Judgment:
Mansoor Ahmad Mir, J.
1. This Letters Patent Appeal is directed against the judgment and order dated September 16, 2005 passed by learned single Judge in S.W.P. No. 1394/2002, allowing the writ petition and setting aside the order of termination of the appellant-writ petitioners bearing No. 1-Agri of 2002 dated October 22, 2002. In order to decide the controversy raised in the appeal effectively, it is profitable to notice the brief facts of case:
2. Hilal Ahmad Mir, respondent No. 1-writ petitioner, came to be appointed as Soil Conservation Assistant (Engineering) on regular basis, on the recommendations of the J&K; Public Service Commission. He joined the post in the office of Assistant Soil Conservation Officer, Baramulla, Sub-Division Bandipora, and took over charge of the post with effect from April 25,2002. It appears that a complaint came to be made to Assistant Soil Conservation Officer, Baramulla alleging therein that the academic certificate produced by the petitioner was fraud and fictitious one. After noticing the complaint, it appears that an enquiry was got conducted through Deputy Director Agriculture (Trainings), Kashmir and it was found that the petitioner was having fictitious academic certificate. The respondent No. 2-Public Service Commission (PSC) also vide letter No. PSC/DR/SC/Engg/97 dated May 24, 2002 informed the Director Agriculture, Kashmir, that the certificate produced by the writ petitioner was fictitious one. Noticing the said fact and the fact that the writ petitioner was still on probation, his service came to be terminated vide Government order No. 1-Agri of 2002 dated October 22, 2002. Feeling aggrieved, the petitioner questioned the said order. The writ Court, after hearing the parties, allowed the writ petition and quashed the order, in terms of the impugned judgment and order dated September 16, 2005, by holding that:.The petitioner should have been afforded with an opportunity to explain it. Since it has not been done, I find the order impugned cannot stand. It is hereby set aside. The proper course for the respondent is to issue a formal show cause notice to the petitioner directing him to explain the circumstances appearing against him. Final decision in the matter may be taken by the concerned authorities only after the reply of the petitioner is received and considered by them. The petition is, therefore, allowed as indicated above.
3. Learned Counsel for the appellants also produced record.
4. Heard learned Counsel for the parties and perused the matter.
5. Perusal of the record indicates that the petitioner came to be appointed as Soil Conservation Assistant (Engineering) vide order No. 49-Agri of 2001 dated February 26, 2001. He joined in the office of Director Agriculture, Kashmir, on March 3, 2001 and was relieved from the said office and joined in the office of Chief Agriculture Officer, Baramulla, on April 9, 2001. He took, over charge as Soil Conservation Assistant (Engineering) on April 16, 2001 and came to be posted as Soil Conservation Assistant Bandipora vice Abdul Gani Khan and took over charge as such on April 5, 2001. One Gulzar Ahmad made a complaint to Assistant Soil Conservation Officer, Baramulla on August 13, 2001 with the allegation that the academic certificate of writ petitioner-respondent No. 1 is fictitious and fraud as he has not completed the course, but has left the University halfway. Thereafter another complaint came to be made.
6. Assistant Soil Conservation Officer, Department of Agriculture, District Baramulla made a communication to the Registrar of Punjab Agriculture University Punjab. Assistant Soil Conservation Officer, made a communication to Chief Agriculture Officer, Baramulla on October 30, 2001 with the direction to stop him to perform his duties till further orders from the higher authorities. The Chief Agriculture Officer, Baramulla vide order dated November 17, 2001 directed one Altaf Hussain, Soil Conservation Assistant to perform the duties of the post of Soil Conservation Officer. Bandipora in addition to his on duties, till the case of writ petitioner is settled. It appears that the writ petitioner was called by Chief Agriculture Officer and he was asked to substantiate the genuineness of the certificate and to clarify whether the certificate is fraud and fictitious. He had sought one months' time to enable him to prove that the allegations leveled against him are not true and are baseless. A copy of that document-affidavit is on the record and also a copy of it is with the memo of appeal.
7. The communication was made to Registrar, Punjab Agriculture University. Thereafter communication came to be produced by the writ petitioner-respondent before the department. The appellant after noticing some foul play, again made a communication to the Registrar Punjab Agriculture University, Ludhiana. It was reported by the authorities of the said University that neither certificate was issued to the writ petitioner-respondent nor he has completed the course and provisional degree certificate which was bearing No. 902 was not issued to him but came to be issued to Shri S.S. Singh, L-91-E, 29-B-l. And the letter, dated December 4, 2002 Issued by Director Agriculture, Kashmir was neither received by that authority nor any reply dated April 12, 2001 was issued by the Registrar, Punjab Agriculture University. Further it is stated in the said communication that the letter produced' before the department was fake and the signatures of Registrar on that letter are also forged. The said communication was made by Registrar, Punjab Agriculture University to Mr.. N.A. Qazi, Deputy Director Agriculture, J&K;, which reads:.Please refer to your letter No. 1 (Camp PAU Ludhiana) dated April 26, 2002 on the subject cited above.
