Orissa High Court
Anita Behera vs Collector on 6 February, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) No. 8716 of 2020
In the matter of an application under Articles 226 and 227
of the Constitution of India.
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Anita Behera ..... Petitioner
-Versus-
Collector, Puri and others ..... Opp. Parties
For Petitioner : Mr. K.P. Mishra, Sr. Advocate
along with M/s. L.P. Dwivedy,
S. Rath, A. Mishra and
K. Hussain, Advocates.
For Opp. Parties : Mr. A.K. Mishra,
Addl. Government Advocate
[O.Ps. 1 to 4]
M/s. D.N. Pattanaik and
S.K. Patel, Advocates [O.P.5]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of Hearing: 30.01.2023 :: Date of Judgment : 06.02.2023
DR. B.R. SARANGI,J. The petitioner, having been disengaged from
the post of Anganwadi Worker of Kialanda Anganwadi
Centre under the CDPO, Deleng of the district of Puri, has
invoked the extraordinary jurisdiction of this Court by
means of this writ petition seeking to recall the order dated
27.01.2020 passed by this Court in W.P.(C) No. 26347 of
2017 under Annexure-4, and to issue direction to the State-
opposite parties to give engagement to the petitioner as
Anganwadi Worker of the said centre by making a
declaration that she was lawfully engaged.
2. The factual matrix of the case, in a nutshell, is
that pursuant to an advertisement issued in the year 2006,
one Mamatanjali Biswal was appointed as Anganwadi
Worker in Kialanda Anganwadi Centre of Puri district on
20.12.2008, but subsequently she resigned from her post
on 15.01.2009. The opposite party no.5, on 19.08.2009,
preferred an appeal bearing AWW Misc. Appeal Case No. 23
of 2009 before the Sub-Collector, Puri with a prayer to
engage her in the post of Anganwadi Worker of the said
centre. But the said appeal was rejected vide order dated
23.11.2017 by the Sub-Collector, Puri. Consequentially, a
fresh advertisement was issued for engagement of
Anganwadi Worker in respect of Kialanda Anganwadi Centre
vide notification no. 720 dated 30.11.2017 of the CDPO,
Delang. Pursuant to such advertisement, the petitioner
applied for and by following due procedure of selection she
was appointed as Anganwadi Worker in Kialanda
Anganwadi Centre under Delang in the district of Puri, vide
appointment order no. 805 dated 28.12.2017 passed by the
CDPO-opposite party no.4, in which post the petitioner
joined and continued.
2.1 On 15.10.2017, opposite party No.5 filed a writ
petition bearing W.P.(C) No. 26347 of 2017 seeking to quash
the decision of the Sub-Collector dated 23.11.2017 passed
in AWW Misc. Appeal Case No. 23 of 2009. Though there
was a subsequent advertisement dated 30.11.2017, the
same was not challenged nor was the petitioner made a
party either before the Sub-Collector, Puri or before this
Court. This Court, vide order dated 27.01.2020, came to a
conclusion that the order dated 23.11.2017 passed by the
Sub-Collector in AWW Misc. Appeal Case No. 23 of 2009 in
rejecting the claim of the opposite party no.5 to give her
engagement as Anganwadi Worker, though she stood
second in the merit list, cannot be sustained, inasmuch as
while rejecting the claim of opposite party no.5 the
authority had lost sight of the judgment of this Court in
Sukanti Jena v. State of Odisha, 2013 (1) OLR 391.
Consequentially, the order dated 23.11.2017 passed by the
Sub-Collector was quashed and direction was given to
consider the case of opposite party no.5 in the light of the
judgment passed by this Court in the case of Sukanti Jena
(supra) and extend the benefit to the petitioner by giving
engagement to her as Anganwadi Worker in respect of
Kialanda Anganwadi Centre in place of Mamatanjali Biswal,
who had resigned from the post, as opposite party no.5
stood 2nd in the merit list, and three months time was
granted for compliance of the said order. Hence, by way of
this writ petition, the petitioner seeks for recall of order
dated 27.01.2020 passed in W.P.(C) No. 26347 of 2017 and
issuance of direction to the State-opposite parties to allow
her to continue in her post, in which she had joined on
being duly selected in pursuance of the notification dated
30.11.2017.
