IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10331 of 2009 Ram Kumar Ram, Aged about 46 years, son of Janak Ram, resident of Village Goriyari, P.S. Raghopur, Dist. Madhubani posted as Vaccinator Class IV post at Primary Health Centre, Ghoghardiha, Madhubani. --------- Petitioner Versus 1. The State of Bihar through the Director-in-Chief, Health Services, Bihar, Patna. 2. The Civil Surgeon cum Chief Medical Officer, Madhubani. 3. The Incharge Medical Officer, Primary Health Centre, Ghoghardiha, Dist. Madhubani. ---------- Respondents ----------- For the Petitioner : Mr. Ajay Kumar Chakraborty, Advocate For the State : S.C.-10 --------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (14.11.2011) Mihir Kumar Jha, J. Heard Mr. Ajay Kumar Chakraborty, learned counsel for the petitioner and counsel for the State. Assailing the order of termination of the service of the petitioner dated 24.8.2001 as contained in Annexure-2 in the writ application, Mr. Chakraborty has submitted that the petitioner was appointed on the post of Vaccinator by the Civil Surgeon, Madhbuani on 31.12.1988 vide Annexure-1 to the writ application being memo no. 2325 dated 31.12.1988 and that the reason given in the order of termination of the petitioner being illegal/forged was also reduced to five specific grounds, namely, (1)non-publication of the post in 2 the newspaper, (2)no interview and the selection process to have been conducted, (3)no recommendation made by the Selection Committee for appointment of the petitioner, (4)the Government rules of roaster and reservation being not at all applied in the case of the appointment of the petitioner and (5)despite there being a ban in the appointment on any specific planed post, such appointments have been made. Mr. Chakraborty would explain that when with these specific reasons the services of the petitioner and seventeen others were terminated, the same could be at best called as an irregular appointment and that the petitioner would be entitled for being reinstated in service keeping in view that he had continued in service for a period over thirteen years. Commenting further on the ground mentioned in Annexure-6, a report of the Five Men Committee constituted under the order of this Court wherein the appointment of the petitioner was found to be forged with a specific findings that appointment letter of the petitioner was not issued from the office concerned, he had submitted that either the reasons given by the Five Men Committee may be correct or the reasons given in the impugned order may be correct, inasmuch as, both of them cannot 3 stand to each other. Counsel for the State placing reliance on the counter affidavit would submit that when this Court had directed in its judgment dated 26.6.2006 in the case of State of Bihar Vs. Purendra Sulan Kit reported in 2006(3)PLJR 386 to constitute a Five Men Committee and examine each and every appointment including that of the petitioner, it was found that as a matter of fact, the appointment letter of the petitioner was forged and that it was never issued by the competent authority, namely, Civil Surgeon cum Chief Medical Officer, Madhubani. He has however not explained as with regard to the reasons given in Annexure-2, the initial order of termination of service of the petitioner passed in the year 2001, wherein, his appointment was assailed to be both illegal as also forged. In reply, Mr. Chakraborty would submit that such findings arrived by the Five Men Committee was in violation of principle of natural justice, inasmuch as, such a finding was recorded without giving a notice and/or opportunity of hearing. In this particular case, there are different grounds for the authorities to take action. First of all, the petitioner was appointed as a Tikakar (Vaccinator) and, therefore, the 4 first thing to be found was as to whether the petitioner had possessed the qualification and experience and other requisite condition for being appointed on the post of Tikakar (Vaccinator). An ordinary persons could be appointed on the post of Tikakar unless he was backed with some sort of experience and/or certificate of being able to do the work of Vaccinator. Nothing of this sort has been brought on record to show that when the authorities had published no advertisement and had not conducted any selection process of the petitioner, how and in which way his appointment was made against a post of Tikakar. If the petitioner can still demonstrate before the Director-in-Chief that he was qualified to be appointed on the post of Tikakar and he possesses the requisite qualification before the date of his appointment, he may at least establish his claim of being appointed by the Civil Surgeon, Madhubani. There is yet another aspect which would be sufficient to hold that there was no advertisement in the newspaper for filling up the post of Tikakar on which the petitioner came to be appointed on 31.12.1988, inasmuch as, the appointment letter itself mentions that the petitioner could be subjected to selection process 5 at a subsequent date. Thus, it becomes clear that the Civil Surgeon had appointed the petitioner without going through any selection process as well. Learned counsel for the petitioner, however, has relied on paragraph no.5 of the writ application which reads as follows:- “5. That it is submitted that in pursuant of direction passed by the Director in Chief, Health Services, Bihar Patna and upon recommendations made by the Committee constituted for appointment of vaccinators class IV in the flood affected area where the epidemic like situations was prevailed, the Civil Surgeon Cum Chief Medical Officer Madhubani, the competent appointment authority invited applications for few posts of vaccinators class IV in the month of November December 1988 through his office notice board from the candidates having minimum qualification of matriculate. The petitioner also applied for the post, was conducted by the committee of officer headed by the Civil Surgeon Madhubani including the petitioner. Considering the petitioner’s past health experience and qualifications the competent authority appointed the petitioner on the post of vaccinator class IV in the pay scale of Rs. 375-430 by his office memo no. 2325 dated 31.12.88 and posted in Primary Health Centre, Ghoghardiha, the District Madhubani and since then the petitioner was working and was getting payment of salary regularly.” 