Tripura High Court

Shri Maran Sarkar vs The State Of Tripura on 16 March, 2022

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                           HIGH COURT OF TRIPURA
                                 AGARTALA
                                WA No. 28 of 2019

    Shri Maran Sarkar,
    Son of late Nanigopal Sarkar, resident of village- Badharghat, P.O. Siddhi
    Ashram, P.S. A.D. Nagar, District- West Tripura.
                                                             ----- Appellant(s)
                                     Versus
1. The State of Tripura,
   represented by its Principal Secretary, Department of Home, Government
   of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
   Tripura.
2. The Commissioner and Secretary,
   Department of Home, Government of Tripura, P.O. Kunjaban, P.S. New
   Capital Complex, District- West Tripura.
3. The Director General of Police,
   Government of Tripura, Police Headquarter, P.O. Agartala, P.S. West
   Agartala, District- West Tripura.

                                                             ----- Respondent(s)

    For Appellant(s)                 :     Mr. Arijit Bhowmik, Adv.
                                           Mr. S. Dey, Adv.
    For Respondent(s)                :     Mr. D. Sharma, Addl. G.A.
                                           Mr. S. Saha, Adv.

    Date of Hearing                  :     07th March, 2022.
    Date of Pronouncement            :     16th March, 2022.
    Whether fit for reporting        :     YES


                                  _B_E_F_O_R_E_

HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

JUDGMENT & ORDER [Per S.G. Chattopadhyay], J

This writ appeal is directed against the judgment and order dated

20.11.2018 passed by the learned Single Judge in WP(C) No.1374 of 2017

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whereby the relief, sought for, was declined to the petitioner and his writ

petition was dismissed.

[2] The factual backgrounds of the case are as under:-

The petitioner (appellant herein) was appointed as a Sub-Inspector

of Police w.e.f. 01.10.1989. Since he did not get any promotion, the benefit

of Career Advancement Scheme (CAS) was extended to him. On his

completion of 10 years of service, he was favoured with the first

upgradation of scale of pay under the Tripura State Civil Services (Revised

Pay) Rules, 1999 w.e.f. 02.10.1999. Similarly, the second upgradation of

scale under the Assured Career Progression (ACP) was also released in

favour of the petitioner w.e.f. 02.10.2009. Thereafter, by PHQ order

No.322/2009 dated 29.10.2010, the petitioner was terminated from service

pursuant to cancellation of his caste certificate by the State Level Scrutiny

Committee [SLSC] under order No.87/SDO/BLN/CTZN/84 dated 18.03.1985.

[3] The petitioner challenged the order of cancellation of his caste

certificate by filing a writ petition before this Court which was dismissed. He

also filed a review petition which was also dismissed by this Court.

Thereafter, the petitioner approached this Court by filing WP(C) No.1374 of

2017 claiming re-fixation of his pay till the date of his termination from

service and release of his pension, GPF, leave salary, gratuity, group

insurance etc.

[4] Relying on the facts of WP(C) No.1181 of 2017 [Shri Subhash

Ranjan Bhattacharjee vs. The State of Tripura and others], WA No. 28/2019 Page - 3 of 13

petitioner claimed that he was similarly situated with said Subhash Ranjan

Bhattacharjee who was inducted with him in the State Police Service as a

Sub-Inspector of Police. The writ petition filed by Shri Subhash Ranjan

Bhattacharjee claiming re-fixation of pay was allowed by this High Court by

judgment and order dated 28.11.2017 passed in WP(C) 1181 of 2017.

Petitioner, therefore, claimed his re-fixation of pay in similar line for the past

service rendered by him before his termination.

[5] The State-respondents in their counter affidavit contended that

since the petitioner obtained the appointment by playing a fraud, he would

not be entitled to any benefit flowing from the post held by him.

