Sasikala. S vs The Director of Collegiate Education
- Court
- Madras High Court
WP(MD) No. 8271 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Order Reserved on : 01-10-2026
Order Pronounced on : 03-11-2026
CORAM
THE HON'BLE MR. JUSTICE RAJNISH PATHIYIL
WP(MD) No. 8271 of 2023
CNR:{HCMD010400982023}
AND
WMP(MD) No. 7612 of 2023
S. Sasikala
..Petitioner(s)
Vs
1. The Director of Collegiate Education,
College Road,
Chennai.
2. The Joint Director of Collegiate Education,
Madurai Region,
Madurai.
3. The Secretary,
Rajapalayam Raju’s College,
Rajapalayam,
Virudhunagar District.
..Respondent(s)
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the records
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pertaining to the order passed by the 3 respondent in his proceedings in
Ref. No. SSK/180/2021-22 dated 25.08.2021 and quash the same and
direct the respondents to reinstate the petitioner in service with all the
consequential monetary and service benefits.
For Petitioner(s): Mr. V. Panneer Selvam
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For Respondent(s): Mr. P. Pethu Rajesh
Additional Government Pleader
for R1 and R2.
Mr. K. Ragatheesh Kumar
for Mr. A. Rajesh
for R3.
ORDER
The writ petition has been filed seeking a Writ of Certiorarified
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Mandamus to call for the records pertaining to the order passed by the 3
respondent in Ref.No.SSK/180/2021-22 dated 25.08.2021, by which the
petitioner was removed from service, to quash the same, and to direct the
respondents to reinstate the petitioner in service with all consequential
monetary and service benefits.
2. It is the case of the petitioner that she was appointed as a Clerk
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in the 3 respondent College on consolidated pay with effect from
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01.06.2012. At the time of that appointment, she produced her 10
standard mark statement and typewriting certificate. Thereafter, by order
dated 07.06.2013, she was appointed as Gardener against a permanent
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sanctioned vacancy with effect from 10.06.2013. The 3 respondent
College sent a proposal seeking approval of her appointment, along with
those of six other non-teaching staff, but no orders were passed on it. The
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3 respondent College was therefore constrained to file W.P.
(MD)No.1234 of 2014 before this Court.
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3. By order dated 24.02.2015, this Court directed the 2
respondent to consider the proposal within four weeks in light of the
decision in C. Manikandan v. State of Tamil Nadu, rep. by its Secretary,
Department of Higher Education and others , (2012) 4 MLJ 918 and the
same is extracted hereunder:
“22. From the categorical findings rendered by the
Hon’ble Division Bench as well as the learned Single
Judges of this Court as cited supra, it is clear that there
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is no necessity for the 5 respondent-college to seek prior
permission before filling up the post in a sanctioned
vacancy. The impugned order in this writ petition came
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to be passed only on two grounds, namely, that the 5
respondent-institution did not obtain minority status from
the Government and that no prior permission was
obtained before filling up the post. As I have found both
reasons assigned by the respondents 1 to 3 in refusing to
accord approval are unsustainable the writ petition is
allowed and the impugned order is set aside.
Consequently, the respondents 1 to 3 are directed to
approve the appointment of the petitioner as a Waterman
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in the 5 respondent-college from the date of his
appointment and pay salary and other attendant benefits
available to him within a period of six weeks from the
date of receipt of a copy of this order.”
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The writ appeal preferred against the above order by the 1 and 2
respondents in W.A.(MD)No.931 of 2018 was dismissed on 12.07.2018,
and the Special Leave Petition preferred against the order was also
dismissed by the Hon'ble Supreme Court on 18.01.2019. In the contempt
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petition filed by the 3 respondent College in Cont.P.(MD)No.128 of
2018, the respondents 1 and 2 produced the order dated 28.08.2019
approving all seven appointments, including that of the petitioner. By
order dated 29.08.2019, this Court closed the contempt petition with a
direction to release the monetary benefits within four weeks.
4. It is the case of the petitioner that her salary was not released
despite the said direction and that she therefore made a representation
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enclosing her 10 standard mark statement, Aadhaar card, PAN card,
driving licence and school identity card. All of these documents record
her date of birth as 15.03.1983, whereas her birth certificate records it as
19.06.1984.
