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J&K High Court · body

2010 DIGILAW 86 (JK)

Zaina Banoo v. State Of J. &K.

2010-02-25

MUZAFFAR HUSSAIN ATTAR

body2010
1. Petitioner claims to be appointed as Craft Teacher on consolidated pay against clear vacancy on 5.07.1995. Petitioner is aggrieved of the order dated 3.02.1998 which provided for stopping of her salary. 2. On notice, respondents have filed reply affidavit. In reply affidavit, it is stated that the post against which the petitioner claims to have been appointed was non-existent post. It is further pleaded that appointment order of the petitioner is fake and it has been established on the `basis of preliminary enquiry. It. is also pleaded that as per SRO No. 240, the post of Craft Teacher is required to be filled up by direct recruitment. 3. Heard learned counsel for parties. Considered the matter. 4. Learned counsel for petitioner submitted that petitioner is aggrieved of the order dated 03.02.1998 vide which the salary of the petitioner has been stopped. 5. In order to establish as to whether appointment order of the petitioner is fake or genuine and whether the appointment on consolidated basis was made against non-existent post, a duty was cast on the respondents to put the petitioner on notice and thereafter take a decision. 6. If a person enters into service on a fake order, then such person would not be entitled, in law, to any service benefit including salary. Directing authorities to pay salary to a person, even if such person has rendered services, who has entered into service on strength of fake order, cannot be countenanced in law. 7. Learned counsel for the petitioner submitted that a person cannot be deprived of salary even if it is found that he has entered into service on the strength of fake order, unless it is shown that fake order is issued with active connivance of the beneficiary of the said order. A fake order is a product of illegal action of the authority and beneficiary thereof who is conscious of such an order in law will be presumed to have connived in issuance of such an order. A person who is appointed on the post on the basis of genuine lawful order is entitled to get all the service benefits. A person who, as already stated, has entered into service through fraudulent means will not be entitled to any service benefits as that will tantamount to placing premium on the fraud committed by a person. 8. A person who is appointed on the post on the basis of genuine lawful order is entitled to get all the service benefits. A person who, as already stated, has entered into service through fraudulent means will not be entitled to any service benefits as that will tantamount to placing premium on the fraud committed by a person. 8. This petition is accordingly, disposed of with the direction to respondents to issue notice to petitioner and then pass appropriate orders. It is further provided that in case it is found that engagement/appointment order is fake and not genuine then petitioner even though she might have rendered service for some period of time in pursuance of said order, will not be entitled to any salary. Disposed of along with all connected CMP(s).