IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA L.P.A. No. 170 of 2009. Judgement reserved on : 19.11.2009. Date of decision: 26.11.2009. Ramesh Chauhan ….. Appellant. Vs. State of H.P. & anr. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General. Kuldip Singh, Judge. This appeal has been directed against judgement dated 15.10.2009 passed by learned Single Judge in CWP(T) No. 8670 of 2008 whereby the learned Single Judge has dismissed the petition filed by the appellant as pre-mature. 2. The facts in brief are that petitioner was appointed as Assistant Sub Inspector on 29.10.1993 against 1% quota reserved for sportsman. The Commandant, India Reserve Battalion, Bessal on 3.2.1997 informed the appellant that since the education qualification required for direct recruitment as Assistant Sub Inspector of Police was graduate and the applicant had produced B.A. certificate issued by Varanasaya Vishv Vidyayala, Varanasi, which has been declared Whether the reporters of the local papers may be allowed to see the Judgment? …2… as fake University by U.G.C., as such the appellant had acquired appointment fraudulently and he should explain as to why he should not be immediately discharged from service for not possessing requisite education qualification. The appellant filed the reply. A regular inquiry was instituted against the appellant vide order dated 25.3.1997. The appellant was supplied with the substance of imputation of misconduct on 8.4.1997, which was replied by the appellant on 15.4.1997. The regular charge-sheet was issued to the appellant on 16.8.1997. The Inquiry Officer was appointed, who submitted his report, thereupon show cause notice dated 25.5.1998 was issued to appellant, which was assailed by the appellant before H.P. Administrative Tribunal alongwith inquiry report. A prayer was also made in the Original Application that in case the respondent- department issues any order pursuant to which appellant is thrown out of the job, in that event such order may also be quashed and set- aside and the applicant may be directed to be reinstated in service with all consequential benefits. 3. The Original Application was contested by the respondents by filing reply in which preliminary objection was taken that the appellant had not exhausted the departmental channel and the Original Application is pre-mature. On merits, it was contended that appellant had passed his B.A. from Varanasaya Sanskrit Vishv Vidyayala, which has been declared as fake University by U.G.C. Thus the degree obtained by the appellant is not equivalent to B.A. of H.P. University. It has been submitted that minimum qualification for recruitment as Assistant Sub Inspector was B.A. in the year 1993. …3… The validity of the degree submitted by the appellant was got verified by the department and same was found to be obtained from a fake University. The respondents ultimately prayed for dismissal of Original Application. 4. The H.P. Administrative Tribunal was abolished and the cases of erstwhile Tribunal were transferred to this court. A learned Single Judge after hearing the learned counsel for the parties dismissed the petition on 15.10.2009 holding it to be pre-mature. In this way the matter has come in appeal. 5. We have heard the learned counsel for the parties and have gone through the record. The learned counsel for the appellant has submitted that learned Single Judge has erred in holding that petition filed by the appellant was pre-mature. It has been submitted on behalf of the appellant that no material fact was concealed by the appellant when he applied to Director General of Police vide Annexure A-1 dated 24.8.2009 requesting therein to consider him for the post of Inspector or Assistant Sub Inspector or any eligible post on the basis of sportsman quota. It was for the employer to check the documents submitted by the appellant for considering his case for employment. A submission has been made that in fact the documents were checked by the department and after satisfying, the department had given offer of appointment to the appellant. It has been submitted that even if University from where the appellant had done his B.A. is not a genuine University in that case also nothing has been imputed to the appellant that he has any hand for the establishment of fake University. The learned counsel for the …4… appellant has relied Shri Krishan vs. The Kurukshetra University AIR 1976 SC 376 and Union of India & Anr. Vs. Kunisetty Satyanarayana AIR 2007 SC 906. The learned counsel for the appellant has further submitted that in the show cause notice dated 25.5.1998 the Disciplinary Authority has already indicated its mind and further action on the basis of show cause notice dated 25.5.1998 is only formality. 