Heard Mr. M.N. Rai, learned counsel for petitioner as well as Mr. Abhinav Narain Trivedi, learned Additional Chief Standing Counsel and perused the record.
The writ petition has been filed challenging the order dated 3.10.2012 whereby regular appointment on a class-IV post vide letter dated 15.10.2011 has been cancelled on the ground that the facts given in the appointment letter have been found to be incorrect, the appointment has been given by fraud.
Learned counsel for petitioner submitted that impugned order cancelling the appointment of the petitioner has been passed without holding any enquiry and without providing opportunity to petitioner. Even if petitioner is treated as temporary employee he is entitled to get one month's notice prior to termination of service. Petitioner was given regular appointment vide order dated 15.10.2011, as such, service of the petitioner cannot be dispensed with without holding departmental enquiry.
It is further submitted that in the fact finding enquiry the Chief Medical Officer, Lucknow, who had issued the alleged appointment letter dated 15.10.2011, as well as the Senior Law Officer were not called to appear and they were not examined although it was necessary to establish that appointment has been given by way of fraud.
It is further submitted that under similar facts and circumstances several persons have been given regular appointment on class-IV post including one Daddan Singh and their appointments have not been cancelled and they were allowed to continue. It is also submitted by learned counsel for petitioner that in case the appointment of petitioner vide letter dated 15.10.2011 was based on fraud then action should have been taken against the concerning authorities including Chief Medical Officer, Lucknow who had issued the said order.
Learned counsel for petitioner submits that even if any fraud in appointment has been played petitioner in no circumstance was responsible for committing any such fraud, as such he is entitled to get compensation in case the regular appointment order has been cancelled subsequently.
In support of his submissions learned counsel for petitioner has relied on the following judgements.
(1) 2003(4) Supreme Court Cases 712 [High Court of Gujarat and another Vs. Gujarat Kishan Mazdoor Panchayat and others] para- 52, 53, 54, & 55.
(2) 1996(14) LCD 376 [Rajendra Singh Yadav Vs. Executive Engineer, Nagar Palika, Firozabad and others] para- 20 & 28 (3) AIR 2009 Supreme Court 1100 [Rajiv Arora Vs. Union of India & others], para-14.
(4) AIR 2009 Supreme Court 889 [State of Bihar & others Vs. Krishna Paswan and another].
Mr. Abhinav Narain Trivedi, learned Additional Chief Standing Counsel on the other hand on the basis of instructions submitted that petitioner was initially engaged on daily wages during the period November, 1989 to November, 2000 and July, 2006 to November, 2006. The petitioner had preferred Writ Petition No. 6655 (SS) of 2008 (Ashish Kumar Vs. State of U.P. and others) seeking regular appointment. The Court vide order dated 21.10.2008 had finally disposed of the writ petition with direction to Principal Secretary, Medical & Health to decide the case of petitioner for regularisation in accordance with law within a period of two months from the date a certified copy of the order along with representation is produced before him.
It was in compliance of the Court's order that representation of petitioner was considered and rejected vide order dated 5.1.2010 passed by Principal Secretary, Medical & Health. The said order was also filed by the opposite parties by way of affidavit in contempt proceedings (Contempt Petition No. 2683 (C) of 2009). The petitioner after having knowledge of the said order had challenged the validity of the order dated 5.1.2010 by means of Writ Petition No. 8988 (SS) of 2010 (as per learned counsel for petitioner the said writ petition was dismissed as not pressed).
It is further submitted that father of petitioner is a regular class-IV employee in the Medical & Health Department. He in connivance with certain other persons of the department got the matter referred to the D.G.C. (Civil) for opinion. The opinion dated 2.7.2010 was given by D.G.C. (a copy of which is part of Annexure-4 to the writ petition). As per the said opinion the D.G.C. had opined that since the representation of the petitioner has not been decided it would be desirable that the same shall be decided as earliest without any further delay and since the work of petitioner has been throughout satisfactory and service of certain similarly situated employees including juniors have been regularised, as such, there is no legal impediment in regularising the service of petitioner as class-IV employee.
It is further submitted by learned Additional Chief Standing Counsel that by fraud, on the basis of said opinion, the alleged letter dated 15.9.2010 of Senior Law Officer of the department was said to have been obtained although there was no such letter and the Chief Medical Officer, Lucknow vide office order dated 15.10.2011 had issued the appointment letter of the petitioner appointing him on a Class-IV post in the regular establishment.
