IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15590 of 2009 Ganesh Prasad Mehta S/O Late Mathura Prasad Mehta R/O Vill- Kachnama, P.S- Belaganj, Distt- Gaya. ------- Petitioner Versus 1. The State Of Bihar through The Director-In-Chief, Health Services Bihar, Patna. 2. The Special Officer, Health Services (H) Bihar, Patna. 3. The Director, Health Services, Bihar, Patna. 4. The Deputy Director, Health Services, Bihar, Patna. 5. The Civil Surgeon-Cum-Chief Medical Officer, Muzaffarpur. 6. The Incharge, Medical Officer, Sakra, Muzaffarpur. --------- Respondents ------------------ For the Petitioner : Mr. Ajay Kumar Chakraborty, Advocate For the State : S.C.-III ------------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (17.11.2011) Mihir Kumar Jha, J. Heard learned counsel for the parties. Assailing the order of termination of the petitioner dated 11.1.2003, Mr. Ajay Kumar Chakraborty, learned counsel for the petitioner, has submitted that though the authorities have held the appointment letter of the petitioner (Annexure- 2) to be forged, the petitioner can still demonstrate before the competent authority that his such appointment letter contained in memo no. 811 dated 23.5.1980 issued by the office of the Civil Surgeon cum Chief Medical Officer, Dhanbad was a genuine and valid letter. In this context, he has also submitted that the petitioner had continued in service on the basis of such appointment letter for twenty-three years and, therefore, it would be wholly inhuman to remove the petitioner from service without holding any enquiry as with regard to the allegation of forgery in his appointment letter. 2 Counsel for the State, on the other hand, by filing two counter affidavits one on behalf of the Civil Surgeon, Muzaffarpur and the other by the Deputy Secretary of the Health Department has explained that on enquiry from the office of the Civil Surgeon cum Chief Medical Officer, Dhanbad in his letter no. 804 dated 11.7.2003, it was found that the appointment letter of the petitioner was forged, inasmuch as, such letter no.811 dated 23.5.1980 had been issued in the official records in the name of the petitioner. Counsel for the petitioner, in reply, would submit that the order of termination of the petitioner was already set aside by this Court in a writ application filed by the petitioner in the batch case in the case of Sitendra Kumar Singh with analogous cases Vs. State of Bihar & Ors. reported in 2003(4)PLJR 282 and, therefore, the petitioner ought to have been reinstated in service. In the considered opinion of this Court, when the LPA filed by the State against the said judgment of the petitioner had led to a different result wherein the order of reinstatement was not affirmed and the direction only was given for consideration of Five Men Committee in the batch of cases of State of Bihar Vs. Purendra Sulan Kit reported in 2006(3)PLJR 386, it will have to be held that the reinstatement of the petitioner was not permissible in view of the judgment of the Division Bench in the case of the petitioner himself. The petitioner being bound by the inter-parte judgment cannot claim of a compliance of an order whose validity was 3 challenged by the State of Bihar and was also partly allowed by the Division Bench while remitting the matter for consideration of Five Men Committee. In this regard it is also significant to note here that the Committee on remand by this Court had found the appointment of the petitioner to be forged with a specific finding that the petitioner had worked on the basis of forged appointment letter no. 811 dated 23.5.1980, which had not been actually issued in the name of the petitioner. In the considered opinion of this Court, a question of forgery or fraud would vitiate all action including the so- called continuance of the petitioner for a number of years. Once the appointment of the petitioner was found to be forged, there would be no question of his reinstatement in service unless the petitioner obtains a declaration from a Civil Court that his appointment letter was not forged. Reference in this connection may be made to the Full Bench Judgment in the case of Rita Mishra Vs. State of Bihar & Ors. reported in 1987 BBCJ 701 which has been also approved by the Apex Court in the case of R. Vishwanatha Pillai Vs. State of Kerala & Ors. reported in 2004(2)SCC 105 wherein it was held that:- “15. --------- 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 4 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 up to 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 practicing 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. 16. In Ishwar Dayal Sah v. State of Bihar 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 was 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 5 of the Constitution can possibly flow. It was held: (Lab IC pp. 394-95, para 12) 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 possibly 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 Article 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 the door is barred against him, the cloak of protection under Article 311 is not attracted. 17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar. 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: (AIR p. 32, para 13) “13. It is manifest from the above that 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 the 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 from it.” 18. We agree with the view taken by the Patna High Court in the aforesaid cases. 19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the 6 order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud.” (underlining for emphasis) Thus in the light of law laid down by Apex Court as specifically marked in the underlined portion there would be no difficulty in holding that a forged appointment being void 7 ab initio will confer no right to the petitioner. Normally, having arrived at such a finding, this Court could have only given liberty to the learned counsel for the petitioner to withdraw this writ application in order to enable the petitioner to file a civil suit before the court of competent jurisdiction for seeking a declaration that his appointment letter was not forged. Mr. Chakraborty, however, would seek an indulgence from this Court by way of an additional opportunity to establish that the petitioner’s appointment was neither illegal nor based on forged appointment letter. He has submitted that such enquiry, however, should be entrusted to the higher authority, inasmuch as, the earlier decision was taken by the Civil Surgeon of the district. Considering the fact that the petitioner had continued in service for a period of twenty-three years, this Court is inclined to give one more opportunity to the petitioner who must appear in person before the Director-in-Chief by filing a representation enclosing his original appointment letter whereafter the Director-in-Chief of the Health Services on receipt of such representation would make an enquiry not only with the help of the original appointment letter of the petitioner as produced by him along with the aforesaid representation but should also verify the attending facts from the letter of the Directorate of the Health Services bearing memo no. 789(10) dated 22.4.1980, inasmuch as, the source of appointment of the petitioner as claimed in the letter of appointment is said to be the aforesaid letter of the Director 8 dated 22.4.1980. The Director-in-Chief, therefore, if he would find that such a letter dated 22.4.1980 had contained the name of the petitioner for his being appointed by the Civil Surgeon cum Chief Medical Officer, Dhanbad, he would give due weight to such evidence but if he finds that the aforesaid letter also does not contain the name of the petitioner and the appointment letter of the petitioner is also forged, he would reject the claim of the petitioner by passing a speaking order. This exercise, however, must be completed by the Director-in-Chief within a period of six months from the date of filing of the representation along with the copy of this order and his original appointment letter. With the aforementioned observations and direction, this application is disposed of. Patna High Court Dated the 17th November 2011 N.A.F.R./Rsh (Mihir Kumar Jha, J.)