Reena Devi v. State Of U.P. And Others

Surya Prakash Kesarwani, J.:— Heard Sri. Vinod Shankar Tripathi, learned counsel for the petitioner and Sri. Sanjay Kumar Singh, learned counsel for the respondent nos. 3 and 4.

2. Cancellation of appointment of the Petitioner Assistant Teacher for appointment obtained by her on the basis of forged and fabricated T.E.T. marksheet/certificate, is the controversy involved in the present writ petition.

3. On 02.12.2019, this Court passed the following order:—

“Case called out.

Sri. Anil Kumar Pandey, learned standing counsel has filed a counter affidavit dated 2.12.2019 on behalf of the respondent no. 5 which is taken on record.

In paragraph 4 of the counter affidavit, the respondent no. 5 has stated as under:—

“That the petitioner has appeared in TET Examination 2014 with Roll No. 0510201832 and the same was produced before the counseling members and got an appointment as Assistant Teacher in the aforesaid college thereafter after examining by the District Basic Education Officer, Kannauj to the aforesaid certificate of the petitioner on the uploaded website of result of U.P.T.E.T. Examination 2014. The aforesaid certificate submitted by the petitioner was found forged as such vide letter dated 23.10.2019 the services of the petitioner - Smt. Reena Devi as Assistant Teacher has been terminated under the Government order issued by the Government. It is further stated that after scrutinizing the Roll No. 0510201832 in the available records, on the aforesaid Roll number the name was shown as Km. Anita daughter of Sri. Krishna is mentioned and Km. Anita has not found qualifying marks which is shown in OBC category and she has also obtained only 82 marks out of 150 as such the marks is very low and which is shown in the list which was uploaded on the website of T.E.T. Examination 2014, as unsuccess. The photo copy of the uploaded the select list of U.P.T.E.T. Examination 2014 is being filed as Annexure No. C.A.-1 to this affidavit. As such on the basis of the aforesaid facts no certificate has been issued under under the provisions of Government Order issued by the Government in this regard. Hence the present writ petition filed by the petitioner is not maintainable.”

Two days time is granted to the learned counsel for the petitioner to file a rejoinder affidavit.

Since none has appeared on behalf of the petitioner even in the revised call, therefore, learned standing counsel is directed to communicate this order in writing to the learned counsel for the petitioner within 24 hours.

Put up this matter on 5.12.2019 in the additional cause list.”

4. Today, learned counsel for the petitioner states that he tried to contact the petitioner but the petitioner is not responding and it appears that she does not wish to file a rejoinder affidavit.

5. In view of the aforesaid, the contents of paragraph 4 of the counter affidavit as reproduced in the aforequoted order dated 02.12.2019, is deemed to be correct.

6. Undisputedly, in terms of the provisions of the Uttar Pradesh Basic Education (Teachers) Service Rules 1981, N.C.T.E. Act, N.C.T.E. Regulations, 2001, the Right of Children to Free and Compulsory Education Act 2009 and the Rules framed thereunder and the Notification issued under Section 23(1) of the N.C.T.E. Act, one of the essential qualifications for appointment of Assistant Teacher is that the candidate must have passed Teacher Eligibility Test (TET). Thus, TET is the eligibility for appointment on the post of Assistant Teacher. The petitioner secured appointment on the post of Assistant Teacher vide appointment order dated 03.09.2016 issued by the District Basic Education Officer, Firozabad. She joined in Junior Basic School Ahirua Rajarampur, Vikas Khand Chibramau, District-Kannauj on 24.09.2016. On verification her TET marksheet/certificate was found to be forged by the District Basic Education Officer who consequently passed the impugned order dated 23.10.2019 cancelling the appointment order of the petitioner.

7. In view of the aforesaid, the appointment obtained by the petitioner on the basis of a forged and fabricated TET marksheet/certificate has been rightly cancelled by the respondent no. 4. It is settled law that fraud and justice never dwell together. Cancellation of appointment of the petitioner on account of forged and fabricated TET marksheet/certificate is wholly justified under the facts and circumstances of the case and requires no interference by this Court.

8. Hon'ble Supreme Court in Union of India v. Raghuwar Pal Singh, (2018) 15 SCC 463 had examined a case, where the appointment letter was issued without approval of the competent authority. The question arose whether such appointment letter would be a case of nullity or a mere irregularity? In case of nullity, affording opportunity to the incumbent would be a mere formality and non-grant of opportunity may not vitiate the final decision of termination of his services. Hon'ble Supreme Court held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law.

9. In Nidhi Kaim v. State of Madhya Pradesh, (2017) 4 SCC 1, a three Judge Bench was dealing with admission of students to MBBS Course on the basis of illegal and unfair admission process. The Court held as under:

“92. …Having given our thoughtful consideration to the above submission, we are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of “the unfair”. It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in the manner suggested on behalf of the appellants would surely depict the Court's support in favour of the sacrilegious. It would also compromise the integrity of the academic community. We are of the view that in the name of doing complete justice it is not possible for this Court to support the vitiated actions of the appellants through which they gained admission to the MBBS course.

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94. …Even in situations where a juvenile indulges in crime, he has to face trial, and is subjected to the postulated statutory consequences. Law, has consequences. And the consequences of law brook no exception. The appellants in this case, irrespective of their age, were conscious of the regular process of admission. They breached the same by devious means. They must therefore, suffer the consequences of their actions. It is not the first time that admissions obtained by deceitful means would be cancelled. This Court has consistently annulled academic gains arising out of wrongful admissions. Acceptance of the prayer made by the appellants on the parameter suggested by them would result in overlooking the large number of judgments on the point. Adoption of a different course, for the appellants, would trivialise the declared legal position. Reference in this behalf may be made to the judgments relied upon by the learned counsel representing Vyapam.

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108. …In the facts and circumstances of the case in hand, it would not be proper to legitimise the admission of the appellants to the MBBS course in exercise of the jurisdiction vested in this Court under Article 142 of the Constitution. We, therefore, hereby decline the above prayer made on behalf of the appellants.”

43) In another three Judge Bench judgment in Chairman and Managing Director, Food Corporation of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670, the Court was examining the consequences of false caste certificate produced to seek appointment. The Court held as under:

“69. For these reasons, we hold and declare that:

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69.3. The decisions of this Court in R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 : 2004 SCC (L&S) 350] and in Union Of India v. Dattatray, (2008) 4 SCC 612 : (2008) 2 SCC (L&S) 6, which were rendered by Benches of three Judges laid down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution—on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.

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69.7. Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;”

(Emphasis supplied by me)

10. A Full Bench of the Hon'ble Patna High Court in the case of Rita Mishra v. Director, Primary Education, Bihar, AIR 1988 Patna 26 has dealt with appointment in the education department claiming salary although the letter of appointment was forged, fraudulent or illegal. The Full Bench declined to grant such claim and held that “the right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is a right consequential to a valid appointment to such post. Therefore, where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. 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 law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.”

11. The aforesaid judgment of Full Bench of the Hon'ble Patna High Court in the case of Rita Mishra (supra) was approved by a three Judges Bench of Hon'ble Supreme Court in R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105.

12. Hon'ble Supreme Court by three Judge Bench in the State of Bihar v. Kirti Narayan Prasad, decided on 30 November 2018, 2019 (1) ESC 3 considered the matter of appointments made on the basis of forged appointment letter and held as under:

“17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio.We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisation of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged byArticle 311of the Constitution or under any other disciplinary rules shall not arise.”

13. The aforesaid judgment in the case of the State of Bihar v. Kirti Narayan Prasad has been followed by Hon'ble Supreme Court in the State of Bihar v. Devendra Sharma, 2019 AIR 1158 (S.C.). In the case of Devendra Sharma (supra), Hon'ble Supreme Court also considered fraudulently obtained appointments and held as under:—

“19) The cases in the second category i.e. appointment on the basis of forged nursing registration stands on the same footing as category one though it is argued by the appellants in three appeals that nursing registration certificate is not forged but the matriculation certificate on the basis of which the candidates have undergone Auxiliary Nurse Mid-Wife, (for short ‘ANM’) course was found to be forged. The State Committee has found that ANM certificate is a forged certificate. Even if, the certificate of ANM is not forged as argued before this Court but the Matriculation Certificate is said to be forged, the fact is that the educational qualification, a pre-condition for undergoing nursing course, was found to be forged. Therefore, the forgery is in the basic eligibility condition to undertake ANM course, which will vitiate the process of appointment. For the reasons recorded in Kirti Narayan Prasad, Civil Appeal Nos. 7906 of 2019, 7919 of 2019 and 7920 of 2019 are dismissed.

20) Coming to third category of cases, Mr. Mukherjee, learned counsel for the State referred to the separate Government Circulars dated December 3, 1980 in respect of Class III and Class IV category posts. It is contended that appointments on such circulars have been found to be illegal by this Court in Ashwani Kumar, which view was in fact, approved later by Constitution Bench judgment in Uma Devi, wherein this Court held as under:

“33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.

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53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071], R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment…………….”

(Emphasis Supplied)

21) In Uma Devi, the argument that the employees have legitimate expectations was negated when this Court held as under:

“46. ………….. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn… There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902: (1990) 1 SCR 544]. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court….

47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees….”

14. Thus, where a person secures appointment on the basis of a forged marksheet or certificate or appointment letter and on that basis he or she has been inducted in Government service then he becomes beneficiary of illegal and fraudulent appointment. Such an appointment is illegal and void ab initio. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution of India or under any disciplinary rules including the Uttar Pradesh Basic Education Staff Rules, 1973 or the Uttar Pradesh Government Servant (Disciplin and Appeal) Rules 1999, shall not arise.

15. The forgery committed by the petitioner, for obtaining public employment on the basis of forged TET Examination marksheet/certificate; is in the basic eligibility conditions for appointment on the post of Assistant Teacher. Therefore, it vitiates the process of her appointment. Thus, the appointment of the petitioner is void ab initio and she can not be said to be a government servant. Therefore, her appointment has been lawfully cancelled by the impugned order.

16. For all the reasons aforestated, I do not find any error of law in the impugned order dated 23.10.2019, which has been passed by the respondent no. 4 after affording opportunity of hearing to the petitioner. Therefore, the writ petition is dismissed.