[6] Appearing before the learned Single Judge, counsel of the

petitioner argued that even though the termination order of the petitioner

reached its finality, there was no bar in releasing the financial benefits

claimed by the petitioner on the basis of his earlier status. To persuade the

learned Single Judge, counsel of the petitioner relied on the following

decisions of the Apex Court:

1. Raju Ramsingh Vasave vs. Mahesh Deorao Bhivapurkar & Ors.; reported in (2008) 9 SCC 54,

2. Damodar vs. Secretary, Industrial Energy and Labour Department & Ors.; reported in (2010) 15 SCC 537,

3. State of Maharashtra vs. Milind; reported in (2001) 1 SCC 4,

4. Raiwad Manojkumar Nivruttirao vs. State of Maharashtra & Anr.; reported in (2011) 9 SCC 798,

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5. Chairman and Managing Director, Food Corporation of India & Ors. Vs. Jagdish Balaram Bahira & Ors.; reported in (2017) 8 SCC 670,

6. Central Warehousing Corporation vs. Jagdishkumar Vithalrao Panjankar & Anr., reported in (2017) 14 SCC 500.

[7] Mr. D. Sharma, learned Addl. G.A. while opposing the contention of

the counsel of the petitioner argued before the learned Single Judge that

even though the benefit claimed by the petitioner related to the service

rendered by him before his termination from service, he would not be

entitled to such benefit since his caste status which was the very basis of

his appointment was taken away. To nourish his contention, the learned

Addl. G.A. relied on the decision of the Apex Court in R. Vishwanatha

Pillai vs. State of Kerala & others; reported in AIR 2004 SC 1469.

[8] Having discussed the law enunciated by the Apex Court in the

judgments relied on by the counsel of the parties and having considered

their submissions, the learned Single Judge declined to grant any relief to

the petitioner and dismissed his petition viewing as under:

"[9] The law has been clearly laid down that when the petitioner has obtained his appointment by practicing fraud he cannot be allowed to take advantage of such fraud in entering the service and claiming that he was the holder of that post. Once it is found that the very appointment is illegal and is non- est in the eye of law, no statutory entitlement for salary or consequential rights can arise. If the very appointment is rested on forgery, no statutory right can flow from it. Having taken due note of the law as settled by the apex court, this court cannot accept the reasoning as advanced for the petitioner.

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Even this court is not inclined to remit the matter to the competent authority for review of their decision."

[9] Aggrieved petitioner has filed this appeal challenging the judgment

and order of the learned Single Judge mainly on the following grounds:

(i) The appellant has been terminated from service pursuant to

cancellation of his caste certificate. The Tripura Scheduled Castes and

Scheduled Tribes Reservation Act, 1991 and the Rules made thereunder do

not provide for forfeiture of a past service and the benefits accruing

therefrom as a consequence of obtaining appointment in service on the

basis of a false community certificate.

(ii) No proceeding was drawn up against the appellant under the CCS

CCA Rules, 1965 and no punishment was imposed on him thereunder.

Forfeiture of past service upon dismissal or removal from service can be

made only when the incumbent is terminated from service pursuant to

punishment imposed under CCS CCA Rules. Therefore, forfeiture of the past

service of the appellant is totally illegal.

(iii) Under similar circumstances, this High Court by judgment dated

03.08.2016 in WP(C) No. 68 of 2015 modified the termination order of the

petitioner of that case to compulsory retirement so as to enable him to

receive pension.

[10] Mr. Arijit Bhowmik, learned counsel appearing for the appellant

submits that considering the length of service rendered by the appellant, his

past service may be protected and on the basis of the service rendered by

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him till the date of his termination, his pension, leave salary and gratuity

etc. may be calculated and the same may be released in favour of the

appellant. Counsel contends that in the Tripura Scheduled Castes and

Scheduled Tribes Reservation Act, 1991 and the Rules made thereunder,

under which caste certificate of the appellant was cancelled do not provide

for forfeiture of the past service and therefore the appellant cannot be

deprived of the benefits accrued from his past service. To buttress his

contention, counsel has relied on the judgment of the Apex Court in the

case of Chairman and Managing Director, Food Corporation of India

& Ors. Vs. Jagdish Balaram Bahira & Ors.; reported in (2017) 8 SCC

670 and the judgment in the case of Central Warehousing Corporation

vs. Jagdishkumar Vithalrao Panjankar & Anr.; reported in (2017) 14

SCC 500.

