Sita Ram And An Others vs D.M. And Others.
2017 Latest Caselaw 5857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
 
 
Case :- WRIT - A No. - 4740 of 1992
 
 
 
Petitioner :- Sita Ram and Another
 
Respondent :- District Magistrate And Others.
 
Counsel for Petitioner :- D.S.P.Singh,Anil Kumar Bajpai,Jamuna
 
Counsel for Respondent :- S.C.,Ashok Mehta
 
 
 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Anil Kumar Bajpai, learned counsel for petitioners, learned Standing Counsel for respondents and perused the record.

2. Petitioners-Sita Ram and Sri Niwas were appointed on Class-IV post initially on officiating basis vide orders dated 01.10.1991 and 13.01.1991, respectively, passed by District Development Officer, Maharajganj (hereinafter referred to as "D.D.O."). Thereafter, regular selection was held and after recommendation made by Selection Committee, regular appointment was made by D.D.O. vide order dated 13.01.1992.

3. District Magistrate, Maharajganj (hereinafter referred to as "D.M.") vide order dated 16.01.1992 observed that all the appointments made by D.D.O. in the preceding six months are being cancelled and this is the order under challenge on the ground that petitioners were already appointed on regular basis and D.M. has no authority to cancel all the selections without assigning any reason and impugned order is patently erroneous.

4. In the counter affidavit filed by respondents, it has been stated that there was no advertisement of vacancy and no selection was made in accordance with Rules and even no sanctioned post was available, therefore, entire proceedings were false and nothing but a result of fraud. D.M., even otherwise, had directed D.D.O. not to make any appointment.

5. Learned counsel for petitioners could not show that vacancy was ever advertised or vacancy on sanctioned posts were available. The attention of Court was drawn to facts stated in para 3 of counter affidavit referring to statutory rules, i.e., Group 'D' Employees Service Rules, 1985 (hereinafter referred to as "Group 'D' Service Rules, 1985") and procedure prescribed therein for direct recruitment. It is specifically stated that in para 3 of counter affidavit that not advertisement was published for the post of Patrawahak (Messenger) or any other class-IV posts. The advertisement which was published in daily newspaper "Dainik Jagran" dated 05.12.1991 was in respect of Junior Clerk (Typist), Junior Accounts Clerk and Junior Accounts Clerk (N.R.E.P.). Even appointment of Class-III staff was cancelled by D.M. vide order dated 24.12.1991. Court is also informed that Original Suit No. 21 of 1992 was filed in the Court of Munsif, Maharajganj wherein interview for direct recruitment was stayed.

6. Officiating appointment of petitioners-5 and 6 was recommended for approval which was granted on 13.01.1992. At no point of time, any Selection Committee was constituted in accordance with Rule 16 of U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 as amended in 1986 (hereinafter referred to as "Ministerial Rules, 1985"). There is no provision of regularization of such officiating appointment and there was no question for regularization of petitioners under law.

7. When questioned as to whether any advertisement was made and procedure prescribed in Ministerial Rules, 1985 was followed, learned counsel for petitioners could not give any reply. Thus, it is admitted that no valid appointment of petitioners is made and entire orders of alleged regular appointment are nothing but a fraud played by D.D.O. and that would not confer any right upon petitioners. It may also be placed on record that fraud vitiates everything and would not confer any benefit upon the person concerned.

8. 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".

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

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

10. 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".

11. 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."

12. 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."

13. 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....."

14. 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.

15. 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."

16. In view of above discussions, I do not find any merit in the present writ petition. Impugned orders having been resulted in substantial justice and any interference therewith would revive earlier illegal orders and hence also no interference is called for.

17. In Champalal Binani Vs. The Commissioner of Income Tax West Bengal and others, AIR 1970 SC 645, 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."

18. 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.

19. It would be appropriate to refer at this stage the view expressed by the Apex Court in Municipal Board, Pratabgarh 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."

20. 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.

21. 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.

22. 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)

23. 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............"

24. 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."

25. I may also notice at this stage that similar matter arisen from the order dated 16.01.1992 passed by D.M. cancelling all the appointments made by the then D.D.O. has already been considered and decided by this Court and the matter has attained finality upto Supreme Court.

26. In Civil Misc. Writ Petition No. 5512 of 1992 (Krishna Chand Vs. District Magistrate, Maharajganj and others) (2010) 2 UPLBEC 1566, one Krishna Chand appointed as Class-IV employee vide order dated 13.01.1992 by the then D.D.O. challenged the order dated 16.01.1992 passed by D.M. cancelling said appointment. Said writ petition came to be decided by a detailed judgment delivered by the Court (Myself) on 14.12.2010. Court took the view that once appointment has been found illegal it was rightly cancelled and that be so, no further benefit can be allowed to petitioners. Paragraphs 13, 22, 23, 24 of said judgment are reproduced as under:-

"13. In my view 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.

22. 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.

23. 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.

24. In view of the above discussion, I find no merit in the writ petition. Dismissed. No costs."

27. This matter was taken in intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Act, 1952") before a Division Bench of this Court by Krishna Chand in Special Appeal No. 788 of 2010 but the same was dismissed vide judgment dated 13.08.2015. The operative part of judgment of Division Bench reads as under:-

"Rules 19 provides that the appointing authority shall issue an advertisement in local daily newspaper besides pasting the notice for the same on the notice board. Admittedly, advertisement has not been made in the present case for the purpose of the appointment and therefore appointment of the appellant was not in accordance to the procedure provided in Rule 19. It would be appropriate to refer the Rule 32 which has been relied upon by the learned counsel for the appellant which reads as follows;

32. Relaxation from conditions of Service.- Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the Establishment causes undue hardship in any particular case, it may, notwithstanding anything contained, in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.

On perusal of Rule 32, it is clear for the relaxation of any conditions, it is necessary that there should be satisfaction of the State Government and specific order be passed dispensing with or relaxation the requirements of the rule. No order has been produced before us passed by the State Government in exercise of power under Rule 32, therefore, the argument of the learned counsel for the appellant that appointment made on recommendation was valid, has no substance.

In view of above, the appeal is devoid of any merit and is accordingly dismissed."

28. The matter was then taken to Supreme Court in Special Leave to Appeal (C) No. 31851 of 2015 (Krishna Chand Vs. District Magistrate, Maharajganj and others) but it was dismissed vide order dated 23.11.2015.

29. In view of above expositions of law, I do not find any reason to interfere with the order impugned. The writ petition is dismissed accordingly.

30. Interim order, if any, stands vacated.

Order Date :- 27.10.2017

Shubham