Raj Kumar Saxena vs Basic Shiksha Parishad U.P. And ...
2019 Latest Caselaw 1718 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 
Case :- WRIT - A No. - 66944 of 2006
 
Petitioner :- Raj Kumar Saxena
 
Respondent :- Basic Shiksha Parishad U.P. And Others
 
Counsel for Petitioner :- Manoj Misra,A.Khare,Manoj Kumar Srivastava,Siddharth Khare
 
Counsel for Respondent :- C.S.C.,Dr.H.N.Tripathi,C.K. Rai
 

 
Hon'ble Suneet Kumar,J.

1. Heard Sri Siddharth Khare, learned counsel assisted by Sri Utkarsh Birla, learned counsels for the petitioner, Sri C.K. Rai, learned counsel appearing for the first, second and third respondent and learned Additional Chief Standing Counsel for the fourth respondent.

2. The instant writ petition is directed against the termination order dated 18 November 2006, passed by the second respondent, Basic Shiksha Adhikari, Jhansi, on the ground that petitioner had obtained appointed on the post of Assistant Teacher in a primary school on fraud and misrepresentation.

3. The writ petition is being heard pursuant to an order passed by the Division Bench in Basic Shiksha Parishad and others vs. Raj Kumar Saxena1.

4. The facts, inter se, parties are not in dispute.

5. Petitioner claims to be the adopted son of Smt. Kasturi Devi, Assistant Teacher of Primary School Jhankri, Block Mauranipur, District Jhansi. She died in harness on 28 May 1982. Petitioner made an application sometimes in August, 1995 seeking compassionate appointment asserting that he was residing with Smt. Kasturi Devi and was dependent upon her since the age of 7 years. Smt. Kasturi Devi adopted the petitioner vide unregistered adoption deed dated 17 November 1980. On an application for compassionate appointment, petitioner came to be appointed on 31 March 1995. Pursuant thereof, petitioner functioned as Assistant Teacher for over a decade.

6. A complaint came to be filed in the office of the Basic Shiksha Adhikari alleging that petitioner was not the adopted son of Smt. Kasturi Devi, the deceased employee. Consequently, a show cause notice dated 12 September 2006, supported by the enquiry report submitted by Sub Divisional Magistrate, Mauranipur, was issued to the petitioner. Petitioner replied to the show cause notice, but the second respondent not being satisfied with the explanation furnished by the petitioner, terminated the services of the petitioner by the impugned order. It is noted in the order that petitioner was not the adopted son of Smt. Kasturi Devi, rather her legal heir (grandson). It is further recorded that Kasturi Devi had one son and two daughters and the petitioner is the son's son. Further, the adoption deed being an unregistered document could not have been acted upon. In other words the appointment was obtained by the petitioner by misrepresentation and fraud.

7. Learned counsel for the petitioner has made three fold submission: (i) service of the employee could not have been terminated after rendering prolonged service of 14 years; (ii) there was no fraud or misrepresentation on the part of the petitioner; (iii) the adoption deed is a valid and legal deed; (iv) the procedure prescribed under the U.P. Government Servant (Discipline and Appeal) Rules, 19992, duly adopted vide Sub-Rule (3)  of Rule 5 of the Uttar Pradesh Basic Education Staff Rules, 19733, was not followed before imposing major penalty.

8. Learned counsel for the petitioner in support of his submission has placed reliance on the judgments rendered by this Court in Surendra Kumar Singh vs. U.P. Financial Corporation and others4 and of the Supreme Court in Roshni Devi vs. State of Haryana5.

9. In rebuttal, learned Additional Chief Standing Counsel and Counsel appearing for the first, second and third respondents submit: (i) that the unregistered adoption deed cannot be considered nor read in evidence in view of Sub-Section (2) of Section 16 of Hindu Adoption and Maintenance Act, 19566, requiring compulsory registration of the document recording an adoption; (ii) admittedly, petitioner being the son's son of the adoptive mother, the adoption is not a valid adoption in view of Section 11(i) of Act, 1956; (iii) Rules, 1999 is not applicable for the reason that the appointment of the petitioner is void ab initio on having been obtained by fraud and misrepresentation; (iv) the services of the petitioner was not terminated for misconduct, therefore, Rules, 1999 would have no application; (v) the length of service rendered by the petitioner would have no bearing, fraud and misrepresentation cannot be allowed to be perpetrated; (vi) there is no equity in favour of the petitioner.

10. Rival submissions fall for consideration.

11. The petitioner claims to be the adopted son of Smt. Kasturi Devi, who admittedly is the grandmother of the petitioner. In other words, petitioner is the son of Kasturi Devi's son, Jamuna Prasad. The Sub Divisional Magistrate, Mauranipur, vide report dated 6 June 2006, addressed to the District Magistrate, Jhansi, which was the basis of the show cause notice to the petitioner, clearly records that the enquiry was got conducted by the Nayab Tehsildar in the presence of the complainant.

12. It is noted in the report that after the death of her husband, Smt. Kasturi Devi started living as a wife with Chunni Lal and from the relationship one son and two daughters were begotten, petitioner is the son of Jamuna Prasad, that is, grandson of the adoptive mother.

13. It is informed by the learned counsel for the petitioner that at the time of execution of the adoption deed in 1980 petitioner was aged about 6-7 years and had completed his high school and intermediate sometimes in 1992-94.

14. On specific query, learned counsel for the petitioner on instructions from the petitioner/pairokar present in the Court informs that in the high school and intermediate certificate, name of the adoptive mother is not recorded, instead, the name of the biological parent is mentioned. On the strength of the adoption deed, petitioner was granted appointment in March 1995 and since then he worked continuously for 11 years and after some gap for another four years and received salary from the State exchequer.

15. In the aforementioned admitted facts, the question that arises for determination is: (i) whether, the adoption deed is valid and enforceable in law; (ii) whether petitioner could have been terminated on mere show cause notice.

16. Act, 1956 notified on 21 December 1956 codifies the law relating to adoption and maintenance among Hindus. Adoption is regulated under Chapter II of Act, 1956.

17. Section 8 provides that a female Hindu has a right and capacity to take in adoption. Section 10 provides the persons who may be adopted and Section 11 stipulates the conditions for valid adoption. Petitioner was capable of being adopted but the adoption is not a valid adoption in view of the prohibition mandated in Section 11(i) which reads thus:

"11. Other conditions for a valid adoption. - In every adoption, the following conditions must be complied with:--

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption."

18. In the admitted facts, inter se parties, it is not in dispute that petitioner is the son's son of the adoptive mother. In the circumstances, the adoption itself was not a valid adoption in law.

19. That apart Section 16 of Act, 1956 provides presumption as to a registered document relating to adoption. Sub-clause (2) came to be inserted by State amendment i.e. Uttar Pradesh Civil Law (Reform and Amendment) Act, 19767 mandating that no Court shall accept any evidence in proof of adoption, except a document recording an adoption, duly registered under any law for the time being in force. Sub-clause (2) of Section 16 reads thus:

"16(2):- In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force:

Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872."

20. The deed recording adoption of the petitioner is subsequent to 1 January 1977, consequently, the deed was required to be compulsorily registered in the State of Uttar Pradesh.

21. Section 49 of the Registration Act, 19088, provides the effect of non-registration of the documents required to be registered under any other law for the time being in force. The consequence of such non-registration in the State of Uttar Pradesh is that the document shall not be received as evidence of any transaction affecting such relationship or creating such right of relationship unless the deed has been registered. Section 49 reads thus:

"49. Effect of non-registration of documents required to be registered.--No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], [or of any other law for the time being in force] to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, [or creating such right or relationship9] unless it has been registered: 

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received, or as evidence of any collateral transaction not required to be effected by registered instrument."

22. On plain reading of Section 16(2)/and 49(c) of Act, 1956 and Act, 1908, respectively, incorporated by State amendment, it clearly mandates that any document creating any right or relationship shall not be received in evidence creating such right or relationship unless it has been registered. Accordingly, the adoption deed is unreceivable in evidence recording an adoption, further, the adoption in view of Section 11(i) of Act, 1956 is invalid. Petitioner, admittedly, being the son's son of the adoptive mother living at the time of adoption could not have been taken in adoption.

