Allahabad High Court
Rajit Ram vs State Of U.P.& Others on 20 November, 2017
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 07
Case :- WRIT - A No. - 7243 of 2001
Petitioner :- Rajit Ram
Respondent :- State Of U.P.& Others
Counsel for Petitioner :- B.S. Pandey
Counsel for Respondent :- C.S.C.,Awadesh Kumar,Balram Ji Verma,K. Shahi,K.Sahai,S.K.Upadhyaya,Sudhakar Upadhyay
AND
Case :- WRIT - A No. - 29352 of 2012
Petitioner :- Ram Sagar & Others
Respondent :- Director Basic Education Officer Basti & Others
Counsel for Petitioner :- Dharm Raj Chaudhary,Indra Raj Singh
Counsel for Respondent :- C.S.C.,Akhilesh Kumar,Awadesh Kumar
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri B.S. Pandey, learned counsel for the petitioner in Writ-A No.7243 of 2001, Sri Indra Raj Singh, learned counsel for the petitioners in Writ-A No.29352 of 2012, Sri Awadesh Kumar, learned counsel for Basic Education Officer, Sri Balram Ji Verma, learned counsel for Committee of Management and Sri I.S. Tomar, learned Additional Chief Standing Counsel for the State-respondents.
2. With the consent of learned counsels for the parties, both the writ petitions are being finally heard together. Counter and Rejoinder affidavits have already been exchanged in both the writ petitions.
FACTS:-
3. Sri Rajit Ram (hereinafter referred to as the "A") is the petitioner in Writ-A No.7243 of 2001. Sri Ram Sagar, Kalideen and Smt. Anjani Devi (hereinafter referred collectively as "B") are petitioners in Writ-A No.29352 of 2012. The petitioners "A" and "B", both claim to be teachers appointed in "Sardar Patel Babu Ram Verma Samajwadi Laghu Madhyamik Vidyalay Amrawali, Shumali, Basti", which is a recognised aided Junior High School. It came on grant-in-aid list w.e.f. 12.03.1996. According to the petitioners vide Letter No.NIL of 1987-88 dated 12.08.1988, one post of Headmaster and 13 posts of Assistant Teachers were sanctioned by the Assistant Director of Education (Basic), 7th Division, Gorakhpur in respect of the aforesaid institution. It is the case of the petitioner "A" that a Committee was duly constituted for appointment of Assistant Teachers which took interview on 27.06.1990 and petitioner was appointed and approval to the appointment was granted by the District Basic Education Officer, Basti vide Letter No.2536 of 1990-91 dated 13.10.1990 addressed to the Manager. It is alleged that even after the institution came on grant-in-aid list w.e.f. 12.03.1996, the payment of salary to the petitioner was not made and as such the petitioner "A" filed a Writ Petition No.28033 of 1997, which was disposed of by this court by order dated 01.09.1997 observing that the petitioners may file representation before the District Basic Education Officer and in case the petitioners are duly appointed and the posts held by them are duly sanctioned, then there is no reason that they shall not get salary.
4. The petitioners "B" also filed Civil Misc. Writ Petition No.16975 of 1997 on similar set of allegations which was disposed of by order dated 02.09.1997 observing that the petitioners may make a representation before the District Basic Education Officer, Basti.
5. On representation of the petitioner "A", pursuant to the order dated 01.09.1997 in Writ Petition No.28033 of 1997, the District Basic Education Officer, Basti passed an order dated 08.10.1999 observing that permission is granted for payment of salary to the petitioners w.e.f. 01.04.1996. Likewise on representations of the petitioners "B" pursuant to the order passed in Writ Petition No.16975 of 1997, the District Basic Education Officer, Basti granted permission for payment of salary to them from the State exchequer w.e.f. 01.04.1996 vide order dated 16.05.1998.
