Gajendra Pratap Singh vs State Of U.P. And 3 Others
2022 Latest Caselaw 162 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

		AFR	
 
						    Reserved on 26.10.2021
 
                                                                           Delivered on 05.03.2022     
 
         
 

 
Case :- WRIT - A No. - 11722 of 2021
 

 
Petitioner :- Gajendra Pratap Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- R.K. Sinha,A.K.Sinha
 
Counsel for Respondent :- C.S.C.,Yogendra Singh Bohra
 

 

 
Hon'ble Saral Srivastava,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 to 3, and Sri Y.S. Bohra, learned counsel for respondent no.4.

2. The petitioner by means of the present writ petition has assailed the order dated 08.01.2021 passed by Deputy Director of Education/Principal, District Education and Training Institute, Aligarh by which services of the petitioner has been terminated.

3. The brief facts of the case are that under a policy of State Government, it has decided to impart six months Special B.T.C. Training Course for the year 2007-08 to those candidates who possess B.Ed. qualification so that they may be appointed as Assistant Teachers in Government Primary Schools. The petitioner states that he is B.A., B.Ed. and as such he has applied for the same under the handicapped quota. The petitioner was selected for Special B.T.C. Training Course, and after successful completion of the B.T.C. Training Course, he was appointed by letter dated 08.02.2009 issued by District Basic Education Officer, Aligarh.

4. Further case of the petitioner is that the State Government by order dated 03.11.2009 directed to constitute a medical board to re-examine the candidates, who had done Special B.T.C. Training Course under handicapped quota. The order dated 03.11.2009 was challenged by one Ravindra Kumar Sharma and others by filing a writ petition which was dismissed by this Court. Against the said order, Special Appeal Defective No.811 of 2010 was filed which was allowed by this Court by judgment dated 09.09.2010 limiting the inquiry to physical verification of disability certificate, and after that, if the authorities conclude that the candidate has not been genuinely issued a certificate of disability or otherwise, or that he does not suffer from any disability so certified which entitles him to such certificate, in that event the candidate can be subjected to fresh medical test and not otherwise.

5. The aforesaid order dated 09.09.2010 passed by this Court in Special Appeal Defective No.811 of 2010 was challenged by the State Government in S.L.P. (C) No.8880 of 2011 which was allowed by the Apex Court by judgment dated 03.02.2016.

6. It appears that under a Government Order, a show-cause notice was issued to the petitioner on 14.09.2010 calling upon him to show cause as to why his services may not be terminated for obtaining an appointment based on a forged disability certificate. According to petitioner, he has submitted a reply to the said show-cause notice stating therein that in the case of similarly situated candidates namely Sandhya Sharma and others, who preferred writ petition bearing Service Single No.7386 of 2010 against the order of termination, this Court stayed the order of termination of Sandhya Sharma and others by order dated 22.10.2010. Accordingly, he prayed for parity of the said interim order. However, the service of the petitioner was terminated by order dated 25.10.2010.

7. The petitioner challenged the order dated 25.10.2010 by means of Writ-A No.42815 of 2012. It appears that after the judgment of Apex Court dated 03.02.2016, a show-cause notice dated 23.06.2016 was issued by the Principal (DIET) to the petitioner. The petitioner stated that he has furnished a reply to the said show-cause notice, but the Court did not find any evidence on record that the so-called reply has been served upon respondents. However, this Court by judgement dated 27.01.2020 directed the respondents to communicate to the petitioner the final decision taken in respect of his candidature. The Court rejected the submission of counsel for the petitioner that a fresh medical examination of the petitioner be undertaken.

8. Pursuant to the order dated 27.01.2020 passed by this Court, a show-cause notice dated 30.12.2020 was issued to the petitioner, and thereafter, the petitioner submitted a reply to the said show cause notice.

9. Subsequently, the Deputy Director of Education/Principal, District Education, and Training Institute, Aligarh by order dated 08.01.2021 terminated the services of the petitioner. The order dated 08.01.2021 is impugned in the present writ petition.

10. Challenging the aforesaid order, learned counsel for the petitioner has contended that the petitioner has been appointed after following the due procedure of law, and therefore, his services could not have been terminated except in accordance with the law. He submits that termination of an employee is a major punishment, and therefore, the procedure contemplated under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as 'Rules, 1999') which applies to Assistant Teacher of Primary Schools in view of the U.P. Basic Education Staff Rules, 1973 ought to have been followed by respondents. He submits that in the absence of any inquiry, termination order is not sustainable in law.