3. Mr. K.P. Mishra, learned Senior Advocate
appearing along with Mr. S. Rath, learned counsel for the
petitioner vehemently contended that the order dated
27.01.2020 passed in W.P.(C) No. 26347 of 2017 cannot be
sustained as the same has been done behind the back of
the petitioner and also playing fraud on the Court. It is
further contended that opposite party no.5 had suppressed
the material facts before this Court, inasmuch as, it was
known to her that, after the resignation of Mamatanjali
Biswal, a fresh advertisement was issued on 30.11.2017, in
pursuance of which the petitioner participated in the
process of selection and on being duly selected she was
appointed. But opposite party no.5, claiming to be stood 2nd
in the merit list prepared, pursuant to the advertisement
made in the year 2006, preferred an appeal on 19.08.2009
before the Sub-Collector, Puri bearing AWW Misc. Appeal
Case No. 23 of 2009, which was rejected by order dated
23.11.2017 and against the said order she approached this
Court by filing W.P.(C) No. 26347 of 2017 on 15.12.2017.
By that time, even though the fresh advertisement had
already been issued on 30.11.2017, opposite party no.5 did
not challenge the said advertisement nor participated in the
selection process. Not only that, even though the petitioner
was selected and appointed in pursuance of the fresh
advertisement, she was not made a party to the said case.
Thereby, this Court on a bona fide belief taking into
consideration the pleadings made by opposite party no.5
passed the order on 27.01.2020.
3.1 It is further contended that there was a deliberate
and willful act on the part of opposite party no.5 not to
implead the petitioner as a party to the case and not to
bring to the notice of this Court the subsequent
developments took place before filing of the writ petition
against the order passed by the Sub-Collector rejecting her
claim to be appointed being stood 2nd in the merit list
prepared in the year 2006. It is further contended that the
claim of the opposite party no.5 for appointment, as she
stood 2nd in the merit list prepared pursuant to the
advertisement issued on 20.12.2008, cannot have a
subsisting right to continue for years together depriving the
benefit admissible to the petitioner pursuant to the fresh
advertisement issued. The rejection of the claim of the
opposite party no.5 by the Sub-Collector is based on the
Government Circular No. 145/SWCD dated 02.05.2007,
which stipulates the guidelines for engagement of
Anganwadi Worker and also provides appeal provision etc.
It is further contended that a writ petition was preferred by
the opposite party no.5 on 15.12.2017 bearing W.P.(C) No.
26347 of 2017. By that time, the notification for fresh
recruitment had been made on 30.11.2017. As such,
opposite party no.5 had not challenged such notification,
even though said notification had also been given effect to
by publishing the merit list by selecting the petitioner for
appointment. Thereby, the order so passed by this Court on
27.01.2020 in W.P.(C) No. 26347 of 2017 be recalled and
the petitioner be allowed to continue in service.
To substantiate his contentions, learned Senior
Advocate appearing for the petitioner has placed reliance on
the case of Renubala Jena v. State of Orissa, CLT (2008)
Supp. 699 and Pohla Singh @ Pohla Ram (D) by Lrs. v.
State of Punjab, (2004) 6 SCC 126.
4. Mr. A.K. Mishra, learned Additional Government
Advocate appearing for the State-opposite parties contended
that the order dated 23.11.2017 passed by the Sub-
Collector, Puri in AWW Misc. Appeal No. 23 of 2009, having
been quashed vide order dated 27.01.2020 passed by this
Court in WP(C) No. 26347 of 2017 and direction having
been issued to the authority to consider the case of opposite
party no.5-Gitanjali Mohapatra in the light of the judgment
of this Court in the case of Sukanti Jena v. State of
Odisha, 2013 (1) OLR 391, the benefit has been extended to
opposite party no.5 by giving her engagement as Anganwadi
Worker of Kialanda Anganwadi Centre in place of
Mamatanjali Biswal @ Patnaik who had resigned from the
post, as opposite party no.5 stood 2nd in the merit list.
4.1 It is further contended that appointment of the
petitioner as Anganwadi Worker has not been denied and,
as such, the factual matrix has not been disputed by the
State. However, the Sub-Collector, Puri, after examining the
matter thoroughly and observing the Government
Guidelines issued vide G.O. dated 02.05.2007, passed the
order dated 23.11.2017 disallowing the appeal of opposite
party no.5. His contention is that pursuant to the order
dated 23.11.2017 passed in AWW Misc. Appeal Case No. 23
of 2009, the process of selection was made observing the
government guidelines and after approval of the selection
committee headed by the Sub-Collector, Puri in its meeting
held on 28.12.2017 the petitioner was selected for
engagement of Anganwadi Worker for Kialanda Anganwadi
Centre and accordingly she was engaged vide order dated
28.12.2017, in pursuance of which she joined on
29.12.2017. Aggrieved by the selection of the petitioner,
opposite party no.5 filed a writ petition bearing W.P.(C) No.
