Atul Mishra vs Union Of India & Ors.

Per : Justice Sanjeev Sachdeva

Appellant impugns order dated 05.04.2024 passed by learned Single Judge in WP no. 26613/2021, whereby the writ petition filed by the appellant challenging the order of recall of his appointment dated 22.11.2021, has been dismissed. Appellant also impugns order dated 01.04.2025 passed in Review Petition No. 566/2024, whereby the review petition filed seeking review of order dated 05.04.2024 in WP no. 26613/2021 has been dismissed.

The Appeal has been filed with a delay of 287 days and thus IA No.7723/2025 has been filed seeking condonation of delay of 287 days in filing the instant writ appeal.

Learned counsel for the respondents submits that he has no objection to the delay being condoned without prejudice to the rights and contentions of the respondents.

As per the application, writ petition was dismissed by learned Single Judge by order dated 05.04.2024. Thereafter, the appellant preferred Review Petition no. 566/2024, which was dismissed on 01.04.2025 and immediately thereafter, on 21.04.2025, appellant filed this writ appeal and thus the delay occurred in approaching this court in writ appeal is liable to be condoned.

In view of the fact that before approaching this Court in an Intra Court Appeal, appellant approached the learned Single Judge by way of Review Petition, due to which the delay occurred in filing the instant writ appeal. In view pf the averments in the application and the explanation given case is made out for condonation of delay. Consequently, the application is allowed. Delay of 287 days in filing the appeal is hereby condoned. IA 7723/2025 is allowed.

With the consent of the parties arguments were heard for the purpose of final disposal.

Original record of the recruitment process was also produced by the respondent/employer for the perusal of this Court.

Appellant participated in the recruitment process conducted for the post of Associate Professor (Vocational Education and Entrepreneurship Development) in furtherance to the advertisement issued in the year 2013. Appellant was appointed by order dated 17.01.2014 and kept on probation. In the appointment order, it was specifically mentioned that the appointment could be terminated without assigning any reason on one month’s notice or in lieu thereof on payment of one month’s pay and allowances as admissible on the date of termination.

The requisite qualification for the post of Associate Professor was 5 years’ experience in Teaching/Training/Research/Industry. Appellant submitted certificate of experience dated 11.09.2005 certifying that he worked as Senior Assistant Professor & Training & Placement Officer in Technocrats Institute of Technology for the period w.e.f. 07^th September, 2004 to 14^th November, 2005. On 10.03.2016, a letter was issued to the appellant by the department with a direction to submit the duly completed Probation Assessment form for faculty, which was submitted by the appellant.

Communication was issued by the employer on 11.01.2018 to the Director of Technocrats Institute of Technology, Bhopal (TIT) for verification of the experience certificate submitted by the appellant and in reply the Director of TIT intimated that the subject certificate of experience was not issued by the Institute and as such it was invalid. In turn, on 16.03.2018 the Dean of Administration wrote a letter to the appellant intimating that not only the period of probation, but appointment made during 2009-2014 were examined by fact finding Sub-Committee of the Board of Governance and the Institute has received communication from the Director of TIT, Bhopal informing that the experience certificate submitted by the appellant was not issued by the Institute.

Appellant submitted his reply on 08.03.2018. Thereafter, a show-cause notice was issued to the Appellant on 23.04.2019 asking him to submit his explanation with regard to his alleged act of submitting forged documents in support of his recruitment application. Appellant made a complaint on 11.06.2019 levelling allegation against the Director of NITTTR, Bhopal stating that he was acting with mala fide intentions.

Thereafter, appellant filed a Writ Petition no. 15466/2019, which was disposed of by order dated 05.08.2019 directing the respondents to consider and decide the representation of the appellant within a period of six weeks’ in light of the order passed by this Court in WP No. 5802/2018 (Dr. Kamal Bunkar Vs. State of M.P.).

Thereafter, appellant submitted a fresh representation. The representation of the appellant was rejected vide communication dated 24.05.2021 intimating him that the case of Dr. Kamal Bunkar (supra) was altogether different from the case of the appellant. The fact finding Sub-committee appointed by the Board of Governance to investigate all the appointments made during the period of 2009-2014 opined that the conduct of the appellant utilizing forged experience certificate for securing the job was highly objectionable. Consequently, by the order dated 22.11.2021, the order of appointment of the appellant dated 17.01.2014 was recalled and appellant was directed to refund the wages drawn by him.

Appellant challenged the order of recalling in the subject Writ Petition no. 26613/2021, which was dismissed by order dated 05.04.2024 by the learned Single Judge however, so far as refund of wages drawn for the period 17.01.2014 to the date till the appellant worked, considering the fact that the appellant performed the duties on the post concerned for the said period, it has been ordered that no recovery of wages shall be done from the appellant.

