# Narendra Kumar Tripathi v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-20
- **Case number:** Writ A No. 15217 of 2020
- **Bench:** Yashwant Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kumar-tripathi-v-state-of-u-p-ors-46732
- **Pages:** 9

## Headnote

Law
-
Appointment
-
Obtained by using the forged marksheet
- Recovery of Emoluments - Validity -
Obtaining the employment under theSt.
by practicing fraud is undisputed -
Appointment found nullity from its very
inception - Effect - Held, Petitioner has
not only sullied a recruitment process
initiated for the purposes of offering
positions in public service, denied a
rightful claim of another to secure
employment
under
theSt.,
but
also
illegally
drawn,
used
and
retained
moneys from public funds - Order for
recovery of all emoluments merit no
interference. (Para 9, 10 and 19)
B. Service Law - Appointment void ab
initio - Practice of fraud and fabrication -
No disciplinary enquiry - non-compliance
of Principle of Natural Justice - Effect -
Held, where the appointment is alleged to
have
been
secured
by
fraud
or
misrepresentation,
the
normal
rules
governing the conduct of disciplinary
proceedings were not liable to be followed
- Since the termination is not on account
of a misconduct committed during the
course of employment. All that is required
in such a situation is to place the
employee on notice and comply with the
fundamental principles of natural justice.
(Para 16)
Writ Petition dismissed. (E-1)
Cases relied on:-

## Text

2 All. Narendra Kumar Tripathi Vs. State of U.P. & Ors.
197
opinions privately obtained by candidates.
Permitting such a course of action would
not only be contrary to the Rules which
apply and bind the candidate but also result
in derailing the recruitment process itself.

12. For all the aforesaid reasons, the
Court finds no ground to issue the writs as
prayed for.

13. The writ petition is dismissed.
----------
(2021)02ILR A197
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

THE HON'BLE YASHWANT VERMA, J.

Writ A No. 15217 of 2020

Narendra Kumar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Krishna Datt Tiwari

Counsel for the Respondents:
C.S.C., Sri Arun Kumar

A.
Service
Law
-
Appointment
-
Obtained by using the forged marksheet
- Recovery of Emoluments - Validity -
Obtaining the employment under theSt.
by practicing fraud is undisputed -
Appointment found nullity from its very
inception - Effect - Held, Petitioner has
not only sullied a recruitment process
initiated for the purposes of offering
positions in public service, denied a
rightful claim of another to secure
employment
under
theSt.,
but
also
illegally
drawn,
used
and
retained
moneys from public funds - Order for
recovery of all emoluments merit no
interference. (Para 9, 10 and 19)
B. Service Law - Appointment void ab
initio - Practice of fraud and fabrication -
No disciplinary enquiry - non-compliance
of Principle of Natural Justice - Effect -
Held, where the appointment is alleged to
have
been
secured
by
fraud
or
misrepresentation,
the
normal
rules
governing the conduct of disciplinary
proceedings were not liable to be followed
- Since the termination is not on account
of a misconduct committed during the
course of employment. All that is required
in such a situation is to place the
employee on notice and comply with the
fundamental principles of natural justice.
(Para 16)
Writ Petition dismissed. (E-1)
Cases relied on:-
1. Writ - A No.8657 of 2020, Abhiram Vs St. of
U.P. & 3 ors. decided on 02.11.2020
2. Special Appeal Defective No.110 of 2014,
Smt. Parmi Maurya Vs St. of U.P. & 2 ors.
decided on 31.01.2014
3. Secretary, St. of Karn. & ors. Vs Uma Devi &
ors., (2006) 4 SCC 1
4. Punjab Urban Planning & Development
Authority Vs Karamjit Singh, (2019) 16 SCC 782
5.St. of Bihar Vs Kirti Narayan Prasad, (2019) 13
SCC 250
6. Raj Kumar Saxena Vs Basic Shiksha Parishad,
2019 SCC OnLine ALL 4256
7. Narendra Kumar Gond Vs St. of U.P., 2018
SCC OnLine ALL 5716
8 Vinay Kumar Singh v. St. of U.P., 2012 SCC
OnLine All 4171

(Delivered by Hon'ble Yashwant Verma, J.)