6. It appears that the petitioner "A" was still not being paid salary from State Exchequer while the petitioners "B" were being paid salary and as such he moved a representation dated 22.12.2000 before the District Basic Education Officer, Basti. It appears that thereafter, vide letter iz0d0/45-47-2000-2001 dated 05.04.2001, the Assistant Director of Education (Basic), 7th Division, Gorakhpur informed the District Basic Education Officer, Basti that post creation is forged and no such letter was issued by his office. Consequently, the District Basic Education Officer, Basti passed the impugned order dated 17.09.2001 cancelling the order of approval and payment of salary. Aggrieved with this, the petitioner "A" filed the present writ petition.
7. The salary of the petitioners "B" was stopped by order of the the District Basic Education Officer, Basti dated 16.05.2012 against which they have filed the above noted Writ-A No.29352 of 2012.
SUBMISSIONS:-
8. Sri B.S. Pandey, learned counsel for the petitioner "A" submits that letter dated 13.10.1990 is not forged. He submits that the petitioner was lawfully appointed and his appointment was duly approved by the competent authority and, therefore, the impugned order passed by the District Basic Education Officer, Basti without affording any opportunity of hearing, is not only wholly illegal but also it is violative of the principles of natural justice and, therefore, it deserves to be quashed.
9. Sri Indra Raj Singh, learned counsel for the petitioners "B" submits that Director is the competent authority under Section 9 of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other employees) Act, 1978 (U.P. Act No.6 of 1979) for payment of salary who passed the order dated 21.09.2006, hence salary cannot be stopped by the District Basic Education Officer unless the services of the petitioners are terminated or their appointments are held to be forged. The impugned order amounts to review of its own order by the District Basic Education Officer, Basti for which he does not possess power. Thus, the impugned order is without jurisdiction. Since the impugned order caused serious stigma and civil consequences and as such opportunity of hearing to the petitioners "B" before passing the impugned order was mandatory which has not been done. Thus, the principles of natural justice has been violated. In support of his submissions, he relied upon a judgment of Hon'ble Supreme Court in the case of A.K. Kraipak and others vs. Union of India and others, AIR 1970 SC 150, and a Division Bench judgment of this Court Mohan Lal Sharma vs. D.I.O.S., Muzaffarnagar and others, 1982 ULBEC 213.
10. Learned Additional Chief Standing Counsel as well as learned counsel for B.S.A. support the impugned orders and actions of the authorities. They also relied upon judgment of Hon'ble Supreme Court in the case of Mohd. Sartaj and another vs. State of U.P. and others, 2006 (2) SCC 315 (para-19) and submit that since the appointment and approval was based on forged papers and also since no prejudice has been caused to the petitioners and as such it cannot be said that principles of natural justice have been violated. They further submit that even before this court, the petitioners could not bring on record any evidence relating to their appointment or that the letters dated 12.08.1988 and 13.10.1990 are not forged and fabricated. Therefore, no prejudice can be said to have been caused to the petitioners. They further submit that even the petitioners have not disputed the specific averments made in paragraph-5 of the supplementary counter affidavit dated 08.02.2004 of Sri Vinod Kumar Verma, the District Basic Education Officer, Basti.
