IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 12087 of 2008. Judgment Reserved on 25.05.2011. Date of decision: 18.06.2011. _______________________________________________________ Mrs. Santosh Sharma ….. Petitioner. Versus State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Ms. Ranjana Parmar, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl.A.G. with No.1 and 2. Mr. J.S.Rana, Asstt. A.G. For the Respondent : None. No.3. Kuldip Singh, Judge. The petitioner has prayed a direction to the State to grant family pension to her from the date of death of her husband Dr. R.P.Sharma along with arrears. The prayer has also been made to release the other retiral benefits such as gratuity, leave encashment etc. to the petitioner along with interest. In alternative, it has been prayed that State may be directed to regularize the services of Dr. R.P.Sharma retrospectively in order to provide pensionary benefits to petitioner and thereafter the pensionary benefits may be ordered to be released to the petitioner along with interest. 2. The facts, in brief, are that Dr.R.P.Sharma, husband of the petitioner, joined service of respondent-department on 19.11.1977. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 The work and conduct of Dr. R.P.Sharma was throughout to the entire satisfaction of his superiors, but services of Dr. R.P.Sharma were not regularized. He represented several times to the competent authority for regularization of his services, but to no effect. 3. Dr. R.P.Sharma was appointed on contract basis for three years at the initial stage, he remained in the service of respondent- department for a period of more than 26 years. The case for regularization of services of Dr. R.P.Sharma remained under correspondence. On 31.08.2001 the case of Dr. R.P.Sharma was sent to Public Service Commission and it was recommended to consider his case for regularization. The Personnel Department advised that consultation with the Public Service Commission is necessary. It was also stated in the communication that it would be unfair in case total service of Dr. R.P.Sharma is washed out. 4. The matter regarding regularization of services of Dr.R.P.Sharma remained under correspondence with the department. In the meantime, show cause notice dated 23.12.2003 was issued to Dr.R.P.Sharma alleging therein that he was registered with Bihar Medical Council, but on inquiry it was found that Dr.R.P.Sharma was not registered with Bihar Medical Council, Dr. R.P.Sharma was directed to submit the original certificates with MBBS Degree. Dr. R.P.Sharma sent the requisite documents to the competent authority in December, 2003 and the department was also informed vide communication dated 01.01.2004. Dr. R.P.Sharma had already given his MBBS Degree to the competent authority on 21.06.2002. 5. The petitioner pursued her case for grant of family pension and other benefits with the authorities and the petitioner was released 3 G.P.Fund. She was, however, directed to submit family pension papers vide communication dated 17.08.2004, but pension has not been released to the petitioner. On the contrary, the petitioner was informed vide communication dated 29.03.2004 that services of Dr.R.P.Sharma have been terminated on 28.02.2004. 6. Inaction of the respondents to release the family pension to the petitioner is wrong, illegal and against Articles 14, 16 of the Constitution of India. It has been alleged that pension is not a bounty but is earned by the government servant after putting more than 10 years of service with the department. The petitioner believes that family pension has been refused to the petitioner on the ground that Dr. R.P.Sharma was serving the department on contract basis. It has been alleged that contract appointment is temporary service and same is to be counted for the purpose of pensionary benefits. The temporary service of the husband of the petitioner is to be recognized as qualifying service for pensionary benefits, therefore, the petitioner is entitled for grant of family pension on account of 26 years of service rendered by Dr. R.P.Sharma in the department. 7. It has been alleged that Dr. R.P.Sharma had put more than 26 years of service , but he was not regularized which resulted in perpetual injustice to Dr. R.P.Sharma and consequently to the petitioner. It has been alleged that regularization of services of Dr.R.P.Sharma requires only paper exercise which can be done by ordering ex-post facto regularization of services of Dr.R.P.Sharma. 8. The termination of services of Dr.R.P.Sharma is not a bar for grant of pensionary benefits. The petitioner is entitled to family pension as well as other benefits which flow from the services 4 rendered by Dr.R.P.Sharma. The temporary/quasi-permanent government servant and their families are eligible for grant of family pension and gratuity on the same scale as is admissible to the permanent government servants in CCS(Pension) rules. 