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Allahabad High Court · body

2009 DIGILAW 2420 (ALL)

BRAHAM DUTT TYAGI v. STATE OF U. P.

2009-06-30

D.P.SINGH

body2009
JUDGMENT Hon’ble D.P. Singh, J.—Heard Shri V.K. Singh, counsel for the petitioner, learned Standing Counsel for the State respondents and Shri Nitin Sharma for the private respondents. 2. This petition is directed against the cancellation of the appointment of the petitioner dated 22.10.2005. 3. Brief facts for decision of this petition are that Janta Inter College, Kharkhauda, in district Meerut is a duly recognized and aided institution wherein the petitioner was initially appointed as an Assistant Teacher in the B.T.C. Grade on 1.8.1972. After having completed five year service he was promoted to the C.T. Grade and was granted the selection grade on 1.1.1986. When C.T. Grade was declared as a dying cadre he sought merger of his services in the L.T. Grade in pursuance of the Government order dated 24.5.2004. At this stage his certificates, including that of Intermediate and the B.T.C. training certificate were sent for verification where it was found that though the petitioner had appeared for his Intermediate Examination in 1969 conducted by the U.P. Board for High School and Intermediate Examinations, he had failed and the certificate submitted by him was found to be fraudulent and this fact was duly certified by the Secretary of the Board. In pursuance thereof, he was issued a show cause notice whereafter his appointment was cancelled by the impugned order. 4. The only argument urged on behalf of the petitioner is that as his services were terminated without obtaining prior approval from the U.P. Secondary Education Services Selection Board and therefore, in view of Section 21 of U.P. Act No. 5 of 1982, the order was void and as such ought to be quashed. 5. No doubt the services of a teacher cannot be terminated without the prior approval by the Authorities, earlier under Section 16-G(3) of U.P. Intermediate Education Act, 1921 and after enforcement of U.P. Act No. 5 of 1982, under Section 21 thereof. 6. However, before dealing with this aspect, it would be necessary to consider the legality of the appointment of the petitioner. 7. It is not denied that the petitioner was appointed in an Intermediate College as Assistant Teacher for junior classes. The minimum qualification for such a teacher for junior classes in Intermediate Colleges is prescribed in Appendix-’A’ in reference to Regulation 1 Chapter II of the Regulations framed under U.P. Intermediate Education Act. 7. It is not denied that the petitioner was appointed in an Intermediate College as Assistant Teacher for junior classes. The minimum qualification for such a teacher for junior classes in Intermediate Colleges is prescribed in Appendix-’A’ in reference to Regulation 1 Chapter II of the Regulations framed under U.P. Intermediate Education Act. It is apparent therefrom and also from perusal of the various Government orders which have also been placed on record that for teaching junior classes in an Intermediate College the incumbent has to possess the minimum qualification of Intermediate apart from B.T.C. training certificate or its equivalent. In para 7 of the petition it is admitted that he was appointed for teaching junior classes i.e. class VI to VIII, in the institution. Copy of the service book of the petitioner is annexed with the counter affidavit and in the column of qualification it is mentioned that the petitioner had cleared the Intermediate Examination in 1969 in the third division. A copy of the certificate of having passed the Intermediate Examination in 1969, submitted by the petitioner at the time of verification, on the strength of which he was appointed, is also annexed with the counter affidavit which shows that he cleared the said examination in the third division from Navbharat Vidyapeeth Intermediate College, Pratappur in district Meerut. A copy of the letter of the Principal of Navbharat Vidyapeeth Intermediate College dated 22.1.2005 is also annexed certifying that though the petitioner had appeared from the said institution as a private candidate for his Intermediate Examination in 1969, he did not clear it. The letter of the Secretary of the U.P. Board dated 29.3.2005 is also annexed certifying that the petitioner had appeared for his Intermediate Examination in 1969 from the said College and had secured 153 marks out of 400 but had failed. 8. The only conclusion from all these documents is that the petitioner though had failed in the Intermediate Examination in 1969, on the basis of fraudulent certificate of having passed it, he was able to procure the appointment in the institution. It is apparent that this appointment was dehors the rules and was fraudulently obtained and, therefore, was void. 9. 8. The only conclusion from all these documents is that the petitioner though had failed in the Intermediate Examination in 1969, on the basis of fraudulent certificate of having passed it, he was able to procure the appointment in the institution. It is apparent that this appointment was dehors the rules and was fraudulently obtained and, therefore, was void. 9. Once it is found as a matter of fact that the appointment of the petitioner was obtained dehors the rules and is an outcome of fraud knowingly committed by him, it would not be necessary to obtain any prior approval before termination of service. A Division Bench of our Court in the case of Pramod Kumar v. U.P.S.E.S.C., 2005 (2) AWC 1957 , has held that where an appointment of a teacher was void ab initio, no prior approval for termination is required. 