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UNION OF INDIA & OTHERS versus KUMARI MUKTA JAIN

High Court of Judicature at Allahabad

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Union Of India & Others v. Kumari Mukta Jain - SECOND APPEAL No. 2556 of 1987 [2004] RD-AH 812 (16 September 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Second Appeal No. 2556 of 1987

Union of India and others Vs. Km. Mukta Jain

~~~~~

Hon'ble Dilip Gupta, J.

This Second Appeal has been filed by the defendants of Original Suit No. 747 of 1985 which had been filed for a declaration that the order dated 3/4-6-1985 issued by the Assistant Commissioner, Kendriya Vidyalaya Sangathan (Delhi Region), Delhi is void and illegal and the plaintiff continues to be in service and entitled to her pay and allowances. The suit was dismissed by the Ist Additional Munsif, Meerut by his judgment and decree dated 8.5.1986. Feeling aggrieved, the plaintiff filed a civil appeal, being Civil Appeal No. 191 of 1986, which was allowed with costs by the Ist Additional Civil Judge, Meerut by his judgment and decree dated 13.7.1987.

This Second Appeal filed by the defendants was admitted and the following substantial questions of law were framed by the Court on 17.11.2003:-

"1. Whether on facts and circumstances of the present case, the first appellate court ignoring the evidence on record was legally justified in holding that no false/wrong information was furnished by the respondent-plaintiff while presenting her candidature to the post of a teacher in Kendriya Vidyalaya?

2. Whether the alleged wrong information given in the application form by the plaintiff will not legally entail the termination of her services as teacher in Kendriya Vidyalaya?

3. Whether the first appellate court was legally justified in going into the question of requirement of two years teaching experience in a recognised school/institution as mandatory or not?

4. Whether in view of law settled by the Hon'ble Supreme Court in AIR 1976 Supreme Court 888 and many other pronouncements of the Court on the question and particularly under Section 14 read with Section 41 of the

Specific Relief Act, could the contract of employment be enforced and relief of continuity of service could be granted or in view of the relief and controversy raised by the plaintiff, it was a matter for a claim of damages only?              

I have heard Sri V.B. Singh, learned Senior counsel assisted by Sri D.P. Singh, Advocate, learned counsel for  the appellants and Sri Manoj Gupta, learned counsel for the respondent.

The case set out in the plaint was that the plaintiff applied for the post of Trained Graduate Teacher in English on 15.12.1982 pursuant to the advertisement issued in this regard. She was interviewed and ultimately appointed as a Trained Graduate Teacher (English) at the Kendriya Vidyalaya, Meerut (hereinafter referred to as the ''School') by means of the appointment letter dated 31.10.1983. The plaintiff joined on 3.11.1983 and started teaching. A charge-sheet dated 28/30-1-1985 was served upon the plaintiff containing the following charge:-

"On the basis of information furnished by her, in her application dated 15.12.82 for the post of TGT (Eng.) in response to an advertisement during the year 1982-83, Kumari Mukta Jain was interviewed and recommended by the Kendriya Vidyalaya Sangathan (Roorkee Region) for appointment to the post of TGT (Eng.). She was accordingly posted at Kendriya Vidyalaya, Punjab Line Meerut where she joined her duty as TGT (Eng.) w.e.f. 3.11.83.    

On verification of her application dated 15.12.82 it has been found that Kumari Mukta Jain possessed teaching experience of only 10 months from a recognised institution whereas, in her application dated 15.12.82 she had mentioned as having more than 2 years teaching experience from recoginsed institutions.

Thus Kumari Mukta Jain is found guilty of furnishing willfully false information in her application dated 15.12.82 for the post of TGT (English)."  

A statement of the imputations of misconduct and misbehavior was also contained in Annexure ''II' to the charge-sheet which is as follows:-

"Kumari Mukta Jain got appointment to the post of TGT (Eng.) in Kendriya Vidyalaya, Punjab Line, Meerut w.e.f. 3.11.83 by furnishing wrong/false informa`tion  in her application dated 15.12.82 in response to an advertisement during the year 1982-83.

On the basis of information, furnished by Km. Mukta Jain in her application dated 15.12.82 for the post of TGT (Eng), she was interviewed and recommended for appointment to the post of TGT (Eng.) by Kendriya Vidyalaya Sangathan (Roorkee Region) during 1982-83.

