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DISTRICT PRIMARY SCHOOL COUNCIL, WB v.

MRITUNJOY DAS & ORS. (Civil Appeal No. 6007 of 2011)

JULY 27, 2011 [Dr. Mukundakam Sharma and  Anil R. Dave, JJ.]

[2011] 9 SCR 546

The following order of the Court was delivered by

O R D E R

1. Leave granted.

2. As the facts and the legal issues arising for our consideration in both  

these appeals are similar, we propose to dispose of both these appeals by  

this common judgment and order.

3. The contesting respondents herein got themselves admitted for a  

training course, for obtaining the Primary Teachers' Training Institute  

certificate, which is pre-requisite and mandatory in order to get appointment  

as Assistant Teacher in primary schools in West Bengal. The contesting  

respondents herein obtained certificates after completing their training  

course. Thereafter, they also submitted their candidature for such  

appointment as Assistant Teacher in primary school in which they were  

selected and were consequently appointed as teachers. However,  

subsequently, it was found that they had taken admission in the aforesaid  

training course for Primary Teachers' Training Institute Certificate by inflating  

their marks. It is pointed out that in the said institute, where they got  

admission for undergoing training, the minimum marks that one had to obtain  

for admission in that particular year was 600. Both the contesting  

respondents inflated their marks. In one case, it was 621 as against 430  

marks actually obtained and in the other case, it was 614 as against actual  

obtained marks of 425. After the aforesaid fact came to light, the appellant

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herein issued show cause notice to the contesting respondents and the  

contesting respondents were also called for a personal hearing. However,  

none of the contesting respondents availed the opportunity of personal  

hearing given to them despite the fact they submitted their replies to the show  

cause notices. The appellant thereafter passed orders dismissing the  

contesting respondents from service.  

4. Being aggrieved by the said order of dismissal, the contesting  

respondents herein filed writ petitions in the Calcutta High Court which were  

dismissed. On appeals filed by the contesting respondents before the Division  

Bench of the High Court, the same were allowed as against which the present  

appeals have been filed.

5. The issue that arises for our consideration in these appeals is whether  

the aforesaid order of dismissal issued by the appellant was justified in view  

of the fact that at the time of appointment as Assistant Teacher in primary  

school, there was no fraud played by the contesting respondents and that  

they had got the appointment after qualifying in the test held for appointment  

as Assistant Teacher in primary schools. It is submitted that they had also  

completed the training course successfully and got the appointment after duly  

qualifying in the test and, therefore, the allegation which is prior to the said  

date could not and should not have been given a weightage so as to disentitle  

the contesting respondents from continuing with their job. These were the  

contentions of the learned counsel for the contesting respondents in the writ  

petition.

6. The contentions of the appellant who were respondents in the writ  

petition before the learned Single Judge are that once a fraud is played and  

certificate is obtained fraudulently, such conduct is required to be considered  

as adverse. It was submitted that obtaining a certificate in a fradulent manner,  

makes the certificate itself non-est and void ab initio. It is also submitted by  

the learned counsel appearing for the appellant that the aforesaid action of

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dismissal from service of the contesting respondents was taken in view of  

their conduct as it was thought that a person of such a conduct should not be  

allowed to be appointed and continue as a teacher in a primary school as at  

the stage the students whom the respondents are going to teach are in  

formative stage.

7. We have considered the submissions of the counsel for the parties. On  

going through the records placed before us, what we find is that the  

contesting respondents herein inflated their marks in order to obtain  

admission in the primary teachers' training institute. Had the marks not been  

inflated in the aforesaid manner, the contesting respondents would not have  

got the admission in that particular institute as it is disclosed from the records.  

Therefore, the admission sought for was through an illegal means which is to  

be deprecated. The conduct of the contesting respondents being such, we  

cannot find fault with the course of action taken by the appellant herein. It is  

not that the contesting respondents were not given any opportunity of  

hearing. They were given a show cause notice and were also given an  

opportunity of hearing which opportunity they did not accept although they  

submitted a reply to the show cause notice. There is, therefore, no violation of  

the principles of natural justice in the present case. If a particular act is  

fraudulent, any consequential order to such fradulent act or conduct is non  

est and void ab initio and, therefore, we cannot find any fault with the action  

of the appellant in dismissing the service of the contesting respondents. In  

this context we refer to the decision of this Court in Ram Preeti Yadav v. U.P.  

Board of High School and Intermediate Education and Others reported in  

(2003) 8 SCC 311 for the proposition that no person should be allowed to  

keep an advantage which he has obtained by fraud.

8. In view of the aforesaid position, we set aside the judgment and order  

passed by the Division Bench of the Calcutta High Court and restore the  

order passed by the learned Single Judge of the High Court.

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9. The appeals are allowed to the aforesaid extent leaving the parties to  

bear their own costs.