11. He further contends that respondent-authority has not afforded any reasonable opportunity of hearing to the petitioner before terminating him, and on this ground also, the impugned order is not sustainable in law. He submits that proper course for the respondents before taking any final decision is that they should have permitted the petitioner to appear before the Medical Board to assess his disability and only then a finding ought to have been returned by the respondents that disability certificate of the petitioner is forged. Thus, he contends that impugned order is not sustainable.

12. Per contra, learned counsel for the respondents submits that present is a case where appointment has been obtained by fraud, therefore, the procedure contemplated for conducting an enquiry under Rules, 1999 is not applicable in the facts of the present case. He submits that in the instant case, a show-cause notice was given to the petitioner which clearly states that the petitioner has obtained appointment by submitting a forged disability certificate and thus, he submits that if petitioner had any material to defend his case, he ought to have submitted that material alongwith reply to the show-cause notice to defend himself, but in the instant case, no material has been placed by the petitioner to demonstrate that he has suffered permanent disability to avail the benefit of handicapped quota.

13. He further submits that in the instant case, even no opportunity of hearing was required since from the disability certificate dated 08.02.2021 appearing on page 97 of the writ petition, it is evident that the nature of disability of the petitioner is temporary, and thus, petitioner was not entitled to avail the benefit of handicapped quota, and as he obtained appointment by submitting forged disability certificate, his services have rightly been terminated.

14. I have considered the rival submissions of the parties and perused the record.

15. In the instant case, it is not in dispute that the petitioner has obtained an appointment under the handicapped quota by submitting a disability certificate dated 20.12.2002 issued by the office of Chief Medical Officer, Banda. A perusal of the said disability certificate, appearing on page 24, shows that the disability of the petitioner is 40%, but whether such disability is permanent or temporary is not stated in the said disability certificate.

16. It appears that State Government found that several persons have obtained appointments by submitting forged disability certificate. This led the State Government to issue a Government Order dated 03.11.2009 to conduct the verification of disability certificate of the candidates who have obtained B.T.C. Training certificate based on forged disability certificates. Accordingly, the petitioner was issued a show-cause notice dated 14.09.2010 calling upon him to show cause as to why his services may not be terminated for obtaining the appointment on the basis of forged disability certificate.

17. The petitioner submitted a reply to the said show-cause notice, and District Basic Education Officer, Aligarh being not satisfied with the explanation of the petitioner passed an order dated 25.10.2010 terminating the services of the petitioner. The petitioner challenged the said order by filing Writ-A No.42815 of 2012 which was disposed off by this Court by judgement dated 27.01.2020.

18. The judgment dated 27.01.2020 passed in Writ-A No.42815 of 2012 discloses that during the pendency of the writ petition, a show-cause notice dated 23.06.2016 was issued by the Principal, DIET to the petitioner, and according to petitioner, he submitted a reply to said show-cause notice. Accordingly, this Court by judgement dated 27.01.2020 directed the competent authority to communicate the petitioner final decision taken in respect of his candidature. The Court rejected the prayer of the petitioner for fresh medical examination. A relevant extract of the judgement dated 27.01.2020 is reproduced herein below:-

"The Court only notes that insofar as the submission of the learned counsel that a fresh medical examination be undertaken is concerned, the same is clearly misconceived since it was that very direction of the Division Bench which was set aside by the Supreme Court in Appeal."

19. After the judgement of this Court dated 27.01.2020, a show-cause notice was issued to the petitioner on 30.12.2020 to which the petitioner submitted reply.

20. The Deputy Director of Education/Principal, District Education and Training Institute, Aligarh did not find merit in the so-called reply of the petitioner, and accordingly, rejected the same and terminated the services of the petitioner by order dated 08.01.2021.