DISCUSSION AND FINDINGS:-
11. I have carefully considered the submissions of learned counsel for the parties and perused the record before me.
12. In paragraphs 4, 7 and 9 of the counter affidavit of Ramayan Prasad Kuswaha, the District Basic Education Officer, Basti filed on 10.10.2002 in Writ-A No.7243 of 2001 have been replied by the petitioner in paragraphs 4 & 7 of the rejoinder affidavit dated 23.10.2002 as under:
Paragraphs 4, 7 and 9 of the counter affidavit filed on 10.10.2002 in Writ-A No.7243 of 2001
Paragraphs 4 & 7 of the rejoinder affidavit dated 23.10.2002
4. That, Sardar Pateal Babu Ram Verma Samajwadi Laghu Madhyamik Vidyalaya, District Basti was granted temporary recognition by Ditrict Basic Education Officer, Basti vide its letter dated 24.05.1974. The permanent recognition was granted by the order of Deputy Director of Education, VII Region, Gorakhpur vide its letter dated 23.2.1982. The Institution in question was taken on grant-in-aid list the manager of the institution has sent M.R. for the year 1995-96 though District Basic Education Officer, Basti, which was placed before the District Committee who were recommended the same before Assistant Director of Education (Basic) at Regional Officer. Thereafter, the Manager/ District Basic Education Officer Basti has sent the same to the Director of Education Basic, Allahabad through Regional Committee. The Regional committee had recommended the name of three teachers for the year 1995-96. In the aforesaid M.R. for the year 1995-96, the name of the petitioner was not shown as such the averments of the petitioner that he is working from 1988 in the institution in question appears to be incorrect. If the petitioner had not been included in the M.R. By the Manager of the institution fr the year 1995-96. It is also incorrect to say that any post had been created on 12.08.1988. Annexure-2 filed along with the writ petition had not been issued by the officer of Assistant Director of Education (Basic). As such it is clear that the petitioner was appointed with the connivance of the manager of the committee for taking salary from the State Government on illegal method.
7. That, the contents of the para no.-4 of the writ petition are incorrect and denied - No post has been created as incorrectly mentioned in para under reply. No letter for creation of the post has been issued from the officer of the Assistant Director of Education (Basic) 7-th Region, Gorakhpur, annexure No.2 filed alongwith the writ petition is forged document.
9. That, the contents of the para no.5 of the writ petition are incorrect and denied. Since the petitioner was given forged appointment. As such no question arises for payment of salary from the state fund.
4. That the contents of paragraph 4 of the counter affidavit are partly admitted, so far it relates to the recognition and taking the institution in the grant in aid list. Rest part of the contents of paragraph 4 of the counter affidavit are not admitted as stated. The petitioner is working into the institution since the date of his initial appointment continuously without any break. He was approved by the District Basic Education officer Basti and the earlier writ petition was disposed of by this Hon'ble Court which has become final between the parties. The direction issued in earlier writ petition dated 1.9.1997 of the petitioner was complied by the Zila Basic Shiksha Adhikari by passing order dated 8.10.1999 whereof the validity of the appointment of the petitioner was minutely examined and was found correct and valid as such the order dated 8.10.1999 was issued.
7. That the contents of paragraphs 6, 7, 8, 9 and 10 of the counter affidavit are wholly misconceived and incorrect hence vehemently denied and in para under reply the averments of paragraph 3, 4, 5, 6 & 7 of the writ petition are hereby reiterated. Apart from its, it is submitted that the appointment of the petitioner is in accordance with the rules and they are fully qualified for the post in question.
13. A supplementary counter affidavit dated 12.02.2004 by Sri Vinod Kumar Verma, the District Basic Education Officer, Basti was filed. Paragraphs 4, 5 and 6 of the aforesaid supplementary counter affidavit have been replied by the petitioner "A" in paragraphs 8 & 11 of the supplementary rejoinder affidavit as under:
Paragraphs 4, 5 and 6 of the counter affidavit dated 12.02.2004 in Writ-A No.7243 of 2001
Paragraphs 8 & 11 of the supplementary rejoinder affidavit
4. That according to the petitioner the posts of Assistant teachers were created/ sanctioned by the order of the Assistant Director of Education (Basic), Gorakhpur dated 12.8.1988. The Assistant Director of Education (Basic), Gorakhpur submitted his report on 30.09.2003 to the Deputy Director of Education (Finance) Education Directorate, U.P. Allahabad that the alleged order dated 12.8.1988 has not been issued from his office and the said alleged order is a forged and fabricated document. A true copy of the report of Assistant Director of Education (Basic), Gorakhpur dated 30.09.2003 is being filed herewith and marked as Annexure No.1 to this Supplementary counter affidavit.
