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2014 DIGILAW 794 (ALL)

REEMA YADAV v. STATE OF U. P.

2014-03-06

B.AMIT STHALEKAR

body2014
JUDGMENT Hon’ble B. Amit Sthalekar, J.—The petitioner by this writ petition is seeking quashing of the order dated 4.8.2011 passed by the District Magistrate Kannauj as well as the order of the District Basic Education Officer, Kannauj also dated 4.8.2011 Annexure-16 to the writ petition with a further prayer to the respondent not to interfere with the functioning of the petitioner as Shiksha Mitra in the Primary School, Rahmatpur, District-Kannauj. 2. Briefly stated the facts of the case are that an advertisement was issued by the District Basic Education Officer inviting applications for appointment on the post of Shiksha Mitra. The petitioner at the time of the advertisement published on 16.12.2003 had done her B.A. and was pursuing her studies in M.A. She had also passed the Intermediate Examination and therefore she applied for the post of Shiksha Mitra on 24.1.2004. The Village Education Committee in its meeting held on 17.2.2004 considered the candidature of four candidates and on a finding that the petitioner had obtained the highest marks recommended her name for appointment as Shiksha Mitra. Thereafter the papers were forwarded to the District Level Committee which approved the selection and information was sent to the District Basic Education Officer vide letter dated 5.6.2004 and in pursuance thereof a direction was issued to the petitioner to complete her training at the District Training Institute, Chibbramau District-Kannauj from 7.6.2004 to 6.7.2004. On successful completion of her training the petitioner was appointed by the Assistant Basic Education Officer, Urmada and the petitioner thereafter joined the Primary School, Rahmatpur, District-Kannauj on 26.7.2004. 3. The case of the petitioner further is that thereafter a complaint was filed by one Sri Apresh Singh, Advocate alleged to be the brother-in-law of the earlier Gram Pradhan Smt. Sangeeta Devi by enclosing forged and fabricated resolution of the Village Education Committee of the year 2004. It is also stated that in the column of signature of Pradhan signature of one Ajmer Singh was made in spite of the fact that the Pradhan at the relevant point of time of passing of resolution was one Smt. Vindeshwari Devi, wife of Ajmer Singh, the signature of one Udai Bhan Singh as Secretary was also made fraudulently. It is also stated that in the column of signature of Pradhan signature of one Ajmer Singh was made in spite of the fact that the Pradhan at the relevant point of time of passing of resolution was one Smt. Vindeshwari Devi, wife of Ajmer Singh, the signature of one Udai Bhan Singh as Secretary was also made fraudulently. On the complaint of Sri Apresh Singh, the Commissioner, Kanpur Division, Kanpur held an enquiry and in the enquiry it was observed that the petitioner had fraudulently shown her marks of the High School to be 359 and marks of Intermediate to be 294 and selected on these marks whereas in fact her actual High School marks were 331 and Intermediate marks were 264. The report of the Commissioner, Kanpur Division, Kanpur is stated to be based upon an ex parte enquiry and on the basis of the said report the District Magistrate is stated to have passed the impugned order dated 4.8.2011 which is also alleged to be an ex parte order without affording any opportunity of hearing to the petitioner. The petitioner acquired knowledge of the order of the District Magistrate through the impugned communicating letter of the District Basic Education Officer also dated 4.8.2011. 4. I have heard Sri Irshad Ali, learned counsel for the petitioner, Sri K. Shahi, learned counsel for the respondent Nos. 5 and 6, Sri D.D. Chauhan, learned counsel for the respondent No. 4 and the learned Standing Counsel for the respondent Nos. 1 to 3. 5. It has been submitted by the learned counsel for the petitioner that at the time of submitting her application, the petitioner had filed her educational testimonials declaring her marks of High School to be 331 and Intermediate to be 264 marks and that she had never declared her marks to be 359 for High School or 294 for Intermediate. 6. It is further stated that she had submitted her application form on 24.1.2004 inasmuch as as per the advertisement the last date for submitting the application form was 28.12.2003 as would be evident from the advertisement dated 16.12.2003 Annexure-1 to the writ petition. Thereafter a Corrigendum was issued on 19.1.2004, copy filed at page 38 of the writ petition, wherein the last date was extended upto 30.1.2004 and therefore, her application was well within the last date of submission of the application form. Thereafter a Corrigendum was issued on 19.1.2004, copy filed at page 38 of the writ petition, wherein the last date was extended upto 30.1.2004 and therefore, her application was well within the last date of submission of the application