21. At this point, it is relevant to mention that the Government Order dated 03.11.2009 was challenged in Writ Petition which was dismissed by this Court, against which Special Appeal Defective No.811 of 2010 was allowed by this Court by judgment dated 09.09.2010. The judgment of this Court in Special Appeal Defective No.811 of 2010 was set aside by the Apex Court in S.L.P. (C) No.8880 of 2011. Relevant extracts of the judgment of Apex Court are reproduced herein below:-

"10. The Division Bench of the High Court has ignored and overlooked the material fact that verification has already been done by the Medical Board and it has been found that certificates of 21% were fraudulently obtained. The High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from disability so certified candidate can be subjected to fresh medical test. The High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment etc. That can only be done by the medical examination and particularly when the High Court itself has observed that in case there is genuine suspicion and fraud has been committed medical certification can be reopened. Direction issued in this regard has not been questioned by the respondents and in fact process of re-verification was already over when High Court issued aforesaid directions.

11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sangh and when 21% of such certificates have been found to be fraudulently obtained there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the respondents.

12. In the circumstance we set aside the impugned judgment and order passed by the Division Bench of the High Court and dismiss the writ petition. However before taking any action against the individuals they shall be issued show cause in the matter and thereafter decision will be rendered in accordance with law. Let this exercise be completed within a period of four months. The appeal is allowed to the aforesaid extent."

22. After the judgment of Apex Court, according to the petitioner, a show-cause notice dated 23.06.2016 was issued. This Court by order dated 27.01.2020 commanded the competent authority to take a final decision in respect of the candidature of the petitioner. The explanation of the petitioner was not found satisfactory and he was terminated from service.

23. Now, the moot question that arises for consideration is where an appointment is obtained by fraud whether procedure contemplated under Rules, 1999 for terminating the services is to be followed or a show-cause notice is sufficient to meet the requirement of natural justice before passing the order of termination.

24. To appreciate the said issue, it would be pertinent to consider a few judgments of the Apex Court.

25. In the case of Vice Chairman, K.V.S. And Others Vs. Girdharilal Yadav 2004 (6) SCC 325 the respondent-Girdharilal Yadav obtained an appointment as Principal in K.V.S., Rewari, in the state of Haryana by producing a forged caste certificate showing that he belongs to O.B.C. category. The respondent-Girdharilal Yadav was issued a show-cause notice, and the Apex Court held that where the appointment is obtained by fraud, no opportunity of hearing is required to be given. The relevant extract of paragraph 11 of the said judgment is reproduced herein below:-

"11. ...In terms of Section 58 of the Indian Evidence Act, 1872 facts admitted need not be proved. It is also a well-settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula. In Bar Council of India v. High Court of Kerala (2004) 6 SCC 311, this Court has noticed that:

"24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta (2003) 7 SCC 492 of which two of us (V.N. Khare, C.J. and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held:

"29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby."

25. The principles of natural justice, it is well settled, must not be stretched too far'."

26. In the case of Bank of India and Others Vs. Avinash D. Mandivikar and Others 2005 (7) SCC 690, the respondent-Avinash D. Mandivikar has obtained an appointment by submitting a forged caste certificate. The Apex Court has held that where the appointment is obtained by fraud, the conduct of enquiry as per Rules, 1999 for imposing major punishment is not necessary. Paragraph 9 of the said judgment is extracted herein below:-

"9. A similar plea about long years of service was considered by this Court in R. Vishwanatha Pillai v. State of Kerala (2004) 2 SCC 105 to be inconsequential. In para 19 it was observed:

"19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The 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 eye of the law. The right to salary or pension after retirement flows 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 a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court 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 a 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 the case of State of Chhatisgarh and Others Vs. Dhirjo Kumar Sengar 2009 (13) SCC 600, the Apex Court held that the principle of natural justice although is required to be complied with, it has well-known exceptions. One of such exceptions has been laid down in S.L. Kapoor v. Jagmohan and Others (1980) 4 SCC 379. A relevant portion of paragraph 24 of the said judgment is extracted herein below:-

"24...In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs."

(Emphasis supplied)"

28. Similar proposition has been reiterated by the Apex Court in the case of Punjab Urban Planning and Development Authority and Another Vs. Karamjit Singh 2019 (16) SCC 782. Paragraphs 5.5, 6, 6.2 & 7 of the said judgment are reproduced herein below:-

"5.5. It is well settled that an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eye of law.

In Rajasthan Tourism Development Corporation Ltd. v. Intejam Ali Zafri (2006) 6 SCC 275 it was held that if the initial appointment itself is void, then the provisions of the Industrial Disputes Act, 1947 are not applicable for terminating the services of such workman.

