Dr. Rajendra Kumar & Ors vs The Govt. Of Nct Of Delhi
2015 Latest Caselaw 697 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of hearing & Order: January 27, 2015.
+      CM APPL. No. 427/2015 In W.P.(C) 14097-100/2005

       DR. RAJENDRA KUMAR & ORS.              .... Petitioners
                    Through: Ms. Usha Mann & Ms. Vijayata
                             M. Bhalla, Advocates
                    versus

       THE GOVT. OF NCT OF DELHI         ..... Respondent
                     Through: None.
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA

KAILASH GAMBHIR, J. (ORAL)

CM APPL. No. 428/2015 (Condonation of Delay)

By this application filed under Section 5 of the Limitation Act read

with Section 151 CPC, the applicant seeks condonation of delay of 20

days in re-filing the application. For the reason stated in the application,

the same is allowed and the delay of 20 days in re-filing the application is

condoned.

Application stands disposed of.

CM APPL. No.427/2015 in W.P.(C) 14097-100/2005

By this application filed under Articles 215 & 226 of the

Constitution of India read with Section 151 C.P.C., the applicant seeks to

recall and amend the order dated 11.10.2006.

The grievance raised by the applicant in the present application is

that on account of the fraud played by the petitioners, they succeeded in

securing an order dated 11.10.2006 from this Court whereby this Court

while setting aside the order of the learned Tribunal directed the

respondent to consider the case of the petitioners for promotion to the

post of Assistant Directors in their respective disciplines, duly taking into

account the service rendered by them as Senior Scientific Officers (in

short 'SSO'), from the dates of their respective appointment on

deputation for the purpose of fulfilling the condition of 5 years service as

SSO for the post of Assistant Directors. This Court also directed that

these petitioners be considered for notional promotion to the post of

Assistant Directors, falling vacant in their respective discipline, with the

grant of consequential benefits from the date they have been discharging

the functions of Assistant Directors.

As per the applicant, these petitioners are junior to him but they got

the benefits of the order dated 11.10.2006 passed by this Court pursuant

to which these petitioners were given notional promotion on the post of

Assistant Directors vide order dated 03.10.2011.

Ms. Usha Mann, the learned counsel for the applicant vehemently

submits that the applicant was not a party to the present writ petition

being Writ Petition (C) No. 14097-100/2005 and therefore, he had no

opportunity to refute the claim of these petitioners. She also submits that

the applicant acquired locus standi after actual exercise of granting

notional promotion was carried out by respondent No.1 on 03.10.2011

and the final combined seniority list of Assistant Directors was declared

on 19.01.2012. She further submits that these petitioners played fraud

upon this Court by concealing material facts regarding their initial

deputation period of one year not being legally extended under the rules

and stating wrong and misconceived facts that they rendered continuous

services in the regular Grade of SSO and were discharging the duty of

Assistant Directors for the last two and a half years. She also submits that

even the respondent failed to place on record all the material facts relating

to service/ appointment of these petitioners in order to help them and in

this manner both the parties succeeded in misleading the Court. She also

argued that it is a settled legal preposition of law that any judgment, order

or decree obtained by playing fraud on the court is a nullity and non- est

in the eyes of law, and therefore, the applicant has every legal right to

seek justice in the matter by placing on record the correct facts and to

expose the petitioners for playing fraud on the court by misleading and

misrepresenting the facts.

We have heard the learned counsel for the applicant at considerable

length and have given our conscious consideration to the arguments

advanced by her.

