JUDGMENT Bharati Sapru, J.
1. Heard learned Counsel for the petitioner and the learned standing counsel for the respondents.
2. The writ petition No. 5545 of 1993 was filed with the below-noted prayer:
(a) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 not to interfere in the work of the petitioner as Chalchitra Chalak (Projectionist) and pay the salary with all dues to the petitioner from 1.3.1992;
(b) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(c) award costs of this petition to the petitioner.
3. In this writ petition, this Court had passed an interim order on 11.2.1993 stating that "if the services of the petitioner have not already been terminated and he has been placed under suspension, the respondents shall not interfere with his working as Chalchitra Chalak, except in accordance with law and shall also pay him the salary."
4. The writ petition No. 7842 of 2002 was filed by the petitioner with the below-noted prayer:
(1) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.10.2001 (Annexure 12) passed by respondent No. 3.
(2) issue any other writ order or direction in the nature of writ as this Hon'ble Court may deem fit and proper according to facts and circumstances of the case. (3) award the costs of the petition to the petitioner.
5. In the writ petition No. 7842 of 2002, this Court directed to put up this case with writ petition No. 5545 of 1993.
6. The pleadings have been exchanged in both the writ petitions and since facts in both these writ petitions are identical, the same are being disposed of by a common judgment.
7. I have heard learned Counsel for the petitioner at length and the learned Standing Counsel Sri Anuruddh Charan Misra. The pleadings as disclosed in the writ petition are as below. The para 3 of the writ petition No. 7842 of 2002 is quoted as under:
3. That in brief facts of the case are that the petitioner also appointed as Chalchitra Chalak (Projectionist) by the respondent No. 3 and join the duty on 11.7.1988 in the office of respondent No. 3 with the assurance that appointment letter will be issued to him after completing some formalities from the office of respondent No. 1.
8. The very first pleading in the writ petition is that the petitioner joined his services as Projectionist in the office of the respondent No. 3 as at Pilibhit and was paid his salary from 11.7.1988 to 29.2.1992. It is not the petitioner's claim that he had joined services prior to 11.7.1988 nor is it his claim that he received any salary prior to 11.7.1988. However the petitioner thus disclosed that no appointment letter was issued to him.
9. The grievance in the first writ petition is that his salary was ceased after 29.2.1992 and the challenge in the second writ petition is that the impugned order dated 23.10.2001 terminating his services was wrongly passed and therefore he is entitled to be reinstated as Projectionist with the respondents.
10. The facts as revealed in the counter affidavit however tell a quite different story. The life and career of the petitioner, according to the petitioner, began in the department concerned, by way of a transfer order dated 1.6.1988 (Annexure CA-1 to the counter affidavit) issued by so-called Director Family Welfare, Luckow in which the petitioner Sri Ram Milan Soni along with two others were shown to be transferred from Meerut to Pilibhit. Even according to the petitioner, this part of story is correct, he joined the office at Pilibhit on 11.7.1988 as it has been stated here that earlier prior to this, he has made no claim that he had worked in the Meerut office. The entire story revolves around joining work at Pilibhit w.e.f. 11.7.1988.
11. The petitioner did succeed in joining the office at Pilibhit on 11.7.1988 and continued to work there uptil the year 1992. When the petitioner joined at Pilibhit, the petitioner is alleged to have shown a relieving certificate showing himself to be relieved from Meerut office by the Dy. Chief Medical Officer, Meerut and he had also submitted his last pay certificate alleged to be issued by Dy. Chief Medical Officer, Meerut showing that he had been paid salary upto 30.6.1988 by the Dy. Chief Medical Officer, Meerut. At the time of joining, the petitioner also submitted his service book which has been brought on record of the case, which shows that the petitioner was appointed by an order passed by the Chief Medical Officer dated 26.12.1986. This certificate appended as Annexure CA-5 also records that the petitioner was relieved on 5.7.1988 from the Meerut office. The service record was duly signed by the petitioner himself.