Submission is that from perusal of the opinion of the D.G.C. (Civil) it is very much evident that order dated 5.1.2010 rejecting the claim of petitioner for regular appointment was not brought to his knowledge. There was no occasion for obtaining opinion of D.G.C. specially when claim of petitioner for regular appointment in compliance of the Court's order dated 21.10.2008 stood decided.
All these facts came to the knowledge when one Rakesh Kumar Pal had preferred representation dated 8.5.2012 which was addressed to the Chief Medical Officer, Lucknow along with letter of the State Government dated 14.6.2012. It was thereafter, records were summoned and was found that concerning file of petitioner is not available. Two member enquiry committee was constituted to hold fact finding enquiry which gave its report dated 2.7.2012 to the effect that a parallel file was moved with respect to appointment of petitioner and a first information report is required to be lodged with respect to misplacement of original records. In this regard a first information report was also lodged on 4.7.2012.
It is further submitted that authenticity of the alleged letter dated 15.9.2010 which was said to have been issued by the Senior Law Officer was also enquired by holding fact finding enquiry in which this fact has come to light that no such letter was ever issued by the office of Senior Law Officer. The Law Officer vide letter dated 28.6.2012, who was also holding charge of Senior Law Officer, has informed that the alleged letter dated 15.9.2010 has not been issued by his office and he was not required to give legal opinion in this regard.
It was thereafter that Three Member Enquiry Committee was constituted to enquire into the whole matter in order to ascertain the circumstances under which the alleged appointment letter dated 15.10.2011 was issued. Three Member Enquiry Committee enquired into the matter and come to conclusion that there was no direction of the High Court for giving regular appointment to the petitioner. The Senior Law Officer has denied that he has given any such opinion as alleged in the letter dated 15.9.2010, as such, the basis of which appointment of the petitioner was given is based on wrong facts, therefore, appointment of the petitioner is required to be cancelled. Considering the report of the enquiry committee the competent authority i.e. Chief Medical Officer, Lucknow has cancelled the appointment letter dated 15.10.2011.
It is further submitted that petitioner was associated in two enquiries held in this regard and was also called upon to give his statement. It is contended by learned Additional Chief Standing Counsel that in case appointment is based on fraud no detailed enquiry is required to be held as it is the consistent view of Apex Court as well as this Court that such appointment based on fraud is no appointment in the eyes of law. It is submitted that no such detailed enquiry is required to be held. The petitioner was given ample opportunity in the fact finding enquiry and no further opportunity was required to be given in this regard.
In support of his submissions, learned Additional Chief Standing Counsel has relied on the following decisions:
[1] R. Vishwanatha Pillai Vs. State of Kerala and others; 2004(2) Supreme Court Cases 105, para 15.
[2] Secretary, Andhara Pradesh Social Welfare Residential Educational Institutions Vs. Pindiga Sridhar and others; 2007(13) Supreme Court Cases 252, para 7.
[3] State of Chhattisgarh and others Vs. Dhirjo Kumar Sengar; 2009(13) Supreme Court Cases 600, para 17, 19 & 21.
It is further submitted that considering the aforesaid judgements this Court vide judgment and order dated 18.9.2012 passed in Writ Petition No. 4676 (SS) of 2012 (Vinay Kumar Singh Vs. State of U.P. and others) has also dismissed the writ petition.
I have considered the submissions made by the parties' Counsel.
The order impugned indicates that petitioner was offered regular appointment vide office order dated 15.10.2011 on a class-IV post which has been cancelled as it is based on incorrect facts. The office order dated 15.10.2011 is annexed as Annexure-2 to the writ petition. The perusal of the same indicates that petitioner was given regular appointment in compliance of Court's order dated 21.10.2008 passed in Writ Petition No. 6655 (SS) of 2008 (wrongly mentioned as W.P. No. 6555 (SS) of 2008) as well as on the basis of letter dated 15.9.2010 of Senior Law Officer, Medical & Health Services, U.P. The order dated 21.10.2008 passed in Writ Petition No. 6655 (SS) of 2008 is also on record which indicates that writ petition was disposed of with direction to opposite party no. 1-Principal Secretary, Medical & Health Services, U.P. to consider the case of petitioner for regularisation in accordance with law within two months from the date a certified copy of the order is produced before him along with representation.
It is to be noted that there was no such direction of this Court to give regular appointment to the petitioner and it was only observed by the Court that Principal Secretary, Medical & Health Services, U.P. shall consider the case of petitioner for regularisation in accordance with law.