9. The respondents No.1 and 2 have contested the petition by filing joint reply in which preliminary objections have been taken that the petitioner has no locus-standi to file the petition. The husband of the petitioner was offered appointed as GDO,Grade-II, on contract basis vide memo dated 14.11.1977 (11.11.1977). He continued to perform his duties on contractual basis till 28.02.2004 when services of Dr.R.P.Sharma were terminated after conducting inquiry in which it transpired that he had obtained fake certificate of MBBS Degree from Lalit Naryan Mithila University, Kameshwarnagar, Darbhanga. In these circumstances, on account of termination of services of Dr.R.P.Sharma, no pensionary benefits can be granted to the petitioner. The service of Dr.R.P.Sharma was illegal. 10. On merits, it has been stated that Dr.R.P.Sharma was not appointed on regular basis. He was appointed on contract basis for a period of three years and continued to work in the same capacity till his death on 01.03.2004. The Rule 2(g) of CCS (Pension) Rules, 1972, has been relied for refusing family pension to the petitioner on the ground that the appointment of Dr.R.P.Sharma was contractual and in the terms and conditions of his contract appointment, there was no provision for pension. It has been stated that regularization of services of Dr.R.P.Sharma was under consideration, but on verification it was found that Dr.R.P.Sharma had obtained false certificate, as such, his 5 services were terminated. The respondents No.1 and 2 have prayed for dismissal of the petition. 11. The Principal Secretary (Health) to the Government of Himachal Pradesh in pursuance to order dated 01.09.2010 has filed an affidavit in which he has stated that case for regularization of services of Dr. R.P.Sharma was processed at the government level and was placed before the Cabinet on 12.06.2002, but the same was withdrawn. Before taking any fresh decision, it was desired to obtain the copy of MBBS Degree and registration certificate in respect of Dr.R.P.Sharma. The Registrar, Bihar Council of Medical Registration, Patna, was requested vide letter dated 22.10.2002 to verify as to whether Dr. R.P.Sharma was actually registered with the said Institution. The Registrar, Bihar Council of Medical Registration, in response vide letter dated 25.11.2003 intimated that on verification of the records, it was found that Dr.Ram Partap, son of Shri Brahma Nand, Village Chandi, District Solan, is not registered with the Council vide registration No. 11319 dated 04.01.1977. The registration certificate, the photocopy of which was sent by the State Government, was not issued by their Office. 12. In the affidavit, it has also been stated that after receipt of letter from Registrar, Bihar Council of Medical Registration, Patna, Dr. R.P.Sharma was issued show cause notice dated 23.12.2003, but no explanation/reply was submitted by Dr.R.P.Sharma to the show cause notice. Therefore, it was decided by the Government to terminate his services under Rule 5(1) of Temporary Service Rules and also register a criminal case against Dr.R.P.Sharma for cheating the department. The services of Dr.R.P.Sharma were terminated vide order dated 6 28.02.2004 and the order was forwarded to the Chief Medical Officer, Solan with the request to serve termination order on Dr. R.P.Sharma. The Chief Medical Officer, Solan, in response to termination order dated 28.02.2004 intimated the Government that Dr.R.P.Sharma committed suicide on 01.03.2004, as such, it was not possible to serve the notice to him. The G.P.F. amount of Dr. R.P.Sharma was ordered to be released and the Chief Medical Officer, Solan was informed accordingly vide letter dated 18.08.2004. It was also decided to get the MBBS Degree of Dr. R.P.Sharma verified. The Vice Chancellor, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga, Bihar, was requested vide letter dated 02.09.2004 for verificartion of MBBS Degree of Dr.R.P.Sharma. In response to said letter, the Principal, Darbhanga Medical College, Leharia Sarai, intimated vide letter dated 01.11.2004 that as per their record Dr. Ram Partap Sharma was neither enrolled in the said Medical College nor appeared in the final exams of MBBS. 13. On receipt of aforesaid letter, the Government had decided that since the MBBS Degree and registration of Dr. R.P.Sharma was found fake, hence, his case for regularization for the purpose of entitlement of his retiral benefits cannot be considered and the matter was closed. The Director Health Services was intimated vide letter dated 20.07.2005. It has also been stated in the affidavit that the matter was examined afresh, the wife of Dr. R.P.Sharma is not entitled to any retiral benefits. The G.P.F. amount due has already been released in her favour. 