Sharad Kumar Kulshrestha vs The Principal Sri Devatraya ...
2017 Latest Caselaw 7226 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34                            
 
Case :- WRIT - A No. - 48314 of 1999
 

 
Petitioner :- Sharad Kumar Kulshrestha
 
Respondent :- The Principal Sri Devatraya Adarsh Inter College & Others
 
Counsel for Petitioner :- G.C. Gehrana, Hitesh Pachori, S.P.Singh, Vinod Sinha
 
Counsel for Respondent :- C.S.C.,I.R. Singh
 

 
Hon'ble Sudhir Agarwal, J.

1. Pursuant to order of date passed on Restoration Application, writ petition is restored to its original number.

2. As requested and agreed by counsel for parties, I proceed to hear and decide this case at this stage.

3. Heard Sri S.P Singh for petitioner. Learned Standing Counsel is present for State Respondents.

4. This writ petition is directed against order dated 22.10.1999, passed by respondent-4, Joint Director of Education (Intermediate), Meerut Region, Meerut, cancelling order of regularization dated 19.9.1995, regularising petitioner on the post of Lecturer, Physics.

5. It appears from facts averred in writ petition that there was a leave vacancy on the post of Lecturer, Physics, in Adarsh Inter College, Karnvas, District Bulandshahr (hereinafter referred to as 'College'). Petitioner was appointed by Committee of Management of College on 1.3.1986 on ad hoc basis. It is also not disputed by learned counsel for petitioner that procedure laid down in Second Removal of Difficulties Order, 1981 read with Section 18 of U.P. Secondary Education Service Commission and Selection Board Act, 1981 (hereinafter referred to as Act, 1981") was not followed. Initially appointment of petitioner was made for one year and thereafter it was continued. Leave vacancy became substantive on 1.6.1989 since Teacher holding lien on the said post namely, Khachermal Sharma resigned from the post on 1.6.1989. In view of provisions of Second Removal of Difficulties Order, 1981, a short term appointment would have to cease as soon as short term vacancy became substantive and, therefore, petitioner would have ceased to work.

6. It appears that a Writ Petition no. 11459 of 1989 was filed before this Court but this fact was not disclosed therein that short term vacancy has become substantive and due to non-disclosure of aforesaid fact, this Court passed following order on 5.6.1989 :

"Meanwhile the services of the petitioner as ad-hoc teacher shall not be dispensed with with till the leave vacancy continues or any regular candidate becomes available for appointment or services of the petitioner are terminated in accordance with law which ever is earlier.

7. Subsequently, this writ petition was dismissed on 29.10.1996. It further appears that since petitioner was already terminated on 8.8.1989 before passing the aforesaid order by this Court, he filed another writ petition no.17325 of 1989 which also was dismissed as infructuous on 29.10.1996.

8. During pendency of the above two writ petitions, in view of insertion of Section 33-B in Act 1981, petitioner made a request for regularization and thereupon an order of regularization was passed on 29.9.1995 . A complaint was made that regularization in collusion with Management of the College. The matter was examined by Joint Director of Education and impugned order dated 22.10.1999 was passed, observing that regularization order was a result of concealment of material facts, fraud and misrepresentation.

9. This Court has repeatedly held that Recruitment of Teachers has to be made in accordance with procedure prescribed in Act 1981 and as and when vacancy is notified to Commission/Board, and no recommendation is made by the Board or Commission, ad hoc appointment can be made by virtue of Section 18 read with Removal of Difficulties Order, by following the procedure laid down therein and if ad hoc appointment is made without following the aforesaid procedure, it is void ab inito and would not confer any right upon the incumbent either to hold the post or to claim salary. This rule of law was laid down by Supreme Court in Prabhat Kumar Sharma & Others Vs. State of U.P. & Others, A.I.R. 1996 SC 2638 and Shesh Mani Shukla Vs. D.I.O.S., Deoria & Others, JT 2009 (10) SC 309.

10. Learned counsel for petitioner submitted that the order could not have been set aside by Joint Director of Education but by Regularization Committee. 11. We find no force in this submission. When initial order of appointment itself is illegal and void ab inito for non-compliance of statutory provisions,this Court would not interfere with the impugned order or go into question of validity thereof. Once it is evident that the appointment of petitioner was illegal and fraudulent, no question of indulgence granting any relief to petitioner would arise for the simple reason that fraud vitiates everything. If that is so, question of considering the order cancelling fraudulent order, whether having passed in accordance with law, may not be necessary to be considered since the very basis on which the appointment is claimed by an incumbent is a nullity in the eyes of law and once the very basis of the right of an incumbent goes, the subsequent order passed by the authority of mere declaration of such fraudulent order to be illegal would not confer any life to such fraudulent order if the subsequent order passed by the authority even if found to be not in accordance with law.

12. 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".

13. In the same judgment, Lord Parkar-CJ said:

"Fraud vitiate all transactions known the law to whatever high degree of solemnity".