1. Heard learned counsel for the
petitioner and Sri Arun Kumar, learned
counsel who appears for the respondents.

2. The petitioner is aggrieved by the
orders of 3 July 2020 and 7 October 2020
198 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the respondents. In terms of the
first order, it has been found upon due
verification that the B.A. marksheet on the
basis of which the petitioner obtained
employment was forged. Consequent to
that order, the services of the petitioner has
been brought to an end. By the second
order the respondents have also passed
directions for recovery of all emoluments
which have been paid to the petitioner. It
becomes pertinent to note that the finding
of the respondents that the petitioner
obtained employment on the basis of a
forged mark sheet is neither disputed nor
challenged by the petitioner before this
Court with learned counsel for the
petitioner
candidly
stating
that
the
petitioner had no defense to proffer.

3. Learned counsel for the petitioner
placing reliance on the decision rendered
by a learned Judge in Abhiram Vs. State
of U.P. And 3 Others1 and the judgment of
the Division Bench in Smt. Parmi Maurya
Vs. State of U.P. And 2 Ors2 contended
that it was incumbent upon the respondents
to have conducted a formal disciplinary
enquiry before dismissing the petitioner
from service and in having failed to do so,
the impugned orders are liable to be set
aside on that score alone. It was further
submitted that the decision to recover all
emoluments paid during the period while
the petitioner was in service causes grave
injustice and hardship.

4. Before proceeding to deal with the
submissions addressed by learned counsel,
it becomes pertinent to bear in mind that
the petitioner does not dispute that the
testimonial
on
the
basis
of
which
appointment was obtained is forged. This
is, therefore, not a case where an
irregularity
was
committed
by
the
respondents while offering appointment to
the petitioner. It is also not a case where the
appointment suffers from what may be
described as a procedural irregularity or
where the appointment suffers from a flaw
which is of a non-fundamental character.
These have come to be described in legal
parlance as "irregular appointments" in
light of the declaration of the law on the
subject by the Constitution Bench in Uma
Devi
[3]3.
On
the
other
hand,
appointments, made in violation of a
statutory rule or executive instruction or
even where it is alleged to have been made
in violation of a procedure mandated by
law have consistently been held to be
illegal and void ab initio. They thus fall in
the class of "illegal appointments". This
Court
is
of
the
view
that
while
appointments in public service obtained on
the basis of fraud or fabrication of
testimonials are also liable to be classified
as falling within the genre of an "illegal
appointment", for the purposes of the
present it would be apposite to confine this
decision to cases where the appointment is
said to have been obtained on the basis of
fraud and fabrication of records. The
solitary
question
which
thus
merits
consideration is whether a decision of the
employer to recover salary and emoluments
paid during the period when service was
rendered by an employee is liable to be
upheld in a case where the original
appointment was obtained on the basis of
fraud.

5. At the outset it becomes pertinent
to highlight that an appointment tainted by
fraud or fabrication is one which has been
obtained
by
a
positive
act
of
misrepresentation, forgery or fabrication on
the part of one who seeks or applies for
appointment. What needs to be emphasised
and borne in mind is where the entry into
service is based upon the incumbent
2 All. Narendra Kumar Tripathi Vs. State of U.P. & Ors.
199
knowingly
and
consciously
practicing
fraud, such instances would necessarily
merit consideration on a distinct set of
principles. Bearing in mind the aforesaid,
the Court proceeds to delineate the salient
principles which would apply in such a
situation.

