Ankit Chaudhary vs State Of U.P. And 3 Others
2023 Latest Caselaw 14543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:100272-DB
 
A.F.R.
 
Court No.- 29
 
Case:-  SPECIAL APPEAL No. - 184 of 2023
 
Appellant:- Ankit Chaudhary
 
Respondent:- State of U.P. And 3 Others
 
Counsel for Appellant :- Siddharth Khare, Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Budhwar,J.

(By Vikas Budhwar J.)

1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the appellant/ writ petitioner and Sri Suresh Singh, learned Addl. Chief Standing Counsel for the State-respondents.

2. This intra-court appeal is against the judgment and order dated 28.02.2023 of the learned Single Judge passed in Writ-A No.22096 of 2022, (Ankit Chaudhary vs. State of U.P. and three others), whereby the writ petition of the writ petitioner was dismissed.

3. The case of the appellant-writ petitioner before the learned Single Judge was that an advertisement was published in the month of January 2018 for recruitment on the post of Constable Civil Police and Constable Provincial Armed Constabulary. As per the writ petitioner, he being fully eligible and qualified in all respects applied for selection and appointment on the post of constable under the OBC category. The writ petitioner claims to have been allotted Roll No.3311050244 and Registration No.105166994282. The writ petitioner further claims to have participated in the written examination conducted on 19.06.2018 and after successfully clearing the physical examination and subjected to Document Verification/ Physical Standard Test (hereinafter referred to as "DV/PST") followed by medical examination was accorded appointment on 15.05.2019. Post appointment, the writ petitioner claims to have been sent for training at Fatehpur and thereafter, at Mainpuri.

4. While the writ petitoner was discharging the duty on the post of Constable in police, a complaint is stated to have been lodged against him on the allegation of impersonation, as in place of the writ petitioner, somebody else appeared in the selection process and the writ petitioner procured appointment while playing fraud. It is further alleged that there were other police constables, who had procured appointment while resorting to impersonation and thus, a first information report is stated to have been lodged by the police officials before the Police Station Etmaddaula, Agra registered as FIR No.0389 on 08.06.2021 against as many as 9 persons, though the writ petitioner was not marked as an accused in the said FIR. On 20.07.2021, the writ petitioner claims to have been summoned before the second respondent, U.P. Police Recruitment and Promotion Board at Lucknow, in order to conduct enquiry and it is further alleged that the photograhs and biometrics of the writ petitioner were taken and, thereafter, he was sent to Agra District Jail, Agra. The writ petitioner thereafter is stated to have filed a Criminal Misc. Bail Application No.34570 of 2021, (Ankit Chaudhary vs. State of U.P.), wherein on 01.10.2021, this Court enlarged the applicant on bail, consequently, the writ petitioner was released from Jail on 26.10.2021.

5. Thereafter, the writ petitioner claims to have approached the respondents herein for according joining, but the same was refused. On 30.07.2021, an order is stated to have been passed by the second respondent, Chairman, U.P. Police Recruitment and Promotion Board, Lucknow, whereby on the basis of an exparte enquiry, it was found that the writ petitioner had obtained appointment as Police Constable by resorting to impersonation and by fraud, thus, his candidature was rejected and his name was delisted from the list of selected candidates. In continuation of the order dated 30.07.2021 of the second respondent, a consequential order was passed by the fourth respondent, Senior Superintendent of Police, Fatehpur, cancelling the appointment of the writ petitioner and delisting him from the list of selected candidates.

6. The writ petitioner further claims to have preferred Writ-A No.19036 of 2021, (Ankit Chaudhary vs. State of U.P. and 3 others) before this Court, which came to be disposed off by the learned Single Judge with the following directions: -

"Under such circumstances, the order impugned dated 30.07.2021 passed by the Chairman, U.P. Police Recruitment & Promotion Board, Lucknow and the order dated 07.12.2021 passed by the Superintendent of Police, Fatehpur cannot be sustained in the eyes of law and, therefore, are set aside. It shall, however, be open for the respondents to proceed against the petitioner after relying upon such evidence, which might be admissible in law. The petitioner shall definitely be given an opportunity to place his side of the case. This exercise shall be completed within a period of two months from the presentation of a certified copy of this order.