14. The petitioner in her reply to the affidavit of Principal Secretary (Health) has stated that the contention of the State that 7 verification done by the State regarding the registration of the husband of the petitioner with Bihar Council of Medical Registration on the basis of which the State has arrived at the conclusion that the Degree of MBBS of the husband of the petitioner is fake, is not correct. The services of the husband of the petitioner were terminated on 28.02.2004 without verifying the veracity of the Degree of the petitioner. The termination of the services of the husband of the petitioner is illegal and, therefore, the petitioner is entitled to family pension. The petitioner has not been held entitled for retiral benefits only on the ground that the matter has been closed and the Degree of the husband of the petitioner was found fake. These decisions were required to be looked into by the respondent No.1 afresh. But, there is nothing on the record to suggest that the matter was examined afresh by the respondent No.1. 15. I have heard Ms. Ranjana Parmar counsel for the petitioner and Ms. Ruma Kaushik, learned Additional Advocate General assisted by Mr. J.S.Rana learned Assistant Advocate General. Ms. Parmar has relied Shakuntla Devi versus The State of Himachal Pradesh and others 1988(2) SLC 18. 16. Dr. R.P.Sharma was appointed on contract basis vide memo dated 11.11.1977. In the memo dated 11.11.1977, it has been stated that appointment shall not be governed by Temporary Service Rules, 1965. Dr. R.P.Sharma was appointed for three years but somehow or the other he continued in the service. There is nothing on record to show that after memo dated 11.11.1977 any other appointment letter was issued in favour of Dr. R.P.Sharma after the period provided in the memo dated 11.11.1977 was over. The 8 continuation of Dr. R.P.Sharma in service after the period provided in the memo dated 11.11.1977 cannot be construed on terms other than provided in the memo dated 11.11.1977. Thus, it can be safely concluded that Dr. R.P.Sharma continued to serve the department on terms and conditions mentioned in the memo dated 11.11.1977. As per term and condition No. Vii of memo dated 11.11.1977, the Central Civil Services (Temporary Service) Rules, 1965, were not applicable to the appointment of Dr. R.P.Sharma, hence, his services could not be terminated by invoking Rule 5 of Central Civil Services (Temporary Service), Rules, 1965. But, it does not improve the case of the petitioner in any way. Dr. R.P.Sharma continued to serve the department as contract employee till he committed suicide on 01.03.2004 on which date in view of death of Dr. R.P.Sharma, his contract of employment would be deemed to have come to an end. 17. The important question involved in the petition is regarding the appointment of Dr. R.P.Sharma. It is common case of the parties that Dr. R.P.Sharma was appointed vide memo dated 11.11.1977 on contract basis. It is very surprising that for more than 26 years Dr. R.P.Sharma served the department without facing the Public Service Commission for regularization of his appointment even though it was provided in the memo dated 11.11.1977 that he would be allowed to apply the Public Service Commission for regular appointment and in the event of selection in the first attempt, his contract service would count for all purposes including seniority. There is no explanation why Dr. R.P.Sharma did not face Public Service Commission for regularization of his service. He wanted regularization of his service by invoking the powers of the Government without facing Public Service 9 Commission. The reluctance on the part of Dr. R.P.Sharma to face Public Service Commission was not without motive in view of facts unfolded later on. It appears he was apprehensive that his attempt for regularization through Public Service Commission would open Pandora’s box and he would not be able to save his appointment even on contract basis. 18. It has come on record that Registrar, Bihar Council of Medical Registration, Patna, was requested vide letter dated 22.10.2002 to verify as to whether Dr. R.P.Sharma had actually registered with the said Council. The Registrar, Bihar Council of Medical Registration vide letter dated 25.11.2003 intimated that on verification of the record, it was found that Dr. Ram Partap, son of Shri Brahma Nand, resident of Village Chandi, District Solan is not registered with the Council vide registration No. 11319 dated 04.01.1977. The registration No. 11319 dated 04.01.1977 is the same which the petitioner has filed and relied in support of her contention that Dr. R.P.Sharma was registered with the Bihar Council of Medical Registration. The petitioner has placed on record copy of MBBS Degree issued by Lalit Narayan Mithila University showing that Ram Partap Sharma (Dr. R.P.Sharma) had allegedly passed out MBBS from Darbhanga Medical College, Leharia Sarai, in the year 1976. 