Kuldeep vs State Of U.P. And 5 Others
2021 Latest Caselaw 10978 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 10654 of 2021
 

 
Petitioner :- Kuldeep
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. This writ petition is directed against an order dated 12.07.2021, passed by Senior Superintendent of Police, Meerut, whereby petitioner's selection on the post of Constable in U.P. Police has been cancelled on the ground of misrepresentation. It is observed in the order that petitioner secured appointment by claiming benefit of reservation meant for dependent of Freedom Fighter but upon verification it has transpired that he does not belong to such category. U.P. Police Recruitment and Promotion Board (hereinafter referred to as the 'Board') recommended cancellation of petitioner's appointment on the ground of misrepresentation. A notice accordingly was issued to petitioner in reply to which the petitioner admits that he is not a dependent of Freedom Fighter and that by mistake of Computer Operator, who had filled petitioner's application form, such reservation was claimed. Since petitioner has otherwise not secured marks above the cut off in the respective category therefore appointment obtained on the strength of misrepresentation has been cancelled. Thus aggrieved the petitioner is before this Court.

2. It is urged that petitioner has not made any misrepresentation and having worked for five years without any complaint his appointment cannot be cancelled without holding any disciplinary enquiry. Reliance is also placed upon interim orders passed by this Court in Writ Petition Nos.9937 of 2021 and 9928 of 2021.

3. While entertaining the writ petition time was granted to learned Standing Counsel to obtain instructions. Written instructions signed by the Additional Secretary of the Board are placed before the Court and are taken on record. This Court on 26.8.2021 directed learned Standing Counsel to furnish a copy of the instructions to the counsel for the petitioner also.

4. Appointment to the post of Constable has been offered to petitioner pursuant to his application made against the advertisement published on 14.5.2013. Petitioner was an applicant in the OBC category and his application has been placed before the Court alongwith instructions in which it is apparent that petitioner claimed benefit of reservation meant for dependent of Freedom Fighter. Petitioner in his reply to the show cause notice has also admitted the fact that reservation meant for dependent of Freedom Fighter was claimed in his application form. It is also admitted to petitioner that he is not a dependent of Freedom Fighter and such reservation is not admissible to him. The misrepresentation in falsely claiming reservation of dependent of Freedom Fighter, however, is sought to be explained by contending that petitioner was not aware of such incorrect disclosure and that it was due to mistake on part of the Computer Operator that such error occurred.

5. The appointment on the post of Constable was to be offered on the basis of merit secured by a candidate. The petitioner belongs to OBC category and has secured 265 marks in the selection. The last selected candidate in OBC category has secured 310.6374 marks for appointment in Civil Police; 309.3608 marks for appointment as Constable in P.A.C. and 308.5096 marks for appointment as Fireman. It is, therefore, undisputed that petitioner has not secured sufficient marks to secure appointment on the post of Constable. No appointment could have been offered to him on the basis of his merit. His marks could qualify him for selection only in the category of dependent of Freedom Fighter. His appointment is thus based only on false misrepresentation that he is a dependent of Freedom Fighter.

6. Petitioner's defence before the authority that he was unaware of the fact that in his application he had claimed reservation as dependent of Freedom Fighter is not liable to be accepted for two reasons. Firstly, in the absence of reservation claimed in sub-category of dependent of Freedom Fighter the petitioner could not be selected as his marks were below the cut off marks secured by the last selected OBC candidate. Secondly, petitioner having taken advantage of false disclosure in the application form cannot claim immunity by shifting the guilt upon the Computer Operator since the Computer Operator was his agent and the petitioner is responsible for his acts particularly as he himself is the beneficiary of such false disclosure.

