Binda Thakur vs The State of Bihar and Others

Mihir Kumar Jha, J.—No one appears for the petitioner. Counsel for the State is present.

This writ application assailing the order of termination of service of the petitioner dated 20.6.2003, issued by the Civil Assistant Surgeon-cum-Chief Medical Officer, Sitamarhi, reading as follows: --

has been filed almost after a gap of five and a half years on 22.1.2009, and is clearly hit by the principles of delay and laches specially when there is no explanation whatsoever for the aforesaid delay.

The prayer for quashing the investigation report dated 4.8.2008 is also wholly uncalled for, inasmuch as, such a report by itself does not amount to a final order.

The respondents by filing the counter affidavit have explained that in terms of the direction given in judgment of the Division Bench of this Court in the case of The State of Bihar and Others Vs. Purendra Sulan Kit and Others etc. etc., , a Five-Men Committee has examined the individual cases of all the persons including that of the petitioner and in his case, the Committee had come to a finding that since his appointment was forged, he could not be regularized in service in view of the judgment of Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, . In this context, learned counsel for the State has pointed out to the remarks given in serial no. 137 of Annexure-B containing the gist of the findings recorded by the Inquiry Committee.

Considering this aspect that there is a specific finding of the appointment of the petitioner being forged, this Court would find it difficult to now look into any other aspect in a writ petition, inasmuch as, such finding is only capable of being gone into in a properly constituted civil suit where the allegation of forgery can be examined. In this regard, it has also to be taken into account that when the petitioner was asked by the Appointing Authority to produce his original appointment letter, he had failed to produce it and had himself taken a plea that his original appointment letter was destroyed on account of its being submerged in flood water.

As a matter of fact, from the quoted portion of the impugned order, it would be clear that not only the petitioner was given an opportunity to show-cause but the Civil Surgeon, Sitamarhi had also considered the same wherein it was recorded that the order of appointment so claimed to have been issued to the petitioner was forged because it was a manufactured copy wherein it was sent to funs''kd] eq[: LokLF; Isok.] a post which was never in existence and further that while the alleged appointment letter of the petitioner had contained Memo No. 2811 dated 31.12.1980 whereas the appointment letter of one Laxman Mahto issued by the same office Civil Surgeon, Bettiah was bearing Memo No. 2227 dated 30.12.1980 was not an only impossibility but an absurd defence of the petitioner.

This Court, therefore, would find that the reasons given by the Civil Surgeon, Sitamarhi in the impugned order holding the appointment of the petitioner to be fake and forged (iQthZ, oa tkyh) does not suffer from any error.

The appointment of a person being based on a forged/fake appointment letter would clothe him with no right to continue in service as was held by the Full Bench of this Court in the case of Rita Mishra vs. State of Bihar* & Ors. reported in 1987 BBCJ 701 : 1987 PLJR 1090 which has been also approved by the Apex Court in the case of R. Vishwanatha Pillai Vs. State of Kerala and Others, wherein it was held that: --

Unless the appellant can lay a claim to the post on the basis of his 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 of India. Finding recorded by the Scrutiny Committee that the 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 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 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.

In Ishwar Dayal Sah vs. 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 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 without holding 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, forgery or crime or 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 rights under 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.

The point was again examined by a Full Bench of the Patna High Court in Rita Mishra vs. 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, fraudulent or illegal. The Full Bench held: -- (AIR p. 32, para 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.

We agree with the view taken by the Patna High Court in the aforesaid cases.

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 by an order of 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 post meant for 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 from a valid and legal appointment. The consequential right of pension and 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 who entered the service by producing a false caste certificate and 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 manner. 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 case where an individual acquired a status by practicing fraud.

(underlining for emphasis)

In that view of the matter, when the original evidence relating to the appointment of the petitioner is itself shrouded in mystery and the document in question i.e. his appointment letter is said to have never been issued by the Competent Authority, any findings with regard to validity and legality of his appointment, being allegedly forged by the petitioner can only be adjudicated in a properly constituted civil suit. That being so, this application is wholly misconceived and is, accordingly, dismissed with an observation that the dismissal of this writ petition will however not prejudice the petitioner in case he would file a civil suit before the court of appropriate jurisdiction seeking a declaration that his appointment letter dated 31.12.1980 is valid and genuine and not forged.