Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 691 (RAJ)

Virendra Kumar Tailor v. State of Rajasthan

2015-03-24

SANDEEP MEHTA

body2015
Order By way of the instant writ petition, the petitioner has approached this Court assailing the legality and validity of the order dated 15.7.1992 (Annexure-1) and with a prayer for directing the respondents to reinstate the petitioner back in service with all consequential benefits. Facts in brief are that after facing due selection process, the petitioner was appointed on the post of Teacher Gr.III and was posted at Government Upper Primary School, Arnod, Dist. Chittorgarh. The petitioner, while seeking appointment, submitted a B.Ed. degree which he claimed to have obtained from the Poorvanchal University, Jaunpur, U.P. The petitioner was confirmed on the post on 25.1.1992. The degrees held by the petitioner and two other similarly placed candidates had been forwarded by the District Education Officer for verification to the University from where a communication dated 25.05.1992 was received conveying that the B.Ed. degrees submitted by the candidates including the petitioner were forged and fabricated. The District Education Officer, upon receiving the said intimation, issued a notice Annexure7 dated 25.06.1992 to the petitioner under Rule 35B of the Rajasthan Service Rules and the Government decision taken thereunder requiring him to show cause as to why his erroneous appointment/ confirmation on the post of teacher which he had procured on the strength of a forged mark-sheet/degree of B.Ed. should not be cancelled. Though it is asserted in para 8 of the writ petition that the petitioner submitted a reply to the above notice but neither a copy of any such explanation/reply nor its acknowledgement has been placed on record of the writ petition on the pretext of unavailability. The respondents in their reply have denied receiving any such explanation/reply. As no explanation was offered by the petitioner to the show cause notice, the District Education Officer acting in furtherance of a formal communication forwarded by the Chief Executive Officer, Zila Parishad, Chittorgarh terminated the services of all three candidates including the petitioner vide the impugned order dated 05.07.1992. An FIR was registered on 24.8.1992 at Police Station, Kotwali Chittorgarh at the instance of the District Education Officer (Elementary Education) Chittorgarh with the allegation that the B.Ed. degree obtained by the petitioner and a few other candidates from the Poorvanchal University, Jaunpur, U.P. were forged and fabricated. An FIR was registered on 24.8.1992 at Police Station, Kotwali Chittorgarh at the instance of the District Education Officer (Elementary Education) Chittorgarh with the allegation that the B.Ed. degree obtained by the petitioner and a few other candidates from the Poorvanchal University, Jaunpur, U.P. were forged and fabricated. It is asserted in the writ petition that the Poorvanchal University, Jaunpur, U.P. forwarded a verification report vide letter dated 19.6.1992 (Annex.6) addressed to the Investigating Officer confirming that the degrees conferred on the petitioner and the other candidates were genuine. The criminal case instituted against the petitioner and others came to be decided by the learned Chief Judicial Magistrate, Chittorgarh by judgment dated 15.6.2007(Annexure-8) and the petitioner as well as the co-accused were acquitted of the charges giving them the benefit of doubt. Armed with the said judgment of acquittal, the petitioner submitted an application Annexure-9 to the authorities for reinstating and taking him back in service. The said application submitted by the petitioner did not deliver the desired result upon which the petitioner has approached this Court by way of the instant writ petition. Counsel for the petitioner vehemently submitted that the termination of the petitioner’s services vide order Annexure-1 dated 15.7.1992 is grossly illegal and arbitrary because the same was passed without following the due process of law. He further contended that the petitioner’s acquittal in the criminal case conclusively establishes that the degree on the strength whereof the petitioner gained appointment was not forged and was as a matter of fact genuine. As per him, once the criminal court held that the degree obtained by the petitioner was genuine in light of the letter D-1 dated 19.6.1992 (Annexure6), as a necessary consequence thereof, the petitioner is entitled to be reinstated back in service with full continuity and consequential benefits. He vehemently urged that the writ petition deserves to be accepted in the terms prayed for. Per contra learned Government Counsel contended that the petitioner is not entitled to the relief claimed in the writ petition. He urged that the writ petition has been preferred after an undue delay of sixteen years. If at all, the petitioner was aggrieved