23. The counsel for the petitioner submits that since the petitioner has rendered 14 years of service, a sympathetic view should be taken, protecting the appointment of the petitioner. Further, the Rules governing imposition of major penalty i.e. termination from service was not followed. The services of the petitioner came to be terminated on a mere notice to show cause.

24. The three Judge Bench in R. Vishwanatha Pillai vs. State of Kerala10 (Vishwanatha Pillai case) and Union of India vs. Dattatray11 (Dattatray case) laid down the principle of law that where a benefit is secured by an individual, such as, an appointment to a post on the basis of fraud and misrepresentation, would result in the appointment being rendered void or nonest.

25. In Vishwanatha Pillai, the appellant therein came to be selected Deputy Superintendent of Police on a forged caste certificate, consequently, upon cancellation of the caste certificate by the Scrutiny Committee, services of the appellant came to be terminated. The Central Administrative Tribunal directed that the appellant should not have been terminated without following the procedure under Article 311 of the Constitution. The High Court reversed the decision and the appellant was dismissed from service. Before the Supreme Court, the appellant, inter alia, sought protection of Article 311 of the Constitution. Rejecting the submission, the Supreme Court held: (para 15)

"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. ............ 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."

26. The Bench of three Judges also rejected the submission that since the appellant had rendered 27 years of service, the order of dismissal should be substituted with order of compulsory retirement to protect his pensionary benefits. The Court observed: (Para 19)

"19.....The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine..................... A person who, seeks equity must come with clean hands. He. who comes to the Court with false claims, cannot plead equity nor the Court would 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 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."

27. In Bank of India vs. Avinash D. Mandivikar12, the Supreme Court held that no case was made out for protecting the services of a bank employee who had obtained employment on the basis of a false claim. Further, the employee having perpetrated a fraud, a claim for protection will not be legally sustainable and a person who had obtained employment by illegitimate means could not continue to enjoy the fruits of the appointment and that he does not even have a shadow of a right even to be considered  for appointment. Reliance was placed upon the earlier decision in Vishwanatha Pillai9 in coming to its conclusion.

28. The position in law was reaffirmed in a subsequent decision of a Bench of three Judges in Dattatray10 case. The respondent was appointed Assistant Professor of Psychiatry in a government hospital on the strength of a claim to belong to a Scheduled Tribe, which was subsequently found to be false by the Scrutiny Committee. The High Court upheld the invalidation of the claim but held that the respondent would not be entitled to any benefit as a member of the Scheduled Tribe from the date of its decision. In consequence, the services of the respondent was directed not to be disturbed. The Supreme Court set aside the judgment of the High Court directing the continuance of the first respondent in service and observed: (para 5)

"5...When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to scheduled caste/tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation." 

29. A three Judge Bench in a recent judgment rendered in Chairman and Managing Director Food Corporation of India and others vs. Jagdish Balaram Bahira13 on considering the precedents on the subject held that appointment/admission obtained on the basis of fraud and misrepresentation of caste or otherwise, is not entitled to such an appointment/admission being rendered void or nonest. The exception to the above doctrine was in those cases where the Supreme Court exercises its powers under Article 142 of the Constitution to render complete justice. In other words a person who has played fraud and misrepresentation is not entitled to continue in service irrespective of the length of service rendered by him. In case he is permitted to continue it would perpetrate the fraud and misrepresentation. The principles enshrined under Article 311 of the Constitution or service rules pertaining to dismissal/removal upon recording a finding of misconduct would also not apply, for the reason that the appointment is nonest and void ab initio and has no grounds to sustain.