5. According to the petitioner, 19.06.1984 is her correct date of
birth, as entered in the birth register. She states that, as advised by the
management, she sought correction of her school records by requests
dated 22.04.2013, 30.04.2013 and 19.06.2013. The Directorate of
Examinations replied on 24.04.2013, and the Directorate of School
Education also issued a communication on 16.05.2013.
"
இக் கோ ரிக்கை விதிகளின்படி
.
பரிசீலிக்கப்பட்டது பள்ளி
சேர்க்கை யின்போ து மாணவனின்
பெ ற்றோ ரால் சரியான விவரங்கள்
கொ டுக்கப்பட்டு பள்ளியின் பதிவின்
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போ து பள்ளி நிர்வாகத்தினரால் தவறு
செய்யப்பட்டிருந்தால் மட்டுமே திருத்தம்
மே ற்கொ ள்ளப்படுமே யன்றி
பள்ளிப்படிப்பை முடித்து மதிப்பெ ண
சான்றுகளை யும்பெ ற்றுக்கொ ண டபின்
/
பள்ளிச்சான்றுகளில்பிறந்ததே தி தந்தை
/
பெ யர் முகப்பெ ழுத்துமற்றும்சாதிதிருத்தம்
மே ற்கொ ள்வது என்பது தமிழ்நாடு
-5--
இடை நிலை க்கல்விச்சான்று விதி எண
"
ன்படிஏற்கத்தக்கதல்ல
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She also states that the discrepancy was intimated to the 3 respondent in
2013 itself. As the correction was a protracted process, she pressed for
release of her salary.
6. In the meanwhile, a new Secretary assumed charge of the
College and, according to the petitioner, began to cause her difficulty.
She therefore filed a writ petition in W.P.(MD)No.4822 of 2020 seeking
release of salary from 10.06.2013 in terms of the approval order dated
28.08.2019.
7. It is the further case of the petitioner that, after she sent a
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representation to the 2 respondent on 09.03.2021, the 3 respondent
issued a memo dated 16.03.2021 alleging that she had secured
appointment by producing a bogus certificate of date of birth. She sent a
reply on 19.03.2021, pointing out that her writ petition was pending. A
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show cause notice dated 09.04.2021 followed the earlier show cause
notice, to which the petitioner sent a reply dated 19.04.2021 on the same
lines as her earlier reply. On 03.05.2021, she was placed under
suspension, which she challenged by filing a writ petition in W.P.
(MD)No.13921 of 2021.
8. By notice dated 26.07.2021, the petitioner was called upon to
appear for enquiry on 02.08.2021. It is the petitioner’s case that she could
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not attend the enquiry owing to ill health and informed the 3 respondent
by a letter of the same date. By a further notice dated 04.08.2021, she was
called upon to appear on 16.08.2021. She was again unable to attend,
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owing to fever and severe cough, and informed the 3 respondent
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accordingly. Without considering the same, the 3 respondent passed the
impugned order on 25.08.2021. Thereafter, W.P.(MD)No.13921 of 2021
was dismissed as infructuous in view of the order of termination, and
W.P.(MD)No.4822 of 2020 was disposed of with a direction to consider
the proposal.
9. The petitioner contended that the impugned order was passed ex
parte, in violation of the principles of natural justice, and without
following the procedure contemplated under the Tamil Nadu Private
Colleges (Regulation) Act, 1976 and the Rules framed thereunder. She
further contended that she had herself produced both the birth certificate
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and the 10 standard mark statement to the management, and that no
question of suppression or of a bogus certificate therefore arises.
10. The petitioner further contended that neither the Act nor the
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Rules prescribe any age limit for appointment, and that the 3 respondent,
being a minority institution, has made several other appointments without
any age restriction. It was also contended that she was not paid
subsistence allowance during the period of suspension. According to the
petitioner, the impugned order, passed eight years after her appointment
and after approval was granted pursuant to the orders of this Court, is
actuated by malice on the part of the new Secretary.
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11. The 2 respondent has filed a counter-affidavit on his own
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behalf and on behalf of the 1 respondent. The 2 respondent has taken a
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stand that the 3 respondent is a linguistic minority college established in
1967 and governed by the Tamil Nadu Private Colleges (Regulation) Act,
1976. It is stated that the petitioner's initial engagement as a Clerk was a
temporary posting on consolidated pay against a post that was not yet
sanctioned. Her salary for that post was paid from the College's own
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funds, and no approval of the 2 respondent was required.