of the order Annex.1 dated 15.07.1992 whereby his services were terminated, he should have challenged it immediately by resorting to the appropriate legal remedy. He urged that the writ petition has been preferred after an undue delay of sixteen years. If at all, the petitioner was aggrieved of the order Annex.1 dated 15.07.1992 whereby his services were terminated, he should have challenged it immediately by resorting to the appropriate legal remedy. He further contended that the petitioner’s acquittal by the criminal Court is inconsequential because the same was recorded giving him the benefit of doubt, and therefore, the action of the authorities in refusing to reinstate the petitioner in service despite his acquittal in the criminal case is justified. He placed reliance on the Supreme Court decision in the case of Union of India & Anr. Vs. Bihari Lal Sidhana reported in (1997) 4 SCC-385 and contended that mere acquittal in the criminal case does not entitle the employee to automatic reinstatement. Learned Govt. Counsel further submitted that the District Education Officer again wrote a letter to the concerned University wherefrom a communication Annexure AA-1 dated 31.3.2010 has been received to the effect that the letter dated 19.6.1992 (Annex.6) was never issued by the University. He thus submitted that the writ petition is liable to be dismissed. Heard and considered the arguments advanced at the bar. Perused the material available on record. It is evident from the documents available on record that pursuant to the petitioner’s selection, the District Education Officer sent the petitioner’s degree for verification to the issuing authority i.e. the Poorvanchal University. Upon receiving a report from the Poorvanchal University, Jaunpur, U.P. that the degree was forged and had not been issued by the said University, the petitioner was given a notice Annexure-7 resorting to a Government decision under the Rule 35-B of the R.S.R. The Rule 35-B and the Government decision taken thereunder are reproduced hereinbelow for the sake of ready reference:- 35-B. Notwithstanding the provisions contained in these rules, the pay of a Government servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in: accordance with any general or special orders issued by the Government in this behalf. Government of Rajasthan's Decisions. 1. Government of Rajasthan's Decisions. 1. Instances have come to the notice of the Government or competent authorities having issued orders confirming temporary or officiating Government servant in permanent posts even though the Government servant concerned is not qualified in all respects for such confirmation under the relevant statutory/service rules, executive orders or administrative instructions. In almost all these cases, the confirmation so made had the effect of depriving or postponing confirmations of other Government servants who were qualified in all respects for confirmation. The possibility and the propriety of cancelling the erroneous orders of confirmation already made has been examined and it has been decided as follows:- (a) An order of confirmation which is clearly contrary to the relevant statutory/Service rules may be cancelled by the competent authority straight away. Here the order of confirmation was abinitio void (sic vide) as it was ultra vires of the relevant rules and cancellation of the order would be justified on the ground that there was no valid subsisting order at all and the act of cancellation is a mere formality. The effect of cancellation would be to put the employee concerned in a position of never having been confirmed. (b) An order of confirmation which is contrary to executive orders or administrative instructions may be cancelled by the competent authority, if such erroneous order of confirmation has operated to the prejudice of some identifiable person who would otherwise have been confirmed, if the orders had been correctly applied. Here the order of cancellation would be just and equitable as the confirmation of the employee concerned operates unfairly to the detriment of another employee who would have otherwise been confirmed. Such cancellation will not have the effect of doing any injustice to the employee whose confirmation is cancelled, since he was, under the executive orders or administrative instructions in force, not entitled to confirmation. It would, however be in consonance with the principles of natural justice that a notice to show cause why the order of confirmation should not be cancelled be given to the affected party in both types of cases specified above. 2. In pursuance of Rule 35B it has been decided that the following provisions shall govern the pay and increments of a Government servant whose promotion or appointment in a substantive or officiating capacity to a post is later found to be erroneous on the basis of facts. 