7. In Union of India vs. M. Bhaskaran, (1995) Suppl. (4) SCC 100, the Supreme Court has affirmed cancellation of appointment where it was established that appointment had been obtained on the strength of misrepresentation. The Court further observed that no equity would arise in favour of the employee merely because he has worked for certain time. Para 6 of the aforesaid judgment is reproduced hereinafter:

"6. It is not necessary for us to express any opinion on the applicability of Rule 3(1)(i) and (iii) on the facts of the present cases for the simple reason that in our view the railway employees concerned, respondents herein, have admittedly snatched employment in railway service, maybe of a casual nature, by relying upon forged or bogus casual labourer service cards. The unauthenticity of the service cards on the basis of which they got employment is clearly established on record of the departmental enquiry held against the employees concerned. Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant-employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. Learned counsel for the respondents submitted that for getting service in railway as casual labourers, it was strictly not necessary for the respondents to rely upon such casual service cards. If that was so there was no occasion for them to produce such bogus certificates/service cards for getting employed in railway service. Therefore, it is too late in the day for the respondents to submit that production of such bogus or forged service cards had not played its role in getting employed in railway service. It was clearly a case of fraud on the appellant-employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent-employees have continued in service for a number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer. In this connection we may usefully refer to a decision of this Court in Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766] . In that case Sawant, J. speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the concerned appointee. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case. And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the candidate concerned acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in the aforesaid decision, if by committing fraud any employment is obtained, such a fraudulent practice cannot be permitted to be countenanced by a court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent-workmen with all consequential benefits. The removal orders could not have been faulted by the Tribunal as they were the result of a sharp and fraudulent practice on the part of the respondents. Learned counsel for the respondents, however, submitted that these illiterate respondents were employed as casual labourers years back in 1983 and subsequently they have been given temporary status and, therefore, after passage of such a long time they should not be thrown out of employment. It is difficult to agree with this contention. By mere passage of time a fraudulent practice would not get any sanctity. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual labourers, started departmental proceedings years back in 1987 and these proceedings have dragged on for a number of years. Earlier, removal orders of the respondents were set aside by the Central Administrative Tribunal, Madras Bench and proceedings were remanded and after remand, fresh removal orders were passed by the appellant which have been set aside by the Central Administrative Tribunal, Ernakulam Bench and which are the subject-matter of the present proceedings. Therefore, it cannot be said that the appellants are estopped from recalling such fraudulently obtained employment orders of the respondents subject of course to following due procedure of law and in due compliance with the principles of natural justice, on which aspect there is no dispute between the parties. If any lenient view is taken on the facts of the present case in favour of the respondents, then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present cases cannot be permitted."

8. Before passing the order impugned an opportunity of hearing has been given to petitioner. In his reply, the petitioner has admitted facts which clearly goes to show that appointment has been obtained by petitioner on the strength of misrepresentation. Petitioner has admitted that he claimed appointment as an dependent of freedom fighter whereas he admits that he does not belong to such category. Grant of reservation as dependent of freedom fighter is thus admitted. No further enquiry is required on the admitted facts since petitioner himself states that such benefit was wrongly claimed. It is only where facts are disputed that an enquiry in the manner contemplated in law would be necessary. Contention that principles of natural justice are violated, therefore, is not liable to be accepted.

9. Further argument that without holding disciplinary enquiry petitioner's appointment could not be cancelled also cannot be accepted. There is no charge of misconduct against petitioner to be proved in disciplinary enquiry. The charge against petitioner is of obtaining appointment on the strength of misrepresentation in respect of which facts are admitted to the petitioner. Opportunity to petitioner in this regard is given. Holding of disciplinary enquiry in the circumstances of the present case is thus not warranted nor the cancellation of petitioner's selection/appointment would be illegal only because disciplinary enquiry was not held in the matter.

10. In the event petitioner's appointment is sustained it would cause grave injustice to thousands of those who have secured marks above the petitioner but have not been appointed. No equity is created in favour of the petitioner to continue in employment on account of his working for the last about 5 years since the appointment has been obtained by misrepresentation. The interim orders relied upon by the petitioner do not appear to have any applicability on facts since no misrepresentation was admitted on record of those cases, unlike the fact here. Even otherwise those orders are on facts of those cases and do not constitute any binding precedent. In Writ Petition No.9928 of 2021 the Freedom Fighter Certificate was doubted as not being genuine, whereas in the facts of the present case petitioner admits that he is not a dependent of Freedom Fighter.

11. Law is settled that fraud and justice do not dwell together. Petitioner having made misrepresentation in his application and having derived advantage not due to him in law would not be entitled to grant of protection under Article 226 of the Constitution of India. Writ petition accordingly fails and is dismissed.

Order Date :- 27.8.2021

Anil