26347 of 2017 seeking for quashing of the order dated
23.11.2017 passed by the Sub Collector rejecting the claim
of the opposite party no.5 for engagement as Anganwadi
Worker and this Court, vide order dated 27.01.2020,
quashed the order dated 23.11.2017 of the Sub Collector,
Puri and directed to extend the benefit to opposite party
no.5 by giving her engagement as Anganwadi Worker in
respect of Kialanda Anganwadi Centre. As the order dated
27.01.2020 passed by this Court was not complied with,
opposite party no.5 preferred CONTC No.1635 of 2020 and
this Court, vide order dated 10.06.2020, disposed of the
aforesaid contempt petition with a direction to the State-
opposite parties to comply the order dated 27.01.2020
within a period of three months, if not complied with by that
time. Thereby, in obedience to the order dated 27.01.2020
passed in W.P. (C) No.26347 of 2017 and order dated
10.06.2020 passed in CONTC No.1635 of 2020, the Sub-
Collector, Puri, vide order dated 04.08.2020 passed in AWW
Misc. Appeal Case No.23 of 2009, directed the opposite
party no.4 to disengage the petitioner as Anganwadi Worker
from Kialanda Anganwadi Centre and appoint opposite
party no.5 as Anganwadi Worker in respect of Kialanda
Anganwadi Centre subject to final order of W.P.(C) No.8716
of 2020 and I.A. No.3775 of 2020, and the said order dated
04.08.2020 having been communicated to the opposite
party no.4, the petitioner was disengaged from the post of
Anganwadi Worker in respect of Kialanda Anganwadi Centre
and opposite party no.5 was appointed as Anganwadi
Worker in the said centre vide office order dated
23.09.2020. Since the present writ petition bearing W.P.(C)
No. 8716 of 2020 and I.A. No.3775 of 2020 are pending for
adjudication, engagement order has been issued in favour
of opposite party no.5 subject to outcome of this writ
petition.
4.2 It is further contended that even though the
petitioner was selected by following a fresh advertisement,
this fact was not brought to the notice of this Court while
adjudicating the matter in W.P.(C) No. 26347 of 2017 and
consequential contempt petition bearing CONTC No. 1635
of 2020. Had this fact been brought to the notice of this
Court, the order dated 27.01.2020 would not have been
passed, in view of subsequent developments took place this
case. Thereby, it is contended that the order dated
27.01.2020 should be re-visited once again, in view of the
subsequent developments taken place in this case, which
were not brought to the notice of this Court and, as such,
due to suppression of material facts, such order was passed
by this Court.
5. Mr. D.N. Pattnaik, learned counsel appearing on
behalf of opposite party no.5 vehemently contended that
pursuant to the advertisement issued in the year 2006, one
Mamatanjali Biswal was appointed on 20.12.2008 as
Anganwadi Worker in respect of Kialanda Anganwadi Centre
having secured 53.23% of mark. In the merit list, the
opposite party no.5 stood second having secured 52.25% of
mark. Mamatanjali Biswal, after her marriage, resigned
from the post on 15.01.2009. The opposite party no.5, being
stood second in the merit list, should have been given
appointment in place of Mamatanjali Biswal. But the Sub-
Collector, Puri, vide order dated 23.11.2017 passed in AWW
Misc. Appeal Case No. 23 of 2009, directed the CDPO,
Delang for issuance of fresh notification, instead of giving
appointment to opposite party no.5. Challenging the said
order, opposite party no.5 filed W.P.(C) No. 26347 of 2017
and this Court, while entertaining the writ petition, on
05.01.2018 issued notice and passed an interim order in
Misc. Case No. 22631 of 2017 that any action pursuant to
the order of the Sub-Collector dated 23.11.2017 shall
remain subject to the result of the writ petition. It is further
contended that after receiving instructions from the
Government, the matter was heard and consequentially the
order dated 27.01.2020 was passed in the writ petition.
Thereby, there was no suppression of fact nor any fraud
was played by opposite party no.5 on the Court so as to
pass an order on 27.01.2020. Due to non-compliance of the
order passed on 27.01.2020, opposite party no.5 filed
CONTC No. 1635 of 2020, which was disposed of vide order
dated 10.06.2020 directing opposite party no.1 to comply
the order dated 27.01.2020, if not already complied with. In
compliance to the said order, engagement order was issued
in favour of opposite party no.5 by cancelling engagement of
the petitioner. Thereby, no illegality or irregularity has been
committed by opposite party no.5 so as to get an
engagement as Anganwadi Worker in compliance of the
order passed by this Court and consequentially claims that
the writ petition should be dismissed. To substantiate his
contention, reliance has been placed on the decision of this
Court in the case of Sukanti Jena v. State of Odisha,
2013 (I) OLR 391.
