MD. MOINUDDIN v. THE STATE OF BIHAR

Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 3 dated 30.03.2006 was assailed by the petitioner in C.W.J.C No. 6450 of 2006, which was disposed of by an order dated 14.08.2006 in terms of the judgment of the Division Bench of this Court in the case of State of Bihar Vs Purendra Sulan Kit reported in 2006(3) PLJR 386. It has also been explained that the petitioner thereafter had moved before Director-in-chief of the health Services and the Director-in-chief having placed the case of the petitioner before the Five Man Committee constituted in terms of the judgment of the Division Bench of this Court in the case of Purendra Sulan Kit (supra) had found the appointment of the petitioner to be forged and an order to this effect was issued on

24.08.2010, wherein it was held as follows:- funs’kky; LokLF; lsok,a fcgkj] iVuk vkns’k vk0 la0&4@ fof/k&8&119@06&642…4‰@iVuk] fnukad 28@4@10 lh0 MCyw0ts0lh0la0 64450@06 eks0 eksbZuqnnhu cuke jkT; ljdkj ,oa vU; esa fnukad 14-8-06 dks ikfjr ekuuh; mPp U;k;ky; iVuk ds U;k;kns’k ds vuqikyu esa foosfpr vkns’kA ------------------------------------------------------------------------------------------------------------- lh0MCyw0ts0lh0 la0 64450@06 esa fnukad 14-08-06 dks ekuuh; mPp U;k;ky;] iVuk }kjk ikfjr vkns’k dk dk;kZRed fcUnw (Coperative Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 4 Part)fuEukafdr gS& There is no objection to the submission on behalf of petitioner that this writ petition be also disposed of in terms of judgment of the Division Bench of this Court in L.P.A. No. 946/03 mentioned above. This writ petition is disposed of in terms of the judgment and order dated 26.6.06. The case of the petitioner shall also be considered in the same manner as the case of affected employees of those cases. ekuuh; mPp U;k;y; }kjk ikfjr vkns’k ds vkyksd es flfoy ltZu fd’kuxat ds i=kad 2422 fnukad 17-12-09 }kjk Jh eksbZuqnnhu dh fu;qfDr ls lacaf/kr izkIr vfHkys[k dh tkap funs’kd izeq[k ds v/;{krk esa xfZBr tkap lfefr }kjk dh x;h A tkapksijkar lsok iqfLr esa vafdr fu;qfDr vkns’k la0 865 fnukad 30- 10-86 dh lEiqf"V dh lwpuk LokLF; funs’kky; Kkikad 1968…4‰ fnukad 16-12- 09 }kjk v/kh{kd] ;{ek vLirky dkbZyoj] Hkkstiqj …vkjk‰ ls djk;k x;k] ftlds vkyksd esa v/kh{kd] ;{ek vLirky dksbZyoj] vkjk Hkkstiqj vius i=kad 230 fnukad 26-12-09 }kjk lwfpr fd;k x;k gS fd eks0 eksbZuqnnhu fyfid dks fu;qfDr muds dk;kZy; Kkikad 855 fnukad 30-10-86 }kjk ugha fn;k x;k gSA vr% tkpksijkUr] tkap lfefr }kjk eks0 eksbZuqnnhu dh fu;qfDr QthZ ik;k x;kA vkns’k% vkns’k fn;k tkrk gS fd vkns’k dh izfr fucaf/kr Mkd ls vkosnd eksbZuqnnhu c[kkZLr fyfid] izk0 Lok0 dsUnz] dkspk/kkeu fd’kuxat dks Hkstk tk;sA funs’kd izeq[k LokLF; lsok,a fcgkj iVukA Learned counsel for the petitioner has submitted that the aforesaid finding of forgery in the appointment of petitioner after almost 20 years of continuation in service is bad both on fact and in law, inasmuch as, the petitioner was given no reasonable opportunity to establish Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 5 that his appointment letter issued by the Superintendent of T.B Hospital, Koilwar, Bhojpur was not forged but genuine and authentic order. Learned counsel for the State on the other hand, has submitted that the appointment of the petitioner from T.B Hospital Koilwar to the Establishment of Civil Surgeon, Purnea, has to be held that the writ petition is wholly misconceived. As noted above, there is specific finding of the Authority that the appointment of the petitioner on the post of clerk in the T.B Hospital, Koilwar, Bhojpur on the basis of the alleged appointment letter dated 30.10.1986 has been found to be forged appointment, inasmuch as, from the records of the Office of Superintendent of T.B Hospital, Koilwar, Bhojpur it was discovered that no such letter was ever issued to the petitioner. In the considered opinion of this Court, when the petitioner had failed to produce his original appointment letter before the competent authority, he cannot be allowed to assail the reason for termination of his service as non est. Thus, he can also not complain violation of Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 6 principle of natural justice, inasmuch as, he himself did not avail the opportunity given to him. Moreover, the plea of long continuation in service is a plea of equity but, forgery, being a fraud played upon the authority, would vitiate everything and such detection of fraud at any stage and taking action thereafter cannot be faulted either in fact or in law. Admittedly the ground on which such termination of service of the petitioner has been made is only the forged nature 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. --------- Unless the appellant can lay a claim to the appointment he cannot claim the constitutional guarantee Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 7 311 Article Committee 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 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. 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 appointment by playing a fraud, he cannot 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. obtained allowed

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 Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 8 forgery 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 holding without 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, 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 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 Primary Mishra 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 Director, rights v. Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 9 appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13) letter “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 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. The appellant obtained the appointment against 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 appointment. consequential The right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a a a Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 10 certificate 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 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 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 individual acquired a status by practicing fraud.” manner. (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 despite opportunity given to him had not produced even his original appointment letter, this Court, in normal course, ought to have dismissed this writ application by drawing adverse inference against Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 11 them. Learned counsel petitioner, however, has submitted that the petitioner 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 the letter of appointment is forged. 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 between the parties, would give the petitioner a further but last opportunity to produce his 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 is forged and/or his appointment letter was issued after undergoing prescribed procedure by the 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. Patna High Court CWJC No.15495 of 2010 (4) dt.24-04-2012 12 Uma Devi(3) & Ors. reported in 2006(4)SCC 1 and in the case of State of Bihar Vs. Upendra Narayan Singh & Ors. reported in 2009(5)SCC 65. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)