5. That according to the petitioner the observer was appointed by the order of the District Basic Education Officer, Basti dated 22.6.1990, which was alleged to be issued by Sri Banke Singh the then District Basic Education Officer, Basti on 22.6.1990. It is relevant to point out here that Sri Banke Singh who was posted as District Basic Education Officer, Basti on 7.7.1989 he continued to work there till 12.6.1990 on the said post and on 12.6.1990 Sri Vishwanath Ram had joined his duties and was continued on the said post till 6.7.1992. The alleged orders dated 22.6.1990 and 13.10.1990 were never issued by the office of District Basic Education Officer, Basti as on 22.6.1990 Sri Banke Singh was not working as District Basic Education Officer, Basti and so for the alleged order dated 13.10.1990 is concerned the same has not been dispatched from the office of District Basic Education Officer, Basti through dispatch No.2536 on 13.10.1990. From perusal of the dispatch register it is clear that on 12.10.1990 last letter was dispatched bearing dispatch No.4498-100 and on 13.10.1990 and 14.10.1990 no letter was dispatched. On 15.10.1990 the first letter was dispatched by dispatch No.4501-02. On the basis of the facts and circumstances stated above it is clear that the alleged letter dated 13.10.1990 bearing dispatch No.2536 was never dispatched from the office of District Basic Education Officer, Basti. Both the alleged orders dated 22.6.1990 and 13.10.1990 are forged and fabricated documents by the petitioner to establish his claim to show his appointment. A photo stat copy of the dispatch register dated 12.10.1990 and 15.10.1990 and true copy of the list of the working period of the District Basic Education officer, Basti are being filed herewith and marked as Annexure Nos.2 and 3 to this Supplementary counter affidavit.
6. That the photo stat copy of the alleged orders Dt. 22.6.1990 and 13.10.1990, which have been submitted by the petitioner are being filed as Annexure No.4 to this Supplementary counter affidavit. It is further stated that both the alleged orders dated 22.6.1990 and 13.10.1990 have been alleged to be issued by Sri Banke Singh, the then District Basic Education Officer, Basti. But prior to that date i.e. 7.7.1990 he was relieved from the post of District Basic Education Officer, Basti, therefore the said orders dated 22.6.1990 and 13.10.1990 are not genuine. Rather these are forged and fabricated documents.
8. That the contents of paragraph 4, 5, 6, 7, 8 and 9 of the Supplementary Counter Affidavit are wholly misconceived hence not admitted in the manner as stated. In reply it is submitted that the post creation dated 12.08.1988 is a letter issued by the respondents and it cannot be alleged as a forged letter otherwise Ram Sagar, Smt. Anjani Devi and Sri Kalideen Yadav similarly situated teachers could not have been released salary.
11. That the contention made is paragraph 5 of the Supplementary Counter Affidavit is not a correct facts and the annexure no.S.C.A.2, 3 and 5 are also manipulated records. The order dated 29.09.2001 and 17.09.2001 are ante dated which were never served and the petitioner were never served and the petitioner were never given any opportunity of hearing while passing these orders.
14. Thus, the sole basis of appointments/ approval of the petitioner "A" are the letters dated 22.06.1990 and 13.10.1990 allegedly issued by one Sri Banke Singh, the District Basic Education Officer, Basti, which are reproduced below:
Letter dated 22.06.1990
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Jh jke I;kjs yky
d`f"k i;Zos{kd]
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i=kad f'[email protected]@89&90 fnukad 22-6-1990
fo"k;%& p;u lfefr esa foHkkxh; i;Zos{kd dh fu;qfDr ds lEcU/k esa
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izcU/kd ljnkj iVsy ckcwjke oekZ lektoknh y?kq ek/;fed fo|ky;] vejksyh 'kqekyh] cLrh esa fnukad& 25-6-90 dks lgk;d v/;kidksa dks fu;qfDr gsrq lk{kkRdkj dh frfFk fu/kkZfjr dh xbZ gSA vkidks bl lk{kkRdkj esa foHkkxh; i;Zos{kd ds in ij fu;qfDr fd;k tkrk gSA
