# Ankit Chaudhary v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-09
- **Case number:** Special Appeal No. 184 of 2023
- **Bench:** Mrs. Sunita Agarwal J. Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankit-chaudhary-v-state-of-u-p-ors-50489
- **Pages:** 11

## Headnote

Civil Law - service law- learned single
judge's order upholding the cancellation
of appointment of petitioner-petitioner
appointed
as
constable-appointment
cancelled on ground of impersonationdifference
between
cancellation
of
appointment- dispensation of services by
way of dismissal, removal or terminationdisciplinary proceedings not requiredimpugned order does not consider the
forensic report provided by the petitioner-
impugned order violates principles of
natural justice- impugned order set aside-
special appeal partly allowed. (Paras 20,
21, 23, 27, 29 and 30)

HELD:
6 All. Ankit Chaudhary Vs. State of U.P. & Ors.
985
The
primary
issue
which
needs
to
be
considered, firstly is as to whether it was legally
open for the appellant / writ petitioner to insist
for holding regular departmental enquiry in the
matter of cancellation of the candidature and
delisting of his name from the list of selected
candidates or not. Though the rival parties have
cited umpteen number of decisions, but we
would deal them later. Before delving into said
issue, we have to bear in mind the nature of the
order, which is being passed to the detriment of
an employee/ candidate. There are two sets of
the punitive order, namely an order cancelling
the appointment for whatever reason it might
be and secondly, an order dispensing with the
services of an employee/ candidate either by
resorting to dismissal, removal or termination.
Another ancillary issue, which is relatable to the
conduct of an employee/ candidate, namely a
conduct
prior
to
appointment
and
post
appointment. In the first category, the conduct
can be termed an act of fraud, while obtaining
appointment. Second category personifies, a
misconduct during the course of employment
which definitely falls within the scope of
departmental rules for taking disiplinary action
against the employee either by way of resorting
to the procedure for minor punishment or major
punishment as the case may be. In the matters
of cancellation of appointment relatable to
obtaining of appointment by fraud, the parties
before us have not produced any rule, for
holding
regular
departmental
proceedings.
However, from the judgment so cited by the
rival parties, it can be safely gathered that in
the matter of a misconduct during the course of
employment post appointment relatable to
certain act or omission either forbidden or not
required to be committed as per the Conduct
Rules, regular departmental proceedings are to
be held. (Para 20)

Here,
in
the
present
case,
no
regular
departmental
enquiry
is
required
to
be
conducted as it is a case of cancellation of
appointment. As regards reliance placed upon
Subhash Chand Maurya's (supra) case is
concerned, the same is also of no aid to the
appellant/ writ petitioner as that was a case,
wherein there was termination of the services of
an employee. Similarly, Reeta Yadav's case
(supra) is also not applicable to the present
case, the same is related to the punishment of
dismissal emanating from the allegation of
submission of forged document in order to
procure appointment in the department. (Para
23)

Recently, in the case of St. of Bihar & ors. Vs
Devendra Sharma (2020) 15 SCC 466, the
Hon'ble Apex Court has observed that an
appointment made on the basis of forgery is
void ab initio. More recently, the Hon'ble Apex
Court in the case of Chief Executive Officer,
Bhilai Steel Plant, Bhilai Vs Mahesh Kumar
Gonnade, AIR 2022 SC 3356 has held that an
appointment procured on the basis of false
certificate does not create any equity. (Para 27)

Now a question arises as to whether nonconsideration of the report of the Foresnsic
Expert relied upon by the appellant/writ
petitioner would vitiate the orders impugned
before the writ court or not. Basically the very
purpose for issuance of a show cause notice is
to
apprise
the
other
person
about
the
allegations which he/she has to meet, requiring
the other party to submit its reply effectively.
Here in the

## Text

984 INDIAN LAW REPORTS ALLAHABAD SERIES
Selection Board in accordance with the
statutory provision, shall qualify and be
counted as "qualifying service", within the
meaning of Rule 19(b) of the Rules 1964.
The writ petitioners who have completed
10 years of qualifying service within the
meaning of Rules, 1964, as noted above,
shall be eligible for superannuation pension
and other retiral benefits as applicable
under the Rules, 1964.

46. We may further note that the
Rules,
1964
are
special
provisions
applicable to the teachers and non-teaching
employees
serving
in
State
Aided
Educational Institutions in the State of U.P.
The general provisions of U.P. Qualifying
Service for Pension and Validation Act,
2021 defining the term 'qualifying service'
in U.P. Retirement Benefits Rules, 1961
w.e.f 01.04.1961, applicable to 'officers'
defined in Rule 3(6) of the Rules, 1961,
which means the Government servant
having a lien on permanent pensionable
post under "the Government," would not be
applicable to the writ petitioners. All the
arguments
of
the
learned Additional
Advocate
General
to
challenge
the
correctness of the decision of the learned
Single Judge dated 30.09.2022 in Nand Lal
(supra), subject matter of challenge in
connected
special
appeals
are
found
without any force.

47. For the added reasons given above
to the reasoning assigned by the learned
Single Judge in the judgment of Nand Lal
(supra) impugned, to allow the writ
petitions no merit is found in the appeal.
The other decisions of the learned Single
Judge dated 25.07.2022 and 23.05.2022 in
allowing the writ petitions relying upon the
decision of this Court in Sunita Sharma
(supra)
also
do
not
warrant
any
interference, for the reasons given above
and the reasoning of the learned Single
Judge in the judgment and order dated
30.09.2022 in Nand lal (supra), affirmed
hereinabove.

48. For the above discussion, all the
connected special appeals are found devoid
of merits and hence dismissed.
----------
(2023) 6 ILRA 984
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 184 of 2023

Ankit Chaudhary ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Adv.)

Counsel for the Respondents:
C.S.C.

Civil Law - service law- learned single
judge's order upholding the cancellation
of appointment of petitioner-petitioner
appointed
as
constable-appointment
cancelled on ground of impersonationdifference
between
cancellation
of
appointment- dispensation of services by
way of dismissal, removal or terminationdisciplinary proceedings not requiredimpugned order does not consider the
forensic report provided by the petitioner-
impugned order violates principles of
natural justice- impugned order set aside-
special appeal partly allowed. (Paras 20,
21, 23, 27, 29 and 30)

HELD:
6 All. Ankit Chaudhary Vs. State of U.P. & Ors.
985
The
primary
issue
which
needs
to
be
considered, firstly is as to whether it was legally
open for the appellant / writ petitioner to insist
for holding regular departmental enquiry in the
matter of cancellation of the candidature and
delisting of his name from the list of selected
candidates or not. Though the rival parties have
cited umpteen number of decisions, but we
would deal them later. Before delving into said
issue, we have to bear in mind the nature of the
order, which is being passed to the detriment of
an employee/ candidate. There are two sets of
the punitive order, namely an order cancelling
the appointment for whatever reason it might
be and secondly, an order dispensing with the
services of an employee/ candidate either by
resorting to dismissal, removal or termination.
Another ancillary issue, which is relatable to the
conduct of an employee/ candidate, namely a
conduct
prior
to
appointment
and
post
appointment. In the first category, the conduct
can be termed an act of fraud, while obtaining
appointment. Second category personifies, a
misconduct during the course of employment
which definitely falls within the scope of
departmental rules for taking disiplinary action
against the employee either by way of resorting
to the procedure for minor punishment or major
punishment as the case may be. In the matters
of cancellation of appointment relatable to
obtaining of appointment by fraud, the parties
before us have not produced any rule, for
holding
regular
departmental
proceedings.
However, from the judgment so cited by the
rival parties, it can be safely gathered that in
the matter of a misconduct during the course of
employment post appointment relatable to
certain act or omission either forbidden or not
required to be committed as per the Conduct
Rules, regular departmental proceedings are to
be held. (Para 20)

Here,
in
the
present
case,
no
regular
departmental
enquiry
is
required
to
be
conducted as it is a case of cancellation of
appointment. As regards reliance placed upon
Subhash Chand Maurya's (supra) case is
concerned, the same is also of no aid to the
appellant/ writ petitioner as that was a case,
wherein there was termination of the services of
an employee. Similarly, Reeta Yadav's case
(supra) is also not applicable to the present
case, the same is related to the punishment of
dismissal emanating from the allegation of
submission of forged document in order to
procure appointment in the department. (Para
23)

Recently, in the case of St. of Bihar & ors. Vs
Devendra Sharma (2020) 15 SCC 466, the
Hon'ble Apex Court has observed that an
appointment made on the basis of forgery is
void ab initio. More recently, the Hon'ble Apex
Court in the case of Chief Executive Officer,
Bhilai Steel Plant, Bhilai Vs Mahesh Kumar
Gonnade, AIR 2022 SC 3356 has held that an
appointment procured on the basis of false
certificate does not create any equity. (Para 27)

