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2004 DIGILAW 296 (JK)

Sham Lal v. State Of J. &K.

2004-10-15

PERMOD KOHLI

body2004
Aggrieved of Government Order No. 390/HME/03 of 2003 dated 21.4.2003 issued by the Health, Family Welfare and Medical Education Department rescinding the appointment of the petitioners, petitioners have approached this court seeking quashment of the aforesaid order with a further direction to allow them to continue to work on the post of Pharmacist( Medical Assistant ) ; and further restraint order not to terminate the services of the petitioners based upon the impugned order . Vide interim order dated 12.5.2003, operation of the impugned order was stayed. Facts leading to filing of present petition are summarized: Pursuant to advertisement notice issued by the J&K Service Selection Recruitment Board for the posts of Medical Assistants, petitioners applied alongwith others. Minimum qualification prescribed for the post was 10+2 with diploma of Medical Assistant from the J&K State Medical Faculty. Both the petitioners claiming themselves to be eligible , applied for the same on the basis of prescribed qualification and interviewed. Both the petitioners came to be selected and their names figured at Serial Nos. 8 and 19 respectively of the select list dated 8.12.1997 published in local English Newspaper `Daily Excelsior. Consequent upon their selection, petitioners came to be appointed as Pharmacist (Medical Assistant) in the pay scale of Rs. 950- 1500 vide Director, Health Service, Jammus Order No. 1326/NG of 1997 dated 31.12.1997 and order No. 1328/NG of 1997 dated 31.12.1997. On being appointed, they were posted and they joined their service and continued till the passing of the impugned order. While petitioners were performing their duties, one Vikas Sharma, a unsuccessful candidate in the same selection, filed writ petition SWP No. 149/98, challenging the selection of petitioners. The basis for the challenge was that petitioners had secured less marks in the qualifying examination and despite lesser weightage than the selected candidates, they have been selected . The said writ petition came to be disposed of vide order dated 31.5.2001, directing the respondents to indicate the break up of points against 80% marks and the weightage awarded on the basis of qualifying examination. It appears that with a view to implement the judgment, respondent-2 examined the record and during scrutiny of the record, it was found that the petitioners had furnished fake marks certificates. It appears that with a view to implement the judgment, respondent-2 examined the record and during scrutiny of the record, it was found that the petitioners had furnished fake marks certificates. The government accordingly, while rejecting claim of Vikas Sharma, writ petitioner in SWP No. 149/98, rescinded the appointment of the petitioners with the following observations: "Now, therefore, in pursuance of the Honble High Court Judgment delivered in SWP NO. l 149/98 and contempt petition No. 101-C/2001 t he claims of the petitioner and respondent No. 4 and 5 were considered and the appointment orders issued in favour of respondent 4 and 5 namely Sat Paul s/o Ram Chand R/O Village Laytian P/O Chandu Chak Tehsil R.S. Pura and Sham Lal s/o Charan Dass r/o Village Abdullian P/O Chandu Chack Tehsil R.S. Pura District Jammu are rescinded with immediate effect." The sole ground for challenging impugned order is violation of the principles of natural justice. It is stated that the petitioners were selected pursuant to selection process and appointed on the basis of documents furnished by them, which were genuine. It is further stated that neither any show cause notice was given nor any enquiry held before passing the impugned order. The J&K Service Selection Board in its reply submitted that on the basis of record, the petitioners were selected. The State- respondent whose order is under challenge, stated that pursuant to the direction of the court, the matter was taken up with the State Medical Faculty regarding verification of the certificates and it was found that the petitioners have submitted fake certificates at the time of selection. Accordingly, by virtue of Government Order No. 390 HME of 2003 dated 21.4.2003, appointment of the petitioners was rescinded with immediate effect. Regarding violation of principles of natural justice, what has been stated is, that since the selection of petitioners was based upon fake certificates, no show cause notice is required before passing the impugned order. During the pendency of this petition, vide an interlocutory order dated 29.4.2004, following direction was issued : -- "In view of the contradictory stand taken by the parties, I feel it necessary that the matter should be got investigated through Vigilance Organisation. The certificates submitted by the petitioners to the Service Selection Board shall be furnished to the Vigilance Organisation by the SSRB and SP Vigilance is directed to examine the genuineness thereof. The certificates submitted by the petitioners to the Service Selection Board shall be furnished to the Vigilance Organisation by the SSRB and SP Vigilance is directed to examine the genuineness thereof. He shall submit his report within one month." Pursuant to aforesaid direction, the Vigilance Organisation submitted its report dated 22.9.2004. In this report, it is stated that petitioners had furnished attested Photostat marks certificates to the SSRB and in the said certificates, petitioner-1 had secured 155/250 marks whereas petitioner-2 is said to have secured 158/250 marks . However, from the attested photostat marks certificates as supplied by the Chief Medical