VIDYA BHUSHAN PRASAD vs STATE OF JHARKHAND

Pramath Patnaik, J

In the captioned writ application, the petitioner has inter alia prayed for direction upon the respondents calling upon them to certify as to why the

petitioner is not being allowed to join his services though there is no order of removal or termination and further for direction upon the respondents to

forthwith pay subsistence allowance for the period 09.02.1999 to 14.06.2002 while the petitioner was in custody and also to make payment of all other

arrears of salary including salary for the period 15.06.2002 onwards during which the respondents prevented the petitioner in discharging his duties on

account of non-acceptance of his joining report.

The facts, as disclosed in the writ application, in brief, is that petitioner was appointed as an Assistant in Government Girls High School, Dhanbad,

where he worked and received his salary till 30.09.1995. It has been submitted that a First Information Report was lodged against the petitioner being

Dhanbad (Bank More) P.S. Case No. 457 of 1996, in which, the petitioner was taken in judicial custody on 09.02.1999 and released on bail vide order

dated 17.05.2002 read with order dated 11.06.2002. It has further been averred that after being released on bail the petitioner submitted his joining

report before the Principal of the school-respondent no. 5 but he was not allowed to join his duties in spite of the fact that there was no order of

suspension or removal.

Being aggrieved, the petitioner has approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of

India for redressal of his grievances.

Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Binod Singh, learned S.C. (L &C) for the respondents.

Learned counsel for the petitioner submitted that the petitioner, being the government employee, is very much entitled to be paid the subsistence

allowance for the period he remained in jail custody in terms of Rule 96 of the Bihar Service Code and after that when he was released from custody

on 15.06.2002 he is entitled to get full salary as it is the respondent no. 5 who prevented him to join his duties and did not accept his joining report.

Learned counsel for the petitioner further submitted that till date there is no order of suspension of removal against the petitioner; as such he is said to

be still continuing in service. Learned counsel for the petitioner further submitted that during pendency of the writ application, the final judgment has

been delivered in the criminal case instituted against the petitioner, being Cr. Appeal No. 01 of 2012 vide order dated 15th July, 2017 wherein he has

been acquitted of the charges; hence, otherwise also nothing remains against the petitioner. It has been submitted that petitioner was duly appointed on

the post of Clerk in Government Girls High School, Dhanbad vide memo dated 3504-05 dated 24.10.1989, as per Annexure 1 And 2 of reply to

counter affidavit dated 31.07.2007. Learned counsel for the petitioner further submitted that even as per the information given under R.T.I. Act, the

petitioner was paid salary for the period 05.01.1990 to February, 1995. Learned counsel for the petitioner further submitted that in the counter affidavit

though the respondents have made a new case that his appointment itself is fake but as a matter of fact, the appointment letter and joining report of

the petitioner have been misplaced by the respondents and to hide their own fault, respondents are doubting the appointment of the petitioner.

As against this, learned counsel for the respondents submitted that after release on bail, the petitioner submitted his joining before respondent no. 5,

which was forwarded to the Regional Deputy Director of Education, North Chotanagpur Division, Hazaribagh for approval vide letter dated

27.06.2002, on which, the RDDE, Hazaribagh informed that no appointment letter was issued in the name of petitioner, therefore, his joining cannot be

accepted. It has further been submitted that petitioner's fake and false appointment came to knowledge of authority, when he was caught red handed

in relation to misappropriation of government fund. So far withdrawing of salary for the said period is concerned, it has been submitted that taking

undue advantage of the innocence of the school authority, the petitioner withdrew salary for the said period. Learned counsel for the respondents

further submitted that the claim of the petitioner that he was appointed on the post of Clerk in Government Girls High School, Dhanbad vide memo

dated 3504-05 dated 24.10.1989 has no legd to stand as the said document is a forged document and was never issued by the concerned department.

Hence, when the initial appointment of the petitioner itself is fraught with fake certificate, no relief can be given to the petitioner.

From perusal of record, it appears that alleging commission of offence under Section 406, 409 and 420 of the Indian Penal Code, Dhanbad (Bank

More) Sadar P.S. Case No. 457 of 1996, corresponding to G.R. Case No. 1903 of 2006, a criminal case was lodged against the petitioner, in which,

the petitioner remained in judicial custody till 15.06.2002. After being released on bail, he submitted his joining report before Principal, Government

Girls High School, Dhanbad, who, in turn, forwarded the same before respondent no. 5-Regional Deputy Director of Education, North Chotanagpur

Division, Hazaribagh. Where only, it came to surface that the appointment of the petitioner itself is fake and fabricated. On perusal of record, it further

appears that memo no. 3504-05 dated 24.10.1989, which the petitioner claims to be his appointment letter, is said to be a forged document and has

never been issued by the concerned department.

From perusal of record, it further appears that though during pendency of the writ application, the petitioner has been acquitted of the charges in Cr.

Appeal No. 01 of 2012 vide order dated 15th July, 2017 but that will be no help to the petitioner as the initial appointment of the petitioner has been

declared as forged and hence, there is no necessity of issuance of any order of suspension or order of removal or termination.

It is settled principles of law that fraud vitiates everything. View of this Court gets fortified by the decision of the Hon'ble Apex Court in the case of

Devendra Kumar Vs. State of Uttaranchal & Others as reported in (2013) 9 SCC 363 has at paragraph nos. 13 as under:-

“13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent

authority, such an order cannot be sustained in the eye of the law. “Fraud avoids all judicial acts, ecclesiastical or temporal.†(Vide S.P.

Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that: (QB p. 712).

“No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.â€​ Â

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I am of considered view that the writ application does not

warrant any interference by this Court and the same is accordingly dismissed, being devoid of any merit. Â