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2017 DIGILAW 991 (ALL)

Amit Chaudhary v. State of U. P.

2017-04-12

DILIP GUPTA, PRABHAT CHANDRA TRIPATHI

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JUDGMENT : Dilip Gupta, J. 1. This Special Appeal has been filed under Chapter VIII Rule 5 of Allahabad High Court Rules against the judgment dated 11 May 2010 of a learned Judge of this Court by which Writ Appeal No. 2686 of 2008 filed by the appellant to assail the order dated 11 December 2007 passed by the Senior Superintendent of Police, Muzaffarnagar confirming the earlier order dated 11 October 2007 for cancelling the selection of the appellant as a temporary recruit belonging to the Other Backward Class (OBC) category, has been dismissed. 2. It transpires that the appellant responded to an advertisement dated 23 July 2005 and submitted an application for recruitment as a constable. The appellant claimed that he belonged to the OBC category and with the application form submitted a caste certificate said to have been issued by the Tehsildar-Sikarpur. On the basis of the said caste certificate enclosed with the application form and in view of the undertaking given by the appellant that his selection can be cancelled without providing any notice in case any information supplied by him is found to be false, the appellant was recruited on temporary basis. On verification from the office of District Magistrate, Bulandshahr, it was found that the caste certificate submitted by the appellant with the application form was a forged certificate since the Tehsildar Sikarpur reported that such a certificate had never been issued from his office. The Senior Superintendent of Police, Muzaffarnagar, therefore, by order dated 11 October 2007 cancelled the selection of the appellant. 3. This order was assailed by the appellant by filing Writ Petition No. 53619 of 2007. The contention of the appellant was that there was mistake on the part of the appellant in mentioning that the appellant was a resident of Village Sadarpur, Police Station-Salempur, Tehsil-Sikarpur, District-Bulandshahr, whereas the appellant is a resident of Village Sadarpur, Police Station Salempur, Tehsil Baran, District-Bulandshahr. This petition was disposed of on 31 October 2007 with a direction to the Senior Superintendent of Police, Muzaffarnagar to pass a fresh order within a month, if the appellant files an application. The relevant portion of the order is reproduced below:- "Learned counsel for the petitioner submitted that petitioner has applied for the post of constable. Along with the application form, he has annexed caste certificate. The relevant portion of the order is reproduced below:- "Learned counsel for the petitioner submitted that petitioner has applied for the post of constable. Along with the application form, he has annexed caste certificate. When the department enquired about the caste certificate and other relevant information of the petitioner, it was informed by the Tehsil Sikarpur that no person of this name was found to be living there. Learned counsel for the petitioner further submitted that there was mistake on the part of the petitioner because he has mentioned that petitioner is resident of village Sadarpur, Post police Station Salempur, Tehsil Sikarpur, District Bulandshahar, whereas the petitioner is resident of village Sadarpur, post police Station Salempur, Tehsil Baran, District Bulandshahar. In this circumstances, he prays for that the impugned order deserves to be quashed by this court in exercise of jurisdiction under Article 226 of the Constitution of India. Be that as it may, since there is no fault either on the part of the petitioner or on the part of the authorities concerned in passing the impugned order, but the fact remains that the petitioner has suffered because of mistake that he has committed in filling up the name of his Tehsil in the application form. Considering the facts and circumstances of the case as also in the interest of justice, it direct the senior Superintendent of police, Muzaffarnagar to enquire the residence of the petitioner from the address given in this writ petition treating the petitioner to be resident of village Sadarpur, Post Police station Salempur, Tehsil Baran, District Bulandshahar and in case the authority comes to the conclusion that what the petitioner has mentioned in the writ petition is correct, he shall pass a fresh order in accordance with law. For this purpose, petitioner will file an application before the Senior Superintendent of Police, Muzaffarnagar along with the certified copy of this order within a period of two weeks from today and the Senior Superintendent of Police concerned will decide the petitioner's application within one month thereafter." With the aforesaid direction, this writ petition is finally disposed of." 4. The appellant filed an application. The Senior Superintendent of Police by order dated 11 December 2007 confirmed the earlier order dated 11 October 2007. The appellant filed an application. The Senior Superintendent of Police by order dated 11 December 2007 confirmed the earlier order dated 11 October 2007. It has been noted in the order that the caste certificate that was submitted by the appellant with the application form at the time of recruitment was said to have been issued by the Tehsildar Sikarpur but the caste certificate which has been filed by the appellant subsequently has been issued by the Tehsildar-Baran. The caste certificate which was submitted by the appellant at the time of recruitment was a forged certificate as it had not been issued from the office of the Tehsildar-Baran. In such circumstances, a person who claimed recruitment in a disciplined force on the basis of a forged certificate cannot be retained in service, more so, when an affidavit had also been submitted at the time of the recruitment that if any information was found to be false, the selection could be cancelled without notice. 5. The learned Judge declined to grant any relief for the reason that the certificate which has been submitted while seeking recruitment was found to be forged. 6. Sri M.N. Singh, learned counsel for the appellant has submitted that the appellant actually belongs to the OBC category as is clear from the subsequent certificate that was issued by the Tehsildar-Baran. It is, therefore, his contention that the selection of the appellant could not have been cancelled even if a wrong certificate belonging to the OBC category had earlier been submitted. Learned counsel for the appellant also submitted that the selection could not have been cancelled without providing opportunity. 7. Sri Shashank Shekhar Singh and Ms. Meenakshi Singh learned counsel for the State respondents have submitted that the appellant had submitted a forged caste certificate while seeking appointment to the post of constable in a disciplined force and in view of the undertaking given by the appellant in the form of an affidavit that if any information was found to be false, the selection can be cancelled without providing any opportunity, the impugned order cancelling the selection of the appellant does not suffer from any illegality. Learned Standing Counsel further submitted that since fraud vitiates all action, no opportunity was required to be provided and in support of this contention reliance has been placed upon decisions to which reference shall be made. 8. Learned Standing Counsel further submitted that since fraud vitiates all action, no opportunity was required to be provided and in support of this contention reliance has been placed upon decisions to which reference shall be made. 8. We have considered all the submissions advanced by the learned counsel for the parties. 9. The issue arises for consideration in the Special Appeal is as to whether the selection of the appellant as a temporary recruit obtained on the basis of a forged caste certificate can be cancelled by the Appointing Authority. On verification, the Department was informed that the caste certificate submitted by the appellant with the application form had not been issued by the office of Tehsildar-Sikarapur. The appellant does not dispute this position. It is, therefore, clear that the appellant had made an attempt to seek recruitment on the basis of a forged caste certificate. An undertaking had also been given by the appellant in the form of an affidavit enclosed with the application form that in case any information supplied by the appellant is found to be false, then the selection can be cancelled without any notice. The Senior Superintendent of Police, Muzaffarnagar by an order dated 11 October 2007 had cancelled the selection of the appellant as a temporary constable for the reason that the caste certificate was found to be forged. The appellant had earlier filed Writ Petition No. 53619 of 2007 contending that there was some technical mistake in the caste certificate and, therefore, the matter should be re-examined by the Senior Superintendent of Police, Muzaffarnagar. It is, for this reason that the Court disposed of the matter with a direction to the Senior Superintendent of Police, Muzaffarnagar to pass a fresh order. All that was submitted by the appellant in the application submitted by him before the Senior Superintendent of Police, Muzaffarnagar was that the caste certificate subsequently issued by the Tehsildar-Baran did indicate that the appellant belongs to the OBC category. The subsequent order dated 11 December 2007 passed by the Senior Superintendent of Police, Muzaffarnagar reiterates that to seek employment, the appellant had submitted a forged certificate. 10. It has, therefore, to be examined whether the subsequent caste certificate submitted by the appellant to support his case that he belongs to the OBC category can be taken aid of to overcome the filing of a forged caste certificate earlier. 11. 10. It has, therefore, to be examined whether the subsequent caste certificate submitted by the appellant to support his case that he belongs to the OBC category can be taken aid of to overcome the filing of a forged caste certificate earlier. 11. As noted above, which fact is also admitted to the appellant, the caste certificate which had been filed by the appellant with the application form had never been issued from the office of the Tehsildar-Sikarpur. In other words, the caste certificate that was submitted was a forged certificate. 12. The Supreme Court has time and again examined such a situation. In Bank of India and Another vs. Avinash D. Mandivikar and Others, (2005) 7 SCC 690 , the Supreme Court considered the consequences of submitting a false certificate for seeking appointment and observed as follows:- "6. Respondent 1 employee obtained appointment in the service on the basis that he belonged to a Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate. 11. .........The matter can be looked into from another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. This Court in Bhaurao Dagdu Paralkar vs. State of Maharashtra, (2005) 7 SCC 605 dealt with the effect of fraud. It was held as follows in the said judgment:- "12(14)...........Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. * * * 13(15). This aspect of the matter has been considered by this Court in Roshan Deen vs. Preeti Lal, (2002) 1 SCC 100 , Ram Preeti Yadav vs. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311 , Ram Chandra Singh Case (2003) 8 SCC 319 and Ashok Leyland Ltd. vs. State of T.N. (2004) 3 SCC 1 . 