form. The photocopy of the application form has been filed as Annexure-2 to the writ petition and it is submitted that in her application form her marks of High School has been disclosed by her to be 331 and intermediate to be 264. The photocopy of the Intermediate examination certificate has already been filed at page 41 of the writ petition and of High School Examination at page 42 of the writ petition and it is submitted that from a perusal of both, it will be noticed that the petitioner had secured 264 marks out of 500 in Intermediate and 331 marks out of 600 in High School. It is also submitted that the petitioner has therefore, not submitted any forged High School and Intermediate Certificate and that the marks disclosed by her are only what they are stated to be in the certificates filed alongwith the writ petition. 7. It is further submitted that on the basis of these educational testimonials the Village Education Committee examined the matter of the petitioner alongwith three other persons and since the percentage obtained by the petitioner was 56.8 which was highest among all the four candidates the petitioner has been recommended by the Village Education Committee. The copy of the resolution of the Village Education Committee has been filed as Annexure-3 to the writ petition. On 29.8.2011 this Court passed the following order: “The appointment of the petitioner as Shiksha Mitra has been cancelled for the reason that the petitioner in the application form submitted by her for the purpose of seeking appointment mentions that she had obtained 359 marks out of 600 marks in High School Examination and 294 marks out of 500 marks in Intermediate Examination though in fact she had obtained 331 marks in High School and 264 marks in the Intermediate Examination. Sri K.Shahi, learned counsel appearing for the District Basic Education Officer has produced before the Court the application form submitted by the petitioner in which she has mentioned that she had obtained 359 marks in High School and 294 marks in the Intermediate Examination. Sri K.Shahi, learned counsel appearing for the District Basic Education Officer has produced before the Court the application form submitted by the petitioner in which she has mentioned that she had obtained 359 marks in High School and 294 marks in the Intermediate Examination. However, Sri Ashok Khare, learned Senior Counsel appearing for the petitioner has placed before the Court Annexure 2 to the writ petition in which the petitioner has mentioned that she had obtained 331 marks in High School and 264 marks in the Intermediate Examination. Sri K.Shahi, learned counsel appearing for the District Basic Education Officer shall produce the original records relating to the appointment of the petitioner on 14th September, 2011. List this petition on 14th September, 2011.” 8. In compliance of the said direction, Sri K. Shahi, has produced the original records. A counter-affidavit has also been filed on behalf of the respondent Nos. 5 and 6. In the counter-affidavit, it has been stated that the petitioner alongwith her application had submitted the marksheet of High School and Intermediate showing herself to have secured 359 marks out of 600 in High School and 294 marks out of 500 in the Intermediate and it is on the basis of these marks that quality points were awarded to her and ultimately she was declared selected but subsequently a complaint was received that the petitioner had obtained appointment by submitting forged marksheets and therefore the petitioner inquired into the matter and on verification it was found that the marksheets submitted by the petitioner showing that she had secured 359 marks out of 600 in High School and 294 marks out of 500 in the Intermediate examination were forged and fabricated documents. 9. In the counter-affidavit it has also been stated that the resolution of the Village Education Committee filed as Annexure-4 to the writ petition are also forged and fabricated documents because in the original resolution dated 17.2.2004 which is available in the original records only three candidates had submitted their application form, namely, one Kumari Rita, Kumari Vandana and the petitioner Kumari Rima and therefore, so far as the other names which have been mentioned in the forged Village Education Committee resolution filed as Annexure-4 to the writ petition the particulars with regard to the other candidates is not available on record. On the basis of marksheets filed by the petitioner, the Village Education Committee found that the petitioner had obtained 59.3 marks, Kumari Vandana had obtained 58.8 marks and the 3rd candidate had secured 54.5 marks and the petitioner having secured the highest marks she was selected and appointed. It is also stated that when the forgery was discovered a first information report was lodged against the petitioner which was registered as Case Crime No. 212 of 2011, under Sections 420, 467, 468 and 471 IPC. 10. In the counter-affidavit it is also stated that in the original resolution of the Village Education Committee dated 17.2.2004, the name of Vindeshwari Devi has been shown as Pradhan and therefore, the allegation of the petitioner that instead of Vindeshwari Devi her husband Ajmer Singh has signed the resolution is absolutely incorrect. 