Appointment by Impersonation

Petitioner was selected and appointed as Ambulance Cleaner by the third respondent on 9.12.1986 after his name was sponsored through the Employment Exchange and he joined duty on 14.12.1986. The Employment Officer thereafter informed the District Medical Officer that the petitioner appears to have impersonated and obtained appointment by producing false certificates and suggested to take legal action against the petitioner. A criminal case was lodged against him for the alleged offence under section 41 9 read with section 34 of I.P.C., and the said case was tried in C.C.No.191 of 1990 on the file of Judicial Magistrate Court, Aruppukottai. The petitioner was convicted for the offence under Section 419 IPC and was sentenced to undergo rigorous mprisonment for two years and to pay a fine of Rs.1,000/-. Petitioner then approached High Court by filing Crl.R.C.No.361 of 1994 and this Court allowed the same by judgment dated 24.10.1997 setting aside the conviction and sentence on the ground that no official document was produced during trial of the criminal case.

The learned counsel for the petitioner argued that the impugned order of termination is unsustainable and in violation of the principles of natural justice and the criminal court having acquitted the petitioner it is binding on the department to reinstate him with all back wages. The correction in father's name as found by this Court, leads to the conclusion that the person sponsored for selection was one R. Arumugam, S/o.Ramasamy and not R.Arumugam, S/o.Ramaiah (petitioner herein). Hence, the petitioner has no locus standi to attend the interview and his selection based on the said interview is void ab initio. The acquittal of petitioner by this Court in the criminal revision case is only with regard to the punishment for impersonation.
The learned counsel for the petitioner submitted that it is not known who had corrected the father's name in the interview card and the petitioner cannot be blamed for such correction. According to the judge “I am unable to accept the said submission as that may be a defence in the criminal case and not for his continuance in the service, which was obtained by playing fraud. Therefore, I hold that a fraud has been played, may be by the petitioner or somebody else, but the fact remains that the petitioner is the beneficiary out of the said fraud.”

Read the full judgement here



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 23/02/2006

Coram

The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR

Writ petition No.26918 of 2005

R. Arumugam ... Petitioner

-Vs-

1. The Director of Medical Services,
Teynampettai,
Chennai 6.

2. The Joint Director of Medical Services,
Virudhunagar.

3. The District Medical Officer,
Virudhunagar.

4. The Medical Officer,
Government Hospital,
Rajapalayam. ... Respondents

This Writ petition came to be numbered by way of transfer of
O.A.No.1267 of 2000 from the file of Tamil Nadu Administrative Tribunal with a
prayer to call for the records relating to the order passed by the second
respondent in his proceedings No.Na.Ka.13101/MP3/96, dated 3.12.1998 and quash
the same and consequently direct the respondents to reinstate the petitioner
in service as Ambulance Cleaner with effect from 14.12.1986 with all
consequential service and attendant benefits.

!For Petitioner : Mr.A.Sivaji

^For Respondents : Mrs.D.Malarvizhi,
Government Advocate

:O R D E R

Petitioner seeks to quash the order of the second respondent dated 3
.12.1998 terminating his services and to direct the respondents to reinstate
the him into service as Ambulance Cleaner with effect from 14 .12.1986 with
all consequential benefits.
2. The facts that are necessary for disposal of the writ petition
are as follows.
(a) Petitioner was selected and appointed as Ambulance Cleaner by
the third respondent on 9.12.1986 after his name was sponsored through the
Employment Exchange and he joined duty on 14.12.1986. A criminal case was
lodged against him for the alleged offence under section 41 9 read with
section 34 of I.P.C., and the said case was tried in C.C.No.191 of 1990 on the
file of Judicial Magistrate Court, Aruppukottai. In the said case, along with
the petitioner, the District Medical Officer and another were also arrayed as
accused. The petitioner was convicted for the offence under Section 419 IPC
and was sentenced to undergo rigorous imprisonment for two years and to pay a
fine of Rs.1,000/-. Against the said order the petitioner preferred an appeal
in C.A.No.55 of 1994 on the file of Sessions court, Srivilliputhur, and the
same was dismissed. Petitioner then approached this Court by filing
Crl.R.C.No.361 of 1994 and this Court allowed the same by judgment dated
24.10.1997 setting aside the conviction and sentence on the ground that no
official document was produced during trial of the criminal case.


(b) Subsequent to the order of this Court in the criminal revision
case, petitioner submitted a representation to the second respondent seeking
posting, but the second respondent did not pass any orders. Hence petitioner
filed O.A.No.6320 of 1998 before the Tamil Nadu Administrative Tribunal and by
order dated 5.8.1998, the second respondent was directed to pass orders within
eight weeks from the date of the order. Thereafter, second respondent passed
an order on 3.12.1998 terminating the services of the petitioner, as against
which petitioner filed an appeal before the Director or Medical Services/the
first respondent herein on 7.2.1999. As no order was passed in the appeal,
petitioner filed O.A.No.1267 of 1999 challenging the order of termination.