Needless to say that if any evidence is being used against the petitioner it shall always be supplied to the petitioner so that he has an opportunity to rebut the same.

This writ petition is, accordingly, partly allowed."

7. Consequent to passing of the order dated 11.04.2022 in Writ-A No.19036 of 2021, a show cause notice dated 02.08.2022 was issued by the Additional Secretary, Recruitment, U.P. Police Recruitment and Promotion Board, second respondent requiring the writ petitioner to show cause within a period of five days as to why the cancellation of his candidature and delisting the name of the petitioner from the list of selected candidates be not maintained. The show cause notice dated 02.08.2022 was followed by another notice dated 18.08.2022. On the receipt of the above noted show cause notices, the writ petitioner responded the same on 07.09.2022 clearly setting out that he had not resorting to any act of impersonation and he also disputed the Forensic Report of the Respondent, which was made the basis of drawing adverse inference and also annexed the Forensic Investigation Report dated 24.08.2022. Further the writ petitioner requesting for cross-examination of the Forensic Expert report of which was relied upon by the respondents insisted for holding of regular departmental enquiry as per the Service Rules applicable to the Constables of the Police Department. The second respondent, the Chairman, U.P. Police Recruitment and Promotion Board, Lucknow, thereafter, proceeded to pass an order dated 07.10.2022 negating the claim set up by the writ petitioner while maintaining the previous stand of cancelling the candidature of the writ petitioner and delisting his name from the list of selected candidates, without holding a regular departmental enquiry.

8. Challenging the order dated 07.10.2022 passed by the second respondent, U.P. Police Recruitment and Promotion Board, Lucknow, the writ petitoner preferred Writ-A No.22096 of 2022, (Ankit Chaudhary vs. State of U.P. and others) seeking following relief:

"(i) a writ, order or direction in the nature of certiorari quashing the order dated 07.10.2022 passed by the Chairman, U.P. Police Recruitment & Promotion Board, Lucknow (Annexure No. 14 to this writ petition);

(ii) a writ, order or direction in the nature of mandamus commanding the respondent authorities to reinstate the petitioner in service with all consequential benefits on the post of Constable."

9. The above noted writ petition preferred by the writ petitioner came to be dismissed by the learned Single Judge by virtue of the judgment and order dated 28.02.2023.

10. Aggrieved against the order dated 28.02.2023 passed in Writ-A No.22096 of 2022, the appellant/ writ petitioner has preferred the present intra-court appeal.

11. Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare in support of the appeal has submitted that the learned Single Judge has erred in law in dismissing the writ petition raising challenge to the order dated 07.10.2022 cancelling the candidature of the petitioner and delisting his name from the list of selected candidates of Police Constables, inasmuch as, the present case is a classic example of illegality perpetrated by the respondents as without resorting to principles of natural justice, the appointment of the appellant/writ petitioner has been cancelled, which is in direct teeth of judgment of this Court in the earlier round of litigation in Writ A No. 19036 of 2021 decided on 11.04.2022 mandating the respondents to comply with the principles of natural justice before taking any adverse action aginst the writ petitioner. In other words, the submission is that since the Forensic Report is nothing but an opinion of an Expert and it does not partake the character of a conclusive evidence. Until and unless opportunity is accorded to the writ petitioner to rebut the same while granting opportunity to cross-examine the author of the same, the said Forensic Report cannot be treated as a gospel truth. Once the said exercise was not undertaken, the entire proceedings stood vitiated.