Now a question arises as to whether nonconsideration of the report of the Foresnsic
Expert relied upon by the appellant/writ
petitioner would vitiate the orders impugned
before the writ court or not. Basically the very
purpose for issuance of a show cause notice is
to
apprise
the
other
person
about
the
allegations which he/she has to meet, requiring
the other party to submit its reply effectively.
Here in the present case post issuance of show
cause notice, the writ petitioner submitted his
reply on 07.09.2022 along with the Forensic
Expert's Report dated 24.08.2022 disputing the
correctness, reliability and accuracy of the
report of the Forensic Expert relied upon by the
respondents. Once such a defence has been
taken on the basis of the Forensic Report of the
expert, then the principles of natural justice
required the authority to take a decision after
considering the contentions raised by the
noticee. The order dated 07.10.2022 of the
second respondent shows that the said exercise
is lacking. In the opinion of the Court, the
second respondent, U.P. Police Recruitment &
Promotion Board, Lucknow, was required to
consider and address the said issue while
coming to a final conclusion as to which of the
two reports, one submitted by the appellant/writ
petitioner and the other obtained by the
respondents was to be taken into consideration
while forming a definite and conclusive opinion
of commission of act of impersonation. Since
the said exercise has not been taken, we find
that the procedure known to law, has not been
complied with by the second respondent, U.P.
Police
Recruitment
&
Promotion
Board,
Lucknow. (Para 29)
986 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal dismissed. (E-14)

List of Cases cited:

1. U.O.I. & ors. Vs Devendra Kumar Chaudhary,
2018(9) ADJ 570

2. Avatar Singh Vs U.O.I., (2016) 8 SCC 471

3. Smt. Reeta Yadav Vs St. of U.P., Writ-A No.
11046 of 2022, decided on 01.08.2022

4. Subhash Chand Maurya Vs St. of U.P., Writ-A
No. 8117 of 2021 decided on 20.09.2021

5. R. Vishwanatha Pillai Vs St. of Kerala, (2004)
2 SCC 105

6. Devendra Kumar Vs St. of Uttaranchal (2013)
9 SCC 363

7. St. of Bihar & ors. Vs Kirti Narayan Prasad,
(2019) 13 SCC 250

8. St. of Bihar & ors. Vs Devendra Sharma
(2020) 15 SCC 466

9. Chief Executive Officer, Bhilai Steel Plant,
Bhilai Vs Mahesh Kumar Gonnade, AIR 2022 SC
3356

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Ashok Khare, learned Senior
Counsel assisted by Sri Siddharth Khare,
learned counsel for the appellant/ writ petitioner
and Sri Suresh Singh, learned Addl. Chief
Standing Counsel for the State-respondents.

2. This intra-court appeal is against the
judgment and order dated 28.02.2023 of the
learned Single Judge passed in Writ-A
No.22096 of 2022, (Ankit Chaudhary vs.
State of U.P. and three others), whereby the
writ petition of the writ petitioner was
dismissed.

3. The case of the appellant-writ
petitioner before the learned Single Judge
was that an advertisement was published in
the month of January 2018 for recruitment
on the post of Constable Civil Police and
Constable
Provincial
Armed
Constabulary. As per the writ petitioner,
he being fully eligible and qualified in all
respects
applied
for
selection
and
appointment on the post of constable under
the OBC category. The writ petitioner
claims
to
have
been
allotted
Roll
No.3311050244
and
Registration
No.105166994282. The writ petitioner
further claims to have participated in the
written
examination
conducted
on
19.06.2018 and after successfully clearing
the physical examination and subjected to
Document Verification/ Physical Standard
Test (hereinafter referred to as "DV/PST")
followed by medical examination was
accorded appointment on 15.05.2019. Post
appointment, the writ petitioner claims to
have been sent for training at Fatehpur and
thereafter, at Mainpuri.

4. While the writ petitoner was
discharging the duty on the post of
Constable in police, a complaint is stated to
have been lodged against him on the
allegation of impersonation, as in place of
the writ petitioner, somebody else appeared
in the selection process and the writ
petitioner procured appointment while
playing fraud. It is further alleged that there
were other police constables, who had
procured appointment while resorting to
impersonation and thus, a first information
report is stated to have been lodged by the
police officials before the Police Station
Etmaddaula,
Agra
registered
as
FIR
No.0389 on 08.06.2021 against as many as
9 persons, though the writ petitioner was
not marked as an accused in the said FIR.
On 20.07.2021, the writ petitioner claims to
have been summoned before the second
respondent, U.P. Police Recruitment and
6 All. Ankit Chaudhary Vs. State of U.P. & Ors.
987
Promotion Board at Lucknow, in order to
conduct enquiry and it is further alleged
that the photograhs and biometrics of the
writ petitioner were taken and, thereafter,
he was sent to Agra District Jail, Agra. The
writ petitioner thereafter is stated to have
filed a Criminal Misc. Bail Application
No.34570 of 2021, (Ankit Chaudhary vs.
State of U.P.), wherein on 01.10.2021, this
Court enlarged the applicant on bail,
consequently, the writ petitioner was
released from Jail on 26.10.2021.