(c) According to the petitioner, he is a Srilankan repatriate and
he having been appointed, even though temporarily, his services cannot be
terminated by the reason of the charge, as it attaches stigma. According to
the petitioner, originally he was placed under suspension, which was
challenged before this Court in W.P.No.7552 of 1988 and the order of
suspension was set aside and consequently the petitioner was reinstated into
the service. Petitioner further stated that the second respondent has not
given due respect to the order of this Court in Crl.R.C.No.361 of 1994.
According to the petitioner, the vacancy in which the petitioner was appointed
is still available and as the petitioner's employment registration was
cancelled due to his appointment as Ambulance Cleaner and in view of his over
age he could not seek fresh appointment and therefore he is entitled to get
reinstatement into service with all attendant benefits.
3. The Director of Medical and Rural Health Services, Chennai-6
filed a counter affidavit on behalf of the respondents and the relevant
contentions therein are as follows.
(i) The petitioner was selected and appointed by the District
Medical Officer, Virudhunagar on 9.12.1986 at the Government Hospital,
Rajapalayam, as Ambulance Cleaner and he joined duty on 14.12.1986. The
Employment Officer thereafter informed the District Medical Officer that the
petitioner appears to have impersonated and obtained appointment by producing
false certificates and suggested to take legal action against the petitioner.
(ii) Pursuant to the said communication, petitioner was placed
under suspension from 30.6.1988 and a charge memo was issued on 4.7.1988.
Petitioner filed W.P.No.7552 of 1988 and challenged the order of suspension
and this Court by order dated 8.12.1988 quashed the order of suspension and
granted liberty to the department to initiate disciplinary action against the
petitioner in accordance with law. Subsequently petitioner was reinstated
into service by order dated 27.1.1989.
(iii) According to the respondents, a fresh disciplinary proceeding
was initiated against the petitioner and a charge memo was issued under Rule
17(b) of the Tamil Nadu Civil Services (CC&A) Rules on 28.2.1989 and he was
again suspended from service. The petitioner, instead of submitting his
defence statement, filed O.A.No.325 and 326 of 1989 and challenged the order
of suspension and charge memo. The Tribunal though initially granted stay of
the operation of suspension and charge memo on 21.4.1989, subsequently by
order dated 5.3.1991 dismissed the original applications.
(iv) It is further stated in the counter affidavit that the
petitioner committed impersonation and the case was referred to the Police to
take criminal action and a case in C.C.No.191 of 1990 was filed. The learned
Judicial Magistrate, Aruppukottai, by his judgment dated 21 .3.1994 convicted
the petitioner for the offence under section 419 of IPC and sentenced him to
undergo rigorous imprisonment for a period of two years and to pay a fine of
Rs.1,000/-. Against the said conviction and sentence, petitioner preferred an
appeal in C.A.No.55 of 19 94 before the Sessions Court, Srivilliputhur, and
the same was dismissed. Then petitioner filed Crl.R.C.No.361 of 1994 before
this Court and this Court on 24.10.1997 allowed the revision case.
(v) Further case of the respondents is that the Joint Director of
Health Services issued a charge memo under Rule 17(b) of the Tamil Nadu Civil
Services (Discipline and Appeal) Rules on 20.12.1995 and also passed final
order on 23.2.1996 dismissing the petitioner from service for the proved
charges. It is also stated in the counter affidavit that the petitioner filed
O.A.No.6320 of 1998 before the Tamil Nadu Administrative Tribunal seeking
posting and the Tribunal by order dated 5.8.1998 directed the second
respondent herein to consider the representation of the petitioner dated
27.4.1998 and pass orders within eight weeks. The Second respondent, in
M.A.No.9495 of 1998, after obtaining extension of three months time to pass
final orders, passed final orders on 3.12.1998 terminating the petitioner from
service from the date of his appointment i.e, from 14.12.1986 for the proved
charges. Petitioner made a representation before the Director of Medical and
Rural Health services and without waiting for orders to be passed in the
appeal/ representation, petitioner preferred the original application.
(vi) The case of the respondents as stated in the counter affidavit
is that the District Employment Officer, Virudhunagar, was requested to
sponsor priority candidates for interview and selection for appointment to the
post of Ambulance Cleaner, pursuant to which, the name of one R.Arumugam,
S/o.Ramasamy, Anna Nagar, Mallankinar, Aruppukottai Taluk, bearing
registration No.8583/85 with date of birth 11.11.1959 was also sponsored.
During interview on 2.12.1986, R.Arumugam, S/o.Ramasamy was selected and
appointed by the District Medical Officer under Rule 7(a)(i) of the Tamil Nadu
Basic Servant Rules and it is clearly mentioned in the appointment order that
the appointment was purely on temporary basis and liable for termination at
any time without prior notice and without assigning any reason therefor. The
candidate viz., R.Arumugam joined duty as Ambulance Cleaner on 14.12.1986
forenoon and his services were not regularised. According to the respondents,
even though petitioner's name is R.Arumugam, his father's name is Ramaiah and
not Ramasamy. Petitioner was directed to produce his original certificates to
find out their genuineness, but he did not produce the original certificates
and declaration regarding his father's name and residential address and also
not produced the Employment Registration card as well as the original letter
calling him for interview on 2.12.1986. Since the original documents were not
produced, the department came to a preliminary conclusion that the petitioner
impersonated and secured appointment by cheating the Government.
(vii) Therefore proceeding was initiated by framing a specific
charge under Rule 17(b) on 28.2.1989. For the said charge, the petitioner
instead of submitting defence statement, filed O.A.No.325 and 326 of 1989,
which were dismissed on 5.3.1991. It is the further case in the counter that
based on the conviction and sentence as confirmed by the Sessions Court,
Srivilliputhur, the Joint Director of Health Services, Virudhunagar passed
final orders dismissing the petitioner from service on 23.2.1996. It is also
stated that the petitioner impersonated and cheated the Government to secure
appointment suppressing the facts pertaining to his identity, which is
different from the real person. It is further contended that the acquittal of
the petitioner in the criminal case has no bearing since as per the records it
is found that the petitioner's father name is Ramaiah and not Ramasamy and the
interview letter is issued only to the Arumugam, S/o. Ramasamy and not to
Arumugam, S/o.Ramaiah.
4. The learned counsel for the petitioner argued that the
impugned order of termination is unsustainable and in violation of the
principles of natural justice and the criminal court having acquitted the
petitioner it is binding on the department to reinstate him with all back
wages.
5. The learned Government Advocate argued that the petitioner is
not the person sponsored by the Employment Exchange, but the person sponsored
was one R.Arumugam, S/o.Ramasamy. The said fact is also made clear from the
verification column in O.A.No.1267 of 2000 wherein the petitioner has stated
that his father's name is Ramaiah, residing at Cheetapatti Pudu Colony,
Moolapatti Post, Arakurichi, Karur District.
6. I have considered the rival submissions made by the learned
counsel appearing for the petitioner as well as the learned Government
Advocate. I have also called for the original register and also the
Employment sponsorship letter and verified the same, wherein the father's name
has been corrected by ink as 'Ramaiah' instead of 'Ramasamy'. In fact, the
records were also shown to the learned counsel appearing for the petitioner,
who also admitted the correction made as above.
7. The correction in father's name as found by this Court, leads
to the conclusion that the person sponsored for selection was one R.
Arumugam, S/o.Ramasamy and not R.Arumugam, S/o.Ramaiah (petitioner herein).
Hence, the petitioner has no locus standi to attend the interview and his
selection based on the said interview is void ab initio. The acquittal of
petitioner by this Court in the criminal revision case is only with regard to
the punishment for impersonation. Original records were produced before this
Court and this Court, after verification of the records satisfied that the
petitioner was not the person actually sponsored for selection to the post of
Ambulance Cleaner.
8. The learned counsel for the petitioner submitted that it is
not known who had corrected the father's name in the interview card and the
petitioner cannot be blamed for such correction. I am unable to accept the
said submission as that may be a defence in the criminal case and not for his
continuance in the service, which was obtained by playing fraud. Therefore, I
hold that a fraud has been played, may be by the petitioner or somebody else,
but the fact remains that the petitioner is the beneficiary out of the said
fraud.
9. The contention of the learned counsel for the petitioner that
no enquiry was conducted before passing the impugned order is unsustainable
because a perusal of the records show that the opportunity given to the
petitioner was not availed of by him as could be seen from the order of the
second respondent dated 23.2.1996. The learned counsel for the petitioner
then requested for a fresh enquiry. In the back ground of this case, I am of
the view that the conduct of fresh enquiry is a useless formality as
propounded by the Honourable Supreme Court in the decision reported in AIR
2000 SC 2783 (Aligarh Muslim University v. Mansoor Ali Khan). In that case,
the Honourable Supreme Court found that no prejudice has been caused to the
petitioner by not conducting enquiry and even if the enquiry is conducted,
petitioner has no defence at all since the petitioner is not the person
entitled to be interviewed and selected.
