IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WPC.No. 33705 of 2011 (K) ------------------------- PETITIONER(S): ------------- MAHESH M., AGED 35 YEARS S/O. MADHAVAN M., LOWER DIVISION CLERK, OFFICE OF THE ASSISTANT CONSERVATOR OF FORESTS, SOCIAL FORESTRY DIVISION, WAYANAD, KALPETTA BY ADVS.SRI.K.RAMAKUMAR (SR.) SMT.SARITHA DAVID CHUNKATH SMT.SMITHA GEORGE RESPONDENTS: ----------- 1. THE CHIEF CONSERVATOR OF FORESTS (NORTHERN CIRCLE), KANNOTHUNCHAL, THANA KANNUR-670 001. 2. THE ASSISTANT CONSERVATOR OF FORESTS, SOCIAL FORESTRY DIVISION, WAYANAD, KALPETTA-673 121. 3. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. R1 TO R2 BY SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER FOR FOREST DEPARTMENT R3 BY GOVERNMENT PLEADER SRI.SHIJ RAJ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STK WPC.No. 33705/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE APPOINTMENT ORDER DTD.10.8.05 ISSUED TO THE PETITIONER. EXT.P2 : TRUE COPY OF THE ORDER DTD.8.3.06 REGULARIZING THE SERVICES OF THE PETITIONER. EXT.P3 : TRUE COPY OF THE ORDER DTD.12.3.09 DECLARING THE SATISFACTORY COMPLETION OF PROBATION. EXT.P4 : TRUE COPY OF THE JUDGMENT DTD.11.3.08 IN WPC NO.21703/05. EXT.P5 : TRUE COPY OF THE SHOW CAUSE NOTICE DTD.24.8.2011 ISSUED TO THE PETITIONER. EXT.P5(a):TRUE COPY OF THE CHARGE MEMO DTD.24.8.2011 ISSUED ALONG WITH THE SHOW CAUSE NOTICE. EXT.P6 : TRUE COPY OF THE EXPLANATION DTD.13.9.2011 SUBMITTED BY THE PETITIONER. EXT.P7 : TRUE COPY OF THE SHOW CAUSE NOTICE DTD.21.10.2011 ISSUED TO THE PETITIONER. EXT.P8 : TRUE COPY OF THE REPRESENTATION DTD.7.11.2011 SUBMITTED BY THE PETITIONER. EXT.P9 : TRUE COPY OF THE ORDER DTD.7.12.2011 ISSUED BY R1. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P A TO JUDGE STK C.R. K.SURENDRA MOHAN, J --------------------------------------------- W.P.(c)No.33705 of 2011 --------------------------------------------- Dated this the 23rd day of December 2011 JUDGMENT The petitioner has filed this writ petition challenging Ext.P9 order of the first respondent, terminating his services. According to the petitioner, the order of dismissal has been passed without conducting an enquiry as contemplated by Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 ('CC& A Rules' for short). 2. The petitioner was appointed as a Lower Division Clerk in the 'physically handicapped quota' by order dated 10.8.2005 of the first respondent to the Wayanad District. The said order is Ext.P1. Pursuant to Ext.P1, he joined duty and started working. Subsequently, his services were regularised by an order dated 8.3.2006 of the first respondent, Ext.P2. He was on probation thereafter, which was completed by him satisfactorily. Thereupon, as per Ext.P3 order dated 12.3.2009, his probation was WPC No.33705/2011 2 declared. 3. Meanwhile, an organisation by name 'Handicapped Association of India' filed a writ petition before this Court making the petitioner also a party alleging that the appointments of several persons including the petitioner under the 'physically handicapped quota' were illegal. As per Ext.P4 judgment, the said writ petition was dismissed holding that a public interest petition was not maintainable with respect to a service matter. However, according to the petitioner, undaunted by the dismissal of their writ petition, the 'Handicapped Association of India' continued their agitation through television as well as the print media. Probably, influenced by such propaganda, the petitioner alleges that he was served with Ext.P5 charge sheet accompanied by Ext.P5 (a) memo of charges. The petitioner was also placed under suspension. 4. The allegation against the petitioner is that he had obtained a Certificate of Disability feigning physical disability. On the strength of the said certificate, he had secured an appointment to the Government service. WPC No.33705/2011 3 Therefore, he was asked to explain why disciplinary action should not be initiated against him. The petitioner thereupon submitted Ext.P6 explanation dated 13.9.2011. However, since his explanation was not satisfactory, the petitioner was directed to show cause why the punishment of dismissal from service should not be imposed on him. The petitioner submitted Ext.P8 explanation disputing the allegations levelled against him, and pointing out that he was entitled to the benefit of an enquiry as contemplated by Rule-15 of the CC&A Rules before any disciplinary action was initiated against him. The said explanation was considered by the first respondent and by Ext.P9 order dated 7.12.2011, the petitioner has been dismissed from service. This writ petition is filed challenging the said order of dismissal. 5. According to Sr.Advocate Sri.K.Ramakumar, the dismissal of the petitioner is in gross violation of the mandate of Article 311 of the Constitution of India as well as the provisions of Rule 15 of the CC&A Rules. The above provisions in clear terms provide that a Government servant shall not be dismissed or removed or reduced in WPC No.33705/2011 4 rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Ext.P9 having been issued in violation of the said provision is, according to the counsel, arbitrary and unsustainable in law. Therefore, he seeks invocation of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India to set aside Ext.P9. He also seeks the issue of necessary interim orders of stay of operation of Ext.P9 so as to permit the petitioner to continue in service. 6. The prayers of the learned Senior counsel are opposed by Adv.Sri.Shaij Raj, the learned Government Pleader. According to the Government Pleader, this is a case in which the petitioner had procured an appointment to the Government service falsely representing to the authorities that he was a physically handicapped person. The appointment that was so procured by him was out of the quota that was set apart for the appointment of physically handicapped persons. Consequently, the petitioner's conduct has not only misled the authorities WPC No.33705/2011 5 but has also denied appointment to a rightful claimant. Therefore, it is pointed out that the petitioner should not be permitted to continue in service by the issue of an interim order and to take the benefit of his own wrongful act. It is further pointed out that a special Medical Board constituted pursuant to a direction issued by the Legislative Sub Committee had examined the petitioner and found that he was not suffering from any physical disability and that he was only pretending to be a disabled person. The disability complained of by the petitioner was deafness. But, the medical examination found that he was only pretending to be deaf. Therefore, action was initiated against the petitioner and he was directed to show cause against the allegations by issuing Exts.P5 and P5(a). On the basis of the petitioner's explanation, the matter was considered by the first respondent. Thereafter, a further show cause notice Ext.P7 was issued to him. It was only after considering Ext.P7 also that Ext.P9 order was issued dismissing him from service. The learned Government Pleader has also placed reliance on the decision of the Apex court reported in WPC No.33705/2011 6 R.VISHWANATHA PILLAI v STATE OF KERALA AND OTHERS [(2004) 2 Supreme Court Cases 105] and ADDL.GENERAL MANAGER-HUMAN RESOURCE, BHARAT HEAVY ELECTRICALS LTD. v SURESH RAMKRISHNA BURDE [(2007) 5 Supreme Court Cases 336] to contend that where the appointment itself is void, it is not necessary for an order dismissing such a person from service to be preceded by an enquiry as contemplated by Article 311 of the Constitution or the CC&A Rules. For the above reasons, the learned Government Pleader prays for the dismissal of the writ petition. 7. I have heard the learned Senior counsel Sri.K.Ramakumar for the petitioner and the learned Government Pleader, Adv.Sri.Shaij Raj at length. I have also considered the rival contentions of the parties anxiously. 8. This writ petition has not been admitted. When the matter came up for admission, the learned Government Pleader opposed the grant of any interim order. The counsel for the petitioner then submitted that WPC No.33705/2011 7 the matter may be considered on the merits, in the light of the submission that the impugned order Ext.P9 has been issued in violation of the provisions of Article 311 of the Constitution as well as Rule 15 of the CC&A Rules. Therefore, I have heard the matter in detail, on the merits. Apart from the question of law referred to above, no other question either on fact or law, was raised or argued before me. 9. According to the senior counsel Sri.K.Ramakumar, the medical certificate on the strength of which the petitioner was initially appointed has not been cancelled by any authority. As long as the said certificate remains, the petitioner's appointment cannot be said to be illegal. Therefore, the medical examination conducted by the Special Medical Board cannot set at naught or supercede the medical certificate produced by the petitioner in support of his claim, at the time of his appointment. Unless the said certificate is set aside as false or fraudulently obtained, in appropriate proceedings, no punishment of dismissal as sought to be imposed on the petitioner by Ext.P9 could be imposed. WPC No.33705/2011 8 10. Apart from the above, no enquiry as contemplated by Article 311 of the Constitution or Rule 15 of the CC&A Rules has been conducted before the issue of Ext.P9. Therefore, it is contended that Ext.P9 is unsustainable in law and liable to be set aside. The learned Government Pleader on the other hand meets the above contentions by pointing out that the petitioner is a person who has procured an appointment to Government service fraudulently, making the authority believe that he was a physically handicapped person. He has been appointed in the quota reserved for physically handicapped persons. Therefore, he has not only obtained his appointment by falsely representing facts, but he has also denied the chance of such appointment to a genuine, physically handicapped person. Since the petitioner would not have been appointed to the said post, had the authorities been aware of the fact that he was not actually physically handicapped, his appointment is ab initio void. Therefore, it is contended that an enquiry as contemplated by Rule 15 of the CC&A Rules is not necessary. In the present case, since an effective WPC No.33705/2011 9 opportunity had been granted to the petitioner to answer the charges against him, Ext.P9 has been issued in full compliance with the principles of Natural Justice. Therefore, according to the learned Government Pleader, Ext.P9 does not suffer from any infirmity warranting interference under Article 226 of the Constitution. 11. I have anxiously considered the rival contentions. Admittedly, the petitioner has been appointed by Ext.P1 order. Ext.P1 order recites that the petitioner was selected for appointment as a Lower Division Clerk under what is referred to as, 'Employment Assistance to the Physically Handicapped Person' on the basis of a Government Order G.O.(P) No.20/98 P and ARD dated 14.7.1998. The said order further states as follows: “The District Collector, Wayanad further informed as per reference 2nd cited that he is 60% of physically handicapped as certified by the Superintendent District Hospital and there is no objection to appoint him against the reserved posts.” Therefore, there can be no doubt that the petitioner was appointed as a direct recruit to a post reserved for WPC No.33705/2011 10 physically handicapped persons as per the Government order that was applicable. Subsequently, as per Ext.P2 order dated 8.3.2006, the petitioner was regularised in service. Ext.P2 also recites that he has been appointed in the quota reserved for physically handicapped persons. The opening sentence in Ext.P2 reads as follows: “Sri.Mahesh.M., NGO Quarters, Room No.2/22, Mananthavady, Wayanad district a candidate advised by the District Collector as per reference Ist cited under special recruitment of the physically handicapped persons to appointment as Lower Division Clerk in this Forest Department”. 12. Ext.P3 order by which the petitioner's probation has been declared also specifically states that he has been appointed to one of the posts reserved for a physically handicapped person. Therefore, it follows that the petitioner cannot stake a claim for appointment to a post reserved for physically handicapped persons unless he is able to show that he is a physically handicapped person. It is, no doubt, true that he had produced the necessary medical certificate to support his claim of WPC No.33705/2011 11 disability. It was certainly acting on the said certificate that he was granted an appointment. However, a copy of the certificate produced by the petitioner at the time of his appointment has not been produced in these proceedings and therefore, I have not had the benefit of perusing the same. It appears that there were complaints against the appointments made to the posts reserved for physically handicapped persons in Wayanad District. A writ petition had also been filed by an organization by name Handicapped Association of India which was dismissed as per Ext.P4 judgment. 13. The Handicapped Association of India appears to have pursued their efforts to have an enquiry conducted into the appointments made to the posts reserved for handicapped persons. They also appear to have submitted petitions to the Legislative Committee for the welfare of Women, Children and the Physically handicapped. As per orders issued by the Legislative Committee, a Special Medical Board was constituted. The petitioner was subjected to an examination by the Special Medical Board, which found that he was only pretending WPC No.33705/2011 12 to be handicapped. Therefore, he was referred for further tests to the Medical College Hospital, Kozhikode. 