d`i;k fo|ky; ij le; ls igaqpdj lk{kkRdkj esa Hkkx ysa] rFkk lsok fu;ekoyh ds vuqlkj dk;Zokgh djsaA
Hkonh;]
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ftyk csfld f'k{kk vf/kdkjh
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i`"Bkadu f'[email protected]@89&90 fnukafdr [email protected]
izfrfyfi izcU/kd ljnkj iVsy ckcwjke oekZ lektoknh y0ek0 fo|ky; vejksyh 'kqekyh] cLrh dks lwpukFkZ ,oa vko';d dk;Zokgh iszf"krA
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Letter dated 13.10.1990
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ljnkj iVsy ckcwjke oekZ lekt oknh y?kq ek0 fo|ky;
vejksyh lqekyh] cLrhA
i=kad f'[email protected] @ 90&91 fnukad 13 vDVwcj 1990
fo"k;%& v/;kidksa ds vuqeksnu ds lEcU/k esaA
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mi;qDr fo"k;d vki ds i= fnukad 12-7-90 ds lkFk layXu izcU/k lfefr ds izLrko fnukad 26-6-90 ds lkFk izkIr v/;kidksa ds fooj.k ,oa lEcaf/kr vfHkys[kksa ds voyksduksijkUr v/;kidksa ds dh xbZ fu;qfDr ds vk/kkj ij vkns'k fuxZr dh frfFk ls ,d o"kZ ds ijh{k.k dky ij vuqeksnu iznku fd;k tkrk gSA fo|ky; vuqnkfur ugha gSA
vr% vuqokfnr gksus rd osru Hkqxrku dh ftEesnkjh izcU/k ra= ij gksxk ,oa vizf'kf{+kr v/;kidksa dks ikWp o"kZ ds Hkhrj izf'kf{kr djk;k tk;A
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3-
Jh erh vUtuh nsoh
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7-
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8-
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9-
Jh vEcjh'k pUnz
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l0 v0
vizf'kf{kr osru dze
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Jh jktsUnz izlkn
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Jh jkftr jke
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Hkonh;
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[email protected]
15. The clear averments made in paragraph-5 of the supplementary counter affidavit that the aforesaid Sri Banke Singh, the District Basic Education Officer, Basti was posted on 07.07.1989 and he continued there till 12.06.1990, has neither been disputed nor denied by the petitioner "A". Similarly, the statement of fact that the aforesaid alleged two letters of approval bearing dispatch No.1819 of 1989-90 and No.2536 dated 13.10.1990 were not dispatched from the office for the reasons mentioned in the afore-quoted paragraph of the supplementary counter affidavit, has also not been specifically denied in the supplementary rejoinder affidavit. This leaves no manner of doubt that both the letters are forged. That apart in the M.R. also the name of the petitioner "A" does not find mention. The alleged post creation order dated 12.08.1988 has also been stated by the respondent to be forged. In paragraphs 15 and 16 of the counter affidavit, the respondent No.6 (Manager) has stated that post creation order dated 12.08.1988 and approval order dated 13.10.1990 are prior to August, 2011 and as such, he has no knowledge about it for reason that he was not manager before 25.08.2011. The respondent No.6 also stated that he made repeated efforts to get the original record of the order dated 12.08.1988 but he could not get it as the outgoing principal of the Institution has not handed over the original copy of the order dated 12.08.1988. In supplementary counter affidavit dated 20.04.2014 filed on behalf of respondent Nos.4 and 5 in Writ-A No.7243 of 2001, it has been stated in paragraphs 5, 6, 9, 10 and 11 as under:
"5. That it is further stated that Sri Ram Sagar, Sri Kalideen, Sri Rajaram Singh and Smt. Anjani Devi have not challenged the order dated 27.12.1988, by which their claims were rejected. It is relevant to point out here that the Manager of the Institution has annexed the building map of the Institution and from perusing of the same at that point of time i.e. in the year of 1992 only 3 Classes were running in the institution. A photocopy of the Manager's Return submitted by the Manager of the Institution, is being filed herewith and marked as Annexure-1 to this affidavit.
