HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 21 Case :- WRIT - A No. - 16357 of 2007 Petitioner :- C/M Bachchan Singh Tomer Ucchattar Madhyamik Vidyalaya Respondent :- Secretary, Secondary Edu. Civisl Secretarait U.P. & Others Petitioner Counsel :- Ramesh Upadhayaya Respondent Counsel :- C.S.C.,K. Shahi,Pradeep Kumar Hon'ble Sudhir Agarwal,J.
1. This is a strange case showing the height of dishonesty, forgery, fraud in which not only the employer and the beneficiaries are involved but even a section of media has played a nefarious role forgetting serious responsibility it owe to the society who has confidence in its straight forwardness and treat it forth Estate, to work as a watchdog.
2. The writ petition directed against the order dated 01.12.2006 (Annexure 12 to the writ petition) passed by Joint Director of Education, Kanpur Division, Kanpur conveying approval to the appointment of respondents no.7 to 11 on Class IV post in Bachchan Singh Tomar Inter College, Nagala Tomar, Balrai, Etawah (hereinafter referred to as "College") and the consequential order dated 5.12.2006 issued by District Inspector of Schools, Etawah/Auraiya (hereinafter referred to as "DIOS") conveying the said approval to the principal of the College i.e. respondent No.6. The facts stated in the writ petition are quite simple.
3. There appears to be a managerial dispute with respect to the management of the College. Educational authorities were taking side and favouring Committee of Management in which respondent No.5 claimed to be Manager and one of such order passed by the educational authorities was set aside by this Court vide judgment dated 28.4.2003 in Writ Petition No.49110 of 2002 (Annexure 1 to the writ petition). The managerial dispute is further subject matter of pending Writ petition No.66425 of 2005 with which this Court is not concerned.
4. The Principal of the College, it is said, requested DIOS vide letter dated 12th January, 2006 to grant approval for making 5 appointments on Class IV posts against existing vacancies. The said approval was granted by DIOS on 17.01.2006, as is evident from Annexure 4 to the writ petition. Consequently, a letter to this effect was also issued by DIOS on 24.01.2006. The principal claimed to have followed the process of recruitment of advertisement of the vacancy etc., submitted documents alongwith letter dated 22.11.2006 seeking approval of DIOS whereupon DIOS referred the matter to Joint Director of Education vide letter dated 27.11.2006 recommending approval. It is pursuant thereto the impugned order has been passed.
5. Learned counsel for the petitioner has challenged the impugned orders on the ground that no advertisement whatsoever was ever published in the alleged newspaper "Dainik Din Rat" dated 23.7.2006, as claimed by Principal and relied on by educational authorities i.e. DIOS and Regional Joint Director of Education. He has filed a photocopy of the said newspaper dated 23.7.2006 as Annexure 7 to the writ petition to show that no such advertisement ever published therein. He, however, has also filed a Photostat copy of the same newspaper of the same date wherein advertisement of 5 posts of Class IV employees is also contained. He submitted that the newspaper is a local one and has been manipulated and forged by adding the advertisement therein in a few copies though in actual it was not there.
6. This Court required the petitioner to produce complete copy of newspaper which was also produced for my perusal and I find that newspaper is of the same date but there was no such advertisement published on the page on which it was allegedly published.
7. The notices were accordingly issued to the respondents and the Editor of the Newspaper was also permitted to be impleaded as respondent No.12.
8. The respondent No.12 put in appearance through Sri Pradeep Kumar, Advocate and counter affidavit was filed by Shiv Prasad Chaturvedi, Editor of daily newspaper. In para 3 of the counter affidavit he said that he has not published any advertisement in the newspaper and Annexure 6 to the writ petition showing advertisement of the posts in question was not published by him. He own only the newspaper, copy whereof has been filed as Annexure 7 to the writ petition in which no advertisement was published. Para 3 and 5 of the counter affidavit of respondent No.12 are reproduced as under:
"3. That it is submitted that in the writ petition, the petitioner filed a photo copy of extract of the newspaper, alleging that advertisement of the college vacancy was published in 'Dainik Din-Rat' on 23.7.2006. The photo copy of extract of the aforesaid papers has been annexed by the petitioner as Annexure-6 to the writ petition and in this connection, the petitioner made the contention regarding the alleged advertisement in paragraph no. 10 to the writ petition. The answering respondent has not published the alleged advertisement in his newspaper 'Dainik Din-Rat' on 23.7.2006 nor the photo copy of the extract of newspaper (Annexure-6 to the writ petition) is genuine and correct copy of the newspaper purchased by deponent. The actual newspaper which was published on 23.7.2006 by the deponent as Editor of the daily newspaper 'Dainik Din'Rat' is annexed as Annexure no. 7 and the same has been published under the authority of the deponent in which no advertisement of Bachchan Singh Tomar (B.S.T.) Uchchattar Madhyamik Vidyalaya, Nagla Tomar, Balraj, Etawah has published. The deponent on behalf of respondent no. 12 is filing the original copy of newspaper of 'Dainik Din-Rat' dated 23.7.2006 is being filed herewith and marked as Annexure-C.A.1 to this affidavit.