2. In pursuance of Rule 35B it has been decided that the following provisions shall govern the pay and increments of a Government servant whose promotion or appointment in a substantive or officiating capacity to a post is later found to be erroneous on the basis of facts. The orders or notification of promotion or appointment of a Government servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the Government servant concerned should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect order of promotion or appointment. In the case, however, of a Government servant who has been erroneously promoted and appointed to a post in a substantive capacity the procedure prescribed in the aforesaid Government of Rajasthan's Decision No.1 for deconfirming the Government servant in that post should be followed and only thereafter the Government servant concerned should be brought down to the position which he would have held but for the erroneous promotion/appointment by the issue of orders as mentioned above. Service rendered by the Government servant concerned in that post to which he was wrongly promoted/appointed as a result of the error should not be reckoned, for the purpose of increments or for any other purpose in that grade/post to which he would not normally be entitled but for the erroneous promotion/appointment. Any consequential promotions or appointments of other Government servants made on the basis of the incorrect promotion or appointment of particular Government servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph. Except where the appointing authority is the Government, the question whether promotion/appointment of a particular Government servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with the established principles governing promotions/appointments. Where the appointing authority is the Government, the final decision shall rest with the Administrative Departments concerned of the Government. In case of doubt the Administrative Department shall consult the Appointments Departments before taking final decision. Where the appointing authority is the Government, the final decision shall rest with the Administrative Departments concerned of the Government. In case of doubt the Administrative Department shall consult the Appointments Departments before taking final decision. It has also been decided that cases of erroneous promotion/appointment in a substantive or officiating capacity should be reviewed with serious concern and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion. The orders refixing the pay should be issued expressly under rule 35B and a copy thereof should be endorsed to Finance Department.” (Emphasis supplied) From the language of the above quoted Rule and the decisions taken by the Government it is evident that the competent authority is empowered to cancel the confirmation or appointment of a government servant in the contemplated circumstances. Obviously as the petitioner’s degree was found to be forged and fabricated upon verification, his appointment and confirmation to the post could very well be termed to be erroneous and consequent action of cancellation was thus, permissible under Rule 35-B and the Governments decisions taken thereunder. Though the petitioner claimed in the writ petition that, he replied the show cause notice Annexure-7 dated 25.6.1992, but concededly, neither the date of the reply is mentioned in the writ petition nor a copy thereof has been annexed so as to accept the said averment. On the contrary the respondents have patently denied that the petitioner ever replied to the said show cause notice. Thus, it has to be held that the petitioner did not reply to the show cause notice and appears to have acquiesced to the same and as a consequence, the District Education Officer was totally justified in passing the order Annexure-1 dated 15.7.1992 in reference to aforequoted rule of the R.S.R. and the Government decision taken thereunder as the degree submitted by the petitioner for procuring appointment was found to be forged upon verification. It is equally significant that the petitioner kept absolutely silent and did not challenge the impugned order dated 15.7.1992 whereby he was dismissed from service for a good period of sixteen years. Thus, he allowed the order dated 15.7.1992 to become final by acquiescence. It is equally significant that the petitioner kept absolutely silent and did not challenge the impugned order dated 15.7.1992 whereby he was dismissed from service for a good period of sixteen years. Thus, he allowed the order dated 15.7.1992 to become final by acquiescence. Though of course, it has been vehemently contended on behalf of the petitioner that his claim for reinstatement was visualized finally upon his acquittal in the criminal case in the year 2007 but the said argument is of no avail whatsoever. The order Annexure-1 whereby the petitioner was dismissed from service is not based on the criminal case instituted