6. Firstly, the determination of service
of a person who is found to have entered
government service on the strength of
forged certificates, marksheets or degrees is
not an action resting on an act of
"misconduct" committed in the course of
employment. The cessation of service
occurs solely upon it being discovered and
found that the person had fraudulently
obtained employment under the State. The
very entry into service is thus rendered void
and non-est. It leads to the irresistible
conclusion that the employee was never
entitled to be in service. If the aforesaid be
duly established, then the length of service
rendered or the many years spent on that
post are factors which not only pale into
insignificance but are rendered wholly
irrelevant.

7. Secondly, it must necessarily be
recognised that an allegation of fraud or
fabrication of certificates and testimonials
is a serious charge which must be lawfully
established. Since any action taken on the
back
of
such
an
allegation
would
necessarily visit the person with serious
civil consequences, it must be preceded by
an opportunity of hearing being afforded to
the individual enabling him to establish that
the allegation of fraud or fabrication is
incorrect. The only clarification which
needs to be entered is that since and as
already held, the action is not based on an
act of "misconduct", while the rules
relating to disciplinary proceedings would
not apply, the rudimentary principles of
natural justice would have to be adhered to
and followed.

8. Lastly it may be noted that a
challenge to an order of recovery of salaries
paid for services rendered in such cases is
essentially an appeal for sympathetic
consideration and a prayer for invocation of
principles of equity. As was urged here, the
challenge to the direction for recovery of
salary was addressed on the basis of the
petitioner having rendered service for many
years and thus the impugned action liable
to
be
struck
down
on
equitable
considerations.
This
Court
having
conferred thoughtful consideration on the
submission addressed on this score, fails to
find either merit in the submission or
justification for upholding that plea for the
following reasons.

9. Undisputedly the petitioner forged
his
testimonials
in
order
to
obtain
employment under the State. That was a
conscious and deliberate act on the part of
the petitioner in order to illegally and
undeservedly
enter
into
government
service. That employment was acquired by
practicing
fraud
and
the
petitioner
fabricating testimonials. Fraud, as has been
often said, unravels the most solemn of
acts. The appointment secured was non-est
and void ab initio. In fact the factum of that
appointment cannot ever be countenanced
in law.

10. Bearing in mind the fact that the
appointment was and is liable to be viewed
as a nullity from its very inception, it would
be wholly illegal to permit the petitioner to
retain the benefits secured from such an
appointment. The petitioner has not only
sullied a recruitment process initiated for
the purposes of offering positions in public
service, denied a rightful claim of another
200 INDIAN LAW REPORTS ALLAHABAD SERIES
to secure employment under the State, but
also illegally drawn, used and retained
moneys from public funds. This Court fails
to perceive any justification in either
vindicating or absolving the petitioner of
this act nor does it discern any factor which
may persuade it to ratify the wrongdoing
committed by the petitioner. In fact
permitting the petitioner to retain the
benefits illegally obtained would be wrong
in law. In situations like the present, the
Court cannot be distracted by compassion
or sympathy lest it be misunderstood that
such acts can be condoned. This since the
action impugned here is also designed to
serve as a powerful message to deter and
dissuade those who may in the future be
tempted to tread a similar course. Lastly it
must be remembered that equity is also
intended to foster honesty and fairness in
action. Unconscionable conduct clearly
disentitles and prohibits an individual from
invoking equity.

11.

Having
enumerated
the
fundamental considerations which must be
borne in mind in cases like the present, it
would be pertinent to notice the legal
position as explained both by this Court as
well as the Supreme Court on this question.