It is to inform you that the information supplied vide this office Memo No. acad.T-4/AU-2001/91-50/36752 dated October 5, 2001 to the Assistant Soil Conservation Officer, Department of Agriculture, District Baramulla, J&K; State that Shri Hilal Ahmad Mir, L-91-AE-50-BIV S/O Sh. Mohammad Yousuf Mir did not complete his B. Tech. (Agri Engg.) degree from this University, is correct as per record of this office. The Provisional Degree Certificate bearing Sr. No. 902 was not issued to him rather it was issued to Sh. Simranjit Singh Sahota, L-91-AE-29-BIV.
It is further intimated that neither the letter No. Agri./Estt/Gaz.188/PE/135 dated April 3, 2002 from the Director of Agriculture, Kashmir was received in this office nor this office has given any reply to it. Memo No. Acad.T-4/AU-200/91 -50/37193 dated April 12, 2001 is a fake letter and the signatures of the Registrar are also forged.
8. The enquiry officer after conducting detailed enquiry in the matter, submitted his detailed report on June 4, 2002. The enquiry report contains all the details including the details narrated hereinabove and thereafter impugned order came to be passed.
9. In view of the facts narrated above, the sole question which calls for determination is whether a formal show cause notice was required to be given to the petitioner before terminating his services.
10. The writ Court has not asked the department to conduct regular enquiry in terms of the judgment and order impugned in this appeal. The writ petitioner has not challenged the said order. The case is being contested only on the ground 'whether formal show cause notice was required in the given circumstances of the case? The writ petitioner was asked to explain his conduct by the department. He had sought one month's time to prove that the certificate is genuine and the allegations levelled against him are baseless. It appears that ; instead of doing so, he managed a letter. As discussed above and as opined by the Registrar of University, said letter was also forged and fake and his signatures on the said letter are also forged.
11. What will come out, by issuing formal show cause notice? In the given circumstances, nothing will come out of show cause notice because respondent is knowing what were the allegations against him. He was not allowed to function. He could not prove that the certificate was genuine. He could not produce any material before the departmental authorities-appellants, writ Court and the appellate Court to show that the certificate is genuine one.
12. Apex Court in case R. Vishwamatha Pillai v. State of Kerala : AIR2004SC1469 , has held that when appointment is obtained by fraud or deceitful means, such appointment is no appointment in law and 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 and in such circumstances Article 311 of the Constitution is 1 not attracted at all. The Apex Court has further held that non-issuance of a fresh notice is not required in the given circumstances of the case. It is apt to reproduce para 15 of the judgment, so far it is relevant for the present case, hereunder:.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 up to 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.
13. The Apex Court in case Bank of India v. Avinash D. Mandivikar : AIR2005SC3395 has held that a person who obtains appointment by fraud, should not be allowed to continue even for a limited period as that will amount to allowing a person to enjoy fruits of his appointment obtained by illegal means. It is apt to reproduce relevant para 12 of the judgment hereunder at p. 1128 of LLJ:
13...The order of termination does not suffer from any infirmity and the High Court should not have interfered with it. By giving protection for even a limited period, the result would be that a person who has a legitimate claim shall be deprived the benefits. On the other hand, a person who has obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment.
14. In another case Additional General Manager-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde : AIR2007SC2048 , the Apex Court has held that appointment obtained by fraud is void from its inception.
15. Division Bench of this Court in case Sham Lal and Anr. v. State of J&K; and Ors. 2005 (2) SLJ 475, while dealing with an identical case has held that the rules of natural justice cannot be expressed like straitjacket formulae. The nature and extent of their application depends on facts of the case and giving show cause notice, in the given circumstances, would be a formality. It is apt to reproduce relevant para of the judgment hereunder:.Rules of natural justice, as is often said, cannot be expressed like straitjacket formulae. The nature and extent of their application depends on facts of the case. We are satisfied that giving a show cause notice would have been a formality. The appellant having approached this Court with unclean hands cannot claim any right in equity...
16. Keeping in view the ratio laid down by the Apex Court judgments supra as also of this Court, issuance of formal show cause notice would be not only a mere formality, but also an exercise in futility.
17. Having glance over the aforesaid discussions, the relief granted by the writ Court is unwarranted. Accordingly appeal is allowed; and the judgment and order dated September 16, 2005 is set aside and the writ petition is dismissed.
18. However, in the circumstances of the case, there shall be no order as to costs. The records produced by Mr. Magray be returned to him.