In her application dated 15.12.82 she has stated to have teaching experience in the following recognised institution:  

S.No.1.2.3.4. Name of the institution Sun-Beam School, MeerutB.A.K. Inter College, MeerutVardhman Academy, MeerutK.V. Punjab Line, Meerut FromFeb.'78Jan.'81July'81July'82 PeriodToDec.'79 as teacherApril 81 as LecturerDec.;81 as teacherApril'83

On verification it has been found that out of the four institution mentioned above, the first two institutions namely Sun-Beam School, Meerut and B.A.K. Inter College, Meerut are not recognised institutions.

Thus Kumari Mukta Jain possessed teaching experience of only 10 months from recognised institutions whereas, she has mentioned in the application dated 15.12.82 as having teaching experience of more than 2 years from recognised institutions.

As per recruitment rules prescribed for the post of TGT a candidate having less than 2 years teaching experience from recognised institutions is not eligible for appointment.

Thus Kumari Mukta Jain is found guilty of furnishing willfully false information  in her application dated 15.12.82 for the post of TGT(Eng.)".

The plaintiff submitted her explanation dated 10.2.1985 that she was under an impression that Sun-Beam School, Meerut was a recognised school. She admitted that the wrong information given by her was under a bona fide mistake. An enquiry was held into the charge leveled against the plaintiff. In the proceedings before the Enquiry Officer in reply to the various questions asked by the Presenting Officer she submitted as follows:-

"M.J. I read the Advertisement about the post of TGT in KVS Roorkee Region and that I knew that 2 years' teaching experience in recognised Institutions was required for the post.

M.J. I have already explained that I was under wrong impression about the recognition of the school, so the question does not arise to mention it as recognise just to show my two years teaching experience. At that time I was sure that it was a recognised school.

M.J. I agree with you that I committed the mistake ignorantly, I should have enquired about the recognition of such school, but what has been done cannot be undone."

A detailed enquiry report dated 16.4.1985 was then submitted holding that while applying for the post of Trained Graduate Teacher (English) the plaintiff had furnished wrong information about her experience in Sun-Beam School as recognised but the over all impression was that it "may not be willful".

The trial court framed four issues. The main issue was Issue No.1 which was whether the order dated 3-4/6-1985 was illegal and void and if so, its effect. The trial court relied upon the statement of P.W.1 (plaintiff) made by her in her cross-examination wherein she admitted that two years' teaching experience in a recognised School was necessary for appointment to the post of Post Graduate Teacher and that she had taught in Sun Beam School which was not recognised and if this period was not taken into consideration, she would not have the requisite two years' experience. The trial court, therefore, held that the defendants could terminate the services on account of furnishing incorrect information. Thus the suit was dismissed and the plaintiff was not held entitled to any reliefs. The appellate court, however, was of the opinion that no document had been filed by the defendants to show that two years' teaching experience from any recognised Institution was a mandatory and essential qualification for the purposes of selection to the post of Trained Graduate Teacher. The appellate court also drew a distinction between the application Form and the Attestation Form. The appellate court was of the opinion that it was only in the Attestation Form that it was provided that if any false information was furnished or that there had been suppression of any factual information which comes to notice at any time during the service of a person that the services could be terminated and since in the Attestation Form the plaintiff had not furnished any wrong information, her services could not have been terminated. The appellate court was further of the view that since there was no condition precedent requiring two years' teaching experience from a recognised Institution, the punishment by way of termination of services could not be awarded. It accordingly allowed the appeal and the order of termination of the services of the plaintiff was declared null and void and it was further ordered that she would be deemed to be in service from the date of her illegal termination.

Learned Senior counsel for the appellants submitted that from the evidence on record, it was amply clear that the plaintiff respondent did not have the requisite two years' teaching experience in a recognised School/Institution and, therefore, the management was justified in terminating her services on this ground. A further submission was made that in any event the relief for re-instatement could not have been granted by the court below. Learned counsel for the plaintiff respondent, however, submitted that the plaintiff respondent had appeared before the Selection Committee and once the appointment letter was issued to her, the management could not terminate her services on the ground that she did not possess the requisite two years' teaching experience from a recognised School. He further submitted that in any view of the matter since nothing was wrongly submitted/concealed in the Attestation Form, the management could not have terminated her services and that the word "recognised" merely means an Institution of repute and, therefore, it cannot be said that the plaintiff respondent did not possess two years' teaching experience from a recognised Institution. Relying upon the enquiry report, he also submitted that even the Enquiry Officer had given a categorical finding that the plaintiff respondent did not willfully make a wrong statement in the Form.