12. In a recent decision rendered by
the Supreme Court in Punjab Urban
Planning & Development Authority v.
Karamjit Singh4 it was held:-

"5.5. It is well settled that an
order
of
regularisation
obtained
by
misrepresenting facts, or by playing a fraud
upon the competent authority, cannot be
sustained in the eye of the law. [Devendra
Kumar v. State of Uttaranchal, (2013) 9
SCC 363 : (2014) 1 SCC (L&S) 270] In
Rajasthan Tourism Development Corpn.
Ltd. v. Intejam Ali Zafri [Rajasthan Tourism
Development Corpn. Ltd. v. Intejam Ali
Zafri, (2006) 6 SCC 275 : 2006 SCC (L&S)
1314] , it was held that if the initial
appointment itself is void, then the
provisions of the Industrial Disputes Act,
1947 are not applicable for terminating the
services of such workman. In a similar
case, this Court in Bank of India v. Avinash
D. Mandivikar [Bank of India v. Avinash D.
Mandivikar, (2005) 7 SCC 690 : 2005 SCC
(L&S) 1011] , held that since the
respondent had obtained his appointment
by playing fraud, he could not be allowed
to get the benefits thereof.

6. In the present case, the Single
Judge had held that "rightly or wrongly",
the respondent had obtained regularisation,
and was therefore entitled to a disciplinary
enquiry. The Division Bench [Punjab
Urban
Planning
and
Development
Authority v. Karamjit Singh, 2018 SCC
OnLine P&H 2677] affirmed the judgment
of the Single Judge [Karamjit Singh v.
Punjab Urban Planning & Development
Authority, 2018 SCC OnLine P&H 4694] .

6.1. The High Court however
failed to appreciate that the decision in
ECIL [ECIL v. B. Karunakar, (1993) 4 SCC
727 : 1993 SCC (L&S) 1184] is applicable
to
"employees"
of
government
departments. Since the very appointment of
the respondent on regular basis was illegal,
he could not be treated as an "employee" of
the appellant Authority. In Rupa Rani
Rakshit v. Jharkhand Gramin Bank [Rupa
Rani Rakshit v. Jharkhand Gramin Bank,
(2010) 1 SCC 345 : (2010) 1 SCC (L&S)
1094] , this Court held that service
rendered in pursuance of an illegal
appointment or promotion cannot be
equated to service rendered in pursuance of
a
valid
and
lawful
appointment
or
promotion.

6.2. The illegality of such an
appointment goes to the root of the
2 All. Narendra Kumar Tripathi Vs. State of U.P. & Ors.
201
respondent's
absorption
as
a
regular
employee. The respondent could not be
considered to be an "employee", and would
not be entitled to any benefits under the
Regulations applicable to employees of the
appellant Authority. Therefore, the High
Court erroneously placed reliance on the
decision in ECIL [ECIL v. B. Karunakar,
(1993) 4 SCC 727 : 1993 SCC (L&S)
1184] , which would not be applicable to
the facts of the present case."

13. Again in State of Bihar Vs. Kirti
Narayan Prasad 5 the Supreme Court
observed:-

16. In the instant cases, the writ
petitioners have filed the petitions before
the High Court with a specific prayer to
regularise their service and to set aside the
order of termination of their services. They
have also challenged the report submitted
by
the
State
Committee.
The
real
controversy is whether the writ petitioners
were legally and validly appointed. The
finding of the State Committee is that many
writ petitioners had secured appointment by
producing fake or forged appointment letter
or had been inducted in government service
surreptitiously by the Civil Surgeon-cumChief Medical Officer concerned by issuing
a posting order. The writ petitioners are the
beneficiaries of illegal orders made by the
Civil Surgeon-cum-Chief Medical Officer.
They were given notice to establish the
genuineness of their appointment and to
show-cause. None of them could establish
the genuineness or legality of their
appointment before the State Committee.
The State Committee on appreciation of the
materials on record has opined that their
appointment was illegal and void ab initio.
We do not find any ground to disagree with
the finding of the State Committee. In the
circumstances,
the
question
of
regularisation of their services by invoking
para 53 of the judgment in Umadevi (3)
[State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] does not
arise. Since the appointment of the
petitioners is ab initio void, they cannot be
said to be the civil servants of the State.
Therefore, holding disciplinary proceedings
envisaged
by
Article
311
of
the
Constitution or under any other disciplinary
rules shall not arise.

