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2013 DIGILAW 737 (ALL)

Sallu Baj v. State of U. P. and Others

2013-03-06

KRISHNA MURARI

body2013
Krishna Murari, J.;— Heard Shri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. These are two connected writ petitions filed by the same petitioner and, hence, are being decided by this common judgment. 3. By means of Writ Petition No. 27252 of 2010, challenge has been made to the notice dated 21.04.2010 issued to the petitioner to show cause why the appointment obtained by him fraudulently and illegally be not cancelled. Writ Petition No. 56069 of 2011 has been filed challenging the order dated 01.06.2010 passed by the Commandant, 15th Battalion, PAC, Agra cancelling the appointment as well as orders dated 04.05.2011 and 30.08.2011 dismissing the appeal and revision. 4. Facts in brief giving rise to the dispute are as under. 5. Petitioner was appointed as Constable in Provincial Armed Constabulary (for short 'PAC') on 01.04.1992 on a permanent post after having cleared the requisite physical, written as well as medical examination. Petitioner, along with the application form, had submitted a certificate certifying him to be a member of Scheduled Tribe category and, accordingly, he was accorded benefit of reservation policy. A show cause notice dated 21.04.2010 was issued to the petitioner requiring him to show cause as to why his appointment be not cancelled as the same was obtained by submitting a forged certificate certifying him to be a member of Scheduled Tribe, whereas he, being a 'nat' by caste, was a member of Scheduled Caste. Petitioner submitted his reply dated 12.05.2010 denying all the charges. It was categorically mentioned in the reply that petitioner had made an application clearly stating that he belonged the 'nat' community and the caste certificate was issued to him in the year 1991 by the Tehsildar, Firozabad after an enquiry and a report submitted by the Lekhpal/Kanoongo. It was further submitted that the certificate is a genuine document issued by the Tehsildar and there has been no concealment or fabrication done by the petitioner. After considering the reply submitted by the petitioner, respondent no. 5 vide order dated 01.06.2010 cancelled the appointment of the petitioner on the ground that he wrongly and fraudulently obtained appointment on the basis of a certificate certifying him to be a member of Scheduled Tribe, though 'nat' community was notified as a Scheduled Caste. Appeal and revision filed by the petitioner was also dismissed. 6. 5 vide order dated 01.06.2010 cancelled the appointment of the petitioner on the ground that he wrongly and fraudulently obtained appointment on the basis of a certificate certifying him to be a member of Scheduled Tribe, though 'nat' community was notified as a Scheduled Caste. Appeal and revision filed by the petitioner was also dismissed. 6. It is contended by the learned counsel for the petitioner that the petitioner has been dismissed from service without following the procedure prescribed only on the basis of a show cause notice and without considering the reply submitted to the same as well as without holding a regular departmental inquiry. It has further been pointed out that dismissal from service on the allegation of fraud and forged certificate without any regular departmental inquiry, is in violation of Rules 8 and 14 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. 7. On the other hand, learned Standing Counsel submitted that since the petitioner had obtained appointment on the basis of forged and fabricated caste certificate, his appointment has righty been cancelled after a show cause notice and opportunity to defend himself. It has further been submitted that it is not a case of any misconduct during the service period, as such, no departmental inquiry was required to be undertaken and the cancellation of appointment cannot be said to be in violation of any of the provisions of service rules. 8. I have considered the argument advanced by the learned counsel for the parties and perused the record. 9. It is undisputed that the petitioner obtained the appointment on the basis of caste certificate, which certified that he is a member of the Scheduled Tribe, though 'nat' caste to which the petitioner belongs, was notified as Scheduled Caste. In the counter affidavit, it has been mentioned in paragraph 4 that he was given appointment extending the benefit of the reservation provided for Scheduled Tribe on the basis of the certificate submitted by him, but subsequently it was found that he was not a member of the Scheduled Tribe and had obtained appointment on the basis of a forged and fabricated caste certificate. A show cause notice was issued to him and after considering the reply submitted, his appointment cancelled. 10. A show cause notice was issued to him and after considering the reply submitted, his appointment cancelled. 10. The sole question which arises for consideration is whether if an order of appointment is procured by playing fraud then whether such an appointee can be held to be a holder of a civil post in order to seek protection under Article 311 of the Constitution and can be subject to regular departmental inquiry under the provisions of the Rules governing his service conditions or the appointment being void ab initio is liable to be cancelled without following the procedure prescribed for dispensing with the services. The complete answer is contained in the decision of the Hon'ble Apex Court in the case of R. Vishwanatha Pillai Vs. State of Kerala & Ors., (2004) 2 SCC 105 . In paragraph 15 of the said report, it has been observed as under. "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." 11. In the present case also, the appointment was obtained by the petitioner on the basis of a caste certificate certifying him to be a member of a Scheduled Tribe to which he did not belong. Thus, the very basis of the appointment of the petitioner was gone and the appointment was void ab initio. The argument of the learned counsel for the petitioner that he had applied for the certificate disclosing his caste as 'nat' and had filed the certificate as was issued to him by the authorities and, thus, there was no question of any fraud having been committed by him, is worthy of no credence. The argument of the learned counsel for the petitioner that he had applied for the certificate disclosing his caste as 'nat' and had filed the certificate as was issued to him by the authorities and, thus, there was no question of any fraud having been committed by him, is worthy of no credence. The assertion of the petitioner in this regard is his own without any verification from the authorities, inasmuch as on account of the non-availability of the records with the authorities, the veracity of the application made by him for issuing a caste certificate could not be certified. In the absence of any material, it is hard to believe that the authorities would have issued an incorrect caste certificate to the petitioner without any misrepresentation on his part. 12. It is too much of coincidence to believe that a certificate was issued certifying him to be a member of the Scheduled Tribe wrongly and the post for the said reserved category was also available and he was appointed extending the benefit of reservation. Petitioner has nowhere disputed that 'nat' caste is not notified as Scheduled Caste, but what he alleges is that the authorities issued him a certificate of Scheduled Tribe without his involvement in any manner and the same was filed by him along with the application form. In any view of the matter, the petitioner got an appointment on a post reserved for Scheduled Tribe, though he did not belong and, thus, the very foundation of his appointment collapsed and cannot be said to be a legal and valid appointment in the eyes of law. In the case of Bank of India Vs. Avinash D. Mandivikar, 2005 (7) SCC 690 , where an employee got an appointment in 1976 on a post which was reserved for a member of Scheduled Tribe and subsequently the caste certificate was invalidated by the scrutiny committee in 1987, which led to the termination of service, the Hon'ble Apex Court has observed as under. "Respondent no. 1 employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. "Respondent no. 1 employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for reserved candidate." 13. In the present case, the petitioner though not a member of the Scheduled Tribe, usurped the post which should have been filled in by appointment of a member of said caste and, thus, he was disqualified to hold the post and appointment was void from its very inception. The order cancelling the appointment also cannot be said to be in violaiton of principles of natural justice, as suggested by the learned counsel for the petitioner, inasmuch as a show cause notice was issued and the reply submitted in response thereof has been taken into account by the authority while passing the impugned order. Thus, the requirements of the principles of natural justice were fully followed and the order cannot be said to have been passed in violation thereof. 14. For the facts and reasons discussed above, both the writ petitions are devoid of any merits and, accordingly, stand dismissed. 15. However, in the facts and circumstances, there shall be no order as to costs. _____________