12. Subsequently on 30.9.1991 the Director, Family Welfare, U.P. Lucknow sent a letter to all the Chief Medical Officers in the State of U.P. to submit a statement regarding the procedure adopted by them for the appointment of the Projectionist.
13. Consequent upon the receipt of, this letter, the petitioner was called upon by the department concerned to submit copies of his appointment letter, educational qualifications and certificate relating to his date of birth and his caste certificate as well. The petitioner replied to the queries of his letter dated 15.10.1991 and produced everything before the department concerned, except for the letter of appointment.
14. Thereafter the Chief Medical Officer sent a letter on 10.1.1992 asking the Dy. Chief Medical Officer, Meerut to send the approval file of the petitioner along with his appointment letter. The Chief Medical Officer Meerut as well as Dy. Chief Medical Officer Meerut replied vide letter dated 23.1.1992 that entries made in the service book submitted by the petitioner were fraudulent and the entries shown in the service book of the petitioner were also false and fraudulent.
15. The Chief Medical Officer, Meerut replied that the petitioner was never appointed from Meerut office and no appointment letter had ever been issued to him. Thus it came to light that transfer order dated 11.7.1988 on the strength of which the petitioner had allegedly joined on the post of Projectionist was completely false and the service records were also false and the matter was referred to the Director, Family Welfare, U.P. Lucknow in January, 1992.
16. Thereafter an enquiry was given to one Dr. Ram Singh, Addl. Director,, Family Welfare, Bareilly Range Bareilly who submitted his detailed report dated 17.8.1992, in which the enquiry officer reached the conclusion that the transfer order dated 11.7.1988 transferring the petitioner from Meerut to Pilibhit was a forged document and the persons who were sought to be transferred by way of this transfer order in fact had been never been appointed by the department. It was on the basis of this report that the Director, Family Welfare wrote on 26.9.2002 to the Chief Medical Officer, Pilibhit to remove the petitioner and the two other persons from their respective service and to lodge an F.I.R. against them. A vigilance enquiry, according to the petitioner was also directed to be undertaken by the report.
17. Counter affidavit records that subsequent to this enquiry report, the petitioner was removed and thereafter the office was directed not to pay any salary in future to the petitioner. When the salary was stopped, the petitioner came to this Court in writ petition No. 5545 of 1993 and obtained an interim order and thereafter continued under the interim orders of this Court.
18. Learned Counsel for the petitioner also informed the Court that because the salary was not paid to the petitioner, he approached the Contempt Court and thereafter interim orders of this Court were complied with.
19. Admittedly the position, which emerges from the case is that although the service record of petitioner reveals that he was appointed on 26.12.1986, no appointment letter was ever issued to him.
20. On 26.12.1986 the second position which is clear that the petitioner was not paid any salary between 26.12.1986 to 1.6.1988. It is also averred in para 3 of the second writ petition itself that he joined work on 11.7.1988.
21. In the entire pleadings on record, the petitioner has nowhere averred that he had ever worked prior to 11.7.1988, as against the State has filed a counter affidavit in which it has been said that the petitioner was never paid any salary between 26.12.1986 to 1.6.1988 and this fact has not been denied by the petitioner.
22. The petitioner has however relied on the statement as made in the supplementary affidavit dated 2.9.2006 sworn by Sri Rakesh Chandra Rathore wherein the State has declared that a consequence of revision of pay, arrears with effect from 1.1.1987 to 31.8.1989 had been paid to the petitioner vide bill No. 268 dated 20.11.1989.
23. Learned Counsel for the petitioner has argued firstly that because arrears of pay to the revised pay scale as given to him, as quoted above, itself indicates that the petitioner had been properly appointed and he had received his salary on regular basis and the respondents have thought it fit to give to him his revised salary, even prior to 11.7.1988 for the period of his working at Meerut and therefore it was indicative of the fact that he had been properly appointed.
24. The second argument of the learned Counsel for the petitioner was that during the course of criminal investigation, the authority concerned had failed to prove any forgery against the petitioner to show that he was guilty of either forging the entries in the service book or forging the transfer order dated 11.7.1988.