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12. It is further stated that, at the time of her appointment as a
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Gardener, the petitioner produced her 10 standard mark sheet to show
that she could read and write Tamil, which is the basic qualification for
the post. She also produced a birth certificate issued by the Municipality.
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The proposal for her appointment was received and approved by the 2
respondent.
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13. According to the 2 respondent, the petitioner studied at Sri
Rao Bahadur A.K.D. Dharmaraja Girls' Higher Secondary School,
Rajapalayam, till 1999, and the school records, together with her PAN
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card and Aadhaar card, show her date of birth as 15.03.1983. The 2
respondent contended that she obtained the birth certificate showing her
date of birth as 19.06.1984 with the ulterior motive of showing her age to
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be below 30 years, which, according to the 2 respondent, was
mandatorily required to secure the appointment. It was further contended
that she declared her date of birth inconsistently at different stages.
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14. The 2 respondent further contended that, after the approval,
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the 3 respondent issued a notice in SSK/670/2019-20 dated 01.02.2020,
calling upon the petitioner to produce copies of her PAN card and
Aadhaar card to confirm her date of birth, which she delayed. A memo in
SS/525/2020-2021 dated 16.03.2021 was then issued seeking her
explanation. The petitioner replied that no explanation was necessary in
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view of the pendency of W.P.(MD)No.4822 of 2020 seeking disbursal of
salary from the date of appointment.
15. Thereafter, a show cause notice was issued on 09.04.2021 and
an enquiry committee was constituted. The petitioner did not appear
before the committee on 19.04.2021, again citing the pending writ
petition. On the basis of the committee's report dated 19.04.2021, the
College Committee found on 29.04.2021 that the petitioner had
committed fraud by producing a bogus birth certificate and thus placed
her under suspension on 03.05.2021.
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16. According to the 2 respondent, a notice of re-enquiry dated
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26.07.2021 was issued along with a detailed charge memo. The 2
respondent contends that the petitioner did not appear on 02.08.2021 or
on 16.08.2021, and that the reasons she offered were unreasonable. She
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was accordingly set ex parte. The 2 respondent had also conducted an
enquiry of his own, upon notice to both parties in
Na.Ka.No.83/Aa2/2021-2 dated 25.03.2021, which revealed that the
petitioner had suppressed her date of birth to secure employment. On the
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basis of that report and the findings of the Enquiry Officer, the 3
respondent passed the impugned order.
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17. The 2 respondent further contended that the petitioner has an
effective alternative remedy of appeal under the Act against the
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impugned order, and that the writ petition is therefore not maintainable.
He has further contended that a person who has secured employment by
fraud and suppression of material facts cannot claim salary or other
monetary benefits.
18. The learned counsel for the petitioner also referred to the
grounds raised in the writ petition. It was submitted that the birth
certificate is a public document issued by the Municipality, that it has
never been shown to be false, and that a discrepancy between the birth
certificate and the school records does not by itself amount to fraud. In
support of these submissions, the learned counsel relied on the decisions
in Vikas Pratap Singh and others v. State of Chhattisgarh and others ,
(2013) 14 SCC 494, K. Muthuselvan v. The Additional Chief Secretary /
Commissioner of Revenue Administration and others , W.P.
(MD)No.8581 of 2026, dated 30.04.2026, and The Additional Chief
Secretary, Commissioner of Revenue Administration and others v.
Muthuselvan , W.A.(MD)No.850 of 2026, dated 18.06.2026.
19. The learned counsel for the respondents reiterated the
averments in the counter affidavit. It was submitted that the petitioner
secured her appointment by producing a birth certificate that is
inconsistent with her school records, and that a person who obtains
employment by suppression of material facts cannot claim continuance in
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service. In support of this submission, the learned counsel relied on the
decision of a Division Bench of this Court in A. Sivakumar v. The
Chairman-cum-Managing Director, Bharat Sanchar Nigam Ltd. and
others , W.P.No.2478 of 2021, dated 17.12.2021.
20. I have given my anxious consideration to the contentions of
the learned counsel on either side and perused the materials placed on
record.
21. At the outset, the objection as to maintainability of the writ
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petition should be dealt with. The 2 respondent contends that the
petitioner ought to have availed the remedy of appeal provided by the
Act. The counter-affidavit, however, does not identify the provision
under which such an appeal lies. The writ petition has been pending since
2023, the pleadings are complete, and the matter has been heard on
merits. The petitioner has also averred that the impugned order was
passed in violation of the principles of natural justice.