Being aggrieved by the order dated 05.04.2024, appellant preferred Review Petition no. 566/2024, which was also dismissed by learned Single Judge vide order dated 01.04.2025. Thereafter, the appellant has assailed the order dated 05.04.2024 passed in the subject Writ Petition and order dated 01.04.2025 passed in the subject Review Petition no. 566/2024 in the instant intra court Writ Appeal.

Learned Senior Counsel appearing on behalf of the appellant submits that appellant was appointed on the post of Associate Professor (Vocational Education and Entrepreneurship Development) for which the prescribed educational qualification was PhD or equivalent in any discipline with First Class or equivalent in Bachelor and Masters level and 5 years’ experience in Technical/Training/Research/Industry. Appellant was having Bachelor and Master’s Degree and 5 years’ experience. Appellant applied for the post and was appointed as Associate Professor on probation for a period of 2 years, which was extendable by 1 year.

On 27.02.2018, the appellant received a communication from the Dean of Institute directing him to furnish details of experience. The appellant submitted the details. As after completion of the probation period, no confirmation letter was issued and benefit of increment was not extended to the appellant, appellant submitted a representation on 23.02.2018 and, thereafter, a show-cause notice was issued to the appellant on 23.04.2019 asking him to show-cause as to why disciplinary action be not initiated against him as per the rules and regulations for submitting forged experience certificates. The appellant submitted his reply to the show-cause notice and on 22.11.2021, the appointment order was recalled with immediate effect.

Learned Senior Counsel further submits that as per the conditions of the appointment letter dated 17.01.2014 as well as Rule 11.1 of Staff Service Rules after completion of the probation period of 2 years, the probation period could be extended to only 1 year and, thereafter, upon successful completion of the probation period as per the Rule 11.6, employee will be deemed to be confirmed in due course. He submits that as per Rule 11, the confirmation letter was not essential upon completion of probation period and as the appellant had already completed the probation period, recalling of appointment order could not be passed and at the most, a full-fledged disciplinary proceeding could be initiated against the appellant.

Learned Senior Counsel contended that appellant is having more than 15 years’ experience and just because one certificate failed in verification, the appointment of the appellant could not have been recalled. He submits that it is not a case of fraud and the verification was declined by the Institute due to non-availability of documents, for which the appellant could not be held responsible. The impugned order of recalling of appointment was completely without jurisdiction and in violation of principles of natural justice.

It is submitted that the appellant fulfilled the experience criteria and is having experience of more than 15 years. As the employer permitted the appellant to continue on the post for more than 3 years, the services of the appellant could not have been terminated.

Learned Senior Counsel relied upon the judgment of Supreme Court in O.K. Bharadwaj Vs. Union of India & Ors. (2001) 9 SCC 180, wherein the Supreme Court has held that an inquiry is essential even for imposing the penalty of withholding increments of pay with or without cumulative effect or for imposing a minor penalty and opportunity of hearing should be granted to the delinquent employee.

We may note that in the case in hand, the appointment order was recalled on the ground of submission of forged experience certificate and before passing the final order, a show-cause notice was issued to the appellant to submit his case, therefore, the order passed by the Supreme Court in O.K. Bharadwaj (supra) is not applicable to the case in hand.

Appellant also relied on judgment of Supreme Court in V.P. Ahuja Vs. State of Punjab and Ors. (2000) 3 SCC 239, wherein the Supreme Court has held that the services of the probationer cannot be terminated arbitrarily or punitively without complying with the principles of natural justice. In that case, the services of the probationer was terminated during the probation period without any notice and the Supreme Court has held that the order was stigmatic and punitive on the face of it and, therefore, the same could not be passed without holding the departmental enquiry.

The facts of the case are entirely different and thus, the judgment passed by the Supreme Court in the case of V.P. Ahuja (supra) is not applicable to the facts of the case.

Learned Counsel for the Appellant further relied on the judgment of Supreme Court in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. (1999) 3 SCC 60 and the Division Bench judgment of this Court in WA No.497 of 2020 Jagdish Chouhan (Baret) Vs. State of M.P. & Ors. decided on 02.09.2021, wherein the Supreme Court and Division Bench of this Court held that for the purpose of imposition of penalty, the departmental inquiry should have been conducted and in the absence of the departmental inquiry, the penalty order cannot be passed.

The facts of these cases are also different from the case in hand, wherein the appointment order of the appellant has been recalled on the ground of fraud. Consequently, the judgments do not further the case of the Appellant.

