# Saurabh Srivastava v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 43
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-13
- **Case number:** Writ A No. 17117 of 2024
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-srivastava-v-state-of-u-p-ors-51067
- **Pages:** 6

## Headnote

A. Service Law - Transfer Policy - Principle
of "Last Come First Go" - Classification of
Teachers on Basis of Length of Service -
Constitution of India, Art. 14 - Test of
Reasonable Classification under Article 14
- U.P. Basic Education (Teachers) Service
Rules,
1981
-
U.P.
Basic
Education
Teachers Service Regulations, 1981 -
Right to Education Act, 2009 - U.P. Right
of Children to Free and Compulsory
Education Rules, 2011 - Clauses 3, 7, 8, &
9
of
the
Government
Order
dated
26.06.2024 issued by the Basic Education
was challenged. Clause 3 provided that
surplus teachers as per the bench mark of
the pupil-teacher ratio are to be shifted to
schools where such bench mark remains
unfulfilled. Clause 7 provides that transfer
of teachers would be under the principle
of "last come first go" whereby the junior
most teacher would be shifted out first.
Clauses were challenged on the ground
that it would entail frequent transfers of
junior teachers while maintaining senior
teachers in the same school for years
together. Held: Impugned clauses of the
G.O. do not indicate any reasoning as to
why the aforesaid principle is required to
be followed for transfer/adjustment of
teachers. By introducing such a concept, a
classification has been made pertaining to
those teachers who have been posted in a
particular school longer than others who
have been posted there subsequently. If
the aforesaid procedure prescribed under
the impugned clauses is kept intact, it
would entail frequent transfer of junior
teachers while keeping intact the posting
of senior teachers for all times to come
since a teacher after transfer and joining
in another district would ipso facto remain
a junior. No intelligible differentia has
been indicated either in the Government
Order, the circular or even in the counter
affidavit . Procedure for "last in first out"
also does not appear to have any rational
nexus with the object sought to be
achieved by the Act of 2009 and the Rules
framed
thereunder.
Court
found
the
classification to be discriminatory and
failing
the
test
of
reasonable
classification. (Para 57, 58, 59)

B. Civil Law - Service Law - U.P. Basic
Education (Teachers) Service Rules, 1981
- Clauses 3, of the G.O. dated 26.06.2024
- Inclusion of Shiksha Mitra in Parity with
Assistant Teachers Impermissible under
Service
Rules
-
Clause
3
of
the
Government Order, which provides for
transfer or adjustment by considering the
number of Shiksha Mitra employed in a
particular school, for determination of
Pupil-Teacher Ratio is contrary to the
Service Rules of 1981. Qualifications
required for appointment as an Assistant
Teacher are not applicable to Shiksha
Mitras, and therefore, the Government
Order clearly erred in equating the two.
Inclusion of Shiksha Mitra in parity with
Assistant Teachers is impermissible, as
executive orders can only supplement
statutory provisions but cannot supplant
or override them. Evidently, unequals
have been treated as equals. (61, 62, 63)

Dismissed. (E-5)

List of Cases cited:
44 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

11 All. Saurabh Srivastava Vs. State of U.P. & Ors.
43

20. Costs easy.
----------
(2024) 11 ILRA 43
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 17117 of 2024

Saurabh Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rahul Mishra, Saroj Kumar Yadav, Vikram
Bahadur Singh

Counsel for the Respondents:
C.S.C., Hare Ram

A. Service Law - Transfer Policy - Principle
of "Last Come First Go" - Classification of
Teachers on Basis of Length of Service -
Constitution of India, Art. 14 - Test of
Reasonable Classification under Article 14
- U.P. Basic Education (Teachers) Service
Rules,
1981
-
U.P.
Basic
Education
Teachers Service Regulations, 1981 -
Right to Education Act, 2009 - U.P. Right
of Children to Free and Compulsory
Education Rules, 2011 - Clauses 3, 7, 8, &
9
of
the
Government
Order
dated
26.06.2024 issued by the Basic Education
was challenged. Clause 3 provided that
surplus teachers as per the bench mark of
the pupil-teacher ratio are to be shifted to
schools where such bench mark remains
unfulfilled. Clause 7 provides that transfer
of teachers would be under the principle
of "last come first go" whereby the junior
most teacher would be shifted out first.
Clauses were challenged on the ground
that it would entail frequent transfers of
junior teachers while maintaining senior
teachers in the same school for years
together. Held: Impugned clauses of the
G.O. do not indicate any reasoning as to
why the aforesaid principle is required to
be followed for transfer/adjustment of
teachers. By introducing such a concept, a
classification has been made pertaining to
those teachers who have been posted in a
particular school longer than others who
have been posted there subsequently. If
the aforesaid procedure prescribed under
the impugned clauses is kept intact, it
would entail frequent transfer of junior
teachers while keeping intact the posting
of senior teachers for all times to come
since a teacher after transfer and joining
in another district would ipso facto remain
a junior. No intelligible differentia has
been indicated either in the Government
Order, the circular or even in the counter
affidavit . Procedure for "last in first out"
also does not appear to have any rational
nexus with the object sought to be
achieved by the Act of 2009 and the Rules
framed
thereunder.
Court
found
the
classification to be discriminatory and
failing
the
test
of
reasonable
classification. (Para 57, 58, 59)

B. Civil Law - Service Law - U.P. Basic
Education (Teachers) Service Rules, 1981
- Clauses 3, of the G.O. dated 26.06.2024
- Inclusion of Shiksha Mitra in Parity with
Assistant Teachers Impermissible under
Service
Rules
-
Clause
3
of
the
Government Order, which provides for
transfer or adjustment by considering the
number of Shiksha Mitra employed in a
particular school, for determination of
Pupil-Teacher Ratio is contrary to the
Service Rules of 1981. Qualifications
required for appointment as an Assistant
Teacher are not applicable to Shiksha
Mitras, and therefore, the Government
Order clearly erred in equating the two.
Inclusion of Shiksha Mitra in parity with
Assistant Teachers is impermissible, as
executive orders can only supplement
statutory provisions but cannot supplant
or override them. Evidently, unequals
have been treated as equals. (61, 62, 63)

Dismissed. (E-5)

List of Cases cited:
44 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Smt. Reena Singh Vs St. of U.P. & ors., writ
petition No. 25238 (S/S) of 2018

2. Govind Kausik & ors. Vs St. of U.P. & ors.,
Writ A No.10686 of 2024

3. Neerja & ors. Vs St. of U.P. & ors., Writ A
No.9970 of 2024

4. Jitendra Singh Rajput & anr. Vs St. of U.P. &
ors., Writ A No.11049 of 2024

5. Sarita Rani & ors. Vs St. of U.P. & ors., Writ A
No.19345 of 2018

6. U. P. Gram Panchayat Adhikari Sangh & ors.
Vs Daya Ram Saroj & ors., (2007) 2 SCC 138

7. Mary Pushpam Vs Televi Curusunary & ors. ,
Civil Appeal No.9941 of 2016

8. Pandit M.S.M. Sharma Vs Dr. Shri Krishan
Sinha & ors. AIR 1960 SC 1186,

9. Charanjit Lal Vs Union of India AIR 38 SCC
1951

10. U.O.I. Vs Alphinstone Shipping and Weaving
Comp. Ltd. 2001 Vol.1.-IV SCC 139 a

11. St. of Uttranchal Vs Sandeep Kumar Singh
& ors., (2010) 12 SCC 794

12. St. of M.P. Vs Narmada Bachao Andolan &
anr., (2011) 7 SCC 639

13. Kalyan Chandra Sarkar Vs Rajesh Ranjan @
Pappu Yadav & anr., (2005) 2 SCC 42

14. Bilkis Yakub Rasool Vs U.O.I., (2024) 5 SCC 481

15. Census Commissioner & ors. Vs R.
Krishnamurthy, (2015) 2 SCC 796

16. Ramesh Chandra Sharma & ors. Vs St. of
U.P. & ors., (2024) 5 SCC 217

17. Association for Democratic Reforms and
Another (Electoral Bond Scheme) Vs U.O.I. &
ors., (2024) 5 SCC 1

18. Amarendra Kumar Mohapatra Vs St. of
Orissa & ors. (2014) 4 SCC 583
(Delivered by Hon'ble Ajay Bhanot, J.)

1. Shri Rahul Mishra and Shri Vikram
Bahadur Singh, learned counsel for the
petitioner, Sri Hare Ram, learned counsel
for the BSA and Ms. Shruti Malviya,
learned brief holder on behalf of the State.

2. By the impugned order dated
04.10.2024,
the
appointment
of
the
petitioner has been cancelled on the footing
that his educational testimonials/certificates
pertaining to the TET Examination were
found to be forged.

