Point of law: 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.”

JUDGMENT

Yashwant Varma, 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 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 Others, Writ - A No.8657 of 2020 decided on 02.11.2020 and the judgment of the Division Bench in Smt. Parmi Maurya Vs. State of U.P. And 2 Ors, Special Appeal Defective No.110 of 2014 decided on 31.01.2014 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], (2006) 4 SCC 1. 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 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 t