Irshad Ahmad Sheikh vs Islamic University Of Science &
2023 Latest Caselaw 26 j&K/2

                                                                    Sr. No.
         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                                              WP(C) No. 550/2021
                                              CM No. 1689/2021
                                              CM No. 6720/2021 c/w
                                              WP(C) No. 1893/2020
                                              CM No. 5726/2020

                                              Reserved on: 11.11.2022.
                                              Pronounced on: 02.02 .2023.

Irshad Ahmad Sheikh                                 .....Appellant(s)/Petitioner(s)


                       Through: Mr. Bhat Fayaz, Advocate.

                  Vs


Islamic University of Science &                                ..... Respondent(s)
Technology and Ors.

                       Through: Mr. Asif Maqbool, Dy. AG.
                                Mr. Manzoor A. Dar, Advocate for R-1 & 2 in
                                WP(C) No. 1893/2020.
                                Mr. Malik Mushtaq, Advocate (Contesting
                                respondent).


Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                  JUDGMENT

The instant petitions raise issues interconnected, analogous and akin

to each other, as such, are being disposed of by this common judgment.

WP(C) No. 1893/2020

(1) Facts as emerging from the petition

 The respondents issued a notification in March 2016 inviting online

applications from eligible candidates for participation in examination for

award of Junior Research Fellowship (JRF) and for determining the

eligibility for appointment of Lectures (NET) in subjects falling under the

WP(C) No. 1893/2020

faculty of Science and Technology. The petitioner applied in the response

to the notification for grant of Lectureship of NET in Mathematical

Science. The petitioner participated in the examination under Roll No.

432411and came to be provided Question Booklet Series-C.

 The result of the examination came to be declared in the month of

November-December 2016 and petitioner shown to have not qualified

having secured 47.38% marks against the cut-off merit of 49.39%.

 The petitioner is stated to have submitted objections to the declaration

of result in respect of answers indicated in the answer key uploaded by the

respondents on their website and sought correction of the answer of

Question No. 75 in the Question Booklet Series-C, whereafter the

petitioner came to be asked to submit an opinion of experts from different

three institutes which opinion is stated to have been submitted on

12.12.2016 unanimously opining therein that the answer to the Question

No. 75 is option „B‟ & „C‟, thus, suggesting the key of the respondents for

evaluation of answer to the Question No. 75 not correct.

 The respondents are stated to have assured the petitioner for effecting

necessary correction upon re-evaluation in his result which is stated to

have not been done by them despite submitting of multiple representations

by him and upon the failure of the respondents, the instant petition came

to be filed by the petitioner for commanding the respondents to treat the

answer given to Question No. 75 given by the petitioner as correct in view

of the opinion of the experts and consequentially re-evaluate the answer

WP(C) No. 1893/2020

script of the petitioner and issue relevant certificate for Lectureship (NET)

in his favour.

(2) Objections to the petition have been filed by the respondents, wherein it is

being admitted that the petitioner appeared as an examinee under general

category in response to the notification issued by the respondents for

conducting of eligibility for Lectureship and that the said examination came

to be held on 19.06.2016, wherein a total number of 136039 candidates

appeared and upon evaluation of the answer sheets electronically, results

came to be declared on 07.10.2016 showing the petitioner to have obtained

94.75 marks corresponding to 47.38% being below than the cut-off fixed for

general category for both Junior Research Fellowship (JRF) and Lectureship

being 54.88% and 49.39% respectively, as a result whereof the petitioner did

not qualify the said examination.

It is being further stated that the assertion of the petitioner for

re-evaluation of his answer book on the plea of wrong key is factually and

legally wrong, while it is being admitted that a representation came to be

received by the respondents from the petition with respect to Question No. 75

of Series-C and Question No. 72 of Series-A and upon examination and on

the basis of expert opinion, the representation so submitted were found to

have no merit, thus, not necessitating any change in answer key of the

questions.

It is being further stated that in order to ensure that there are no errors

with respect to either the question papers or the answer key, representations

were invited by the respondents from the candidates from 15.07.2016 upto

WP(C) No. 1893/2020

20.07.2016 and after considering the said representations, so received, an

exercise came to be undertaken post conduct of examination but before final

declaration of the results whereupon the no merit was found in the said

representations and consequently results of the examination came to be

declared on 07.10.2016.

It is being denied that the petitioner was asked by the respondents to

submit opinion of experts in connection with the issue of Question No. 75 as

the respondents are stated to have their own subject experts who set the

questions and provide opinions. The assertion in this regard made by the

petitioner is stated to be self-made and self-serving with a view to derive

undue benefit by resorting to unfair means.