As per own case of the applicant, the notional promotion was

granted to the petitioners by respondent No.1 on 03.10.2011 in

compliance with the direction given by this court vide order dated

11.10.2006 and the final combined seniority list of Assistant Directors

was declared on 19.01.2012. This combined final seniority list was

challenged by the applicant in Original Application (in short 'OA')

No.261/2012 before the learned Tribunal and the said OA was dismissed

by the learned Tribunal vide order dated 11.09.2013. This order of the

learned Tribunal was challenged by the applicant herein before this Court

in W.P.(C) No.346/2014. The said Writ Petition preferred by the

applicant was also dismissed vide order dated 26.09.2014. In para 18, the

Division Bench of this Court observed that the dates of promotion prior to

11.02.2009, assigned to the private respondents, was based on the

previous ruling of this Court in Dr. Rajendra Kumar and Ors. v.

GNCTD of Delhi, W.P.C 14097-14100/2005 which was affirmed by the

Supreme Court. The Bench further observed that having regard to the law

declared by the Supreme Court- noticed above- which was in effect the

basis of the reasoning in Dr. Rajendra Kumar (supra), it cannot be held

that such ante- dating was either arbitrary or whimsical. The Bench

further observed that the petitioner (the applicant herein) could not have

claimed any right over and above the private respondents, who entered

FSL as deputationists in the lower grade of SSO, and were later promoted

in accordance with the Rules. For better appreciation, para 18 of the

judgment is reproduced as under:

"18. The records of this case reveal that the dates of promotion prior to 11.02.2009, assigned to the private respondents, were on the basis of the previous ruling of this Court in Dr. Rajendra Kumar (supra) which was affirmed by the Supreme Court. This was done on 03.10.2011, when the official respondents, while implementing the judgment of this Court in W.P.(C) 14097-14100/2005, granted notional promotions to the private respondents in the post of Additional Directors on dates prior to the actual dates of promotion. Having regard to the law declared by the Supreme Court - noticed above- which was in effect the basis of the reasoning in Dr. Rajendra Kumar (supra), it cannot be held that such ante-dating was either arbitrary or whimsical. This court also notes that there is no direct recruit quota per se, provided by the 1998 Rules; rather, it can be resorted to failing other methods, including promotion and deputation. Such being the case, the Petitioner could not have claimed any right over and above the private respondents, who entered FSL as deputationists in the lower grade of SSO, and were later promoted in accordance with the Rules. The assignment of prior dates was necessary to ensure justice to them, for the simple reason that FSL earlier refused to consider their service prior to absorption, for purpose of promotion to Assistant Director."

While addressing the arguments in the present application, the

learned counsel for the applicant has fairly admitted that neither before

the learned Tribunal nor before the Division Bench of this Court, the plea

of fraud on the part of the petitioners, was raised by the applicant. By this

application, the applicant seeks to challenge the order dated 11.10.2006

passed by this Court, which has already attained finality after being

upheld by the Supreme Court. There is no dispute to the legal preposition

that the fraud vitiates even the most solemn transaction and even an

innocent misrepresentation may give reason to give relief against fraud

and that fraud is an anathema to all equitable principles therefore, such a

plea can be raised in any Court at any stage or in any collateral

proceeding, but at the same time the party feeling aggrieved by such

fraud shall also act with all promptness and if it remains complacent and

fails to approach the Court within a reasonable time, it shall be deemed to

have waived his right. Further the Courts entertaining the plea of fraud, at

any belated stage, have to be conscious to examine whether the plea of

fraud raised by the party is based on some strong foundation to satisfy

itself that the fraud played by the other party is writ large on the very face

of it.

In the facts of the present case, the applicant has raised the plea of

fraud on the part of the petitioners neither in OA No.261/2012 nor in Writ

Court being W.P.(C) No. 346/2014 filed by him and having not

succeeded before the learned Tribunal and before this Court, the applicant

has taken this route of challenging the order which was passed by this

Court almost nine years back i.e. on 11.10.2006. As already stated above,

this order has already attained finality after the dismissal of SLP preferred

by the respondent. In the background of these facts, we do not find any

tangible reason to entertain the present application.

In view of the above discussion, we find no merit in the present

application and the same is accordingly dismissed.

KAILASH GAMBHIR, J

I.S.MEHTA, J JANUARY 27, 2015 v