JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard Shri Anil Tiwari, learned counsel for the petitioner, Shri Ravi Prakash Srivastava, learned Standing Counsel for the State. Back door entry in Government service stands in clear violation of Articles 14 and 16 of the Constitution of India and it is well-settled that any appointment made in violation of Articles 14 and 16 read with relevant Service Rules is void. Legitimacy cannot be conferred on the appointments which are made in derogation of rule of law. 2. Appointment under the Dying-in-Harness Rules is an exception to the normal mode of appointment made as per procedure prescribed in consonance with Articles 14 and 16 of the Constitution of India. Although right to appointment under Dying-in-Harness Rules is not an absolute right yet each case has to be processed and considered within the narrow ambit of prevalent rules so as to tide over the financial conditions of a family under indigent circumstances. The law on this subject for the purposes of providing employment is now well-settled. 3. The present case is a unique instance of breach of law in the matter of recruitment to public services. The facts of the case are peculiar. According to the learned counsel for the petitioner, the petitioner was appointed in the year 1995 through the process of direct recruitment and he was posted at Agra in the year 1995 on the post of police constable (male). The petitioner proceeds to state that he had worked sincerely and devotedly on the post of Constable (M) and has been posted at number of places from the year 1995 upto the date of passing of the impugned order, whereby he has been dismissed from service. 4. The occasion to dismiss the petitioner from service arose, when this Court as back as on 21.4.2006 passed an order in Civil Misc. Writ Petition No. 11505 of 2006, which was in the sequal of orders passed earlier on 24.2.2006 and 10.3.2006. For the purposes of present controversy, the order passed by this Court on 21.4.2006 is relevant and is reproduced below. “Shri Ravi Janjan Standing Counsel is present on behalf of the Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad. Supplementary Affidavit filed on behalf of respondents may be taken on record. For the purposes of present controversy, the order passed by this Court on 21.4.2006 is relevant and is reproduced below. “Shri Ravi Janjan Standing Counsel is present on behalf of the Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad. Supplementary Affidavit filed on behalf of respondents may be taken on record. On Instructions, it is stated on behalf of respondent No. 3 that in the western district of the State of U.P. Fraudulent compassionate appointments have been obtained in the police department by following four categories of person: a. Father/Mother of the employee appointed as dependent, who were never in the employment of the Police Department of the State of U.P. b. More than one dependant has been appointed on compassionate basis, where a police officer had expired during harness. c. Father/Mother of the dependant are still alive yet compassionate appointments have been offered. d. Forged documentary certificates have been produced for the purposes of obtaining appointment on the respective posts. It has further been stated that 22 such cases have already been detected and the number of such fraudulent appointments may run in hundreds. Enquiry into individual case may take years. In the opinion of the Court fraudulent appointments cannot be permitted to continue even for a single day and therefore, it would be in the interest of justice to issue following directions at this stage of the proceedings. 1. Senior Superintendent of Police/Superintendent of Police/Commandant of PAC and other Drawing and officers of the various police branches shall require all compassionate appointees, by an order in writing to furnish the following details: a. Name of the father/mother of the employee said to have expired during harness including the designation and the last post held by them in the police department with such identification numbers as may be necessary. b. The date of death of the employee of the police department including the statement as to whether he has expired during harness or not alongwith documentary evidence in respect thereto. c. Copies of the certificates attested by the employee himself with regards to his qualification as well as other entitlements. d. Statement to the effect that no other dependant person has been offered appointment on compassionate ground due to the death of the police officer dying during harness except the candidate. c. Copies of the certificates attested by the employee himself with regards to his qualification as well as other entitlements. d. Statement to the effect that no other dependant person has been offered appointment on compassionate ground due to the death of the police officer dying during harness except the candidate. After such information is received in form of an affidavit to be filed by the employee appointed on compassionate grounds the same shall be verified by the officer concerned. The original affidavit alongwith his report shall be transmitted by the Senior Superintendent of Police/Commandant of P.A.C and other Drawing and Disbursing Officer concerned to the Police Headquarter through a special messenger. (It is made clear that the same shall not be sent by post). The drawing and disbursing officer namely Senior Superintendent of Police/Superintendent of Police/Commandant of P.A.C. Unit shall release the salary of an employee appointed on compassionate ground only after the aforesaid information is furnished and after the drawing and disbursing officer is satisfied that no fraud as noticed hereinabove by this Court has been played and that the employee is entitled for compassionate appointment under the rules. In case where a decision is taken to withhold the salary, Senior Superintendent of Police/Superintendent of Police/Commandant of P.A.C Unit shall pass a reasoned order. Necessary compliance of the order may be submitted before this Court on or before 18.5.2006. Copy of this order be issued by Monday to the Standing Counsel for necessary compliance.” 5. In compliance of the order passed by this Court in the aforesaid writ petition, the appointments made under Dying-in-Harness Rules became a subject-matter of probe and enquiry. In paragraph Nos. 11 and 12 of the writ petition, the petitioner states that he was also called upon to make statement and substantiate about the validity of his appointment made in the Police Department. In paragraph No. 12 of the writ petition the petitioner points out that as per his statement made to the authorities, he was directly appointed in the year 1995 and he joined the duty at Agra. 6. In paragraph No. 12 of the writ petition the petitioner points out that as per his statement made to the authorities, he was directly appointed in the year 1995 and he joined the duty at Agra. 6. Learned Standing Counsel invited attention of this Court to paragraph 6 of the counter affidavit, wherein petitioner’s direct appointment has been clearly denied and it is further stated that the petitioner was appointed under Dying-in-Harness Rules and on verification, it has been found that none of the petitioner’s parents were ever the employees of U.P. Police Department and to this extent preliminary enquiry was conducted and this fact has been verified to be false. 7. From the rival contentions put forth in the writ proceedings it is seen that the case of the petitioner proceeds on the basis of direct selection, whereas the State Government points out that the petitioner was appointed under Dying-in-Harness Rules. 8. Having regard to the conflict of pleading set out by the parties, this Court passed an order on 16.9.2014 which reads as under : “Put up day after tomorrow. Learned counsel for the petitioner shall produce a copy of the order of petitioner’s appointment.” The matter came-up for hearing on 18.9.2014 and further order was passed as follows; “The rejoinder affidavit filed by learned counsel for the petitioner on 2nd September, 2014 is not on record. The same shall be traced out and placed on record. Put up tomorrow. Learned Standing Counsel shall also seek necessary instructions from the Deputy Inspector General of police, Police Headquarter, Allahabad-respondent No. 2.” From the order of 16.9.2014, it can be gathered that the petitioner was provided opportunity of placing on record a copy of his appointment order so as to substantiate the plea of direct appointment. On having failed to do so, further order was passed on 18.9.2014 directing the Standing Counsel to seek instructions. 9. On having failed to do so, further order was passed on 18.9.2014 directing the Standing Counsel to seek instructions. 9. In compliance of the order dated 18.9.2014 an order dated 8.3.1995 issued vide letter No. Bha-331/95 was produced before this Court which has been taken on record and the same is reproduced below : ^^ la[;k% Hk&331@95 fnukad% ekpZ 8] 1995 ofj"B iqfyl v/kh{kd &&&&&&A fo"k;%& lsokjr e`rd iqfyl deZpkfj;ksa ds vkfJrksa dks lsok;kstu iznku djus lEcU/kh fu;ekoyh ds vUrxZr Jh jkds'k dqekj iq= Lo0 dkfu0@Jh ';ke yky dks dkUl in ij lsok;kstu iznku djus ds lECkU/k esa A &&& lanHkZ%& mRrj izns'k iqfyl eq[;ky; bykgkckn] ds vkns'k la[;k% nl&920&94 ¼vkxjk½ fnukWd 28&2&95 &&& mRrj izns'k iqfyl eq[;ky;] bykgkckn us vius mijksDr lanHkZ esa mijksDr fo"k;d] e`rd vkfJr dks dkfuLVsfcy in ij HkrhZ djds mlds fu;qfDr tuin gjnksbZ izkjafHkd izf'k{k.k esa lfEefyr gksus gsrq jokuk fd;s tkus ds funsZ'k fn;s gSaA funsZ'kkuqlkj e`rd vkfJr Jh jkds'k dqekj dks vLFkkbZ dkfuLVsfcy in ij fnukWd 8&3&95 dks HkrhZ djds mlds fu;qfDRk tuin gjnksbZ izkjafHkd izf'k{k.k x`g.k djus gsrq Hkstk tk jgk gSA blds HkrhZ lEcU/kh dkxtkr ftlesa HkrhZ vkdkj i=] pfj= ,oa iwoZo‘Rr lR;kiu izi= ,oa f'k{kk lEcU/kh izek.k i= ewy:i esa voyksdukFkZ ,oa vfxze vko';d dk;Zokgh gsrq Hksts tk jgs gSaA d`i;k izkfIr Lohdkj djsaA layXud%& 1&HkrhZvkdkj i= ewy :i esa 2&nks pfj= ,oa iwoZo`Rr lR;kiu ¼fjtoku vgen½ izi= ewy :i esaA ofj"B iqfyl v/kh{kd] 3&f'k{kk lEcU/kh izek.k&i=&4 vkxjkA^^ From the perusal of order dated 8.3.1995, it is clear that the petitioner was appointed under the Dying-in-Harness Rules and he was appointed at Agra. Now having regard to the rival contentions, the initial appointment of the petitioner at Agra is admitted to both the parties. The question remains as to the manner, in which appointment of the petitioner came to be made at Agra. Whether the appointment was made under Dying-in-Harness Rules or it was made by direct recruitment is to be looked into from the rival stand of the parties in the writ petition and counter affidavit. 10. The writ petition was filed by the petitioner challenging the order of dismissal from service. The onus lies on the petitioner to establish the manner, in which, he was appointed in Government service. The plea of appointment by direct recruitment cannot be accepted merely on the basis of statement of fact made on oath. 10. The writ petition was filed by the petitioner challenging the order of dismissal from service. The onus lies on the petitioner to establish the manner, in which, he was appointed in Government service. The plea of appointment by direct recruitment cannot be accepted merely on the basis of statement of fact made on oath. The plea has to be established on the strength of some documentary evidence and there is no evidence lead by the petitioner in this regard except his own statement which he made before the authorities during enquiry. The petitioner has miserably failed either to place any advertisement or any documentary evidence in support of his direct selection or appointment. 