JUDGMENT
Mansoor Ahmad Mir, J.
1. It is averred in this petition that petitioner came to be appointed vide order No. 8 of 1997 dated 10.7.1997 against the post of Forest Protection Guard in the grade of Rs. 950-1400 plus usual allowances. He joined and came to be posted with Deputy Director, Forest Protection, Srinagar, in terms of annexure-P3. Thereafter, he was deputed for obtaining training vide order No. 65 of 1997 dated 09.10.1997 and directed to report to Principal, Forest Training School at Chatternar Bandipora. Petitioner is figuring at sr. No. 7 in the said order. He reported Principal, Forest Training School and undergone the basic training course. Respondent No. 2 issued order No. 927-34/L/I/99 dated 31.05.1999 in which he is figuring at sr. No. 40 whereby and whereunder the employees figuring in annexures A and B were repatriated back to the Forest Department along with posts-anneuxre P6. Petitioner made representation which came to be allowed and accordingly respondent No. 3 posted the petitioner at Sindh Forest Division. Thereafter, salary of petitioner came to be stopped without assigning any reasons. Petitioner approached respondents for release of salary but no satisfactory reply was given by them for withholding the salary which constrained the petitioner to file this writ petition and sought writ of certiorari quashing the impugned communication No. CCF(K)Estt/2003/241/45 dated 15.01.2003 issued by respondent No. 3 and commanding the respondents to release the withhold salary.
2. Respondents appeared and filed reply. It is profitable to reproduce the relevant portion of the reply herein, which read as under:
(ii) That the respondents received a complaint to one Mohd. Afzal Mir and while verifying the relevant orders it was found that petitioner alongwith some other persons has been shown to have been promoted on transfer to Forest Protection Force while-as the petitioner was not figuring in the promotion order issued by the department whereby Class-IV officials of Forest Department were promoted on transfer to Forest Protection Force. On examination of the relevant record it was found that petitioner has not been promoted by the Forest Department nor he was Class-IV of the Forest department, as such, for all practical purposes petitioner has entered the department fraudulently.
(iii) That the petitioner came to know about the said fact, he claimed that he has been appointed in the Forest Protection Force as Forest Protection Guard and has not been appointed in the Forest Deptt nor stands promoted to the post of Forest Protection Guard. The petitioner accordingly was directed to produce the original copy of appointment order as Forest Protection Guard and till the time the appointment order is authenticated, the salary of the petitioner was stopped. The petitioner was again communicated vide No. 401-04/E dated 25.1.2003 to produce the original initial appointment order as Forest Protection Guard. Copy of the said communication is placed on record with this reply as Annexure B. In response to the said communication the petitioner submitted that said order is lying with his brother who is outside the state and same will be submitted on his return. Copy of the said reply submitted by the petitioner is placed on record as Annexure C hereto.
(iv) That petitioner was again communicated by virtue of communication No. 3428-31/E dated 14.5.2003 to produce the original appointment order as Forest Protection Guard. Copy of the said communication is placed on record with this reply as Annexure D. The petitioner till date has not produced the original appointment order as Forest Protection Guard. The respondents on verification of official records pertaining to the alleged appointment order of the petitioner which also forms Annexure P2 to the writ petition, have found that no original signed copy is available in the official records. It is pertinent to mention here that direct appointment to the post of Forest Protection Guard are made by selection by Services Selection Recruitment Board.
In views of above stated it is amply clear that petitioner has entered the department fraudulent, as such, has no right to continue nor is entitled to salary. The writ petition, as such, is not maintainable and in-sequel thereto is liable to be dismissed.
3. During the pendency of the writ petition it was stated by learned Counsel for respondents that FIR No. 10/2003 came to be lodged in P/S Crime Branch and filed status report of the investigation. It is profitable to reproduce the last para of the status report herein:
It has been established that Muhammad Younis Khan in league with officer/ officials of Director of Forest Protection Force prepared fake and forged appointment order thus caused wrongful loss to State exchequer and after completing departmental formalities, case is being concluded as challan against accused persons
4. This case came up before this Court and was partly heard on 14th July, 2006 and was kept on Board for addressing further arguments. But on next day the office bearer reported that writ petition could not be traced and accordingly the file came to be reconstructed in terms of the orders of the Hon’ble Chief Justice.
