“Appointment After Misrepresentation Of Facts Is Void Ab-Initio” Punjab & Haryana HC Dismisses Petition Filed By Lecturer

“Appointment After Misrepresentation Of Facts Is Void Ab-Initio” Punjab & Haryana HC Dismisses Petition Filed By Lecturer

“Appointment After Misrepresentation Of Facts Is Void Ab-Initio” Punjab & Haryana HC Dismisses Petition Filed By Lecturer

Recently, Hon’ble Punjab & Haryana High Court dismissed the writ petition filed by the Lecturer challenging the order passed by the respondent by which his services were terminated. It was held that “even though the petitioner may not have misrepresented at the time of obtaining an SC certificates or obtained the same fraudulently, but since he claimed and was given benefit under the said certificate to which he was definitely not entitled to, he cannot be allowed to continue in service. Consequence of the same to follow, however, the salary and other emoluments paid to the petitioner shall not be recovered”.

BRIEF FACTS OF THE CASE

In the year 2006, the petitioner namely Abid Ali started working as contractual Teaching Associate in respondent No.2-University. In the same year i.e. 2006, respondent No.2-University issued an advertisement for filling up 5 posts of Lecturers in the Department of Journalism & Mass Communication under SFS. Out of said 5 posts under SFS, one post was reserved for SC category and remaining four were unreserved. One post of Lecturer reserved for SC category was also published on temporary basis in the Department of Journalism & Mass Communication. The petitioner applied for appointment under both categories of posts i.e. budgeted and SFS. The petitioner joined as Lecturer under SFS on 02.07.2007 under Department of Journalism and Mass Communication. On 23.05.2012, a complaint was made by one Krishan Kumar against the petitioner alleging therein that the petitioner obtained job while claiming himself to be an SC candidate, as belonged to Julaha community, whereas he cannot be selected under SC category, being a Muslim. Respondent University sought verification from Deputy Commissioner, Karnal about his caste. Thereafter, show cause notice was served to which petitioner replied submitting therein that he had applied for the post of Lecturer under SFS as general category candidate. Again clarification was sought and after due deliberation and meeting, petitioner was removed from service in the year 2017.

CONTENTION OF THE PETITIONER

Advocates, appearing for the petitioner would contend that the petitioner had not sought any benefit of reservation as he had been appointed under the general category as the appointment letter did not mention his category as SC, whereas in the appointment offered to him for the budgeted post of Lecturer, the SC category was mentioned. It was argued that the SC certificate issued to the petitioner was assigned a wrong dispatch number and the similar mistake had occurred in the SC certificates issued to other candidates on 12.09.2000. There was no misrepresentation on behalf of the petitioner while seeking issuance of the caste certificate and therefore, removal of the petitioner from service on the ground that he secured appointment on the basis of forged caste certificate is wholly erroneous. Reliance was placed on Rajesh Kumar Daria Vs. Rajasthan Public Service AIR 2007 SC 3127, Managing Director Vs. Karunakar AIR 1994 SC 1074.

CONTENTION OF THE OPP. PARTIES

Per contra, it was argued that petitioner had secured job by furnishing a forged document, as a person belonging to Muslim community cannot be issued an SC certificate. The Deputy Commissioner, Karnal vide letter dated 30.10.2012 duly verified that as per their office record, there is no entry at Sr. No.2348 dated 12.09.2000 in favour of petitioner-Abid Ali. It was argued that there are instructions dated 20.03.2007 issued by the Union Government, which have been adopted by the Haryana Government, according to which if a person secures government job on the basis of false information or produce a false certificate in order to secure appointment, he should not be retained in service.

In support of his arguments, learned counsel appearing for respondent No.2 relied upon the judgment rendered by the Hon’ble Supreme Court in Punjabrao Vs. Dr. D.P. Meshram and others AIR 1965 2 (SC) 1179 to contend that for treating person as belonging to Scheduled Caste, he must be one who professes either Hindu or Sikh religion. Also, reliance was placed on M. Chandra Vs. M. Thangamuthu and another (2010) 9 SCC 712.

HON’BLE COURT’S OBSERVATIONS

At the outset, Hon’ble Ms. Justice Jaishree Thakur observed that “Throughout the selection process, the petitioner was treated as a candidate under SC category. Therefore, the argument of the petitioner that he contested for the post under General Category is of no help to the petitioner. Had the case been so, he ought not to have mentioned his category of reservation in the said column. In the absence of any column in the application form seeking information whether a candidate is applying under General Category or reserved category, mentioning of category of reservation in the application form itself is an indication that the candidate is seeking benefit of the reservation.

The settled position of law is that a person to have the status of Scheduled Caste must profess Hinduism or any other religion as specified in para 3 of the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as Presidential Order), as issued by the President in exercise of the power conferred upon him under Article 341 of the Constitution of India. Para 3 of the Presidential Order is reproduced as under:-

“3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.”

Further it was observed that “This Court is of the opinion that since the appointment of the petitioner based on the Scheduled Caste certificate to which he was not entitled to, is void ab initio, he cannot get the benefit of length of service for which he was not eligible at the first instance. The Hon’ble Supreme Court of India in the judgment rendered in Civil Appeal No.4990 of 2021 titled as The Chief Executive Officer, Bhilai Steel Plant, Bhilai Vs. Mahesh Kumar Gonnade and others decided on 11.07.2022 has held that when a person secured appointment on the basis of a false certificate, he cannot be permitted to retain the benefit of wrongful appointment.

In Satish Chandra Gupta Vs. Steel Authority of India Limited, Managing Director, Bokaro Steel Plant and Chairman, Steel Authority of India Limited 2010 (7) SCT 776, the Jharkhand High Court had rejected the plea of petitioner therein that his services could not be terminated after a period of 15 years on the ground that as he had obtained his appointment on the basis of misrepresentation of material facts, advantage is obtained by him in violation of constitutional scheme and therefore, appointment granted to petitioner is an illegal appointment and therefore, deemed to be void ab initio.”

In view of the above, the instant petition was dismissed.

 

Case Title:-  Abid Ali Vs. State of Harayana & ors.

Case no. :-   CWP No.18033 of 2017(O&M)

Order date :- 17.05.2023

 

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