22. It is well settled that the availability of an alternative remedy is
a rule of self-imposed restraint and not a bar to the jurisdiction of this
Court under Article 226 of the Constitution of India. In Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai and others , reported
in (1998) 8 SCC 1 , the Hon'ble Supreme Court held that an alternative
remedy does not operate as a bar where the writ petition seeks
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enforcement of a fundamental right, where there has been a violation of
the principles of natural justice, or where the order or proceedings are
wholly without jurisdiction or the vires of an Act is under challenge.
23. In the present case, the writ petition has been pending for over
three years, and one of the grounds raised is a violation of the principles
of natural justice. Having regard to the stage the matter has reached and
the nature of the challenge, I do not consider it appropriate to relegate the
petitioner to the appellate remedy at this point and thus, the objection that
the writ petition is not maintainable is rejected.
24. Turning to the merits of the matter, the crux of the
management’s case is that the petitioner has two dates of birth on record.
Her school records, PAN card and Aadhaar card show 15.03.1983, while
the birth certificate issued by the Municipality shows 19.06.1984. On that
footing, the management has characterised the birth certificate as bogus
and has concluded that the petitioner suppressed her real age to secure the
appointment as Gardener. The question is whether this discrepancy, on its
own, makes out fraud or suppression that would justify the petitioner's
removal from service.
25. A charge of suppression lies on the presumption that a material
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fact was concealed from the employer. However, the counter-affidavit
itself records in paragraph 5 that, at the time of her appointment as Clerk
in 2012, the petitioner produced her 10th standard mark sheet, which
shows her date of birth as 15.03.1983. In paragraph 4, it further records
that, at the time of her appointment as Gardener, she produced her 10th
standard mark sheet as well as the birth certificate issued by the
Municipality. Both dates of birth were therefore before the management
when it appointed the petitioner as Gardener and when it forwarded the
proposal for approval.
26. It is also evident that the petitioner had applied for correction
of her date of birth on 22.04.2013, 30.04.2013 and 19.06.2013 on the
advice of the management itself, and the Directorate of Examinations and
the Directorate of School Education responded to her requests on
24.04.2013 and 16.05.2013. Moreover, it is stated that this mismatch was
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intimated to the 3 respondent in 2013 itself. These averments have not
been specifically denied by the Respondents herein. The petitioner who
has placed both documents before her employer, and who had openly
sought for correction of one of them, cannot be said to have suppressed
either.
27. Nor is there any material on record to show that the birth
certificate is not genuine. The counter affidavit describes it as bogus, but
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does not state that the Municipality has disowned the certificate or that
the corresponding entry in the register of births is false. No verification of
the certificate with the issuing authority is referred to. On the contrary,
the respondents contend that, if 19.06.1984 is the real date of birth, the
petitioner ought to have taken steps to correct her records before
obtaining employment. The grievance, therefore, is really limited to the
extent that the petitioner did not have her school records corrected in
time. In my opinion, the same can be treated only as a lapse and nothing
more.
28. In this regard it is also pertinent to add that the Oxford
Advanced Learner’s Dictionary defines “bogus” as “pretending to be real
or true”, and gives “false” as its synonym. A document is bogus when the
document itself is fake, that is, when it was never even issued by the
authority whose name it bears, or when its contents have been fabricated.
A genuine document issued by a competent authority cannot be termed
bogus merely because its contents differ from another record. The case of
the respondents does not fall within this meaning. The birth certificate
was issued by the Municipality, and according to the petitioner, it reflects
the entry in the register of births. What the respondents have pointed to is
only a conflict between that certificate and the school records, and not
any defect in the certificate itself.
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29. The respondents have also levelled an allegation that the
petitioner has committed forgery. This Court had occasion to consider a
similar allegation in A. Deivendiran (Died) and others v. The Chairman,
Gandhigram Institute of Rural Health and Family Welfare Trust and
another , W.P.(MD)No.22530 of 2023 , dated 09.10.2026. In that case,
the employee was charged with having produced a bogus experience
certificate, and it was held as follows:
“6. ... Black’s Law Dictionary defines “forgery” as “the act of
fraudulently making a false document or altering a real one to
be used as if genuine”. Tested on the said definition, the
respondents have misconstrued the facts by treating the
experience certificate itself as a forged document. There is no
allegation that the certificate was fabricated, that the issuing
authority did not issue it, or that any genuine document was
altered and thereafter used as genuine. The allegation rests
solely on the premise that the period of study overlapped with
the period of employment. The alleged overlap may constitute
a discrepancy, but cannot, by itself, amount to forgery of the
certificate.