In a similar case, this Court in Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC 690 held that since the respondent had obtained his appointment by playing fraud, he could not be allowed to get the benefits thereof.

6. In the present case, the Single Judge had held that "rightly or wrongly", the Respondent had obtained regularization, and was therefore entitled to a disciplinary enquiry. The Division Bench affirmed the Judgment of the Single Judge.

6.2. The illegality of such an appointment goes to the root of the Respondent's absorption as a regular employee. The Respondent could not be considered to be an "employee", and would not be entitled to any benefits under the Regulations applicable to employees of the Appellant- Authority. Therefore, the High Court erroneously placed reliance on the decision in ECIL v B. Karunakar, (1993) 4 SCC 727, which would not be applicable to the facts of the present case.

7. The question of holding disciplinary proceedings as envisaged under Article 311 of the Constitution, or under any other disciplinary rules did not arise in the present case since the respondent was admittedly not an "employee" of the appellant- Authority, and did not hold a civil post under the State Government. He was merely a daily wager on the muster rolls of the appellant-Authority."

29. From the reading of aforesaid judgments, it is clear that where an appointment has been obtained by fraud, the authority doesn't need to follow the procedure contemplated under the rules for conducting enquiry before passing the order of termination. The Apex Court in Bhaurao Dagdu Paralkar Vs. State of Maharashtra and Others AIR 2005 SC 3330 dealt with the effect of fraud. It was held as follows in the said judgment:-

"14...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'.

16. Suppression of a material document would also amount to a fraud on the Court. (See Gowrishankar v. Joshi Amba Shankar Family Trust, (1996 (3) SCC 310) and S.P. Chengalvaraya Naidu's case (supra).

17. "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 the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education (2003) 8 SCC 311.

18. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 & 713, "No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (page 722.)."

30. When fraud is perpetrated, the parameters of consideration will be different. The fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is also settled in law that 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 enures therefrom although the motive from which the representations proceeded may not have been bad.

31. Viewed from another angle, it is also settled in law that when a person approaches Court under Article 226 of the Constitution of India, he should approach the Court with clean hands. A person who seeks equity must act in a fair and equitable manner.

32. Further, it is also pertinent to mention that this Court in its jurisdiction under Article 226 of Constitution of India, where it is established that appointment is obtained by fraud, cannot allow fraud to perpetuate by accepting a plea of a person that before terminating his services, the proper procedure for conducting an enquiry as contemplated in the relevant rules should be followed.

33. Now, coming to the facts of the present case. A perusal of disability certificate dated 20.12.2002 issued by the office of Chief Medical Officer, Banda reveals that the said certificate mentioned 40% disability, but it does not mention the nature of disability whether it is permanent or temporary. When on inquiry it was found to be a forged certificate, a show-cause notice was issued to the petitioner specifying the charge against him that disability certificate of the petitioner is forged, and the burden was upon the petitioner to prove by filing material evidence in response to show cause notice that said disability certificate is genuine, which he utterly failed to do.

34. After noticing the judgment of Apex Court dated 03.02.2016, a show cause notice dated 23.06.2016 was issued to the petitioner, and the petitioner submitted a reply which was noted by the authority in its order dated 08.01.2021, but the reply of the petitioner does not disclose that he has filed any evidence that his disability is permanent in nature, and his disability certificate is genuine.

35. The petitioner has enclosed the disability certificate with the writ petition appearing on page 97 issued by the office of Chief Medical Officer, Banda, a perusal of which discloses that petitioner is suffering stiffness in the right knee which caused 40% disability to him, but as per the said disability certificate, the nature of disability is temporary and not permanent. Therefore, in view of the admitted fact that the nature of disability which the petitioner suffered is temporary, hence, he is not entitled to the benefit of Persons with Disabilities (Equal Opportunities, Protection of Right) and Full Participation Act 1995, and as such, the disability certificate could not be issued to the petitioner.

36. In view of the aforesaid fact and the settled principles of law laid down by the Apex Court in the aforesaid judgments, this Court finds that the contention of learned counsel for the petitioner that the authority ought to have followed the procedure contemplated under Rules, 1999 before imposing major punishment of dismissal is misconceived and not sustainable in law.

37. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed with no order as to costs.

Order Date:- 5.3.2022

Sattyarth