Bombay High Court
Innus Ramjan Mulla vs State Of Maharashtra Thr. Charge ... on 5 August, 2021
Bench: G. S. Kulkarni
7-WP-2483-2021
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISIDICTION
WRIT PETITION NO. 2483 OF 2021
Innus Ramjan Mulla .. Petitioner
Versus
State of Maharashtra, through
Charge Joint Direction & Ors. .. Respondents
Mr. M. V. Thorat for the petitioner.
Mr. B. V. Samant, AGP for respondents-State.
C0RAM : DIPANKAR DATTA, CJ &
G. S. KULKARNI,J.
DATE : AUGUST 5,2021
PC:
1. This is a writ petition directed against a judgment and
order dated June 17, 2021 passed by the Maharashtra
Administrative Tribunal, Mumbai (hereinafter "the Tribunal" for
short) dismissing the petitioner's original application bearing
O.A. No. 244 of 2016.
2. An advertisement dated December 1, 2013 was
published in the daily SAKAL inviting applications from eligible
candidates for appointment on several Group "C" and "D"
posts. Condition no.19 of the advertisement required the
aspirants for the posts to submit 'small family' certificate as
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per Government notification March 28, 2005 whereas the next
condition warned the aspirants that if it is detected that false
documents have been submitted or relevant information
hidden, appointment could be cancelled. The petitioner had
applied for appointment on the post of Technical Laboratory
Assistant, a Group "C" post. In spite of the clear instructions
in conditions 19 and 20, the petitioner made a false
declaration in his application for appointment. Although he
was the father of three children, the petitioner withheld
information with regard to his youngest child who was born on
May 20, 2006. By suppressing the fact that he has three
children, the youngest of who was born after the cut-off date,
i.e., March 28, 2006, the petitioner ultimately succeeded in
securing public employment. At the time of joining service,
the petitioner submitted a declaration dated June 2, 2014. It
is then, for the first time, the petitioner disclosed that he was
the father of three children and that the youngest of them
was born after March 28, 2006. By a notice dated January 13,
2016 issued by the respondent no.1, i.e., the In-charge Joint
Director, Technical Education, the petitioner was informed that
since his youngest child was born after March 28, 2006, he
was ineligible for appointment; hence, explanation was sought
as to why he should not be terminated from service with
immediate effect. The defence of the petitioner was that while
submitting online application for appointment on the said
post, he inadvertently mentioned that he has two children.
Such explanation was not considered satisfactory, leading to
the respondent no.1 terminating the service of the petitioner
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with effect from March 16, 2016 by an order dated February
17, 2016 on the ground that the petitioner was not eligible for
appointment in terms of the Maharashtra Civil Services
(Declaration of Small Family) Rules, 2005 (hereinafter "the
Rules" for short).
3. Mr. Thorat, learned advocate appearing for the petitioner
assiduously argued that there was no breach of the Rules and
that the order of termination was passed illegally. According
to him, the cut-off date should have been March 28, 2007 and
not March 28, 2006 in view of an amendment to the Rules.
Next, it has been contended that the petitioner was treated to
be a temporary employee by the respondent no.1 although
the petitioner was appointed on a substantive basis and the
rules governing temporary employees was erroneously
invoked. The other contention of Mr. Thorat is that the
safeguard provided by Article 311(2) of the Constitution was
not extended to the petitioner and he came to be dismissed
from service without an enquiry.
4. Whether or not there has been breach of the Rules is a
matter which needs examination upon consideration of its
terms. Rule 2(d) of the Rules defines a 'small family'. It
means wife and husband including two children. As per Rule
3, notwithstanding anything contained in any
rule/order/instrument regulating recruitment to Group "A" to
"D" posts in Government service, the declaration of a 'small
family' shall be an essential additional requirement. The first
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proviso thereto ordains that a person having more than two
children on the date of commencement of the Rules shall not
be disqgualified for appointment under Rule 3 so long as the
number of children he had on the date of such
commencement does not increase. The second proviso
thereto, however, envisages that a child or more than one
child born in a single delivery within the period of one year
from the date of such commencement shall not be taken into
consideration for the purpose of disqualification mentioned in
Rule 3. Rule 4 mandates a person applying for any post in any
Government service to submit along with his application form
a declaration in Form 'A' appended to the Rules. We may
record here that no such amendment, as claimed, could be
produced by Mr. Thorat when called upon by us.
5. The contention that there was no breach of the Rules is
misconceived. It is undisputed that while the petitioner
applied for appointment, he had three children. The first two
were born on February 17, 2001 and June 20, 2003 and the
third on May 20, 2006. The petitioner's family, as on March
27, 2006, i.e., one year from the date of commencement of
the Rules, conformed to a 'small family'. However, with the
birth of his third child on May 20, 2006, the petitioner
breached the 'small family' definition for seeking appointment
in Government service. The petitioner could have sought for
relaxation in terms of Rule 6; however, by his own conduct,
closed the window left for seeking relaxation. We, therefore,
find no merit in the first contention of Mr. Thorat.
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6. We now turn to the second contention, i.e., whether
termination treating the petitioner as a temporary employee
was justified or not. Prior to dealing with the same, it needs to
be borne in mind that in the present case the petitioner's
service was terminated on the ground of suppression of a
relevant fact. It is preposterous that an educated individual
like the petitioner, who claims to have been associated with
the private sector for sixteen long years as an employee,
would commit an inadvertent error while applying for public
employment and thereby not disclose to the recruiting
authority that he has three children. Regrettably thereby, he
disowned his third child with the sole view to gain an entry
into the zone of consideration by means of deceit. We are
inclined to hold that the explanation offered by the petitioner
that there being an inadvertent error is nothing but an
afterthought to cover-up the deceit that he practiced at the
inception of trying for securing public employment.
7. In Manoj Kumar vs. Government of NCT of Delhi &
anr., reported in (2010) 11 SCC 702, the Supreme Court in
paragraph 8 held that if any candidate furnishes false or
incomplete information or withholds or conceals any material
information in his application, he would be debarred from
securing employment and that even if such a candidate has
already been appointed, his service is liable to be terminated
for furnishing false information.
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8. The decision in Regional Manager, Central Bank of
India vs. Madhulika Guruprasad Dahir & ors., reported in
(2008) 13 SCC 170, is an authority for the proposition that
act of deliberate deception with a design to secure something,
which is otherwise not due, tantamounts to fraud and
selection of an employee conceived in deceit (having obtained
appointment by producing false social status certificate) could
not be saved by equitable considerations.
9. It is well known that fraud vitiates even the most solemn
proceedings in any civilized system of jurisprudence.
Generally speaking, in a democratic polity governed by the
rule of law, perpetration of fraud by a party has to be viewed
with utmost seriousness and concern and should never be
condoned. The candour that was required of the petitioner
while applying for public employment was sadly missing since,
being the father of three children, he was aware that a true
and proper disclosure would have dented his chance for
consideration of his candidature for such appointment. Once it
was found that on the date of his appointment he had three
children but had suppressed relevant information while
applying for the post, the very foundation vanished rendering
his appointment illegal. The conduct of the petitioner is such
that it renders him unfit to be continued in service and
necessarily deserved termination of service. We are of the
considered opinion that the contention under consideration
has to be examined having regard to the deceit practiced by
the petitioner.
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10. The petitioner was on probation for six months. Although
there is no clinching evidence that he was confirmed on expiry
of the period of probation, we shall assume that he was
confirmed in service and, therefore, treating him as a
temporary employee was not quite in order. However, nothing
substantial turns on it. Even if the petitioner were treated as a
permanent employee, the respondent no.1 would still have
been justified in terminating his service in terms of clause 20
of the advertisement. The petitioner having applied in terms
of the advertisement has to be held bound by its terms.
Reference to an incorrect provision does not vitiate an order
so long the power is otherwise in existence. The basic facts
being undisputed, the petitioner cannot succeed on such
specious plea, as raised. The second contention, thus, also
stands overruled.
11. We now turn to the final contention that a regular
proceeding ought to have been drawn up against the
petitioner. The same is squarely answered by the Supreme
Court in its decision in R. Vishwanatha Pillai vs. State of
Kerala, reported in (2004) 2 SCC 105. Since the petitioner
secured appointment by practicing fraud, he cannot be
considered to be a person holding a post within the meaning
of Article 311 of the Constitution and, therefore, the
requirement to follow the provisions thereof did not arise.
12. All the contentions that were urged by the petitioner
before the Tribunal have been appropriately dealt with,
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including the point as to why disciplinary proceedings against
the petitioner were not required to be initiated prior to
terminating his service and we find absolutely no reason to
interfere.
13. The writ petition is wholly devoid of merit. The judgment
and order of the Tribunal is upheld and the writ petition
stands dismissed. There shall be no order as to costs.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
PRAVIN
DASHARATH
PANDIT
Digitally signed by
PRAVIN DASHARATH
PANDIT
Date: 2021.08.10
14:04:15 +0530