5. Thereafter, the writ petitioner
claims to have approached the respondents
herein for according joining, but the same
was refused. On 30.07.2021, an order is
stated to have been passed by the second
respondent,
Chairman,
U.P.
Police
Recruitment
and
Promotion
Board,
Lucknow, whereby on the basis of an
exparte enquiry, it was found that the writ
petitioner had obtained appointment as
Police
Constable
by
resorting
to
impersonation and by fraud, thus, his
candidature was rejected and his name was
delisted from the list of selected candidates.
In
continuation
of
the
order
dated
30.07.2021 of the second respondent, a
consequential order was passed by the
fourth respondent, Senior Superintendent of
Police,
Fatehpur,
cancelling
the
appointment of the writ petitioner and
delisting him from the list of selected
candidates.

6. The writ petitioner further claims to
have preferred Writ-A No.19036 of 2021,
(Ankit Chaudhary vs. State of U.P. and 3
others) before this Court, which came to be
disposed off by the learned Single Judge
with the following directions: -

"Under such circumstances, the
order impugned dated 30.07.2021 passed
by the Chairman, U.P. Police Recruitment
& Promotion Board, Lucknow and the
order dated 07.12.2021 passed by the
Superintendent of Police, Fatehpur cannot
be sustained in the eyes of law and,
therefore, are set aside. It shall, however,
be open for the respondents to proceed
against the petitioner after relying upon
such evidence, which might be admissible
in law. The petitioner shall definitely be
given an opportunity to place his side of the
case. This exercise shall be completed
within a period of two months from the
presentation of a certified copy of this
order.

Needless to say that if any
evidence
is
being
used
against
the
petitioner it shall always be supplied to the
petitioner so that he has an opportunity to
rebut the same.

This writ petition is, accordingly,
partly allowed."

7. Consequent to passing of the order
dated 11.04.2022 in Writ-A No.19036 of
2021,
a
show
cause
notice
dated
02.08.2022 was issued by the Additional
Secretary,
Recruitment,
U.P.
Police
Recruitment and Promotion Board, second
respondent requiring the writ petitioner to
show cause within a period of five days as
to why the cancellation of his candidature
and delisting the name of the petitioner
from the list of selected candidates be not
maintained. The show cause notice dated
02.08.2022 was followed by another notice
dated 18.08.2022. On the receipt of the
above noted show cause notices, the writ
petitioner
responded
the
same
on
07.09.2022 clearly setting out that he had
not resorting to any act of impersonation
and he also disputed the Forensic Report of
the Respondent, which was made the basis
988 INDIAN LAW REPORTS ALLAHABAD SERIES
of drawing adverse inference and also
annexed the Forensic Investigation Report
dated
24.08.2022.
Further
the
writ
petitioner requesting for cross-examination
of the Forensic Expert report of which was
relied upon by the respondents insisted for
holding of regular departmental enquiry as
per the Service Rules applicable to the
Constables of the Police Department. The
second respondent, the Chairman, U.P.
Police Recruitment and Promotion Board,
Lucknow, thereafter, proceeded to pass an
order dated 07.10.2022 negating the claim
set up by the writ petitioner while
maintaining
the
previous
stand
of
cancelling the candidature of the writ
petitioner and delisting his name from the
list of selected candidates, without holding
a regular departmental enquiry.

8. Challenging the order dated
07.10.2022
passed
by
the
second
respondent, U.P. Police Recruitment and
Promotion Board, Lucknow, the writ
petitoner preferred Writ-A No.22096 of
2022, (Ankit Chaudhary vs. State of U.P.
and others) seeking following relief:

"(i) a writ, order or direction in
the nature of certiorari quashing the order
dated 07.10.2022 passed by the Chairman,
U.P. Police Recruitment & Promotion
Board, Lucknow (Annexure No. 14 to this
writ petition);

(ii) a writ, order or direction in
the nature of mandamus commanding the
respondent authorities to reinstate the
petitioner in service with all consequential
benefits on the post of Constable."

9. The above noted writ petition
preferred by the writ petitioner came to
be dismissed by the learned Single Judge
by virtue of the judgment and order dated
28.02.2023.

10. Aggrieved against the order
dated 28.02.2023 passed in Writ-A
No.22096 of 2022, the appellant/ writ
petitioner has preferred the present intracourt appeal.