12. Additionally, it is further sought to be argued on behalf of the appellant / writ petitioner that once a show cause notice was issued by the second respondent, enabling the appellant/ writ petitioner to submit his reply and the appellant / writ petitioner tendered its reply relying upon another Forensic Report, which was contrary to the Forensic Report relied upon by the respondents, it was incumbent upon the second respondent to have recorded reasons as to why the report of the appellant/ writ petitioner should not be given precedence.

13. In the nutshell, the submission is that the order passed by the second respondent cancelling the candidature of the writ petitioner and delisting his name from the list of selected candidates is a serious issue, which cannot be taken lightly in the manner, it has been done. The reply submitted by the writ petitioner to the show cause notice relying upon an independent Forensic Expert Report ought to be considered and taken note in the order impugned by the learned Single Judge.

14. Lastly, it has been submitted on behalf of the appellant/ writ petitioner and the writ petitioner specifically denied the allegations and requested for holding a regular departmental enquiry as per the Service Rules in order to find out the truth of the allegations, then resorting of a short-cut method of cancellation of appointment without holding the regular departmental enquiry itself tantamounts to violation of principles of natural justice, particularly, when the writ petitioner became a confirmed and regular employee post successfully completing two years of probation as per the Uttar Pradesh Police Constable and Head Constable Service Rules, 2015 amended in 2017. Sri Ashok Khare, learned Senior Counsel has relied upon the decisions in the case of Union of India and others vs. Devendra Kumar Chaudhary, 2018(9) ADJ 570; Avatar Singh vs. Union of India, (2016) 8 SCC 471; Smt. Reeta Yadav vs. State of U.P., Writ-A No. 11046 of 2022, decided on 01.08.2022 and Subhash Chand Maurya vs. State of U.P., Writ-A No. 8117 of 2021 decided on 20.09.2021 to substantiate the above submissions.

15. Sri Suresh Singh, learned Addl. Chief Standing Counsel who appearing for the State respondents while countering the submission of the learned Senior Counsel for the appellant has sought to argue that the judgment and order of the learned Single Judge needs no interference in the present proceedings in view of the fact that it is an admitted case that the writ petitioner had impersonated and procured appointment by playing fraud. Further submission is that the order cancelling the candidature of the writ petitioner and delisting his name from the list of the selected candidates is based upon the report of Forensic Expert, copy whereof was duly provided to the appellant / writ petitioner. The appellant/ writ petitioner was made aware of the contents of the expert report and reasons for cancellation of appointment, merely because regular a departmental enquiry was not conducted, it would not be a ground to hold the order of the learned Single Judge being bad or vitiated, particularly, when there is no rule requiring holding of a regular departmental proceedings in the case of cancellation of initial appointment having been outcome of fraud. Sri Suresh Singh while elaborating the said submission has argued that there is a marked difference between the cancellation of appointment and dispensation of the services by way of dismissal, removal or termination. According to him, since the present case falls within the category of cancellation of the appointment itself on the ground of practising fraud by impersonation, the procedure contemplated for holding a regular departmental enquiry would not be attracted. It is further argued on behalf of the respondents that the second respondent has considered the case of the writ petitioner from all angles and has formed a firm opinion on the basis of the report of the Forensic Expert that the writ petitioner had impersonated and obtained appointment by playing fraud. In order to buttress the above submissions, reliance has been made upon the judicial pronouncement of R. Vishwanatha Pillai vs. State of Kerala, (2004) 2 SCC 105, Devendra Kumar Vs. State of Uttaranchal (2013) 9 SCC 363 and State of Bihar and others vs. Kirti Narayan Prasad, (2019) 13 SCC 250.

16. We have heard counsels for the respective parties and perused the record carefully.

17. Undisputedly, on the basis of the recruitment exercise undertaken by the second respondent, U.P. Police Recruitment and Promotion Board, Lucknow by way of publication of the advertisement in the month of January 2018, the writ petitioner applied for the post of Constable under OBC category and he was allotted Roll No.3311050244 and Registration No.105166994282. The petitioner cleared the written examination conducted on 19.06.2018, was subjected to DV/PST, Physical Efficiency Test and medical examination and accorded appointment on 15.05.2019. A complaint was lodged against the writ petitioner and the other candidates that they had obtained appointment while resorting to impersonation and practising fraud and, thereafter, the writ petitioner was arrested and consequently, by an order of this Court enlarged on bail.

18. Challenging the order dated 30.07.2021 and 07.12.2021 cancelling the candidature of the writ petitioner and delisting his name from the list of the selected candidates, the writ petitioner preferred Writ-A No. 19036 of 2021 (Ankit Chaudhary vs. State of U.P. and others) on the ground that in an exparte manner without issuing any show cause notice and granting opportunity to the writ petitioner to tender his reply on the basis of the report of the Forensic Expert, his services were dispensed with. This Court by virtue of the order dated 11.04.2022 quashed the orders dated 30.07.2021 and 07.12.2021 of the respondents being in violation of principles of natural justice leaving it open to them to proceed against the writ petitioner after relying upon the evidences, which might be available in law and the respondents were directed to give opportunity to the writ petitioner to place his side of the case. It was further provided that if any evidence is being used against the writ petitioner, it would be supplied to be writ petitioner so that he may have opportunity to rebut the same.

19. The remand, the respondents issued a show cause notice to the writ petitioner on 02.08.2022 followed by another notice dated 18.08.2022 requiring the writ petitioner to put forward his stand with regard to the allegations of impersonation as well as the inputs in the shape of the Forensic Report relied upon to hold the writ petitioner guilty of impersonation. The writ petitioner submitted his reply on 07.09.2022 raising two issues; (a) a regular departmental enquiry under the Service Rules be conducted; (b) Opportunity to cross-examine the author of the Forensic Report be afforded to him; (c) the proceedings be dropped as the writ petitioner relies upon the Forensic Report dated 24.08.2022, which in turn negates and makes the Forensic Report of the respondents unreliable and inaccurate. According to the learned counsel for the appellant/writ petitioner, by a totally non-speaking and unreasoned order, while none of the contentions of the writ petitioner has been considered, his candidature has been cancelled followed by delisting his name from the list of selected candidates.

20. The primary issue which needs to be considered, firstly is as to whether it was legally open for the appellant / writ petitioner to insist for holding regular departmental enquiry in the matter of cancellation of the candidature and delisting of his name from the list of selected candidates or not. Though the rival parties have cited umpteen number of decisions, but we would deal them later. Before delving into said issue, we have to bear in mind the nature of the order, which is being passed to the detriment of an employee/ candidate. There are two sets of the punitive order, namely an order cancelling the appointment for whatever reason it might be and secondly, an order dispensing with the services of an employee/ candidate either by resorting to dismissal, removal or termination. Another ancillary issue, which is relatable to the conduct of an employee/ candidate, namely a conduct prior to appointment and post appointment. In the first category, the conduct can be termed an act of fraud, while obtaining appointment. Second category personifies, a misconduct during the course of employment which definitely falls within the scope of departmental rules for taking disiplinary action against the employee either by way of resorting to the procedure for minor punishment or major punishment as the case may be. In the matters of cancellation of appointment relatable to obtaining of appointment by fraud, the parties before us have not produced any rule, for holding regular departmental proceedings. However, from the judgment so cited by the rival parties, it can be safely gathered that in the matter of a misconduct during the course of employment post appointment relatable to certain act or omission either forbidden or not required to be committed as per the Conduct Rules, regular departmental proceedings are to be held.

