ANIL KUMARversusSTATE OF U.P. AND 3 OTHERS

                                                    A.F.R.
                                                  RESERVED

      HIGH COURT OF JUDICATURE AT ALLAHABAD
                 WRIT - A No. - 20118 of 2019

Anil Kumar
                                      …..Petitioner(s)

                             Versus

State of U.P. and 3 others
                                      …..Respondent(s)


Counsel for Petitioner(s)     :   Amit Kumar Singh, Paras Nath
                                  Singh, Parmatma Nand Ojha
Counsel for Respondent(s)     :   C.S.C., Manu Singh


Court No. - 52

           HON'BLE MRS. MANJU RANI CHAUHAN, J.

1.    Heard Mr. S.K. Shukla, Advocate, holding brief of Mr. Amit
Kumar Singh, learned counsel for the petitioner, Mr. Arun Kumar
Tripathi, learned counsel for the respondent-BSA and Mr.
Shailendra Singh, learned Standing Counsel for the State-
respondents.

2.    The present petition has been instituted assailing the order
dated 20.04.2019, passed by respondent No.4, the District Basic
Education Officer, Sant Kabir Nagar.

3.    Learned counsel for the petitioner submits that, pursuant to
the advertisement issued in the year 2015 for appointment to the
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post of Assistant Teacher in the subjects of Science and
Mathematics, the petitioner, being duly qualified, applied for
appointment. He was called for counselling, whereupon his
original educational testimonials were duly verified and deposited
in the office of the District Basic Education Officer, Sant Kabir
Nagar.

4.    Thereafter, an appointment letter dated 21.09.2015 was
issued by the District Basic Education Officer, Sant Kabir Nagar,
appointing the petitioner as an Assistant Teacher (Mathematics) in
a Basic School. In pursuance thereof, the petitioner joined his
duties on 24.09.2015. His services were subsequently confirmed
upon completion of the prescribed period of one year.

5.    It is submitted that, after a lapse of nearly three years, the
Block Education Officer, Mehndawal, Sant Kabir Nagar, by letter
dated 18.04.2018, informed the petitioner that a complaint had
been submitted by one Umesh Kumar Bhatt on 31.03.2018
alleging that the petitioner had secured his appointment on the
basis of forged educational certificates. The petitioner was
consequently directed to produce his original certificates for
verification.

6.    In compliance with the aforesaid communication, the
petitioner submitted his self-attested educational testimonials by
letter dated 23.04.2018, specifically stating that his original
academic documents had already been deposited at the time of
counselling and continued to remain in the custody of the office of
the District Basic Education Officer, Sant Kabir Nagar. Photostat
copies of his educational certificates, commencing from the High
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School examination up to the TET qualification, were also
furnished for the purposes of verification and inquiry.

7.    However, on 07.05.2018, the District Basic Education
Officer, Sant Kabir Nagar, purportedly acting on the basis of the
aforesaid complaint, directed stoppage of the petitioner's salary,
without conducting any inquiry or recording any finding regarding
the genuineness or otherwise of his educational certificates.

8.    Aggrieved thereby, the petitioner submitted an application
dated 07.07.2018, duly supported by an affidavit, before the
District Basic Education Officer, categorically asserting that all his
educational testimonials were genuine and that the complaint
lodged against him was false and baseless. It was further stated
that the process of verification of his certificates was still pending
and, therefore, there was no justification for withholding his salary.
The petitioner accordingly prayed for release of his salary.

9.    As no effective action was taken on the aforesaid
representation, the petitioner was constrained to institute Writ
Petition No.23822 of 2018, Anil Kumar v. State of U.P. and others,
before this Court, challenging the order dated 07.05.2018 whereby
payment of his salary had been stopped.

10.   This Court, by order dated 14.11.2018, after taking note of
the fact that the inquiry into the genuineness of the petitioner's
certificates was still pending, found no justification for stoppage of
his salary merely on that account. Accordingly, until further orders,
the effect and operation of the order dated 07.05.2018 were stayed.