5. That it is submitted that the information department Uttar Pradesh is getting the information regularly of the publication of newspaper and the deponent is regularly sending a copy of newspaper normally on the date of its publication through Information Officer Etawah. The deponent send the copy of newspaper 'Dainik Din-Rat' dated 23.7.2006 which was published by the deponent and in this newspaper no advertisement of petitioner college was published. The deponent has no knowledge about the news advertisement alleged to be published on 23.7.2006 in 'Dainik Din-Rat' (Annexure-6 to the writ petition) and the said news advertisement has not been published by the respondent no.12 on 23.7.2006. The actual news which was published on 23.7.2006 in 'Dainik Din-Rat' is (Annexure No.7 to the writ petition). The answering respondent is denying the allegation of publication of news advertisement dated 23.7.2006 (Annexure-6 to the writ petition) under his authority."
9. He has also stated in para 4 of the counter affidavit that his daily newspaper is widely circulated in the areas consisting of Etawah, Auraiya, Mainpuri, Kannauj, Firozabad, Agra, Aligarh, Etah, Farrukhabad, Bhind and Gwallior having its registration No.R.N.I. No.12534/66.
10. Since the very advertisement in the daily newspaper was disowned by Editor of the said newspaper, respondents No.7 to 11 were permitted to file their objection to the counter affidavit of respondent No.12. Para 3 and 5 of the counter affidavit of respondent No.12 were replied by respondents No.7 to 11, in paras 5 and 7 of their affidavit, sworn by Sri Manvendra Singh, respondent No.8, and reads as under:
"5. That the contents of paragraph no. 3 of the counter affidavit are incorrect and are denied. The news paper dated 23.07.06 in which an advertisement was published for making the appointment on the post of Class IV employee was printed in the printing press of the resondent no.12. In the said news paper a notice was published for inviting the tenders by the Nagar Panchayat, Ekdil, Etawah for completion of work and on the said basis work was completed. Apart from this another advertisement was published by Principal, Adarsh Uchchattar Madhdayamic Vidyalay, Ramayan Bharathana, Etawah but in the news paper annexed as annexure no. 1 to the counter affidavit the notice published by the Nagar Panchayat Ekdil has not been published which shows that the statement of the respondent no. 12 is not correct. Photo stat copy of the news paper dated 23.07.06 is being filed as Annexure No.1 to this affidavit.
7. That the contents of paragraph no. 5 of the counter affidavit are incorrect and are denied. The news paper dated 23.07.06 in which an advertisement was published for making the appointment on the post of class IV employee was printed in the printing press of the respondent no. 12."
11. The respondents No.1 to 4 also filed a separate counter affidavit which was sworn by Sri Ramanuj, Finance and Accounts Officer in the office of DIOS stating that in the matter of selection of employees, respondent No.5 has no role and the selection was made by Principal following the due process prescribed under law. The documents submitted by Principal consisting of chart showing applications received and the details thereof were also filed along with counter affidavit. To the same effect counter affidavit of respondent No.7 to 11 is.