30. In the facts of the case at hand the basis of the appointment is the unregistered adoption deed which has been held to be invalid in view of Section 11(i) of Act, 1956. The foundation of the appointment goes being nonest in the eye of law, termination of service is the consequence. Petitioner has not been imposed major penalty of termination upon recording a finding of misconduct committed during the course of his employment. The Rules, 1973 in the circumstances has no application. In the admitted facts no real prejudice has been caused to the petitioner and no other conclusion is possible in respect of the deed recording adoption in such situation no fault can be found with the impugned order. (Refer: K.L. Tripathi vs. State Bank of India14; State Bank of Patiyala vs. S.K. Sharma15; Biecco Lawrie Limited vs. State of West Bengal16)

31. In District Primary Schools and others vs. Mritunjoy Das and others17, the services of the respondent, therein, came to be terminated upon issue of show cause as they had taken admission in training institute by inflating their marks. The Division Bench of the Calcutta High Court allowed the writ petition and set aside the dismissal order. The issue before the Supreme Court was as to whether, the order of dismissal was justified. The contention that the respondents were not given any opportunity of hearing was rejected. The Supreme Court held: (para 7)

"There is, therefore, no violation of the principles of natural justice in the present case. If a particular act is fraudulent, any consequential order to such fraudulent act or conduct is non est and void ab initio and, therefore, we cannot find any fault with the action of the Appellant in dismissing the service of the contesting Respondents."

32. In this context reference was made to the decision in Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and others18 for the proposition that no person should be allowed to keep an advantage which he obtained by fraud. In view thereof, the Division Bench judgment of the Calcutta High Court was set aside, the order terminating the services of the respondents was upheld.

33. In Dharmarathmakara R.A. Ramaswamy and others vs. The Educational Appellate Tribunal19 termination of the respondents came to be set aside by the Tribunal and affirmed by the High Court that no enquiry in terms of Karnataka Private Educational Institutes (Disciplines and Appeal) Rules, 1975 was resorted to, the respondents came to be dismissed upon show cause. The Supreme Court reversed the decisions of the Tribunal and the High Court.

34. Section 12 of Act, 1956 deals with the effects of adoption. The adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. In other words, on adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. (Refer: Basavarajappa vs. Gurubasamma20)

35. On specific query, as to how, the names of biological parents came to be recorded in the high school and intermediate certificates despite the petitioner having been adopted at the age of 7 years. Learned counsel for the petitioner placed reliance on the decision rendered by the Single Judge of this Court in Ravindra Kumar vs. State of U.P. and others21, to contend that the Board of High School and Intermediate Examination records the names of the biological parents instead of the adoptive parent in the high school/and intermediate certificates, therefore, the names of the biological parents and not the adoptive mother came to be recorded in the certificates. The facts obtaining in Ravindra Kumar (supra) is distinguishable. The deed of adoption was a registered deed and a valid deed; the petitioner, therein, had approached the Board for correction of the certificate which was declined by the Board in absence of rules permitting such correction. This is not the case in the instant case. The deed of adoption is invalid and unenforceable in law.

36. The plea on the face of it is untenable for the reason that the petitioner as per his own case was adopted at the age of 7 years and in view of the Section 12 of the Act, 1956, the adopted child for all purposes shall be deemed to be the child of his adoptive parent. However, the name of the adoptive mother does not find recorded in either of the certificates (class 10 and 12). Nor does such a reference finds in the Parivar Register prepared under U.P. Panchayat Raj (Maintenance of Family Register) Rule, 1970. It therefore, follows that until taking the examination of class 12, the alleged adoption deed had not seen the light of day. It was an after thought to get an unregistered adoption deed executed for the purposes of obtaining compassionate appointment. The State Amendments came to be inserted in Act, 1956 and Act, 1908 to avoid such fraud and misrepresentation on the basis of such document.

37. It follows from the position in law that where an appointment has been obtained on fraud and misrepresentation on the strength of a manufactured document which is the basis of the appointment, such an appointment is void and nonest since inception. The consequence upon recording a finding that the document is nonest is discontinuance of such appointment. It is not a case of commission of misconduct during the course of appointment inviting imposition of major penalty under the Service Rules.

38. Having due regard to the facts and circumstances of the case and in view of the statement of law the petition lacks merit. The writ petition is accordingly dismissed.

39. No cost.

Order Date :- 27.3.2019

S.Prakash