10. There is another aspect to this issue. Under Section 21 of U.P. Act No. 5 of 1982 a bar has been placed that no teacher shall either be removed or his services terminated without prior approval of the Board constituted under the Act. The act of termination or removal is punitive in nature and is necessitated because of any misconduct having been committed during the tenure of the teacher as such employee, after following the procedure as prescribed. In the present case, the services of the petitioner have neither been terminated nor he has been removed but in fact his appointment itself has been cancelled on the ground of fraud as the act of submission of a false pass certificate is a deliberate act of deception with a design to secure appointment, which otherwise would not have been offered to the petitioner. Fraud strikes at the very root and renders void all subsequent action based on it. Fraud strikes at the very root and renders void all subsequent action based on it. The Apex Court in the case of Regional Manager, Central Bank of India v. Madhulika Guru Prasad Dahir and others, 2008 (13) SCC 170 , while considering a case of appointment based on a fraudulent caste certificate, after affirming the ratio laid down by it in the case of Madhuri Patil and another v. Additional Commissioner, Tribal Development and others, (1994) 6 SCC 241 , has gone on to hold that where any admission to an academic institution or appointment is based on fraud “the admission or the appointment shall be cancelled without any further notice to the candidate and the candidate shall be debarred from further study or continue in office on a post.” 11. Therefore, in a case of fraud, where appointment itself is liable to be cancelled, no prior approval is required under the Act. 12. Assuming for a moment that, technically, prior approval was necessary, but yet the Court, under its equitable and discretionary jurisdiction of Article 226 of the Constitution, would be within its jurisdiction to refuse interference in such a case where setting aside an illegal or a void order would breathe life in another illegal or void order. Thus, even on this principle, no interference is required by this Court. 13. Learned counsel for the petitioner has then sought mercy of the Court on the ground that the petitioner had been working in the institution for the last about 33 years when his appointment was cancelled. Mercy or sympathy by the Courts are generally beyond its domain. But in deserving cases the Courts do apply the equitable doctrine to dispel the sufferance of a litigant. Even if this principle is considered, the grave fact of fraudulent conduct of the petitioner stares in its face. Had it been a case of bona fide mistake, the Court could have embarked upon such a path but in this case it would be failing in its duty if it takes any lenient view. As it is, the Courts are coming across several cases where a litigant has reaped illgotten benefit on the basis of his fraudulent act and whenever caught, craves for mercy. Time has now come to deal with such cases with a heavy hand to send out a deterrent message to such prospective fraudsters. As it is, the Courts are coming across several cases where a litigant has reaped illgotten benefit on the basis of his fraudulent act and whenever caught, craves for mercy. Time has now come to deal with such cases with a heavy hand to send out a deterrent message to such prospective fraudsters. This petitioner, who has absolutely no defence of his fraudulent acts, has the pertinence to approach this Court within 15 days of the cancellation of his appointment without any introspection as to whether morally he was justified in approaching this Court under its equitable and discretionary jurisdiction for relief. 14. Simply rejecting the writ petition and upholding the action of the respondents would not be a sufficient deterrent to prospective fraudsters because by the time it is detected and action taken, large monetary benefits are already availed and, therefore, it would be appropriate in such cases to direct refund of at least some of the amount received as salary. Admittedly, the petitioner has served about 33 years and his service book reveals that he started with a pay of Rs. 200/- w.e.f. 1.8.1972 and the last entry in it shows that he was drawing at least Rs. 6500/- since 1.8.2003. Making a reasonable guess and considering the long stint of service that he has rendered, it would be appropriate in the present case that the petitioner is directed to refund part of his salary received at the rate of Rs. 500/- per month. This amount is quantified (500 x 396 months) at Rs. 1,98,000/-. 15. Having considered all its aspects, the Court has no hesitation in directing the petitioner to refund Rs. 1,98,000/- out of the salary received by him from the date of his appointment and deposit it in the account of the District Inspector of Schools, Meerut within a month. In case of default, the Collector, Meerut shall recover the aforesaid amount as arrears of land revenue within a further period of six weeks and deposit under the relevant head of the State Exchequer. It is further clarified that any transfer of any immovable property standing in the name of the petitioner as on date shall be void till the amount is so recovered from the petitioner. 16. Subject to the aforesaid directions, writ petition is dismissed. 17. It is further clarified that any transfer of any immovable property standing in the name of the petitioner as on date shall be void till the amount is so recovered from the petitioner. 16. Subject to the aforesaid directions, writ petition is dismissed. 17. The office is directed to send a copy of this order to the Collector, Meerut and another copy to the District Inspector of Schools within a week. ————