6 In view of the fact that the statement of the petitioner is not only in teeth of the averments made in the appointment letter relevant portion whereof reads as follows:- ^^ftyk ds fofHkUu bdkbZ;ksa ls izkIr deZpkfj;ksa dh deh ,oa fjfDr;ksa ds lwpuk ij fo'ks’k ifjfLFkfr esa fuEufyf[kr O;fDr;ksa ds vH;kosnu ij fopkj djrs gq, budh ;ksX;rk ,oa varjfoKk ds vk/kkj ij mudh fu;qfDr muds lkeus vafdr in ,oa osrueku ij vLFkk;h rkSj ij dh tkrh gSA le;&le; ij ljdkj }kjk Lohd`r thou ;kiu HkRrk ,oa vU; HkRrk mUgsa ns; gksxhA os deZpkjh viuk ;ksxnku iUnzg fnuksa ds vanj vius uke ds lkeus vafdr LFkku ij nsaA ;ksxnku ds iwoZ mUgsa vius LokLF; dk izek.ki= lgk;d vlSfud “kY; fpfdRld ,o angst ugha ysus ,oa nsus dk “kiFk i= nsuk gksxkA Hkfo’; esa gksus okyh p;u lfefr dh cSBd esa mUgsa “kkfey gksuk gksxkA p;u lfefr ;k ljdkj ds }kjk izkIr fdlh foifjr vkns”k ds fLFkfr esa mudh lsok fcuk iwoZ lwpuk ds lekIr dj nh tk;sxhA dz0 uke ,oa irk inuke osrueku inLFkkfir LFkku 1& &&&&&& 2& &&&&&& 3& &&&&&& 4& jke dqekj jke firk Jh tud jke xzke jk/kksiqj oykV vksys xksfM+;kjh ftyk e/kqcuh fVdkdkj 375&430 rFkSo 5& &&&&&&& vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] e/kqcuh Kkikad 2325 @ fnukad 31&12&88** it would become clear that the petitioner has forgotten his initial entry, inasmuch as, even when the appointment letter itself talks of the selection process to be made and in that view, he has claimed his appointment to be made only after ongoing the process of selection. Both of them cannot be correct and therefore, this aspect can also be explained by any authentic proof of 7 selection process undertaken by the Civil Surgeon before the Director-in-Chief. The whole issue in fact gets further complicated when it is found in Annexure-6 as also in the counter affidavit that the petitioner’s appointment letter was itself found to be forged with a specific finding that no such appointment letter was ever issued by the Civil Surgeon of Madhubani district. Difficulty, however, for the petitioner would be that there is also a finding in the same termination letter that when he was asked to file a show-cause reply he did not choose to do so and, therefore, whatever findings has been arrived in the case of the petitioner is in fact based on a general impression created as with regard to sixteen persons for whom there was a common order of termination of service. The appointment of a person being based on a forged/fake appointment letter would clothe him with no right to continue in service as was held by the 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 8 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 situation Article 311 of the Constitution is not attracted at all. 16. In Ishwar Dayal Sah v. State of Bihar the 9 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 10 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 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 11 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 12 allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud.” (underlining for emphasis) In view of the law laid by the Apex Court as specifically underlined and the finding of the appointment letter of the petitioner to be forged there was little option but to dismiss this writ application could have dismissed the writ application but learned counsel for the petitioner is quite emphatic in his submission that the appointment letter of the petitioner is not forged and that the petitioner can still prove this by producing his original appointment letter before a higher authority to the Civil Surgeon who had earlier passed the impugned order against the petitioner. Considering all these aspects, this Court will give liberty to the petitioner to produce the original copy of the appointment letter before the Director-in-Chief and it will be the duty of the Director-in-Chief to get the same examined from the authority concerned whose signature is said to be forged as also whether the said order was ever issued by the office of the Civil Surgeon, Madhubani. This Court while directing the Director-in-Chief to hold a detailed enquiry is conscious that there is an allegation of appointment of the petitioner being itself forged, 13 a findings which itself has been arrived on account of the earlier order of remand passed by the division bench of this Court in the case of Purendra Sulan Kit (supra) it would give one last indulgence to the petitioner to file his self contained representation enclosing not only his original appointment letter but also any other evidence in support of his claim appointment against the post of Vaccinator the Director-in- Chief who thereafter will be required to go into all the relevant aspects as explained above and dispose of such representation by a reasoned order after obtaining specific prior approval of the Principal Secretary of the Health Department within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction, this application is disposed of. Patna High Court Dated the 14th November 2011 N.A.F.R./Rsh (Mihir Kumar Jha, J.)