SAHDEO PRASAD YADAV @ SAHDEO YADAV v. THE STATE OF BIHAR

Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 3 7630 of 2003 which was heard and disposed of by a Division Bench along with batch of 821 similar cases on 26.06.2006, leading judgment being in the case of Purendra Sulan Kit (supra). The Division Bench aforementioned judgment had directed the Health Department to constitute a Five Man Committee to examine illegality in the appointment of such persons including the petitioner a decision regularization in service in the light of the observations and directions given in the judgment of Secretary State of Karnataka vs Uma Devi, reported in 2006(2) PLJR (SC) 363. The Five Man Committee after conducting fact finding inquiry found the appointment of the petitioner to be forged as also having been made by a competent Authority. It is this report of the Five Man Committee which has been assailed in this writ application. Learned counsel for the petitioner, submits that the appointment of the petitioner is not forged though it may be termed as illegal but then as the petitioner has continued in service for nearly eleven years i.e from

24.02.1992 to 11.01.2003, he should not have Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 4 been removed from service. It has also been pointed out that the Five Man Committee did not afford any opportunity of hearing to the petitioner to demonstrate that his appointment was not forged specially when followed by his appointment in the year 1992, he was transferred from Hazaribagh to Muzaffarpur under the orders of the Director-in-chief of the Health Services. Learned counsel for the State, on the other hand would submit that not only the petitioner paragraph no. 10 categorically stated that the Five Man Committee had found appointment of the petitioner to be forged but even his earlier order of termination dated 11.01.2003 was never interfered by this court and as such the petitioner cannot now seek reinstatement in service. In the considered opinion of this court, the petitioner was afforded an opportunity of hearing by the Civil Surgeon of the Muzaffarpur district, as is clear from perusal of the order of his termination dated

11.01.2003. The Civil Surgeon had held the appointment of the petitioner and 15 others Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 5 working on various posts of Basic Health Worker and other similar class-IV post to be forged and thus illegal. Thus, there would be no question of violation of the principles of natural justice specially when the petitioner has also not enclosed the show cause reply filed by him which could have demonstrated any specific non consideration of his defence. In any event, this Court had not interfered with such order of termination of the petitioner dated 11.01.2003, when he had filed C.W.J.C NO. 7630 of 2003 which as noted above was only disposed of on 26.06.2006 by remitting the matter to the Five Man Committee. The direction given by this Court in the case of Purendra Sulan Kit (supra) was to consider the cases of such similar persons by looking into the respective records had also not given opportunity of hearing to the petitioners. Thus, solitary ground assailing such decision of the Five Man Committee that it was in violation of the principles of natural justice cannot be sustained. The petitioner’s appointment having Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 6 been already cancelled by the competent Authority on 11.01.2003 after following principles of natural justice, he was not required to be given notice by the Five Man Committee specially that there was no such direction by the Division Bench of this Court in its judgment dated 26.06.2006. Admittedly the ground on which such termination of service of the petitioner has been made is only the forged nature of his appointment letter. Such fraudulent appointment in fact could confer no right in the petitioner and also involving complicated question of fact as with regard to the genuineness or otherwise of his appointment letter cannot be gone into by this Court within the limited parameters of Article 226 of the Constitution of India, as had been held by a Full Bench of this Court in the case of Rita Mishra Vs. State of Bihar & Ors. reported in 1987 BBCJ 701 which has been also approved by the Apex Court in the case of R. Vishwanatha Pillai Vs. State of Kerala & Ors. reported in 2004(2)SCC 105 wherein it was held that:- “15. --------- appellant can lay a claim to the post on the basis of his Unless Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 7 appellant 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 India. recorded Finding Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is 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 Constitution of India or the Rules thereunder. Where an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment service a situation Article 311 of the Constitution is not attracted at all. framed law, 311 Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 8 entitled employee appointment

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 protection of Article 311 of the Constitution. In the said obtained producing a caste certificate belonged a community Caste Scheduled which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation appointment removal from service within the meaning of Article 311 of the Constitution and was therefore void. 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 appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that rights under Article 311 of the Constitution possibly flow. It was held: (Lab IC pp. 394-95, para 12) amounted constitutional It If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. In a question person concerned is at all a civil servant of the Union or situation, whether Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 9 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. fraudulent

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, 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 entitlement statutory salary consequential rights of pension 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 Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 10 by the Patna High Court in the aforesaid cases. a nature rights Counsel obtained dismissal retirement

19. It was then contended by Shri Ranjit Kumar, learned Senior appellant that since the appellant has rendered about 27 years of service, the substituted by an order of compulsory removal from service to protect pensionary benefits of the appellant. We do not find any substance in this submission as well. The salary, pension and other service entirely benefits statutory The public service. appellant appointment against a post 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 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 service by producing a false obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Caste candidate of appointment to that post, does not deserve any sympathy or indulgence certificate Scheduled entered Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 11 cannot manner. 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 Equity jurisdiction exercised in the case of a person 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) Normally, having held that the petitioner’s forged appointment letter had conferred him no right to continue in service specially when he had also deliberately withheld the most important evidence and in fact despite opportunity given to him had not produced even his original appointment letter, this Court, in ordinary course, ought to have dismissed this writ application by drawing adverse inference against him. Learned counsel for the petitioner however, has submitted that the petitioner Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 12 should be given one more opportunity, inasmuch as, he is confident that he can still produce his original appointment letter to dispel the doubt of the authorities that it is a forged letter. He has in this regard also submitted that since such finding of forgery has been arrived at by the Civil Surgeon of the district, an enquiry in this regard should be entrusted by this Court to a higher authority. This Court, in order to do complete justice would give the petitioner a further but last opportunity produce original appointment letter before the Director-in- Chief, Health Services who thereafter shall examine all the relevant aspects including the issue as to whether the appointment letter of the petitioner was themselve forged and/or his appointment letter was issued after undergoing prescribed procedure competent authority ensuring substantial compliance of the mandate of Article 14 & 16 of the Constitution of India as laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi(3) & Ors. reported in 2006(4)SCC 1 and in the case of State of Bihar Vs. Upendra Narayan Singh & Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 13 Ors. reported in 2009(5)SCC 65. This application is, accordingly, disposed of with a liberty to the petitioner to file his individual separate representation giving full details of the manner and continuation of his appointment within a period of three months from today, which must be accompanied by his original appointment letter, whereafter, the Director- in-Chief Health Services individually examine each and every case separately and would record his specific finding with regard to the alleged forgery in his appointment letter. He would also at the same time look into all other relevant aspects relating to the mode and manner of appointment and continuation of the petitioner in service and pass a reasoned order while disposing of the representation of the petitioner. It is, however, made clear that if the appointment letter of the petitioner is not produced by him and/or found to be forged, there would be no question of his being reinstated in service but, if his appointment is found to be merely irregular, he would be entitled for reconsideration of his case for Patna High Court CWJC No.587 of 2010 (5) dt.02-02-2012 14 reinstatement in service alike 91 others, who were also reinstated in service by the Director-in-Chief in his order contained in Memo No. 117 dated 20.9.2007 passed in view of the order of the Division Bench of this Court dated 26.6.2006 in LPA No. 946 of 2003 State of Bihar Vs. Purendra Sulan Kit reported in 2006(3)PLJR 386. Such an exercise, however, must be completed by the Director-in-Chief within a period of six months from the date of filing of the representation by the petitioner enclosing his original appointment letter and a copy of this order. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)