5. This Court heard Mr. K.P. Mishra, learned Senior
Counsel appearing along with Mr. S. Rath, learned counsel
for the petitioner, Mr. A.K. Mishra, learned Additional
Government Advocate appearing for the State-opposite
parties and Mr. D.N. Pattnaik, learned counsel appearing
for opposite party no.5 in hybrid mode and perused the
record. The pleadings have been exchanged between the
parties and with the consent of learned Counsel for the
parties, the writ petition is being disposed of finally at the
stage of admission.
6. On careful consideration of the pleadings
available on the records of this case and the rival
contentions raised by the learned counsel appearing for the
respective parties, the following issues are formulated for
effective adjudication of this case.
(i) Whether the present writ petition to recall the final
order passed in W.P.(C) No. 26347 of 2017 is
maintainable at the instance of the present
petitioner, who was not a party to W.P.(C) No.
26347 of 2017 filed by opposite party no.5 and
who was continuing in the post of Anganwadi
Worker of Kialanda Anganwadi Centre in the
district of Puri in pursuance of the subsequent
advertisement and selection made by opposite
parties no. 1 to 4?
(ii) Whether the order dated 27.01.2020 has been
passed by this Court in WP(C) No. 26347 of 2017
owing to suppression of material facts or not
approaching the court with clean hands or playing
fraud on the Court by the opposite party no.5 and
if so whether on account of the same opposite
party no.5 is entitled to get the relief as has been
directed vide order dated 27.01.2020?
7. Issue No.(i).
While entertaining the present writ petition, this
Court, on 13.03.2020, passed the following orders:-
"Heard Mr. S. Rath, learned counsel for the
petitioner and Mr. A.K. Mishra, learned Addl.
Government Advocate.
To recall the order passed in another writ
petition, the present writ petition is maintainable or
not, learned counsel for the petitioner seeks time to
satisfy this Court on the next occasion by citing
some judgment.
List after one week."
7.1 Again, on 27.05.2020, this Court passed the
following orders:-
"Heard Mr. S. Rath, learned counsel for the
petitioner.
In compliance of the order dated 13.03.2020,
learned counsel for the petitioner produces a
judgment passed by the Supreme Court in Pohla
Singh @ Pohla Ram (D) by Lrs. And others v. State
of Punjab and others, (2004) 6 SCC 126 and
contended that the writ petition is maintainable.
Put up this matter after one week along with
W.P.(C) No.26347 of 2017 disposed of on
27.01.2020."
7.2 By virtue of the order dated 27.05.2020, this
Court directed to place the records of W.P.(C) No. 26347 of
2017, which was filed by opposite party no.5. On perusal of
the cause title, it is evident that the present petitioner was
not made a party to the said writ petition. The opposite
party no.5, who stood second in the merit list prepared
pursuant to the advertisement made in the year 2006, after
resignation of Mamatanjali Biswal who stood first in the
merit list, filed AWW Misc. Appeal Case No. 23 of 2009
claiming to be appointed as Anganwadi Worker. But the
said appeal was rejected by the Sub-Collector, Puri vide
order dated 23.11.2017. Thereafter, the fresh advertisement
was issued on 30.11.2017 and opposite party no.5 filed
W.P.(C) No. 26347 of 2017 on 15.12.2017. Though the
advertisement was made on 30.11.2017, the same was not
challenged by opposite party no.5 and pursuant to such
advertisement the petitioner was selected and engaged. The
engagement of the petitioner has also not been challenged
either before the Sub-Collector, Puri or before this Court in
W.P.(C) No. 26347 of 2017 and without impleading the
present petitioner as a party, opposite party no.5 persuaded
for disposal of W.P.(C) No. 26347 of 2017. Therefore, on
16.07.2020, this Court passed the following order:-
This matter is taken up through video
conferencing.
Heard Mr. S. Rath, learned counsel for the
petitioner and Mr. A.K. Mishra, learned Addl.
Government Advocate.
The petitioner has filed this application to recall the
order dated 27.01.2020 passed by this Court in
W.P.(C) No. 26347 of 2017 in Annexure-4 and
further seeks for direction to the opposite parties to
appoint her as Anganwadi Worker in Kialanda
Anganwadi Centre, Delanga, Puri.
Mr. S. Rath, learned counsel for the petitioner
contended that the petitioner was not a party to
W.P.(C) No. 26347 of 2017, which was disposed of
on 27.01.2020. in other words, without impleding
the petitioner as a party, the said writ petition had
been filed. As such, rights of the petitioner having
been affected, she has filed this writ application to
recall the order dated 27.01.2020. It is contended
that if the petitioner has not been made party in the
said writ petition, at her instance, the order dated
27.01.2020 can be recalled. This Court, vide order
dated 13.03.2020, called upon the petitioner to
satisfy the Court with regard to maintainability of
the writ petition. To that extent the petitioner
produced the judgment of the apex Court in Pohla
Singh @ Pohla Ram (D) by Lrs. and others v. State
of Punjab and others (2004) 6 SCC 126.