11.   Thereafter, the petitioner was constrained to institute
contempt proceedings alleging non-compliance with the order
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passed by this Court. Learned counsel for the petitioner submits
that, during the pendency of the matter, the Block Education
Officer, Mehndawal, Sant Kabir Nagar, conducted an inquiry into
the complaint and submitted a report dated 31.12.2018, wherein it
was recorded that the academic certificates produced by the
petitioner, Anil Kumar, had been examined and his High School
certificate of the year 1992, Intermediate certificate of the year
1994 and B.Sc. certificate were found to be genuine. However,
with regard to the B.Ed. marksheet for the academic session 2011-
12,   stated   to   have   been   issued   by    Jodhpur     Rashtriya
Vishwavidyalaya, Jodhpur, Rajasthan, the report of the Vice-
Chancellor was still awaited.

12.   It is submitted that, notwithstanding the fact that the
verification process had not attained finality and the report with
respect to the B.Ed. qualification was still awaited, respondent No.
4 proceeded to pass the impugned order dated 20.04.2019,
whereby the services of the petitioner were terminated.

13.   Aggrieved by the aforesaid action, the petitioner submitted a
representation dated 22.04.2019 before the Upper-Mukhya Sachiv,
Basic Education, Government of Uttar Pradesh, Lucknow. In the
said representation, the petitioner explained that he had initially
been appointed as a teacher in a primary school in the year 2004
and had worked for approximately five years without payment of
salary. Subsequently, his B.Ed. certificate of the year 2000 was
found to be forged, pursuant to which his services were terminated
in the year 2010 and an FIR was lodged against him, with further
proceedings being stated to be pending before the competent
criminal court.
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14.   The petitioner further stated that, thereafter, he obtained his
B.Ed. and TET qualifications in the year 2011-12 and, on the
strength of the said qualifications, applied afresh pursuant to the
recruitment process initiated in the year 2015. Having been duly
selected, he was appointed as an Assistant Teacher (Mathematics)
and joined at Primary School, Tulsipur, Block Mehndawal, Sant
Kabir Nagar, on 24.09.2015. According to the petitioner, despite
the fact that his certificates and testimonials furnished during the
recruitment process of 2015 had been duly verified and found
genuine, payment of his salary was stopped for a period of ten
months merely on the basis of a complaint, without conclusion of
any lawful and comprehensive inquiry.

15.   The petitioner asserted that, notwithstanding the absence of
any final determination regarding the genuineness of his B.Ed.
qualification for the session 2011-12, respondent No. 4 proceeded
to terminate his services without affording him an effective
opportunity of hearing and without conducting a full-fledged
departmental inquiry. It is further submitted that the petitioner
came to know of the termination of his services through reports
published in the newspapers Hindustan and Dainik Jagran, rather
than through formal service of the impugned order.

16.   The petitioner, therefore, requested the competent authority
to reconsider the order of termination, contending that the adverse
action had its genesis in an alleged mistake committed in the year
2004, when he was approximately 20-21 years of age, and that the
subsequent appointment obtained by him in the year 2015 was
pursuant to a fresh selection process in which his educational
qualifications and testimonials had been duly scrutinised.
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17.   Learned counsel for the petitioner further submitted that,
being a confirmed teacher in the Basic Education Department, his
services could not be dismissed or terminated without a
departmental and full-fledged inquiry. According to him, the
termination order passed by the Basic Education Officer was
merely a camouflaged punishment actuated by malice and bias. He
asserted that he had obtained his B.Ed. degree from Jodhpur
National University, Rajasthan, in the year 2011-12, thereafter
passed the TET examination, and was a science graduate,
rendering him equally competent to teach Mathematics as an
Assistant Teacher in a primary school. It was, therefore, contended
that any error or mistake allegedly committed approximately ten
years earlier could not be permitted to prejudice his subsequent
merit and service, and that any such mistake in his past career was
liable to be condoned by the competent authority.

18.   Learned counsel for the petitioner submits that the petitioner
is a confirmed teacher under the Basic Education Department and,
therefore, his services could not have been brought to an end by
way of a punitive order without following the procedure
prescribed by law and without conducting a regular and full-
fledged departmental inquiry. It is contended that the impugned
order has been passed in utter disregard of the principles of natural
justice and the settled position of law governing disciplinary action
against a confirmed employee.