11. I have considered the rival submissions made by the learned counsel for the parties and have also perused the original records which have been produced by Sri K. Shahi. From the original records, it is noticed that the Village Education Committee resolution which is at page 21 bears the signature of Vindeshwari Devi as the President and UdaiI Bhan Singh as Secretary and there is no name of Ajmer Singh husband of Vindeshwari Devi in the said resolution. Moreover in the said resolution only three candidates have been considered and not 4 candidates as alleged by the petitioner. Besides the application form of the petitioner which is on record and is dated 13.2.2004 clearly shows that her marks of High School to be 359 out of 600 and of Intermediate 294 out of 500. The photocopies of her High School certificate and Intermediate Certificate bearing the same roll number as shown in the documents filed by the petitioner alongwith the writ petition are dully attested by the Principal of the Janta Inter College, Farukkhabad and show the marks obtained by the petitioner in High School to be 359 and in Intermediate to be 294. 12. 12. The contention of Sri Irshad Ali, learned counsel for the petitioner also is that when the last date for submission of application form was 30.1.2004 the application form dated 13.2.2004 stated to have been submitted by the petitioner could not have been treated to be genuine document and if it was a genuine document the petitioners’ candidature would have been rejected on this very ground that her application form has been received beyond the cut off date of 30.1.2004. 13. From the papers in the original documents, it is noticed that another candidate Kumari Vandana has also submitted her application form, which is dated 14.2.2004 and the 3rd candidate Kumari Rita Yadav’s original application form is dated 15.2.2004 thus all the application forms were submitted beyond 30.1.2004 and if the submission of the learned counsel for the petitioner is accepted then all the three application forms including that of the petitioner ought to have been rejected. Besides alleging collusion between Apresh Singh and the then Gram Pradhan or Headmaster, the motive for such collusion has not been stated. Assuming that such collusion was to benefit a particular candidate, there is no averment to that effect nor has the alleged beneficiary of such collusive act been arrayed as a party to the writ petition. Merely crying wolf will not lead to an inference of presence of the wolf. 14. From a perusal of the original records, it is noticed that the resolution of the Village Education Committee forming the selection panel contains the name and signature not only of Vindeshwari Devi as Pradhan and Udai Bhan Singh as Secretary but also the signatures of the nominated S.C. Member Smt. Sunita Devi Abhibhawak, Member Anil Kumar and the Minority Abhibhawak Member Sri Chiddu Khan. On the other hand the report submitted by the petitioner though contains the names of these persons but does not mention their designation nor does it contain the name and signature of the Samanvayak. Thus from the facts noted above there is no doubt that the petitioner has obtained appointment on forged and manipulated documents and has committed an act of fraud on the department as well as the Constitution. Fraud vitiates every solemn act and cloaks everything. 15. The learned counsel for the petitioner next submitted that before passing the impugned order he was not given any opportunity of hearing. Fraud vitiates every solemn act and cloaks everything. 15. The learned counsel for the petitioner next submitted that before passing the impugned order he was not given any opportunity of hearing. This is an incorrect statement inasmuch as in para 21 of the writ petition it is admitted by the petitioner that before passing of the impugned order the District Basic Education Officer had issued notice to the petitioner on 1.3.2011 fixing the date of hearing as 10.3.2011. In para 22 of the writ petition it is stated that the petitioner submitted her reply on 10.3.2011. In para 24 of the writ petition it is stated that the District Basic Education Officer, issued another notice to the petitioner on 14.3.2011 fixing the date of hearing as 23.3.2011 and in pursuance thereof the petitioner appeared in the office of the District Basic Education Officer on the said date but no hearing took place. In paras 25 and 26 of the writ petition it is stated that another notice was issued on 23.5.2011 and in response the petitioner submitted her reply on 27.5.2011. In para 27 of the writ petition it is stated that the District Basic Education Officer issued