It appears that Court's order was not complied as such petitioner had filed Contempt Petition No. 2683 of 2009. During the pendency of contempt petition the claim of petitioner was considered and decided by opposite party no. 1-Principal Secretary, Medical & Health Services, U.P. vide order dated 5.1.2010. The opposite party no. 1 while deciding the claim of petitioner had come to conclusion that he is not entitled to get regular appointment and as such vide order dated 5.1.2010 had rejected the claim of petitioner. The said order was also filed along with an affidavit in the contempt proceedings in January, 2010. The petitioner after coming to now had challenged the validity of the order dated 5.1.2010 by filing Writ Petition No. 8988 (SS) of 2010, which was subsequently got dismissed as not pressed, as such, it is well established that petitioner was in full knowledge of the order dated 5.1.2010.
It is surprising to note that vide order dated 23.6.2010, D.G.C. (Civil) was requested to give his legal opinion on the order dated 21.10.2008 passed in Writ Petition No. 6655 (SS) of 2008. The D.G.C. (Civil) vide opinion dated 2.7.2010 had opined that representation of the petitioner shall be considered in compliance of Court's order and had also given opinion that there is no legal impediment for regularisation of service of petitioner as Class-IV employee as certain persons junior to him have been regularised.
I find force in the submissions made by learned Additional Chief Standing Counsel that parallel file in connivance with certain employees with respect to petitioner was prepared in the department and on that the opinion was sought from D.G.C. (Civil). It is to be noted that in two enquiries held by the department it has come to light that original records relating to the petitioner were not traceable and the Law Officer vide letter dated 28.6.2012 has informed the opposite party no. 3 that no such alleged letter dated 15.9.2010 was issued from his office and he was not required to give his legal opinion.
It is also to be noted that a first information report at Police Station Wazirganj has also been lodged on 4.7.2012 with regard to misplacement of original records relating to appointment of petitioner. The fact finding enquiry report dated 6.9.2012 submitted by Three Member Enquiry Committee as well as the enquiry report dated 2.7.2012 which are on record which indicate that enquiry committees had come to conclusion that the basis for giving regular appointment to the petitioner was wrong and the appointment of the petitioner is required to be cancelled. The enquiry committee had also come to conclusion that a first information report should be lodged in this regard.
Considering the facts and circumstances of the case I hereby come to conclusion that office order/letter dated 15.9.2010 giving regular appointment to the petitioner was based on incorrect facts as there was no direction from the Court to give regular appointment to the petitioner, moreover, the claim of petitioner for regular appointment was rejected by opposite party no. 1 vide order dated 5.1.2010 and as such the appointment letter dated 15.10.2011 was wrongly issued.
Since the very basis of the appointment was found to be incorrect and based on certain letter which were never issued by the concerning authority, as such, it can be concluded that the appointment letter dated 15.10.2011 was manipulated by committing fraud by certain persons who wanted to help petitioner.
It is a settled legal position that in case the appointment is based on any fraud no detailed enquiry is required to be held and in such cases there is no question of violation of principles of natural justice.
So far as the reliance on the judgements of the Apex Court as well as of this Court which has been made by the learned counsel for parties, the legal position which come out is as under:
In the case of High Court of Gujarat and another Vs. Gujarat Kishan Mazdoor Panchayat and others [2003(4) Supreme Court Cases 712], the learned counsel for petitioner has placed reliance on paragraphs-52, 53, 54 and 55 which on reproduction are as under:
"52. Both under the existing rules as also the Draft Rules, mode and manner of appointment have been laid down. Even in absence of the Draft Rules in terms of Rule 34 of the Recruitment Rules for the President of Industrial Court appointment can be made by nomination. Thus, appointment to the post of President could be made by way of nomination also subject to the nominees holding requisite qualification laid down therefor.
53. It is further trite that non-mentioning or wrong mentioning of a provision of law would not invalidate an order if a source therefor can be found out either under general law or a statute law.
54. It is further well settled that when there are two sources of power, even if one is not applicable,the order will not become invalid if the power of the statutory authority can be traced to another source.
55. For the reasons aforementioned, taking any view of the matter it cannot be said that the appointment of Shri N.A. Acharya was illegal or invalid. The impugned judgment, therefore, cannot be sustained which is therefore, set aside. The appeal is allowed."
It has been held by the Apex Court that non-mentioning or wrong mentioning of provision of law would not invalidate an order if a source therefor can be found out either under general law or a statute law. In the present case, even if the earlier writ petition filed by the petitioner is treated to be Writ Petition No. 6655 (SS) of 2008 and the order passed therein is dated 21.10.2008, position remains the same as there was no positive direction of the Court to give regular appointment to the petitioner, as such, the judgment cited by learned counsel for petitioner is of no help to him.
So far as judgment in the case of Rajendra Singh Yadav Vs. Executive Officer, Nagar Palika, Ferozabad and others [1996(14) LCD 376] is concerned the learned counsel for petitioner has relied on paragraph-20 and 28. On reproduction paragraphs-20 and 28 reads as under:
" 20. The act of cancellation involved civil consequences and it deprives the petitioners from their livelihood. They were not party to the irregular appointments and assuming if they are party it does not mean that they should not be given an opportunity to be heard, even a murderer, thief before his conviction is given right to be heard. Right to be heard is a rule of law enshrined in Article 14 of the Indian Constitution and which is basic feature of Indian Constitution. I would like to quote now regarding right to fair hearing from Administrative Law, by Wade, Vth Edition, page 471.
Scope and limits of the Principle:
Ridge v. Baldwin reinstated the right to a fair hearing as 'a rule of universal application' in the case of administrative acts or decisions affecting rights; and, in Lord Loreburn's oft-repeated words, the duty to afford it is 'a duty lying upon every one who decides anything. The decision gave the impetus to a surge of litigation over natural justice, in which the courts have been able to consider many of its facets and to build up something like a canon of fair administrative procedure. For the most part the numerous decisions have served only to show the correctness of the above-quoted words, sweeping though they are"
Again on page 442 it is observed that:
"As the authorities will show, the courts took their stand several centuries ago on the broad principle that bodies entrusted with legal power could not validly exercise it without first hearing the person who was going to suffer. This principle was applied very widely to administrative as well as to judicial acts, and to the acts of individual ministers and officials as well as to theacts of collective bodies such as justices and committees. The hypothesis on which the courts built up their jurisdiction was that the duty to give every victim a fair hearing was just as such a canon of good administration as of good legal procedure. Even where an order or determination is unchallengeable as regards its substance, the court can at least control the preliminary procedure so as to require fair consideration of both sides of the case. Nothing is more likely to conduce to good administration. Again on page 447 it is observed that:
"The character of the authority was not what mattered: what mattered was the character of the power exercised. If it adversely affected legal rights or interests, it must be exercised fairly."
Again on page 501 of the same book it is observed that:
"But since the law lacks any mechanism for restoring his employment specifically, it cannot supply an effective remedy. In the case of offices, membership, status, and so forth it is able to do so; and it would seem right therefore to protect the officer or member against wrongful deprivation of every kind and to accord him the procedural rights without which deprivation is not fair and lawful. Whether he is removable for cause at pleasure should in principle make no difference."
28. I, therefore, for the reasons recorded that principles of natural justice have not been observed relying upon Supreme Court dictum and other authorities quoted, hold that orders of termination of services are bad in law and the impugned orders are quashed, as the fair procedure has not been observed. The petitions are allowed. No order as to costs."
In that case the appointment was cancelled on the ground that it has been issued without legal authority. The Court had come to conclusion that act of cancellation involved civil consequences and it deprives the petitioner from his livelihood, as such, opportunity was required to be given before cancellation. In the present case, the appointment of petitioner has been issued on totally wrong facts and based on certain document which was never in existence. Moreover, petitioner was associated in the fact finding enquiry, as such, I am of the view that the law laid down by the Court is not applicable to the facts and circumstances of the present case.
So far as the decision of he Apex Court in the case of Rajiv Arora Vs. Union of India and others [AIR 2009 Supreme Court 1100] is concerned, petitioner has relied on para-14. On reproduction paragraph-14 of the judgment reads as under:
"14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basis principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review. Before a court martial proceeding is convened, legal requirements therefor must be satisfied. Satisfaction of the officer concerned must be premised on a finding that evidence justified a trial on those charges. Such a satisfaction cannot be arrived at without any evidence. If an order is passed without any evidence, the same must be held to be perverse."