Learned counsels appearing for respondent No. 1 and respondent 2 to 4 submit that the appellant used forged experience certificate for the purpose of securing appointment and upon verification the Institute intimated to the Dean of NITTTR that the experience certificate was not issued by the Institute and, therefore, after issuance of show-cause notice and intimating the fact to the appellant, the order of recalling was passed.

It is contended that as the appointment order was not recalled on the basis of act or omission or conduct of the appellant during employment, therefore, there was no need to hold any departmental inquiry against the appellant. The appointment obtained on the basis of forged experience certificate could have been recalled after issuance of show-cause notice. They pray for dismissal of the Writ Appeal.

After considering the arguments advanced by the parties and upon perusal of the original record made available by the respondent in compliance of the order dated 16.03.2026, the appellant was directed to place on record a table with regard to the various certificates submitted by the appellant from time to time.

From perusal of the table, it appears that the appellant claimed to have worked as a Lecturer (part time) from 1997 to February, 2001 in APS University, Rewa. Said experience could not have been considered as the appellant worked to part time only. Thereafter, the appellant enclosed 3 certificates issued by Times Institute, Rewa for the period 2001-2004. In one certificate, it was certified that he worked as Lecturer (Environmental Engineering). In second certificate, it was certified that he worked on the post of Associate Professor (Training & Placement) and in third certificate, it was certified that he worked for the post of Associate Professor on two different designations. These three certificates pertain to the same period and are issued by the same institute. These certificates are clearly doubtful. Appellant has been shown to have worked in three different capacities and on different posts with the same Institute during the same period. Therefore, these certificates are not believable or reliable.

Further, appellant furnished a certificate for the period of September, 2004 to November, 2005 of TIT, Bhopal. Said Institute has already denied having issued the certificate. From 16.11.2005 to 13.04.2006, Appellant has claimed the experience of Senior Lecturer in Thakral College, Bhopal, however, the same could not be considered as it was for the period of less than one year and it could not be taken into account as per the requirement stipulated in AICTE notification issued in November, 2000. Similarly, the certificate issued by Times Institute, Rewa for a period of one year cannot also not be taken into account.

Appellant submitted two certificates issued by LNCT, Bhopal and two certificates issued by JNCT, Bhopal for claiming the experience on the post of Director (Training & Placement) since 26.09.2008 to 2012 in LNCT, Bhopal. However, some certificates of the same period were also issued by JNCT, Bhopal and these certificates were of the period less than one year issued by JNCT, Bhopal therefore, they were not considerable in terms of AICTE Gazette Notification issued in November, 2012, which provides in Clause-6(f) that experience should be as regular faculty only and period should not be less than one year.

From the perusal of the aforesaid certificates submitted by the appellant along with the recruitment application as well as record before this Court, we are not satisfied that the appellant was having the requisite experience of 5 years as stipulated in the employment advertisement. Thus, appellant was not entitled to continue on the post of Associate Professor in the absence of possessing requisite qualification of past experience.

Learned Single Judge after considering the matter available on record and the arguments advanced by the parties correctly held that the order recalling the appointment order was passed by the competent authority and there was no requirement to conduct a regular departmental inquiry to recall the earlier order of appointment on the basis of submission of the forged experience certificates. More so, appellant was not a confirm employee and was under probation therefore, the appointment could be recalled on the ground that the certificates of experience submitted by the appellant, were not genuine.

On perusal of the entire material on record, we are satisfied the respondents have been able to demonstrate that the appellant secured the appointment on the basis of the forged experience certificates and even after taking into consideration all other experience certificates submitted by the appellant, appellant did not have the requisite experience of 5 years or more as mandated by the instructions issued by the AICTE Notification issued in November, 2010.

It is no more res integra that whenever an aspirant gets appointment by misrepresentation or playing fraud upon the appointing authority, such appointment order could not be sustained in the eyes of law and could be recalled by the appointing authority at any time whenever the fraud is discovered.

It is also a settled position of law that no order can be allowed to stand if it has been obtained by fraud. Fraud and Forgery vitiate all proceedings and dishonesty should not be permitted to bear fruits or benefit to the persons who played a fraud or made a misrepresentation. When the facts of the case are examined, it is evident that there is no infirmity in the act of the authorities, recalling the appointment order of appellant as the appointment order was obtained by producing forged experience certificate. The appointment itself was void, ab initio and non est and this act of appellant makes him ineligible to consider for appointment.

In view of the above, we are in full agreement with the view taken by the learned Single Judge. Learned Single Judge has considered the case of the appellant in a proper manner. The impugned order passed by learned Single Judge does not warrant any interference by this Court in an Intra Court Appeal. The order is just and proper. There is no merit in the Appeal and consequently, the appeal is dismissed. No order as to costs.