Kishore Kumar Das vs State Of Odisha And Another
2023 Latest Caselaw 467 Ori

                        ORISSA HIGH COURT: CUTTACK
AFR
                           WPC (OAC) No. 3166 of 2008

          In the matter of an application under Articles 226 and 227
          of the Constitution of India.
                                   ---------------

          Kishore Kumar Das                               .....            Petitioner

                                            -Versus-

          State of Odisha and Another                     .....          Opp. Parties


               For petitioner           :     M/s. Kali Prasanna Mishra,
                                              Sr. Advocate, along with
                                              M/s S. Mohapatra, T.P. Tripathy
                                              and L.P. Dwivedy, Advocates.

               For opp. parties         :     Mr. J.P. Patnaik,
                                              Government Advocate


          P R E S E N T:

                  THE HONOURABLE DR. JUSTICE B.R.SARANGI

                            Decided on : 13.01.2023

 DR. B.R. SARANGI, J.      The petitioner, by means of this writ petition,

          seeks    to   quash     the       order     dated     20.09.2007   under

Annexure-4 removing him from service with effect from the

date of service of the order, as per the provisions laid down

in PMR-668 and 673(C), for submission of invalid Registration Card for his appointment as Sepoy in O.S.A.P

(S.S.), 1st Battalion, Sambalpur.

2. The factual matrix of the case, in brief, is that

pursuant to an advertisement published in daily newspaper

dated 29.10.2006 under Annexure-1, for recruitment to the

post of Sepoy, the petitioner applied for and on being

considered to be eligible, as per the requisite qualification

prescribed in the advertisement, was allowed to participate

in the process of selection. On being duly selected, he was

posted as Sepoy under the administrative control of the

Superintendent of Police-cum-Ex Officio Commandant,

O.S.A.P. (S.S.), 1st Battalion, Sambalpur, pursuant to

which, he joined on 23.12.2006. While he was continuing

training under the Commandant, 4th Battalion, Rourkela,

on 24.07.2007, opposite party no.2 issued a notice to the

petitioner to show cause as to why he will not be removed

from service, on the ground of submission of invalid

employment exchange registration card along with the

application form. Pursuant to the notice of show cause, the

petitioner filed his reply, inter alia, contending that he has

got requisite qualification for appointment as Sepoy. But on

18.09.2007, opposite party no.2 removed the petitioner

from service as per the provisions laid down in PMR-668

and 673 (C) on the ground of submission of invalid

employment exchange registration card. Hence, this writ

petition.

3. Mr. K.P. Mishra, learned Senior Counsel

appearing on behalf of the petitioner vehemently contended

that no inquiry was conducted by the opposite parties to

ascertain as to whether the registration card submitted by

the petitioner was valid or not. No reasonable opportunity

was afforded to the petitioner before removal order was

passed by opposite party no.2. Thereby, the order so passed

cannot be sustained and is liable to be quashed. It is

further contended that if a candidate is otherwise qualified,

he cannot be treated as ineligible merely because he was

not sponsored by the Employment Exchange. Applying the

same analogy, since the petitioner was duly selected for the

post of Sepoy, due to invalid employment exchange

registration card, he should not have been deprived of his

service and, as such, the order impugned is void ab initio

and cannot be sustained. To substantiate his contention,

reliance has been placed on the judgment of this Court in

the case of Susanta Kumar Kar v. Registrar (Judicial),

Orissa High Court, 83 (1997) C.L.T. 335 and of the apex

Court in the case of The Excise Superintendent,

Malkapatnam, Krishna District, Andhra Pradesh v.

K.B.N. Visweshwara Rao and others, 1996 (7) Supreme

201.

4. Mr. J.P. Patnaik, learned Government Advocate

appearing for the opposite parties contended that the

petitioner, taking advantage of a fraudulent document,

cannot get an employment and continue in service, that too

in a disciplined service like police. As such, when the

petitioner submitted the application for consideration of his

case for recruitment, he produced the documents including

the registration card issued by the Employment Exchange,

where his name got registered. Therefore, after following

due procedure of selection, when the petitioner satisfied the

tests in terms of the advertisement, he was given

appointment and allowed to continue, taking into account

the employment exchange registration card, which was

supplied by him, as a genuine one. But, while the petitioner

was continuing in training, it was brought to the notice of

the authority that the same was not a valid one and, as

such, the same having not got renewed, it was found that

the petitioner had not produced any valid registration card

and rather he had submitted a forged document. As a

consequence thereof, notice of show cause was issued in

compliance of the principle of natural justice, to which the

petitioner filed his reply. Taking into consideration of the

same, the authority passed the order impugned removing

the petitioner from service. Thereby, no illegality or

irregularity has been committed on the part of the opposite

parties in removing the petitioner from service for

producing the forged document to get an employment in

government service. It is further contended that similar

question had come up for consideration before the apex

Court in The Chief Executive Officer, Bhilai Steel Plant,

Bhilai v. Mahesh Kumar Gonnade and others, 2022

LiveLaw (SC) 572, where taking advantage of a fraudulent

caste certificate the benefit of appointment was obtained

and the apex Court held that such benefit of appointment

being wrongful is not admissible. Therefore, the petitioner,

having secured the benefit of appointment on the basis of

an invalid employment registration card, has been rightly

removed from service.

5. This Court heard Mr. K.P. Mishra, learned Senior

Counsel appearing for the petitioner and Mr. J.P. Patnaik,

learned Government Advocate appearing for the State-

opposite parties in hybrid mode and perused the record.

Pleadings have been exchanged between the parties and

with the consent of learned counsel for the parties, the writ

petition is being disposed of finally at the stage of

admission.

6. Based on the factual matrix and the rival

submissions of the parties, as delineated above, the sole

question falls for consideration before this Court is, whether

the petitioner can be granted the relief of quashing the

impugned removal order on the plea that the employment

exchange card, which was produced by him, is a forged one.

7. There is no dispute before this Court at this

moment that the petitioner had been selected and

appointed as a Sepoy pursuant to the advertisement issued

under Annexure-1. He had taken advantage of such

appointment by producing an employment exchange

registration card, which was not sacrosanct. Therefore, the

benefit was not admissible to him. More so, before the

impugned order of removal was passed, the petitioner was

given opportunity of hearing in compliance of the principle

of natural justice, inasmuch as, he had been issued with

notice of show cause and in response to the same he had

submitted his reply and on consideration of the same the

order impugned was passed. But fact remains, the

petitioner got an employment in a disciplined department

by producing a forged document, i.e., an invalid

employment exchange registration card, whereas in the

Recruitment Rules/Resolution dated 07.10.2006, which is

filed as Annexure-A to the counter affidavit, under Clause

5(1)(c) it was specifically stipulated that it is incumbent

upon the candidates aspiring for appointment to the post of

Sepoy to submit/furnish a valid employment exchange

registration card. The petitioner, having not submitted a

valid registration card and rather having submitted a forged

employment exchange registration card, the fraud vitiates

everything and in a disciplined department like police, the

very moral and character of a person is pertinent while

considering the case for confirmation for appointment as a

regular employee.

8. In the appointment order issued in favour of the

petitioner, it had been made clear that the very appointment

of the petitioner was subject to verification of character and

antecedents, certificates and medical fitness. The petitioner,

having found to have submitted a forged document, his

conduct was found to be questionable, which is

unbecoming on the part of a candidate seeking employment

in a disciplined department. The petitioner, who was aware

of Clause-4 of the advertisement in Annexure-1, which is

pari matria with Rule 5(1)(c) of the Resolution dated

07.10.2006, had submitted a fraudulent document, for

which he is not entitled for his appointment to be

confirmed. Thereby, action was taken by the authority in

consonance with the provisions contained in PMR-668 and

673 (C) read with Rule 5 (1)(c) of the Recruitment Rules/

Resolution dated 07.10.2006. Consequentially, the removal

order so passed, which is impugned in this writ petition,

does not require interference by this Court at this stage.

9. On verification of the documents, since the

authority found that the petitioner had taken shelter of a

forged document, such as employment exchange

registration card, he was called upon to submit his

explanation, to which he submitted his explanation stating

to have submitted the genuine registration card. But during

verification it was found that the registration card was

invalid since March' 2005 due to want of renewal. Further,

the petitioner had also forged the date/month of renewal

and submitted the forged registration card during his

appointment, as intimated by the District Employment

Exchange Office, vide letter No. 598/DEE, Kendrapara

dated 19.06.2007. Thereby, the explanation submitted by

the petitioner having not found satisfactory, he was

removed from service.

10. In Susanta Kumar Kar (supra), which has been

relied upon by Mr. Mishra, learned Senior Counsel

appearing for the petitioner, the question was raised as to

whether there is any scope for accepting applications

directly notwithstanding that requirement to notify the

vacancies to the Local Employment Exchange, and that

whether excluding the candidates who are not sponsored

through the medium of Employment Exchange and

restricting the choice of selection to the candidates

sponsored through the medium of Employment Exchange,

would offend the equality clause of Articles 14 and 16.

While answering that question, this Court relied on the

decision in the case of The Excise Superintendent

Malkapatnam (supra) and came to hold that keeping in

view the large number of unemployed persons in the

country, it would be unreasonable to restrict the

consideration of only cases sponsored through Employment

Exchange. In any event, on the anvil of fair-play any

inconvenience caused by large number of applications being

made becomes inconsequential. Thereby, the factual matrix

dealt in Susanta Kumar Kar (supra) has no application to

the present case. As such that is not a case of forged

document produced by the petitioner therein.

11. In The Chief Executive Officer (supra), where

the opposite party Mahesh Kumar Gonnade by producing a

forged caste certificate had got employment. The apex Court

held that where the person secures appointment on the

basis of false certificate, he cannot be permitted to retain

the benefit of wrongful appointment. The said view was

taken taking into account the earlier view of the apex Court

in the case of Union of India v. Dattaray and others,

(2008) 4 SCC 612. Therefore, the judgment of the apex

Court in the case of The Chief Executive Officer (supra) is

directly applicable to the present case. The only difference is

that in the apex Court judgment it was caste certificate and

in the present case it is employment exchange registration

card, but that ipso facto cannot change the principle laid

down by the apex Court in the aforementioned case.

12. Therefore, considering the facts and law, as

discussed above, this Court is of the considered view that in

view of the ratio decided by the apex Court in the case of

The Chief Executive Officer (supra) and applying the

same to the present case, since the petitioner has taken

advantage of appointment as a Sepoy in the department of

police, which is a disciplined department, by producing a

fraudulent document like employment exchange registration

card, he cannot get the relief as sought. Therefore, the order

of removal passed by the authority, vide Annexure-4 dated

20.09.2007, is well justified and does not warrant

interference of this Court in any manner.

13. Thus, the writ petition merits no consideration

and the same stands dismissed. However, there shall be no

order as to costs.

(DR. B.R. SARANGI) JUDGE

Orissa High Court, Cuttack The 13th January, 2023, Arun/GDS