12. When the matter was taken up on 10.5.2011, a serious dispute was raised by the respective sides regarding correctness of advertisement alleged to be published in daily newspaper "Dainik Din Rat" dated 23.07.2006. In the circumstances, this Court decided to obtain opinion of Government Forensic Expert, whether both the newspapers have been printed at the same place or not, and, passed the following order:
"A serious dispute has been raised about the factum as to whether the advertisement for the post in question was actually published in daily news paper "Dainik Din Rat" published from Etawah dated 23.7.2006. A copy of news paper of the said date has been placed on record by respondent no. 12 which does not show the advertisement of the post in question on the said date but learned counsel appearing on behalf of respondents 7 to 11 produced the copy of news paper of the same date in which on page 3 advertisement for Class III and Class IV post in V.S.T. Inter College, Nagla Tomar, Balrai, Etawah is printed. Counsel for respondent no. 12 stated that news paper produced by respondents 7 to 11 has not been published in the printing press of respondent no. 12.
Let this matter be examined by Government Forensic Expert who will submit the report about the fact whether the two news papers; one, filed as Annexure 1 to counter affidavit of respondent no. 12, and; another which has been produced in original by Sri K. Shahi, learned counsel for respondents 7 to 11 and, have been printed in the same printing press using the same ink, block etc., as the case may be. The Registrar General of this Court shall take appropriate steps in this regard and cost of the above examination shall be borne by petitioner. Petitioner shall deposit a sum of Rs. 5,000/- with Registrar General to obtain the report of Government Forensic Expert and in case it is found that fees etc. in obtaining such report is lesser then Rs. 5,000/- the excess amount shall be refunded to petitioner after the report is obtained and in case some further amount is required, the same shall be informed to petitioner who shall deposit the same with Registrar General.
List the matter after two months.
Original copy of news paper which has been produced before this Court by Sri K. Shahi shall be signed by Court Master and shall be kept in sealed cover so as to be utilized for the purpose as directed above. "
13. The Government Forensic Expert submitted report verifying that composition and block in two newspapers are same. Meaning thereby both were printed at the same place. The report was allowed to be perused by all the counsels of the parties.
14. A reply affidavit sworn on 01.08.2011 by Sri Shiv Prasad Chaturvedi, Editor was filed disputing Government Forensic Expert's opinion and stating that neither he received any payment from the College nor published the said advertisement.
15. Besides above, petitioner also filed supplementary affidavit placing on record a letter of District Employment Office,r Etawah verifying that his office did not receive any requisition from June, 2006 to August, 2006 with respect to any vacancy in D.S.T. Inter College.
16. I have heard Sri Ramesh Upadhyay, learned counsel for the petitioner, learned Standing Counsel for respondents No. 1 to 4, Sri K.Shahi for respondent No.7 to 11 and Sri Pravenp Kumar on behalf of respondent No.12 and perused the record.
17. First I come to the question of procedure followed in making appointment i.e. whether appointment of respondents no. 7 to 11 were made validly observing constitutional protection of equal opportunity of employment to all concerned persons. The official respondents 1 to 4 in order to support appointments have relied on the following:
a. A letter dated 24th January, 2006 of DIOS, Etawah conveying his approval to the Principal of the College for taking steps for recruitment of Class IV employees and make appointment on 3 General, 1 OBC and 1 SC vacancy.
b. The list of the candidates claimed to have applied for the said post submitted by Principal of the College, copy whereof has been filed as Annexure C.A.2 which contains 21 names of General and OBC category candidates and 6 names of S.C. categories candidates. It is signed by the alleged Selection Committee members putting the date as 8th August, 2006.
c. The daily newspaper "Dainik Din Rat" dated 23rd July, 2006 wherein the posts are claimed to have been advertised.
18. The respondents 1 to 4, however, said that financial approval was granted by the said respondents on the basis of the aforesaid information furnished by the Principal with a further rider that in case information furnished is found incorrect, appointments in question shall be deemed to stand cancelled.
19. The real beneficiaries namely respondents No.7 to 11 have also defended their appointments on the following grounds:
i. The Principal of the College on 21st July, 2006 made a request to the editor of Dainik Din Rat to publish advertisement in the newspaper.
ii. The advertisement was published in the aforesaid newspaper on 23rd July, 2006.
iii. The Editor submitted a bill for payment of Rs.1,000/- vide letter dated 5th March, 2007 which was paid through a cheque No.017495 dated 10th March, 2007.
20. The case set up by respondents No.7 to 11 is that they applied pursuant to the said advertisement besides other candidates, 27 in total. The selection was made by Selection Committee and its recommendations accepted by Principal were forwarded to educational authorities who granted their approval.
