Appointment In Public Services Secured Through Fraudulent Concealment Void Ab Initio, Long Continuation In Service Immaterial: Allahabad High Court

The petitioner had obtained this employment under the provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 after the death of his father who was a university employee.

During the course of an inquiry set up by the university to examine the appointments of the employees, it was found that the petitioner had concealed the fact that his mother was employed as a female sick attendant in the Pediatric Department of the University. It may be noted that there is a specific bar under the Rules for granting compassionate appointment, if wife or husband or any family member is employed in the Central or the State Government or in the corporation/organization owned/controlled by the Central/State Government.

Senior Advocate Bulbul Godiyal for the Appellant submitted that the petitioner has been working for 15 years from the date of his appointment. He also stated that the petitioner's mother gave an affidavit in favour of the petitioner and stated that the petitioner did not conceal any fact and the Construction Division of the University itself recommended for giving an appointment to the petitioner under the Dying in Harness Rules.

Advocate Shubham Tripathi for the Respondent stated that the petitioner had obtained his appointment by giving misleading and incorrect facts and, concealing material facts regarding the employment of his mother in the University itself. It was further submitted that the petitioner's appointment was void ab initio and, thus, even if the petitioner has worked for a long time, the petitioner is not entitled for any relief on the ground of sympathy and sentiments. The counsel also stated that the petitioner has no legal right to continue in service inasmuch as he had no legal right to get appointed in the first place and, he secured his appointment by playing fraud.

Findings

Further, for this purpose, the court relied upon Shesh Mani Shukla Vs. District Inspector of Schools, Deoria and others [ (2009) 15 SCC 436], where the court opined that –

"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."

On the aspect of long continuation of services, the court relied on the judgement of M.S. Patil (Dr.) Vs. Gulbarga University and others [(2010) 10 SCC 63], where the apex court held that in service law, there is no place for the concepts of adverse possession or holding over.

The court also negated the arguments of the petitioner with respect to the recommendation of the construction division and stated that the petitioner concealed the fact that his mother was employed in the University. Hence, the recommendation was based on the incorrect and concealed fact, and the appointment was "void ab initio".

Case Title: Sumit Kumar Verma v. State Of U.P. Thru. Addl.Chief Secy. Dept. Of Medical Edu.Govt. Of U.P.Civil Secrtt. Lko And Others

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