This Court is of the opinion that the matter
requires consideration.
Issue notice.
Four extra copies of the writ petition be
served on Mr. A.K. Mishra, learned Addl.
Government Advocate, who appears for opposite
parties no. 1 to 4, within three days enabling him
to obtain instruction in the matter.
Steps to serve notice on the opposite party
no. 5 by registered post with A.D. be taken within
three days. Office shall send notice fixing a short
returnable date.
As an interim measure, it is directed that
any action taken in the meantime shall abide by
result of this case."
7.3 In the judgment rendered in Pohla Singh
(supra), which has been relied upon by the petitioner, the
apex Court held that the 2nd writ petition filed by the
appellants for recall of the decision passed in earlier writ
petition in which they were not made parties and the
decision in the earlier writ petition is adversely affecting the
interest of the appellants, in such circumstances, the 2nd
writ petition at their instance is maintainable. Applying the
said principle to the present context, the present writ
petition at the instance of the petitioner, who was not a
party to the earlier writ petition, and since the decision
taken in the earlier writ petition, i.e., W.P.(C) No. 26347 of
2017 disposed of on 27.01.2020m adversely affects the
interest of the petitioner, is held to be maintainable.
Therefore, the issue no.1 is answered in affirmative in
favour of the petitioner.
8. Issue No.(ii).
There is no dispute before this Court that
pursuant to the advertisement issued in the year 2006 for
the selection of Anganwadi Worker in respect of Kialanda
Anganwadi Centre, one Mamatanjali Biswal was selected
having secured highest mark and the present opposite party
no.5 had secured 2nd highest mark. Basing on such select
list, Mamatanjali Biswal was given engagement on
20.12.2008, pursuant to which she joined and continued in
the post. As Mamatanjali Biswal resigned from her post on
15.01.2009, opposite party no.5 claiming to be stood 2nd in
the merit list preferred an appeal bearing AWW Misc.
Appeal Case No. 23 of 2009 before the Sub-Collector, Puri,
on 19.08.2009, praying for her engagement in the post of
Anganwadi Worker in place of Mamatanjali Biswal. But the
said appeal was rejected vide order dated 27.11.2017 by the
Sub-Collector, Puri. To fill up such vacancy a fresh
advertisement was issued on 30.11.2017. Aggrieved by the
order dated 27.11.2017 passed by the Sub-Collector, Puri,
the opposite party no.5 filed W.P.(C) No. 26347 of 2017 on
12.12.2017. Though by that time the advertisement had
already been issued, opposite party no.5 did not choose to
challenge such advertisement issued on 30.11.2017. Not
only that, pursuant to such advertisement, even though the
petitioner was selected and given engagement order, in
response to which she joined and continued in the post,
opposite party no.5 did not prefer to impleaded the present
petitioner as an opposite party to the said writ petition. The
State also did not file any counter affidavit bringing to the
notice of this Court the subsequent developments taken
place in the matter in W.P.(C) No. 26347 of 2017. When
neither the State nor opposite party no.5 apprised this
Court with regard to engagement of the petitioner, W.P.(C)
No. 26347 of 2017 was disposed of on 27.01.2020 directing
to extend the benefit to opposite party no.5 in terms of the
judgment rendered in Sukanti Jena (supra). Thereby, it is
loud and clear that the order dated 27.01.2020 was passed
by this Court due to gross suppression of material facts by
the parties, which amounts to playing fraud on the Court.
In other words, opposite party no.5 had not approached this
Court by filing W.P.(C) No. 26347 of 2017 with clean hands.
Even, for non-compliance of the order dated 27.01.2020,
opposite party no.5 had filed CONTC No. 1635 of 2020 on
26.05.2020. At that point of time also, neither opposite
party no.5 nor the State authorities brought to the notice of
this Court with regard to the engagement of the present
petitioner in the said post. Therefore, in compliance of the
order dated 27.01.2020 passed in W.P.(C) No. 26347 of
2017 and the consequential order dated 10.06.2020 passed
in CONTC No. 1635 of 2020, when the Sub-Collector, Puri
took steps for disengagement of the petitioner, she raised
objection before the authority, but the same was not
acceded to because of the orders passed by this Court.
8.1 It is of relevance to note that against the interim
order passed on 16.07.2020 in I.A. No. 3775 of 2020,
arising out W.P.(C) No. 8716 of 2020, to the effect that any
action taken by that time shall abide by the result of this
case, the petitioner filed W.A. No. 571 of 2020, which has
been disposed by the Division Bench on 14.10.2020.
Therefore, disengagement of the petitioner, while issuing
engagement order in favour of opposite party no.5, shall be
subject to result of this writ petition.
8.2 It is therefore made clear that after disposal of
AWW Misc. Appeal Case No. 23 of 2009 on 23.11.2017 by
the Sub-Collector, Puri, a fresh advertisement was issued
on 30.11.2017. The same was not challenged by opposite
party no.5 in W.P.(C) No. 26347 of 2017. Pursuant to such
advertisement, opposite party no.5 did not participate in the
process of selection and the petitioner having been selected
was engaged as Anganwadi Worker of the centre in
question. The petitioner, even though was a necessary
party, was not impleaded as an opposite party in W.P.(C)
No. 26347 of 2017 filed by opposite party no.5. This fact
was also not brought to the notice of this Court, while
passing the order dated 27.01.2020 in W.P.(C) No. 26347 of
2017, either by opposite party no.5 or by the State, which
amounts to suppression of material facts before this Court.
Under the circumstances, the very conduct of opposite
party no.5 appears to be doubtful and it is deemed that
opposite party no.5 had not approached this Court with
clean hands.
8.3 In R. v. Kensington, Income Tax
Commissioner, (1917) 1 KB 486 at page 506, as regards
expressing distorted facts before the Court and not
approaching with clean hands, it has been held as follows:
"The prerogative writ is not a matter of course; the
applicant must come in the manner prescribed and
must be perfectly frank and open with the Court."
8.4 In State of Haryana v. Karnal Distillery, AIR
1977 SC 781, the apex Court refused to grant relief on the
ground that the applicant had misled the Court.
8.5. In Chancellor v. Bijayananda Kar, AIR 1994
SC 579, the apex Court held that a writ petition is liable to
be dismissed on the ground that the petitioner did not
approach the Court with clean hands.
8.6 Taking into consideration the above judgments,
this Court, in Netrananda Mishra v. State of Orissa,
2018 (II) OLR 436, came to a conclusion in paragraph-26 of
the said judgment and held as under:-
"............. For suppression of facts and having not
approached this Court with a clean hand, the
encroacher is not entitled to get any relief,
particularly when the valuable right accrued in
favour of the petitioner is being jeopardized for last
43 years for no fault of him, on which this Court
takes a serious view. ........"
8.7 Therefore, applying the above ratio to the present
context, this Court is of the considered view that by giving
distorted facts in W.P.(C) No. 26347 of 2017 the opposite
party no.5 had tried to mislead the Court and, as such, she
had not come to this Court with clean hands. Therefore, she
was not entitled to get any relief.
8.8. Neither opposite party no.5 nor the State had
intimated this Court, while adjudicating W.P.(C) No. 26347
of 2017, with regard to subsequent developments, i.e.,
issuance of advertisement, selection of the present
petitioner and her engagement as Anganwadi Worker. This
clearly tantamount that opposite party no.5 had perpetrated
fraud on the Court to get relief in the said writ petition.
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 the dictionary meaning
or even otherwise fraud arises out of the deliberate active
role of the 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.
8.9 In a leading English case i.e. Derry v. Peek,
(1886-90) All ER Rep 1 : (1889) 14 AC 337 : 61 Lt 265 (HL)
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."
"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 me into the easy-hearted
man and trap him into snares".
8.10 In Lazarus Estates Ltd. v. Beasley, (1956) 1 QB
702 : (1956) 1 All ER 341 : (1956) 2 WLR 502 (CA) 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."
8.11 In Smt Shrisht Dhawan v. Shaw Brothers.,
AIR 1992 SC 1555, the apex Court held as under:-
"Fraud and collusion vitiate even the most solemn
proceedings in any civilized system of
jurisprudence. It is a concept descriptive of human
conduct"
8.12 In S.P. Chengalvaraya Naidu v. Jagannath,
(1994) 1 SCC 1, the apex Court held as follows:
"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."
8.13 In Andhra Pradesh State Financial
Corporation v. M/s. GAR Re- Rolling Mills & Anr, AIR
1994 SC 2151; and State of Maharashtra & Ors. v.
Prabhu, (1994) 2 SCC 481, the apex Court observed that a
writ Court, while exercising its equitable jurisdiction,
should not act as to prevent perpetration of a legal fraud as
the Courts are obliged to do justice by promotion of good
faith. "Equity is, also, known to prevent the law from the
crafty evasions and sub-letties invented to evade law."
8.14 In United India insurance Co. Ltd. v. Rajendra
Singh & ors., (2000) 3 SCC 581, the apex Court observed
that "Fraud and justice never dwell together" (fraus et jus
nunquam cohabitant) and it is a pristine maxim which
has never lost its temper over all these centuries.
8.15 In Ram Chandra Singh v. Savitri Devi, (2003)
8 SCC 319, the apex Court held as follows:
""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 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."
8.16 In K.D. Sharma v. SAIL, (2008) 12 SCC 481, the
apex Court held as follows:
"Fraud is an act of deliberate deception with the
design of securing something by taking unfair
advantage of another. In fraud one gains at the loss
and cost of another. Even the most solemn
proceedings stand vitiated if they are actuated by
fraud. Fraud is thus an extrinsic collateral act which
vitiates all judicial acts, whether in rem or in
personam."
8.17 The apex Court in Elektrim SA v. Vivendi
Universal SA, (2010) 8 SCC 383 while considering Section
17 of Contract Act, 1892 held as follows:
"Fraud is an intrinsic, collateral act, and fraud of an
egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud is an act of
deliberate deception with a design to secure
something, which is otherwise not due. The
expression "fraud" involves two elements, deceit
and injury to the person deceived. It is a cheating
intended to get an advantage."
8.18 It is settled proposition of law that where an
applicant gets an order by making misrepresentation or
playing fraud upon the competent authority, such order
cannot be sustained in the eye of the law. Fraud and justice
never dwell together (fraus et jus nunquam cohabitant) and it
is a pristine maxim which has never lost its temper over all
these centuries. The ratio laid down by the Supreme Court
in various cases is that dishonestly should not be permitted
to bear the fruit and benefit to the persons who played
fraud or made misrepresentation and in such
circumstances the Court should not perpetuate the fraud.
8.19 The ratio laid down by the Supreme Court in
various cases is that dishonesty should not be permitted to
bear the fruit and benefit to the persons who played fraud/
or made misrepresentation/ or has been the beneficiary of
manipulation though not played any fraud or
misrepresentation himself. In such circumstances, the
Court should not perpetuate the fraud by entertaining the
petitions on their behalf. In Union of India & Ors. v. M.
Bhaskaran, 1995 Suppl. (4) SCC 100, the apex Court, after
placing reliance upon and approving its earlier judgment in
District Collector & Chairman. Vizianagaram Social
Welfare Residential School Society, Vizianagaram &
Anr. vs. M. Tripura Sundari Devi, (1990) 3 SCC 655,
observed as under:-
"If by committing fraud any employment is
obtained, the same cannot be permitted to be
countenanced by a Court of Law as the
employment secured by fraud renders it voidable
at the option of the employer."
Similar view has been reiterated by the apex Court in S.
Partap Singh v. State of Punjab, AIR 1964, 1 SC 72; Ram
Chandra Singh v. Savitri Devi & Ors.. (2003) 3 SCC 319:
and Vice Chairman, Kendriya Vidyalaya Sangathan &
Anr. vs. Girdharilal Yadav, (2004) 6 SCC 325.
8.20 The Common-Law 'doctrine of public policy' can
be enforced wherever an action affects/offends public
interest or where harmful result of permitting the injury to
the public at large is evident.
8.21 More so, if initial action is not in consonance with
law, the subsequent conduct of a party cannot sanctify the
same. "Subla Fundamental credit opus"- a foundation
being removed, the superstructure falls. A person having
done wrong cannot take advantage of his own wrong and
plead bar of any law to frustrate the lawful trial by a
competent court, Nullus Commodum capere Protest De
Injuria Sua Propria. (Vide Union of India & Ors vs.
Major General Madan Lal Yadav (Retd.), AIR 1996 SC
1340). The violators of law cannot be permitted to urge that
their offence cannot be subject-matter of inquiry, trial or
investigation, (Vide Lily Thomas & Ors. Vs. Union of
India & ors., JT 2000 (5) SC 617).
8.22 In S.J.S. Business Enterprises (P) Ltd v. State
of Bihar, (2004) 7 SCC 166, the apex Court at paragraph-
13 of the judgment observed that as a general rule,
suppression of a material fact by a litigant disqualifies such
litigant from obtaining any relief. The suppressed fact must
be a material one in the sense that had it not been
suppressed it would have had an effect on the merits of the
case. It must be a matter which was material for the
consideration of the Court, whatever view the Court may
have taken.
8.23 In Collector of Customs v. Tin Plate Co. of
India Ltd., (1997) 10 SCC 538, while considering Section
28 (1) of Customs Act, the apex Court held that the
expression 'suppression of facts' would mean a deliberate or
conscious omission to state a fact with the intention of
deriving wrongful gain.
8.24 In view of the settled position of law, as discussed
above, and applying the same to the present case, the
opposite party no.5 cannot take advantage of the order
dated 27.01.2020 passed in W.P.(C) No. 26347 of 2017, as
by suppressing the material facts, not approaching the
Court with clean hands and perpetrating fraud on the
Court, she had got the writ petition disposed of in her
favour depriving of the petitioner, who had been selected
pursuant to the fresh advertisement issued against the
consequential vacancy of Mamatanjali Biswal, to continue
in her service. As such, admittedly opposite party no.5 had
not participated in the fresh selection conducted by the
authority. Therefore, she cannot take any advantage of
being stood second in the earlier selection held in the year
2006, because tenure of the list, which had been prepared
pursuant to the advertisement issued in the year 2006, was
lost after the same was given effect to by appointing one
Manatanjali Biswal, who stood first in the merit list.
8.25 So far as the case of Sukanti Jena (supra) is
concerned, on which reliance has been placed by opposite
party no.5, this Court had considered the select list of five
candidates in which Sasmita Behera was declared selected
as Anganwadi Worker for the Anganwadi Centre in
question, whereas the petitioner had secured second
highest mark. When the person who had secured highest
mark was disengaged, the question came up for
consideration whether the petitioner who had secured
second highest mark is entitled to be issued with the order
of engagement or the CDPO shall go for fresh
advertisement. Answering to the same, this Court held that
the question of issuing fresh advertisement does not arise
and the selection should be confined to remaining four
candidates and the petitioner, having secured the second
highest mark and the rest three candidates having not
challenged the select list prepared by the selection
committee, is entitled to be issued with the order of
engagement as Anganwadi Worker. The ratio decided in
Sukanti Jena (supra) has no application to the present
case, in view of the fact that in this case fresh
advertisement was issued and the selection having been
conducted the petitioner was selected and appointed as
Anganwadi Worker for the centre in question. As because
the list, which had been prepared, had lost its force the day
the second advertisement was issued. Even though opposite
party no.5 had filed an appeal, the same was also rejected
prior to issuance of the advertisement on 30.11.2017.
Therefore, the ratio decided in Sukanti Jena (supra) has no
application to the present case. May it be noted that
opposite party no.5, while disposing of the writ petition on
27.01.2020, had sought relief relying upon the case of
Sukanti Jena (supra), which cannot be sustained. As such
the order dated 27.01.2020, having been passed due to
suppression of material facts by opposite party no.5, cannot
be allowed to stand and, as such, opposite party no.5,
having coming to the Court with unclean hands, was not
entitled to get any relief, since she had perpetrated fraud on
the Court.
8.26 In the case of Sukanti Jena (supra), reliance
was placed on Renubala Jena (supra), but the latter
judgment is squarely applicable to the case of the petitioner,
where it has been held that it is the settled proposition of
law that where an applicant gets an order/office by making
misrepresentation or playing fraud upon the competent
authority, such order cannot be sustained in the eye of law.
In view of the foregoing discussions, the issue no.(ii) is
answered in favour of the petitioner.
9. Since both the issues have been answered in
favour of the petitioner and against opposite party no.5, this
Court is of the considered view that as the petitioner was
selected by following fresh advertisement issued on
30.11.2017 and opposite party no.5 had not participated in
the process of selection pursuant to such advertisement,
the petitioner got engaged and continued in service, but
because of the order dated 27.01.2020 passed by this Court
in W.P.(C) No. 26347 of 2017 she suffered the injury of
disengagement and opposite party no.5 got advantage of
getting engagement. The wrong done by opposite party no.5
cannot be at her benefit and, therefore, she cannot be
allowed to continue in the post and as a consequence
thereof she should be disengaged/removed from the post of
Anganwadi Worker of Kialanda Angawadi Centre under the
CDPO, Delang of the district of Puri, which she is holding
by virtue of the order dated 27.01.2020 passed in W.P.(C)
No. 26347 of 2017 and the consequential order dated
10.06.2020 passed in CONTC No. 1635 of 2020. The
petitioner shall be immediately reinstated in her post as
Anganwadi Worker of Kialanda Angawadi Centre under the
CDPO, Delang of the district of Puri and shall be allowed to
continue in service. The continuity of service shall be
granted to the petitioner for the purpose of seniority, but
she will not be entitled to get any remuneration for the
period she has not discharged her duty, as because
opposite party no.5 was gainfully employed during that
period. The entire exercise shall be completed within a
period of ten (10) days from the date of communication of
this judgment.
10. In the result, the writ petition is allowed. The
order dated 27.01.2020 passed in W.P.(C) No. 26347 of
2017 is hereby recalled. W.P.(C) No. 26347 of 2017, which
has been listed along with this case for reference, stands
dismissed. However, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
Orissa High Court, Cuttack
The 6th February, 2023, Arun/GDS
