JUDGMENT
Shishir Kumar, J.
1. The present petition has been filed for a writ of certiorari quashing the impugned show cause notice dated 23.10.2004 (Annexure-1 to the writ petition) issued by Deputy Inspector General of Police, Varanasi and a writ of mandamus directing the respondents not to proceed further with the enquiry in pursuance of the aforesaid show cause notice dated 23.10.2004.
2. The case of the petitioner is that the petitioner was given an appointment under the Dying-in-Harness Rules on the post of Sub-Inspector, Civil Police, claiming that she is the daughter of one Rajendra Singha Verma, R/o 50/70-1, Shiv Dishani Nagar, Shahganj, District Agra. The father of the petitioner was a police personnel, therefore, she is entitled for an appointment and after consideration appointment letter was issued in favour of the petitioner and the petitioner was permitted to continue. Now the petitioner is aggrieved by the show cause notice (Annexure 1) to the writ petition by which the petitioner has been directed to submit a reply within eight days from the date of receipt of the notice that why action be not taken against the petitioner and why the services of the petitioner should not be terminated. The petitioner submits that the father was a police employee as such she was given appointment under the Dying-in-Harness Rules and as such she is serving as Sub-Inspector in Civil Police, therefore, the show-cause notice for terminating the services of the petitioner is without jurisdiction, illegal and cannot be issued and the fact of the issuance of the show cause notice that the respondents have themselves opened their mind to terminate the services of the petitioners without affording an opportunity as well as without following the procedure laid down in the service law. It has also been stated that the services of the petitioner cannot be terminated without following the procedure provided under Article 311, Sub-clause 2 of the Constitution of India or the procedure provided under the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. It has been stated that as the petitioner is holding a civil post, and appointment has already been given, therefore, by giving only show cause notice, the services of the petitioner cannot be terminated and the show cause notice. Annexure 1 to the writ petition dated 23.10.2004 is liable to be quashed. In defence to the show cause notice, the petitioner has relied upon various judgments namely the judgment reported in 1994 (3) Supreme Court Cases 357, Union of India and Ors. v. Upendra Singh; judgment reported in AIR 1955, Supreme Court 233, Hart Vishnu Qamat v. Ahmed Isihaq and Ors.; judgment reported in AIR 1961 Supreme Court 1623, State of Madhya Pradesh v. Chintaman Shadashiv Waishampayan and the last judgment relied upon by the petitioner reported in 1985 (2) Supreme Court Cases 412, Chief of the Army Staff and Ors. v. Major Dharm Pal Kukreti. The petitioner in the aforesaid case has placed reliance in paragraph 5 of the writ petition and has urged that where the said notice was issued without jurisdiction, the petitioner would have then suffered, prejudicial injury by an Act which was without jurisdiction. Whether the threat of prejudicial action, is wholly without jurisdiction, a personal cannot be asked to suffer injury to be caused to him before seeking the gross protection. If, on the other hand, the Chief of the Army Staff has the power in law to issue the said notice, it would not be open to the respondents to approach the Court Article 226 of the Constitution of India at the stage of notice only and as such this writ petition could be premature. This was, however, not a contention, which would have been decided at thrash-hold until the Court has come to the finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that respondents writ petition was not premature and was maintainable. The learned Counsel for the petitioner taking the benefit of the judgments mentioned above, has submits that the show cause notice itself is without jurisdiction and is liable to be quashed.
3. I have heard learned Counsel for the petitioner and learned Standing Counsel and perused the record.
4. After perusal of the record, it is clear that it is not mere show cause notice. It appears that on certain informations, the enquiry was conducted and it has been found that the father of the petitioner is a resident of Shahganj, District Agra, and he was serving in Siya Block and has retired and he is still alive and he was never in Civil Police and no proposal was also sent by the Police Office Mathura, to appoint the petitioner under Dying-in-Harness Rules. From the perusal of the notice, it is also clear that the petitioner by concealing the fact and playing fraud on the police department has procured by placing the fake document, appointment on the post of Sub-Inspector in the year 2001, After due enquiry, it has also been found that as the father of the petitioner was never a police employee, therefore, taking benefit of the dependent and obtaining an appointment under the Dying-in-Harness is not correct and, therefore, a show cause notice explaining the conduct of the petitioner has been given. It is also relevant to submit here that certain various other cases have also come to the notice of the authorities concerned and the matter was investigated by STF (Special Task Force) and the Special Task Force has come to the conclusion that various persons have obtained previous appointment by placing fake documents. The Court is of the opinion that, in the case in hand a show cause notice has been issued to the petitioner to cancel the appointment, which has been obtained by playing fraud under the Dying-in-Harness Rules. The point in controversy is whether a show cause notice issued for cancelling the appointment without holding a full-fledged enquiry as required under Article 311(2) of the Constitution of India or as required under UP. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991. Before proceeding it would be relevant to point out here that by issuing a show cause notice the question of validity of the appointment of the petitioner is being determined and the authority is not going to determine the question of any misconduct of the petitioner during the service. If during the service some misconduct is being done, then the service Rules provided have to be followed.
5. The cancellation of an order of appointment and the termination of service are distinct concepts. Normally the termination of service takes place when the employer, in exercise of powers conferred by Rules or on the agreed terms and conditions of appointment, terminates the services of the employee. The cancellation of appointment is an action which is directed against the appointment itself, that is, for some reasons or the other, the authority concerned withdraws or cancels or set aside the appointment. The termination is inevitably based upon either a mutual or unilateral unwillingness of the employer or employee to continue their relationship. Cancellation of appointment is, on the other hand based on ex-post facto decision of the employer that the employee should not have been appointed at the first instance.
6. It is now well settled that Article 311, Sub-clause (2) of the Constitution is attracted only when a civil servant is reduced in rank or dismissed or removed before the normal period of service and against his will by way of penalty. If the termination of service is sought to be brought about otherwise, then by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311, Sub-clause (2) of the Constitution of India. The said analogy has been established in case reported in AIR 1958 Supreme Court Cases 36, P.N. Bingra v. Union of India.
7. The important factor of the case in hand is that the petitioner is admittedly obtained his appointment by way of playing fraud under the Dying-in-Harness Rules, and therefore, he has no right to post or rank on which he was given the appointment. As such, the protection under Article 311(2) of the Constitution of India cannot be extended to the petitioner and the Punishment and Appeal Rules, 1991 has no application in the present case. The show cause notice, which has been given to the cancel the appointment, is not an order or dismissal or removal within the meaning of Article 311, Sub-clause (2), in as much as, in any case, the termination of services by way of cancelling the appointment cannot be termed as punishment. AIR 1964 Supreme Court 521, States of Punjab v. Jagdish Singh, AIR 1964 SC 1854; Champak Lal v. Union of India, AIR 1957 SC 892, State of Bombay v. Saubhghad and (2004) 1 UPLBEC 507, R. Vishwanath Pillai v. State of Kerala. The Apex Court to the effect has settled the controversy that if the benefit is obtained by committing fraud, the authorities are not obliged to comply the principle of natural justice before cancelling the advantage obtained by such fraud. For the reference, AIR 1991 Supreme Court 909, U.P. Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani and AIR 1994 Supreme Court 2166, Krishna Yadav v. State of Haryana, which is well settled that fraud vitiates everything.
8. The Court has perused the judgments cited by the petitioner. One of the judgments cited by the petitioner is reported in 1995 (2) Supreme Court Cases 412, Chief of the Army Staff and Ors. v. Major Dharm Pal Kukreti. The fact of that case was that the petitioner, who was an officer in the army, on an offence the army personnel was tried by the Court-Marshal but, upon the confirmation, as provided in the Army Act and Rules, the confirming authority came to the conclusion that there was some technical flaw, therefore, the Court-Marshal proceeding was dropped in view of Section 121 of the Army Act, which clearly goes to show that second trial is not permissible, therefore, in view of the fact the Chief of the Army Staff has, after taking into consideration the other factors come-to the conclusion that the retention of that personals not feasible in the Army as such the show cause notice under Rule 14 was given to the Army Officer and the Hon’ble Supreme Court has held that the show cause notice was valid and the administrative action, which was initiated was correct. The Court has also perused the various other judgments cited on behalf of the petitioners.
9. After due consideration of the judgments, cited by-the petitioner as well as on behalf of the respondents, the Court is of the view that the petitioner is not entitled for any relief as merely show cause notice has been given to the petitioner to explain his conduct and to show whether the petitioner has obtained the appointment by playing fraud or not and if the petitioner is able to satisfy the authorities then the proceedings against the petitioner can be dropped. But I am of the opinion that at this stage, there can be no interference under Article 226 of the Constitution of India as a mere show cause notice has been given and in my view the writ petition is not maintainable and is liable to be dismissed.
10. In view of the aforesaid fact, the writ petition is dismissed. No order as to costs.