Reserved On : 22.12.2022 vs Union Of India And Others
2023 Latest Caselaw 335 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                                       Reserved on : 22.12.2022
                                                       Pronounced on: 22.02.2023


                                                       SWP No. 1637/2009(O&M)


                                                        .....Appellant(s)/Petitioner(s)
     Sardarni Deep Kour and others
     LRs of Late Sarwan Singh
                           Through: Mr. K. S. Johal, Sr. Advocate with
                                    Mr. Karman Singh, Advocate
                      vs
     Union of India and others                                       ..... Respondent(s)


                           Through: Ms. L. K. Moza, CGSC

     Coram:    HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
               HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                        JUDGEMENT

Per Oswal-J

1. The petitioner, namely, Sarwan Singh had filed this writ petition for quashing

the judgment dated 18.05.2009, whereby the Central Administrative Tribunal,

Chandigarh Bench (Circuit at Jammu) had dismissed the application filed by

the deceased petitioner against the order dated 15.03.1989, whereby the penalty

of removal from service was imposed upon the deceased petitioner. He had also

prayed for the quashing of order dated 15.03.1989 with a further a prayer for

directing the respondent Nos. 1 to 3 to reinstate the deceased petitioner with all

the consequential benefits. It needs to be noted here that the original petitioner

expired during the pendency of this petition and his legal representatives were

brought on record vide order dated 13.12.2017.

2. The deceased petitioner had filed this petition inter alia on the ground that the

learned Tribunal has failed to appreciate that the act for which the deceased

petitioner was removed from service was not done in the capacity as a

Government servant but as an ordinary citizen and as such, Rule 3 of the Central

Civil Services (Conduct) Rules, 1964 was not applicable, the entire

proceedings were conducted by the respondents 1 to 3 contrary to the Rule-14

of the Central Civil Services (Classification, Control and Appeal) Rules, 1965

and the punishment imposed upon the deceased petitioner was disproportionate.

It was also stated by the deceased petitioner that on 12.10.1988, no proceedings

took place but a piece of typed paper was given to the deceased petitioner to

sign and same was used during the proceedings of the enquiry.

3. Response stands filed by the respondents 1 to 3, wherein it is stated that the

deceased petitioner had obtained employment by misrepresentation in the year,

1979 by producing a school leaving certificate in which he was shown to have

passed 8th Class qualification, whereas the fact remains that he never qualified

8th class and produced fake 8th class certificate and had he not submitted the

same, he would not have been selected at all for the post. It was further stated

that during the enquiry proceedings, the deceased petitioner himself submitted

an application dated 12.10.1988 instead of filing any written statement, thereby

admitting his guilt. The petitioner thereafter was removed from service vide

order impugned dated 15.03.1989 and there has been no violation of any Rule

of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

4. Mr. K. S. Johal, learned senior counsel appearing for the petitioner vehemently

argued that the alleged act for which the deceased petitioner was removed from

service was not committed by the deceased petitioner being a Government

servant and as such, he could not have been proceeded under the Central Civil

Services (Conduct) Rules, 1964. He further argued that the enquiry was

conducted in violation of the Rule 14 of the of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965.

5. On the contrary, Mr. L. K. Moza, learned CGSC appearing for the official

respondents, vehemently argued that there has been no violation of any

fundamental right of the deceased petitioner and the deceased petitioner was

removed from the service after following the mandate of the relevant rules.

6. Heard and perused the record.

7. A perusal of the record reveals that the deceased petitioner was selected as MT

Driver Grade-II by the Board of Directors on 19.02.1979. He had obtained the

said employment on the basis of a certificate showing that he had passed 8th

class but in fact he had not passed the 8 th class. The Central Bureau of

Investigation on 31.12.1982 registered a case against the deceased petitioner

that he had not passed the 8th class school examination and he by fraudulent

means, obtained the appointment as driver with the respondent Nos. 1 to 3. The

charge sheet was produced against the deceased petitioner before the Chief

Judicial Magistrate, Jammu on 29.09.1983 and the petitioner was convicted

vide judgment dated 28.12.1987, however, he was ordered to be released on

probation under the Probation of Offenders Act. The deceased petitioner

assailed the said judgment before the appellate court and the appellate court

vide its judgment dated 29.04.1988 ordered that as the appellant (deceased

petitioner) has been given the benefit of Probation of Offenders Act in place of

his sentence, as such, the deceased petitioner under such circumstances, shall

not suffer disqualification for holding the post and continuing in service.

8. Thereafter, the employers of the deceased petitioner served a memorandum

dated 29.06.1988 along with Articles of Charges. The Enquiry Officer was also

appointed by the Disciplinary Authority vide order dated 09.08.1988 under Sub

Rule (2) of Rule 14 of the Central Civil Services (Classification, Control and

Appeal) Rules, 1965 to hold enquiry against the deceased petitioner.