11. Learned Standing Counsel in contradiction to the plea raised in the writ petition has produced the order dated 8.3.1995 reproduced above, which finds mention in the Service Book of the petitioner. 12. Having regard to the rival contentions placed before this Court, I am of the considered opinion that the stand adopted by the petitioner as regards his direct selection is unworthy of being accepted and the same is bound to be rejected. Right of opportunity being a part of principles of natural justice is well designed in the provisions of Appeal and Discipline Rules, 1991 applicable to the police personnel. But in the case of fraud, rule of opportunity is an empty formality. The petitioner despite being afforded ample opportunity has failed to place any material on record, which may satisfy this Court for relegating the matter to the authorities. Once the petitioner has failed to place any material whatsoever before this Court despite opportunity being granted to him during pendency of this case, the Court is unable to appreciate as to how an opportunity may be useful to the petitioner, who has miserably failed to explain his position. 13. Now coming to the validity of the impugned order dated 18.10.2008 contained in Annexure No. 1 to the writ petition, the question that crops up concerns to the opportunity available to the petitioner before passing of the impugned order. 13. Now coming to the validity of the impugned order dated 18.10.2008 contained in Annexure No. 1 to the writ petition, the question that crops up concerns to the opportunity available to the petitioner before passing of the impugned order. The impugned order for ready reference is reproduced below : ^^ vkns'k m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh ¼n.M ,oa vihy½ fu;ekoyh&1991 ds fu;e&8 ds mi fu;e&¼[k½ ds vUrxZr fn;s x;s izfrcU/k ¼[k½ ds vUrxZr iznRr vf/kdkjksa dk iz;ksx djrs gq, eSa jktcgknqj flag] iqfyl v/kh{kd] Qrsgx<+ vkj{kh 186 uk0iq0 jkds'k dqekj dk fu;qDr izkf/kdkjh gksus ds ukrs bl fu;ekoyh ds fu;e&8¼2½¼[k½ ds vUrxZr n.M nsus ds fy;s l{ke gSaA fjV ;kfpdk la[;k&11505@06 vouh'k dqekj cuke m0iz0 jkT; o vU; ds lEcU/k esa e`rd vkfJr fu;ekoyh&1974 ds vUrxZr lsok;ksftr deZpkfj;ksa ls 'kiFk i= ekWxk x;kA vkj{kh 186 uk0iq0 jkds'k dqekj }kjk 'kiFk&i= izLrqr u djus ij izkjfEHkd tkWp Jh vkj0ih0 v:.k] {ks=kf/kdkjh dk;exat ls lEikfnr djk;h x;hA iz'uxr izdj.k dh izkjfEHkd tkWp Jh vkj0ih0 v:.k] {ks=kf/kdkjh dk;exat }kjk lEikfnr dh x;hA tkWp ds nkSjku lk{kh Jherh Hkwnsoh iRuh ';ke yky yks/kh fuoklh xzke uxyk lStu iksLV eksgkjh Fkkuk dklxat tuin dk'khjke uxj ¼dklxat½ 2&efgiky flag iq= Lo0 Jh yksdiky flag fu0 xzke uxyk lStu Fkkuk dklxat tuin dk'khjke uxj ¼dklxat½ ,oa xzkeokfl;ksa ls rFkk egs'k pUnz iq= tgkjh] lnL; ch0Mh0lh0 xzke lStu Fkkuk dklxat tuin dk'khjke uxj vkfn ds c;ku fy;s x;sA leLr lkf{k;ksa }kjk c;ku fd;k x;k fd vkj{kh 186 uk0iq0 jkds'k dqekj ds firk Jh ';ke yky yks/kh fuoklh xzke uxyk lStu iksLV eksgkjh Fkkuk dklxat tuin dk'khjke uxj ¼dklxat½ orZeku esa thfor gSa rFkk dHkh Hkh iqfyl foHkkx esa fu;qDr ugh jgs gSa rFkk xkWo esa gh jgrs gSa vkSj [ksrh ckM+h dk dk;Z djrs gSa] bl izdkj vkj{kh 186 uk0iq0 jkds'k dqekj }kjk iqfyl foHkkx esa e`rd vkfJr fu;ekoyh&1974 dk vuqfpr ykHk mBkdj o vius firk dks iqfyl foHkkx esa lsokjr ds nkSjku e`r n'kkZdj vkfJr fu;ekoyh&ds vUrxZr lsok;kstu dk ykHk mBk;k x;k gSaA ftlds fy;s vkj{kh 186 uk0iq0 jkds'k dqekj iw.kZ :i ls nks"kh gSaA mijksDr fn;s x;s dkj.kksa ds vk/kkj ij esjk ;g lek/kku gks x;k gS fd vkj{kh 186 uk0iq0 jkds'k dqekj }kjk e`rd vkfJr fu;ekoyh&1974 esa fn;s x;s izko/kkuksa dk vuqfpr ykHk mBkdj HkrhZ gks tkuk vlaoS/kkfud gS] rFkk ,sls dehZ dks iqfyl foHkkx esa cuk;s j[kuk mfpr ugha gSaA vr% eSa bl fu;ekoyh ds fu;e&8 ¼2½¼[k½ lifBr Hkkjr ds lafo/kku ds vuqPNsn 311¼2½¼ch½ ds vUrxZr l'kDr izkf/kdkjh gksrs gq, vkj{kh 186 uk0iq0 jkds'k dqekj dks lsok ls inP;qr djus dk vkns'k nsrk gwWA ;g vkns'k rRdky izHkko ls izHkkoh gksxkA i= la[;k&ih,Q&3@2008 fnukWd &vDVwcj 18] 2008 ¼jktcgknqj flag½ iqfyl v/kh{kd] Qrsgx<+ ^^ 14. There is no dispute as