Jharkhand High Court
Barun Thakur vs The State Of Jharkhand & Ors on 3 May, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.787 of 2018
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Barun Thakur ... ... Petitioner
Versus
The State of Jharkhand & Ors. ... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Binod Kumar, Advocate
For the Res.State : Mr. Prashant Kumar Rai, Adv.
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14/Dated:03.05.2024
Heard learned counsel for the parties.
2. The instant writ application has been preferred
by the petitioners for following reliefs:-
(i) For quashing of part of the order as contained in
memo no. 1273 dated 26.04.2017 (Annexure-7 to this
writ application), issued by the respondent no.4, by
which the salary has been withheld and stopped the
petitioner from teaching work without any rhyme and
reason.
(ii) For a direction upon the respondents to pay and
release the due salary from February,2017, which has
been withheld without any reason.
(iii) For a direction upon the respondents to allow the
petitioner to continue the teaching work as Assistant
Teacher.
3. Mr. Binod Kumar, learned counsel for the
petitioner submits that the petitioner was appointed as
Asst. Teacher on 02.12.1999 and after following the
procedure he started discharging his duty. In the year
2005 while he was discharging his duty, a show cause
notice has been issued on 12.01.2005 asking as to why
his salary be not stopped because he had obtained
appointment by submitting forged caste certificate of
Scheduled Tribe category. The petitioner had given reply
to the same stating that he has not submitted any forged
certificate; rather he had submitted the caste certificate
on the basis of deed of adoption and he had not
committed any irregularity in obtaining the appointment
by committing fraud. Pursuant to the show cause reply,
ultimately the petitioner was terminated vide order dated
18.08.2005 as contained in Memo No.1262.
Learned counsel further submits that the
petitioner had earlier challenged the aforesaid order of
termination dated 18.08.2005 before this Court in W.P.S
No.5998 of 2005 which was disposed of by quashing the
order of termination and the case was remitted back to
the District Superintendent of Education, Godda to
consider the same afresh after taking into consideration
the reply of the petitioner and following principle of
natural justice.
Thereafter, the petitioner has been reinstated
in service vide order dated 02.04.2016; however,
subsequently petitioner's salary was stopped vide order
dated 26.04.2017 and a show cause notice was also
issued to him as to why not his service be terminated.
Learned counsel contended that though the
petitioner had replied to the aforesaid show cause notice
vide his reply dated 02.05.2017; however there was
nothing on record to suggest that what happened to the
said reply as such the action of the respondent by sitting
over the matter for such a long time is not sustainable in
the eyes of law.
He further submits that though the petitioner was
appointed in the year 1999 and after a lapse of six years
he was terminated which is against the settled principle
of law. He further relied upon the judgment passed in the
case of Md. Zamil Ahmad Vrs. The State of Bihar &
Ors. reported in (2016) 12 SCC 342 wherein the Hon'ble
Apex Court has held that the State was not justified in
terminating the service of the petitioner after a lapse of so
many years. The Hon'ble Court has categorically held in
para-11 of its judgment as under.
"Keeping in view the peculiar undisputed facts of the
case and having regard to the totality of the
circumstances, we are of the considered view that the
State was not justified in terminating the appellant's
service. In other words, the ground on which the
appellant's services were terminated by the State after
a period of 15 years of appellant's appointment does
not appear to be well founded...................."
Relying upon the aforesaid judgment, he
contended that the action of the respondents is arbitrary,
mala-fide and against the settled principles of law;
accordingly, this writ application is fit to be allowed.
4. Learned counsel for the respondent submits
that the petitioner has not come before this Court with
clean hands and he has committed fraud as he had got
appointment by producing a false caste certificate of
Scheduled Tribe category. A detailed inquiry was held in
this regard and his report has been considered by
District Education Establishment Committee in its
meeting dated 06.07.2005 and after taking into
consideration the finding of the committee, he was
terminated. Subsequently, the petitioner challenged the
termination order before this Court and the case was
remitted back and again claim of the petitioner was
rejected vide order dated 29.01.2019, which has attained
finality as the same has not been challenged. As such, no
interference is required.
