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2015 DIGILAW 496 (PAT)

Nutan Kumari v. State Of Bihar

2015-03-24

MIHIR KUMAR JHA

body2015
ORAL JUDGMENT : Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “That this application is for a direction to the respondents to make payment of the petitioner’s salary due from 29.11.2007 to 3.10.2009 within a time frame.” 3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that when the petitioner was appointed on the post of Panchayat Teacher after undergoing a process of selection and she had also worked pursuant to her such appointment for a period of nearly 23 months i.e., in between 29.11.2007 to 03.10.2009 before her services were terminated, she would be definitely entitled for payment of salary for the work done by him in capacity of Panchayat Teacher. Reliance in this regard has been placed by learned counsel for the petitioner on the judgment of the Apex Court in the case of the State of Bihar Vs. Narasimha Sundaram reported in AIR 1994 SC 599 . 4. Learned counsel for the State on the other hand has submitted that since the petitioner did not possess the requisite qualification for the post of Panchayat Teacher, a decision was taken to terminate her appointment and thus would not be entitled for payment of any salary as his initial appointment on the post of Panchayat Teacher due to want of qualification was itself void ab initio. 5. Learned counsel for the State, in this regard had placed reliance on the judgment of the Full Bench of this Court in Rita Mishra & Ors Vs. Director, Primary Education, Bihar & Ors. reported in 1987 PLJR 1060 and its approval and affirmance in the judgment of the Apex Court in the case of R. Vishwanatha Pillai Vs. State of Kerala & Ors. reported in 2004(2)SCC 105. 6. In order to decide the question in hand as to whether the petitioner would be entitled for payment of her salary, the first and foremost thing is to be seen here, is as to whether the petitioner had possessed the requisite qualification for being appointed on the post of Panchayat Teacher. reported in 2004(2)SCC 105. 6. In order to decide the question in hand as to whether the petitioner would be entitled for payment of her salary, the first and foremost thing is to be seen here, is as to whether the petitioner had possessed the requisite qualification for being appointed on the post of Panchayat Teacher. The Bihar Panchayat Teacher Appointment Rules- 2006 (hereinafter referred to as the 2006 Rules), clearly prescribes the qualification for appointment on the post of Panchayat Teacher, wherein, the person concerned apart from being having the qualification of intermediate and equivalent has to possess the requisite qualification of having undergone and completed teacher’s training course. Let it be noted that a provision in 2006 Rules has also been made that in absence of trained candidates appointment of untrained candidates can be made subject to the condition of completing teacher’s training course within the prescribed period. 7. In the case of the petitioner, she had projected to have possessed the teacher’s training certificate and as such her appointment was made taking into account that she was having the qualification of teacher’s training. The requirement of training, therefore, was to be tested in the light of the claim of the petitioner and on the basis of the certificate produced by her. It is on record that when the appointment was made at the panchayat level by committee headed by mukhia, he was not aware of the validity of the teacher’s training course undergone by the petitioner and therefore he had treated the petitioner to be a trained candidate and had sent the certificate for verification whereafter the controlling authority namely, the office of District Education Officer had examined the validity and correctness of the teacher’s training certificate produced by the petitioner. The petitioner had in fact claimed to have passed her teacher’s training qualification from All India Correspondence Coaching Society, Kolkata. This institution in order to fulfill the test of Rule-8 of Bihar Panchayat Teacher Appointment Rules-2006, had to be recognized by any State Government. The petitioner was infact asked to produce the evidence of this All India Correspondence Coaching Society, Kolkata was a recognized institution in terms of Rule-8 of 2006 Rules. 8. This institution in order to fulfill the test of Rule-8 of Bihar Panchayat Teacher Appointment Rules-2006, had to be recognized by any State Government. The petitioner was infact asked to produce the evidence of this All India Correspondence Coaching Society, Kolkata was a recognized institution in terms of Rule-8 of 2006 Rules. 