# Reeta Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-08
- **Case number:** Writ-A No. 15480 of 2021
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reeta-pandey-ors-v-state-of-u-p-ors-47533
- **Pages:** 10

## Headnote

Civil Law - Constitution of India-Article
226 - U.P. Recognized Basic School (Junior
High School) (Recruitment and Condition
of Service of Teachers) Rules, 1978 -
Petitioner's selection and appointment
was challenged on the ground that they
lack relevant qualifications-A direction
was given to proceed with conduct of
regular
inquiry
for
such
fraudulent
appointment-Mere
continuing
on
a
particular post for a long time does not
establish
that
the
selection
was
in
accordance with law-the Manager of the
institution was close relatives of the
petitioners while the law prohibits such
an
appointments-If
someone
had
committed a fraud to get a job, no matter
how long they had been employed, their
punishment will be inevitable too-no
infirmity in the impugned order directing
regular
enquiry
against
the
petitioner.(Para 1 to 32)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

414 INDIAN LAW REPORTS ALLAHABAD SERIES
29.9.2020, which is necessary requirement
in service matter for filing a writ petition,
therefore, in light of facts as well as judicial
pronouncement made by Courts, this
petition is not maintainable and no writ of
certiorari can be issued for quashing the
impugned order dated 29.9.2020.

14. Coming to the second point as to
whether writ of quo warranto against the
respondent no.4 can be issued or not. The very
same issue came before this Court in the case
of Ravi Kant Tiwari (supra) and Court after
considering so many judgments, has held that
post of Chief Medical Superintendent is not a
Public Office. Paragraph 16 of the said
judgment is quoted hereinbelow:-

"16. From the aforesaid discussion, it is
evident that the post of Chief Medical
Superintendent of SGPGIMS cannot be held to
be a 'Public Office' merely because the
SGPGIMS is in the field of medical service.
The office of Chief Medical Superintendent
does not seem to involve an obligation of any
of the sovereign functions of the Government
either Executive or Legislative or Judicial for
public benefit. It cannot be said that the public
in general is interested and non-observance of
the obligations of employment of respondent
no.3 as a Chief Medical Superintendent, in
any event, shall effect the interest of public at
large; and even if it would affect, the same
shall be too remote so as to make the office of
the Chief Medical Superintendent a 'Public
Office'."

15. In light of judgment of this Court in
the matter of Ravi Kant Tiwari (Supra) as
well as facts of the case, once the post of Chief
Medical Superintendent is not Public Office,
no writ of quo warranto can be issued.

16. Now coming to the second point as
to whether respondent no.4 is having
eligibility to hold the said post or not, which is
a core issue for issuance of writ of quo
warranto. Undisputedly, respondent no.4 is
qualified Doctor, duly appointed by the
respondents in the State Medical Services
having all qualification for holding the post of
Chief Medical Superintendent. Therefore,
mere absence from service for certain time,
cannot be a ground for issuance of writ quo
warranto. The State Government is the
employer of respondent no.4 and employer
has always right to condone/waive off the
certain deficiencies, if found. In the present
case, assuming it respondent no.4 has not
joined his service for certain time, it can only
be an irregularity and not illegality for which
State Government has full right to condone the
same. It is also undisputed that respondent
no.4 was earlier posted as Senior Consultant
District Hospital, Etah and he was very well in
service. Therefore, his transfer/adjustment
from one post to another post in same hospital
cannot said to be illegality and mere his
absence from the service for certain period
would
not
attach
any
ineligibility
or
disqualification to respondent no.4 to hold the
post resulting into issuance of writ of quo
warranto.

17. Therefore, under such facts of the
case and law laid down by Courts, I found no
substance, writ petition lacks merit and is
accordingly, dismissed. No order as to costs.
----------
(2022)02ILR A414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 15480 of 2021

Reeta Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
2 All. Reeta Pandey & Ors. Vs. State of U.P. & Ors.
415
Counsel for the Petitioner:
Sri Girijesh Tiwari

Counsel for the Respondents:
C.S.C., Sri A.P.M. Tripathi

Civil Law - Constitution of India-Article
226 - U.P. Recognized Basic School (Junior
High School) (Recruitment and Condition
of Service of Teachers) Rules, 1978 -
Petitioner's selection and appointment
was challenged on the ground that they
lack relevant qualifications-A direction
was given to proceed with conduct of
regular
inquiry
for
such
fraudulent
appointment-Mere
continuing
on
a
particular post for a long time does not
establish
that
the
selection
was
in
accordance with law-the Manager of the
institution was close relatives of the
petitioners while the law prohibits such
an
appointments-If
someone
had
committed a fraud to get a job, no matter
how long they had been employed, their
punishment will be inevitable too-no
infirmity in the impugned order directing
regular
enquiry
against
the
petitioner.(Para 1 to 32)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Allahabad Bank & ors. Vs Krishna Narayan
Tiwari,(2017) 2 SCC 308

2. Chairman & M.D. FCI & ors. Vs Jagdish
Balaram Bahira & ors. (2017) 8 SCC 670

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Girijesh Tiwari, learned
counsel
for
the
petitioners,
learned
Standing counsel for the State while Sri A.
P. M. Tripathi has accepted notice on
behalf of respondent No.4.

2. The petitioners are aggrieved by
the inquiry report submitted by Assistant
Director of Education (Basic) on basis of a
private complaint and have approached
Court with the prayer to quash the said
inquiry report, and further directing the
respondnets not to proceed with conduct of
regular inquiry,and not to take any coercive
action against the petitioners and to allow
them to continue as Assistant Teacher in
institution.

3. The brief conspectus of the case is
that the petitioners are working as Assistant
Teacher in the institution known as Maa
Reshma
Kuwari
Balaika
Vidyalaya
Manihari, Salempur, District Deoria which
is a recognised and aided institution up to
Junior
High
School
standard,
and
provisions of the U.P. Recognised Basic
School (Junior High School) (Recruitment
and Condition of Service of Teachers)
Rules, 1978 as well as the Provisions of
U.P. Junior High School Payment of
Salaries of Teachers and other Employees
Act, 1978 are applicable and consequently
the salary of the teaching and non teaching
staff's is being disbursed under the
provisions of the above Act.

4. It has been submitted that all the
petitioners
have
been
appointed
in
accordance with the relevant rules after
publication of the advertisement and they
fulfill all the requisite qualifications, and
even their appointments were approved by
the competent authority, and hence there is
no infirmity in the same.

5. The grievance of the petitioners
have
commenced
on
account
of
a
complaint sent by one Ritul Bisen to the
District
Magistrate
Deoria
levelling
allegations that there was irregularity
committed in the selection and appointment
of the petitioner and also that they lack the
relevant qualifications required for being
appointed on the said posts.
416 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The District Magistrate, Deoria by
order dated 28/09/2020 directed the Basic
Education Officer to conduct an inquiry
into the matter, who in turn delegated it to
Block
Education
Officer,
Salempur,
District Deoria. The Block Education
Officer conducted an inquiry and submitted
its report on 17/08/2020 to the Basic
Education Officer holding that there was no
infirmity in the appointment of petitioners,
and consequently the said report was
forwarded to the District Magistrate by the
Basic Education Officer on 18/08/2020
reiterating the findings recorded by the
Block Education Officer.

7. It is submitted that the similar
complaint was submitted by Ritul Bisen to
the Assistant Director of Education (Basic)
Gorakhpur
Region,
Gorakhpur,
who
proceeded to inquire into the allegations
himself and issued directions to the
Manager of the institution as well as Basic
Education
Officer
to
submit
their
comments with regard to the allegations
made in the said complaint. The Assistant
Director of Education (Basic) after calling
for the replies and also after examining the
records produced by them as well as giving
an opportunity to the petitioners has
prepared an inquiry report which has been
forwarded to the District Basic Education
Officer, Deoria to conduct a regular inquiry
in accordance with law. It is the said
inquiry report which has been assailed by
the petitioners in the present writ petition.