against him. As a matter of fact, the termination order was passed earlier and the criminal case was registered later. Thus, the petitioner’s acquittal as recorded by the Trial Court that too by giving him the benefit of doubt is of hardly any significance. There is another important aspect which cannot be lost sight of while examining the matter in the writ jurisdiction. The petitioner’s acquittal by the criminal court was primarily based on the letter Ex.D-1 which has been annexed in the instant writ petition as Annexure-6. The petitioner’s counsel also stressed on the said letter in support of his arguments. It is noteworthy to mention that the letter was purportedly issued by Jaunpur University to the I.O. Ali Mohd. during investigation of the criminal case. On the other hand, the respondents have placed on record, a letter Annexure AA dated 31.3.2010 whereby the University has intimated the District Education Officer, Chittorgarh that the letter dated 19.6.1992 was not issued by the University. There is a strong reason to accept the veracity of the letter Annexure-AA/1 dated 31.03.2010 as against the letter Annexure-6 dated 19.6.1992 which prima facie appears to be forged. Admittedly, the F.I.R. lodged against the petitioner at the instance of the District Education Officer at the Police Station, Kotwali, Chittorgarh was registered on 24.8.1992. Thus, it is indeed surprising that when the F.I.R. itself came to be registered on 24.8.1992, what could have been the reason for Shri Ali Mohd. (Investigation Officer) to have proceeded to Poorvanchal University, Jaunpur, U.P. in June 1992 for making an enquiry into the genuineness or otherwise of the degree. The order Annexure-6 does not bear the number of the F.I.R. in relation whereto the same was issued. Had Shri Ali Mohd. (Investigation Officer) to have proceeded to Poorvanchal University, Jaunpur, U.P. in June 1992 for making an enquiry into the genuineness or otherwise of the degree. The order Annexure-6 does not bear the number of the F.I.R. in relation whereto the same was issued. Had Shri Ali Mohd. proceeded to Poorvanchal University in relation to investigation of some criminal case, then in such a situation, the letter which was issued by him was required to bear the number of F.I.R. or the detail of the case in relation where to the information was sought. Consequently, the letter given to him in reply would definitely reflect the F.I.R. number which is missing in the document Annexure-6. The Hon’ble Apex Court in the case of Union of India Vs. Bihari Lal Sidhana (supra) held that mere acquittal in a criminal case does not entitle to an employee to automatic reinstatement. In the case of Deputy Inspector General of Police Vs. Samuthiram being reported in AIR 2013 SC-14, the Apex Court held that acquittal of delinquent in criminal trial has no impact on disciplinary proceedings. Acquittal of delinquent even if honourable does not in absence of any provision in service rules, confer a right on delinquent to claim any benefit. It was held in the said case that respondent was acquitted as the prosecution did not examine crucial witness and thus such, acquittal cannot be said to be honourable. The Court refused to interfere in the order of dismissal in the above circumstances. The above view is further reiterated in a recent decision of the Hon’ble Supreme Court in the case of State of West Bengal & Ors. reported in AIR 2014 SC-405, wherein the Apex Court held that even if there is identity of charges leveled against the employee before the criminal court as well as before the enquiry officer, an order of discharge or acquittal by a criminal court can not be construed as a bar to the award of departmental punishment. This was so held in the background that the acquittal of the employee was recorded by giving him the benefit of doubt. From a perusal of the trial court’s judgment Annexure-8 in the case at hand also, it is manifest that the star witness Ali Mohd. could not be examined because he passed away and the petitioner was acquitted giving him the benefit of doubt. From a perusal of the trial court’s judgment Annexure-8 in the case at hand also, it is manifest that the star witness Ali Mohd. could not be examined because he passed away and the petitioner was acquitted giving him the benefit of doubt. Thus the controversy involved in the case at hand is squarely covered by the above Supreme Court decisions. As a result of aforesaid discussion, this Court is of the opinion that there is no merit in the writ petition and the same is hereby dismissed. As the petitioner procured the appointment to a public post on the basis of forged and fabricated document and has thereafter filed this writ petition against an order of dismissal/cancellation of confirmation in service after an inordinate and huge delay of nearly 16 years, the same being frivolous and vexatious is dismissed with a cost of Rs. 5,000/-.