…
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22. In such circumstances, I find that the very basis of the
charge does not survive, as the charge memo which has been
extracted in paragraph No.2 above, indicates that the charge
was only in respect of the petitioner having produced a bogus
certificate. For a document to be characterized as bogus, the
Inquiry Officer should have come to a definite finding after
examining the officers of the University or the previous
employer and come to a conclusion that the petitioner had
produced a bogus certificate. When neither the Madurai
Kamaraj University nor the previous employer has resiled
from the position by claiming that the certificates are bogus,
the contention/allegation in the charge memo appears to be
without any basis.”
The present case stands on the same footing. There is no allegation
that the Municipality did not issue the birth certificate, or that a
genuine document was altered. The discrepancy between the two
dates of birth may call for correction of the records, but it does not,
by itself, amount to forgery.
30. Moreover, the evidentiary value of a date of birth extracted
from the records of a local body was considered by this Court in K.
Muthuselvan v. The Additional Chief Secretary / Commissioner of
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Revenue Administration and others , in W.P.(MD)No.8581 of 2026,
dated 30.04.2026. That case concerned a request by a Government
servant, under Rule 49 of the Tamil Nadu State and Subordinate Service
Rules, to alter the date of birth in his service register on the strength of a
birth certificate. The learned Single Judge observed as follows:
"11. As seen from Clause (a) of Rule 49 of the General
Rules, SSLC or Matriculation Register or School Records
are taken as the basic documents for finding out the date
of birth of a candidate. As seen from Clause (c),
alteration of date of birth can be sought either basing
upon the Secondary School Leaving Certificate, School,
College or University records or birth extract from the
records of the local bodies."
31. The above order was affirmed by a Division Bench of this
Court in The Additional Chief Secretary, Commissioner of Revenue
Administration and others v. Muthuselvan , W.A.(MD)No.850 of 2026,
dated 18.06.2026, wherein it was held as follows:
"11. Admittedly, within five years from the date of his
entry into service, by representations dated 24-12-1996
and 30-04-1997, the Writ Petitioner / respondent has
sought alteration of his date of birth. The delay has
occasioned only on the side of the appellants, who have
negatived the request of the respondent only in February
2026. Rule 49 of the General Rules permits a request for
alteration of date of birth, and it also stipulates a time
period of five years from the date of entry into service.
We also find that the appellants do not dispute the fact
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that the petitioner's birth certificate reflecting his date of
birth as 05-07-1967 as being fabricated or false. In fact,
the Commissioner of Revenue (Administration) has
confirmed the date of birth of the Writ Petitioner as 05-
07-1967.
12. In such a view of the matter, we do not see any error
committed by the Writ Court in allowing the Writ
Petition. In fact, one of us (Hon'ble Mr. Justice N. Sathish
Kumar), in W.P. No. 17374 of 2022, in the matter of T.
Daisy Rose Light vs. The Additional Secretary and
another, by order dated 29-08-2023, in similar facts and
circumstances, has held that when a presumption can be
attached to the birth extract and the certificate is not
even disputed, there can be no impediment in acceding to
the request for alteration of the date of birth. In fact, in
the said order, the Government Circular in Letter No.
14914/S2/2018-1, dated 18-07-2018, has also been
referred to, which speaks only about the requirement of
having completed the age of 14 years at the time of
appearing for the SSLC examination or 10th Standard,
after the year 1978, and that mere suspicions cannot be a
ground to negate the request for alteration of date of
birth. The said decision will also be squarely applicable
to the present case as well."
32. The petitioner, as an employee of an aided private college, is
not governed by Rule 49 as such. The principle that emerges from these
decisions is nonetheless merely instructive in nature. A date of birth
extracted from the records of a local body is a recognised basis for a
person's date of birth, independently of the school records. There is a
presumption of genuineness that comes with it, and where genuineness is
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not disputed, a mere divergence from the school records is not a ground
to disregard it, let alone treating the same as fraudulent. As observed in
the Additional Chief Secretary v. Muthuselvan (supra), a mere suspicion
cannot entirely replace proof.