6. That on the basis of the document annexed in the Manager's Return, the Institution was taken in grant in aid by Government Order dated 22.03.1996 w.e.f. 01.04.1966. It is relevant to point out here that from perusal of the Manager's Return, it appears that the appointment of Sri Ram Sagar, Sri Kalideen, Sri Rajaram Singh and Smt. Anjani Devi were disapproved and the petitioner of the present writ petition was not on the role of the Institution therefore no order was passed in favour of the petitioner for payment of salary.
9. That so far the first order dated 22.06.1990, is concerned the same is forged and fabricated document on the ground that Sri Banke Singh was relived from the post of District Basic Education Officer, Basti on 12.06.1990, and on the same date i.e. 12.06.1990, Sri Vishwanath Ram has joined his duty as District Basic Education Officer, District - Basti thereafter on 22.06.1990 Sri Banke Singh was not working as District Basic Education Officer Basti.
10. That so far the dispatched of the alleged order dated 22.06.1990, which was alleged to be dispatched through dispatch no.1819 is concerned it is stated that the dispatch no.1819 was used by the Office of the answering respondents on 24.05.1990, by which the letter was issued in favour of Sri Abdul therefore the said dispatch could not be used on 22.06.1990 and apart from this on 21.06.1990 the dispatch no.2183 was used. A photocopy of the dispatch register of 24.05.1990 and 21.06.1990 are being collectively filed herewith and marked as Annexure No.3 to this affidavit.
11. That the alleged order dated 13.10.1990, which was alleged to be dispatch through dispatch no.2536 is concern the same was used on 12.07.1990 for communication to the Manager Janta Laghu Madhyamik Vidyalay Deheri, District Basti and on 13.10.1990 no letter was dispatched from the office of answering respondent on the ground that 13.10.1990 was second Saturday therefore no letter was dispatched from the office of the answering respondents The 14.10.1990 was Sunday. The last letter was dispatched on 12.10.1990 from 4498-100 and thereafter the next letter was dispatched through dispatch no.4501-02 on 15.10.1990. A photocopy of the dispatch register dated 11.07.1990, 12.10.1990 and 15.10.1990 are being collectively filed herewith and marked as Annexure No.4 to this affidavit."
16. Perusal of the facts as stated in the counter affidavit, supplementary affidavits and rejoinder affidavit as afore-quoted leaves no manner of doubt that the basis of appointment of the petitioner "A" are the letters/ orders dated 12.08.1988, 22.06.1990 and 13.10.1990, which all were found to be forged. The order dated 22.06.1990 bears dispatch No.1819 and is shown by the petitioners to have been issued by one Sri Banke Singh, the District Basic Education Officer, Basti while the aforesaid District Basic Education Officer, Basti was transferred and relieved on 12.06.1990. A letter bearing dispatch No.1819 was issued to one Sri Abdul and not in the matter of the petitioners. Likewise, the order/ letter dated 13.10.1990 has also been shown to have been issued by the aforesaid Sri Banke Singh while he was transferred and relieved on 12.06.1990. Thirteenth October 1990 was holiday being second Saturday. This letter also does not find mention in the dispatch register. The dispatch number which could have been available on 13.10.1990, was 4501 while the aforesaid alleged letter dated 13.10.1990 shows the dispatch No.2536. Thus, all these orders/ letters being foundation of the appointment of the petitioner "A", have been found to be forged. This leads to an irresistible conclusion that the claim of the petitioner "A" is based on forged and fabricated piece of papers. Factual position as stated in the counter affidavit/ supplementary counter affidavit with respect to these three orders/ letters could not be specifically denied by the petitioners. In paragraphs 9 and 10 of the counter affidavit filed on behalf of the District Basic Education Officer, Basti on 10.01.2013, it has again been reiterated that the alleged order dated 12.08.1988 and the alleged approval order dated 13.10.1990 are forged.