I have carefully considered the submissions made by the learned counsel for the parties and have examined the materials available on record.

A bare perusal of the Application Form submitted by the plaintiff respondent for seeking appointment to the post of Trained Graduate Teacher in the School (Ext. A-2) clearly indicates that the plaintiff had indicated that she had taught in the Sun Beam School, Meerut from February, 1978 up to December, 1979 and that the said Institution was recognised. That two years' teaching experience from a recognised Institution was necessary for seeking appointment to the post of Trained Graduate Teacher in the School is admitted to the plaintiff respondent since before the enquiry proceedings she clearly admitted this fact. The plaintiff respondent also clearly admitted before the Enquiry Officer that the Sun Beam School, Meerut was not a recognised School. The plaintiff respondent examined herself as P.W.1 and in the cross-examination she also clearly admitted that two years' teaching experience from a recognised Institution was necessary and that the Sun Beam School, Meerut was not a recognised Institution. The trial court, on the basis of the aforesaid admissions, dismissed the suit. The appellate court, however, even in spite of the aforesaid clear admission made by the plaintiff respondent, recorded a finding that there was no document or record to show that two years' teaching experience from any recognised Institution was necessary. The appellate court, after examining the Application Form also came to the conclusion that since the plaintiff respondent had merely indicated that the Sun Beam School, Meerut was a recognised Institute but had not indicated by whom it was recognised, it must be taken that the Selection Committee and the management had waived this condition since it selected and appointed her. The appellate court has, further held that since the incorrect information had been given by the plaintiff respondent in the Application Form and not the Attestation Form, the management could not have terminated her services on this ground because in view of Clause III of the Attestation Form, the services could be terminated if incorrect information was given in the Attestation Form only. The appellate court has further placed emphasis on the fact that even according to the enquiry report the plaintiff respondent had not willfully given wrong information and, therefore, the termination order was bad in law. Each of the aforesaid findings recorded by the appellate court cannot be sustained.

The plaintiff respondent had clearly admitted before the Enquiry Officer and also in her cross examination that two years' teaching experience from a recognised Institute was necessary and, therefore, the finding recorded by the appellate court that there was no evidence that could support this contention, is against the records. The appellate court was further not correct in coming to the conclusion that merely because that the plaintiff respondent had not indicated as to which authority has recognised the Sun Beam School, Meerut, it should be taken that the condition requiring the Institution to be recognised, should be considered as waived. There was no clause which permitted any relaxation in this regard and in the absence of any such clause, the management could not have waived this condition by giving her an appointment, On the contrary, the plaintiff respondent had made a categorical statement in the Application Form that the Sun Beam School, Meerut was a recognised Institute and it is on the basis of this statement made by the plaintiff respondent in the Application Form that the Selection Committee recommended her name and the management gave an appointment letter to her. It is only subsequently when it came to the knowledge of the management that Sun Beam School, Meerut was not a recognised School that it proceeded to initiate disciplinary enquiry against the plaintiff respondent.                                    

The next finding recorded by the appellate court that the management could not terminate her services even if the plaintiff respondent had given a wrong information in the Application Form is also liable to be set aside. Even if there was no clause in the Application Form authorising the management to terminate the service of a teacher who had been appointed on the basis of a wrong information given in the Application Form, then too it was always open to the management to initiate disciplinary proceedings and take appropriate action against the teacher who had submitted wrong information in the Application Form. The approach of the appellate court that since such a clause existed in the Attestation Form only and no wrong information had been given in the Attestation Form then in the absence of any such clause authorising the management to initiate disciplinary proceedings against a teacher, no such action could be taken by the management is clearly against the well settled principles. It was immaterial whether such wrong information was given willfully or in ignorance because the fact remains that it was on the basis of such an information given by the plaintiff respondent in the Application Form that she had been selected for appointment.

The view, that I have taken, finds support from the following decisions.

In the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another Vs. M. Tripura Sundari Devi reported in (1990) 3 SCC 655, the Supreme Court observed as follows:-

"It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not posses the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact."