14. 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".

15. 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."

16. 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."

17. 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....."

18. 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.

19. 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."

20. It is well settled that where an order of appointment is wholly illegal and void ab initio, neither the principles of natural justice would be attracted in such a case nor any irregularity in the order passed by the authorities concerned declaring the fraudulent orders to be illegal would make it valid for any purpose whatsoever.

21. Even otherwise, the petitioner having invoked equitable extraordinary jurisdiction of this court under Article 226 of the Constitution cannot seek the revival of an illegal order by stressing that since the order cancelling such illegal order is in violation of principle of natural justice or without reason, therefore, this court is under an obligation to revive an illegal order of his appointment. It is well settled that this Court shall be justified in refusing to grant any indulgence in a case where setting aside of an order would result in revival of another illegal order.

22. A Division Bench of this Court in Union of India through the controller General of Defence Account & Ors. Vs. Jeevan Shukla & Anr., 2008 (5) AWC 4430 All, said:

"We are therefore of the opinion that in substance and in the entirety of the facts and circumstances the Tribunal was justified in directing petitioners to pay retiral benefits to respondent no. 1. The order impugned in the present writ petition passed by the Tribunal warrants no interference though some of the reasons we have given in this judgement to sustain the said order are different from those of the Tribunal. Further the order impugned in the present writ petition has done substantial justice, therefore even otherwise it is not a fit case in which this Court should exercise its discretionary equitable jurisdiction under Article 226 of the Constitution of India." (emphasis added)

23. In Champalal Binani Vs. The Commissioner of Income Tax West Bengal and others, AIR 1970 SC 645 the Apex Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."

24. In Durga Prasad Vs. The Chief Controller of Imports and Exports & others, AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay vs. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13) it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.

25. It would be appropriate to refer at this stage the view expressed by the Apex Court in Municipal Board, Pratapgarh and another Vs. Mahendra Singh Chawla and others 1982(3) SCC 331 wherein it was held:

"........this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its prestine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136"

26. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in our view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the fact and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival of another illegal order, the Court would be justified in refusing to interfere.

27. In Employees' State Insurance Corporation & ors V. Jardine Henderson Staff Association and others AIR 2006 SC 2767 the Apex Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment the Court clearly held that the High Court under Article 226 and the Apex Court under Article 136 read with 142 of the Constitution has the power to mould the relief in the facts of the case.

28. In Ramnik Lal N. Bhutta and another vs. Vs. State of Maharashtra, AIR 1997 SC 1236, the Apex Court observed:

"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point." (Para 10)

29. In State of H.P. Vs. Raja Mahendra Pal & others (1999) 4 SCC 43 in para 6 of the judgment the Apex Court held :

"....It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article...."

30. Similarly, in Director of Settlement Vs. M.R. Apparao (2002) 4 SCC 638 in para 17, Apex Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.

31. In Amrendra Singh Vs. State of U.P. & Ors., 2008 (2) UPLBEC 60, this Court has declined to interfere in intra Court appeal with an order of Hon'ble Single Judge even though legally it was not sustainable since substantial justice has been done therein and setting aside of order may have resulted in revival of another pernicious order.

32. Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including Division Bench Judgement in Smt. Pushpa State Of U.P. & 4 Others R.K. Shukla VS. Chairman Town Area Committee & Another (WRIT - C No. - 35134 of 2015 decided on on 19.6.2015). Suffice it to say that this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous.

33. For what has been said above, this writ petition lacks merit and is accordingly dismissed.

Order Date :- 23.11.2017

Akn

Case :- WRIT - A No. - 48314 of 1999

Petitioner :- Sharad Kumar Kulshrestha

Respondent :- The Principal Sri Devatraya Adarsh Inter College& Others

Counsel for Petitioner :- G.C. Gehrana,Hitesh Pachori,S.P.Singh,Vinod Sinha

Counsel for Respondent :- C.S.C.,I.R. Singh

Hon'ble Sudhir Agarwal, J.

Dismissed.

For details see my judgment of date passed on separate sheets.

Order Date :- 23.11.2017

Akn

Civil Misc. Restoration/Recall Application No. 156695 of 2017

In

Case :- WRIT - A No. - 48314 of 1999

Petitioner :- Sharad Kumar Kulshrestha

Respondent :- The Principal Sri Devatraya Adarsh Inter College& Others

Counsel for Petitioner :- G.C. Gehrana,Hitesh Pachori,S.P.Singh,Vinod Sinha

Counsel for Respondent :- C.S.C.,I.R. Singh

Hon'ble Sudhir Agarwal, J.

1.   This is an application seeking restoration of writ petition after recall of order dated 6.12.2016 whereby writ petition was dismissed for want of prosecution.

2.   Cause shown for non-appearance is sufficient.

3. Order dated 6.12.2016 is hereby recalled and writ petition is restored to its original number.

4. This application, accordingly, stands allowed.

Order Date :- 23.11.2017

Akn