IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14521 of 2009 Smt.Lalita Kumari, aged about 49 years, wife of Sri Chandra Shekhar Prasad Singha, posted as Auxiliary Nurse Midwifery (ANM) in Addl, Primary Health Centre, Kurtha Block, Arwal (Jehanabad), presently resident of village Srinagar, P.S. Masaurhi, District Patna … Petitioner Versus 1. The State Of Bihar through the Director-in- Chief, Health Services, Bihar, Patna 2. The Civil Surgeon cum Chief Medical Officer, Aurangabad, Bihar 3. The Civil Surgeon cum Chief Medical Officer, Jehanabad, Bihar 4. The Incharge Medical Officer, Addl. Primary Health Centre, Kurtha Block Arwal, District Jehanabad … Respondents ----------- For the Petitioner : Mr. Ajay Kumar Chakraborty, Advocate For the State : A.A.G.-7 ----------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (17.11.2011) Mihir Kumar Jha, J. Heard counsel for the parties. The petitioner is aggrieved by an order of her termination dated 28.2 .2003 whereby and whereunder her appointment on the post of Auxiliary Nurse Midwife (ANM) has been cancelled by declaring that her very appointment letter, as contained in Memo No. 167 dated 23.1.1986 was a forged letter, inasmuch as such a letter was never issued from the office of the Civil Surgeon, Aurangabad. Mr. Ajay Kumar Chakraborty, learned counsel for the petitioner, would submit that the petitioner had 2 completed 17 years of service before being subjected to the impugned order of termination which was passed without giving any notice and/or opportunity of hearing to her. In this context he has drawn attention of this Court towards paragraph no.6 to the writ application. He has also submitted that the impugned order of termination was thereafter challenged by the petitioner in C.W.J.C.No. 4589/2008 and this Court by an order dated 9.7.2008 had directed the authorities to communicate the result of ongoing enquiry against the appointment of the petitioner. It is the specific case of the petitioner that no such order has been passed thereafter and the petitioner still remains out of service. In this case no counter affidavit has been filed and therefore, the counsel for the respondents is not in a position to give any effective assistance to this Court. This Court, however, has gone into the pleadings to examine the issue of violation of principle of natural justice. Paragraph no.6 of the writ application on which reliance was placed by the learned counsel for the petitioner in this regard reads as follows:- “6. That it is submitted that since her appointment as A.N.M., she remained for long 17 years of continuous and unblemished service. Service book was also opened and after through verification of letter of appointment and posting, her service was also confirmed but surprisingly and despite the fact that her appointment was made by the competent authority on a vacant and sanctioned post and despite a satisfactory reply to show 3 cause was given, her service was terminated by memo no.215 dated 28.2.2003 only on a flimsy ground after about 17 years of continuous service that the letter of appointment contained in memo no.167 dated 23.1.86 has not been issued from the office of the respondent no.2 and the services of the petitioner was terminated without proper enquiry and without affording adequate opportunity to be heard in person or holding any departmental proceeding as required to.” Thus, from reading of paragraph no.6 of the writ application, it does not transpire that the petitioner had made any allegation of violation of principle of natural justice. In paragraph no.6 in fact the petitioner has only emphasized that her services were terminated without proper enquiry and without affording adequate opportunity of hearing in person or holding any departmental proceeding. In that view of the matter, this Court would find it difficult in accepting the plea of violation of principle of natural justice. As with regard to the not holding a departmental proceeding prior to termination of the services of the petitioner, this Court must record that the impugned order was passed by the Civil Surgeon of Jehanabad district clearly recording that the appointment letter of the petitioner was forged. Once the appointment letter of the petitioner was found to be forged, there would be no question of holding any departmental proceeding as was held in the case of R. Vishwanatha Pillai Vs. State of Kerala 4 & Ors. reported in 2004(2)SCC 105 wherein the Apex Court in this regard had led down 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 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 5 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 Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his 6 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 certificate. A person who entered the service by producing a false caste 7 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) Normally having held so, that the appointment letter of the petitioner was itself forged which in view of the underlined portion of the aforesaid judgment of Apex Court did not confer the any right to hold such post this Court would have dismissed the writ application but in view of the oral prayer made by Mr. Chakrabory the learned counsel for the petitioner that the petitioner can still demonstrate that the allegation of her appointment letter of being forged was absolutely incorrect and that she can establish this aspect by producing her original appointment letter, this Court by way of last indulgence would give an opportunity to the petitioner to file her representation before the Director- in-Chief, a superior authority of the Civil Surgeon, 8 Jehanabad who had earlier passed an order of termination who thereafter would verify the original appointment letter produced by the petitioner and if it is found that the appointment letter of the petitioner is neither forged nor fake he would pass an appropriate order for reinstatement of the petitioner back in service especially when the petitioner is said to be a qualified Nurse having her registration from the Bihar Nurses Registration Council. If, on the other hand, the Director-in-Chief would find that the appointment letter of the petitioner was itself forged he would pass an appropriate speaking order rejecting the claim of the petitioner for reinstatement in service. This exercise however must be completed by the Director-in-Chief of Health Services within a period of six months from the date of filing of the representation by the petitioner. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Patna High Court Dated the 17th November 2011 N.A.F.R./Surendra/