3. The petitioner was noticed by order
dated 27.04.2024 that his educational
certificates of TET were found to be
forged. A report from the Board of the
High School and Intermediate Education
dated 02.09.2020 which had purportedly
issued the said certificate had recorded that
the petitioner had failed in the TET
Examination. The documents adverse to the
petitioner including the report of the Board
of High School and Intermediate Education
were served upon the petitioner along with
the show cause notice. The petitioner in
response
to
the
show
cause
notice
acknowledged the receipt of the aforesaid
report issued by the Board of High School
and
Intermediate
Education
dated
02.09.2020. The reply to the show cause
notice by the petitioner adverts to certain
disputes in the TET-2011 Examination
results. The petitioner has also stated that
the actual results of the petitioner can be
determined if his answer sheets are
summoned and evaluated by the employer.

4. The response of the petitioner did
not find favour with the authority and
hence the impugned order. The impugned
order adverts to the report sent by the
Board of High School and Intermediate
11 All. Saurabh Srivastava Vs. State of U.P. & Ors.
45
Education dated 02.09.2020 along with
other relied on documents and finds that the
TET certificate of the petitioner was
forged. The appointment of the petitioner
was vitiated by the fraud and accordingly
his services were terminated.

5. The natural justice cannot be cast in a
strait-jacket formula. The principles of
natural justice are applied with a view to the
facts of a particular case. In the instant case,
the petitioner was put to notice on the charges
of fraudulent educational certificates against
him. The documents adverse to the petitioner
and proposed to be relied upon by the
respondent-department were duly served
upon him. The petitioner was given an
opportunity to reply to the show cause notice.
The petitioner as tendered his defence to the
charges enumerated in the show cause notice.
The aforesaid reply submitted by the
petitioner was duly considered in the
impugned order. One of the tests of proper
application of the principles of natural justice
is whether any prejudice has been caused to
the noticee by the procedure adopted by the
disciplinary authority. No prejudice was
caused to the petitioner by the procedure
adopted by the authority. In the facts of this
case, principles of natural justice has been
duly complied with. The impugned order is
supported with reasons & there is no
perversity in the same.

6. The question now arises as to
whether a regular departmental enquiry
ought to have been conducted in the facts
of this case. The applicability of the UP
Government Servant Discipline and Appeal
Rules, 1999 for the purposes of holding a
regular departmental enquiry in similar
facts fell for consideration before a learned
Division Bench of this Court in District
Basic Education Officer and another vs.
Punita Singh and others. 1

7. In the case of Punita Singh
(supra), the services of the petitioner were
terminated
on
the
footing
that
her
educational certificates were forged and
fabricated. The question arose whether in
these facts, the issuance of show cause
notice and compliance of broad principles
of natural justice were sufficient to meet
the ends of justice or it was imperative to
hold a regular departmental enquiry. In this
context, while considering the applicability
of Rules, 1999, the learned Division Bench
of this Court held :

"16.
From
the
above
determination, it is apparent that the
University has categorically indicated that
the documents relied on by the respondent
for seeking employment were totally forged
and fabricated. Neither before the learned
Single Judge nor before this Court any
attempt has been made to negate the
finding
recorded
about
the
eligibility/qualification documents being
forged and fabricated.

17. The learned Single Judge
allowed the writ petition only on the
ground that termination of employment
amounts to imposing major penalty and the
same could not have been imposed without
holding inquiry under Rules of 1973/Rules
of 1999.

18. A Division Bench of this
Court in Zila Basic Shiksha Adhikari,
Balrampur Vs. Anand Kumar Tripathi
and others : 2024:AHC-LKO:37313-DB,
in
a
case
where
compassionate
appointment accorded to the respondent
therein, was terminated on account of
failure to produce relevant documents as
regard his parentage, etc., the Division
Bench, on the question whether in such
case show cause notice should be issued
and thereafter order of cancellation of
appointment should be passed or a full
46 INDIAN LAW REPORTS ALLAHABAD SERIES
fledged inquiry in terms of Rules of 1999
should be held followed by removal or
dismissal, came to the conclusion that
disciplinary proceedings are ordinarily
initiated if any misconduct has been
committed after joining service, therefore,
if the initial appointment itself was
fraudulent, then referring to the judgment
of
Hon'ble
Supreme
Court
in
R.
Vishwanatha Pillai Vs. State of Kerala
and others : (2004) 2 SCC 105, and Patna
High Court judgements in Ishwar Dayual
Sah Vs. State of Bihar : 1987 Lab IC390
and Rita Mishra Vs. Director, Primary
Education : 1988 Lab IC 907, came to the
following conclusion:

"12. Taking a cue from the ratio
of the decision of the Supreme Court, we
are of the opinion that if it is ultimately
found on inquiry referred earlier that the
opposite party no. 1 had practiced fraud or
deceit to obtain the appointment as already
discussed, then, it would be a case to
proceed for cancellation of appointment by
issuing a show cause notice for the said
purpose annexing the inquiry report and
material collected in such inquiry and then
considering the reply of the appointee in
this regard and taking a reasoned decision
after affording an opportunity of personal
hearing for cancellation of appointment
and not necessarily for dismissal or
removal of service, therefore, there is no
question of any inquiry to be held in terms
of Rules, 1999 as has already been held in
the aforesaid decision of the Supreme
Court.

13.
This
will
be
sufficient
observance of principles of natural justice.
It may also be pointed out that an employee
of Basic Education Department does not
have the benefit of Article 311 of the
Constitution of India as Article 311 of the
Constitution of India would not apply,
however, the relevant rules for disciplinary
proceedings for imposition of major
punishment such as removal, dismissal etc.
would apply, but, for the reasons aforesaid,
those will also not apply if on a fact finding
inquiry it is found that the appointment was
obtained by fraud, as already observed
hereinabove and thereafter the aforesaid
procedure is followed."

19. Recently, Hon'ble Supreme
Court in Union of India Vs. Prohlad Guha
etc.: 2024 SCC OnLine SC 1865, in a case
where the writ petitions filed by the
employees were allowed for not following
the Railway Servants (Discipline & Appeal)
Rules, 1968 and on coming to the
conclusion that qua a person in regular
service, the dismissal cannot take place
sans any disciplinary inquiry, while setting
aside the judgement, came to the following
conclusion:

"13. The impugned judgment is
liable to be set aside on a further ground,
since the requisite to establish eligibility
for compassionate appointment was not
properly fulfilled, they were appointed on
the basis of false claims and fabricated
documents. It then becomes imperative to
discuss what constitutes fraud and what is
its impact on an act afflicted by such vice.
R.M. Sahai, J. writing in Shrisht Dhawan
(Smt.) v. M/s. Shaw Brothers observed -

"20. Fraud and collusion vitiate
even the most solemn proceedings in any
civilised system of jurisprudence. It is a
concept descriptive of human conduct.
Michael Levi likens a fraudster to Milton's
sorcerer, Comus, who exulted in his ability
to, 'wing me into the easy-hearted man and
trap him into snares'. It has been defined as
an act of trickery or deceit. In Webster's
Third New International Dictionary fraud
in equity has been defined as an act or
omission to act or concealment by which
one person obtains an advantage against
conscience over another or which equity or
11 All. Saurabh Srivastava Vs. State of U.P. & Ors.
47
public policy forbids as being prejudicial to
another. In Black's Legal Dictionary, fraud
is defined as an intentional perversion of
truth for the purpose of inducing another in
reliance upon it to part with some valuable
thing belonging to him or surrender a legal
right; a false representation of a matter of
fact whether by words or by conduct, by
false or misleading allegations, or by
concealment of that which should have
been disclosed, which deceives and is
intended to deceive another so that he shall
act upon it to his legal injury. In Concise
Oxford Dictionary, it has been defined as
criminal
deception,
use
of
false
representation to gain unjust advantage;
dishonest artifice or trick. According to
Halsbury's
Laws
of
England,
a
representation is deemed to have been
false, and therefore a misrepresentation, if
it was at the material date false in
substance and in fact. ...From dictionary
meaning or even otherwise fraud arises out
of deliberate active role of representator
about a fact which he knows to be untrue
yet
he
succeeds
in
misleading
the
representee by making him believe it to be
true.
The
representation
to
become
fraudulent must be of a fact with knowledge
that it was false.

.....The colour of fraud in public
law or administrative law, as it is
developing, is assuming different shades. It
arises from a deception committed by
disclosure of incorrect facts knowingly and
deliberately to invoke exercise of power
and procure an order from an authority or
tribunal. It must result in exercise of
jurisdiction which otherwise would not
have
been
exercised.
That
is
misrepresentation must be in relation to the
conditions provided in a Section on
existence or non-existence of which power
can be exercised.

13.1. The words of Denning L.J.
in Lazarus Estates Ltd. v. Beasley are of
importance qua the impact of fraud. He
wrote -

".....I cannot accede to this
argument for a moment. No Court in this
land will allow a person to keep an
advantage he has obtained by fraud. No
judgment of a Court, no order of a
Minister, can be allowed to stand if it has
been obtained by fraud. Fraud unravels
everything. The Court is careful not to find
fraud unless it is distinctly pleaded and
proved; but once it is proved, it vitiates
judgment, contract and all transactions
whatsoever...."

13.2.
'Fraud'
is
conduct
expressed by letter or by word, inducing
the other party to take a definite stand as a
response to the conduct of the doer of such
fraud. [See; Derry v. Peek; Ram Preeti
Yadav v. U.P. Board of High School of
Intermediate Education]

13.3 In R. Vishwanatha Pillai v.
State of Kerala, a Bench of three learned
Judges observed that a person who held a
post which he had obtained by fraud, could
not be said to be holding a post within the
meaning of Article 311 of the Constitution
of India. In this case, a person who was not
a member of Scheduled Castes, obtained a
false certificate of belonging to such
category and, as a result thereof, was
appointed to a position in the Indian Police
Service reserved for applicants from such
category.

14.
The
above
discussion
reiterates
that
fraud
vitiates
all
proceedings. Compassionate appointment
is granted to those persons whose families
are left deeply troubled or destitute by the
primary breadwinner either having been
incapacitated or having passed away. So
when persons seeking appointment on such
ground attempt to falsely establish their
48 INDIAN LAW REPORTS ALLAHABAD SERIES
eligibility, as has been done in this case,
such positions cannot be allowed to be
retained. So far as the submission of noncompliance of the Rules is concerned, the
judgment in Vishwanatha Pillai (supra)
answers the question. The Respondentemployees in the present case, having
obtained their position by fraud, would not
be considered to be holding a post for the
purpose of the protections under the
Constitution. We are supported in this
conclusion by the observations made in
Devendra Kumar v. State of Uttaranchal.
In paragraph 25 thereof it was observed -

"25. More so, if the initial action is
not in consonance with law, the subsequent
conduct of a party cannot sanctify the same.
Sublato fundamento cadit opus - a foundation
being removed, the superstructure falls. A
person having done wrong cannot take
advantage of his own wrong and plead bar of
any law to frustrate the lawful trial by a
competent court. In such a case the legal maxim
nullus commodum capere potest de injuria sua
propria applies. The persons violating the law
cannot be permitted to urge that their offence
cannot be subjected to inquiry, trial or
investigation. (Vide Union of India v. Major
General Madan Lal Yadav [(1996) 4 SCC 127:
1996 SCC (Cri) 592: AIR 1996 SC 1340] and
Lily Thomas v. Union of India [(2000) 6 SCC
224: 2000 SCC (Cri) 1056].) Nor can a person
claim any right arising out of his own
wrongdoing (jus ex injuria non oritur)."
(Emphasis supplied)

15. The impugned judgment passed
by the High Court, in view of the above
discussion, is set aside and the order passed by
the Tribunal dismissing the Respondentemployees' Original Applications is restored.
The Respondent- employees were rightly
dismissed from service by the Appellantemployer. ..........."

20. From the above, it is well
established that in case, the employment has
been obtained based on fraudulent documents,
the beneficiary of such fraud cannot seek that
procedure prescribed under the Rules of 1999
must be followed.

21. So far as the judgment in the case
of Smt. Parmi Maurya (supra) relied on by
counsel for the respondent is concerned, it was
a case where the Division Bench came to the
conclusion that petitioner therein, was not
afforded adequate opportunity of hearing.
However, in the present case, it is ex facie clear
from the order impugned that she was provided
adequate opportunity with regard to her
documents being forged and fabricated and the
only plea raised by her was that she would
produce duplicate copies of the said documents
and neither in the writ petition nor in the
present appeal, she has been able to produce
any further document/material to substantiate
that the mark-sheets issued to her, were not
forged and fabricated. "

8. The case at hand is squarely covered by
the law laid down in Punita (supra).

9. In the wake of preceding discussion,
there is no infirmity in the procedure adopted
by the respondents while passing the impugned
order and the impugned order is lawful and just.
The writ petition is liable to be dismissed and is
dismissed.
----------
(2024) 11 ILRA 48
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.11.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 24901 of 2021

Km. Farha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents