BEFORE THE HON’BLE HIGH COURT OF JHARKHAND

Under Article 226 of The Constitution of India

WRIT PETITION NO. XXX/2017

IN THE MATTER OF

Mr. Somnath Das………………………………………......................................Petitioner

v.

Education Department of the State Government.....................................................Respondent

As Submitted to the the Hon’ble High Court of Jharkhand

Submitted by:

Anwesa Paul

Roll no.: 493

Semester: V

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 TABLE OF CONTENTS

1. ABBREVATIONS…………………………………………………………………...3
2. INDEX OFAUTHORITIES………………………………………………………....4
3. TABLE OF CASES………………………………….……….………………….…..6
4. STATEMENT OF JURISDICTION………………………………………………...7
5. STATEMENT OF FACT………………..……………………………….…….…… 8
6. STATEMENT OF ISSUES ………………………………………………..………..9
7. SUMMARY OF ARGUMENTS………………………………………………… 10
8. ADVANCEMENT OF ARGUMENTS……………………………...…………. 11

9. PRAYER………………………………………………………………...………....18

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 LIST OF ABBREVIATIONS

1. & - And
2. AIR - All India Reporter
3. Ed. - Edition
4. Hon’ble - Honorable
5. Ors. - Others
6. Anrs. - Another
7. p - Page
8. Para. - Paragraph
9. SCC - Supreme Court Cases
10. SC - Supreme Court
11. SCR - Supreme Court Reporter
12. v. - Versus
13. vol. - Volume
14. Art. - Article

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 INDEX OF AUTHORITIES

I. STATUTES:.
 The Constitution of India.

II. BOOKS/MANUALS :

1. M.P. Jain “Indian Constitutional Law”

2. Dr. J.N. Pandey “Constitutional Law of India”
3. Durga Das Basu “Introduction to the Constitution of India”

III. WEBSITES :
 www.manupatra.com
 www.lexisnexis.com
 www.jstor.org
 www.scconline.com

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 TABLE OF CASES

Janta Dal v. H.S. Chowdhary and Others 1962 Supp (2) SCR 1,AIR 1962 SC 104.

Chhotabhai Jethabhai Patel v. Union of India 652 1992 Supp (2) SCC.

Kihoto Hollohan v. Zachillhu 1986 Supp SCC 20 in paragraph 50.

D.K. Trivedi & Sons v. State of Gujarat (1997) 5 SCC 536 in paragraph 88.

Rita Mishra v. Director, Primary Education, Bihar  AIR 1988 Pat 26, 1988 (36) BLJR 1.

Roshan Lal Tandon v. Union of India AIR 1967 SC 1889.

Lazarus Estates Ltd v. Beasley (1956) 1 All ER 341 at page 345.

S. Pratap Singh v. State of Punjab AIR 1964 SC 72.

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 STATEMENT OF JURISDICTION

Petitioners’ in the instant matter have approached the Hon’ble High Court of Jharkhand under
Article 2261 of the Constitution of India.

However, the Respondent reserves the right to contest the Maintainability:-

STATEMENT OF FACTS
1
226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those territories

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  Mr. Somnath Das, the petitioner, joined as an assistant teacher in the year 1975 in the
primary school run by the state government. During this period he got promotions and
became head master of a middle school as per his qualification.
 He was to superannuate in April, 2011. Just 3 months before his retirement he was served
a notice by his the Education Department of the state government asking him to provide his
appointment letter for the purpose of processing pension and other retirement benefits as
the department did not have any record of his employment and as to how and when he got
into the services.
 Mr. Somnath Das, the petitioner, filed a reply stating therein that he does not have all those
documents as they are almost 36 years old and he was never asked for these documents
earlier.
 He retired from the services and thereafter applied for pension and other benefits.
 His application was rejected on the ground that there was no record regarding his
appointment in the official records and on being asked, the petitioner also could not show
any proof of a legal and valid appointment and as such his initial appointment was illegal
and as such he is not entitled to any benefits of the service including pension and other
benefits. Hence the present petition.

STATEMENT OF ISSUES
Memorandum on behalf of the Respondent Page 7
ISSUE 1: Whether the current petition is maintainable.

ISSUE 2: Whether the petitioner is entitled to any benefits of the service including pension and
other benefits.

SUMMARY OF ARGUMENTS

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ISSUE 1: Whether the current petition is maintainable.

It is humbly submitted before the Hon’ble court that the writ petition filed by the petitioner is not
maintainable under article 226 of the Constitution of India. Since first in any case no
fundamental rights have been violated [A]; Second It is not beyond the competence of the
Authority [B]; Third It is not enacted to the contrary to a prohibition in the Constitution[C];
finally It is enacted with following the procedure laid down in the parent Act.