21. The respondent No.12, however, has done a somersault on the defence of other respondents defending appointments of respondents No.7 to 11 relying on the advertisement alleged to be published on 23rd July, 2006 in daily newspaper "Dainik Din Rat"; by stating on oath that the said advertisement was not published in the aforesaid newspaper on 23rd July, 2006. Affidavit of Sri Shiv Prasad Chaturvedi, Editor of newspaper, in para 3 of the counter affidavit reads as under:
"That it is submitted that in the writ petition, the petitioner filed a photo copy of extract of the newspaper, alleging that advertisement of the college vacancy was published in 'Dainik Din-Rat' on 23.7.2006. The photo copy of extract of the aforesaid papers has been annexed by the petitioner as Annexure-6 to the writ petition and in this connection, the petitioner made the contention regarding the alleged advertisement in paragraph no. 10 to the writ petition. The answering respondent has not published the alleged advertisement in his newspaper 'Dainik Din-Rat' on 23.7.2006 nor the photo copy of the extract of newspaper (Annexure-6 to the writ petition) is genuine and correct copy of the newspaper published by deponent. The actual newspaper which was published on 23.7.2006 by the deponent as Editor of the daily newspaper 'Dainik Din-Rat' is annexed as Annexure no. 7 and the same ha sbeen published under the authority of the deponent in which no advertisement of Bachchan Singh Tomar (B.S.T.) Uchchattar Madhyamik Vidyalaya, Nagla Tomar, Balraj, Etawah has published. The deponent on behalf of respondent no.12 is filing the original copy of newspaper of 'Dainik Din-Rat' dated 23.7.2006 is being filed herewith and marked as Annexure-C.A.1 to this affidavit."
22. He has also denied photocopy of daily newspaper filed as Annexure 6 to the writ petition stating that the same has not been published by respondent No.12. In para 5 of the counter affidavit, he says:
"The deponent send the copy of newspaper 'Dainik Din-Rat' dated 23.7.2006 which was published by the deponent and in this newspaper no advertisement of petitioner college was published. The deponent has no knowledge about the news advertisement alleged to be published on 23.7.2006 in 'Dainik Din-Rat' (Annexure-6 to the writ petition) and the said news advertisement has not been published by the respondent no. 12 on 23.7.2006."
23. Under Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 vacancies in question were also required to be notified to the local employment exchange. It is not the case of any of respondents that said vacancy was notified in the Employment Exchange. The petitioner on the contrary has filed a second supplementary affidavit annexing a letter dated 24th April, 2007 (Annexure 2 of District Employment Officer, Etawah stating that from June, 2006 to August, 2006 he had not received any requisition for advertisement of any vacancy in the college.
24. The respondent No.12 has also stated in the reply affidavit dated 1st August, 2011 that neither it had received any letter for advertisement from the College nor any payment therefrom as alleged by other respondents.
25. On this aspect, attention of the Court is also drawn to the letter dated 19th July, 2011, Annexure 2 to the reply affidavit filed on behalf of respondent no.12 issued by DIOS to the Principal of the College requiring him to give details of the bank, its Branch and the date on which the amount of Rs.1,000/- is debited so as to verify whether the statement regarding payment of Rs.1,000/- to respondent No.12 is correct or not. It is stated at the bar that no such information has been given by the principal of the college so far. The respondent No.6 Principal of the College has neither put in appearance personally or otherwise nor has filed any reply.
26. In the writ petition the petitioner has filed copies of the applications of the respondent No.7 to 11 as Annexure 8. Reference of these applications is in para 11 of the writ petition. In respect to these applications no specific denial has come from any of the respondents, inasmuch as, respondents No.1 to 4 in para 8 of the counter affidavit have not denied the averments contained in para 11 of the writ petition while respondents No.7 to 11 in para 8 of their counter affidavit though have denied para 11 of the writ petition but thereafter have reiterated the publication of advertisement in the newspaper on 23rd July, 2006 and that they applied for the post in question in response to the said advertisement.
27. A perusal of these applications would show that in none of them there is any reference to the advertisement. The application of Ashok Kumar does not refer to any information and it is a simple application requesting for engagement. The application of Manvendra Singh claims information from reliable sources. Sri Sukhbir Singh and Ashish Kumar states that they got information from Employment Exchange about the vacancy therefore making application and Sri Sonpal again has referred to his knowledge from unknown sources. None of the applications of respondents No.7 to 11 refers to any advertisement. So far as Employment Exchange is concerned, District Employment Officer himself has verified that no requisition was received in the said office. It is thus very clear that neither the advertisement was published in any newspaper nor any requisition was sent to District Employment Exchange, Etawah and the information with respect to the advertisement sent to the educational authorities by respondent No.6 was clearly false and incorrect.
28. That being so, it is evident that appointment of respondents No.7 to 11 was made without any publication of vacancies so as to comply with the requirement of Article 16(1) of Constitution. Since the posts in question are governed by the provisions of Uttar Pradesh High Schools and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971 read with Regulations framed under Intermediate Education Act, 1921, it was incumbent upon respondent No.6 to make recruitment after due publicity of vacancies so as to enable all eligible persons to apply and exercise their right of consideration on the posts in question. Moreso, here is not a case where publicity of the vacancy was made in any other known manner but what is evident is that an advertisement in a newspaper was claimed to justify publicity of the vacancies, which is false and incorrect.
29. Not only the Editor of newspaper disown any such advertisement but the newspaper produced before the Court satisfy the Court that no such advertisement was published in the newspaper concerned at all. Bogus documents in this regard have been prepared. In this regard besides other, affidavit and stand of respondent No.12 that he did not receive any letter from the Principal of the College for advertisement of the vacancies could not be shown to be incorrect or wrong by respondents No.7 to 11 and therefore, I have no hesitation in holding appointment of respondents no.7 to 11 wholly illegal and void ab initio being in violation of provisions of statute as well as Article 16 of the Constitution of India.
30. It is now well established that an appointment on a post where financial liability is on the State Exchequer cannot be made without complying with the provision of Article 16(1) of Constitution of India namely giving equal opportunity of employment to all concerned. This includes advertisement of the vacancy as an integral part. This aspect has recently been considered by the Apex Court in State of Orissa and Anr. Vs Mamata Mohanty 2011 (3) SCC 436 and in para 19 of the judgment the Court has said as under:
"Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
31. The above authority makes it beyond doubt that an appointment without advertisement is patently illegal being violative of Article 16 of the Constitution.
32. Moreso, here is a case where respondents No.7 to 11, who are the beneficiaries of a fraudulent act, cannot wriggle out of their responsibility by any principle known to service jurisprudence for the reason that fraud vitiates everything.
33. It is now well known that the fraud vitiate all solemn acts. In Smith Vs. East Ellos Rural District Council, (1956) 1 All E.R. 855, it was held that the effect of fraud would normally be to vitiate all acts and orders. In Lazarus Estate Ltd. Vs. Beasely, (1956) 1 QB 702, Lord Denning, I.J. Said:
"no judgment of Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. "Fraud unravels everything".
34. In the same judgment, Lord Parkar-CJ said:
"Fraud vitiate all transactions known the law to whatever high degree of solemnity".
35. In Derry Vs. Peek-(1986-90) All E.R. Reporter 1, what constitute fraud was described as under:
"Fraud is proved when it is shown that the a representation has been made (1) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false".
36. It is stated when a document has been forged, it amounts to a fraud. In Webster's Comprehensive Dictionary, International Edn., ''forgery' is defined as:
"The act of falsely making or materially altering, with intent to defraud; any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability."
37. Thus forgery is the false making of any written document for the purpose of fraud or deceit. Its definition has been quoted with approval by Apex Court In Indian Bank Vs. Satyam Fibres (India) Pvt Ltd. (1996) 5 SCC 550 (Paras 26 and 27). The Apex Court in para 28 has said that fraud is an essential ingredient of forgery. It further held:
"since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a part, the court has the inherent power to recall its order."
38. Extending the said principle to the tribunal, in United India Insurance Co. Ltd. Vs. Rajendra Singh, (2000) 3 SCC 581, the Apex Court held:
"We have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation....."
39. Similar is the view taken in Roshan Deen Vs. Preeti Lal, (2002) 1 SCC 100, It was held that the Commissioner under the workmen Compensation Act can recall an order which was a result of a fraud played upon him. It cannot be said that he would be helpless in such a situation and the party who has suffered would also be helpless except to succumb to such fraud.
40. In Ashok Layland Ltd. Vs. State of Tamil Nadu and others, 2004 (3) SCC 1, it was held that an order obtained by fraud, collusion, misrepresentation, suppression of material facts or giving or furnishing false particulars would be vitiated in law and cannot be reopened. The Apex Court following the proposition laid down earlier in the case of Shrisht Dhawan Vs. Shaw Bros, (1992) 1 SCC 534, held:
"Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false."
41. It is admitted by the parties that there are two newspapers original before this Court of "Dainik Din Rat" claimed to be published on 23rd July, 2006, one contains advertisement of the vacancies in question and another without such advertisement. These newspapers are marked Exhibit "A" and Exhibit "B".
42. Exhibit "A" is part of counter affidavit of respondent No.12 as Annexure 1 and Exhibit "B" is kept separately in a sealed cover. It is a four pages newspaper. Pages No.1, 2 and 4 are identical. The real difference is in page No.3. In Exhibit "B", which is a newspaper relied by respondents No.7 to 11 on page 3 there is an advertisement with respect to the vacancies in question in the college as well as also a tender information of Nagar Panchayat Etawah. In Exhibit "A" both these are missing and instead there is a Court's publication in a Misc. Case No.94 of 2006 Namonarayan & Ors. Vs. Awam in the Court of Civil Judge (Senior Division), Mainpuri.
43. Respondent No.12, Editor of the Newspaper has disowned Exhibit "B", the newspaper which contains the said advertisement just above the tender notice, which are not contained in Exhibit "A". This Court as already said, obtained expert report dated 10th June, 2011 of Joint Director, Forensic Science Laboratory, Lucknow who has given report as under:
^^ijh{k.k ifj.kke mijksDr of.kZr loZ izys[kksa dh ijh{kk bl iz;ksx'kkyk esa fofHkUu oSKkfud midj.kksa izdk'k lzksr ds ek/;e ls dh xbZ] ifj.kke fuEu gS%& ¼1½ izn'kZ ^^A" ds i`"B la[;k&3 ds dkye la[;k 6 esa 'kCn ys[k ^^b'rgkj etfj;k** ds Åij dh vksj 'kCn ^^dh iz'kalk dhA** fo|eku gS tcfd izn'kZ ^^B** esa fo|eku ugha gSA ¼2½ izn'kZ ^^A** ds i`"B la[;k&3 ds dkye la[;k 6 esa 'kCn ys[k ^^b'rgkj etfj;k** ls ysdj vfUre 'kCn ^^¼lh-fM-½ eSuiqjhA** rd fo|eku gS tcfd izn'kZ ^^B** esa fo|eku ugha gSA ¼3½ izn'kZ ^^A** ds i`"B la[;k&3 ds dkye la[;k 7] 8 esa ykbu ^6fcdus tk jgk [kk|kUu V~SDVj lesr iqfyl us nckspk** ls ysdj vfUre ykbu* ^^dkyk cktkjh ij jks"k trk;k gSA** rd fo|eku gS tcfd izn'kZ ^^B** esa fo|eku ugha gSA ¼4½ izn'kZ ^^B** ds i`"B la[;k&3 ds dkye la[;k 7]8 esa ykbu ^^vko';drk gS** ls ysdj vfUre ykbu ^^uxyk yksej** cyjbZ bVkok** rd fo|eku gS tcfd izn'kZ ^^A** esa fo|eku ugha gSA ¼5½ izn'kZ ^^B** ds i`"B la[;k&3 ds dkye la[;k 6]7]8 esa 'kCn ^^fufonk lwpuk** ls ysdj vfUre 'kCn ^^uxj iapk;r** bdfny&bVkok** rd fo|eku gS tcfd izn'kZ ^^A** esa fo|eku ugha gSA ¼6½ izn'kZ ^^B** ds i`"B la[;k&3 ds dkye la[;k 6]7]8 esa gsM ykbu ^^czkg~e.kksa dk dkWaxsl ls gh fgr lqjf{kr % nhf{kr** ds vUrxZr fizUVsM eSVj 'kCn ^^bVkok** ls ysdj 'kCn ^6izfrfuf/kro feyk gS vkSj feysxkA** rd dk Block and Composition, izn'kZ ^^A** esa blh gsM ykbu ds vUrxZr lEiw.kZ fizUVsM eSVj ds Block and Composition, ls fHkUu gSA ¼7½ mijksDr ifj.kke la[;k 1] 2] 3] 4] 5] 6 esa of.kZr fizUVsM eSVj dks NksM dj izn'kZ izn'kZ ^^A** ds i`"B la[;k 1 ls 4 ds lHkh dkye ij fizUVsM eSVj Block and Composition, izn'kZ ^^A** esa blh gsM ykbu ds vUrxZr lEiw.kZ fizUVsM eSVj ds Block and Composition, esa leku gSaA**
44. This report has been sought to be contradicted by respondent No.12. The learned counsel for respondent No.12 submitted that the report only says that difference on page 3 in column 6, 7 and 8 on two exhibits but it is not said that the distinguished matter is published in the same press and therefore the report on this aspect is not against respondent No.12. However, he could not dispute that rest of the part of the newspaper is same. He also could not explain as to how and in what manner the news print made available to the respondent No.12 could contain different prints. When the original copies of daily newspaper "Dainik Din