It is being further stated that in response to the representation

submitted by the petitioner along with the opinion of his three experts was

responded through an e-mails dated 01.11.2016 and 23.12.2016 informing

the petitioner that the question and answer key was reviewed by the experts

and after proper review, the original answer was found to be correct.

It is being further stated that the respondents after period of four years

thereafter received letters dated 08.12.2020 and 15.12.2020 along with an

e-mail dated 06.01.2021 from one Dr. Bilal Ahmad Chat, Assistant

Professor, IUST-TEQIP informing the respondents about the petitioner‟s

selection as Assistant Professor at ISTU and false information submitted by

him about his having qualified NET examination as also a withdrawal letter

issued by one Professor M. A. Khanday, Associate Professor, Department of

WP(C) No. 1893/2020

Mathematics, University of Kashmir, Srinagar whose opinion as an expert

came to be submitted by the petitioner in respect of Question No. 75.

It is being reiterated in the objections that the petitioner stands

conveyed that there is no scope for reviewing the answer key post declaration

of result and denied the assertion made by the petitioner and that the

petitioner did not qualify the examination.

WP(C) No. 550/2021

(3) Facts as emerging from the petition

 The petitioner states to have applied against the post of Assistant

Professor (Mathematics) advertised by official respondents vide

Advertisement Notice No. 02 of 2019 dated 20.02.2019.

 The petitioner after participating in the process of examination came

to be selected and appointed in terms of Order No. 96 (Est.) of 2020 dated

13.11.2020.

 The petitioner states to have applied for extension of time for

submitting his joining report and even submitted the same through an

e-mail.

 The selection of the petitioner is stated to have been questioned by the

respondent 3 herein in WP(C) No. 1835/2020.

 The petitioner states to have reflected in his application form while

seeking his selection and appointment against the post in question as NET

qualified, when in fact, had failed by one mark as the answer of one of the

question had been wrongly shown in the key by the respondents resulting

WP(C) No. 1893/2020

into filing of a writ petition by the petitioner being WP(C) No. 1893/2020

upon failure of the respondent to effect correction in the result.

 On account of pendency of the petition being WP(C) No. 1893/2020

as also a representation claimed to have been submitted thereof by the

petitioner for correction of the marks in respect of the alleged wrong key

of the question, the petitioner states to have expressed inability to submit

certificate of NET pass before the respondents in as much as also states to

have sought consideration of his case for appointment on the basis of JK-

SET examination being equivalent to NET examination on account of

change of rules and that he had also sought consequently permission to

join against the post in question.

 The petitioner states to have submitted his joining report letter before

the respondents having not been accepted by the respondents till the NET

certificate is not submitted.

 A notice is stated to have been issued to the petitioner by the

respondents calling him upon to submit his joining report along with his

documents on 08.01.2021, which notice is stated to have been questioned

along with an earlier notice issued on 29.12.2020 by the petitioner before

this Court in WP(C) No. 550/2021, which petition, however, came to be

withdrawn with liberty to file fresh on 15.01.2021.

 The petitioner states to have filed a suit thereafter against aforesaid

notices dated 29.12.2020 and 08.01.2021 before to Judge Small Causes

Srinagar. which suit is stated to have been returned back to the petitioner

for want of jurisdiction on 16.01.2021 by the said Court, whereafter the

WP(C) No. 1893/2020

said suit is stated to have been filed by the petitioner before the Court of

Special Mobile Magistrate Pulwama and an interim relief granted initially

therein is stated to have been subsequently vacated.

 It is being stated that the respondents without caring for the pendency

writ petition filed by the respondent 3 herein against the

selection/appointment of the petitioner, the respondents issued impugned

Order No. 15 (Est.) of 2021 dated 05.03.2021 without with one hearing

the petitioner and cancelled his appointment ab initio and consequently

appointed respondent 3 herein against the post in question.

 The petitioner besides seeking quashment of the impugned order in

the instant petition has also averred that in the light of the University

Grants Commission (UGC) guidelines and criteria for shortlisting of

candidates for the post of Assistant Professor, the petitioner was entitled

to 77.25 marks after excluding his NET marks and that the petitioner, as

such, ought to have been appointed as against the respondent 3 here

having secured only 76.5 marks and that the respondents misused their

official position in the process detrimental to the petitioner while

cancelling his appointment on one hand and appointing respondent 3

herein on the other hand with inferior merit than that of the petitioner.

(4) Objections to the petition have been filed by respondents 1 and 2, wherein

it is averred that the petitioner knowing that he has not qualified the NET

examination intentionally played fraud and misled the answering respondents

while seeking his selection/appointment against the post in question claimed to

have qualified NET examination in the year 2017. The petitioner is stated have

WP(C) No. 1893/2020

intentionally declared himself a successful candidate concealing his NET results.

The petitioner is stated to have submitted his academic details in the application

form showing to have qualified NET examination in the year 2017 from Council

of Scientific & Industrial Research (CSIR) having fraudulently assessed himself

to have obtained 94 marks out of 200. The petitioner in the process of selection

along with 36 eligible candidates is stated have been screened by the

respondents and awarded 5 marks for the NET examination claimed to have

been passed by the petitioner and consequently got selected and appointed.

It is being further stated that the petitioner while submitting his

application form had furnished a declaration in terms of clause (XV) in the said

application form providing that all the statements made in the application are

true, complete and correct and that the petitioner provisionally came to be

allowed to appear in the process of selection/interview on 24.09.2020 and

consequently got selected and appointed in terms of Order No. 96 (Est.) of 2020

dated 13.11.2020 which order in specific terms required the petitioner to join by

or before 27.11.2020, subject to production of original certificates/testimonials

at the time of joining.

It is being submitted that the period of joining of the petitioner at his

request came to be extended upto 23.12.2020, even whereafter the petitioner

failed to join and instead submitted a representation stating therein that he is not

able to produce NET certificate as the same is subjudice before the Court and

made a further request therein that the NET marks awarded to him may be

withdrawn. The petitioner is stated to have submitted another representation

WP(C) No. 1893/2020

thereafter stating therein that due to typing error he had wrongly mentioned in

the application form to be NET qualified.

It is being further stated that in response to an e-mail dated

31.12.2020 for joining addressed by the petitioner the respondents

communicated to the petitioner through an e-mail that his joining cannot be

entertained through e-mail as he has to join in person and further time was

granted to the petitioner to join within ten days along with all documents in

original.

It is being admitted that the petitioner filed a civil suit before Sub

Judge Pulwama calling in question notices dated 29.12.2020 and 08.01.2021 and

that the interim order granted by the said court initially in his favour came to be

vacated on 25.02.2021 upon contesting of the said suit by the respondents

herein.

It is also being stated that the petitioner cannot either claim violation

of principles of natural justice or else wrong assessment of the marks between

him and respondent 3 in presence of manifest glaring act of fraud,

misrepresentation and deceit in the light of the judgment of the Apex Court

passed in the case of "Bhaurao Dagdu Paralkar Vs State of Maharashtra

and Ors." reported in 2005 (7) SCC 605," (supra).

It is being further stated in the objections that the point awarded to the

petitioner by the screening committee in the process of selection are based on

over all academic credentials/qualifications and also taking into account NET

qualification of the petitioner which NET qualification, however, subsequently

was found to be fraudulently mentioned by the petitioner in his application form

WP(C) No. 1893/2020

as reflected in the result/marks statement issued by the Council of Scientific &

Industrial Research (CSIR) reflecting the rank and result of the petitioner as

not qualified.

It is being lastly reiterated by the respondents in the objections that

the appointment of the petitioner came to be cancelled validly and legally, more

so in view of the fact that the petitioner played fraud while claiming to have

qualify NET examination, and that seeking of withdrawal of NET qualification

by the petitioner after his selection and appointment secured through fraud

cannot be allowed in presence of the application form consciously filed by the

petitioner and intentionally and fraudulently providing therein to have qualified

NET examination.

(5) It is significant to note here that the objections filed to the instant petition

by the respondents are being stated to be objection to the WP(C) No. 1893/2020

(supra) as well.

Heard learned counsel for the parties and perused the record.

(6) Having regard to the plea of fraud alleged against the petitioner by the

respondents, the fundamental moot question that begs consideration of this

Court would be as to whether exercise of extraordinary writ jurisdiction

enshrined in Article 226 of the Constitution would be warranted in the matter.

(7) The term "fraud" has been elaborately considered, analyzed and dealt with

by the Apex Court in case titled as "Bhaurao Dagdu Paralkar Vs State of

Maharashtra and Ors." reported in 2005 (7) SCC 605, wherein para at 09, 10,

11, 12, 14, 15 and 16 following has been laid down.