[11] Mr. D. Sharma, learned counsel appearing for the State-

respondents on the other hand contends that termination on the ground of

false caste certificate cannot be substituted by an order of compulsory

retirement to protect pensionary benefits on the ground of the length of

service. Mr. Sharma, learned Addl. G.A. has relied on the decision of the

Apex Court in R. Vishwanatha Pillai vs. State of Kerala & others;

reported in AIR 2004 SC 1469 in support of his contention. Learned Addl.

G.A. further contends that salary, pension and other service benefits spring

from a valid and legal appointment. Once such appointment is found illegal

and non-est in law, the concerned employee forfeits his right to salary and

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all consequential right to pension and other monetary benefits. To nourish

his contention, counsel has relied on decision of the Apex Court in the

State of Bihar and others vs. Devendra Sharma; reported in (2020)

15 SCC 466. Mr. Sharma, learned Addl. G.A., therefore, urges the Court to

dismiss the appeal.

[12] There is no dispute that the appellant was appointed in service on

the basis of his caste status in the quota reserved for the candidates

belonging to Scheduled Caste. He rendered service for a period of 20 years

w.e.f. 01.10.1989 till his termination on 29.10.2009. The question which

arises for our consideration is whether the appellant can claim financial

benefit for the service rendered by him despite his termination on the

ground of obtaining the employment on the basis of a false caste certificate.

[13] As discussed, the learned Single Judge dwelt on the issue in WP(C)

No. 1374 of 2017 and declined to grant relief to the appellant by the

impugned judgment.

[14] In the case of the Chairman and Managing Director, Food

Corporation of India and others (supra) which has been relied upon by

the counsel of the petitioner, the individuals who secured access to the

benefit of reservation on the basis of false caste certificate invoked

jurisdiction of the Apex Court under Article 142 of the Constitution on the

basis of an assertion that equity arises upon a lapse of time which are

capable of being protected by the High Court under Article 126 or by the

Supreme Court under Article 142 of the Constitution. The Apex Court having

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reiterated the ratio decided in its earlier decisions held that it would be a

negation of the rule of law to exercise the jurisdiction under Article 142 to

provide relief to the imposter who secures employment in reserved quota

ousting a genuine reserved category candidate. In paragraph 66 of the

judgment, the Apex Court has held as under:

"66............................When a candidate is found to have put forth a false claim of belonging to a designated caste, tribe or class for whom a benefit is reserved, it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect that individual. Societal good lies in ensuring probity. That is the only manner in which the sanctity of the system can be preserved. The legal system cannot be seen as an avenue to support those who make untrue claims to belong to a caste or tribe or socially and educationally backward class. These benefits are provided only to designated castes, tribes or classes in accordance with the constitutional scheme and cannot be usurped by those who do not belong to them. The credibility not merely of the legal system but also of the judicial process will be eroded if such claims are protected in exercise of the constitutional power conferred by Article 142 despite the State law."

[15] Therefore, the appellant cannot derive any benefit from this

judgment of the Apex Court. Similarly, in the case of Central

Warehousing Corporation(supra) which has been referred to by the

counsel of the appellant, the appellant whose service was terminated on the

ground of cancellation of his caste certificate claimed before the High Court

that he belonged to Koshtis which was actually a sub-caste of Halba

recognized as Scheduled Tribe in the State of Maharashtra. The question

was decided by the Bombay High Court in favour of the petitioner. Employer

brought the issue before the Apex Court in the form of an appeal in which WA No. 28/2019 Page - 9 of 13

the Apex Court held that Koshtis caste was not a sub-tribe caste of Halba

and therefore the petitioner should not have been treated as a Scheduled

Tribe. But the Apex Court was of the view that since the judgment of the

Bombay High Court had held the field from 1987 onwards till this was

reversed by the Apex Court in 2001, the equity was found in favour of the

respondent and on the ground of equity, the Apex Court declined to

interfere with the judgment of the Bombay High Court but made it clear

that the respondent would not be entitled to any future benefit following

from the judgment and treating him to be a Koshtis as sub-tribe of Halba.