8. It is a matter of record that the petitioner had failed to produce any evidence as with regard to the aforementioned All India Correspondence Coaching Society, Kolkata to be a recognized institution by any of the State Government or the Government of India much less fulfilling the requirement of Rule-8 of 2006. Rules laying down such recognition of a teacher’s training institution is in existence in this State even prior to coming into force of the N.C.T.E. Act 1995, wherein such institution had to be recognized by the State of Bihar. It is this aspect of the matter which was taken into consideration by the controlling authority and recruiting unit i.e the Panchayt was asked to terminate the services of the petitioner because she was not possessing the valid teacher’s training qualification. The petitioner was given notice by the concerned authority to produce the valid teacher’s training certificate and therefore, the consequences were also well known to her. 9. In such a situation, when her services were terminated on 03.10.2009, after holding due inquiry and making verification of the qualification of teacher’s training claimed by the petitioner and such order of termination has not been challenged by the petitioner as would be apparent from the relief sought in this writ application the obvious conclusion would be that the petitioner has not been able to establish that she ever possessed the requisite qualification of teacher’s training for appointment on the post of Panchayat Teacher. Let it be noted that the petitioner in the first round before this Court had assailed the order of termination dated 03.10.2009 in C.W.J.C No. 6449 of 2009, which was disposed of by order dated 09.09.2011, relevant portion whereof reads as follows:- “Considering the fact that petitioner has now been terminated, she has an alternative remedy available by filing an appeal before the District Teachers Employment Appellate Tribunal. This application is being disposed of, without considering its merit, in order to give liberty to the petitioner for filing an appeal before the statutory forum. This application is being disposed of, without considering its merit, in order to give liberty to the petitioner for filing an appeal before the statutory forum. In case the petitioner prefers an appeal before the District Teachers Employment Appellate Tribunal, Vaishali within four weeks from today, that should be considered on merit and disposed of within three months from the date of filing of appeal. The Tribunal will also decide the issue relating to payment of salary to the petitioner for the period she has worked.” 10. The Tribunal will also decide the issue relating to payment of salary to the petitioner for the period she has worked.” 10. It was in this background of the aforementioned observations of this Court that the petitioner had moved before District Teachers Employment Appellate Authority (hereinafter referred to as the Tribunal) and the Tribunal by its order dated 10.07.2012, contained in Annexure-6 to this writ application had held that there was no infirmity in the termination of the services of the petitioner and to that extent the finding of the Tribunal in the order dated 10.07.2012, reads as follows:- ^^iapk;r lfpo us okafNr vfHkys[kksa ,oa dkxtkrksa dks izkf/kdkj ds le{k miLFkkfir fd;k] ftldk xgu voyksdu fd;k x;k] bl laca/k esa ftyk f'k{kk v/kh{kd] oS'kkyh dk i=kad 3613 fnukad 22-08-2008 dk Hkh voyksdu fd;k x;k] ftlds }kjk vkosfndk dks lwfpr fd;k x;k fd budk izek.k i= ALL INDIA CORRESONDENCE COACHING SOCIETY KOLKATTA ds }kjk fuxZr gS] tks f'k{kd fu;kstu gsrq vekU; gS rFkk vkosfndk ls Li"Vhdj.k dh ekax dh xbZA vkosfndk us viuk Li"Vhdj.k ftyk f'k{kk v/kh{kd] oS'kkyh ds lkeus izLrqr fd;k] ftldk voyksdu dj ftyk f'k{kk v/kh{kd] oS'kkyh us vkosfndk ds nkok dks Lohdkj ugha fd;k gS rFkk mUgkasus vius i=kad 303 fnukad 20-0-2009 }kjk vkosfndk ds nkok dks vLohdkj djrs gq, lacaf/kr iapk;r lfpo dks funs'k fn;k fd vkosfdk dk laLFkku oS/k f'k{k.k laLFkkuksa ds lwph esa vafdr ugha gSaA vr% mDr ifjizs{k es vkosfndk ds fu;kstu dks jn~n djus dh dkjokbZ fu;ekuqdwy lqfuf'pr fd;k tk,] vU;Fkk foyEo dh ftEesokjh iapk;r lfpo dh gksxh] pawfd ;g ,d fofRr; ekeyk gaSA iapk;r lfpo us ftyk f'k{kk v/kh{kd oS'kkyh ds mDr i= ds vkyksd esa iapk;r fu;kstu lfefr fnukad 03-10-2009 dh cSBd cqykdj] blesa ;g izLrko ikfjr fd;k x;k fd vkosfndk ds fu;kstu dks jn~n fd;k tk,] pwafd izek.k i= voS/k gSa rnuqlkj ikfjr izlrko ds vkyksd esa iapk;r lfpo us vkns'k Kkikad 42 fnukad 03-10-2009 }kjk ftyk f'k{kk v/kh{kd] oS'kkyh ,oa fu;kstu lfefr ds fu.kZ; ds vkyksd esa vkosfndk ds fu;kstu dk jn~n djus lacaf/kr vkns'k fuxZr fd;kA mi;qZDr rF;ksa ds vkyksd esa dkxtkrksa dk voyksdu dj ,oa nksuksa i{kkas dks lqudj eSa bl fu"d"kZ ij igqq¡prk g¡w fd vkosfndk us ftl laLFkku ls izf'k{k.k izkIr fd;k gS] og oS/k ugha gS tSlk fd ftyk f'k{kk v/kh{kd] oS'kkyh us xgurk ls tkap dh rFkk vkosfndk dks Hkh lquk x;k gSA vr% iapk;r lfpo ds izklkafxd vkns'k dk [kaMu djuk U;k;ksfpr ugha gS pwafd iapk;r fu;kstu lfefr }kjk Hkh fu;ekuqdy izLrko vuqeksfnr gSa vr% vkosfndk ds vkosnu dks vLohd`r fd;k tkrk gSA vkns'k dh izfr lacaf/kr i{kksa dks nh tk,A** 11. Thus, from the aforementioned order of the Tribunal which has not been assailed before this Court in the present writ application and relief is only confined for claiming salary for the period of work done, the Court will have no difficulty in holding that once the petitioner accepts the fact that she did not have the requisite qualification and that her teacher’s training course allegedly undergone from All India Correspondence Coaching Society, Kolkata, did not fulfil