14. In Raj Kumar Saxena Vs. Basic
Shiksha Parishad6 a learned Judge of the
Court noticed the legal position in the
following terms:-

24. The three Judge Bench in R.
Vishwanatha Pillai v. State of Kerala
(Vishwanatha Pillai case) and Union of
India v. Dattatray (Dattatray case) laid
down the principle of law that where a
benefit is secured by an individual, such as,
an appointment to a post on the basis of
fraud and misrepresentation, would result
in the appointment being rendered void or
non est.

25. In Vishwanatha Pillai, the
appellant therein came to be selected
Deputy Superintendent of Police on a
forged caste certificate, consequently, upon
cancellation of the caste certificate by the
Scrutiny
Committee,
services
of
the
appellant came to be terminated. The
Central Administrative Tribunal directed
that the appellant should not have been
terminated without following the procedure
under Article 311 of the Constitution. The
High Court reversed the decision and the
appellant was dismissed from service.
Before the Supreme Court, the appellant,
inter alia, sought protection of Article 311
of
the
Constitution.
Rejecting
the
submission, the Supreme Court held: (para
15)
202 INDIAN LAW REPORTS ALLAHABAD SERIES

"15. This apart, the appellant
obtained the appointment in the service on
the basis that he belonged to a Scheduled
Caste community. When it was found by
the Scrutiny Committee that he did not
belong to the Scheduled Caste community,
then the very basis of his appointment was
taken away. His appointment was no
appointment in the eyes of law. He cannot
claim a right to the post as he had usurped
the post meant for a reserved candidate by
playing a fraud and producing a false caste
certificate. ............ The position, therefore,
is that the appellant has usurped the post
which should have gone to a member of the
Scheduled Caste. In view of the finding
recorded by the Scrutiny Committee and
upheld upto this Court he has disqualified
himself to hold the post. 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
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."

26. The Bench of three Judges
also rejected the submission that since the
appellant had rendered 27 years of service,
the order of dismissal should be substituted
with order of compulsory retirement to
protect his pensionary benefits. The Court
observed: (Para 19)

"19.....The
rights
to
salary,
pension and other service benefits are
entirely statutory in nature in public
service.
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 eyes of law. The right to salary or
pension after retirement flow 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 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
the
genuine.....................
A
person who, seeks equity must come with
clean hands. He. who comes to the Court
with false claims, cannot plead equity nor
the Court would 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
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."

27. In Bank of India v. Avinash D.
Mandivikar, the Supreme Court held that no
case was made out for protecting the
services of a bank employee who had
obtained employment on the basis of a false
claim. Further, the employee having
perpetrated a fraud, a claim for protection
will not be legally sustainable and a person
who
had
obtained
employment
by
illegitimate means could not continue to
2 All. Narendra Kumar Tripathi Vs. State of U.P. & Ors.
203
enjoy the fruits of the appointment and that
he does not even have a shadow of a right
even to be considered for appointment.
Reliance was placed upon the earlier
decision in Vishwanatha Pillai in coming to
its conclusion.

28. The position in law was
reaffirmed in a subsequent decision of a
Bench of three Judges in Dattatray10 case.
The respondent was appointed Assistant
Professor of Psychiatry in a government
hospital on the strength of a claim to
belong to a Scheduled Tribe, which was
subsequently found to be false by the
Scrutiny Committee. The High Court
upheld the invalidation of the claim but
held that the respondent would not be
entitled to any benefit as a member of the
Scheduled Tribe from the date of its
decision. In consequence, the services of
the respondent was directed not to be
disturbed. The Supreme Court set aside the
judgment of the High Court directing the
continuance of the first respondent in
service and observed: (para 5)

"5...When
a
person
secures
employment by making a false claim
regarding
caste/tribe,
he
deprives
a
legitimate
candidate
belonging
to
scheduled caste/tribe, of employment. In
such a situation, the proper course is to
cancel the employment obtained on the
basis of the false certificate so that the post
may be filled up by a candidate who is
entitled to the benefit of reservation."