19. The Principal, Darbhanga Medical College, Leharia Sarai, intimated vide letter dated 01.11.2004 that as per their record Dr. Ram Partap Sharma was neither enrolled in the said Medical College nor appeared in the final exams of MBBS. The petitioner has contested the stand of the respondents on the ground that the letter dated 01.11.2004 of Principal, Darbhanga Medical College, has not been 10 placed on record. This is no ground to disbelieve the stand of the respondents that Dr. R.P.Sharma got employment on the basis of fake documents. It is not the stand of the petitioner that affidavit dated 15.10.2010 of Principal Secretary (Health) is not in consonance with the material which is with the Government. 20. The petitioner has not alleged any malafide against Principal, Darbhanga Medical College, when he informed the Government that Dr. Ram Partap Sharma was neither enrolled in the Darbhanga Medical College, Leharia Sarai nor appeared in the final MBBS examination. The petitioner has also not alleged any malafide against Registrar, Bihar Council of Medical Registration intimating the Government that Dr. Ram Partap Sharma was not registered with the Council vide registration No. 11319 dated 04.01.1977. The department issued show cause notice to Dr. R.P.Sharma, but instead of replying to the show cause notice, Dr. R.P.Sharma committed suicide as per the stand of the respondents. There is no allegation of malafide against Principal Secretary (Health). 21. Dr. R.P.Sharma has served the department for over 26 years after obtaining employment. There cannot be any equity when it comes in conflict with law, more so, in the present case where it has been established that Dr. R.P.Sharma obtained employment as Doctor on the basis of fake documents. He committed fraud and fraud vitiates everything. In LAZARUS ESTATES, LTD. v. BEASLEY (1956) 1 All ER 341, it has been held as under:- “……..I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. 11 Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;….” 22. In Bhaurao Dagdu Paralkar versus State of Maharashtra and others (2005) 7 SCC 605, it has been held as follows:- “11. “Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.” 23. The Supreme Court in Bank of India and Another versus Avinash D.Mandivikar and Others (2005) 7 SCC 690 on the point of fraud has held as follows:- “8. Stand of Respondent 1 employee is to the effect that he has put in nearly three decades of service and has about three years to go before retirement, and in terms of the High Court’s order he has been denied promotion. Therefore, the order of the High Court is an equitable order.” “9. A similar plea about long years of service was considered by this court in R.Vishwanatha Pillai v. 12 State of Kerala to be inconsequential. In para 19 it was observed: (SCC pp. 116-17) “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 certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for 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 practising fraud.” 24. The Supreme Court in Union of India versus Dattatray S/o Namdeo Mendhekar and Others (2008) 4 SCC 612 has held that a person secures appointment on the basis of false caste certificate, he cannot be allowed to retain the benefit of wrong committed by him and his services are liable to be terminated. 13 25. Shakuntla Devi (supra) is a case where services of a daily rated employee who served for 29 years were not regularized and no service benefits were given to him during his life time and after his death. No pensionary benefits were given to the dependents. On the facts of that case, the Court had directed the State Government to consider the question of granting to the deceased-husband of the petitioner in that case the benefit of ex-post-facto regularization of services and to work out the amount of monetary benefits including pensionary benefits due and admissible in accordance with law to the petitioner. In the present case, the appointment of the deceased was based upon fraud, misrepresentation which vitiates everything, hence Shakuntla Devi (supra) is not applicable. 26. The appointment of Dr. R.P.Sharma was tainted with fraud and misrepresentation and on facts which to the knowledge of Dr. R.P.Sharma were not true, rather false, therefore, no benefit of service rendered by Dr. R.P.Sharma could be given to petitioner or Dr. R.P.Sharma. In these circumstances, there is no question of regularization of services rendered by Dr. R.P.Sharma. The petitioner is not entitled to family pension on account of services rendered by Dr. R.P.Sharma to the department. Thus, seen from any angle, petitioner has no case. In view of above, there is no merit in the petition which is accordingly dismissed. June 18, 2011. (Kuldip Singh), (krt) Judge.