11. Sri Ashok Khare, learned Senior
Counsel assisted by Sri Siddharth Khare
in support of the appeal has submitted
that the learned Single Judge has erred in
law in dismissing the writ petition raising
challenge to the order dated 07.10.2022
cancelling
the
candidature
of
the
petitioner and delisting his name from
the list of selected candidates of Police
Constables, inasmuch as, the present
case is a classic example of illegality
perpetrated
by
the
respondents
as
without resorting to principles of natural
justice,
the
appointment
of
the
appellant/writ
petitioner
has
been
cancelled, which is in direct teeth of
judgment of this Court in the earlier
round of litigation in Writ A No. 19036
of
2021
decided
on
11.04.2022
mandating the respondents to comply
with the principles of natural justice
before taking any adverse action aginst
the writ petitioner. In other words, the
submission is that since the Forensic
Report is nothing but an opinion of an
Expert and it does not partake the
character of a conclusive evidence. Until
and unless opportunity is accorded to the
writ petitioner to rebut the same while
granting opportunity to cross-examine
the author of the same, the said Forensic
Report cannot be treated as a gospel
truth. Once the said exercise was not
undertaken, the entire proceedings stood
vitiated.
6 All. Ankit Chaudhary Vs. State of U.P. & Ors.
989

12. Additionally, it is further sought
to be argued on behalf of the appellant /
writ petitioner that once a show cause
notice
was
issued
by
the
second
respondent, enabling the appellant/ writ
petitioner to submit his reply and the
appellant / writ petitioner tendered its reply
relying upon another Forensic Report,
which was contrary to the Forensic Report
relied upon by the respondents, it was
incumbent upon the second respondent to
have recorded reasons as to why the report
of the appellant/ writ petitioner should not
be given precedence.

13. In the nutshell, the submission is
that the order passed by the second
respondent cancelling the candidature of
the writ petitioner and delisting his name
from the list of selected candidates is a
serious issue, which cannot be taken lightly
in the manner, it has been done. The reply
submitted by the writ petitioner to the show
cause notice relying upon an independent
Forensic Expert Report ought to be
considered and taken note in the order
impugned by the learned Single Judge.

14. Lastly, it has been submitted on
behalf of the appellant/ writ petitioner and
the writ petitioner specifically denied the
allegations and requested for holding a
regular departmental enquiry as per the
Service Rules in order to find out the truth
of the allegations, then resorting of a shortcut method of cancellation of appointment
without holding the regular departmental
enquiry itself tantamounts to violation of
principles of natural justice, particularly,
when
the
writ
petitioner
became
a
confirmed and regular employee post
successfully completing two years of
probation as per the Uttar Pradesh Police
Constable and Head Constable Service
Rules, 2015 amended in 2017. Sri Ashok
Khare, learned Senior Counsel has relied
upon the decisions in the case of Union of
India and others vs. Devendra Kumar
Chaudhary, 2018(9) ADJ 570; Avatar
Singh vs. Union of India, (2016) 8 SCC
471; Smt. Reeta Yadav vs. State of U.P.,
Writ-A No. 11046 of 2022, decided on
01.08.2022 and Subhash Chand Maurya
vs. State of U.P., Writ-A No. 8117 of 2021
decided on 20.09.2021 to substantiate the
above submissions.

15. Sri Suresh Singh, learned Addl.
Chief Standing Counsel who appearing for
the State respondents while countering the
submission of the learned Senior Counsel
for the appellant has sought to argue that
the judgment and order of the learned
Single Judge needs no interference in the
present proceedings in view of the fact that
it is an admitted case that the writ petitioner
had
impersonated
and
procured
appointment by playing fraud. Further
submission is that the order cancelling the
candidature of the writ petitioner and
delisting his name from the list of the
selected candidates is based upon the report
of Forensic Expert, copy whereof was duly
provided to the appellant / writ petitioner.
The appellant/ writ petitioner was made
aware of the contents of the expert report
and
reasons
for
cancellation
of
appointment, merely because regular a
departmental enquiry was not conducted, it
would not be a ground to hold the order of
the learned Single Judge being bad or
vitiated, particularly, when there is no rule
requiring holding of a regular departmental
proceedings in the case of cancellation of
initial appointment having been outcome of
fraud. Sri Suresh Singh while elaborating
the said submission has argued that there is
a
marked
difference
between
the
cancellation
of
appointment
and
dispensation of the services by way of
990 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissal,
removal
or
termination.
According to him, since the present case
falls within the category of cancellation of
the appointment itself on the ground of
practising fraud by impersonation, the
procedure contemplated for holding a
regular departmental enquiry would not be
attracted. It is further argued on behalf of
the respondents that the second respondent
has considered the case of the writ
petitioner from all angles and has formed a
firm opinion on the basis of the report of
the Forensic Expert that the writ petitioner
had
impersonated
and
obtained
appointment by playing fraud. In order to
buttress the above submissions, reliance
has
been
made
upon
the
judicial
pronouncement of R. Vishwanatha Pillai
vs. State of Kerala, (2004) 2 SCC 105,
Devendra Kumar Vs. State of Uttaranchal
(2013) 9 SCC 363 and State of Bihar and
others vs. Kirti Narayan Prasad, (2019) 13
SCC 250.