Officer, Jammu and the original marks certificates furnished by Block Medical Officer, R.S. Pura, petitioner -1 had secured 129/250 marks whereas petitioner-2 had secured 128/250 marks. The Vigilance Organisation has further stated that both these candidates have fabricated the practical marks. Petitioner -1 had secured 79/150 marks as shown in original and attested copy supplied by CMO, Jammu whereas in the marks certificate obtained from SSRB, the marks in the practical are shown as 105/150. Similarly, petitioner-2 whose original practical marks are 76/150 whereas the fabricated marks are 106/150. The Vigilance Organisation accordingly was of the opinion that petitioners have used fabricated certificates to secure employment. The facts are admitted. The only issue needs to be examined is, whether the petitioners had the right to be put to notice or any departmental enquiry was necessary against them. When this petition was admitted to hearing vide order dated 29.4.2004 and simultaneously SP Vigilance was directed to examine the genuineness of the certificates, petitioners were permitted to file rejoinder. No rejoinder has been filed. The averments made in the counter affidavit, have not been controverted in any manner. Even during the course of arguments, Mrs. Surinder Kour, learned counsel for the petitioners only hammered on the question of violation of principles of natural justice. The petitioners have neither mentioned in the reply, how many marks they had secured in the qualifying examination nor did they produce any record either by filing rejoinder or otherwise to controvert the findings recorded in the impugned order or the report of the Vigilance Organisation. This clearly establishes that the certificates tendered at the time of selection were fake. Any appointment secured by fraudulent means, is no appointment in law and a person cannot claim protection under Article 311 of the Constitution of India. This clearly establishes that the certificates tendered at the time of selection were fake. Any appointment secured by fraudulent means, is no appointment in law and a person cannot claim protection under Article 311 of the Constitution of India. The Apex Court in R. Vishwanatha Pillai v. Vimal Ghosh reported in 2004 AIR SCW 419 held as under:- "Further, unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the 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. 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." Apart from law laid down the Apex Court referred to above, it was open to the petitioners to have taken this court into confidence regarding the genuineness of their certificates. As a matter of fact, there was golden opportunity for the petitioners to have established their credentials and genuineness of their certificates produced by them at the time of selection. They have failed to establish that certificates produced by them are genuine or they are in possession of any evidence which can controvert the allegation against them. On the contrary, the allegation against the petitioners contained in the impugned order, stands verified by the report of the Vigilance Organisastion. The petitioners have not dared to file objections to the report of the Vigilance Organisation. In this view of the matter, I am of the view that there was no necessity of issuing any show cause notice to the petitioners. Principle of audi alteram partem is not a mere formality. The object of affording an opportunity, is to enable a person to explain the circumstances /allegations against him. Even if it is assumed that the respondents failed to provide such an opportunity to the petitioners, the petitioners had the opportunity to disclose their marks in this court. They did not avail this opportunity to establish that their selection was based upon genuine certificates. Under these circumstances, there has been no mis-carriage of justice. Even if it is assumed that the respondents failed to provide such an opportunity to the petitioners, the petitioners had the opportunity to disclose their marks in this court. They did not avail this opportunity to establish that their selection was based upon genuine certificates. Under these circumstances, there has been no mis-carriage of justice. The impugned order is accordingly upheld. Writ petition dismissed with costs, which is assessed at Rs. 10,000/- to be shared equally by both the petitioners. Interim order dated 12.5.2003 shall stand vacated. Declining to grant relief to a party who approaches the court, is one thing but allowing a person to fiddle with the system by using all kinds of illegal and fraudulent means and then going scot- free , is not to be tolerated . This court is not only custodian and protector of the rights of the citizens, but is also enjoined with the duty rather constitutional obligation to see that the culprit who destroys the system does not go scot- free by violating the law . Such act, like the one committed by the petitioners, tends to shake the faith of the common man in the system and the institutions that govern and regulate the society. This is a fit case where the petitioners have to be subjected to law for their misconduct and fraud committed by them. While dismissing this writ petition, I direct the Senior Superintendent of Police, Crime Branch, Jammu to register a case against the petitioners and proceed according to law. The Crime Branch is entitled to seek assistance/record from the Vigilance Organisation , which has already conducted an enquiry in this regard. The Crime Branch shall submit a report of conclusion of the investigation to this court and the same shall be placed before the court by the registry as and when received from the Crime Branch.