ISSUE 2: Whether the petitioner is entitled to any benefits of the service including pension and
other benefits.

It is humbly submitted that the petitioner is not entitled to any benefits of the service including
pension and other benefits. His appointment in the school has been void ab initio.

ARGUMENTS ADVANCED

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ISSUE 1: Whether the current petition is maintainable.

It is humbly submitted before the Hon’ble court that the writ petition filed by the petitioner is not
maintainable under article 226 of the Constitution of India. Since first in any case no
fundamental rights have been violated [A]; Second It is not beyond the competence of the
Authority [B]; Third It is not enacted to the contrary to a prohibition in the Constitution[C];
finally It is enacted with following the procedure laid down in the parent Act.

A. In Any Case, No Fundamental Rights Are Violated The jurisdiction under Article 226 can be
invoked only when Fundamental Rights are violated. It has been held that if a right, other than a
fundamental right is claimed to be violated then such questions can be addressed only in the
appropriate proceedings and not on an application under Art. 226. In the Janta Dal v. H.S.
Chowdhary and Others2 it was observed by J. Pandian as follows. "..the busybodies,
meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest
except for personal gain or private profit either for themselves or as proxy of others or for any
other extraneous motivation or for glare of publicity break the queue muffling their faces by
wearing the mask of public interest litigation, and get into the courts by filing vexatious and
frivolous petitions and thus criminally waste the valuable time of the courts and as a result of
which the queue standing outside the doors of the Court never moves which piquant situation
creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the
administration of our judicial system." The instant case, it is submitted that no fundamental
rights of the Petitioner has been violated, therefore, this petition must fail.

B. Enacted Contrary To A Prohibition: In The Constitution It has been humbly submitted that in
the Chhotabhai Jethabhai Patel v. Union of India3 , it was held therein that apart from the
question of legislative competence and violation of Article 13 of the Constitution, a statute could
be challenged if its enactment was prohibited by a provision of the Constitution. It was held a
follows, “If by reason of Article 265 every tax has to be imposed by “law” it would appear to
follow that it could only be imposed by a law which is valid by conformity to the criteria laid
down in the relevant Articles of the Constitution. These are that the law should be (1) within the
legislative competence of the legislature being covered by the legislative entries in Schedule VII

2
2 (1992) 4 SCC 305
3
1962 Supp (2) SCR 1,AIR 1962 SC 104

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of the Constitution; (2) the law should not be prohibited by any particular provision of the
Constitution such as for example, Articles 276(2), 286 etc., and (3) the law or the relevant
portion thereof should not be invalid under Article 13 for repugnancy to those freedom which are
guaranteed by Part III of the Constitution which are relevant to the subject matter of the law.”

C. Without Following The Procedure Laid Down In The Constitution : This view was taken
forward in Kihoto Hollohan v. Zachillhu4 wherein it was held that the procedure for enacting a
‘law’ should be followed. Although it is not expressly stated, but it appears that if the procedure
is not followed then the ‘law’ to that extent will have no effect. In this case, it was held that
Paragraph 7 of the Tenth Schedule to the Constitution needed ratification in terms of clause (b)
of the proviso to Article 368(2) of the Constitution. It was held:“That having regard to the
background and evolution of the principles underlying the Constitution (Fifty-second
Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of
India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in
effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the
Constitution of India and, therefore, the amendment would require to be ratified in accordance
with the proviso to sub-article (2) of Article 368 of the Constitution of India. At the same time, it
has been emphasized by this Court that the possibility of abuse of a provision of a statute is not a
ground for striking it down. An abuse of power can always be checked through judicial review of
the action complained of. In D.K. Trivedi & Sons v. State of Gujarat5 it was said: “Where a
statute confers discretionary powers upon the executive or an administrative authority, the
validity or constitutionality of such power cannot be judged on the assumption that the executive
or such authority will act in an arbitrary manner in the exercise of the discretion conferred upon
it. If the executive or the administrative authority acts in an arbitrary manner, its action would be
bad in law and liable to be struck down by the courts but the possibility of abuse of power or
arbitrary exercise of power cannot invalidate the statute conferring the power or the power which
has been conferred by it.” Similarly, Justice B.P. Jeevan Reddy (speaking for Justice J.S. Verma,
Justice S.C. Agrawal, Justice A.S. Anand, Justice B.N. Kirpal and himself) held in Mafatlal
Industries Ltd. v. Union of India6 , “It is equally well-settled that mere possibility of abuse of a

4
652 1992 Supp (2) SCC 651 paragraph 61 and 62.
5
1986 Supp SCC 20 in paragraph 50.
6
(1997) 5 SCC 536 in paragraph 88.
6
I.P. Massey, Administrative Law, Eighth Edition, EBC Book Co., Lucknow, 2012.

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provision by those in charge of administering it cannot be a ground for holding the provision
procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu
Chetty, this Court observed: “The possibility of abuse of a statute otherwise valid does not impart
to it any element of invalidity.” It was said in State of Rajasthan v. Union of India, “it must be
remembered that merely because power may sometimes be abused, it is no ground for denying
the existence of power. The wisdom of man has not yet been able to conceive of a government
with power sufficient to answer all its legitimate needs and at the same time incapable of
mischief”. When a statute is challenged on the ground of excessive delegation, there is a
presumption in favour of its vires and if two interpretations are possible, one makes it
constitutional is to be adopted7 .

ISSUE 2: Whether the petitioner is entitled to any benefits of the service including pension and
other benefits.

It is humbly submitted that the petitioner is not entitled to any benefits of the service including
pension and other benefits.

In the case of Rita Mishra v. Director, Primary Education, Bihar8. The question posed before the
Full Bench was whether a public servant was entitled to payment of salary to him for the work
done despite the fact that he could not produce his appointment letter and that it was illegal. The
Full Bench held:

"It is manifest from the above that the rights to salary, pension and other service benefits are
entirely statutory in nature in public service. Therefore, these rights, including the right to salary,
spring from a valid and legal appointment to the post. Once it is found that the very appointment
is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential
rights of pension and other monetary benefits can arise. In particular, if the very appointment is
rested on forgery, no statutory right can flow from it."

 The petitioner’s appointment was no appointment in the eyes of law.

It is well settled that both suggestio falsi and suppressioveri under Section 17 of the Contract Act
defining 'fraud' would go to the root of the agreement and would invalidate the same. Even in the
7

8
 AIR 1988 Pat 26, 1988 (36) BLJR 1.
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realm of contract where the rule of caveat emptor or the principle of law-- let the buyer beware --
applies, still if active concealment of fraud is established, the contract would stand vitiated Again
under Section 23 of the Contract Act if the consideration of the object of the agreement is
fraudulent, the agreement is rendered void Now if that be so, could it possibly be said that in the
higher realm of status, obligations and the liability of the State for public services rendered,
fraud, which is now universally condemned in the eye of law, could nevertheless become the
source of a legal right to salary stricto sensu against the State? The answer seems to me as
somewhat plain and frontally against the petitioners. In Lazarus Estates Ltd v. Beasley9, Lord
Denning observed as under :

"..... I cannot accede to this argument for a moment No Court in this land will allow a person to
keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a
Minister, can be allowed to stand if it has been obtained by fraud Fraud unravels everything. The
Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved
it vitiates judgments, contracts and all transactions whatsoever....."

The aforesaid observations were expressly quoted with approval by their Lordships of the
Supreme Court in S. Pratap Singh v. State of Punjab10,.

It is unnecessary to multiply authority and there is no dearth thereof that fraud would thus vitiate
even bilateral rights arising from a contract. Once it is so held rights springing from law and
status and the high pedestal of public employment having a statutory base deserve even greater
protection and sanctity. Consequently, it must be held in no uncertain terms that where source of
the right is rooted in fraud or established dubious considerations, no right stricto sensu for salary
could arise and far less be enforceable by way of mandamus in the writ jurisdiction.

The rights to salary, pension and other service benefits are entirely statutory in nature in public
service. The petitioner obtained the appointment against a post and worked for a span of 36 years
but has no proof of the same. On being asked, he could not show any proof of a legal and valid

9
(1956) 1 All ER 341 at page 345
10
AIR 1964 SC 72

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appointment, The Government has no record of his employment and as to how and when he got
into the services. 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. 

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 to bend the arms of law in a
case where an individual acquired a status by practising fraud.

At this stage it is useful to refer to the observations made by Apex Court in R.L. Bagga's case
wherein the Court has stated:

"So far as questioning the validity of Governmental policy is concerned, in our view, it is not
normally within the domain of any court to weigh pros and cons of the policy or to scrutinise it
and test the degree of its beneficial or equitable disposition for the purpose of varying,l
modifying or annulling it, based on however sound and good reasoning, except where it is
arbitrary or violative of any constitutional, statutory or any other provision of law. When
Government forms its policy, it is based on a number of circumstances on facts, law, including
constrains based on its resources. It is also based on expert opinion. It would be dangerous, if
court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set
out on affidavits. The court would dissuade itself from entering into this realm, which belongs to
the executive."

To my mind, a relief in the extraordinary writ jurisdiction cannot be possibly rested on the
foundational base of a crime. Without being dogmatic, it appears to me that this proposition is so
elementary that I must confess on being somewhat surprised at the logical temerity of the
petitioners to claim that even if a letter of appointment stems from a serious punishable crime,

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still their right of salary cannot be denied because they may have actually worked on the post on
the basis of such crime. Not only that, the claim is that a mandamus in the writ jurisdiction must
issue to enforce this purported right of salary therefore peremptorily. It would perhaps be apt to
keep in focus two basic legal propositions for which neither authority seems to be needed nor
any great elaboration is called for. The right to salary stricto sensu springs from a legal right to
validly hold the post for which salary is claimed. It is indeed a right consequential to a valid
appointment to such post. Therefore where the very root is non-existent, there cannot subsist a
branch thereof in the shape of a claim to salary. Consequently if the very foundational right to
hold the post is fouled by the crime of forgery, no consequential right to salary can possibly
emanate therefrom. In such a situation the question is not that the appointee allegedly purported
to work against the post on the basis of a forgery but the real question is whether he was at all
entitled to so work and has lawfully worked thereon. The litmus test would be whether when
specifically challenged, the claimant can show and uphold his lawful right to the post and
thereafter alone can he possibly seek the ancillary claim of salary flowing therefrom.

Also, according to the THE PENSION FUND REGULATORY AND DEVELOPMENT

AUTHORITY ACT, 2013,  Conditions for Pension:-

The following documents must be enclosed with pension cases:

Form No. 1, 3, 5, 6 and 7, Service Book, No Demand and No Enquiry Certificate and Payment /
non payment certificate for provisional pension. And the date of appointment is clearly noted in
the Service book alongwith the order of competent authority.
The counsel may at the very outset narrow down the field and pinpoint that herein we are dealing
with public service alone and not a private one. It is by now well settled that governmental or
public service though originating in contract becomes wholly statutory in status when the
appointee enters the portals thereof. It is unnecessary to dilate on this aspect because it is well
settled both on the principle and on an unbroken line of binding precedent. Way back in, Roshan
Lal Tandon v. Union of India11 the Constitution Bench had held as follows : --

"..... It is true that the origin of Government service is contractual. There is an offer and
acceptance in every case. But once appointed to his post or office the Government servant

11
AIR 1967 SC 1889.

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acquires a status and his rights and obligations are no longer determined by consent of both
parties, but by statute or statutory rules which may be framed and altered unilaterally by the
Government. In other words, the legal position of a Government servant is more one of status
than of contract. The hall-mark of status is the attachment to a legal relationship of rights and
duties imposed by the public law and not by mere agreement of the parties. The emolument of
the Government servant and his terms of service are governed by statute or statutory rules which
may be unilaterally altered by the Government without the consent of the employee..... But it is
obvious that the relationship between the Government and its servant is not like an ordinary
contract of service between a master and servant. The legal relationship is something entirely
different, something in the nature of status. It is much more than a purely contractual relationship
voluntarily entered into between the parties. The duties of status are fixed by the law and in the
enforcement of these duties society has an interest....."

To sum up on this aspect it seems somewhat plain that where the letter of appointment is a
forgery and the appointee is a partly and privy to the same, no substantive right of salary would
arise, however, long the person may have fraudulently worked on the post in actuality. To my
mind, no legal right can stem from a crime herein because of the original factum of forgery. Such
a person is not an employee at all and far from being a public servant in the eye of law. Even if
on the basis of a forged letter he has imposed himself on the post and worked thereon, he cannot
take advantage of his own wrong, because he would not have worked lawfully thereon. Even in a
suit under Section 70 of the Contract Act the requirement is that the claimant had lawfully done
something not intending to do it gratuitously and in the absence of such lawfulness even in that
forum the plaintiff might well be defeated.

The question of violation of natural justice cannot arise in a case like this where the petitioners
are not visited with any civil consequence. The rule of audi alteram partem is intended to inject
justice into law and it cannot be applied to defeat the ends of justice. Hence, since the petitioner
could not show any proof of a legal and valid appointment and as such his initial appointment
was illegal and as such he is not entitled to any benefits of the service including pension and
other benefits and his appointment in the school has been void ab initio.

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 PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honourable Court may be pleased to:

HOLD that the writ petition filed under Article 226 of the Constitution of India is not
maintainable;

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HOLD that the petitioner is not entitled to pension or any other benefits and his appointment in
the school has been void ab initio;

And pass any other order that this Honourable Court may deem fit in the interests of justice,
equity, and good conscience.

For this act of kindness, the respondent faction shall be duty bound forever.

All of which is humbly prayed,

Sd/-

Counsel for the Respondent.

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