16. We have heard counsels for the
respective parties and perused the record
carefully.

17. Undisputedly, on the basis of the
recruitment exercise undertaken by the
second
respondent,
U.P.
Police
Recruitment
and
Promotion
Board,
Lucknow by way of publication of the
advertisement in the month of January
2018, the writ petitioner applied for the
post of Constable under OBC category and
he was allotted Roll No.3311050244 and
Registration
No.105166994282.
The
petitioner cleared the written examination
conducted on 19.06.2018, was subjected to
DV/PST, Physical Efficiency Test and
medical
examination
and
accorded
appointment on 15.05.2019. A complaint
was lodged against the writ petitioner and
the other candidates that they had obtained
appointment
while
resorting
to
impersonation and practising fraud and,
thereafter, the writ petitioner was arrested
and consequently, by an order of this Court
enlarged on bail.

18. Challenging the order dated
30.07.2021 and 07.12.2021 cancelling the
candidature of the writ petitioner and
delisting his name from the list of the
selected candidates, the writ petitioner
preferred Writ-A No. 19036 of 2021
(Ankit Chaudhary vs. State of U.P. and
others) on the ground that in an exparte
manner without issuing any show cause
notice and granting opportunity to the writ
petitioner to tender his reply on the basis of
the report of the Forensic Expert, his
services were dispensed with. This Court
by virtue of the order dated 11.04.2022
quashed the orders dated 30.07.2021 and
07.12.2021 of the respondents being in
violation of principles of natural justice
leaving it open to them to proceed against
the writ petitioner after relying upon the
evidences, which might be available in law
and the respondents were directed to give
opportunity to the writ petitioner to place
his side of the case. It was further provided
that if any evidence is being used against
the writ petitioner, it would be supplied to
be writ petitioner so that he may have
opportunity to rebut the same.

19. The remand, the respondents
issued a show cause notice to the writ
petitioner on 02.08.2022 followed by
another notice dated 18.08.2022 requiring
the writ petitioner to put forward his stand
with
regard
to
the
allegations
of
impersonation as well as the inputs in the
shape of the Forensic Report relied upon to
hold
the
writ
petitioner
guilty
of
impersonation.
The
writ
petitioner
submitted his reply on 07.09.2022 raising
6 All. Ankit Chaudhary Vs. State of U.P. & Ors.
991
two issues; (a) a regular departmental
enquiry under the Service Rules be
conducted; (b) Opportunity to crossexamine the author of the Forensic Report
be afforded to him; (c) the proceedings be
dropped as the writ petitioner relies upon
the Forensic Report dated 24.08.2022,
which in turn negates and makes the
Forensic
Report
of
the
respondents
unreliable and inaccurate. According to the
learned counsel for the appellant/writ
petitioner, by a totally non-speaking and
unreasoned order, while none of the
contentions of the writ petitioner has been
considered, his candidature has been
cancelled followed by delisting his name
from the list of selected candidates.

20. The primary issue which needs to
be considered, firstly is as to whether it was
legally open for the appellant / writ
petitioner to insist for holding regular
departmental enquiry in the matter of
cancellation
of
the
candidature
and
delisting of his name from the list of
selected candidates or not. Though the rival
parties have cited umpteen number of
decisions, but we would deal them later.
Before delving into said issue, we have to
bear in mind the nature of the order, which
is being passed to the detriment of an
employee/ candidate. There are two sets of
the punitive order, namely an order
cancelling the appointment for whatever
reason it might be and secondly, an order
dispensing
with
the
services
of
an
employee/ candidate either by resorting to
dismissal, removal or termination. Another
ancillary issue, which is relatable to the
conduct of an employee/ candidate, namely
a conduct prior to appointment and post
appointment. In the first category, the
conduct can be termed an act of fraud,
while
obtaining
appointment.
Second
category personifies, a misconduct during
the course of employment which definitely
falls within the scope of departmental rules
for taking disiplinary action against the
employee either by way of resorting to the
procedure for minor punishment or major
punishment as the case may be. In the
matters of cancellation of appointment
relatable to obtaining of appointment by
fraud, the parties before us have not
produced any rule, for holding regular
departmental proceedings. However, from
the judgment so cited by the rival parties, it
can be safely gathered that in the matter of
a
misconduct
during
the
course
of
employment post appointment relatable to
certain act or omission either forbidden or
not required to be committed as per the
Conduct
Rules,
regular
departmental
proceedings are to be held.

