Intermediate pass certificate and Training qualification consisting of either Basic Teacher Certificate, or Hindustani Teacher Certificate, or Junior Teacher Certificate or Certificate of Teaching (Basic). The petitioner was not even qualified at the time he was given in appointment as Assistant Teacher in primary school in 1994. The eligibility qualifications, as required under Rule 8 of the 1981 Rules have been held by this Court to be essential even for appointment on compassionate grounds. However, the petitioner had somehow managed his appointment as Assistant Teacher.

26. Smt. Nirmala Devi-the daughter of Umrao Singh son of Sarva Daman Singh came to know of the said appointment twelve years later and filed her complaint in 2006. She did not seek any appointment on compassionate ground. She only informed the department that the petitioner had fraudulently obtained appointment by taking advantage of the fact that his father's name was also Umrao Singh. In the enquiry that was conducted later on, Smt. Nirmala Devi produced evidence, viz a copy of Hindustani Teaching Certificate of 1968 issued by the Registrar, Departmental Examinations, U.P., Allahabad of her father-Umrao Singh son of Sarv Daman Singh. The petitioner, however, even after being given several opportunities could not produce any evidence with regard to his father having worked as a Teacher in a primary school run by Basic Education Board.

27. When the enquiry was conducted by the Basic Shiksha Adhikari, Kaushambi in 2009 and thereafter by the Secretary, Basic Education in 2010, no records were available in the office with regard to the appointment of Umrao Singh the alleged father of the petitioner as Assistant Teacher because of long lapse of time. Even with regard to the petitioner's appointment of 1994, no records were found.

28. Since, it was the petitioner, who had claimed compassionate appointment by alleging that his father was working as Assistant Teacher, the State respondents asked the petitioner to produce evidence to substantiate his claim. The onus was rightly placed upon him as he had based his claim on the existence of the fact of his father being Assistant Teacher.

29. The petitioner could not produce any evidence. Smt. Nirmala Devi on the other hand did produce evidence.

30. Now in the backdrop of aforesaid facts and circumstances, the question before this Court is whether the appointment of the petitioner could be set aside after such a long time i.e. after nearly sixteen years without holding any regular departmental proceedings by issuance of charge sheet etc.

31. The Hon'ble Supreme Court in several cases has considered the question of cancellation of appointment obtained by fraudulent means or through irregular selection and the necessity of holding departmental enquiry for alleged misconduct.

32. The Supreme Court has observed that cancellation of appointment in case of irregular or fraudulent selection or because of fraud or misrepresentation relates to the conduct of a candidate before his appointment and not to misconduct during the tenure of service. It has been observed that in the absence of statutory qualifications being possessed by a candidate and due to faulty recruitment process, if a selection or appointment is made, the question of violation of principles of natural justice and the holding of departmental enquiry would not arise.

33. The question before this Court would be as to "whether the U.P. Government Servant Conduct Rules (Punishment and Appeal) Rules would apply in such cases necessitating departmental enquiry/disciplinary proceedings?"

34. In so far as the conduct of the petitioner before he secured appointment, is concerned, this Court is of the considered view that such a conduct would not come within the purview of Government Servant Conduct Rules. Misconduct if any, of a delinquent employee during his tenure of service alone can be inquired into by the procedure prescribed under Discipline and Appeal Rules. Appointment secured by fraudulent means or through irregular selection by a candidate falls strictly out of the purview of misconduct during tenure of service, and therefore it cannot be said that in such cases departmental enquiry / disciplinary proceedings are essential.

35. In Vice-Chairman, Kendriya Vidyalaya Sangathan & another Vs. Girdharilal Yadav 2004 (6) SCC 325, the Supreme Court observed that an appointment obtained by fraudulent means, when ever it comes to the notice of the Authorities concerned, strict action is expected.

36. The Supreme Court relied upon its earlier judgments to observe that principles of natural justice, it is well settled, cannot be put into a straight jacket formula. Their application would depend upon the facts of each case. The only requirement in such cases of fraud is of issuance of a show cause notice. The Supreme Court observed that commission of fraud 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 dwell together.

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

38. In Regional Manager, Central Bank Vs. Guru Prasad Dahir 2008 (13) SCC 170 it was observed that the selection of an employee was conceived in deceit and, therefore, could not be saved by equitable considerations. 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 in respect of the post merely on the ground that she had worked on the post for over twenty years.

39. 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 certificate.

40. In Chairman and Managing Director, Food Corporation of India & others Vs. Jagdish Balaram Bahira & others 2017 (8) SCC 670, a three Judges Bench of the Supreme Court observed that

"Service under the Union and the States, or for that matter under the instrumentalities of the State subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times, short of demands and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes off as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result, ousted when an imposter who does not belong to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142 of the Constitution. When a candidate is found to have put forth a false claim of belonging to a designated caste, tribe or class for whom a benefit is reserved, it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect that individual. Societal good lies in ensuring probity."

41. Though the above cited observations of the Supreme Court are mainly with respect to false Caste Certificate being obtained by candidates for securing appointment. However, the general principles of law remain the same.

42. The law as settled by the Hon'ble Supreme Court with respect to fraudulent Caste Certificate and irregular selection made on basis thereof, would apply on all such appointments, obtained fraudulently by misrepresenting to the authorities of being dependents of deceased employee and obtaining appointment on compassionate ground. The compassionate appointment is an exception to the rule of selection by regular procedure prescribed under law, and an exception carved out for the benefit of those dependents of deceased employees, who are left without succour due to the sudden death of the sole bread winner. Such appointments are on the basis of affirmative action taken by the State for providing means for survival to the dependent family.

43. In this case the petitioner has failed to prove that his father was working as Assistant Teacher in the school. The long delay in seeking appointment, which admittedly he has sought at the age of 30 years, also raises doubt about his claim. His services have been terminated not because of any charge of misconduct during his service but on the ground that his initial appointment to the service on compassionate ground has been found to be illegal and irregular.

44. In view of the above, this Court finds no factual or legal infirmity in the order impugned.

45. The writ petition is dismissed.

46. However, considering the fact that the petitioner had worked since the year 1994 upto 2010, no recovery shall be made from him of salary drawn by him during this period.

Order Date:5.10.2018.

SB