33. I am also unable to countenance the motive that is attributed to
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the petitioner by the 2 respondent that the petitioner relied on the birth
certificate to show her age as below 30 years, which was mandatorily
required for the appointment. On 10.06.2013, on the date of birth in her
school records, the petitioner was 30 years and nearly three months old.
On the date of birth in the birth certificate, she was almost 29 years old.
34. The respondents however have failed to identify the provision
under which an age below 30 years was required for the post of Gardener
in an aided private college. The petitioner has specifically averred that
neither the Tamil Nadu Private Colleges (Regulation) Act, 1976 nor the
rd
Rules framed thereunder prescribe any age limit, and that the 3
respondent has made several other appointments without any age
restriction. These averments have not been answered by the respondents.
In the absence of any such age limit, the earlier date of birth would not
have made the petitioner ineligible for the post. This in fact would imply
that she therefore gained no advantage from the later date of birth, and
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the inference of an ulterior motive is not substantiated.
35. The learned counsel for the respondents also refers to an
nd
enquiry conducted by the 2 respondent, pursuant to the notice dated
25.03.2021, which is said to have revealed that the petitioner suppressed
her date of birth. The report of that enquiry has not been placed before
this Court. The counter affidavit also does not indicate that it rests on any
material apart from the discrepancy between the two dates of birth. It
therefore does not advance the case of the respondents any further.
36. The learned counsel for the respondents relied on A.
Sivakumar v. The Chairman-cum-Managing Director, Bharat Sanchar
Nigam Ltd. and others , W.P.No.2478 of 2021, dated 17.12.2021,
wherein an Hon’ble Division Bench of this Court held as follows:
"9. There is no doubt about it, that once verification form
requires certain information to be furnished, the
declarant is duty bound to furnish it correctly and
suppression of material facts of submitting false
information may by itself lead to termination of his
service. The fraud and mis-representation vitiates a
transaction and in case employment has been obtained
on the basis of forged documents, as observed in
''M.Baskaran case'' [Union of India Vs. M.Baskaran
(1995 SUPP 4 SCC 100)]. Therefore, if an appointment
was procured fraudulently, the incumbent may be
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terminated from service. Therefore, the person who has
suppressed the material information, cannot claim
unfettered right for appointment or continuity in service.
Hence, the Tribunal rightly upheld the termination. We
find no reason to interfere with the order of the Tribunal
as there is no merit in the Writ Petition. Hence, the Writ
Petition liable to be dismissed."
37. The above decision turns on its own facts where the employee
had produced a school record sheet in support of his date of birth, and on
verification the school authorities reported that they had no such records
and had not issued the certificate. It was only later that a genuine transfer
certificate showing a different date of birth was produced. Thus, the
fabrication of the document was established on verification. In the present
case, no such verification has been made, and the birth certificate has not
been shown to be fabricated at any point in time. The school records were
before the management from the outset, and no eligibility condition
turned on the petitioner's age. The decision in A. Sivakumar v. The
Chairman-cum-Managing Director (supra) is therefore distinguishable
on facts.
38. The learned counsel for the petitioner relied on Vikas Pratap
Singh and others v. State of Chhattisgarh and others , (2013) 14 SCC
494 , wherein the Hon'ble Supreme Court held as follows:
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"20. The pristine maxim of fraus et jus nunquam
cohabitant (fraud and justice never dwell together) has
never lost its temper over the centuries and it continues
to dwell in spirit and body of service law jurisprudence.
It is settled law that no legal right in respect of
appointment to a said post vests in a candidate who has
obtained the employment by fraud, mischief,
misrepresentation or malafide. (See: District Collector
and Chairman, Vizianagaram Social Welfare Residential
School Society, Vizianagaram and Anr. v. M. Tripura
Sundari Devi (1990) 3 SCC 655, P. Chengalvaraya
Naidu v. Jagannath and Ors. (1994) 1 SCC 1 and Union
of India and Ors. v. M. Bhaskaran 1995 Suppl. (4) SCC
100). It is also settled law that a person appointed
erroneously on a post must not reap the benefits of
wrongful appointment jeopardizing the interests of the
meritorious and worthy candidates. However, in cases
where a wrongful or irregular appointment is made
without any mistake on the part of the appointee and
upon discovery of such error or irregularity the
appointee is terminated, this Court has taken a
sympathetic view in the light of various factors including
bonafide of the candidate in such appointment and length
of service of the candidate after such appointment (See:
Vinodan T. and Ors. v. University of Calicut and Ors.
(2002) 4 SCC 726; State of U.P. v. Neeraj Awasthi and
Ors. (2006) 1 SCC 667).
25. Admittedly, in the instant case the error committed by
the Respondent-Board in the matter of evaluation of the
answer scripts could not be attributed to the Appellants
as they have neither been found to have committed any
fraud or misrepresentation in being appointed qua the
first merit list nor has the preparation of the erroneous
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model answer key or the specious result contributed to
them. Had the contrary been the case, it would have
justified their ouster upon re-evaluation and deprived
them of any sympathy from this Court irrespective of
their length of service."
39. The legal maxim fraus et jus nunquam cohabitant (fraud and
justice never dwell together) applies where fraud is clearly established.
Where it is not, the Hon'ble Supreme Court has held that the bona fides of
the appointee and the length of service rendered are relevant
considerations, even where the appointment itself was found to be
erroneous. In Vikas Pratap Singh (supra), the appointees were protected
because no fraud or misrepresentation could be attributed to them. In the
present case, fraud has not been established, and the appointment itself
has not been shown to be irregular.
40. The petitioner has served the College since 2012, initially as a
Clerk and, from 10.06.2013, as a Gardener. Her appointment was
approved only after litigation that went up to the Hon'ble Supreme Court.
Her removal, eight years after her appointment as a Gardener, solely
relying on a discrepancy that was known to the management from the
outset, cannot be sustained by this Court. It must also be borne in mind
that the post of Gardener is a basic service post at the lowest rung of the
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establishment of the College. Even according to the 2nd respondent, the
only qualification required for the post is the ability to read and write
Tamil. The petitioner’s date of birth had no bearing on that qualification,
and no age limit has been shown to apply to the post. For an employee so
placed, removal from service means the loss of her livelihood. In the
present case, it is unfortunate that it comes after more than eight years of
service, and where much of the service was rendered without disbursal of
the salary attached to the post while the same was under litigation.
41. This Court also notes the sequence of events in the present case
though they have not been weighed in arriving at a decision. The
approval of the petitioner's appointment was secured through prolonged
litigation that eventually culminated in the approval order dated
28.08.2019. The disciplinary action against her began only after a new
Secretary assumed charge, and intriguingly, only after the petitioner
approached this Court by a writ petition in W.P.(MD)No.4822 of 2020
seeking disbursal of her salary. In the view taken by this Court, it is not
necessary to record a finding of mala fides , but this sequence cannot be
overlooked.
42. The ex-parte findings rest entirely on the discrepancy between
the two dates of birth, and that discrepancy, as found above, does not by
itself establish fraud or suppression.
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43. For the foregoing reasons, I hold that the impugned order
removing the petitioner from service is unsustainable and is liable to be
set aside.
44. In the result, the writ petition is allowed, and the following
directions are issued:
rd
(i)The order passed by the 3 respondent in
Ref.No.SSK/180/2021-22 dated 25.08.2021 is set aside.
rd
(ii)The 3 respondent is directed to reinstate the petitioner in
service as Gardener within a period of eight weeks from the
date of receipt of a copy of this order.
(iii)The petitioner shall be entitled to continuity of service and all
consequential monetary and service benefits. The
respondents shall disburse the monetary benefits within a
period of twelve weeks from the date of receipt of a copy of
this order.
(iv) It is made clear that this order does not determine the
petitioner's correct date of birth. It is open to the petitioner to
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pursue the correction of her school records in accordance
with law. The date of birth to be entered in her service
record shall be determined by the competent authority in
accordance with law, after notice to the petitioner.
45. There shall be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
03-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
psm
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To
1. The Director of Collegiate Education
College Road, Chennai.
2. The Joint Director of Collegiate Education
Madurai Region, Madurai.
3. The Secretary
Rajapalayam Rajus College, Rajapalayam, Virudhunagar District.
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RAJNISH PATHIYIL, J.
psm
WP(MD) No. 8271 of 2023
AND
WMP(MD) No. 7612 of 2023
03-11-2026
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