21. Here, in the present case, the
entire allegations leveled upon the writ
petitioner are relatable to an act of
impersonation
while
obtaining
appointment. The respondents have relied
upon the report of the Forensic Expert,
which prior to the passing of the order
dated 30.07.2021 and 07.12.2021 was not
served to the writ petitioner and without
issuing show cause notice adverse orders
were passed. On challenge being raised by
the writ petitioner, this Court in the earlier
round of litigation vide order dated
11.04.2022 though noticed the argument of
the
writ
petitioner
that
the
regular
departmental enquiry ought to have been
conducted as per the Service Rules
applicable, but in the operative portion of
the order, which has been extracted in the
earlier part of the judgment while setting
aside the orders under challenge left it open
to the respondents to proceed against the
writ petitioner after relying upon the
evidence which might be admissible in law
and the writ petitioner was made entitled to
992 INDIAN LAW REPORTS ALLAHABAD SERIES
be given opportunity to place his version
and any of the inputs, which would be
relied was to be supplied to the writ
petitioner to rebut the same. The said
observations are not only clinching but also
governs the further course of action, which
is to be adopted post passing of order dated
11.04.2022. It is not the case of the
appellant/ writ petitioner that a show cause
notice was not issued to him as according
to the writ petitioner, he was served with a
show cause notice dated 02.08.2022
followed by another dated 18.08.2022
along with report of the Forensic Expert to
which the writ petitioner tendered his reply
on 07.09.2022 relying upon another report
of the Forensic Expert dated 24.08.2022.
Thus, the compliance of the orders of the
learned Single Judge in the earlier round of
litigation has been made by respondents.

22. Nonetheless the case of Devendra
Kumar Chaudhary (supra) relied upon
by appellant/writ petitioner is a case of
regular
departmental
enquiry
wherein
during the course of the departmental
proceedings, the employers relied upon the
report of the Forensic Expert and the
delinquent was denied opportunity to crossexamine the author of the same and in that
context, this Court opined that the report of
the Forensic Expert is only an opinion and
in order to make it an admissible evidence,
experts must appear before the enquiring
authority so that the affected person against
whom an expert opinion is being given may
have an opportunity to cross-examine him.
There is no quarrel to the said proposition
of law, but the principles applicable for
holding
regular
departmental
enquiry
cannot
be
applied
in
the
case
of
cancellation of appointment.

23. Here, in the present case, no
regular departmental enquiry is required to
be conducted as it is a case of cancellation
of appointment. As regards reliance placed
upon Subhash Chand Maurya's (supra)
case is concerned, the same is also of no
aid to the appellant/ writ petitioner as that
was a case, wherein there was termination
of the services of an employee. Similarly,
Reeta Yadav's case (supra) is also not
applicable to the present case, the same is
related to the punishment of dismissal
emanating
from
the
allegation
of
submission of forged document in order to
procure appointment in the department.

24. In Avtar Singh (supra) the
Hon'ble Apex Court while considering the
issued with regard to suppression of
material facts during the course of
verification of antecedents had in para
35(9) observed as under:-

"In
case
the
employee
is
confirmed in service, holding departmental
enquiry would be necessary before passing
order of termination/removal or dismissal
on the ground of suppression or submitting
false information in verification form."

25. The aforesaid observations in the
shape of conclusions are only confined to
holding a regular departmental enquiry
before passing of the order of termination,
removal or dismissal on the ground of
suppression
or
submitting
false
information.

26. The judgment relied upon by Sri
Suresh Singh, learned Addl. Chief Standing
Counsel who appears for the respondents,
in the case of R. Vishwanatha Pillai
(supra) is a case, wherein it has been held
that once an appointment has been
procured on the basis of false certificate,
then the employee does not hold a civil
post and thus, he is not entitled to the
6 All. Ankit Chaudhary Vs. State of U.P. & Ors.
993
protection under Article 311(2) of the
Constitution of India. Reiterating the said
law in a subsequent decision in the case of
Devendra Kumar (supra), the Apex Court
has held that once an employee obtains
appointment suppressing the material fact,
then he is not entitled to the benefits as
available under law. As regards the
judgment in the case of Kirti Narayan
Prasad (supra), the same also holds that an
appointment made on the basis of vague or
forged appointment letters is an illegal
appointment void ab initio and thus, no
rights accrue in favour of such employee.

27. Recently, in the case of State of
Bihar and others vs. Devendra Sharma
(2020) 15 SCC 466, the Hon'ble Apex
Court has observed that an appointment
made on the basis of forgery is void ab
initio. More recently, the Hon'ble Apex
Court in the case of Chief Executive
Officer, Bhilai Steel Plant, Bhilai vs.
Mahesh Kumar Gonnade, AIR 2022 SC
3356 has held that an appointment procured
on the basis of false certificate does not
create any equity.

28. Interestingly, it is not the case of
the appellant/writ petitioner that post order
dated 11.04.2022 passed in Writ A No.
19036 of 2021, he was not supplied with
the copy of the Forensic Report relied by
the respondents in order to holding guilty
of impersonation. It is also not the case of
the apppellant/writ petitioner that he was
denied access of any of the documents
which was put in motion to his detriment.
Pleadings further reveal that there is no
allegation of mala fide against any official
of the respondents. Primarily the grievance
is for granting opportunity to crossexamine the expert whose Forensic Report
has
been
relied
upon
to
hold
the
appellant/writ
petitioner
guilty
of
impersonation and to conduct regular
departmental enquiry as per the rules. The
question of holding of regular departmental
enquiry in the matter of cancellation of
appointment is not provided under the
rules, and thus, it would not be proper for
us to direct the respondents to conduct an
enquiry which is not contemplated under
the rules. As regards the issue of crossexamination of the expert whose Forensic
Report has been relied upon by the
respondents is concerned, in absence of any
provision entitling the writ petitioner to
cross-examine the expert we are afraid of
such type of directions cannot be issued.
Moreover, it is also not open for the writ
petitioner to insist for holding of regular
departmental enquiry as the said issue had
already raised in the earlier round of
litigation in Writ A No. 19036 of 2021
(Ankit Chaudhary Vs. State of U.P. and
3 Others) decided on 11.04.2022 and thus,
in absence of any effective relief granted to
the writ petitioner while directing the
respondents herein to conduct regular
departmental enquiry, the said direction
also cannot be issued so as to further
accede to the request of cross-examining
the expert whose Forensic Report was
relied upon by the respondents.

29. Now a question arises as to
whether non-consideration of the report of
the Foresnsic Expert relied upon by the
appellant/writ petitioner would vitiate the
orders impugned before the writ court or
not. Basically the very purpose for issuance
of a show cause notice is to apprise the
other person about the allegations which
he/she has to meet, requiring the other
party to submit its reply effectively. Here in
the present case post issuance of show
cause notice, the writ petitioner submitted
his reply on 07.09.2022 along with the
Forensic Expert's Report dated 24.08.2022
994 INDIAN LAW REPORTS ALLAHABAD SERIES
disputing the correctness, reliability and
accuracy of the report of the Forensic
Expert relied upon by the respondents.
Once such a defence has been taken on the
basis of the Forensic Report of the expert,
then the principles of natural justice
required the authority to take a decision
after considering the contentions raised by
the noticee. The order dated 07.10.2022 of
the second respondent shows that the said
exercise is lacking. In the opinion of the
Court, the second respondent, U.P. Police
Recruitment
&
Promotion
Board,
Lucknow, was required to consider and
address the said issue while coming to a
final conclusion as to which of the two
reports, one submitted by the appellant/writ
petitioner and the other obtained by the
respondents
was
to
be
taken
into
consideration while forming a definite and
conclusive opinion of commission of act of
impersonation. Since the said exercise has
not been taken, we find that the procedure
known to law, has not been complied with
by the second respondent, U.P. Police
Recruitment
&
Promotion
Board,
Lucknow.

30. Accordingly, the judgment and
order of the learned Single Judge dated
28.02.2023 passed in Writ A No. 22096 of
2022 as well as the order dated 07.10.2022
passed
by
the
second
respondent,
Chairman, U.P. Police Recruitment &
Promotion Board, Lucknow, are set aside.
The matter is remitted back to the second
respondent, U.P. Police Recruitment &
Promotion Board, Lucknow, to revisit the
same afresh in light of the observations
made hereinabove, by passing a reasoned
and speaking order in accordance with law,
as expeditiously as possible preferably
within a period of two months from the
date of production of the certified copy of
the order.

31. It is further provided that setting
aside of the judgment and orders of the
learned Single Judge dated 28.02.2023 and
07.10.2022 of the second respondent, U.P.
Police Recruitment & Promotion Board,
Lucknow, shall not be construed that the
appellant/writ petitioner would be entitled
for
reinstatement
and
grant
of
consequential benefits, if any, which would
be subject to the final outcome of the fresh
order to be passed by the second
respondent.

32. With the aforesaid observation,
the special appeal stands partly allowed.
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