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Judgment
A.M. Shaffique, J—This Original Petition is filed against an interim order passed by the Kerala Administrative Tribunal on 29.10.2012 in T.A. No. 6446 of 2012. Before KAT petitioner challenged Ext. P13, dated 20.06.2011, issued by the District Collector, Wayanad cancelling the appointment of the petitioner in a reserved seat for disabled person.
The facts involved in the case would disclose that the petitioner was appointed as Lower Division Clerk/Village Assistant on disability basis as per proceedings dated 17.01.2005 by the District Collector, Wayanad. The Handicapped Association of India, Wayanad Committee working for the welfare of women, children and handicapped persons received certain complaints regarding submission of bogus disability certificate by certain persons who got employment in Government service in Wayanad District. It was decided to verify the genuineness of the certificates produced by such candidates who got Government service. They were directed to appear before the Medical Board. The petitioner appeared before the Medical Board and the District Medical Officer reported that the petitioner was acting as a disabled person whereas she is actually not a disabled person. Therefore, she was directed to appear before the authority concerned for hearing on 18.04.2011 to explain as to why her appointment should not be cancelled. The reply submitted by the petitioner was not satisfactory and the District Collector has cancelled the appointment given to her.
Before the Kerala Administrative Tribunal the petitioner sought to cancel the order of Wayanad District Collector dated 20.06.2011. Before the Tribunal it was contended that the impugned order was passed in violation of the principles of natural justice.
The Tribunal by the impugned order called upon the petitioner to appear before the SAT Hospital which is part of the Medical College Hospital, Thiruvananthapuram for conducting a BERA test to prove the genuineness of her claim that she was having hearing impediment with 40% disability. It is challenging the aforesaid order of Tribunal this Original Petition has been filed.
The learned counsel for the appellant relied upon the judgment of a Constitution Bench in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., AIR 1994 SC 1074 : (1993) 6 JT 1 : (1994) 1 LLJ 162 : (1993) 3 SCALE 952 : (1993) 4 SCC 727 : (1993) 2 SCR 576 Supp : (1993) 3 SLJ 193 to contend that no proper enquiry had been conducted and the report of the enquiry had not been furnished to the petitioner which clearly amounts to violation of the principles of natural justice. Further reliance was placed on Manohar Lal Sharma Vs. The Principle Secretary . Yet another judgment relied upon is Union of India and others Vs. Mohd. Ramzan Khan, AIR 1991 SC 471 : (1991) 61 FLR 736 : (1990) 4 JT 456 : (1991) 1 LLJ 29 : (1990) 2 SCALE 1094 : (1991) 1 SCC 588 : (1990) 3 SCR 248 Supp : (1991) 1 SLJ 196 : (1991) 1 UJ 163 . On the other hand, the learned Government Pleader has relied upon the judgment of the Supreme Court in R. Vishwanatha Pillai Vs. State of Kerala and Others, AIR 2004 SC 1469 : (2004) 2 CTC 196 : (2004) 1 JT 88 : (2004) 1 SCALE 285 : (2004) 2 SCC 105 : (2004) SCC(L&S) 350 : (2004) 2 SCR 360 : (2004) AIRSCW 419 : (2004) AIRSCW 4826 : (2004) AIRSCW 3038 : (2004) 4 Supreme 77 : (2004) 6 Supreme 306 : (2004) 1 Supreme 436 to contend that they very appointment was void on account of fraud. Paragraph 15 of the Apex Court judgment reads as follows:
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste Community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is not appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."
Having regard to the fact that the order passed by Tribunal is only for conducting the BERA Test to establish the claim made by the petitioner, we do not find it necessary to interfere with the said order passed by the Tribunal at this stage.
Even in regard to the question whether there is any violation of principles of natural justice, since the matter is pending consideration before the Tribunal, we do not think it necessary to adjudicate on the said issue, presently. The order does not suffer from any illegality, warranting interference in this petition. Accordingly, the Original Petition is dismissed.