"09. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from

WP(C) No. 1893/2020

ill will towards the other is immaterial. The expression "fraud"

involves two elements, 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 and 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 call 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.

10. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage.

11. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. 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. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. 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.

12. In Shrisht Dhawan v. Shaw Bros., it was observed as follows (SSC p, 553, para 20) "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Camus, who exulted in his ability to, "wing

WP(C) No. 1893/2020

me into the easy hearted man and trap him into snares". It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Law Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act, 1872 defines "fraud" as an act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of the deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 B-C)

"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".......

14. Suppression of a material document would also amount to a fraud on the court.

15. "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 the former either by words or letter. Although negligence is not fraud but

WP(C) No. 1893/2020

it can be evidence on fraud; as observed in Ram Preeti Yadav case.

16. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at QB pp. 712 and 713 (ALL ER p. 345 C)

"No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."

In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (page 722) These aspects were recently highlighted in the State of A. P. v. T. Suryachandra Rao (2005 (5) SCALE 621)."

(8) Keeping in the mind the aforesaid principles and prepositions of law and

adverting to the case/s in hand, this is an admitted fact that the petitioner while

seeking his consideration for selection/appointment against the post of

Lectureship in the application form annexed as Annexure R-II with the

objections filed by the respondents 1 and 2 to the petition WP(C) No. 550/2021

explicitly provided at clause 8 in the column of academic details as under:-

S.    Degree/      Stream/   Admission Passing Obtained Maximum         Mode        Board/

No. Examination Programme       Year     Year     Marks     Marks                University



8.     NET          NET         2017     2017     94.00     200.00     Regular      CSIR

Whereas perusal of the marks statement Annexure R-I annexed with

the objections filed by respondents 1 and 2 to WP(C) No. 550/2021 (supra)

clearly reflect that the petitioner under Roll No. 432411 has been declared as

not qualified both in rank and result. The said marks statement relates to the test

for Lectureship (NET) of 19th of June 2016.

WP(C) No. 1893/2020

(9) The petitioner admittedly in the application form submitted in response to

the advertisement notice dated 20.02.2019 reflected knowingly and intentionally

himself to have passed NET examination in the year 2017 having obtained 94.00

marks as a regular mode. Record reveals that on the registration date of

application 19.03.2019, the petitioner indisputably had not qualified the NET

examination. The petitioner manifestly has secured his selection and

appointment by resorting to fraudulently means and being conscious of said fact

chose to maintain WP(C) No. 1893/2020 supra joining an issue therein about

Question No. 75 though admitting therein the said petition that he did not

qualify the said NET examination. The petitioner not only has taken recourse to

the filing of WP(C) No. 1893/2020 supra in this regard but seemingly also

sought extension of time for submitting his joining report against the post in

question and subsequently sought to withdraw the so called qualification of NET

examination on the basis of so called typographical error while praying for

allowing him to join against the post in question. The petitioner in the process

has continued to justify his uncalled for conduct and approach while filing

WP(C) No. 550/2021 supra before this Court against the notices issued to him

for joining the post and upon the withdrawal of the same proceeded to file a civil

suit before Judge Small Causes Srinagar and upon its return before Special

Mobile Magistrate Pulwama. The petitioner knowingly and deliberately

committed the acts of deception with the design of securing his selection and

appointment against the post in question and such an act cannot but said to be a

fraud and cheating committed by the petitioner thus rendering the selection and

appointment in question void ab initio.

WP(C) No. 1893/2020

(10) Even otherwise the claim/s lodged and reliefs prayed by the petitioner in

WP(C) No. 1893/2020 supra otherwise also are misconceived in as much as not

capable of being granted to the petitioner in view of the case set up by the

respondents in opposition to the said petition that the representation of the

petitioner qua Question No. 75 of Booklet Series-C stands considered by the

experts and consequently held without any merit, more so, in view of settled

position of law that such a matter cannot be adjudicated upon by this Court for

being not an expert on the subject.

(11) It is significant to note here that perusal of the record of WP(C) No.

1835/2020 supra filed by the respondent 3 herein against the selection of the

petitioner herein reveals that same stands dismissed in default on 22.11.2021.

(12) For all that has been discussed and considered in the preceding paras, the

writ petitions entail dismissal. Accordingly, the writ petitions are dismissed with

costs of Rs. 20,000/- payable by the petitioner to respondent 3.

(Javed Iqbal Wani) Judge

Srinagar 02.02.2023 Bunty Whether the order is speaking : Yes Whether the order is reportable : Yes