21. Here, in the present case, the entire allegations leveled upon the writ petitioner are relatable to an act of impersonation while obtaining appointment. The respondents have relied upon the report of the Forensic Expert, which prior to the passing of the order dated 30.07.2021 and 07.12.2021 was not served to the writ petitioner and without issuing show cause notice adverse orders were passed. On challenge being raised by the writ petitioner, this Court in the earlier round of litigation vide order dated 11.04.2022 though noticed the argument of the writ petitioner that the regular departmental enquiry ought to have been conducted as per the Service Rules applicable, but in the operative portion of the order, which has been extracted in the earlier part of the judgment while setting aside the orders under challenge left it open to the respondents to proceed against the writ petitioner after relying upon the evidence which might be admissible in law and the writ petitioner was made entitled to be given opportunity to place his version and any of the inputs, which would be relied was to be supplied to the writ petitioner to rebut the same. The said observations are not only clinching but also governs the further course of action, which is to be adopted post passing of order dated 11.04.2022. It is not the case of the appellant/ writ petitioner that a show cause notice was not issued to him as according to the writ petitioner, he was served with a show cause notice dated 02.08.2022 followed by another dated 18.08.2022 along with report of the Forensic Expert to which the writ petitioner tendered his reply on 07.09.2022 relying upon another report of the Forensic Expert dated 24.08.2022. Thus, the compliance of the orders of the learned Single Judge in the earlier round of litigation has been made by respondents.

22. Nonetheless the case of Devendra Kumar Chaudhary (supra) relied upon by appellant/writ petitioner is a case of regular departmental enquiry wherein during the course of the departmental proceedings, the employers relied upon the report of the Forensic Expert and the delinquent was denied opportunity to cross-examine the author of the same and in that context, this Court opined that the report of the Forensic Expert is only an opinion and in order to make it an admissible evidence, experts must appear before the enquiring authority so that the affected person against whom an expert opinion is being given may have an opportunity to cross-examine him. There is no quarrel to the said proposition of law, but the principles applicable for holding regular departmental enquiry cannot be applied in the case of cancellation of appointment.

23. Here, in the present case, no regular departmental enquiry is required to be conducted as it is a case of cancellation of appointment. As regards reliance placed upon Subhash Chand Maurya's (supra) case is concerned, the same is also of no aid to the appellant/ writ petitioner as that was a case, wherein there was termination of the services of an employee. Similarly, Reeta Yadav's case (supra) is also not applicable to the present case, the same is related to the punishment of dismissal emanating from the allegation of submission of forged document in order to procure appointment in the department.

24. In Avtar Singh (supra) the Hon'ble Apex Court while considering the issued with regard to suppression of material facts during the course of verification of antecedents had in para 35(9) observed as under:-

"In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form."

25. The aforesaid observations in the shape of conclusions are only confined to holding a regular departmental enquiry before passing of the order of termination, removal or dismissal on the ground of suppression or submitting false information.

26. The judgment relied upon by Sri Suresh Singh, learned Addl. Chief Standing Counsel who appears for the respondents, in the case of R. Vishwanatha Pillai (supra) is a case, wherein it has been held that once an appointment has been procured on the basis of false certificate, then the employee does not hold a civil post and thus, he is not entitled to the protection under Article 311(2) of the Constitution of India. Reiterating the said law in a subsequent decision in the case of Devendra Kumar (supra), the Apex Court has held that once an employee obtains appointment suppressing the material fact, then he is not entitled to the benefits as available under law. As regards the judgment in the case of Kirti Narayan Prasad (supra), the same also holds that an appointment made on the basis of vague or forged appointment letters is an illegal appointment void ab initio and thus, no rights accrue in favour of such employee.

27. Recently, in the case of State of Bihar and others vs. Devendra Sharma (2020) 15 SCC 466, the Hon'ble Apex Court has observed that an appointment made on the basis of forgery is void ab initio. More recently, the Hon'ble Apex Court in the case of Chief Executive Officer, Bhilai Steel Plant, Bhilai vs. Mahesh Kumar Gonnade, AIR 2022 SC 3356 has held that an appointment procured on the basis of false certificate does not create any equity.

