2004 Supreme(SC) 28

2004(1) Supreme 436
SUPREME COURT OF INDIA
(From Kerala High Court)
V.N. Khare, CJI., Ashok Bhan & Dr. AR. Lakshmanan, JJ.
R. Vishwanatha Pillai -Appellant
versus
State of Kerala & Ors. -Respondents
Civil Appeal No. 89 of 2004
(Arising out of SLP (C) No. 18503 of 2000)
With
Civil Appeal No. 90 of 2004
(Arising out of SLP (C) No. 12261 of 2001)
Decided on 7-1-2004
Counsel for the Parties :
For the Appearing Parties : R.N. Trivedi, Additional Solicitor General, Ranjit Kumar, Kailash Vasdev, Sr. Advocates, E.R. Kumar, P.H. Parekh, K.R. Sasiprabhu, Ms. V. Mohana, Ajay Agarwal, Ms. Sushma Suri and Shreekant N. Terdol, Advocates.

IMPORTANT POINT
Unless an employee 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 and where a person 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.

Headnote:(i) SERVICE LAW-Constitution of India -Article 311-All India Services Act, 1951-Section 3(1)-All India Services (Discipline and Appeal) Rules, 1969-Rules 6 and 7-Right to post-Claim of-Appellant got appointment on basis of false caste certificate-Appointment being void from its inception-Whether appellant can claim that he was holder of post entitled to be dealt with in terms of Article 311 of the Constitution-(No)-Where an appointment in of a service has been acquired by practising fraud or deceit-Such an appointment is no appointment in law, in service-In such a situation Article 311 of the Constitution is not attracted.

       Held : 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. (Para 15)

       (ii) SERVICE LAW-Dismissal from service-Safeguards provided in Article 311 of the Constitution-Claim of-Appellant obtained a community certificate in 1969 stating that he was a member of Vettuvan community-In school record his caste was recorded as Veduvar Pillai , a forward caste-Caste of his father, mother, brother and other two sisters was also recorded as belonging to forward caste-However, appellant got an appointment as Assistant in Legislative Secretariat in year 1973 against a post reserved for Scheduled Caste on basis of Community Certificate-He was then selected as direct recruit to post of Deputy Superintendent of Police against a seat reserved for Scheduled Caste-Subsequently he was promoted and included in cadre of Indian Police Service (IPS)-Enquiry revealing that appellant did not belong to Scheduled caste, as claimed-Application before Central Administrative Tribunal seeking direction against respondents not to terminate service of appellant-Tribunal allowed the application-High Court allowing writ petition reversed order of Central Administrative Tribunal-Whether appellant would be entitled to protection provided under Article 311 of the Constitution and Rules framed thereunder-(No).

       Held : The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court. Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) The Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer having intimate knowledge in the verification and issuance of the social status certifies, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put-forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld upto this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority. (Para 13)

       Rule 6 of the Rules provides the penalties major or minor which can be awarded to the delinquent officer on being found guilty of misconduct alleged against him. Rule 7(1) provides that where a member of the service has committed any act or omission, either before his appointment or subsequently, which renders him liable to any penalty specified in Rule 6, then, the penalty of dismissal, removal or compulsorily retirement shall not be imposed in the case of Central Government employee except by an order of the Central Government {Rule 7(2)}. In the present case, the order has been passed by the Central Government as the appellant was an IPS officer. The act or omission on the part of the appellant pertains to the period prior to his joining the service. There is no non-compliance of Rules 6 or 7 of the Rules. (Para 14)

       (iii) SERVICE LAW-Dismissal from service-Appellant had rendered about 27 years of service-Prayer made that order of dismissal be substituted by an order of compulsory retirement or removal from service to protect pensionary benefits of appellant-Whether maintainable-(No)-Appellant had 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 the post was void and non est in eyes of law.

       Held : The rights to salary, pension and other service benefits are entirely 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 the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the 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 cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate 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. (Para 18)

       (iv) EDUCATION-Admission to Engineering College-False caste certificate-Appellant s caste was shown as Scheduled Caste in school record at time of admission-He applied for admission to Regional Engineering College against a seat reserved for a Scheduled Caste candidate-He was given admission on basis of caste certificate dated 22.6.1992-Scrutiny Committee in 1995 held that appellant s father did not belong to Scheduled caste and cancelled community certificate issued to him-Cancellation of admission of appellant-Challenged by appellant by filing writ petition-High Court allowed appellant to continue studies and sit for 6th, 7th and 8th semester examinations-However, his result was not declared-Appellant completed his engineering course in year 1996-Writ petition dismissed-Appellant filed interlocutory application in Supreme Court seeking declaration of results of 6th, 7th and 8th semester examinations taken by him-No purpose would be served in withholding declaration of result on basis of examination already taken by him-Direction made that appellant s result be declared and he be allowed to take his degree with condition that he will not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits. (Para 26)