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2009 DIGILAW 570 (JK)

Mohd. Afzal Sheikh v. State

2009-11-19

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner claims to have passed Matriculation in the year 1982 and B.A. Final in 1999 as private candidate. Petitioner thus claims to be Graduate. Petitioner who was working as substitute Forest Guard came to be temporarily appointed as Forest Guard in the pay scale of 410-625. Vide Forest order No. 383 of 1983-83 dated 29.10.1983, the post against which the petitioner was engaged was withdrawn from Social Forestry Division, Baramulla and allotted to Bandipora Division. The order was issued by the then Chief Conservator of Forests, J&K Govt, Srinagar. After engagement of the petitioner as Forest Guard, his service book was prepared and was given all the service benefits attached to the post of Forest Guard. The petitioner became member of forest service of the State Government. It is further claimed that in the year 1986 the petitioner successfully completed the training course from Kashmir Forest Training School, Chatternar, Kashmir. Petitioner was given benefit of Higher Standard Pay Rules of 1996 issued vide SRO 14 dated 15.1.1996. 2. Petitioners service is governed by J&K Forest (Subordinate) Service Recruitment Rules, 1991(for short Rules of 1991). In terms of Rules of 1991 a Graduate, Forest Guard, is to be considered for being appointed by promotion to the post of Dy. Forester if he is having three years experience and consideration is to be accorded to a Matriculate, Forest Guard, having seven years experience and non-matriculate, Forest Guard, who is having ten years experience. Rules of 1991 also provide that at least 25% of the available vacancies shall be filled up amongst the meritorious candidates. 3. The claim of the petitioner is that when he entered in the department as Forest Guard he was matriculate and after joining his service he passed graduation in the year 1999 as a private candidate. The petitioner thus became eligible for being considered for promotion to the post of Dy. Forester. The petitioner when he was posted as Forest Guard at Onagam, submitted an application to respondent No.5 requesting therein that he be promoted and appointed to the post of Dy. Forester. The application was forwarded to respondent No.4, who in turn sent the same to respondent No.3. The respondent No.3 submitted the case of petitioner to respondent No.2. Thereafter it surfaced that petitioner has entered into service allegedly on a fake/fabricated appointment order. Forester. The application was forwarded to respondent No.4, who in turn sent the same to respondent No.3. The respondent No.3 submitted the case of petitioner to respondent No.2. Thereafter it surfaced that petitioner has entered into service allegedly on a fake/fabricated appointment order. Respondent No.2 in sequel to this revelation requested respondent No.7 for registration of criminal case against the petitioner. Copy of the communication was also sent to respondent No.5 asking him stop the pay of the petitioner. Case FIR No.62/2002 u/s 420/468/471 RPC stands registered against the petitioner. Respondent No.5 stopped the pay of the petitioner and interms of Forest Order No. 46 of 2002-03 dated 29th Oct. 2002 petitioner was ordered to be attached to Range Office Khuihama. The petitioner acting on the order dated 29.10.2002 submitted a departure report on 12.11.2002 from Onagam and on same day submitted arrival report before respondent No.6. As per the claim of the petitioner thereafter he was not permitted to mark his attendance nor salary was paid to him. Petitioner approached the authorities including some of the respondents but his request fell on deaf ear. 4. Petitioner approached this court by filing writ petition in which he has prayed for issuance of writ of certiorari or any other appropriate writ, order or direction for quashing letter bearing No. PCCF/NG/Estt/Fgd./1396-98 dated 30th Sept. 2002 addressed by respondent No.2 to respondent No.7, and Forest Order No. 46 of 2002-03 dated 29.10.2022 issued by respondent No.5 as also FIR No. 62/2002. Petitioner has also prayed for issuance of writ of mandamus commanding the respondents to allow the petitioner to work as Forest Guard and pay him the salary and other benefits from Oct. 2002 and onwards, and also to consider him for promotion to the post of Deputy Forester. 5. On issuance of notice respondents have filed objections/reply affidavit. In the objections/reply affidavit, it has been pleaded that petitioner has managed his entry into government service on the basis of fake appointment order purported to have been issued by the then Administrative officer of Chief Conservator of Forests J&K Srinagar. It is further pleaded that in the objections/reply that the said fake appointment order actually pertains to transfer of two Range officers issued by the competent authority and when the matter came to the notice of the respondents, they referred the matter to police department for registration of case. It is further pleaded that in the objections/reply that the said fake appointment order actually pertains to transfer of two Range officers issued by the competent authority and when the matter came to the notice of the respondents, they referred the matter to police department for registration of case. Copy of the order has been annexed as annexure RI with the objections. The Annexure RII pertains to transfer of two Range Officers. The respondents after examining the order arrived at conclusion that petitioner has entered into service on the basis of fake/forged appointment order and thereafter the matter was referred to police authorities for registration of the case. 6. Heard learned counsel for petitioner. Considered the matter. 7. Mr M.A. Qayoom ld. counsel referred to order of appointment of the petitioner which is annexure B of the writ petition to indicate that the said order is not forged but is a genuine order. The ld counsel read the appointment order in-extenso to show that the order annexure R-1 annexed with the objections of the respondents though bearing same number and date is signed by Chief Conservator of Forests and issued by the Office of Chief Conservator of Forests Srinagar, whereas the appointment order by which the petitioner claims to have been appointed as Forest Guard in the Forest Service reveals that same has been issued by office of Chief Conservator of Forests J&K and is signed by Administrative Officer. The ld. counsel thus submitted that two orders though bear same number and date, but on perusal of these two orders it cannot be said that the appointment order on the basis of which petitioner has been appointed appears to be forged document. It is also submitted by ld. counsel that the post against which the petitioner was appointed was temporarily allotted to Soil Forestry Division Baramulla but was withdrawn and allotted to Bandipora Division and it is against this post the petitioner was appointed by the competent authority. Ld. counsel also submitted that as the petitioner became member of Forest Service and had attained the status of permanent employee, his services were thus protected by constitutional guaranteed under Article 311 of the Constitution of India read with 126 of the Constitution of J&K. Ld. Ld. counsel also submitted that as the petitioner became member of Forest Service and had attained the status of permanent employee, his services were thus protected by constitutional guaranteed under Article 311 of the Constitution of India read with 126 of the Constitution of J&K. Ld. counsel further submitted that for depriving the petitioner of his service benefits, the respondents are duty bound to follow the mandate of the rules called Jammu & Kashmir Civil Services Classification and Control Appeal Rules, 1956, (for short Rules of 1956). The ld counsel further submitted that without following the procedure as established by law the petitioner could not be deprived of right to discharge his duties and further he could not be denied the salary attached to the post. The ld counsel submitted that as the action initiated by the respondents does not derive any support from any rule, the same requires to be declared illegal. 8. Ld. counsel for the petitioner in support of his contention referred to and relied upon case titled Subodh Kumar Prasad v. State of Bihar and ors reported in JT 2001 (5) SC 235 and submitted that the action initiated against the petitioner on the basis of law laid down by Honble Supreme Court is illegal. 9. Mr. Shah Aamir, GA appeared in this case on 18th Nov. 2009 when this case was taken up and submitted that it is Mr. A.M. Magary, Ld. AAG who has to appear in this case. The ld counsel submitted that Mr. Magary is busy arguing a case before the court of co-ordinate jurisdiction. At his request, the matter was kept on Board and was ordered to be taken up today. Mr. Shah Aamir submitted that the ld. AAG, is still busy in arguing the case before the court of co-ordinate jurisdiction. Mr. Shah Aamir thus could not assist the court as he is not counsel in the case and sought adjournment of the case for the above stated reasons. 