19.   It is further submitted that all the educational certificates and
testimonials furnished by the petitioner pursuant to the recruitment
process of the year 2015, under which he was selected for
appointment to the post of Assistant Teacher (Mathematics) in a
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primary school, were duly scrutinised and verified. His
appointment itself was founded upon the said qualifications and
documents, which were accepted by the competent authority at the
time of selection and appointment. Having entered service through
a duly conducted selection process and having thereafter continued
in service as a confirmed teacher, the petitioner could not,
according to learned counsel, be deprived of his service on the
basis of an allegation subsequently raised against him, particularly
when the alleged misconduct or deficiency was not established
through a legally permissible enquiry.

20.   Learned counsel thus submits that the impugned order of
termination, having been passed without issuance of a proper
charge-sheet, without affording an effective opportunity of
defence, without recording evidence or conducting a regular
departmental inquiry, and without arriving at a reasoned finding on
the alleged misconduct, is legally unsustainable. It is, therefore,
urged that the impugned order be quashed and the petitioner be
accorded all consequential benefits in accordance with law.

21.   Learned counsel for the petitioner further submits that the
impugned order has been passed principally on the ground that the
petitioner was ineligible for appointment under Rule 11 of the
Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. It
is contended that the respondents have proceeded on the premise
that the petitioner had suppressed the fact that his earlier
appointment as Assistant Teacher had been cancelled on the
ground that the B.Ed. marksheet relied upon at that stage was
allegedly forged and that an FIR had also been lodged in
connection therewith.
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22.     Learned counsel submits that the mere non-disclosure of the
aforesaid facts, even assuming the same to have been established,
could not by itself furnish a lawful basis for terminating the
petitioner's subsequent appointment without first determining
whether the conditions prescribed under Rule 11 were attracted to
the petitioner's case and, more importantly, without affording him
an opportunity to explain the alleged suppression. It is further
submitted that the petitioner's subsequent appointment in the year
2015 was pursuant to an independent selection process, in which
his educational qualifications and testimonials were scrutinised
and accepted by the competent authorities.

23.     For facility of reference, Rule 11 of the Uttar Pradesh Basic
Education (Teachers) Service Rules, 1981, reads as under:

      “11. Character. The character of a candidate for direct
      recruitment must be such as to render him suitable in all
      respects for employment in the service. The appointing
      authority shall satisfy itself on this point.”

24.     From the aforesaid provision, it is manifest that Rule 11 of
the Rules of 1981 renders a person ineligible for appointment
where he has been dismissed from service by the State
Government or where he has been convicted of an offence
involving moral turpitude. In the present case, however, the
petitioner’s appointment has merely been cancelled with
retrospective effect from the date of his initial appointment; no
order of dismissal from service has ever been passed against him.
The cancellation of an appointment, even if made retrospectively,
cannot, in the absence of an order of dismissal, be equated with
dismissal from service for the purposes of Rule 11. Consequently,
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the disqualification contemplated under Rule 11 is not attracted to
the petitioner’s case.

25.   Learned counsel for the petitioner submits that the action
taken against the petitioner is also contrary to the procedure
prescribed for disciplinary inquiry under the Uttar Pradesh Basic
Educational Staff Rules, 1973. In this regard, reliance has been
placed upon Rule 3 thereof, which prescribes the procedure to be
followed in disciplinary matters and reads as under:-
      “Rule- 3. Punishment.
      The appointing authority may, for good and sufficient reasons,
      impose the following penalties upon the officers, teachers and
      other employees of the Board:(i) Censure; (ii) withholding of
      the increments including stoppage at an efficiency bar; (iii)
      Reduction to a lower post of time scale, or to a lower stage in a
      time scale; (iv) Recovery from pay of the whole or part of any
      pecuniary loss caused to the Board by negligence or breach of
      orders; (v) Removal from the service of the Board which does
      not disqualify him from future employment; (vi) Dismissal
      from the service of the Board which ordinarily disqualifies
      from future employment.”

26.   Learned counsel for the petitioner submits that, on a plain
reading of Rule 11 of the Rules of 1981, a person is rendered
ineligible for future appointment only where he has been removed
or dismissed from service. In the present case, the petitioner has
neither been removed nor dismissed from service. His earlier
appointment was cancelled with retrospective effect from the date
of his initial appointment on the ground that the appointment had
been secured on the basis of a B.Ed. mark-sheet which was
subsequently found to be forged. Thus, according to the learned
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counsel, the statutory disqualification contemplated under Rule 11
is not attracted.

