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2013 DIGILAW 6 (JK)

Mubeen Ara v. State of J&K & Ors.

2013-01-02

MANSOOR AHMAD MIR

body2013
By the medium of this writ petition, the petitioner is seeking to quash Order No.DSEJ/MW/703-14 dated 21.05.2012 issued by respondent no.3, whereby her selection has been treated as null and void-ab-initio, and Order No.CEO/K/MW/12/2120-24 dated 13.06.2012 issued by respondent no.5, whereunder the services of petitioner has been terminated with effect from the date of her initial engagement as Rehbar-e-Taleem in Primary School Sarpan; with a direction to the respondents to reinstate her as a General Line Teacher, on the grounds taken in the writ petition. 2. Precisely, the case of petitioner is that she applied for the post of Rehbar-e-Taleem Teacher in Primary School Sarpan on the basis of her having acquired the qualification of 10+2 with 268 marks out of 600. The Village Level Committee also recommended her name and she came to be appointed as such in the said school vide order dated 15.01.2004. It is further averred that after completion of five years service, she came to be regularized/confirmed as a General Line Teacher with effect from 16.01.2009 vide order dated 10.10.2009 issued by the Zonal Education Officer, Drabshalla. It is contended that respondent nos.3 & 5, thereafter, without hearing the petitioner, arbitrarily terminated her services vide the impugned orders. Aggrieved by the same, the petitioner has challenged the said orders by medium of present writ petition. 3. Respondents 1 to 7 have filed objections, resisting the writ petition. 4. It is stated that the petitioner was engaged as a Rehbar-e-Taleem in Primary School Sarpan, Zone Drabshalla, District Kishtwar vide order dated 15.01.2004 while taking into consideration her qualification as well as on the basis of marks obtained by her in Higher Secondary School Examination. It is averred that as per the Marks Card, which the petitioner had annexed with the application form, she had obtained 341 marks out of 600. It is contended that on the basis of a complaint that certain candidates have been appointed against the posts of Rehbar-e-Taleem Teachers on fake qualification certificates, Chief Education Officer vide communication dated 20.06.2007 addressed to Chief Education Officer, Doda, requested for verification of qualification certificates of such candidates including the petitioner herein. It is contended that on the basis of a complaint that certain candidates have been appointed against the posts of Rehbar-e-Taleem Teachers on fake qualification certificates, Chief Education Officer vide communication dated 20.06.2007 addressed to Chief Education Officer, Doda, requested for verification of qualification certificates of such candidates including the petitioner herein. It is contended that on the basis of such inquiry, the Joint Secretary (Certificates), J&K State Board of School Education, Jammu, vide communication dated 07.09.2007 addressed to Zonal Education Officer, Drabshalla, Kishtwar, disclosed that the actual marks obtained by the petitioner in the Higher Secondary School Education during the sessions October-November 1995 were 268 out of 600 and not 341 as per the copy of Marks Card, which the petitioner had annexed while applying for the post in question, which on verification was found to be fake and forged one. Further, it is contended that regularization of services of the petitioner was made on the basis of the qualification certificates produced by her. Learned counsel for the respondents submitted that if the ingenuineness of said certificate would have been brought to the notice of official respondents before making selection or regularization, the petitioner would have neither been appointed nor regularized on the post. The said fraud was unearthed only after the order of regularization was made in favour of petitioner. The petitioner managed her selection on the basis of a fake marks card, which gave an edge to the petitioner over others aspiring for the post in question. Therefore, it is contended that she was rightly shown the door. It is submitted that the appointment of petitioner is void-ab-initio and bad in law, so she cannot claim any right of being heard. 5. Learned counsel for writ petitioner argued that without conducting any inquiry or affording her an opportunity of being heard, termination order of petitioner came to be issued which is in violation of principles of natural justice, as the petitioner came to be condemned unheard. 6. On the other hand, learned counsel for official respondents argued that the writ petitioner had managed fake and forged marks card of Higher Secondary School Education and got herself appointed by fraudulent means. Not only did she deceive the official respondents, but also the public in general. Thus, she was not to be heard at all before making the order. 7. Not only did she deceive the official respondents, but also the public in general. Thus, she was not to be heard at all before making the order. 7. In paragraph 5 of the writ petition, petitioner has specifically averred that she had secured 307 marks out of 800 in Matric and 268 marks out of 600 in 12th Class. Thus, there is no dispute about the fact that the petitioner had obtained 268 marks out of 600 in 10+2 and not 341 marks. In the petition, the petitioner has taken a ground that the copy of her marks card of 10+2 was tampered by somebody. If it was so, then why she did not make a representation before accepting the appointment that she was actually having 268 marks and not 341. 8. Now the question arising for consideration is: whether a person, who makes an entry into the public service by illegal means or on the basis of fake documents, is entitled to be heard before passing any adverse order? In the given circumstances, the reply has to be in negative. 9. The Apex Court in the case R. Vishwanatha Pillai vs State of Kerala, AIR 2004 SC 1469 , has held that when an appointment is made on fake and frivolous documents, the question of violation of principles of natural justice does not arise at all, and the wrong doer/delinquent can be shown the exit door without conducting inquiry. It would be appropriate to reproduce paragraphs 15 & 19 of the judgment (supra) hereunder. “15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. 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. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. 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. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. 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. 19. It was then contended by Shri Ranjit Kumar, learned senior counsel for the appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionery benefits of the appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view 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.” 10. This Court also in Mubarak Ahmad Bhat vs State & ors., 2011 (2) JKJ 586 (HC), and SWP No.1860/2011 (Srinagar Bench) decided on 28.09.2012, in case titled as Muzaffar Ahmad Reshi vs Deputy Commissioner & others, has held that principles of natural justice demand that right of hearing is to be given to such a person who has acquired some right genuinely and not otherwise. It would be appropriate to reproduce paragraphs 4 & 5 of the judgment (supra) hereunder. “4. The respondents after noticing the said fraud have drawn action, lodged FIR against the petitioner and rightly issued the impugned order. Any person making entry in the Govt. It would be appropriate to reproduce paragraphs 4 & 5 of the judgment (supra) hereunder. “4. The respondents after noticing the said fraud have drawn action, lodged FIR against the petitioner and rightly issued the impugned order. Any person making entry in the Govt. department de hors of rules; by fraud has no claim to seek consideration. My this view is fortified by a judgment passed by this court in case titled Mohammad Maqbool Wagay v. State of J&K & others, 2007 (3) JKJ HC-167: SLJ 2007, 351. 5. The principles of natural justice demand that even right of hearing is to be given to such a person who legally has acquired some right or a person who genuinely came to be appointed or engaged and not to the person who adopts illegal means to accomplish his desire of making entry in the public service. A Government employee is an essential component of the machinery that helps to keep the public order in tact and in lieu thereof gets paid the salary as per his ability. The right of wages, is a precious right, and is available only to such persons, who make their entry into Govt. service by legal means. At a time when unemployment is a global challenge in general and in our State in particular; educated but unemployed youth are dying to get a chance to serve the public machinery; when courts are burdened with heavy litigation on this count; when even the street vending has fallen in the hands of educated persons; the people like petitioner cannot be allowed to drain out such a valuable and highly sought after treasure.” 11. On her own showing, the petitioner was having 268 marks out of 600 in 10+2 and not 341. Therefore, the question of giving hearing to her does not arise at all. Consequently, there has been no breach of any law, muchless the principles of natural justice. 12. Viewed thus, the writ petition merits to be dismissed. Dismissed as such along with all connected CMAs. Interim direction, if any, shall stand vacated.