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Ram Surat Prasad v. Union Of India And Others - SPECIAL APPEAL No. 259 of 2007  RD-AH 3977 (8 March 2007)
Special Appeal No.259 of 2007
Ram Surat Prasad
Union of India and others
Counsel for the appellant: Mr. Ashok Mehta, Adv.
Counsel for the respondents: Mr. Pankaj Naqvi, Adv.
Hon'ble H.L. Gokhale, CJ.
Hon'ble Ashok Bhushan, J.
1. Heard Mr. Ashok Mehta, learned counsel for the appellant and Mr. Pankaj Naqvi, who appears for respondents nos.2, 3 and 4.
2. The appeal is filed by an employee of the Banaras Hindu University. He joined as a Clerk in the University on 25.10.1979 in a post, which was meant for Scheduled Caste & Scheduled Tribe candidate. The advertisement given by the University clearly stated that the post was meant only for Scheduled Caste/Scheduled Tribe candidate. Later on in the year 1986, he got promoted on a post again meant for Scheduled Tribe candidate. Subsequently, it was detected that he did not belong to Scheduled Tribe category and, therefore, a departmental proceeding was initiated in the year 1993 leading to the termination of his services on 18.1.1998. It is this order that he challenged by filing a writ petition to this Court.
3. The learned Single Judge of this Court heard the matter and noted that whereas the advertisement clearly provided that the seat was meant for Schedule Tribe candidate, the appellant had given in writing on his application form that he belongs to Scheduled Tribe category. He had written at the bottom of the application form that 'I am belonging to Scheduled Tribe. Certificate will be submitted at the time of interview'. The certificate of caste submitted by the appellant showed that he belongs to 'Mallah' community, which is not Scheduled Tribe. It is material to note that in the counter affidavit filed by the respondents, it was clearly placed on the record and in para-6, a specific averment was made as to how this fraud was detected. The petitioner had not given proper reply. Learned counsel for the University pointed out that there was no specific averment in the rejoinder affidavit, although a detailed reply affidavit was filed. In view of the all these and other factors, the learned Judge has dismissed the writ petition, and while dismissing the writ petition, the learned Judge relied upon a judgement of the Hon'ble Apex Court in R. Vishwanatha Pillai Vs. State of Kerala and ors., reported in JT 2004 (1) SC 88. The learned Judge has taken a view that no sympathy should be shown to a person like the appellant and, therefore, he directed refund of the entire salary from the date of his engagement. It is this order, which is challenged in this appeal.
4. Mr. Mehta, learned counsel for the appellant submitted that so far as the appellant is concerned, he has not tempered with his caste certificate; he has all throughout stated that he belongs to 'Mallah' community and if that was true, it was error on the part of the University in appointing the appellant in Scheduled Tribe seat and he should not be made to suffer on that account. On the other hand, Mr. Naqvi, learned counsel for the University pointed out that there is a writing of the appellant at the bottom of the application form, wherein, as pointed out above, he has clearly stated 'I am belonging to Scheduled Tribe'. This aspect, which was placed before the learned Judge, was not countered by filing an affidavit in rejoinder. In this view of the matter, Mr. Naqvi, submitted that the learned Judge was entitled to draw his inference, as was drawn by the University, that the appellant had played fraud and that the University was justified in terminating him from employment, and the salary earned by him ought to be refunded. His submission relying on the judgement of R. Vishwanatha Pillai (supra) is that the order was just and proper.
5. We have heard the submissions of both the learned counsels. We admit and hear the appeal.
6. Having noted the submission as above, in our opinion, we cannot ignore that the appellant has benefited on the basis of statement, which undoubtedly was not truthful statement. He not only got the employment, but got the promotion and then continued from 1979 until 1998, when he came to be terminated from service. Some other persons, who would have got the employment in that post, could not get it. We are conscious of the fact that the Hon'ble Apex Court had said that no sympathy and equitable consideration can come to the rescue of such a person. It is however to be noted that no such direction as recovery of the salary had been passed in that judgement.
7. In this view of the matter, in our opinion, although the findings of the learned Single Judge do not require any interference, so far as the operative part of the order directing refund of the entire money drawn as salary is concerned, that will have to be interfered with. Accordingly, we allow this appeal in part and modify only this part of the operative order, which directs refund of the entire money drawn as salary. We make it clear that all the other findings with respect to the gaining wrongful employment on the basis of a fraudulent representation very much remain. The appellant will not be entitled to any other benefits, like gratuity, pension or otherwise.
8. In the facts of the case, there will not be any order as to costs.
RKK/- (Chief Justice)
(Ashok Bhushan, J.)
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