27.   It is further submitted that the petitioner himself was a
victim of fraud perpetrated by the college affiliated to Veer
Bahadur Singh Purvanchal University. He had been admitted to the
B.Ed. course beyond the sanctioned strength, pursuant to which a
forged mark-sheet was issued in his favour. On the strength of the
said mark-sheet, he subsequently applied for Special B.Ed.
training in the year 2004. The petitioner, having subsequently
become aware of the discrepancy, himself approached the
competent authority seeking verification of his academic record. It
is, therefore, urged that he had no knowledge of the alleged
forgery at the relevant time and cannot be attributed with
fraudulent intent. It is further submitted that the petitioner
thereafter secured the subsequent appointment on the basis of a
genuine educational qualification.

28.   Learned counsel further submits that the petitioner has been
accused of suppressing material facts by not disclosing the earlier
cancellation of his appointment with retrospective effect, as well
as the lodging of an FIR against him. It is contended that neither
the advertisement nor the prescribed application form contained
any specific requirement or column requiring an applicant to
disclose the cancellation of any previous appointment or the
pendency of any criminal case. The petitioner, therefore, cannot be
faulted for non-disclosure of information which he was never
specifically called upon to furnish.
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29.   Lastly, it is submitted that the petitioner had already suffered
the consequence of cancellation of his earlier appointment, which,
according to him, was itself attributable to the fraud committed by
the concerned college in admitting him beyond the sanctioned
intake and thereafter issuing a forged mark-sheet. The subsequent
cancellation of his appointment, it is urged, constitutes sufficient
punishment for the circumstances in which the earlier appointment
came to be made, and the petitioner ought not to be subjected to a
further disqualification from future employment in the absence of
any order of removal or dismissal from service.

30.   Learned counsel appearing for the respondent, the District
Basic Education Officer, on the other hand, submits that the
petitioner was appointed as an Assistant Teacher in the year 2015
pursuant to his selection against the recruitment of 29,334 posts of
Assistant Teachers (Science and Mathematics) in Junior High
Schools. It is, however, contended that the petitioner had secured
the said appointment on the basis of forged and fabricated
educational certificates and, consequently, payment of her salary
was stopped by order dated 7.05.2018.

31.   It is further submitted that the petitioner had earlier been
appointed pursuant to the Special BTC Selection, 2004, but the
said appointment was subsequently cancelled on the ground of
forgery in his educational testimonials. The fact of such
cancellation is stated to be borne out from the letter dated
19.04.2018 issued by the Block Education Officer, Mehndawal,
Sant Kabir Nagar. Accordingly, it is submitted that the petitioner
had obtained his subsequent appointment by suppressing material
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facts relating to his earlier appointment and the cancellation
thereof.

32.   Learned counsel appearing for the respondents further
submits that a complaint was received alleging that the petitioner
had secured appointment on the strength of forged and fabricated
educational certificates. Pursuant thereto, a detailed inquiry was
conducted, in which it was found that the petitioner had earlier
been appointed as an Assistant Teacher in a Junior Basic School,
but his said appointment was subsequently cancelled on the
ground that it had been obtained by producing a forged and
fabricated B.Ed. examination certificate.

33.   It is submitted that, notwithstanding the cancellation of his
earlier appointment, the petitioner subsequently participated in the
recruitment for 29,334 posts of Assistant Teachers and, in the
declaration furnished by him, failed to disclose the material fact
that his earlier appointment had been cancelled on account of the
use of a forged educational certificate. The inquiry further revealed
that the petitioner had thereby secured his subsequent appointment
by suppressing a material fact, rendering such appointment
contrary to Rule 11 of the U.P. Basic Education Teachers Service
Rules, 1981. Accordingly, it is contended that the impugned order
suffers from no illegality or infirmity warranting interference by
this Court.

34.   Learned counsel further submits that the competent
authority, after conducting a detailed inquiry, recorded a
categorical finding that the petitioner had deliberately failed to
disclose the cancellation of his earlier appointment. Such non-
disclosure, according to the respondents, constituted misconduct
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and demonstrated that the petitioner was not entitled to continue in
service. On the basis of the findings recorded in the inquiry, his
services were accordingly terminated.

35.   In view of the foregoing discussion and the findings
recorded hereinabove, this Court finds no illegality, infirmity or
jurisdictional error in the impugned order warranting interference
in exercise of its writ jurisdiction. The writ petition is, accordingly,
devoid of merit and is liable to be dismissed.