I n that case the Apex Court has come to conclusion that certain witnesses were required to be examined in the departmental proceedings. No explanation has been offered as to why the concerned witnesses could not be examined. The High Court had wrongly come to conclusion that since no prejudice was caused by such non-examination, as such, there is no illegality. The Apex Court has held that if the basic principle of law has not been complied with or there has been gross violation of principles of natural justice, the High Court should have exercised its jurisdiction of judicial review. In the present case there is no dispute with regard to issuance of appointment letter to the petitioner vide office order dated 15.10.2011. There is also no dispute with respect to the authority who has issued the said letter, as such, even in case the authority who had issued the appointment letter i.e. Chief Medical Officer, Lucknow was not called in the enquiry held by the department, it would not vitiate the conclusion of the enquiry and the decision taken thereof. Three Member Enquiry Committee had considered the letter dated 28.6.2012 of Law Officer where it has been informed that no such alleged letter dated 15.9.2010 has been issued by his office, as such, I am of the considered opinion that in the fact finding enquiry it was not necessary to call upon the Chief Medical Officer, Lucknow who had issued the appointment letter as well as the Senior Law Officer, who had issued the alleged letter dated 15.9.2010.
In the case of State of Bihar and others Vs. Krishna Paswan and another [AIR 2009 Supreme Court 889] the Apex Court while upholding the judgment of the High Court had opined that appointment on the post of untrained Assistant Teacher was given to the respondent, as such, even in case he had not produced the certificate of having qualified matriculation examination, it would not render it illegal.
I am of the view that with respect to the controversy involved in the present case, the judgement cited above by the learned counsel of petitioner is of no assistance.
Now, in order to appreciate the judgements cited by learned Additional Chief Standing Counsel, it is to be noted that it has been the consistent view of the Apex Court that the appointment obtained by fraud is no appointment.
In the case of R. Vishwanatha Pillai (supra), the Apex Court has observed as under:
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. 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 upto 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 practising 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 the case of Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions (supra), the Apex Court has observed as under:
"7. The High Court on the basis of the erroneous view upset the well-merited judgment of the learned Single Judge. By now, it is well settled principle of law that the principles of natural justice cannot be applied in a straight jacket formula. Its application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice one must establish that he was prejudiced for non-observance of the principles of natural justice. In the present case, the fact on which the appellant terminated the services of the respondent appointed on compassionate ground was admitted by the respondent himself that when he applied for the post on compassionate ground by its application dated 6.5.1996, his mother was in service. So also when he secured the appointment by an order dated 22.11.2002 his wife was in service since 3.8.1997 as Extension Officer in Rural Development and later on promoted as Mandal Parishad Development Officer at the time when he was appointed on compassionate ground. These facts clearly disclose that the appointment on compassionate ground was secured by playing fraud. Fraud clocks everything. In such admitted facts, there was no necessity of issuing show cause notice to him. The view of the High Court that termination suffers from the non-observance of the principles of natural justice is, therefore, clearly erroneous. In our view, in the given facts of this case, no prejudice whatsoever has been caused to the respondent. The respondent could not have improved his case even if a show cause notice was issued to him."
In the case of State of Chhattisgardh and others (supra), the Apex Court has observed as under:
"17. It is in the aforementioned premise, the contention in regard to the breach of audi alteram partem doctrine must be considered. Principle of natural justice although is required to be complied with, it, as is well-known, has exceptions. [See V.C., Banaras Hindu University and Others v. Shrikant (2006) 11 SCC 42]. One of the exceptions has also been laid down in S.L. Kapoor v. Jagmohan and others [(1980) 4 SCC 379 : AIR 1981 SC 136] wherein it was held:
"24............In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. (Emphasis supplied)."
19. The respondent keeping in view the constitutional scheme has not only committed a fraud on the Department but also committed a fraud on the Constitution. As commission of fraud by him has categorically been proved, in our opinion, the principles of natural justice were not required to be complied with.
21. In these cases, requirement to comply with the principles of natural justice has been emphasized. The legal principles carved out therein are unexceptional. But, in this case, we are concerned with a case of fraud. Fraud, as is well known, vitiates all solemn acts. [See Ram Chandra Singh v. Savitri Devi and Others (2003) 8 SCC 319, Tanna & Modi v. CIT, Mumbai XXV and Others (2007) 7 SCC 434 and Rani Aloka Dudhoria and others v. Goutam Dudhoria and others [JT 2009 (3) SC 616]. The High Court, therefore, must be held to have committed a serious error in passing the impugned judgment."
Considering the entire facts and circumstances of the case I am of the considered opinion that there is no infirmity or illegality in the impugned order.
The writ petition being devoid of merit is dismissed.
[Ritu Raj Awasthi, J] Order Date :- 26.11.2012 Prajapati