14. The disability complained of by the petitioner was deafness which had been assessed to be 60% as per the Medical Certificate produced by him. Therefore, the petitioner was subjected to tests like Radiogram and Radiometry. Thereupon it was found that the hearing capacity of the petitioner was normal. It is on the basis of the results of the examination conducted by the Special Medical Board that action was initiated against the petitioner. It is worth noticing that the petitioner has not taken any steps to disprove the findings of the Special Medical Board by producing any additional documents or by offering to subject himself to any further sophisticated tests, investigation or other medical procedures capable of establishing his alleged physical disability, if he does suffer from any. Except for some vague insinuations of a general nature, against the manner of issuing medical certificates at the Medical College Hospital and the procedure adopted by the doctors, there are no specific allegations against the finding that the hearing capacity of WPC No.33705/2011 13 the petitioner was found to be normal. 15. As per Ext.P5 charge sheet, the petitioner was informed of the charges against him and he was directed to submit his explanation within fifteen days of receipt thereof. Ext.P5 was accompanied by a statement of allegations, Ext.P5(a). Pursuant to Exts.P5 and P5(a), the petitioner submitted Ext.P6 explanation. In Ext.P6, the petitioner has contended that the certificate of disability produced by him was issued by the District Disability Board, after an elaborate examination of his physical condition. It was on the basis of the said certificate that he was granted an appointment. Since the said certificate has not been found to be false, fabricated or unsustainable, the allegation against the petitioner was not sustainable. According to him, since the said certificate has not been cancelled, he was entitled to take the benefit thereof. Therefore, he contended that there were no grounds to set aside his appointment. Since a copy of the report of the Medical Board had not been supplied to him, he has expressed his inability to offer any comments with regard to the said document. Therefore, WPC No.33705/2011 14 he has stated that the allegations against him were all baseless. 16. Since the authorities were of the opinion that the explanation of the petitioner was not satisfactory, a show cause notice, Ext.P7 was issued to him, rejecting his explanation and directing him to show cause why he should not be dismissed from service. The petitioner submitted Ext.P8 explanation to Ext.P7 pointing out that the proposed punishment was unsustainable for the reason that the mandatory procedures stipulated by Rule 15 of the CC&A Rules have not been complied with. In Ext.P8, the petitioner has put forward a case that the Special Medical Board has reached its conclusion without conducting any of the sophisticated medical procedures like BERA Tympanometry, accountic refteas and Speech Audiogram. In Ext.P8 also, he has voiced the very same general allegations against the manner in which medical certificates are issued from the Medical College Hospital. Pursuant to Ext.P8, Ext.P9 proceedings have been issued by the first respondent terminating the petitioner from service. WPC No.33705/2011 15 17. As per Ext.P5 charge sheet, the petitioner has been specifically informed that if the petitioner wanted to peruse the files/records relating to the allegations made against him, he was entitled to request for such an opportunity and that he could peruse all the necessary documents in the presence of a Senior Administrative Assistant. He has also been directed to inform whether he wanted the authority to afford him an opportunity of personal hearing in the matter. He has further been informed that he could copy down relevant portions of the official files or other records. However, the petitioner did not make use of the above opportunity to either peruse the documents or other records that are relied upon to support the allegations against him or to take copies thereof. Nor did he request for a personal hearing in the matter. The only contention put forward by the petitioner was that since the medical certificate produced by him had not been found to be fabricated or cancelled, no action could be taken against him to terminate his service. Therefore, this is a case where the petitioner was not inclined to make use of the opportunity that was afforded WPC No.33705/2011 16 to him to prove his innocence. He did not initiate any action to peruse the documents or records on the basis of which allegations were made against him. Nor did he want any further enquiry or a personal hearing. I notice from Ext.P7 that the petitioner's explanation has been considered by the first respondent. The stand of the first respondent in Ext.P7 is that since the Special Medical Board has found that the hearing capacity of the petitioner was normal, the medical certificate on the basis of which the petitioner had secured his appointment had become irrelevant and inoperative. It is also worth noticing that the petitioner had been earlier examined by the Special Medical Board at the District Hospital, Wayanad. Thereafter, he had been referred to the Medical College Hospital, Kozhikode