IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15992 of 2009 Ram Kumar Karn S/O Late Parmeshwar Lal Das Vill- Kolhuara, P.S. Kalyanpur, Distt. Samastipur. ------- Petitioner Versus 1. The State Of Bihar Through The Director-In-Chief Health Services, Bihar, Patna. 2. The Civil Surgeon-Cum-Chief Medical Officer Motihari, East Champaran, Bihar. 3. The Civil Surgeon-Cum-Chief Medical Officer Muzaffarpur. 4. The Incharge Medical Officer Primary Health Centre, Chiraiya Distt. Motihari, East Champaran. --------- Respondents ----------- For the Petitioner : Mr. Ajay Kumar Chakraborty, Advocate For the State : G.P.-14 -------------- 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 20.2.2003 as contained in Annexure-5, Mr. Ajay Kumar Chakraborty, learned counsel for the petitioner, would submit that the appointment of the petitioner along with twelve others were cancelled holding such appointment to be illegal. Subsequently, when the petitioner had assailed such order of termination and the writ application was allowed in the batch case reported in the case of Sitendra Kumar Singh with analogous cases Vs. State of Bihar reported in 2003(4)PLJR 282, the State had filed LPA No. 288 of 2004 in which the Division Bench while disposing of a large number off cases by an order dated 26.6.2006 in the case of State of Bihar Vs. Purendra Sulan Kit reported in 2006(3)PLJR 386 had remitted the matter back to the Health Department for constituting a 2 Committee to examine the validity of the appointment of the petitioner and other persons as also to take a decision for regularization of service. He has pointed out that the Committee however had found the appointment of the petitioner to be forged whereas the earlier order of his termination was passed on the ground of its being illegal. He would, accordingly, submit that the authorities are themselves not sure as with regard to the nature of infirmity in the appointment of the petitioner and that the appointment letter of the petitioner as contained in memo no. 4122 dated 5.11.1983 (Annexure-1) issued by the office of Civil Surgeon cum Chief Medical Officer, East Champaran, Motihari is a valid and legal order. Counsel for the State, who has not been able to file any counter affidavit, would submit that the whole aspect of the matter was gone into by a Five Men Committee which had before it all the records and if therefore a finding of forgery has been arrived, the same should not be interfered by this Court specially when the order of termination of the petitioner dated 20.2.2003 was a bald and non-speaking order. He has also explained that no person whose appointment letter was found to be forged has been given the benefit of reinstatement in service by the Five Men Committee, which had only regularized the service of 91 of them whose appointment were found to be irregular. In the considered opinion of this Court, if the appointment letter of the petitioner is forged, that should 3 be the end of the matter. The onus of proving the appointment letter to be forged or otherwise normally would lie on the authority of the Department, inasmuch as, that can be found from the concerned records as to whether such an appointment letter was ever signed by the competent authority and issued in the name of the petitioner. In the present case the respondents have found from the records of the office of the Civil Surgeon that no such letter no. 4122 dated 5.11.1983 was issued in the name of the petitioner but the petitioner has asserted this fact that such an appointment letter was signed and issued by the then Civil Surgeon, Motihari and thus the onus will always lie on him to prove this fact that his appointment letter was genuine and valid and not forged. As noted above, the Committee constituted under the order of this Court has found the appointment letter of the petitioner to be forged, inasmuch as, the same was never issued from the office of Civil Surgeon cum chief Medical Officer, East Champaran, Motihari. The Committee had also recorded that despite claim of the petitioner that of his issuance of appointment letter by the Civil Surgeon of Motihari, the petitioner had never worked in his office. All these facts therefore would go to show that the respondents had seriously disputed the claim of the petitioner of very appointment and had found the appointment letter of the petitioner to be forged. A person who has continued in service on the basis of 4 fraud or forgery does not acquire any right to his post. This aspect of the matter was considered by a Full Bench of this Court 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 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 5 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 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 6 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 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 7 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) In the light of the facts of the case of the petitioner as noted above and the law on subject laid down in the aforesaid underlined portion of the judgment of Apex Court there was little option but to hold that the petitioner did not acquire any right to the post. Mr. Chakraborty has however submitted that the appointment letter of the petitioner is not a forged document and that if the petitioner is given an opportunity to demonstrate this aspect by producing his original appointment letter before a higher authority of Health Department he can still establish that the findings arrived as with regard to the appointment letter of the petitioner being forged is absolutely incorrect and in fact an error of record. 8 Considering the peculiar facts and circumstances of this case, this Court would give liberty to the petitioner to file his representation along with his original appointment letter contained in memo no. 4122 dated 5.11.2983 before the Director-in-Chief of the Health Services, whereafter, the Director-in-Chief, after holding his necessary enquiry and/or getting records from the office of the Civil Surgeon cum Chief Medical Officer, Motihari, would take his final decision as with regard to the nature of appointment letter. He will also verify as to whether the said appointment letter was ever acted upon and the petitioner was allowed to work within the jurisdiction of this Civil Surgeon cum Chief Medical Officer, Motihari. If the Director-in-Chief would find that the appointment letter of the petitioner is not forged and that the appointment of the petitioner is merely irregular (not illegal), he will be under obligation to reinstate the petitioner in service in the same manner in which 91 others were reinstated by an earlier order dated 20.9.2007 in the light of the observations made in the case of Purendra Sulan Kit (supra). If, however, the Director-in-Chief would still find that the appointment letter of the petitioner was itself forged, he would reject the representation of the petitioner by passing a speaking order. This exercise however should be completed by the Director-in-Chief within a period of six months from the date of filing of the representation by the petitioner along 9 with a copy of this order as also 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.)