14(16). Suppression of a material document would also amount to a fraud on the court. 14(16). Suppression of a material document would also amount to a fraud on the court. (See Gowrishankar vs. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310 and S.P. Chengalvaraya Naidu vs. Jagannath (1994) 1 SCC 1 ). 15(17). 'Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case. 16(18). In Lazarus Estates Ltd. vs. Beasley, (1956) 1 QB 702 Lord Denning observed at QB pp. 712 and 713: (All ER p.345-C) "No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (p. 722) (19). These aspects were recently highlighted in State of A.P. vs. T. Suryachandra Rao, (2005) 6 SCC 149 ." (Emphasis supplied) 13. In Union of India and Others vs. M. Bhaskaran, 1995 Suppl. (4) SCC 100 the Supreme Court, after placing reliance upon its earlier judgment in District Collector and Chairman, Vizianagaram Social Welfare Residential School Society vs. M. Tripura Sundari Devi, (1990) 3 SCC 655 observed as under:- "If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer." 14. In R. Vishwanatha Pillai vs. State of Kerala and Others, (2004) 2 SCC 105 the Supreme Court also observed that appointment made on the basis of a false caste certificate is no appointment in the eyes of law and the appellant cannot be allowed to take advantage of his own fraud in entering the service. The observations are as follows:- "15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the 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 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 Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. 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 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 practising 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. (Emphasis supplied) 15. Where an appointment in a service has been acquired by practising 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. (Emphasis supplied) 15. In Regional Manager, Central Bank vs. Madhulika Guruprasad Dahir, (2008) 13 SCC 170 the Supreme Court upheld the termination even after a period of 20 years when the appointment was obtained by submitting a forged caste certificate and the observations are as follows:- "18. Having considered the matter in the light of the aforesaid legal position, in our judgment, the decision of the High Court is untenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must necessarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim in respect of the post merely on the ground that she had worked on the post for over twenty years. The post was meant for a reserved candidate but she usurped the same by misrepresentation and deception. In our opinion, the fact that caste certificate was referred to the Scrutiny Committee for verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appointment." (Emphasis supplied) 16. The same view was reiterated by the Supreme Court in Meghmala and Others vs. G. Narasimha Reddy and Others, (2010) 8 SCC 383 . It was observed:- "28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law................. .................... 32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud............" 17. .................... 32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud............" 17. The contention of learned counsel for the appellant that the order impugned in the writ petition also deserves to be set aside for the reason that principles of natural justice had not been complied with cannot also be accepted. 18. A Division Bench of this Court in Kuldeep Kumar and Roop Chand vs. CEO, Noida and Others, Special Appeal Defective No. 153 of 2014 decided on 12 February 2014 examined a case where services of the appellants had been terminated for the reason that for securing appointments against reserved posts, the appellants had relied upon caste certificates issued by the Tehsildar, Balachaur in the State of Punjab. The appellants contended that the order of termination was passed without complying with the principles of natural justice. The case of the respondents was that the appointments of the appellants were void as they had placed reliance upon caste certificates that were issued in the State of Punjab which was not valid in the State of Uttar Pradesh. The Division Bench observed that these certificates could not have been taken into consideration for providing any reservation and, therefore, the appellants were not entitled to claim employment. The Division Bench, therefore, upheld the termination order even if the principles of natural justice had not been followed. The observations are as follows:- "In view of the admitted facts, the only conclusion that can be drawn is that the appellants were not entitled to claim the benefit of the caste certificates. It will, therefore, not be appropriate to set aside the order of termination only on the ground that there was a breach of principles of natural justice. For this purpose we may refer to the decision of the Supreme Court in Viveka Nand Sethi vs. Chairman, J&K Bank Ltd. and Others, (2005) 5 SCC 337 where it has been observed:- "The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Dr. Gurjeewan Garewal vs. Dr. Sumitra Dash, (2004) 5 SCC 263 ]. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Dr. Gurjeewan Garewal vs. Dr. Sumitra Dash, (2004) 5 SCC 263 ]. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab vs. Jagir Singh, (2004) 8 SCC 129 and Karnataka SRTC vs. S.G. Koturappa, (2005) 3 SCC 409 )" (Emphasis supplied) 19. Thus, we do not find any merit in any of the contentions raised by learned counsel for the appellant. 20. The Special Appeal is, accordingly, dismissed.