the requirement of Rule-8, the only question will have to be for consideration would be as to whether a person having obtained appointment by projecting to have a particular qualification and on being detected to have not such proper qualification and/or she can claim payment of salary for the work done. 12. This aspect of the matter which was gone into by this Court in the case of Rita Mishra (supra), wherein, full Bench had held that a person who obtained appointment by way of playing fraud, his appointment is per se illegal and he/she would not be entitled for payment of salary. Thus, the judgment of the Full Bench of this Court in the case of Rita Mishra (supra) was examined and subsequently affirmed by the Apex Court in the case of R. Vishwanatha Pillai (supra), wherein, not only the judgment of the Full Bench of this Court in the case of Rita Mishra was approved but law in this regard was laid down in the following terms:- “15. --------- Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under 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 a 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 Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The 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 the 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 practicing 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. 16. In Ishwar Dayal Sah v. State of Bihar the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and was therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held: (Lab IC pp. 394-95, para 12) If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. It was held: (Lab IC pp. 394-95, para 12) If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and the door is barred against him, the cloak of protection under Article 311 is not attracted. 17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13) “13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it.” 18. We agree with the view taken by the Patna High Court in the aforesaid cases. 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 pensionary 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. 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. The 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 eye of the law. The right to salary or pension after retirement flows 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 a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate 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 would the court 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 a 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 practicing fraud.” (underlining for emphasis) 13. In view of the aforementioned binding precedent in the case of Rita Mishra (supra) as also its being affirmed by the Apex Court in the case of R. Vishwanath Pillai (supra), this court will have no other option but to hold that the petitioner on account of not having the requisite qualification and in fact claiming appointment on the basis of an invalid institution, would not be entitled for payment of salary for the work allegedly done by her. 14. 14. The reliance placed by learned counsel for the petitioner on the judgment of the Apex court in the case of Narasimha Sundaram (supra), is clearly distinguishable on facts because in that case an engineer had continued in service on the basis of forged date of birth which was later on found to be incorrect. The working of such engineer who had completed more than 30 years of Government service was not in dispute. It was in this background that the Apex Court in paragraph no. 3, of the aforesaid judgment had held as follows:- “So far the question of payment of arrears of salary is concerned, we do not find any merit in the contention of learned counsel for the appellant that the respondent can be refused his emoluments for the period in question as no proceedings were ever initiated for inquiry as to the alleged fraud played by the respondent on the department. It is not denied that the respondent worked till 30th September, 1989 and in that view we confirm that part of the impugned judgment which refers to the salary. The respondent should be paid his arrears of salary, if not already paid, within two months from today.” 15. Thus, whatever was said in the case of Narasimha Sundaram (supra) would not apply at least in the case of the initial appointment of the petitioner where the right of the employer to verify certificates and making payment of salary is subject to the verification of the educational and other certificates, which is the basis for seeking appointment by the candidate. 16. In view of the aforementioned observation, this Court will have no difficulty in holding that the petitioner will not be entitled for payment of salary and the Tribunal has also committed no error in denying such payment of salary to the petitioner. 17. That being so, this Court would approve the order passed by the Tribunal dated 10.07.2012, upholding the termination of the services of the petitioner and denying the payment of salary for the alleged period of her work, would dismiss this writ application. 18. There would be, however, no order as to cost.