28. Interestingly, it is not the case of the appellant/writ petitioner that post order dated 11.04.2022 passed in Writ A No. 19036 of 2021, he was not supplied with the copy of the Forensic Report relied by the respondents in order to holding guilty of impersonation. It is also not the case of the apppellant/writ petitioner that he was denied access of any of the documents which was put in motion to his detriment. Pleadings further reveal that there is no allegation of mala fide against any official of the respondents. Primarily the grievance is for granting opportunity to cross-examine the expert whose Forensic Report has been relied upon to hold the appellant/writ petitioner guilty of impersonation and to conduct regular departmental enquiry as per the rules. The question of holding of regular departmental enquiry in the matter of cancellation of appointment is not provided under the rules, and thus, it would not be proper for us to direct the respondents to conduct an enquiry which is not contemplated under the rules. As regards the issue of cross-examination of the expert whose Forensic Report has been relied upon by the respondents is concerned, in absence of any provision entitling the writ petitioner to cross-examine the expert we are afraid of such type of directions cannot be issued. Moreover, it is also not open for the writ petitioner to insist for holding of regular departmental enquiry as the said issue had already raised in the earlier round of litigation in Writ A No. 19036 of 2021 (Ankit Chaudhary Vs. State of U.P. and 3 Others) decided on 11.04.2022 and thus, in absence of any effective relief granted to the writ petitioner while directing the respondents herein to conduct regular departmental enquiry, the said direction also cannot be issued so as to further accede to the request of cross-examining the expert whose Forensic Report was relied upon by the respondents.

29. Now a question arises as to whether non-consideration of the report of the Foresnsic Expert relied upon by the appellant/writ petitioner would vitiate the orders impugned before the writ court or not. Basically the very purpose for issuance of a show cause notice is to apprise the other person about the allegations which he/she has to meet, requiring the other party to submit its reply effectively. Here in the present case post issuance of show cause notice, the writ petitioner submitted his reply on 07.09.2022 along with the Forensic Expert's Report dated 24.08.2022 disputing the correctness, reliability and accuracy of the report of the Forensic Expert relied upon by the respondents. Once such a defence has been taken on the basis of the Forensic Report of the expert, then the principles of natural justice required the authority to take a decision after considering the contentions raised by the noticee. The order dated 07.10.2022 of the second respondent shows that the said exercise is lacking. In the opinion of the Court, the second respondent, U.P. Police Recruitment & Promotion Board, Lucknow, was required to consider and address the said issue while coming to a final conclusion as to which of the two reports, one submitted by the appellant/writ petitioner and the other obtained by the respondents was to be taken into consideration while forming a definite and conclusive opinion of commission of act of impersonation. Since the said exercise has not been taken, we find that the procedure known to law, has not been complied with by the second respondent, U.P. Police Recruitment & Promotion Board, Lucknow.

30. Accordingly, the judgment and order of the learned Single Judge dated 28.02.2023 passed in Writ A No. 22096 of 2022 as well as the order dated 07.10.2022 passed by the second respondent, Chairman, U.P. Police Recruitment & Promotion Board, Lucknow, are set aside. The matter is remitted back to the second respondent, U.P. Police Recruitment & Promotion Board, Lucknow, to revisit the same afresh in light of the observations made hereinabove, by passing a reasoned and speaking order in accordance with law, as expeditiously as possible preferably within a period of two months from the date of production of the certified copy of the order.

31. It is further provided that setting aside of the judgment and orders of the learned Single Judge dated 28.02.2023 and 07.10.2022 of the second respondent, U.P. Police Recruitment & Promotion Board, Lucknow, shall not be construed that the appellant/writ petitioner would be entitled for reinstatement and grant of consequential benefits, if any, which would be subject to the final outcome of the fresh order to be passed by the second respondent.

32. With the aforesaid observation, the special appeal stands partly allowed.

 
Order Date :- 09.05.2023
 
N.S.Rathour			           (Vikas Budhwar, J.)    (Sunita Agarwal,J.)