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2016 DIGILAW 1499 (JHR)

Md. Firoz v. Union of India

2016-10-27

H.C.MISHRA, S.N.PATHAK

body2016
ORDER : Heard the learned counsel for the petitioner and the learned counsel for the Union of India. 2. The petitioner is aggrieved by the order dated 22nd July, 2014, passed by the Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi, in O.A. No. 149/2012 (R), whereby the original application of the petitioner challenging the order dated 9.1.2012 terminating his service, has been dismissed by the Central Administrative Tribunal. 3. The facts of the case lie in a short compass. The petitioner, after undergoing a recruitment process, was appointed as 'Gramin Dak Sevak Mail Deliverer' in Jokbahar Branch Office, under Gumla Head Post Office, with effect from 1.2.2009, vide order dated 27.1.2009, which was brought as Annexure-A/2 in O.A., filed before the Central Administrative Tribunal. The petitioner was so appointed ignoring the claim of the respondent No.7, due to the fact that a letter was received by the respondents, allegedly written by the respondent No. 7, stating that he had been selected as constable in Jharkhand Police and he was not interested in joining. Respondent No. 7 was placed at Sl. No.3 in the merit list securing 59.2% marks in the selection process, whereas the petitioner was much below him as the petitioner was at Sl. No. 17 with 56.85% marks. It was only on the basis of the aforesaid letter, the petitioner was offered the appointment and he was appointed. Later a complaint was received and on the basis of legal notice from Jharkhand High Court Legal Services Committee, Ranchi, the matter was enquired by the Assistant Superintendent of Post Office, South Sub-Division, Ranchi, and the enquiry revealed that the complaint of the respondent No. 7 was true that he had not written any such letter showing his inability to join the post. Accordingly, it was found that the petitioner was appointed on the basis of a forged letter. Since the petitioner had not completed three years of service, Rule 8 of the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011, (hereinafter referred to as the 'Rules'), was invoked and the services of the petitioner was terminated by order dated 9.1.2012, as contained in Annexure-3 to the writ application, giving him the due payments for the notice period of one month. 4. 4. The petitioner challenged the said order in the Central Administrative Tribunal, by filing O.A. No. 149 of 2012 (R), which was adjudicated upon, and the application of the petitioner was dismissed by the impugned order dated 22nd July, 2014, as contained in Annexure 7 to the writ application. The reason rejecting the application of the petitioner has been stated in paragraph No. 4 of the impugned order which reads as follows : "4. In a case of this nature when the employee has not completed three years of continuous service the employer is not duty bound to initiate any proceeding to get rid of the employee and can issue termination order either giving one month's notice or by paying requisite remuneration in lieu of notice. Since it is a clear case of fraud and rather illegal appointment of the applicant depriving a more meritorious candidate, no right accrues in his favour. Since Shri Mukund Nayak has been given appointment who had admittedly secured more marks, no right accrues in favour of the applicant to challenge such appointment and also his termination order. To conclude, termination order has been rightly passed considering the fact and circumstances of the case and keeping in view that respondent No. 4 had illegally appointed the applicant without proper verification and ignoring the right of a candidate who was higher in the merit list than the applicant....". (Emphasis supplied) 5. Learned counsel for the petitioner has submitted that the impugned order passed by the Central Administrative Tribunal is absolutely illegal, inasmuch as, it is not a case that the petitioner had committed any fraud for securing the employment. It is submitted that only due to the fact that one letter was found to be forged, the services of the petitioner could not be terminated, as the selection process had already been completed and the petitioner had already been appointed. It is submitted that the petitioner once appointed, his fate could not depend on the complaints made by the candidate above the petitioner in the merit list, as it could not be established that the petitioner was the author of the forged letter. It is submitted that the petitioner once appointed, his fate could not depend on the complaints made by the candidate above the petitioner in the merit list, as it could not be established that the petitioner was the author of the forged letter. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law and it is a fit case in which the impugned order dated 9.1.2012, whereby the services of the petitioner was terminated, aught to have been quashed by the Central Administrative Tribunal, directing reinstatement of the petitioner in service. 6. Learned counsel for the Union of India on the other hand has submitted that there is no illegality in the impugned order passed by the Central Administrative Tribunal, inasmuch as, the very letter due to which the petitioner was given the appointment ignoring the claim of the candidate at Sl. No. 3, i.e., much above the petitioner, who was at Sl. No. 17 in the merit list, was found to be forged. The said letter was never written by the candidate who was at Sl. No.3, forgoing his claim to the appointment. It is submitted that accordingly, the services of the petitioner was rightly terminated and the appointment had been offered to the candidate at Sl. No.3 of the merit list, who has seen been employed. 7. Learned counsel for the Union of India has also drawn our attention towards Rule 8 of the aforesaid Rules, which clearly provides that a Sevak, who has not completed three years of continuous service from the date of his engagement shall be liable to be terminated at any time by a notice in writing given either by the Sevak to the Recruiting Authority, or by the Recruiting Authority to the Sevak, the period of notice being one month. Learned counsel accordingly, submitted that there is no illegality in the impugned order of termination of service of the petitioner, making the due payments to the petitioner in lieu of one month's notice period, and there is no merit in this writ application. 8. Having heard counsels for both the sides and upon going through the record, we find that the petitioner was much below in the merit list than the respondent No.7. 8. Having heard counsels for both the sides and upon going through the record, we find that the petitioner was much below in the merit list than the respondent No.7. A letter was said to be written by respondent No. 7 that he was already selected as constable in Jharkhand Police and he was not interested in joining, and on the basis of the said letter the claim of respondent No.7 was ignored and eventually, the petitioner was offered the appointment and he was appointed. Upon enquiry, the said letter was found to be forged and accordingly, the service of the petitioner, who had not completed three years of service, was terminated, invoking Rule 8 of the aforesaid Rules, giving him the due payments for the notice period and the respondent No.7, who was at Sl. No.3 in the merit list, has since been appointed. It is quite immaterial as to who was the author of the forged letter, and this makes no difference whether it was authored by the petitioner or someone else. We are of the considered view that in the facts of this case, the appointment of the petitioner was absolutely illegal, being based on a forged letter, and was a nullity. It was not a case of irregular appointment, rather a clear case of illegal appointment, which could not be sustained in the eyes of law. The law is well settled in this regard by the Hon'ble Supreme Court of India in Ashok Kumar Sonkar v. Union of India, reported in (2007) 4 SCC 54 , as follows : "34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regulmised. The Court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity." 9. We are of the considered view that in the facts of this case the Central Administrative Tribunal has come to the right conclusion that since it is a clear case of fraud and rather illegal appointment of the applicant depriving a more meritorious candidate, no right accrued in favour of the petitioner. We are of the considered view that in the facts of this case the Central Administrative Tribunal has come to the right conclusion that since it is a clear case of fraud and rather illegal appointment of the applicant depriving a more meritorious candidate, no right accrued in favour of the petitioner. We do not find any illegality in the impugned order dated 22nd July, 2014, passed by the Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi, in O.A. No.149/2012 (R), upholding the order dated 9.1.2012, terminating the service of the petitioner, who was appointed to the post on the basis of a forged letter. 10. There is no merit in this writ application and the same is accordingly, dismissed.