a notice to the Gram Pradhan and the Head Master. Thereafter the impugned order dated 4.8.2011 has been passed. Thus the irresistible conclusion is that the petitioner was given an opportunity to submit her reply to the allegations against her which she has submitted and it is only thereafter that the impugned order has been passed. It will also be worth mentioning that in the present case counter-affidavit was filed on behalf of respondent Nos. 5 and 6 and copies served on Sri Irshad Ali, learned counsel for the petitioner on 10.2.2012 but till the time of hearing of the case when the judgment was reserved on 24.2.2014 no rejoinder-affidavit has been filed by the petitioner. Thus even after a lapse of two years the petitioner has not filed any rejoinder-affidavit and therefore the the averments made in the counter-affidavit remain unrebutted. 16. Though the rule of audi alteram partem is fundamental but principles of natural justice has its exceptions. The Supreme Court in State of Chhattisgarh and others v. Dhirjo Kumar Sengar, (2009) 13 SCC 600 , has held in paras 17, 18 and 19 as follows: “17. 16. Though the rule of audi alteram partem is fundamental but principles of natural justice has its exceptions. The Supreme Court in State of Chhattisgarh and others v. Dhirjo Kumar Sengar, (2009) 13 SCC 600 , has held in paras 17, 18 and 19 as follows: “17. It is in the aforementioned premise, the contention in regard to the breach of audi alteram partem doctrine must be considered. Principle of natural justice although is required to be complied with, it, as is well-known, has exceptions. (See Banaras Hindu University v. Srikant) One of the exceptions has also been laid down in S.L. Kapoor v. Jagmohan and others, (1980) 4 SCC 379 : AIR 1981 SC 136 , wherein it was held: “In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.” 18. Legality of grant of a valid appointment was dependant upon the proof that the respondent was the adopted son of Chittaranjan Singh Sengar. He not only failed to do so, the materials brought on record by the parties would clearly suggest otherwise. His application for grant of appointment on compassionate ground was rejected by the Joint Director of Education. He did not question the legality or validity thereof. He, it can safely be said by suppressing the said fact obtained the offer of appointment from an authority which was lower in rank than the Joint Director, viz., the Deputy Director. When such a fact was brought to the notice of the Deputy Director that the offer of appointment had been obtained as a result of fraud practiced on the Department, he could, in our opinion, cancel the same. 19. When such a fact was brought to the notice of the Deputy Director that the offer of appointment had been obtained as a result of fraud practiced on the Department, he could, in our opinion, cancel the same. 19. Respondent keeping in view the constitutional scheme has not only committed a fraud on the Department but also committed a fraud on the Constitution. As commission of fraud by him has categorically been proved, in our opinion, the principles of natural justice were not required to be complied with.” 17. Learned counsel for the petitioner lastly submitted that the petitioner had been acquitted in the criminal proceedings initiated against him. Be that as it may, acquittal in criminal proceedings would not have any bearing in the present matter in view of the facts noted above. 18. In this view of the matter it cannot be said that before passing the impugned order no opportunity to show-cause was given to the petitioner and there has been any violation of principles of natural justice. Before this Court also the averments made in the counter-affidavit have not been rebutted by the petitioner and no rejoinder-affidavit has been filed. Besides the findings of fact hereinabove are borne out from the original records, which have been produced by Sri K. Shahi and in this view of the matter I find that an entirely bogus case has been set up by the petitioner on fraudulent facts and fraudulent documents only to save her own skin. It is no defence for the petitioner to say that in pursuance of the selection she was appointed in 2004 and has been working as such continuously and that the allegations of fraudulent marksheets against her have been made with a mala fide motive and due to collusion between Gram Pradhan and the Head Master. Once it is found from the perusal of the original records that the petitioner has obtained appointment by submitting forged documents, such appointment cannot be saved. The petitioner was also given an opportunity to submit her representation/reply to the show-cause given by the District Basic Education Officer which she has availed and only thereafter the impugned order has been passed. 19. In this view of the matter the writ petition fails and is accordingly dismissed. 20. The original records are returned to Sri K. Shahi, learned counsel for the respondent Nos. 5 and 6.