Rat" Exhibit "A" and "B" are both before this court, it was for the respondent No.12 to prove and demonstrate that one of these exhibits has not been published from his press and the onus to this extent lie upon respondent No.12. Except of bare denial it has failed to discharge the said onus. In the circumstances this Court has no constraint or hesitation in holding that here is a case where total forgery and fraud has been played by preparing a few copies may be one, two or more for the purpose of justifying appointments in question but as a matter of fact, no such vacancies were advertisement. Moreover thereby fraudulent appointments not only have been allowed to made but also attempted to defend. The matter becomes more serious since it involves a member of print media which is expected to function with honesty and straightforwardness. If a print media gets involved in fraud or forgery, the consequences may be much more serious. This is a matter of grave concern not only for the Court but to the public at large also. The conduct of respondent No.12 is highly apprehensive. Commenting upon the role of media and its responsibilities and credibility a Special bench of this Court in its majority order dated 17.9.2010 passed on an application No.15(O) of 2010 filed in O.O.S. No. 4 of 1989 (Sunni Central Board of Waqfs, U.P. and others Vs. Gopal Singh Visharad and others) observed:
18. Since the media reports have been referred we find it appropriate to say a few words in this regard also. What we find of late, the reports in media, whether electronic or print, are not exactly correct. Instead of giving correct information to enlighten the masses, incomplete and sometimes incorrect information is given, more as sensation than communication of correct information. The latter is the prime duty and obligation of a responsible media. It appears that in some cases, the people try to highlight a few words in a manner so as to create a sensation. The casualty in such approach is correctness of the information. The media people needs to exercise more care and caution and be more precise. We ourselves have experienced that the information regarding proceedings of this Court have also been conveyed to masses, at some places, incorrectly. At times when the published information relates to a serious situation or sensitive matter which may likely to have serious repercussions, the responsibility of media to accuracy and precision of information is much more. Needless to give a recent illustration where we found such a miss when there was a terrorist attack in Bombay. We do not intend to check or restrain the independence of media world. It is they who form the information limb of any country providing awareness and entitlement to masses but then such information must be ensured to be correct.
19. A Court passes an order sitting in the Court Room which is normally known to the parties in the case and, therefore, used to confine to few individuals. The masses acquire information about the happenings in court through media. It is therefore, their utmost and sacrosanct duty towards masses to whom they actually serve to provide correct information so that it may avoid any possible backlash or unwanted reaction particularly in a case like the one we are faced with. Any inaccuracy in information is likely to cause much more serious harm. We add no more on this. We hope and trust that our observations shall be taken in correct perspective and would give a message to powerful wing, which is commonly known as the Fourth State. They shall exhibit their responsibility in a more vigilant, alert, self conscious and self restraint manner so as to subserve the people of this Country in a best possible and responsible manner."
(emphasis added)
45. Unfortunately, respondent No.12 has completely failed not only in maintaining its pious duties and obligations but getting itself involved in a fraud and forgery, it has committed. It has also caused a loss to the society at large and deserves serious and stern order from this Court which may be deterrent and preventive.