8. Counsel for the petitioners has
submitted that once an inquiry has already
been conducted by the District Basic
Education Officer and the report was
forwarded to the District Magistrate by
order dated 18/08/2020 then there was no
occasion for a regular inquiry into the same
allegations
and
the
same
constitutes,harassment and consequently
prayer has been made to set aside the order
for conducting the regular inquiry on the
said complaint.

9. The second ground urged by the
petitioners is that all the petitioners are
working for more than 10 years, and after
such a long period of time questioning the
qualifications and the process of selection
is
not
permissible
and
constitutes
harassment
and
consequently
have
submitted that no such inquiry should
permitted
to
continue
against
the
petitioners.

10. In order to consider submissions
raised by learned counsel of the petitioners
it would be relevant to consider the nature
of the allegations made against the
petitioners and also the material available
in support of the allegations and the
findings recorded in the impugned inquiry
so conducted against the petitioners.

11. The copy of the complaint has not
been annexed, but the details of the
allegations finds mention in the report
dated
12/08/2021
submitted
by
the
Assistant Director of Education (Basic),
according to which it has been alleged inter
alia:-

A. Petitioner no.1 Km Rita Pandey
was appointed by the Management without
issuing any advertisement nor constituting
any selection committee and even the
approval granted was irregular and she did
not possess the requisite educational
qualifications required for the post of
Assistant Teacher.

B. Petitioners nos.2, 3 and 4 are also
alleged to have been appointed without any
advertisement nor any constitution of a
selection committee and the did not have
2 All. Reeta Pandey & Ors. Vs. State of U.P. & Ors.
417
the requisite qualifications in as much as
the degree of B.Ed was not a recognised
qualification for the said post at the time of
appointment.

C. It is also alleged that some of the
teachers
do
not
possess
Teachers'
Eligibility Test qualification which was the
essential qualification required to the post
of
Assistant
Teacher
and
all
these
appointments were made during the period
Sri A.N.Maurya was the Basic Education
Officer by using corrupt methods. The
allegations with regard to petitioner No. 4
is that she is the wife of the younger
brother of the Manager of the Institution
and even petitioner no 2 is very closely
related to the Manager and consequently in
light of the bar imposed in the rules of 1978
they could not appointed as such.

12. Initially the matter was left to the
Block Education Officer to conduct the
inquiry into the said allegations and he duly
submitted his report on 17/08/2020. A
perusal of his inquiry report reveals that he
had sent his report on the basis of the
material furnished by the Manager of the
Institution against whom the allegations
were also levelled and he was said to be the
close relative of some of the teachers.

13. The Block Education Officer in
his inquiry looked into the selection
process, has laid great emphasis on the fact
that the complaint should have been made
on affidavit, only then said inquiry can take
place. His report clearly indicates his
reluctance to enquire into the alleged
malpractices in the appointment of the
teachers, and subsequently he has observed
that all the teachers are duly qualified
without even examining the details of their
qualification and only stating that the
appointment
process
has
been
and
concluded on the orders of the High Court.
The said inquiry on the face of it is totally
unsatisfactory and does not indicate that
any sort of effort was made by him to
unravel the truth or to go into the
allegations levelled against petitioners.

14. There is no letter order on record,
nor any averment in writ petition that the
District
Magistrate
has
recorded
his
satisfaction
or
approved
the
inquiry
conducted by the Block Education Officer.

15. The Assistant Director Education
(Basic) has also conducted the inquiry on
the same allegations. In his inquiry report,
which has been forwarded to the District
Basic Education Officer along with the
impugned letter dated 12/08/2021 clearly
narrates the entire process undertaken by
him while conducting the said inquiry. It is
stated in his letter dated 11/09/2020 that he
had required the District Basic Education
Officer, Deoria as well as the Manager of
the Institute to be present on 28/09/2020.
The complainant was also present on the
said date and he presented all the evidence
in support of the allegations, but the
Manager of the Institution did not put up
any case in his defence and consequently
the next date fixed was 20/10/2020 after
intimation to all the persons. The Manager
of the Institution required that an affidavit
should be filed by the complainant with
regard to the allegations levelled therein
and consequently the same was done and a
copy was given to the Manager of the
Institution. Number of dates were fixed and
the District Education Officer was also
required file a response, and it is also
mentioned that the concerned teachers
including the petitioners were also given an
opportunity to submit documents and
present their defence by means of letter
dated 09/03/2021. On 08/04/2021 all the
seven teachers were present and were given
418 INDIAN LAW REPORTS ALLAHABAD SERIES
an opportunity to give their defence in
writing which they refused, but produced
their
appointment
letters
and
other
educational
qualifications/documents
during the said hearing.

16. The Assistant Director of
Education (Basic) has considered the
complaint as well as, the version of the
Manager of the Institution and thereafter
recorded his findings on each of the points
made in the complaint. His findings are
recorded in a comparative chart from which
the version of all the parties is clearly
evident. With regard to Ms Rita Pandey he
has held that she has completed B.Ed in
year 2006 and she was appointed in the
year 2008 and consequently it is not
possible for her to have completed five
years experience. He has raised a suspicion
about the approval granted to her as well as
with regard to her age and opined that these
issues are required to be gone into and
inquired by the District Basic Education
Officer, Deoria.

17. With regard to the allegation
that Rita Pandey was the wife of the
Manager, Ajit Kumar Upadhaya, a copy
of the marriage invitation card was
produced in support of the allegations but
it seems she was married after her
appointment,
and
another
piece
of
evidence produced was a copy of the
election card, which also indicates Ajit
Kumar Upadhaya to be her husband but it
was not clear as to when the said election
card prepared and consequently he was of
the opinion that the matter may be
inquired into after collecting relevant
information. With regard to the allegation
regarding that Ms Neetu who is said to be
the
wife
of
Dhananjaya
Upadhaya,
brother of the Manager as per election
card, the said fact stood confirmed and he
opined that her appointment is contrary to
the rules.

18. This Court at this stage would
not go into the veracity of the allegations
in the present proceedings, but the
inquiry report has been perused by us to
determine the nature of allegations and
the material in support of the same to
determine and also to evaluate as to
whether the allegations are frivolous or
levelled due to sheer malice or there is
any substance in the same, and also the
manner in which the inquiry has been
conducted,
so
as
to
consider
the
allegation of harassment levelled by the
petitioner and also to determine whether a
prima facie case is made out against
petitioner.

19. Considering the inquiry report
submitted by the Assistant Director of
Education (Basic) it seems that he has
considered all the material placed before
him in detail and his observations seems to
be in sync with the material produced, and
wherever there is lack of any material or
clarity in the documents, he has sought
further inquiry into that aspect by the
District Basic Education Officer.

20. The Assistant Director of
Education has only considered the nature of
allegations and the material produced in
support of the same allegations and was
opinion that a regular inquiry is necessary
for which purpose is he has forwarded the
entire material to the District Basic
Education Officer. The exercise conducted
by the Assistant Director of Education can
only be equated with a fact-finding inquiry,
and
he
has
not
given
any
final
determination with regard to the allegation.
From the impugned order, it cannot be said
that the allegations are baseless or can be
2 All. Reeta Pandey & Ors. Vs. State of U.P. & Ors.
419
rejected outright but the matter deserves to
be inquired further and consequently
necessary directions have been given to the
District Basic Education Officer. It is seen
that even during the preliminary inquiry the
petitioners were given an opportunity to
participate
and
even
the
documents
submitted by then were duly considered.
On
substance
being
found
in
the
allegations, a regular inquiry is being
sought which has been assailed by the
petitioners.

21. One of the grounds urged by the
counsel of the petitioner while assailing the
impugned order is that the inquiry has
already been conducted by a superior
authority, that is the Assistant Director of
Education (Basic), who has directed the
District Basic Education Officer to conduct
the inquiry, and therefore it is the
apprehension of the petitioners that in all
probability the District Basic Education
Officer being subordinate to the Assistant
Director of Education (Basic) would act on
his dictate and not conduct inquiry
independently.

22. From a perusal of the impugned
order, the Assistant Director of Education
(Basic) it is clear that he has only
conducted a preliminary inquiry into the
veracity of the allegations, and on a number
of aspects he has recorded that the material
was not sufficient to come to any
conclusion, and therefore has left it to the
District Basic Education Officer to conduct
a regular inquiry and to record a finding in
that regard. Considering the aforesaid
inquiry report, this Court is of the
considered opinion that The Assistant
Director of Education (Basic) has only
proceeded to verify the contents of the
complaints, and it is at the most a factfinding inquiry, which is necessary for
initiating a regular inquiry, inasmuch as
where the complaint is found to be
frivolous and without any basis, then the
complaint can be dropped, and there would
be no need to proceed for a regular inquiry.
In the instant case, the Assistant Director of
Education
(Basic)
has
verified
the
allegations levelled in the complaint are
made against the petitioners, and only after
satisfying himself has directed for a regular
inquiry in accordance with law. The
apprehension of the petitioners seems to be
baseless, and only a vein attempt to prevent
a regular inquiry.

23. In this regard it is relevant to
mention
that
petitioner
no.7
had
approached this Court in an earlier
occasion where The Assistant Director of
Education (Basic) had only asked for the
relevant
records
pertaining
to
the
petitioners vide his order dated 09/03/2021,
and in the said writ petition a similar
ground was raised that an earlier inquiry
has been conducted by the District Basic
Education Officer, Deoria at the behest of a
private individual and consequently a
flawed inquiry into the same allegations
would not be maintainable. This Court in
its order dated 06/08/2021 passed in writ
petition no. Writ "A" 5211 of 2021
disposed of the writ petition by providing
that the inquiry officer shall take note of
the earlier inquiry report dated 01/03/2021.
From the above order it is clear that the
grounds urged by the petitioners were not
accepted by this Court and the prayer to
stall the regular enquiry was unsucessful
and on similar facts the present writ
petition has been preferred.

24. Under ordinary circumstances
there is no need for judicial interferance
with the inquiry report in as much as the
delinquent employee does not suffer any
420 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse consequences on mere submission
of the inquiry report. Needless to say ,the
inquiry report is subject to consideration by
the disciplinary authority who is required to
pass a reasoned and speaking order after
giving a copy of the same to the employee
concerned. It is open for the disciplinary
authority either to accept the inquiry report
or to reject the same, and therefore unless it
is shown that the said inquiry report suffers
from some jurisdictional error or that there
is some element of malafide in conduct of
the said inquiry interference is not required
to be made by this Court in exercise of
power under Article 226 of the Constitution
of India.

25. The Hon'ble Supreme Court in the
case of Allahabad Bank & Ors. vs.
Krishna Narayan Tiwari, (2017) 2 SCC
308 has held as under:-

7. We have given our anxious
consideration to the submissions at the bar.
It is true that a writ court is very slow in
interfering with the findings of facts
recorded by a Departmental Authority on
the basis of evidence available on record.
But it is equally true that in a case where
the Disciplinary Authority records a
finding that is unsupported by any evidence
whatsoever
or
a
finding
which
no
reasonable person could have arrived at,
the writ court would be justified if not duty
bound to examine the matter and grant
relief in appropriate cases. The writ court
will certainly interfere with disciplinary
inquiry or the resultant orders passed by
the competent authority on that basis if the
inquiry itself was vitiated on account of
violation of principles of natural justice, as
is alleged to be the position in the present
case. Non-application of mind by the
inquiry
Officer
or
the
Disciplinary
Authority, non-recording of reasons in
support of the conclusion arrived at by
them are also grounds on which the writ
courts are justified in interfering with the
orders of punishment. The High Court has,
in the case at hand, found all these
infirmities in the order passed by the
Disciplinary Authority and the Appellate
Authority. The respondent's case that the
inquiry was conducted without giving a fair
and reasonable opportunity for leading
evidence in defense has not been effectively
rebutted
by
the
appellant.
More
importantly the Disciplinary Authority does
not appear to have properly appreciated
the evidence nor recorded reasons in
support of his conclusion. To add insult to
injury the Appellate Authority instead of
recording
its
own
reasons
and
independently appreciating the material on
record, simply reproduced the findings of
the Disciplinary Authority. All told the
inquiry Officer, the Disciplinary Authority
and the Appellate Authority have faltered
in the discharge of their duties resulting in
miscarriage of justice. The High Court was
in that view right in interfering with the
orders passed by the Disciplinary Authority
and the Appellate Authority.

26. In the present case the allegation
against the petitioners are very serious.
Some of the petitioners are alleged to be
very close relatives of the Manager of the
institution where they have been appointed,
while
the
law
prohibits
such
an
appointment. In the complaint copy of the
election cards of the petitioners where
produced showing that the Manager is the
husband of one of the petitioners, and the
other petitioner is also the wife of the
brother of the Manager.

27. A perusal of the impugned inquiry
report,
reveals
that
the
educational
qualifications of the petitioners have also
2 All. Reeta Pandey & Ors. Vs. State of U.P. & Ors.
421
found to be suspect, and even as per their
own version they might not have completed
the minimum experience required for the
appointed on the post of Assistant Teacher.
These allegations go to the very root of
appointment of the petitioners and the
further continuance on the said post. Mere
continuing on a particular post for a long
period of time does not establish that the
selection
of
the
individual
was
in
accordance with law, and it can always be a
subject of inquiry to establish that the
appointment was lawfully made or not and
that the said employees is not a usurper of
office.
Appointments
in
educational
institutions have to be made strictly in
accordance with the qualifications laid
down in the rules existing at the time of the
appointment,
as
it
has
widespread
ramifications, inasmuch as an ineligible
person appointed as a teacher may do more
harm to the students and where a person
who
has
tried
to
manipulate
his
appointment as a teacher, is less likely to
inculcate the values desired to the student
specially at the primary and Junior High
school level.

28. It was submitted that the
petitioners have been continuing in the
said institution for a very long time and,
therefore, after such a long time no
inquiry should be held with regard to the
mode
of
appointment
or
their
qualifications. This argument in the facts
of the present case is bereft of merit and
is liable to be rejected outrightly. Any
person who has been appointed on the
basis of false declaration or on the basis
of
false
documents
regarding
their
eligibility, does not have any right to
continue on the said post even if he/she
has been woking for a long time. Fraud,
cannot be condoned and as soon as it is
determined that a person has obtained
appointment fraudently, the appointment
deserve to be set aside.

29. The Hon'ble Supreme Court held
that anyone found guilty of using a
forged
caste
certificate
for
getting
education and employment will lose their
degree and their job. To add to that, the
guilty will be punished heavily too,
announced the apex court.

30. If someone had committed a
similar fraud to get a job, no matter how
long they had been employed, their
punishment will be inevitable too.

31. The Hon'ble Supreme Court in the
case of Chairman and managing director
FCI and ors vs. Jagdish Balaram Bahira
and ors, (2017) 8 SCC 670 has held as
under:-

"20 The next decision which is of
relevance on the issue, is a judgment of
three
Judges
of
this
Court
in
R.
Vishwanatha Pillai Vs. State of Kerala4 . In
that case the appellant who did not belong
to a designated reserved community
obtained a caste certificate and was
selected as a Deputy Superintendent of
Police on a seat reserved for the Scheduled
Castes. However, it was found upon a
complaint that the appellant did not belong
to a Scheduled Caste and the Scrutiny
Committee rejected his claim. The order of
the Scrutiny Committee was upheld by the
High Court and by this Court. Subsequently
at the behest of the appellant the Central
Administrative Tribunal directed that he
should not be terminated from service
without following the procedure under
Article 311. The High Court reversed that
decision and the appellant was dismissed
from service. Before this Court the
appellant inter alia sought protection since
422 INDIAN LAW REPORTS ALLAHABAD SERIES
he had rendered nearly 27 years of service.
Rejecting the submission this Court held
that:

"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. Unless the appellant can lay a
claim to the post on the basis of his
appointment
he
cannot
claim
the
constitutional guarantee given under the
Article 311 of the Constitution. As he had
obtained the appointment on the basis of a
false caste certificate he cannot be
considered to be a person who holds a post
within the meaning of Article 311 of the
Constitution of India, Finding recorded by
the Scrutiny Committee that the appellant
got the appointment on the basis of false
caste certificate has become final. The
position, therefore, is that the appellant has
usurped the post which should have gone to
a member of the Scheduled 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 practising 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."
(Id. at p. 115) (emphasis suppled)

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 an order of compulsory retirement or
removal to protect his pensionary benefits.
The Court observed :

"19.....The rights to salary, pension
and other service benefits areentirely
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 thepost
was void and non est in the eyes of law. The
right to salary or pension after retirement
flow from a valid andlegal appointment.
Theconsequential right of pension and
monetary benefits can be given only ifthe
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 Scheduled Caste of
appointment to that post does not deserve
any sympathy or indulgence of this Court.
A person who, seeks equity must come with
clean hands. He. who comes to the Court
with false claims, cannot plead equity nor
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
2 All. Ram Harsh Vs. The U.O.I. & Ors.
423
cannot be exercised in the case of a person
who got the appointment on the basis of
false castecertificate 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." (Id. at p. 116)"

32. Considering the arguments raised
by counsel for the petitioners as well as the
nature of allegation against the petitioner
and also that, this Court is of the considered
view that there is no infirmity in the
impugned order directing regular enquiry
against the petitioner and no ground is
made out requiring interference by this
Court at this stage and hence the petitioners
being devoid of merit is dismissed.
----------
(2022)02ILR A423
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Writ-A No. 17043 of 2021

Ram Harsh ...Petitioner
Versus
The U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Aftab Alam

Counsel for the Respondents:
A.S.G.I., Sri Naresh Chandra Tripathi

A. Civil Law - Constitution of India-1950Article 226 - Armed Force Tribunal Act,
2007-Section 30 & 31- challenge to-delayed
payment
of
pension
-Petitioner
was
discharged from his service being deserter- -
Tribunal dismissed the original applicationpetitioner by-passed statutory alternative
remedy provided under the Act, 2007petitioner invoked extraordinary jurisdiction
Under Article 226 of the Constitution of
India for entertaining the writ petition on
the ground of old age related ailments and
complications-he
did
not
file
medical
certificate nor any document brought on
record in support of his pleadings that he is
not physically fit to approach the Supreme
Court-Even he took plea that he is alone his
sons are living separately but failed to
provide any evidence that his sons are not
supporting him to approach the Apex CourtOn the basis of vague and bald statement,
the petitioner cannot be permitted to bypass
the alternative remedy of appeal.( 1 to 32)

B. The pleadings are the foundation of
litigation. In pleadings the necessary and
relevant particulars and material must be
included. In case where the petitioner is
praying for intervention in exercise of
powers under Article 226 of the Constitution
bypassing the statutory remedy, it is the
duty of the petitioner to bring complete
facts
and
circumstances
by
way
of
pleadings. if the factual foundation for the
cause of action in approaching the court is
missing or is vague, then it is always open
for the court to deny the relief to the
petitioner in the facts and circumstances of
the particular case. The writ courts normally
refrain from exercising their extraordinary
power if the petitioner has an alternative
efficacious remedy. the rule of alternative
remedy is a rule of discretion and not a rule
of jurisdiction. The existence of such remedy
does not mean that the jurisdiction of the
High Court is ousted. (Para 19 to 27)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. U.O.I. Vs Major General Shri Kant Sharma &
ors. (2015) 6 SCC 773

2. Ram Naresh Ram Vs U.O.I. & ors., Writ -A No.
15281 of 2021

3. Mahesh Chand Ex-LNK/CI Vs U.O.I. (2014) 3
ESC 1614