for further examination and testing procedures. It was after conducting such further tests that his hearing capacity has been assessed to be normal. In all probability, it is the realisation of the petitioner regarding the futility of attempting any further medical procedures that dissuaded him from seeking any such further medical tests. It is WPC No.33705/2011 17 clear from the procedure that has been adopted by the authorities, as evident from Ext.P5, P5(a), P7 and P9 that the decision to terminate the petitioner from service has been taken by the first respondent after following the principles of Natural Justice. I do not find any infirmity in the procedure adopted. Therefore, I hold that the impugned proceedings have been issued in compliance with the principles of natural justice. 18. A further aspect that requires to be taken note of is the fact that the petitioner was not a Government employee when he committed the alleged fraudulent act. The act complained of against the petitioner is that he had procured a disability certificate by feigning disability and that he had used the said certificate to secure an appointment to the Government Service in the quota that is reserved exclusively for the appointment of physically handicapped persons. The petitioner was not a Government employee when he committed the alleged act. Since the action initiated against the petitioner relates to a period anterior to the date of his appointment to the Government service, the petitioner cannot claim the WPC No.33705/2011 18 protection of either Article 311 of the Constitution or Rule 15 of the CC&A Rules which are available only to Government employees. In other words, since the petitioner could not claim the status of a Government Servant at the time when he committed the alleged act he also cannot claim the protection that is available only to Government Servants. Therefore, the contention that the petitioner cannot be terminated from service without complying with the procedure prescribed by the provisions referred to above cannot be accepted. 19. Apart from the above, the petitioner did not possess the necessary eligibility criteria for appointment to Government service. As noticed above, the petitioner had claimed appointment to the quota that was reserved for the appointment of physically handicapped persons. The petitioner had been appointed to the Government service on the mistaken impression that he was a physically handicapped person. The impression had been deliberately created by the petitioner in the minds of the Selection Board by producing a certificate showing that he was deaf. It is therefore clear that the petitioner would WPC No.33705/2011 19 not have been selected or granted an appointment if the real fact that he was only pretending to be deaf had been brought to the notice of the authorities. Consequently, the appointment of the petitioner was void ab initio. 20. The question whether the termination of an employee who had secured appointment in the quota that was reserved for the appointment of persons belonging to Scheduled Tribes was valid or not had come up for consideration before the Apex Court in R.Viswanatha Pillai v State of Kerala and others [(2004) 2 SCC 105]. After considering the question, the Apex Court has summed up the position in the following words: “ 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.” WPC No.33705/2011 20 21. The above dictum has been quoted with approval by the Apex Court in a subsequent decision ADDITIONAL GENERAL MANAGER-HUMAN RESOURCE, BHARAT HEAVY ELECTRICALS LTD. v SURESH RAMKRISHNA BURDE [(2007) 5 SCC 336]. 22. In the present case also, the Special Medical Board has found that the hearing capacity of the petitioner is normal and that he does not suffer from any physical disability. Though the petitioner had been given an opportunity to peruse all or any of the documents that he wanted, in order to formulate his defence and to take copies of such documents, he did not choose to take the benefit of the said opportunity. The petitioner has also not challenged the finding of the Special Medical Board that he does not suffer from any physical disability. Since the petitioner does not suffer from any physical disability, he has no right to claim appointment to the Government service in the quota reserved for physically handicapped persons. For the reason that he has obtained his appointment by playing fraud on the selection board, his WPC No.33705/2011 21 appointment is liable to be set aside. His appointment has been so set aside and he has been terminated from service, after complying with the principles of natural justice. Therefore, the petitioner is not entitled to any of the reliefs claimed in this writ petition. 23. No other contentions have been advanced before