9. On 03.10.1988, as the deceased petitioner was not fully prepared to defend his

case, the hearing was adjourned till 12.10.1988. On 12.10.1988, the deceased

petitioner admitted that he produced school leaving certificate and he also

accepted the Articles of Charge-I. The deceased petitioner also submitted an

application dated 12.10.1988 in which he accepted the fact of his

misrepresentation to seek employment and also prayed for condoning the

educational bar. Thereafter, vide order dated 15.03.1989, the deceased

petitioner was ordered to be removed from service without there being any

disqualification for future employment under the Government, with immediate

effect.

10. The first contention raised by the deceased petitioner is that the act for which

he was ordered to be removed from service, was not an act committed by a

Government servant in terms of Rule 3 the Central Civil Services (Conduct)

Rules, 1964 as he was not a Government servant when the said certificate was

produced/submitted before the respondent nos.1 to 3. This is an established and

admitted fact that the deceased petitioner obtained employment fraudulently by

producing a certificate that he was 8th class qualified which in fact he was not.

He could not have been employed as Government servant but for the

submission of said fake certificate.

11. It would be relevant to take note of the observations made by the Apex Court

in R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105, wherein it was

observed and held as under:

12. Article 311 provides that a member of a civil service of the Union or a State shall not be dismissed or removed by any authority subordinate to that by which he was appointed. That the employee shall not be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. In exercise of the power conferred by sub-section (1) of Section 3 of the All India Services Act, 1951, the Central Government, in consultation with the Governments of the States concerned, framed the All India Services (Discipline and Appeal) Rules, 1969. These Rules lay down the detailed procedure as to the manner in which the action is required to be taken against a delinquent public servant. Relying upon Article 311 and provisions of the Rules, it was contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant, that the service of the appellant could not be terminated without following the procedure laid down therein.

13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for a Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by KIRTADS and the Scrutiny Committee constituted under the orders of this Court. The appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts, we find that the safeguard provided in Article 311 of the Constitution that the government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself, stands complied with. Instead of departmental inquiry, the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely: (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the Department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes, another officer having intimate knowledge in the verification and issuance of the social status certificates, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put forth his point of view and defend himself. The issuance of a fresh notice under the Rules for

proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld up to this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority.

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 eye of the 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. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The 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 the 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 practising 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.

(Emphasis Supplied)

12. The order of employment obtained by the petitioner by way of fraud was void

ab initio as the fraud vitiates all proceedings. The deceased petitioner was given

proper opportunity of hearing by the respondents 1 to 3 while conducting

enquiry and the deceased petitioner admitted his guilt therefore, there is no force

in the contention of the deceased petitioner that the order of removal deserves

to be quashed on the ground that the act was not committed by the deceased

petitioner while being a Government servant.

13. The second contention urged by the petitioner is that Rule 14 of the Central

Civil Services (Classification, Control and Appeal) Rules, 1965 has been

violated. There is nothing on record to substantiate this contention by the

deceased petitioner and rather from the record, it is evident that due opportunity

of being heard was afforded to the deceased petitioner and he admitted his guilt

and in fact prayed for condoning the requirement of educational qualification

and in view of this, it does not matter whether any evidence was led or not. The

deceased petitioner did not opt to file any written statement but rather filed an

application for admitting his guilt and as per Sub Rule (9) of Rule 14 of the

Central Civil Services (Classification, Control and Appeal) Rules, 1965, if the

delinquent pleads guilty of any Article of charge, inquiring authority has to

record the plea, sign the record and obtain the signatures of the Government

servant and in this case, this Court does not find any violation of Rule 14

(supra). Thus, there is no force in this contention also, hence rejected.

14. The last contention raised by the deceased petitioner that the punishment was

disproportionate to the Act, is also misconceived, as this Court has already

observed above that the order of employment obtained by the petitioner by

producing false certificate was void ab initio and in this case, respondent Nos.

1 to 3 had been benevolent in removing the services of the deceased petitioner

with observation that the same shall not be disqualification for future service.

This Court does not find that the punishment awarded to the deceased petitioner

is disproportionate to his act.

15. For all what has been discussed above, we are of the considered view that there

is no merit in the instant writ petition, as such, the same is dismissed.

                                   (PUNEET GUPTA)              (RAJNESH OSWAL)
                                        JUDGE                       JUDGE

Jammu
 22.02.2023
Rakesh
                         Whether the order is speaking:     Yes/No
                         Whether the order is reportable:   Yes/No