6. Mr. R.K. Sharma, learned Senior Additional Advocate General has submitted that no fault can be found with the impugned judgement, the appellant instead of exhausting alternative remedy had rushed to erstwhile Tribunal during the pendency of inquiry against him. The learned Single Judge has rightly held that petition filed by the appellant was pre-mature. It has been submitted that after the impugned judgement, the case of the appellant was considered and he has been dismissed from service. The dismissal order has not been assailed by the appellant and for this additional ground, there is no merit in the appeal. The learned counsel for the appellant has submitted that such order has not been served on the appellant as yet. 7. The learned Single Judge has noticed Chanan Singh vs. Registrar, Cooperative Societies, Punjab and others (1976) 3 SCC 361, Stateof Uttar Pradesh vs. Brahm Datt Sharma and another (1987) 2 SCC 179, Executive Engineer, Bihar State Housing Board vs. Ramesh Kumar Singh and others (1996) 1 SCC 327 and Bhaiji vs. Sub-Divisional Officer, Thandla and others (2003) 1 SCC 692 and held that petition filed by the appellant …5… is pre-mature. The learned Single Judge has recorded a finding that appellant did not file reply to show cause notice and rushed to the court. The learned Senior Additional Advocate General has stated that after the judgement dated 15.10.2009 the appellant has been dismissed from service. The learned counsel for the appellant has not contested the statement of learned Senior Additional Advocate General regarding the dismissal of the appellant from service after the judgement dated 15.10.2009, but, however, contended that dismissal order has not been served on the appellant. In view of the fact that appellant has been dismissed from service, no relief can be granted to the appellant, more particularly, when the appellant has not assailed the dismissal order. The prayer of the petitioner in the petition for setting aside of dismissal if passed during the pendency of petition is not enough to set aside dismissal order which is also not on record and there is no foundation in the petition for setting aside dismissal order. 8. The appellant had participated in the departmental proceedings but assailed the show cause notice dated 25.5.1998 even though he had alternative remedy to defend the departmental proceedings in accordance with law. There was no order adversely affecting the interest of the appellant when the show cause notice dated 25.5.1998 was issued. The appellant should blame himself in putting himself in the present position when he instead of defending the departmental proceedings left the departmental proceedings midway and approached the erstwhile Tribunal even though no adverse order was passed against him in the departmental …6… proceedings by the Disciplinary Authority when he filed the Original Application before the erstwhile Tribunal. 9. In Shri Krishan vs. The Kurukshetra University (supra), the appellant had approached the High Court for issuing a writ of certiorari to quash the order of respondent cancelling the candidature of the appellant, but the High Court after issuing notice to the other side rejected the petition in limine. The Hon’ble Supreme Court has held that if University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April, 1972, then by force of the University statute the University had no power to withdraw the candidature of the appellant. In the present case, the appellant participated in the departmental inquiry which was started against him. The appellant had every right to defend the departmental proceedings in accordance with law, but after participating in the departmental proceedings for some time, he opted to file Original Application before the erstwhile Tribunal. Nobody prevented the appellant to place the legal position before the authorities in the departmental proceedings. In Shri Krishan, no statutory inquiry was pending when appellant in that case filed the petition. In these circumstances, Shri Krishan (supra) is not applicable in the present case. 10. The learned counsel for the appellant has relied Union of India & Anr. Vs. Kunisetty Satyanarayana (supra) on the point that in some very rare and exceptional cases the High Court can quash a charge-sheet or show cause notice if it is found to be wholly …7… without jurisdiction or for some other reason if it is wholly illegal. The appellant has failed to bring his case within the para-meters laid down by the Supreme Court in the said case. The allegation against the appellant is that he got employment on the basis of B.A. degree from a fake University. The argument of the learned counsel for the appellant that it was for the respondents to find out at the time of giving offer of appointment to the appellant that degree of the appellant was fake, is noticed only to be rejected. In the present case, it appears the employer came to know later on that B.A. degree of the appellant was of fake University. It is the case of the respondents that when appellant was given offer of appointment of Assistant Sub Inspector at that time minimum qualification for said post was graduation. 11. According to employer of the appellant, the appellant got employment as Assistant Sub Inspector on the basis of fake degree, therefore, departmental proceedings were started against the appellant. On the basis of material on record, it cannot be said that departmental proceedings against the appellant were without jurisdiction or totally illegal. In Union of India & Anr. Vs. Kunisetty Satyanarayana (supra), the Hon’ble Supreme Court has held that ordinarily the High Court should not interfere in such matters. The learned Single Judge has dismissed the petition of the appellant being pre-mature. However, now appellant has been dismissed from service, as submitted by the learned Senior Additional Advocate General, and appellant has not assailed order of his dismissal from service. The learned Single Judge has rightly appreciated the …8… material on record and no fault can be found with the impugned judgement. No other point was urged. 12. As a result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), ( R.B. Misra ), Judge. Acting Chief Justice. November 26, 2009. (Hem)