IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14144 of 2007 Subash Jha, son of late Indra Mohan Jha, resident of Village Dariyapur, P.O. Dariyapur Dih, P.S. Sajour, Dist. Bhagalpur, presently posted as Teacher in Nathan Mahto High School, Pan, Post Tilkapur, Dist. Bhagalpur. -------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Department of Education, Bihar, Patna. 3. The Director, Secondary Education, Bihar, Patna. 4. The Deputy Development Commissioner-cum-Chief Executive Officer, District-Board, Bhagalpur. 5. The District Education Officer, Bhagalpur. 6. The Principal, Government Nathan Mahto High School, Pan, Post- Tilakpur, Bhagalpur. ----------- Respondents ----------- 2 22.11.2011 No one appears on behalf of the petitioner. Counsel for the State is present. The prayer of the petitioner in this writ application for payment of salary both arrear and current since May, 2007 as also to quash the show-cause notice dated 8.8.2007 seems to be wholly misconceived, inasmuch as, no writ application would lie against a show- cause notice. The payment of salary of the petitioner would also not be admissible as his certificate of training was itself found to be forged. In that view of the matter, when the specific assertion of the respondents as with regard to the training certificate produced by the petitioner to be forged has also not 2 been denied by the petitioner by filing any rejoinder affidavit despite service of a copy of the counter affidavit on 27.2.2008, this Court will have no difficulty in now accepting the plea of the respondents that the appointment of the petitioner was fraudulent in nature on account of the production of forged certificate by the petitioner. Such forged appointment cannot bestow any benefit of payment of salary as was held by the Full Bench of this Court in the case of Rita Mishra & Ors. and 12 other cases Vs. Director, Primary Education, Bihar & Ors. Vs. reported in 1987 PLJR 1060 which was also affirmed 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. 3 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 theRules 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. 4 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 5 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 6 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 7 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) 8 That being so, this application is wholly misconceived and is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)