5. Learned Counsel for parties finally argued the case on 19.10.2006. The Crime Branch was directed to submit final status report and accordingly the Crime Branch submitted status report. It is profitable to reproduce paras 2 and 3 of the said report herein:
During investigation and on perusal of the records it was establish that none of the above named persons exists among promotes in the order No. 272 of 97 dated 5.08.97, however, an Order 3343-52/81X-FDF dated 18-08-1997 were in the name of Mohd Afzal Naikoo and Mohd Shafi Padder has been cleared and this corrigendum has also been issued from office of Chief Conservator Forest. Gh Rasool Khan and Gh. Nabi Khan figuring in order Nos 28 and 29 of 1997 issued by Director Forest Protection Force no where serve the Department, however Mohd. Younis Khan figuring in adjustment order No. 38 of 1997 with Deputy Director Forest Protection Force Srinagar was found to have been issued by Director Forest Protection Force with endorsement of the then Administrative officer Mohd Shaft Khan. The entry of Mohd Younis Khan in the said order was found through FSL expert not resembling with the other writings in the order in question, therefore, the documents proved to have been prepared falsely. The investigation further established that the service book of Mohd. Younis Khan has also been prepared by said Mohd Shafi Khan the then administrative officer to conceal his wrong doings.
On the strength of evidence both oral as well as documentary the investigation of the case was closed as challaned against accused Mohd Younis Khan S/O Rehmatullah Khan R/O Shutrashahi Srinagar and Mohd. Shafi Khan S/O Atta Mohd Khan R/O Lalbazar Srinagar Under Section 420, 468, 471, 120B RPC. The challan of the case was presented before the Hon’ble Court of Chief Judicial Magistrate Srinagar on 22-08-06 and next date of hearing is 1902-07 for preliminary arguments.
6. Keeping in view the stand taken by respondents and report of Investigating Officer, it appears that petitioner has obtained entry in the respondent-department by fraudulent, fake and forged order. The question is whether in the given circumstances of the case impugned communication can be quashed and whether respondents can be directed to release the salary? The answer is in negative for the following reasons:
7. A person who plays fraud cannot invoke the writ jurisdiction in order to seek direction to the respondents to release salary in his favour.
8. The disputed questions of fact also are involved in the writ petition. If the respondents are directed to release the pay that will amount to putting seal on the alleged forged and fraudulent order. It is the duty of the court to see and ascertain that public money is not fretted away in any way.
9. Apex Court in case titled R. Vishwanatha Pillai v. State of Kerala and Ors. reported in 2004 AIR SCW 419 has observed as under:
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 eyes of 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 the 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 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 Caste. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court he has disqualified himself to hold the post. 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 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 practicing fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionery benefits of the appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidates by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Schedule Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed bend the arms of law in a case where an individual acquired a status by practicing fraud.
10. This court also in a case titled Mohd. Sher v. State of J&K Ors. reported in 1998 KLJ 359 has observed as under:
7. It be seen that merely because the Criminal Court has come to a different conclusion, is no ground to come to a conclusion that the respondent-authorities are bound to reinstate the petitioner. As a matter of fact, in the case reported as Union of India and Anr. v. Bihari Lal Sidhana (1974) 4 SCC 385 an employee was acquitted in a criminal case. It was held that this does not entitle automatic reinstatement. It was observed that the disciplinary action can be taken been after acquittal. Similar opinion has been expressed in the case reported as Nelson Motis v. Union of India and Anr. and Management of RBI v. Bhopal Singh Panchal. If the enquiry can be conducted after the acquittal then, it cannot be said that the earlier enquiry conducted ceases to be a valid enquiry merely because there is latter acquittal by the criminal court.
11. Applying the test to the instant case, I am of the considered view that this writ petition merits to be dismissed at this admission stage. Accordingly, writ petition is dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated.