State Of U.P. And 3 Ors. vs Mohammad Afzal
2017 Latest Caselaw 732 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									      A.F.R.
 
Court No. - 21
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 423 of 2016
 
Appellant :- State Of U.P. and 3 Ors.
 
Respondent :- Mohammad Afzal
 
Counsel for Appellant :- Subhash Rathi,C.S.C.
 
Counsel for Respondent :- Manik Chandra Yadav
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

(Per: Hon'ble M.C. Tripathi, J.)

1. State of U.P. through Principal Secretary, Education (Secondary), Government of UP, Lucknow and two others are before this Court assailing the judgment and order dated 8.1.2016 passed by learned Single Judge of this Court in Writ C No.64298 of 2014 (Mohammad Afzal vs. State of U.P. & 3 others) wherein he has proceeded to allow the writ petition with direction to the respondents-appellants to issue a fresh marks-sheet of the Intermediate Examination-2013 to the petitioner-respondent with roll no.2110478 and his name & the particulars of his parents on it within a period of six weeks.

2. Brief background of the case is that the petitioner-respondent appeared and passed the High School Examination-2000 conducted by the National Open School, New Delhi. Thereafter he had taken admission in J.K.Singh M.I.C.N.College, Sammopur, Azamgarh in Class XI as regular student and filled up his examination form for Intermediate Examination-2013. He was issued an admit card with roll no.2110478 to appear in the Intermediate Examination-2013. He appeared in the said examination and the result was declared in which he was shown as passed in First Division. However, the petitioner-respondent was issued marks-sheet bearing the above roll number but mentioning his name as 'Indralesh' instead of 'Mohammad Afzal'. Consequently, he approached the respondents-appellants for providing correct copy of the mark sheet. When no heed was paid by the respondents-appellants, he had approached this Court by preferring Writ C No.64298 of 2014 for a direction to the respondents to issue him a correct marks sheet of Intermediate Examination-2013 and learned Single Judge had proceeded to allow the writ petition with following observations:-

"Be as it may be, the petitioner was a bonafide student of the college concern. His examination form was duly accepted by the Board and he was allotted roll no.21100478. He appeared in the Intermediate Examination - 2013 with the above roll number. The said roll number is not allotted to anyone else. Therefore, in all legal proprietary he is entitle to be issued marks-sheet of Intermediate Examination - 2013 with the above roll number and showing his name correctly with all other correct particulars relating to him. The Board cannot deny issuance of the marks-sheet to the petitioner with the aforesaid roll number for any reason.

The Board itself had issued marks-sheet to the petitioner with the above roll number meaning thereby that the Board had no reservation in issuing marks-sheet with the above roll number. The only thing which the petitioner wants is that in the said marks-sheet in place of Indralesh his name and particulars of his parents/father be mentioned correctly.

The Regulations provide for registration in class XI and then for taking examination of intermediate but they do not provide that a student who has not applied for pre-registration in class - XI shall if allowed to appear in the intermediate examination his examination shall be cancelled and would not be entitle to declaration of result. If it would have been so the Board instead of issuing marks-sheet with the said roll number would at that stage itself have refused to declare the result of the petitioner and have ordered for cancellation of his examination. However, this was not done and the Board proceeded with declaration of the result as well as issuance of the marks-sheet. Once the Board has accepted the candidature of the petitioner despite the fact that he had not got himself registered in class IX, the Board is bound not only to declare his result but to declare it correctly.

The pre-registration No.2277186 used by the petitioner for submitting his examination form was allotted to one another student Nitesh Kumar Chandra. The said student had appeared in the examination with roll no.2110494. His result with the above roll number has been declared and there is no dispute with regard to his result.

According to the Board, there is no student named Indralesh. The Board is enable to furnish any explanation as to how the name of Indralesh came to be mentioned in the marks-sheet which contains the roll number of the petitioner. Therefore, the dispute is only regarding the correction of the name of the petitioner in the marks-sheet issued to him with the roll number allotted to him. Since the Board has not taken any decision for cancellation of the examination of the petitioner for any reason and it is acceptable to the Board that the petitioner was issued admit card with roll no.2110478 with which he had appeared in the examination, he is entitle for marks-sheet with the aforesaid roll number in his name and all other consequential particulars.

In view of the aforesaid facts and circumstances, a writ of mandamus is issued to the respondents to issue a fresh marks-sheet of the Intermediate Examination - 2013 to the petitioner with roll no.2110478 and his name & the particulars of his parents on it within a period of six weeks from today.

The instructions received by the Standing Counsel from the Board vide two letters as placed before the Court both dated 8.1.2016 be kept on record.

The writ petition is allowed."

3. The case set up by the appellants-respondents is that registration of a student in Class-XI for appearing in the Board Examination of Class-XII of the succeeding academic year is a condition precedent for his being eligible candidate and such provision has been made just to safeguard against unscrupulous students getting admitted to Class-XII directly without having cleared Class XI Examination. The very purpose of such registration in Class-XI would be frustrated, if the students appear in Board Examination of Class-XII without being registered in Class XI. The Principal of the Intermediate College had committed a fraud by submitting forms with reference to registration number pertaining to some other student and such fact has been overlooked by learned Single Judge.

4. Earlier the present Special Appeal was entertained on 4.7.2016 and the Division Bench had proceeded to pass an interim order to the following effect:-

"Till the next date of listing operation of the judgment and order of the Hon'ble Single Judge dated 08.01.2016 passed in Civil Misc. Writ Petition No. 64298 of 2014 shall remain stayed."

5. Shri Ravi Shankar Prasad, Additional Chief Standing Counsel appearing for the appellants submits that Chapter XXI Rule 35 of U.P. Intermediate Education Act, 1921 (in short, Act of 1921) provides that an incumbent/candidate is not eligible to appear in Class-XII standard in institutional/regular examination, if he/she is not registered himself/herself in the institution in Class XI. As per record the petitioner-respondent proceeded to get the registration number on the basis of purported degree of High School Examination-2000 obtained from National Open School, New Delhi and the alleged registration was obtained by him in the institution in question in the year 2012. He was not eligible as per provisions contained in the Act of 1921 to appear in intermediate examination as a regular/institutional student. There is absolute bar of maximum three years to appear as regular candidate, whereas in the present matter the petitioner-respondent had appeared after lapse of 11 years and 11 months. He submits that by no stretch of imagination the petitioner-respondent could take admission in the year 2012 as regular/institutional student. The entire claim has been set up on the basis of collusion so made by the petitioner with the Principal of the institution. When the aforesaid anomaly/discrepancy and fraud was found by the appellants board, immediately the first information report was lodged in the matter and the same is pending consideration before the competent criminal court.

6. It has also been urged before us that while deciding the matter learned Single Judge has failed to consider that in the scholar attendance register of Class XI in the year 2011-12 the name of the petitioner-respondent was not recorded. The enquiry was got conducted by the Deputy Secretary as well as the Three Members Committee but relevant documents were not produced by the Principal of the institution to support his contention that the petitioner was a regular student of the institute and as such, the order passed by learned Single Judge cannot sustain in the eyes of law and the same is liable to be set aside.

7. On the other hand, learned counsel for the petitioner-respondent vehemently contended that in the present matter, at no point of time the petitioner had committed any fraud and had taken admission in the institution in question and the same was duly approved by the Principal. There was no concealment of fact or misrepresentation and as such, learned Single Judge has rightly proceeded to allow the writ petition and asked the Board to provide the mark sheet.

8. We have considered the rival submissions made by the learned counsel for the parties and have perused the records.

9. As per report submitted by the Principal of the institution previously the petitioner had taken admission in Vivekanand Bechan Inter College Thekma, Azamgarh where he had studied from 2.7.2011 to 2.6.2012 and after submitting transfer certificate of the institution, he got admission in the school in question and the registration number was given as 1351 wherein name of petitioner was shown as Mohd. Afzal son of Altaf Ahmad and name of the mother is Nasreen. His date of birth was entered as 10.3.1980 and the first entrance in Class-XI was shown as 20.7.2011. The school leaving date was mentioned as 30.6.2013 and thus he passed Class-XII examination. In the previous report submitted by the Principal, he had annexed the transfer certificate of Class-XI of the petitioner claiming to be regular student from 2.6.2011 to 2.6.2012 in previous institution i.e. Vivekanand Bechan Inter College, Thekma, Azamgarh. Subsequently the first entry in Class XI in J.K. Singh M.I.C.N. College, Sammopur, Azamgarh was stated to be on 20.7.2011. As per scholar register the name of previous institute, where he studied, was mentioned as National Open School, New Delhi. There was complete contradictions in the reports so submitted by the Principal and that in the scholar register there was forgery and fabrication at the time of admission. At no point of time the claim set up by the petitioner, that he got registration no.2277186, could not be substantiated by any documentary evidence either by the Principal of the institution or the petitioner-respondent himself.

10. Today, when the matter is taken up, Shri Ravi Shankar Prasad has placed on record the photocopy of the original documents so submitted by the petitioner for Intermediate Examination-2013 and in the registration data 2011-12 (Exam Year 2013) the original registration no.2277186 was got registered in favour of Neetish Kumar Chandra son of Shri Laxman Ram and his roll number in Intermediate (Class-XII) for the year 2011 was mentioned as 2110494. He has also produced the first information report dated 17.5.2016 lodged under Section 419, 420 IPC.

11. Record in question further reveals to us that alongwith the writ petition the petitioner had proceeded to file photocopy of the marks statement of Secondary School Examination-2000 obtained from National Open School, New Delhi and in the said examination the petitioner-respondent had chosen five subjects namely English, Social Science, Economics, Business Studies and Urdu. Chapter-XIV of Niyam Sangrah of Madhyamik Shiksha Parishad, Uttar Pradesh 1989-2003 provides that for admission in the Intermediate classes an incumbent should have requisite High School degree obtained either from Board of High School and Intermediate, Uttar Pradesh at Allahabad or High School Technical Examination or from an institution, which has equivalence and confers the High School degree and the same is recognized by the Board of High School and Intermediate, Uttar Pradesh. Chapter XIV is quoted hereinafter:-

"1- b.VjehfM,V ijh{kk esa izos'k ds fy;s ;k ijh{kk ds fy, fu/kkZfjr ikB~;dze dk v/;;u izkjEHk djus ls iwoZ izR;sd ijh{kkFkhZ dks ifj"kn dh gkbZLdwy ijh{kk vFkok gkbZLdwy izkfof/kd ijh{kk vFkok fofu;e }kjk mlds ¼ gkbZLdwy ijh{kk½ led{k ?kksf"kr ijh{kk esa mRrh.kZ gksuk vko';d gksxkA

2- fuEufyf[kr ijh{kk,a b.VjehfM,V ijh{kk ds fu/kkZfjr ikB~;dze ds v/;;u ds fy;s ijh{kkfFkZ;ksa dks izos'k dk ik= cukus ds mn~ns'; ls ifj"kn dh gkbZLdwy ijh{kk ds led{k ?kksf"kr dh tkrh gS&

¼1½ Hkkjr esa fof/kor LFkkfir fdlh fo'ofo|ky; dh eSVzhD;wys'ku ijh{kk] tks ifj"kn }kjk bl mn~ns'; ls ekU; gS] fuEufyf[kr fo'ofo|ky;ksa dh eSVzhD;wys'ku ijh{kk,a ifj"kn }kjk ekU; gSa&

bykgkckn] iatkc] cEcbZ] dydRrk] enzkl] iVuk] cukjl vkSj vyhx<%

izfrcU/k ;g gS fd cEcbZ fo'ofo|ky; ds lEca/k esa ijh{kkFkhZ dks izR;sd fo"k; esa 35 izfr'kr vadksa ls vFkok izFke vFkok f}rh; Js.kh esa mRrh.kZ gksuk pkfg,A

Item no.70 at page 259 provides as under:-

"¼70½ jk"Vzh; vksisu Ldwy ubZ fnYyh }kjk lapkfyr lsds.Mjh ¼ ek/;fed½ ijh{kk bl izfrcU/k ds lkFk fd ;g ijh{kk de ls de N% fo"k;ksa esa mRrh.kZ dh x;h gksA"

12. The aforesaid condition no.70 clearly provides that an incumbent, who has obtained High School Secondary (Madhyamik) Examination from National Open School, New Delhi, must possess High School degree in six subjects, whereas as per marks statement of Secondary School Examination-2000 admittedly the petitioner-respondent had passed the Secondary School Examination-2000 in five subjects and as such, the same is not valid degree for getting an admission in Class-XI run by the Board of High School and Intermediate, Uttar Pradesh.

13. The Court has also proceeded to examine the original form of Intermediate Examination-2013 wherein the petitioner himself had proceeded to fill up the registration no.2277186 Session 2011-12. This is admitted situation that the petitioner-respondent has deliberately proceeded to fill up the form alongwith the aforesaid registration number and as such, he has played a fraud with the Board.

14. "Fraud" means an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression "fraud" involves two element, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.

15. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representation, which he knows to be false, and injury ensures there from although the motive from which the representation proceeded may not have been bad. An act of fraud on Court is always viewed seriously. Fraud and deception are synonymous.

16. In Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555, the Court observed that fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.

17. In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 581, the Apex Court observed that "fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

18. In A.V. Papayya Sastry & Ors. v. Govt. of A.P. & Ors., (2007) 4 SCC 221 the Supreme Court held in paragraphs 21 to 33 as follows:-

"21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed;

"Fraud avoids all judicial acts, ecclesiastical or temporal".

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

23. In the leading case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed:

"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."

24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

25. It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.

27. In S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1 : JT 1994 (6) SC 331, this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court.

28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated:

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation". (emphasis supplied)

29. The Court proceeded to state:

"A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".

30. The Court concluded:

"The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".

31. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;

"The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".(emphasis supplied)

32. In United India Insurance Co. Ltd. v. Rajendra Singh & Ors., (2000) 3 SCC 581 : JT 2000 (3) SC 151, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court.

33. Allowing the appeal and setting aside the orders, this Court stated;

"It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.

Therefore, 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 of such a dimension as would affect the very basis of the claim.

The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice". (emphasis supplied)"

19. In Oswal Fats and Oils Limited vs. Additional Commissioner (Administrative), Bareilly Division (2010) 4 SCC 728 the Supreme Court observed as follows:-

"20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person."

20. In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, the Supreme Court noticed that altogether new creed of dishonest litigants have flooded the Court. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings.

21. In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430 the Apex Court observed as follows:-

43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.

43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.

43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.

43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."

22. The Supreme Court in the case of V. Chandrashekaran and another vs. Administrative Officer and others [(2012) 12 SCC 133 observed that a petition or affidavit containing misleading or inaccurate statement amounts to abuse of process of Court, a litigant cannot take inconsistent positions. Paras 45, is extracted:-

"45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court."

23. In the aforementioned facts and circumstances, we are of the considered opinion that the order passed by learned Single Judge cannot sustain and is accordingly set aside.

24. So far as criminal aspect is concerned, the authority would proceed independently without influencing by the orders of this Court passed today.

25. Consequently, the Special Appeal is allowed and the writ petition in question is dismissed.

Order Date :- 16.5.2017

RKP