29. A three Judge Bench in a
recent judgment rendered in Chairman and
Managing Director Food Corporation of
India v. Jagdish Balaram Bahira on
considering the precedents on the subject
held that appointment/admission obtained
on the basis of fraud and misrepresentation
of caste or otherwise, is not entitled to such
an appointment/admission being rendered
void or non est. The exception to the above
doctrine was in those cases where the
Supreme Court exercises its powers under
Article 142 of the Constitution to render
complete justice. In other words a person
who
has
played
fraud
and
misrepresentation is not entitled to continue
in service irrespective of the length of
service rendered by him. In case he is
permitted to continue it would perpetrate
the fraud and misrepresentation. The
principles enshrined under Article 311 of
the Constitution or service rules pertaining
to dismissal/removal upon recording a
finding of misconduct would also not
apply, for the reason that the appointment is
non est and void ab initio and has no
grounds to sustain.

30. In the facts of the case at hand
the basis of the appointment is the
unregistered adoption deed which has been
held to be invalid in view of Section 11(i)
of Act, 1956. The foundation of the
appointment goes being non est in the eye
of law, termination of service is the
consequence. Petitioner has not been
imposed major penalty of termination upon
recording
a
finding
of
misconduct
committed during the course of his
employment. The Rules, 1973 in the
circumstances has no application. In the
admitted facts no real prejudice has been
caused to the petitioner and no other
conclusion is possible in respect of the deed
recording adoption in such situation no
fault can be found with the impugned order.
(Refer: K.L. Tripathi v. State Bank of India;
State Bank of Patiyala v. S.K. Sharma,
Biecco Lawrie Limited v. State of West
Benga).

15. Similarly another learned Judge of
the Court struck a consistent note with the
legal position noticed above in Narendra
Kumar
Gond
Vs.
State
of
U.P.7
observing:-
204 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. The
contention
of
the
petitioner that disciplinary proceedings
should have been held in the matter and as
this has not been done the impugned order
is vitiated, is not tenable in law for the
reason the factum of employment of
petitioner's mother at the time of his
father's
death
and
the
petitioner's
compassionate appointment is undisputed
and secondly, in view of the provisions
contained in the appointment letter itself
and even otherwise in the facts of the case
it is the appointment which has been
cancelled
for
the
reasons
disclosed
hereinabove, rightly so, after giving due
opportunity of hearing to the petitioner
which cannot be faulted and also as it is not
a
case
of
misconduct
having
been
committed during the course of service but
it is a case of cancellation of his
appointment on the ground that the same
was
obtained
by
misrepresentation/concealment
and
incorrect facts...."

16. It is thus manifest that it has been
the consistent view of our Courts that
where the appointment is alleged to have
been secured by fraud or misrepresentation,
the normal rules governing the conduct of
disciplinary proceedings were not liable to
be followed. This since the termination in
such a situation is not on account of a
misconduct committed during the course of
employment. All that is required in such a
situation is to place the employee on notice
and
comply
with
the
fundamental
principles of natural justice.

17. Parmi Maurya was a case where
the charge of fabrication was seriously
disputed and challenged by the employee
who had also not been provided access to
the material on the basis of which that
charge was sought to be established. It
becomes pertinent to recollect that contrary
to the above, the petitioner here does not
dispute the charge of fabrication. The
decision is thus clearly distinguishable and
does not come to the aid of the petitioner.
The decision in Abhiram merely follows
the aforesaid decision without noticing the
other decisions of this Court as well as the
Supreme Court which have consistently
held to the contrary and in unequivocal
terms laid down the law to be that a regular
departmental enquiry is not liable to be
drawn where the initial appointment has
been obtained by practise of fraud and is
thus void and non-est. This of course
subject to the caveat and as held herein
above, that the rudimentary principles of
natural justice must necessarily be adhere
to and followed.