to the competence of the authority, who has passed the impugned order. The dispute is that the petitioner was entitled to be subjected to full fledged enquiry under U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991. From the perusal of the impugned order it is clear that an enquiry was conducted as regards the petitioner being dependent of Shri Shyam Lal Lodhi, who admittedly is petitioner’s father. Shri Shyam Lal Lodhi on being found alive has lawfully enabled the competent authority to take action, resultantly the petitioner was dismissed from service. The fact that Shri Shyam Lal Lodhi is alive has not been disputed by the petitioner in any manner. Therefore, the petitioner does not have any defence so far as the grievance of opportunity is concerned. This Court has already found that the petitioner has miserably failed to place any evidence on record, which may establish his appointment to have been made directly on the basis of any selection. Therefore, the whole claim of the petitioner assailing the impugned order merely on the ground of lack of opportunity is a far fetched proposition of law. Rule of opportunity though being a part of Art.14 of the Constitution of India rests on the availability of a substantive plea or material, the ignorance of which would vitiate an action taken by the authorities against a person. 15. In the instant case there is absolutely no substantive material available to the petitioner and onus on the part of the petitioner to disprove the validity of the impugned order has not been discharged on the basis of any material whatsoever. Once the commission of fraud by the petitioner is clear on the face of record, the opportunity claimed by him remains a question of procedural formality, which is liable to be granted except in the cases of fraud. Once an action indulged into by a person is fraudulent, it defeats equity and law both. Reliance placed by the petitioner on the decisions, which have been rendered by this Court on the strength of Rule 8 (2) are not applicable in the given facts and circumstances of the present case rather the justification as required under Section 8 (2) (b) is germane to the satisfaction recorded in the impugned order and the same does not suffer from any legal infirmity. 16. 16. Fraud vitiates even the most solemn proceedings in any civilized system. Where fraud has been played in securing appointment by a person, who is not eligible and was not selected by any process of appointment and is established, after giving adequate opportunity by this Court as well, the appointing authority is not required to observe the procedure of full fledged enquiry provided under the Discipline and Appeal Rules. The protection of Discipline and Appeal Rules is, therefore, available to those members of service, who are validly appointed. 17. When a person was not appointed by following due process of law, even if a person has attained some degree of permanency in service by virtue of being continued and promoted, the minimum satisfaction recorded by the authorities before passing the impugned order cannot be interfered with under Article 226 of the Constitution of India particularly when the petitioner despite being given opportunity to satisfy the Court has failed to bring on record any evidence to prove his appointment having been made in the manner as was pointed out in the writ petition. The claim of parity on the basis of judgments rendered in Writ Petition No. 46352 of 2004 and the Division Bench judgment passed by this Court in Smt. Parmi Maurya v. State of U.P. and others, 2014 (2) ADJ 633 (DB), as relied upon is misconceived and cannot be extended in the facts and circumstances of the present case. This Court also puts on record that the erring officers in a kind of matters like this deserve to be proceeded against for appropriate action. The writ petition lacks merit and the same is hereby dismissed with no order as to costs. —————