10. The objections/reply affidavit filed by respondents take care of the stand taken by them. Perusal of the objections/reply affidavit reveal that before coming to the conclusion that the order of appointment of the petitioner is fake/forged order no enquiry as provided by rules was conducted. Mr. Shah Aamir ld. 10. The objections/reply affidavit filed by respondents take care of the stand taken by them. Perusal of the objections/reply affidavit reveal that before coming to the conclusion that the order of appointment of the petitioner is fake/forged order no enquiry as provided by rules was conducted. Mr. Shah Aamir ld. counsel at this stage, however, submitted that immediately after it surfaced that the order of appointment of the petitioner is forged document matter was referred to Police Department for registration of the case and the case stands already registered. Mr. shah Aamir on the basis of the objections/reply affidavit filed by respondents further submitted that when the respondents came to the conclusion that the appointment order of the petitioner is forged document it was directed that his pay shall be stopped. 11. Perusal of the objections filed by the respondents does not show that before coming to the conclusion that the appointment order of the petitioner is forged document, any enquiry was conducted or even a show cause notice was issued to the petitioner. 12. True it is, that forging of a document is very heinous offence and highly abominable act which deserves to be condemned without any reservation. It is also settled legal position that a forged/fake document does not cloth a person with any right in law. If it is found on a proper enquiry that a person has gained entry into government service on a fake/forged document then such person would never become the member of the service and none of the protections enshrined under Article 311 of the Constitution of India read with 126 of Constitution of J&K can be said to be available to such person. Such a person cannot claim any protection if it is found that he has gained entry into government service by fake/forged appointment order. 13. The question which begets answer is as to how it can be ascertained that a person has gained entry into service on fake and forged appointment order. The rules of procedure, reasonableness and fairness would demand that in arriving at such conclusion an enquiry is to be conducted and in such enquiry a person who is charged with such allegations is to be associated and is to be given right to defend himself. The rules of procedure, reasonableness and fairness would demand that in arriving at such conclusion an enquiry is to be conducted and in such enquiry a person who is charged with such allegations is to be associated and is to be given right to defend himself. This is the basic principle of law and is in-consonance with the Doctrine of Principle of Natural Justice, which provides that no person shall be condemned un heard. 14. Looking back at the facts of this case on the one hand, the claim of the petitioner is that he has been appointed on the basis of the valid and genuine appointment order issued by the competent authority and on the other hand the claim of the respondents is that the appointment order is fake. In settling the issue an enquiry is must, and without conducting an enquiry and without putting the petitioner on notice, so as to enable him to defend his position, no authority can declare order of the appointment of petitioner to be fake. 15. Admittedly in this case neither any enquiry has been conducted nor even show cause notice has been issued before arriving at such conclusion that the petitioner has entered into service on the basis of fake/forged appointment order. The action of the respondents in coming to the said conclusion thus is unfair and unreasonable and cannot stand in the eye of law. In a properly constituted enquiry if the respondents come to the conclusion that petitioner has entered into service on fake/forged appointment order then the petitioner would be denuded of the benefits and rights accruing from the said order. Such a conclusion cannot be arrived at unless an enquiry is conducted in accordance with law. 16. For the above stated reasons, this writ petition is disposed of and by issuance of writ of certiorari, endorsement No. (3) of communication bearing No. PCCF/NG/Estt/Egd/1396-98 dated 30th Sept. 2002 directing Divisional Forest Officer Bandipora Division Chittarnar to stop pay of the petitioner is quashed. Further Forest Order No. 46 of 2002-03 dated 29th Oct. 2002 to the extend it orders for stopping of salary of petitioner is quashed. The respondents are at liberty to initiate action in accordance with the law and rules against the petitioner and pass appropriate orders after conclusion of enquiry. The petitioner will be entitled to salary for the work done period in accordance with rules. 2002 to the extend it orders for stopping of salary of petitioner is quashed. The respondents are at liberty to initiate action in accordance with the law and rules against the petitioner and pass appropriate orders after conclusion of enquiry. The petitioner will be entitled to salary for the work done period in accordance with rules. Disposed of along with connected CMPs.