10. The above said decision is followed by a Division Bench of
this Court in the decision reported in 2002 Writ L.R. 876 (L.Justine/V.
Haridass v. The Registrar of Cooperative Societies, Chennai, etc. & Others)
and in paragraph 6, the Division Bench held that the theory of principles of
natural justice cannot be put in a straitjacket and it is not an absolute rule
that in each and every adverse order, there should be a strict adherence to
the principles of natural justice and one such exception to audi alteram
partem rule is absence of any legal right to defend the impugned action and in
fact, such cases are covered by the 'useless formality theory' propounded by
the Supreme Court in the above cited decision.
11. In this case, the petitioner having been selected in the place
of R.Arumugam, S/o.Ramasamy, is not entitled to be considered for selection at
all and the appointment given to him having been found as void ab initio,
there is no necessity to conduct enquiry to prove that the petitioner is
guilty of the said allegation.
12. The Honourable Supreme Court in the decision reported in AIR
200 4 SC 3976 (Vijay Shekhar v. Union of India) held that if a fraud has been
played and somebody obtained an order, the same is liable to be quashed based
on the legal principle that an act in fraud is ab initio void. In another
decision reported in (2003) 8 SCC 319 (Ram Chandra Singh v. Savitri Devi) the
Apex Court held that if a decree is found to have been obtained by fraud, it
is a nullity. Applying the said principle in the instant case, I hold that
the petitioner is not the concerned person to have been interviewed and the
consequential appointment order issued to the petitioner is a nullity and no
benefit will flow from such appointment order. Moreover, petitioner is not
entitled to plead equity in this case as he is the beneficiary of the fraud
played. The petitioner was in fact issued with a charge memo and he was given
opportunity, but the he failed to avail of the opportunity. Hence each charge
was dealt with and final order was passed on 23.2.1996 by the second
respondent. The said order has become final.
13. The learned counsel for the petitioner submitted that by the
impugned order petitioner's services were terminated with effect from 14
.12.1986 and the department may initiate proceedings for recovery of the
salary paid to the petitioner for the period he rendered services. It is made
clear that as the petitioner was paid salary for the period he was allowed to
work, no recovery proceeding can be initiated.
14. The learned counsel for the petitioner ultimately submitted
that the petitioner may be given liberty to approach the respondents/
department for a suitable post considering his status as Srilankan repatriate
and that his employment registration was also not renewed due to his earlier
appointment. In fact, this Court put a suggestion to the first respondent
through the Government Advocate as to whether the said request can be
considered. The first respondent in his proceedings Ref.No.21704/SC1/3/2000
dated 13.2.2006 replied to the Government Advocate, the relevant portion of
which is extracted hereunder,
"In continuation of the references referred above, I am furnishing my
replies to the directions of the Hon'ble High court regarding provision of
re-employment to Thiru R.Arumugam, S/o. Thiru.Ramiah. The petitioner
R.Arumugam, S/o.Thiru Ramiah secured illegal appointment as Ambulance Cleaner
by impersonating Thiru R.Arumugam, S/o.Thiru Ramasamy and he joined in
Government Service at Government Hospital, Rajapalayam on 14.2.1986.
Thiru R.Arumugam, S/o.Thiru Ramiah, has not produced the call letter
of the Employment Exchange, Employment Exchange Registration Card and the
Community Certificate, which are very pertinent for establishing his identity.
The offence committed by him, not only deprived a Scheduled Caste person from
getting employment, but also it amounts to tampering of Government records, a
misconduct, which is unbecoming of a Government Servant, as per rule 20(1) of
the Tamil Nadu Government Servants Conduct (D&A) Rules 1973. He was
terminated from Government service with effect from the date of appointment in
Proceedings Ref.No.13101/E3/90 dated 3.12.98 by the second respondent with
effect from the date of his appointment.
Now, the petitioner has sought reappointment in Government Service.
Since a petitioner has committed gross violation of Government rules by
depriving the rightful person of his employment opportunity and tampered
Government records for his personal gains, it is felt that his plea for
re-appointment in Government Service may not be considered. Moreover, it will
be detrimental to the interest of the poor and sick general public who come to
the Government Hospitals for treatment, if his plea is considered."
In the above circumstances, no further liberty need be given to the
petitioner.
15. In the result the writ petition is dismissed. No costs.

vr

To
1. The Director of Medical Services,
Teynampettai, Chennai - 6.

2. The Joint Director of Medical Services, Virudhunagar.

3. The District Medical Officer, Virudhunagar.

4. The Medical Officer, Government Hospital,
Rajapalayam.