5. Having heard learned counsel for the parties and
after going through the documents annexed with the
respective affidavits and the averments made therein, it
transpires that pursuant to the order passed by this
Court in earlier writ application being W.P.S. No.5998 of
2005, the District Superintendent of Education, Godda
had issued a show cause notice to the petitioner vide
Letter No.1273 dated 26.04.2017. In turn, the petitioner
submitted his reply, and after perusal of reply of the
petitioner, it was found that required report/information
was not submitted by him, hence the DSE, Godda had
issued a letter dated 23.06.2017 to the petitioner with a
direction to appear before him along with supporting
documents.
6. It further transpires that the petitioner
appeared before the authority and after due enquiry, the
respondent came to the conclusion that the petitioner
had obtained the service of Teacher showing the caste
certificate of Scheduled Tribe category; whereas he
belongs to "Barber Caste", which admittedly does not
comes under S.T. category.
7. It further transpires that as per matriculation
certificate, date of birth of this petitioner is 21.02.1972
and date of execution of adoption deed is 14.02.1996
which clearly indicates that on the date of execution of
adoption deed, the petitioner was 24 years old; whereas
the upper age of adoption of a child is 18 years, hence
the adoption deed was considered as null and void by the
respondents and the claim for appointment and payment
to the petitioner had been rejected by the concerned
respondent vide Memo No.141 dated 29.01.2019
(Annexure-B) to the supplementary counter affidavit.
8. At this stage, it is pertinent to mention here
that the said rejection order (Annexure-B) has never been
challenged by this petitioner by filing any amendment
application. It further transpires from record that as per
the adoption deed which was executed on 14.02.1996 age
of the petitioner has been shown as 14 years; whereas as
per the matriculation certificate, he was 24 years. Thus,
it is evident that the petitioner had committed fraud by
submitting wrong report.
9. From the supplementary counter affidavit, it
further transpires that Bhola Soren was friend of
petitioner's father and he had no child and as claimed by
the petitioner he adopted him through adoption deed.
The claim of the petitioner was duly inquired by the BDO,
Mehrama, who reported the SDO, Godda that Bhola
Soren has a girl child, namely, Manji Soren having the
age of 18 years and she has denied any deed of adoption
made by her father.
There is specific averment in para-14 of the
supplementary counter affidavit that there is no
signature mark by Bhola Soren on the adoption deed and
the petitioner had wrongly submitted in his
representation that Bhola Soren was suffering from
disease of leprosy. Thus, it is clear that the petitioner had
committed fraud just to grab the job of Teacher under the
Scheduled Tribe category reserved quota post though, he
was OBC.
10. In view of the aforesaid facts and discussions,
this Court is having no hesitation in holding that the
petitioner has not come before this Court with clean
hands and has committed fraud and suppressed material
facts; as such he is not entitled for any relief.
In the case of R. Vishwanatha Pillai vs State
of Kerela & Others reported in (2004) 2 SCC 105, the
Hon'ble Apex Court has held as under:-
"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."
Further, in the case of A.V. Papayya Sastry
& Ors. Vs. Govt. of A.P. and Ors. reported in (2007) 4
SCC 221 the Hon'ble Apex Court has held that fraud
vitiates all judicial act whether in rem or in personam.
Judgment, decree or order obtained by fraud has to be
treated as non-est and nullity whether by court of first
instance or by the final court.
11. Now it is settled principle of justice that fraud
as is well known vitiates every solemn act. Fraud and
justice never dwell together. Fraud is a conduct either by
letters or words, which includes the other person or
authority to take a definite determinative stand as a
response to the conduct of the former either by words or
by letter.
12. Further, since the petitioner has not
challenged the termination order which has now attained
finality; even otherwise, the writ petition is fit to be
dismissed.
13. The judgment relied upon by the petitioner is
not applicable in the instant case in the facts and
circumstances of this case. Further in the instant case,
the petitioner was appointed in the year 1999 and the
show cause was issued in the year 2005 itself, as such
the said judgment is not applicable.
14. In view of the aforesaid finding, no relief can be
granted to the petitioner and accordingly the instant writ
application stands dismissed. Pending I.A.s, if any, also
closed.
(Deepak Roshan, J.)
Fahim/-AFR