18. Lastly the Court draws sustenance
for its conclusion of the employer being
justified to effect recoveries upon it being
found that the initial appointment had been
obtained by fraud or fabrication from the
judgment of the Court in Vinay Kumar
Singh Vs. State of U.P.8

28. So far as contention of
learned counsel for petitioner that petitioner
has worked during the period 20.7.2004 to
May, 2007 and, therefore, he is entitled to
get salary for the said period and no
recovery of paid amount shall be made is
concerned, it is to be noted mat there is
allegation that appointment of petitioner
was itself based on fraud and he had no
right to work on the basis of said
appointment as unless and until it is
established that appointment of petitioner
was genuine, he had no right to get salary.

29. In the case of Kailash Singh
(2005 AIR SCW 3273) (supra) the facts
were that the person had overstayed in
service after having completed the age of
2 All. Sri Kapil Kumar Sharma Vs. Commissioner/Chairman, Meerut Dev. Authority, Meerut & Anr.
205
superannuation. He had actually worked for
a period of five years without any dispute
as to age. The opposite parties had
conceded before the Supreme Court that
there would be no recovery of salary paid.
In these circumstances, the Court had
directed that no recovery of salary paid to
the appellant shall be made, as such, the
aforesaid judgment is of no help to
petitioner.

This extract is taken fromVinay
Kumar Singh v. State of U.P., 2012 SCC
OnLine All 4171 : (2013) 3 All LJ 305 :
2013 Lab IC 1984 at page 309

30. In the case of Sushil Kumar
Pandey (2010 (5) ALJ 554) (supra), me
Division Bench while modifying the order
of learned single Judge wherein direction
was issued to terminate the service and
recovery of the amount paid as salary had
observed that the direction of learned single
Judge so far as it relates to termination of
service does not require interference.
However, since the petitioner has worked
for more than 10 years, it would be too
severe for the acts and omission on his part
as there is also omission and negligence on
the part of the authorities in granting
appointment to the appellant, as such, no
recovery of the amount paid as salary shall
be made. The Court has also observed that
even otherwise under Article 23 of the
Constitution the ''Begar' is prohibited. In
that case the recovery order was issued on
the basis of direction issued by the Court.
There was no dispute to the payment given
by the opposite parties. However, in the
present case it is the specific case of the
opposite parties that the petitioner has
obtained appointment and transfer from
Agra on the basis of forged documents and
he was not entitled to get salary. He had
worked during the period 20.7.2004 to
May, 2007 on the basis of forged
documents and, as such, the amount paid as
salary during the said period shall be
recovered."

19. Accordingly and for all the
aforesaid reasons the Court fails to find in
favour of the petitioner. The orders
impugned merit no interference.

20. The writ petition shall in
consequence stand dismissed.
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(2021)02ILR A205
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2021

BEFORE

THE HON'BLE YASHWANT VERMA, J.

Writ A No. 15559 of 2019

Sri Kapil Kumar Sharma ...Petitioner
Versus
Commissioner/Chairman,
Meerut
Dev.
Authority, Meerut & Anr. ...Respondents

Counsel for the Petitioner:
Sri Alok Kumar Srivastava

Counsel for the Respondents:
Sri Bhupeshwar Dayal

A. Constitution of India - Article 19 (1) (a)
and (6) - Fundamental right of freedom of
speech and expression - Right to make a
demonstration is covered by Article 19 (1)
(a) as it is in effect a form of speech or of
expression - Held, merely, because the
petitioner
had
taken
part
in
the
demonstration, he cannot be dealt with
under the Service Rules as petitioner has
fundamental right under Article 19 (1) (a)
of the Constitution of India. (Para 18 and
19)
B. Service Law - Disciplinary Enquiry -
Punishment - Charge of shouting slogan
and misbehavior - Non-supply of enquiry
report
-
No
opportunity
to
cross