Jammu & Kashmir High Court Upholds Termination Of Judicial Officer, Says Fraudulent Appointments Not Entitled To Safeguards Under Article 311

The Jammu & Kashmir High Court on Wednesday upheld the termination of a judicial officer on the ground that he fraudulently obtained the benefit of “Resident of Backward Area” certificate during the selection process.

RBA certificate in J&K is akin to a caste certificate elsewhere, based on which the benefit of reservation is taken in Government service.

Court said a person who secures appointment on the basis of fabricated documents is not entitled to claim equity and protection under Article 311 of the Constitution.

“…The entry into service of the petitioner itself was by fraudulent means and, therefore, depriving him of an opportunity of departmental enquiry is not in violation of Article 311”, Justice Atul Sreedharan & Justice Mohan Lal observed.

Petitioner was selected as a Munsiff, Judicial Magistrate in the year 2000, however, his selection was challenged in two separate writ petitions alleging that the petitioner was not a RBA.

During the proceedings, a Single Judge had ordered an interim investigation by the High Court's Registrar Vigilance into the authenticity of the petitioner's RBA certificate. The inquiry revealed that the certificate was fabricated.

In appeal, the Division Bench directed the Deputy Commissioner to conduct a fresh investigation into the matter. A report thus came to be filed in January 2018, raising doubts about the genuineness of the RBA certificate. The petitioner's counsel claimed they were not provided with a copy of it. Thereafter, a second report was issued by the Deputy Commissioner, declaring the RBA certificate to be fabricated.

The petitioner sought a review under Rule 32 of SRO 164 before the Divisional Commissioner who transferred the matter to the Deputy Commissioner to review the reports dated. Accordingly, a third report was prepared, stating that the RBA certificate was valid. However, the petitioner remained under suspension due to the order of High Court's Administrative Committee and was ultimately terminated by the State Government in September 2021, based on the Full Court decision. Hence, the present writ petition.

The petitioner challenged the termination order on the ground that the Full Court only took into consideration first two reports which were against the petitioner but totally ignored the third report which exonerated the petitioner and held the RBA as valid. Secondly, it was argued that principles of natural justice, specifically audi-alteram-partem was violated as the petitioner was never subjected to a departmental enquiry which was violative of Article 311(2) of the Constitution.

Counsel appearing for the High Court submitted that the 3rd report is non est because it is in violation of Rule 32 of SRO 126, and therefore, the previous two reports would prevail.

Adjudicating upon the matter the court observed that the third report was void ab initio and non-est as it violated Rule 32 of SRO 126, which deals with review and revision. The power of review is not an inherent power but a statutory power, and in this case, it was vested in the Divisional Commissioner. Since there was no provision for delegation, the report perpared by the Deputy Commissioner was invalid, it said.

“Rule 32 it is clear that the appellate authority which is the Divisional Commissioner (Rule 31)(ii), would also be the authority for the purpose of the review or revision of an order passed by subordinate authority as per Rule 32. Rule 32 does not provide for any power of delegation of the power of review to the Deputy Commissioner. It is the Divisional Commissioner itself who was expected to review the report dated 30.01.2018 and the transfer of the said review to the Deputy Commissioner was not a procedure provided by Rule 32.”

The Court further stated that the petitioner's appointment itself was based on fraudulent means, making him ineligible for protection under Article 311 of the Constitution. It cited the precedent of R. Vishwanatha Pillai vs. State of Kerala 2004 , where the Supreme Court held that a person who secures an appointment through fabricated documents cannot claim constitutional guarantees.

In light of these findings, the Court dismissed the petition and upheld termination of petitioner's services.

Case Title: Mohammad Yousuf Allie Vs High Court of JK Th. its Registrar General & Anr.

Citation : 2023 LiveLaw(JKL) 187

Counsel For Petitioner:Mr. M. C. Dhingra, Adv. & Mr. M. K. Panditha, Adv

Counsel For Respondents: Mr. M. I. Qadiri, Sr. Adv. with Mr. Naveed Gul, Adv. for R-1

Mr. Fahim Shah, GA for R-2

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