17. In the case of Vodafone International Holdings BV Vs. Union of India and another, (2012) 6 SCC 613 (paras 323, 331) Hon'ble Supreme Court considered the effect of adoption of colourable devices and held as under:
"323. McDowell has emphatically spoken on the principle of Tax Planning. Ranganath Mishra, J. on his and on behalf of three other Judges, after referring to the observations of S.C. Shah, J. in CIT v. A. Raman and Co. AIR 1968 SC 49, CIT v. B. M. Kharwar (1969) 1 SCR 651, the judgments in Bank of Chettinad Ltd. v. CIT, (1940) 8 ITR 522, Jiyajeerao Cotton Mills Ltd. v. CIT, Bombay AIR 1959 SC 270; CIT v. Vadilal Lallubhai (1973) 3 SCC 17 and the views expressed by Viscount Simon in Latilla v. IRC, (1943) AC 377 : 25 TC 107 (HL) stated as follows:
(McDowell and Co. Ltd. V. CTO, (1985) 3 SCC 230, SCC pp.254-55, para 45)
"45. Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges."
331. Reddy, J., we have already indicated, himself has stated that he is entirely agreeing with Mishra, J. and has only supplemented what Mishra, J. has stated on tax avoidance, therefore, we have to go by what Mishra, J. has spoken on tax avoidance. Reddy, J. has depreciated (sic deprecated) the practice of setting up of tax avoidance projects, in our view, rightly because the same is/was the situation in England and Ramsay (W.T.) Ltd. v. IRC, 1982 AC 300 and other judgments had depreciated the tax avoidance schemes. In our view, the ratio of the judgment is what is spoken by Mishra, J. for himself and on behalf of three other judges, on which Reddy, J. has agreed. Reddy, J. has clearly stated that he is only supplementing what Mishra, J. has said on Tax avoidance."
(Emphasis supplied by me)
18. In the case of United India Insurance Company Ltd. V. B.Rajendra Singh and others, JT 2000(3)SC.151, considering the consequences of fraud, Hon'ble Supreme Court held in paragraph 3 as under :
"Fraud and justice never dwell together". (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that "no judegment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702).
(Emphasis supplied by me)
19. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court defined fraud and considered the effect of fraud and misrepresentation and held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.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 representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
(Emphasis supplied by me)
20. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". 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. 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 by me)
21. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10 as under :
"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
(Emphasis supplied by me)
22. Similar principles with regard to fraud have been laid down by Hon'ble Supreme Court in the case of JT 2005(6) SC 391, para 7 to 15, JT 2007(4) SC 186, para 19 to 39, JT 2009(9) SC 365, para 22 and 23, JT 2008 (3) SC 452, para 12.3 to 15, JT 2009(5) SC 278, para 13 to 18 and 28 and JT 2008(8) SC 57.
23. Thus the law in case of appointment obtained fraudulently is well settled. The order of approval obtained by the petitioner 'A' was based on forged papers. Therefore, the impugned order dated 17.09.2001 cancelling the order of approval cannot be interfered. Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppal against the employer/ authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppal against the employer to cancel such appointment or approval since "Fraud and justice never dwell together."
Writ-A No.29352 of 2012
24. The petitioners "B" claim that their appointments are based on another order dated 27.08.1988, a copy of which has been filed as Annexure-RA-1. In the counter affidavit and supplementary counter affidavit, the District Basic Education Officer, Basti has not made any comment in this regard but reiterated the similar stand as taken by him in Writ-A No.7243 of 2001. Under the circumstances, the matter of the petitioners "B" deserves to be examined by the respondent No.1 at first instance and a final order with respect to their claim that their appointment is genuine and not forged, needs to be passed.
25. In view of the above discussion, Writ-A No.7243 of 2001 is dismissed.
26. The Writ-A No.29352 of 2012 is disposed of giving liberty to the petitioners to make a detailed representation before the respondent No.1 within four weeks from today along with a certified copy of this order and if such a representation is made by the petitioners within the stipulated period, a speaking and reasoned order in accordance with law shall be passed by the respondent No.1 within next eight weeks, after affording reasonable opportunity of hearing to the petitioners without being influenced by any of the observations made in the body of this order.
Order Date :- 20.11.2017
NLY
