# Mahendra Kumar, Constable v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** WRIT A No. 10634 of 2021
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-constable-v-state-of-u-p-ors-47364
- **Pages:** 6

## Headnote

Law
-
Cancellation
of
selection
-
Misrepresentation
-
Cancellation of appointment has been
affirmed where it gets established that
appointment had been obtained on the
strength of misrepresentation. (Para 7)

B. No violation of principles of natural
justice - It is only where facts are
disputed that an enquiry in the manner
contemplated in law would be necessary
- No further enquiry is required on the
admitted facts - Before passing the order
impugned an opportunity of hearing has been
given to petitioner. Petitioner has admitted
that he claimed appointment as dependent of
freedom fighter whereas he does not belong
to such category. Grant of reservation as
dependent
of
freedom
fighter
is
thus
admitted. There is no charge of misconduct
against petitioner to be proved in disciplinary
enquiry. The charge against petitioner is of
obtaining appointment on the strength of
misrepresentation and petitioner has admitted
facts w.r.t. this. Holding of disciplinary
enquiry in the circumstances of the present
case
is
thus
not
warranted
nor
the
cancellation
of
petitioner's
selection/appointment would be illegal only
because disciplinary enquiry was not held in
the matter. (Para 8, 9)

C. No equity would arise in favour of the
employee merely because he has worked
for certain time. In the event petitioner's
appointment is sustained it would cause grave
injustice to thousands of those who have
secured marks above the petitioner but have
not been appointed. No equity is created in
favour of the petitioner to continue in
employment on account of his working for the
last about 5 years since the appointment has
been obtained by misrepresentation. (Para 7,
10)

D. Law is settled that fraud and justice
do not dwell together. Petitioner having
made misrepresentation in his application and
having derived advantage not due to him in
law would not be entitled to grant of
protection u/Art. 226 of the Constitution of
India. (Para 11)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

1178 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In any case the Court bears in
mind the element of public interest and the
imperatives bearing upon the respondents
to ensure that a public examination and
selection process is brought to an end
within specified timelines. It was these
factors which were emphasized in the
government orders of 31 March 2021 and
04 May 2021. For all the aforesaid reasons,
the Court finds no ground to interfere with
the impugned orders.

12. The writ petition fails and shall
stand dismissed.
----------
(2021)09ILR A1178
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT A No. 10634 of 2021

Mahendra Kumar, Constable ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Atiprita Gautam, Sri Vijay Gautam
(Senior Adv.), Vinod Kumar Mishra

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Cancellation
of
selection
-
Misrepresentation
-
Cancellation of appointment has been
affirmed where it gets established that
appointment had been obtained on the
strength of misrepresentation. (Para 7)

B. No violation of principles of natural
justice - It is only where facts are
disputed that an enquiry in the manner
contemplated in law would be necessary
- No further enquiry is required on the
admitted facts - Before passing the order
impugned an opportunity of hearing has been
given to petitioner. Petitioner has admitted
that he claimed appointment as dependent of
freedom fighter whereas he does not belong
to such category. Grant of reservation as
dependent
of
freedom
fighter
is
thus
admitted. There is no charge of misconduct
against petitioner to be proved in disciplinary
enquiry. The charge against petitioner is of
obtaining appointment on the strength of
misrepresentation and petitioner has admitted
facts w.r.t. this. Holding of disciplinary
enquiry in the circumstances of the present
case
is
thus
not
warranted
nor
the
cancellation
of
petitioner's
selection/appointment would be illegal only
because disciplinary enquiry was not held in
the matter. (Para 8, 9)

C. No equity would arise in favour of the
employee merely because he has worked
for certain time. In the event petitioner's
appointment is sustained it would cause grave
injustice to thousands of those who have
secured marks above the petitioner but have
not been appointed. No equity is created in
favour of the petitioner to continue in
employment on account of his working for the
last about 5 years since the appointment has
been obtained by misrepresentation. (Para 7,
10)

D. Law is settled that fraud and justice
do not dwell together. Petitioner having
made misrepresentation in his application and
having derived advantage not due to him in
law would not be entitled to grant of
protection u/Art. 226 of the Constitution of
India. (Para 11)

Writ petition dismissed. (E-4)

Precedent followed:

1. U.O.I. Vs M. Bhaskaran, (1995) Suppl. (4)
SCC 100 (Para 7)

Present
petition
assails
order
dated
01.06.2021, passed by Superintendent of
Police,
Unnao,
whereby
petitioner's
selection has been cancelled.
9 All Mahendra Kumar, Constable Vs. State of U.P. & Ors.
1179
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This writ petition is directed
against an order dated 1.6.2021, passed by
Superintendent of Police, Unnao, whereby
petitioner's selection on the post of
Constable in U.P. Police has been cancelled
on the ground of misrepresentation. It is
observed in the order that petitioner
secured appointment by claiming benefit of
reservation
meant
for
dependent
of
Freedom Fighter but upon verification it
has transpired that he does not belong to
such category. U.P. Police Recruitment and
Promotion Board (hereinafter referred to as
the 'Board') recommended cancellation of
petitioner's appointment on the ground of
misrepresentation. A notice accordingly
was issued to petitioner in reply to which
the petitioner admits that he is not a
dependent of Freedom Fighter and that by
mistake of Computer Operator, who had
filled petitioner's application form, such
reservation was claimed. Since petitioner
has otherwise not secured marks above the
cut off in the respective category therefore
appointment obtained on the strength of
misrepresentation has been cancelled. Thus
aggrieved the petitioner is before this
Court.

2. It is urged that petitioner has not
made any misrepresentation and having
worked
for
five
years
without
any
complaint his appointment cannot be
cancelled without holding any disciplinary
enquiry. Reliance is also placed upon
interim orders passed by this Court in Writ
Petition Nos.9937 of 2021 and 9928 of
2021.

3. While entertaining the writ petition
time was granted to learned Standing
Counsel to obtain instructions. Written
instructions signed by the Additional
Secretary of the Board are placed before
the Court and are taken on record. This
Court on 26.8.2021 directed learned
Standing Counsel to furnish a copy of the
instructions to the counsel for the petitioner
also.

4. Appointment to the post of
Constable has been offered to petitioner
pursuant to his application made against the
advertisement published on 14.5.2013.
Petitioner was an applicant in the OBC
category and his application has been
placed
before
the
Court
alongwith
instructions in which it is apparent that
petitioner claimed benefit of reservation
meant for dependent of Freedom Fighter.
Petitioner in his reply to the show cause
notice has also admitted the fact that
reservation
meant
for
dependent
of
Freedom Fighter was claimed in his
application form. It is also admitted to
petitioner that he is not a dependent of
Freedom Fighter and such reservation is
not
admissible
to
him.
The
misrepresentation
in
falsely
claiming
reservation of dependent of Freedom
Fighter, however, is sought to be explained
by contending that petitioner was not aware
of such incorrect disclosure and that it was
due to mistake on part of the Computer
Operator that such error occurred.

5. The appointment on the post of
Constable was to be offered on the basis of
merit secured by a candidate. The petitioner
belongs to OBC category and has secured
290.2119 marks in the selection. The last
selected candidate in OBC category has
secured 310.6374 marks for appointment in
Civil
Police;
309.3608
marks
for
appointment as Constable in P.A.C. and
308.5096
marks
for
appointment
as
Fireman. It is, therefore, undisputed that
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner has not secured sufficient marks
to secure appointment on the post of
Constable. No appointment could have
been offered to him on the basis of his
merit. His marks could qualify him for
selection only in the category of dependent
of Freedom Fighter. His appointment is
thus based only on false misrepresentation
that he is a dependent of Freedom Fighter.

6. Petitioner's defence before the
authority that he was unaware of the fact
that in his application he had claimed
reservation as dependent of Freedom
Fighter is not liable to be accepted for two
reasons.
Firstly,
in
the
absence
of
reservation claimed in sub-category of
dependent
of
Freedom
Fighter
the
petitioner could not be selected as his
marks were below the cut off marks
secured by the last selected OBC candidate.
Secondly,
petitioner
having
taken
advantage of false disclosure in the
application form cannot claim immunity by
shifting the guilt upon the Computer
Operator since the Computer Operator was
his agent and the petitioner is responsible
for his acts particularly as he himself is the
beneficiary of such false disclosure.

7. In Union of India vs. M.
Bhaskaran, (1995) Suppl. (4) SCC 100, the
Supreme Court has affirmed cancellation of
appointment where it was established that
appointment had been obtained on the
strength of misrepresentation. The Court
further observed that no equity would arise
in favour of the employee merely because
he has worked for certain time. Para 6 of
the aforesaid judgment is reproduced
hereinafter:

"6. It is not necessary for us to
express any opinion on the applicability of
Rule 3(1)(i) and (iii) on the facts of the
present cases for the simple reason that in
our view the railway employees concerned,
respondents
herein,
have
admittedly
snatched employment in railway service,
maybe of a casual nature, by relying upon
forged or bogus casual labourer service
cards. The unauthenticity of the service
cards on the basis of which they got
employment is clearly established on
record of the departmental enquiry held
against
the
employees
concerned.
Consequently, it has to be held that the
respondents
were
guilty
of
misrepresentation and fraud perpetrated on
the
appellant-employer
while
getting
employed in railway service and had
snatched such employment which would
not have been made available to them if
they were not armed with such bogus and
forged labourer service cards. Learned
counsel for the respondents submitted that
for getting service in railway as casual
labourers, it was strictly not necessary for
the respondents to rely upon such casual
service cards. If that was so there was no
occasion for them to produce such bogus
certificates/service
cards
for
getting
employed in railway service. Therefore, it
is too late in the day for the respondents to
submit that production of such bogus or
forged service cards had not played its role
in getting employed in railway service. It
was clearly a case of fraud on the
appellant-employer. If once such fraud is
detected,
the
appointment
orders
themselves which were found to be tainted
and vitiated by fraud and acts of cheating
on the part of employees, were liable to be
recalled and were at least voidable at the
option of the employer concerned. This is
precisely what has happened in the present
case. Once the fraud of the respondents in
getting such employment was detected, the
respondents were proceeded against in
departmental enquiries and were called
9 All Mahendra Kumar, Constable Vs. State of U.P. & Ors.
1181
upon to have their say and thereafter have
been removed from service. Such orders of
removal would amount to recalling of
fraudulently
obtained
erroneous
appointment orders which were avoided by
the employer-appellant after following the
due procedure of law and complying with
the principles of natural justice. Therefore,
even independently of Rule 3(1)(i) and (iii)
of the Rules, such fraudulently obtained
appointment orders could be legitimately
treated as voidable at the option of the
employer and could be recalled by the
employer and in such cases merely because
the respondent-employees have continued
in service for a number of years on the
basis
of
such
fraudulently
obtained
employment orders cannot create any
equity in their favour or any estoppel
against the employer. In this connection we
may usefully refer to a decision of this
Court in Distt. Collector & Chairman,
Vizianagaram Social Welfare Residential
School Society v. M. Tripura Sundari Devi
[(1990) 3 SCC 655 : 1990 SCC (L&S) 520
: (1990) 14 ATC 766] . In that case Sawant,
J. speaking for this Court held that when an
advertisement
mentions
a
particular
qualification and an appointment is made in
disregard of the same, it is not a matter
only between the appointing authority and
the concerned appointee. The aggrieved are
all those who had similar or even better
qualifications
than
the
appointee
or
appointees but who had not applied for the
post because they did not possess the
qualifications
mentioned
in
the
advertisement. It amounts to a fraud on
public to appoint persons with inferior
qualifications in such circumstances unless
it is clearly stated that the qualifications are
relaxable. No court should be a party to the
perpetuation of the fraudulent practice. It is
of course true as noted by the Tribunal that
the facts of the case in the aforesaid
decision were different from the facts of the
present case. And it is also true that in that
case pending the service which was
continued pursuant to the order of the
Tribunal the candidate concerned acquired
the requisite qualification and hence his
appointment was not disturbed by this
Court. But that is neither here nor there. As
laid down in the aforesaid decision, if by
committing fraud any employment is
obtained, such a fraudulent practice cannot
be permitted to be countenanced by a court
of law. Consequently, it must be held that
the Tribunal had committed a patent error
of law in directing reinstatement of the
respondent-workmen with all consequential
benefits. The removal orders could not
have been faulted by the Tribunal as they
were the result of a sharp and fraudulent
practice on the part of the respondents.
Learned counsel for the respondents,
however, submitted that these illiterate
respondents were employed as casual
labourers
years
back
in
1983
and
subsequently
they
have
been
given
temporary status and, therefore, after
passage of such a long time they should not
be thrown out of employment. It is difficult
to agree with this contention. By mere
passage of time a fraudulent practice would
not get any sanctity. The appellant
authorities having come to know about the
fraud of the respondents in obtaining
employment as casual labourers, started
departmental proceedings years back in
1987 and these proceedings have dragged
on for a number of years. Earlier, removal
orders of the respondents were set aside by
the
Central
Administrative
Tribunal,
Madras Bench and proceedings were
remanded and after remand, fresh removal
orders were passed by the appellant which
have been set aside by the Central
Administrative Tribunal, Ernakulam Bench
and which are the subject-matter of the
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
present proceedings. Therefore, it cannot be
said that the appellants are estopped from
recalling
such
fraudulently
obtained
employment orders of the respondents
subject
of
course
to
following due
procedure of law and in due compliance
with the principles of natural justice, on
which aspect there is no dispute between
the parties. If any lenient view is taken on
the facts of the present case in favour of the
respondents, then it would amount to
putting premium on dishonesty and sharp
practice which on the facts of the present
cases cannot be permitted."

8. Before passing the order impugned
an opportunity of hearing has been given to
petitioner. In his reply, the petitioner has
admitted facts which clearly goes to show
that appointment has been obtained by
petitioner
on
the
strength
of
misrepresentation. Petitioner has admitted
that
he
claimed
appointment
as
an
dependent of freedom fighter whereas he
admits that he does not belong to such
category. Grant of reservation as dependent
of freedom fighter is thus admitted. No
further enquiry is required on the admitted
facts since petitioner himself states that
such benefit was wrongly claimed. It is
only where facts are disputed that an
enquiry in the manner contemplated in law
would be necessary. Contention that
principles of natural justice are violated,
therefore, is not liable to be accepted.

9. Further argument that without
holding disciplinary enquiry petitioner's
appointment could not be cancelled also
cannot be accepted. There is no charge of
misconduct against petitioner to be proved in
disciplinary enquiry. The charge against
petitioner is of obtaining appointment on the
strength of misrepresentation in respect of
which facts are admitted to the petitioner.
Opportunity to petitioner in this regard is
given. Holding of disciplinary enquiry in the
circumstances of the present case is thus not
warranted nor the cancellation of petitioner's
selection/appointment would be illegal only
because disciplinary enquiry was not held in
the matter.

10.

In
the
event
petitioner's
appointment is sustained it would cause
grave injustice to thousands of those who
have secured marks above the petitioner
but have not been appointed. No equity is
created in favour of the petitioner to
continue in employment on account of his
working for the last about 5 years since the
appointment
has
been
obtained
by
misrepresentation. The interim orders relied
upon by the petitioner do not appear to
have any applicability on facts since no
misrepresentation was admitted on record
of those cases, unlike the fact here. Even
otherwise those orders are on facts of those
cases and do not constitute any binding
precedent. In Writ Petition No.9928 of
2021 the Freedom Fighter Certificate was
doubted as not being genuine, whereas in
the facts of the present case petitioner
admits that he is not a dependent of
Freedom Fighter.

11. having made misrepresentation in his
application and having derived advantage not
due to him in law would not be entitled to grant
of protection under Article 226 of the
Constitution of India. Writ petition accordingly
fails and is dismissed. Law is settled that
fraud and justice do not dwell together.
Petitioner having made misrepresentation
in his application and having derived
advantage not due to him in law would not
be entitled to grant of protection under
Article 226 of the Constitution of India.
Writ petition accordingly fails and is
dismissed.
----------
9 All Rohit Kumar Sharma & Ors. Vs. The Union of India & Ors.
1183
(2021)09ILR A1183
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBASH CHAND, J.

WRIT A No. 10910 of 2021

Rohit Kumar Sharma & Ors. ...Petitioners
Versus
The Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Yadav, Sri Radha Kant Ojha
(Senior Adv)

Counsel for the Respondents:
Vivek Kumar Rai

A. Service Law - Salary - The impugned
order dated 11.08.2020 is in fact a
notice and not an order of recovery as
understood by the employees and the
tribunal.
The
impugned
orders
dated
11.8.2020 and 25.8.2020 will be considered
to be notices and salary shall not be
deducted without hearing the parties. The
respondents shall not re-fix the pay-scale of
the
petitioners
till
representations
are
decided and matter is considered on merits.
(Para 3, 4)

Writ petition disposed off. (E-4)

Precedent distinguished:

1. Ramesh Chandra Raikwar & 14 ors. Vs
Central Administrative Tribunal & 3 ors.,
Writ- A No. 6083 of 2021, (Para 7)

(Delivered by Hon'ble Dr.. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subash Chand, J.)

1. Heard learned counsel for the
parties.

2. In the morning, we have been
conveyed by Shri Vivek Kumar Rai,
learned counsel
for respondents that
Central Administrative Tribunal order
rather judgment is under challenge and
petitioners are directed to approach the
authorities as per the impugned order and
have also directed him to seek instructions
as we are convinced that the issue can be
resolved by the present petitioner who are
before this Court to approach

3. From the authorities concerned that
the impugned order dated 11.8.2020 as
indicated is fact in notice though it is
understood by employees and the tribunal
order of recovery. We, at this juncture,
substitute
the
order
of
the
Central
Administrative
Tribunal,
Allahabad
Branch, Allahabad dated 2nd March, 2021
that this writ petition would be considered
by
the
authorities
concerned
as
a
reply/representation quo. The order/notice
dated 11.8.2020 and 25.8.2020, the copy of
which is annexed as Annexure-2 to the writ
petition.

4. We are not going into the factual
matrix nor discussing the details but we are
pained
to
note
that
the
Central
Administrative Tribunal have gone much
beyond the scope and, therefore, we are
required to set aside all the reasoning given
by it more particularly in paras '26'-'131'.
The tribunal had directed the petitioners to
approach the authorities and observed
against the petitioners which has made
them approach this Court. The order dated
23.2.2021 is quashed. The impugned orders
dated 11.8.2020 and 25.8.2020 will be
considered to be noticed and not deduction
of salary without hearing the parties. There