46. Coming back to respondents No.7 to 11, initially they were allowed to continue and receive salary from State Exchequer when the writ petition was entertained by this Court. Later on when the Court found that respondents are causing delay in filing reply, payment of salary was stayed by order dated 7th April, 2011.
47. The kind of fraud and forgery committed in this case reflects widespread germ and virus of corruption not only amongst the persons holding public office but also in private. It appears that anyone who gets an opportunity is easily amenable for corruption. This really shows an unfortunate low level of ethical standards to which the society has descended, its raw and widespread commercialization and rampant corruption.
48. Learned counsel appearing for respondents No.7 to 11 tried to suggest that they are innocent having no knowledge of any forgery in the matter of advertisement but the factual analysis and discussion made above leaves no manner of doubt thay upto neck are engaged and involved in the aforesaid forgery. This could not have been done without involving respondent No.12 by alluring him offering something illegal which in common parlance is called graft, a foundation of corruption. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities. The silent or easy surrender by educational authorities, though directly may not implicate them but gives an indication of easy oversight on their part, may be deliberate or otherwise, which can be find out after making appropriate enquiry. So far as this Court is concerned, suffice it to mention that educational authorities are expected to monitor and supervise such appointments so as to protect public revenue being defrauded, if have failed to detect, and on the contrary have supported the same before this Court also, certain degree of their involvement cannot be ruled out.
49. The Court has been informed by learned Standing Counsel after receiving instructions from the Finance and Accounts Officer in the office of DIOS that a total sum of Rs.20,22,253/- in the meantime has been paid to respondents No.7 to 11 towards salary i.e. Rs.4,04,413/- to each of the said respondents has been paid. This amount is besides the amount which has been deducted towards life insurance, group insurance etc. Since appointments of respondents no.7 to 11 are result of total fraud and misrepresentation and they are beneficiaries of such fraud and misrepresentation, the benefit they have received, they owe to restore back. It must be taken away and the party, who has suffered from such fraud, should be restored to its position.
50. In the above circumstances, I allow this writ petition in following manner:
a. Selection and appointment of respondents No.7 to 11 is declared illegal. The orders dated 01.12.2006 and 5.12.2006 (Annexures 12 and 13 to the writ petition) conveying financial approval to the respondents No.7 to 11 are hereby quashed.
b. The amount paid to respondents No.7 to 11 towards salary pursuant to the appointments quashed hereinabove shall be returned by them to respondent No.1 within six months failing which the said amount shall be recovered as arrears of land revenue on a certificate issued by respondent No.4.
c. Since a fraud and forgery has been committed with respect to publication of advertisement, a criminal case shall be registered against respondents no.7 to 12. The respondent No.2 is directed to lodge a report in this regard with the Police within three months who shall proceed with investigation into the matter and complete within three months from the date of registration of FIR.
d. Collusion of respondents 2 to 4 in the appointment of respondents No.7 to 11 also cannot ruled out for the reason that after filing of this writ petition when the two types of newspapers were brought to notice of this Court, respondents No.2 to 4, instead of making a proper inquiry into the matter and submitting a correct reply before this Court, proceeded to defend appointments of respondents No.7 to 11 justifying orders of Financial approval issued by them. This aspect of the matter therefore prima facie reflects on their collusion/tacit concurrence with the story set up by respondents No.7 to 11 and therefore respondent No.1 is directed to initiate departmental enquiry against the aforesaid respondents No.2 to 4 and to find out the extent of guilt of the concerned official(s).
e. This order shall not preclude respondent No.1 in widening the scope of enquiry in respect to any other person/official of the education department found involved in this matter.
f. The Principal Secretary, Secondary Education shall take effective steps in this regard and submit a progress report to this court after six months i.e. in the first week April, 2012 .
g. It is the petitioner's alertness in the matter which revealed the real fraud on the part of Principal of the College as well as Educational authorities and newspaper. The petitioner therefore shall be entitled to cost. The respondents 7 to 12 concerned are therefore liable to be saddled with exemplary cost having indulged in a very serious kind of fraud and misrepresentation. I quantify cost of Rs.5 lacs against respondents no.7 to 11 and another set of cost of Rs.5 lacs against respondent No.12. The cost shall be paid to the petitioner. This amount of cost shall be utilized for students welfare and development of the College under the supervision of respondent no.1 or any officer authorised by it.
Order date:-02.08.2011 KA