36.   Having considered the rival submissions in the light of the
statutory scheme, this Court finds considerable force in the
submission that Rule 11 of the Rules of 1981 has been invoked on
an    erroneous   premise.    The      disqualification   contemplated
thereunder is attracted in the case of a person who has been
dismissed from service by the State Government; the petitioner,
however, was not dismissed or removed from service pursuant to
any disciplinary order. His earlier appointment was cancelled with
retrospective effect from the date of his initial appointment. Such
cancellation, though it may have the effect of obliterating the
appointment from its inception, cannot, without anything more, be
equated with dismissal from service so as to attract a statutory
disqualification expressly founded upon dismissal.

37.   Equally significant is the allegation of suppression. The
respondents have proceeded on the premise that the petitioner was
under an obligation to disclose the cancellation of his earlier
appointment and the criminal proceedings. However, before a
person can be held guilty of suppression of a material fact, it must
first be established that disclosure of such fact was specifically
required under the advertisement, application form, declaration,
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                                             WRIA No. - 20118 of 2019

verification form or the governing rules. The Constitution Bench
in Avtar Singh v. Union of India, (2016) 8 SCC 471, has made it
clear that the verification form must contain a specific requirement
and that a candidate cannot ordinarily be fastened with the charge
of suppression in respect of information which he was never called
upon to disclose.

38.   The matter assumes still greater significance where the
respondents seek to attribute fraud to the petitioner on account of
the alleged forged B.Ed. certificate. The mere fact that the
certificate was subsequently found to be forged cannot, by itself,
conclude the question whether the petitioner had knowledge of the
forgery or had consciously participated in procuring or using a
forged document. The petitioner's specific defence that the college
had admitted him beyond the sanctioned strength, that the
educational record was subsequently found to be fabricated, and
that he himself sought verification of his academic record, was
required to be objectively examined before drawing an adverse
conclusion against him.

39.   Furthermore, if the subsequent appointment is sought to be
terminated on the ground that the petitioner committed misconduct
by deliberately suppressing material information, the authority
cannot circumvent the disciplinary procedure prescribed by the
applicable service rules merely by describing the action as
cancellation of appointment. The substance of the action, and not
its nomenclature, must determine the procedure to be followed.

40.   Accordingly, the impugned order, insofar as it proceeds on
the assumption that cancellation of the petitioner's earlier
appointment amounted to dismissal from service and thereby
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attracted Rule 11 of the Rules of 1981, cannot be sustained. The
allegation of suppression and the petitioner's alleged knowledge of
the forged certificate are matters which require an independent
determination in accordance with law. The respondents have
completely failed to appreciate the decisive circumstance that the
earlier false certificate was neither relied upon nor utilised by the
petitioner    in    securing      the    appointment   presently    under
consideration. The present appointment rests upon genuine
educational        certificates    and       independently    established
qualifications, and there is no finding that the earlier false
certificate had, in any manner whatsoever, facilitated, influenced
or contributed to the petitioner's subsequent appointment. The
mere non-disclosure of the cancellation of the earlier appointment,
without establishing that such disclosure was a material condition
of the subsequent appointment or that the alleged suppression had
any nexus with the petitioner's eligibility or selection, cannot
furnish a sustainable ground for cancellation of an otherwise valid
appointment. The petitioner cannot be visited with the extreme
consequence of termination for an act which neither procured the
appointment nor affected his eligibility for the post. In the absence
of a demonstrable and proximate nexus between the alleged
suppression and the acquisition of the present appointment,
cancellation of the appointment on that ground would amount to
imposing a punishment wholly disproportionate to, and legally
unconnected with, the alleged omission. An appointment secured
on the strength of genuine qualifications cannot be annulled
merely because the appointee had failed to disclose an antecedent
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                                        event which had no bearing upon his eligibility or selection for the
                                        post.

                                        41. In view of the aforesaid submissions, this Court is of the
                                        considered opinion that the impugned order cannot be sustained in
                                        law and is, accordingly, liable to be set aside. Accordingly, the
                                        impugned order dated 20.04.2019 is quashed, and the writ petition
                                        stands allowed.




                                                                              (Mrs. Manju Rani Chauhan,J.)

                                        September 14, 2026
                                        Rahul Goswami




Digitally signed by :-
RAHUL GOSWAMI
High Court of Judicature at Allahabad