The Supreme Court further observed that it is a common knowledge that some times either by mistake or otherwise the notes put up before the Selection Committee contain erroneous data prepared by the office, and some times the Selection Committee proceeds on the basis that all those who appeared before it, are otherwise qualified. In the present the plaintiff respondent had, in fact, given wrong information in the Application Form that Sun Beam School, Meerut was a recognised School and it is on the basis of this wrong information that the Selection Committee recommended her name and ultimately she was given appointment. Therefore, when the correct facts were brought to the notice of the management, the initiation of disciplinary proceedings ultimately leading to termination of services, cannot be vitiated.

In the case of Union of India and others Vs. M. Bhaskaran reported in 1995 Supp. (4) SCC 100, the decision of the Central Administrative Tribunal was challenged before the Supreme Court. The question that arose for consideration before the Tribunal was whether the workman, who had obtained employment in Railways service on the basis of the bogus and forged Casual Labourers Service Cards could be continued in Railways service once such a fraud was detected by the Railways authorities. The Tribunal took the view that the aforesaid misconduct did not fall within the four corners of Rule 3(1) (i) and (iii) of Railway Services (Conduct) Rules, 1966 and, therefore, the orders of removal from service could not be sustained. It is in this context that the Supreme Court observed as follows:-

"It is not necessary for us to express any opinion on the applicability of Rule 3(1) (i) and (iii) on the facts of the present cases for the simple reason that in our view the railway employees concerned, respondents herein, have admittedly snatched employment in railway service, maybe of a casual nature, by relying upon forged or bogus casual labourer service cards. The unauthenticity of the service cards on the basis of which they got employment is clearly established on record of the departmental enquiry held against the employees concerned. Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant-employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. Learned counsel for the respondents submitted that for getting service in railway as casual labourers, it was strictly not necessary for the respondents to rely upon such casual service cards. If that was so there was no occasion for them to produce such bogus certificates/service cards for getting employed in railway service. Therefore, it is too late in the day for the respondents to submit that production of such bogus or forged service cards had not played its role in getting employed in railway service. It was clearly a case of fraud on the appellant-employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1) (i) and (iii) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the opinion of the employer and could be recalled by the employer and in such cases merely because the respondent-employees have continued in serviced for a number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer."  

In the case of S.K. Singh Vs. State of U.P. and others reported in 1997 (3) ESC 1716 placing reliance upon an earlier decision of Atul Kumar Verma Vs. Chief Medical Officer, Farrukhabad and another reported in 1996 (3) ESC 59 held that the employment obtained by misrepresentation/fraud cannot be permitted to continue and, therefore, the termination of services was held to be valid. In the case of Dr. (Miss) Manju Lata Vishwakarma Vs. U.P. Higher Education Services Commission,  Allahabad reported in 1997 (1) ESC 519 the Court was considering the cancellation of the appointment of the petitioner not merely on the ground that she did not possess the requisite teaching experience at the relevant time but also on the ground that she had obtained her selection and appointment by misrepresentation and fraud. The Court clearly observed that an appointment obtained by misrepresentation or fraud is vitiated and is liable to be cancelled.            

The Supreme Court in the case of Union of India and others Vs. A. Nagamalleshwar Rao reported in (1998) 1 UPLBEC 253 was examining the appointment of a Telephone Operator made on the basis of the per centage of marks indicated by him at the time of seeking employment but which later on was found to be only 48.6% marks though he had initially conveyed that he had obtained 79.80% marks. It is in this context that the Supreme Court observed as follows:-

"Thus in view of the admitted facts that the respondent had secured only 48.6% marks and the last candidate who could be appointed had secured 70.6% marks and the other evidence produced before the Inquiry Officer, it becomes quite clear that the respondent did not deserve to be appointed and could not have been appointed but for the mistake committed by the concerned officer or the fraud committed by the respondent. Therefore,  the order of termination cannot be said to be improper or bad and the Tribunal was in error in holding otherwise."

In view of the discussion made above and in view of the proposition of law laid down in the aforesaid cases, the findings recorded by the appellate court  that the services of the plaintiff respondent could not be terminated even though she had furnished wrong information in the Application Form cannot be sustained.

It is, therefore, not necessary for me to examine the other substantial question of law,  namely, whether a decree for reinstatement could have been passed by the courts below,  more particularly when this plea was neither raised before the trial court nor the appellate court and has been raised for the first time in this Appeal.

For the reasons stated above, the Second Appeal succeeds and is allowed. The judgment and decree dated 13.7.1987 given in Civil Appeal No. 191 of 1986 is set aside and that of the trial court dated 8.5.1986 is restored. The interim order, if any, stands discharged.

The parties shall bear their own costs.

Dt/-

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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