Heard learned counsel for the parties.
The father of the petitioner died in Harness on 22.04.2003. At the time of his death, the petitioner's mother was employed as Teacher in the Government Girls Inter College, Akbarpur, Ambedkar Nagar. It is said that the petitioner did not disclose these facts and obtained compassionate appointment in lieu of his father's death.
The petitioner was given compassionate appointment on 30.08.2003 as Assistant teacher in the Primary School, Kudha, Mohammadpur-I, Block- Akbarpur, District Ambedkar. When the aforesaid fact was detected the appointment of the petitioner was cancelled vide order dated 29.04.2017. Being aggrieved he approached this Court by means of writ petition no.14080 (SS) of 2017 (Narendra Kumar Gond vs. State of U.P. & others) which was allowed vide judgment dated 02.11.2017 on the ground that no opportunity of hearing had been given to the petitioner prior to cancelling his appointment but liberty was granted by the Court to the respondents to pass afresh order, in pursuance to which the petitioner was re-instated and was issued a show cause notice dated 06.01.2018 which was received by him personally on 09.01.2018. Instead of submitting a reply the petitioner sought ten days time. Even after expiry of ten days he did not submit any reply and vide letter dated 19.01.2018 sought certain documents relating to his appointment. A letter dated 02.02.2018 was written to him by the concerned respondent. Thereafter a show cause notice dated 13.04.2018 was issued to him which was received by him on the same day asking him to visit the office, himself inspect the relevant documents, in the office and the document which would be required by him, a photocopy of which would be provided to him. Accordingly, he should submit his reply positively by 18.04.2018 failing which it would be understood that he has nothing to say in his defence and the matter would be decided accordingly.
On 18.04.2018 the petitioner presented himself in the office of District Basic Shiksha Adhikari, Ambedkarnagar. He was provided requisite documents and time was granted to him to go through it and file his response. Inspite of it, he did not submit his reply to the show cause notice thereupon the impugned order was passed by the Basic Shiksha Adhikari to the effect that under the Rules as the mother of the petitioner was duly employed in Government Girls Inter College at the time of his father's death, therefore, the petitioner was not eligible for appointment but concealing these facts he had got the appointment.
No satisfactory reply has been submitted by the petitioner in this regard inspite of several opportunities having been granted. In the affidavit submitted by him at the time of seeking compassionate appointment the petitioner had not mentioned the factum of his mother (Smt. Kailashpati who retired in the year 2006) employment, therefore, he had concealed the relevant facts and based on such misrepresentation he obtained his appointment accordingly. As the appointment was in contravention of the Fifth Amendment to the U.P. Government Servants (Dying in Harness) Rules 1974 (hereinafter referred to as ''the Rules, 1974'), his services were dispensed with. Learned counsel for the petitioner has invited the attention of this Court to one explanation submitted by the petitioner on 12.04.2011 wherein he has admitted to the employment of his mother. However, he has stated that during the course of interview for compassionate appointment he has disclosed the aforesaid facts and thereafter some inquiry had also been held. Learned counsel for the petitioner argued with great vehemence that all these facts had been disclosed and were known to the opposite parties who had conducted an inquiry in the matter, therefore, as the petitioner had worked for about 15 years the impugned order was not sustainable.
There is no proof of the fact that such information regarding the employment of his mother at the time of his father's death was given by the petitioner at the time of seeking compassionate appointment. Even if this had been disclosed orally there is no proof of it, moreover, that was not the requirement of the Rules. The impugned order categorically states that the affidavit submitted by the petitioner did not contain any such recital. Learned counsel for the petitioner has not been able to show that it did. This apart, the admitted factual position is that the petitioner's mother was employed as a teacher in the Government Girls Inter College at the time of his father's death, therefore, clearly in view of the mandatory stipulation of the Rules, 1974 he was not eligible for compassionate appointment. It being so merely because the petitioner had worked for about 15 years it would not be a ground to give him any relief. The appointment which is alleged to have been obtained by misrepresentation and concealment, in any case is de-hors the Rules, 1974 and against the law on the subject, therefore, the impugned order does not require any interference.
The impugned order does not say that any recovery of the salary and other financial benefits already paid to the petitioner would be recovered, therefore, no grievance can be raised by the petitioner on this count also. The petitioner and other legal heirs, if any, of deceased can claim the post retiral dues of their mother, if permissible in law and not otherwise.
As regards the contention of the petitioner that no salary has been paid to the petitioner since 2010, well in the circumstances mentioned above, it cannot be said that when the appointment itself was based on concealment/misrepresentation and in any case was de-hors the Rules, 1974 any such direction can be issued for payment of salary to the petitioner specially in view of the stipulation contained in his appointment order itself that in the event of any fact disclosed by the petitioner herein being found false or any fact having been concealed the appointment shall be cancelled and the amount paid to him would be recovered from his property and a similar stipulation to this effect is in the petitioner's own affidavit submitted at the time of seeking appointment copy of which is annexed as Annexure No.4 to the writ petition. This is all the more so in view of decision of the Supreme Court in the case of R. Vishwanatha Pillai vs. State of Kerala and others reported in (2004) 2 SCC 104 wherein it has been held as under:-
"Para-17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra Vs. Director, Primary Education, Bihar, AIR 1988 Patna 26. 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:
"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic 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. In particular, if the very appointment is rested on forgery, no statutory right can flow it."
Para-18. We agree with the view taken by the Patna High Court in the aforesaid cases.
The contention of the petitioner that disciplinary proceedings should have been held in th matter and as this has not been done the impugned order is vitiated, is not tenable in law for the reason the factum of employment of petitioner's mother at the time of his father's death and the petitioner's compassionate appointment is undisputed and secondly, in view of the provisions contained in the appointment letter itself and even otherwise in the facts of the case it is the appointment which has been cancelled for the reasons disclosed hereinabove, rightly so, after giving due opportunity of hearing to the petitioner which cannot be faulted and also as it is not a case of misconduct having been committed during the course of service but it is a case of cancellation of his appointment on the ground that the same was obtained by misrepresentation/concealment and incorrect facts. In the case of R. Vishwanatha Pillai (supra) also the Supreme court itself was in agreement that a full-fledged inquiry in view of provisions of Article 311 of the Constitution was not required in such matters by holding as under:-
"Para-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 eyes of 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 the 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 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 Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. 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 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.
Para-16. In Ishwar Dayal Sah Vs. State of Bihar, 1987 Lab.I.C. 390, 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 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:
"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 possible 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 Art. 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 door is barred against him, the cloak of protection under Art. 311 is not attracted."
In view of the above discussion there is no merit in either of the writ petitions. The impugned order does not require any interference by this Court. Accordingly both the writ petitions are dismissed.