Thus, the factual context in the case of Central Warehousing

Corporation (supra) is totally different from the context of the case in

hand. Therefore, the said decision does not apply to the present case.

[16] As noted, it was also contended on behalf of the appellant that

since no charge was framed against him and no inquiry was held or penalty

was imposed, there is no scope to forfeit the benefits accruing from the

service rendered by the appellant till his termination. In his counter

arguments, Mr. D. Sharma, learned Addl. G.A. having relied on the

judgment of the Apex Court in the case of R. Vishwanatha Pillai(supra)

contended that Constitutional guarantee under Article 311 of the

Constitution will have no application in this case since the appellant had

usurped the post meant for a reserved candidate by playing a fraud and

producing a false caste certificate. Counsel has relied on paragraph 15 of

the judgment wherein the Apex Court has held as under:

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"15.............. 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 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."

[17] As noted, the appellant has also relied on the judgment dated

03.08.2016 of a coordinate bench of this Court in WP(C) No.68 of 2015

in which the petitioner was terminated from service on the ground that he

obtained a government job by producing false SC certificate. High Court

found that the petitioner by that time put in service for a period of 28 years.

In the said case, High Court also observed that even though, 108

government employees in a lot were found to have secured government job

by producing false caste certificate, some of them were dismissed from

service and some were given lesser punishment. Petitioner was one of those

who were dismissed from service. Having noticed such discrimination,

petitioner‟s dismissal was converted into compulsory retirement by the High

Court w.e.f the date of his dismissal and he was allowed pensionary

benefits.

[18] The circumstances which weighed with the Court in WP(C) No.68

of 2015 were different and moreover, apparently, no law has been laid

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down by this Court in the said case. Therefore, the decision rendered by

this Court in WP(C) No.68 of 2015 cannot help the appellant.

[19] The Apex Court in the case of the State of Bihar and others

(Supra) which has been referred to by learned Addl. G.A. has categorically

held that if the very appointment is found illegal and is non-est in the eyes

of law, no statutory entitlement for salary or consequential rights of

pensions and other monetary benefits can arise. We may profitably

reproduce the following paragraphs from the said judgment of the Apex

Court:

"35. Lastly, it is argued that employees have been working for many years, some for more than 25 years, therefore, humanitarian view should be taken to set aside the order of termination and regularise their services so as to make them entitled to pension and other retirement benefits.

36. We do not find any merit in the said argument. A Full Bench of the High Court in Rita Mishra & Ors. v. Director, Primary Education while dealing with appointment in the Education Department claiming salary despite the fact that letter of appointment was forged, fraudulent or illegal, declined such claim. It was held that the right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is a right consequential to a valid appointment to such post. Therefore, where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.

37. Such judgment of the Full Bench was approved by the three-Judge Bench of this Court in R. Vishwanatha Pillai v.

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State of Kerala. This Court held as under: (SCCp. 116, paras 17-18) "17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (SCC OnLine Pat para13: AIR p. 32, para 13) „13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it.‟

18. We agree with the view taken by the Patna High Court in the aforesaid cases."

[20] In the given case, the appellant has tried to impress upon the

Court that in view of the length of his service, this Court in the exercise of

its equity jurisdiction can protect his pensionary benefits. We do not find

any merit in the contention of the appellant because the appellant in this

case got the appointment on the basis of a false caste certificate by playing

a fraud. The Apex Court in the case of R. Vishwanatha Pillai (supra) has

observed that equity or compassion cannot be allowed to bend the arms of

law in a case where an individual acquired a status by practising fraud

(Italics supplied).

[21] In the case of Kumari Madhuri Patil and another vs. Addl.

Commissioner, Tribal Development and others; reported in (1994) 6