25. The third argument of the learned Counsel for the petitioner is that two other candidates who have similarly been transferred from Meerut to Pilibhit continued to work and in fact even shown to me a judgment of this Court by which one such person was allowed to continue. However the judgment itself record that person was allowed to continue as the respondent State has failed to file counter affidavit in that matter.
26. The fourth argument of the learned Counsel for the petitioner is that even though a vigilance enquiry was recommended but no enquiry was held to investigate into the forgery.
27. The fifth argument of the learned Counsel for the petitioner is that even though the enquiry recommended was not conducted and lastly he argued that despite three orders were passed on 23.1.1992, 28.9.1992 and 20.7.2002, no vigilance enquiry was held.
28. Learned standing counsel on the other hand has argued that very existence of the petitioner in the department concerned was completely irregular and since he was not even a temporary employee, he was not entitled to any enquiry at all.
29. Learned Standing counsel has also argued that the existence of the petitioner in the department concerned was on the basis of fabricated documents and forged entries in the service book. The petitioner could not and did not produce any letter of appointment dated 26.12.1986.
30. Learned standing counsel has next argued that the pleading in the writ petition also disclosed that in fact, the petitioner joined work according to his own version on 11.7.1988 and prior to that had not joined at all.
31. I have heard learned Counsel for the petitioner at length, learned standing counsel and have perused the record of the case and judgments as cited by the "petitioner in the cases of Virendra Kumar Sharma v. State of U.P. and Ors. reported in 2002 (94) FLR 763 and Cap. M. Paul Anthony v. Bharat Gold Mines Ltd. , I am of the view that the facts in this case are completely distinguishable.
32. The petitioner has not come to this Court with clean hands and has not even cared to disclose properly in the writ petition his actual status. The petitioner himself began by saying that he joined on 11.7.1988 whereas he claims that he was appointed on 26.12.1986. The appointment letter is nowhere on record for the reason that it was never issued to him. Employment in the State cannot be given without issuing a proper letter of appointment. The entire case of the petitioner was built up on the basis of a transfer order dated 11.7.1988, which was found to be completely fraudulent.
33. There was no appointment at all to be begun with, therefore it cannot be said that the petitioner at any stage acquired status of an employee with the State.
34. The very foundation of the service/employment of the petitioner collapses in absence of a letter of appointment. His appointment being non est, he could not have continued on the basis of forged service book irrespective of the fact the salary and arrears have been drawn by him on the basis of fraud and misrepresentation.
35. In Government service, there should be a letter of appointment followed by an offer of appointment. The petitioner has not disclosed the reason why despite his having been appointed on 26.12.1986 (as shown in the service book-CA-5 to the counter affidavit filed in writ petition No. 5545 of 1993), he had admittedly joined on 11.7.1988. The petitioner has also not disclosed, when he had completed his probationary period.
36. The circumstance that the petitioner continued on the basis of interim orders passed by this Court for a number of years, would not lend legitimacy to the false claims made by the petitioner.
37. The petitioner's contention that a vigilance enquiry should have been held into the matter, is however not without substance. It is indeed certainly that a person cannot work in the Government Department on the strength of the forged orders. There is no doubt that the Government department requires vigilance in such matters but that itself invests no right to a person to continue in the department, without any letter of appointment. The fact that the petitioner who had continued on the strength of the forged entries in the service book, would not, in my opinion, entitled to continue to do so.
38. In Union of India v. M. Bhaskaran , the Hon'ble Apex Court held that merely because the petitioner continued in sendee for a number of years on the basis of fraudulently obtained employment, it would not create any equity in his favour nor any estoppel against the 'employer flows removing him. It was further held that to allow him to continue in service obtained would fraudulently amount to perpetuation of a fraud, and result in the annihilation of justice.
39. Such being the case, I am of the opinion that the impugned order of dismissal calls for no interference in exercise of jurisdiction under Article 226 of the Constitution.
40. The writ petition lacks merit and is hereby dismissed. There will be no order as to costs.