Calcutta High Court (Appellete Side)
Mr. Asis Kr. Ray ... For The vs K. B. N. Visweshwar Rao And Others ... on 18 December, 2008
Author: Pratap Kumar Ray
Bench: S.S.Nijjar, Pinaki Chandra Ghose, Pratap Kumar Ray
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18.12. 2008
M.A.T. 3420 of 2005
Mr. Amal Baran Chatterjee
Mr. Uttam Kumar Majumder,,
Mr. Asis Kr. Ray ... For the appellant.
Mr. Tapabrata Chakraborty,
Mr. Kumaresh Dalal ... For the State.
Mr. D. Banerjee,
Mr. Ramkrishna Bhattacharyya ... For the
State.
Mr. Amal Kumar Mukhopadhyay ... For
Respondent Nos.3 and 4.
Pratap Kumar Ray (Oral)
Heard the learned Advocates appearing for the parties.
Assailing the judgement and order dated 3oth August, 2005 passed by the learned trial Judge
in W.P.20407(W) of 2003, this appeal has been preferred. By the impugned judgement under
appeal the learned trial Judge dismissed the writ application by a reasoned judgement based on two
reasoning, namely, (i) that the writ petitioner exercised fraud upon the Court seeking his
appearance in the interview for selection for the post of clerk of the concerned School as non-
sponsored candidate by misrepresentation of his employment status in the Employment Exchange
that he never was sponsored earlier; (ii) that the non-sponsored candidate even on the strength of
the judgement of the Apex Court passed in the case of Excise Superintendent, Malkapatanam -vs.-
K. B. N. Visweshwar Rao and others reported in 1996 (6) SCC.216 was not entitled to appear in
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absence of any advertisement of vacancy though this point was not pleaded. The impugned
judgement under appeal reads such.
" 30.08.05 W.P. No.20407(W) of 2003
Pradip Kumar Mazumder .. Petitioner
=Versus-
State of West Bengal & Ors.
... respondents.
Mr. Ashish Kumar Sanyal,
Mr. Uttam Kr. Mazumder ..for petitioner
Mr. Dipak K. Banerjee,
Mr. Ramkrishna Bhattacharyya
.. For respondents.
The writ petitioner approached this Court on 16th December, 2003 by filing the
writ petition being W.P.No.20407(W) of 2003, inter alia, making his grievance that
although he was registered with the Employment Exchange in the year 1993, he was
not sponsored by the Employment Exchange in the concerned school for being
considered for the post of clerk and juniors were sponsored by the Employment
Exchange. Paragraphs 4 and 6 as well as Ground-II of the writ petition being relevant
herein are quoted below :
"4. That at the time of registration of name in the District Employment Exchange,
Krishnagar and since then your petitioner is unemployed. Be it is surprise to state
herein that his name was not sponsored or any interview till date, the District
Employment Exchange Office, Krishnagar, Nadia, according to his qualification and
this fact show that the employment officer did not maintain any rules and procedure."
"6. That your petitioner respectfully states that he was surprised to know that his
name has not been sponsored by the District Employment Exchange Office,
Krishnagar to the said school for the said post though the juniors' names have been
sponsored."
" Ground-II. For that the several calls have been given to the candidates who are
juniors to the petitioner and recorded their qualification after recording the
petitioner's name in the Office of the Respondent No.2, this fact in crystal clear that
no rule and procedure is followed and/or maintained by the Respondents."
On perusal of paragraphs quoted supra it would appear that the petitioner's
grievance was that although he was registered with the Employment Exchange, he
was not sponsored till the date when he moved this Court by Employment Exchange
anywhere. The writ petition was moved ex-parte before Maharaj Sinha, J. His
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Lordship permitted the petitioner to participate at the interview. While permitting the
petitioner to participate at the interview, His Lordship observed, inter-alia, as follows
:
" Though the name of the petitioner was registered in the year 1991 but his
name has never been sponsored by the Employment Exchange concerned for any
appointment so far, though the names of the juniors, who were registered after the
writ petitioner, their names were sponsored by the Employment Exchange. Necessary
averments have also been made in paragraph-12 of the writ application to the above
effect."
From the paragraph quoted supra, it would appear that His Lordship was
impressed with such submissions of the petitioner that his name was never sponsored
by the Employment Exchange so far. The petitioner immediately appeared at the
interview along with 20 other sponsored candidates. The panel was prepared. The
petitioner was placed at Serial No.1. The District Inspector of Schools immediately
approved the panel. The petitioner was given appointment on 19th October, 2004 and
he is still serving the school. The writ petition has now come=up for final hearing
after completion of affidavits. The second empanelled candidate was allowed to
intervene in the writ proceeding and his application for vacating interim order was
treated as his affidavit-in-opposition. The present managing committee of the school
also filed affidavit-in-opposition. The school in the affidavit-in-opposition stated that
the writ petitioner was not sponsored by the Employment Exchange as he got at-least
four calls earlier. The statement was made in paragraph 3(a) of the affidavit of one
Kamal Sarkar, claiming to be the Secretary of the concerned school. The second
empanelled candidate, however, in his application for intervention which was treated
as Affidavit-in-opposition gave particulars of earlier three calls received by the writ
petitioner and the last one of such calls was made in 2001 and the subject sponsored
list was sent by the Employment Exchange in 2002. In affidavit-in-reply the petitioner
did not deny either the contentions of the school or the contentions of the added
respondent on that score.
As per Employment Exchange rules if one candidate gets at-least three calls, he
would not be sponsored for two years. The writ petitioner obtained three calls as of
2001. Hence, the Employment Exchange could not consider his case prior to 2003.
The present sponsored list was sent by the Employment Exchange in 2002. Hence, the
employment Exchange was right in not sponsoring the name of the petitioner.
Mr. Ashish Sanyal, Senior Counsel appearing for the writ petitioner submits that
the writ petitioner, as a matter of right, was entitled to participate at the interview in
view of the supreme court decision in the case of Excise Superintendent,
Malkapatanam -vs.- K.B.N. Visweshwar Rao & Ors., reported in 1996(6) SCC. 216.
Mr. Sanyal also submits that the right to be considered for a post is a fundamental
right guaranteed under the constitution of Articles 14 and 16 and as such the
petitioner was entitled to an Order for participation at the interview and His
Lordship's interim order allowed him to participate at the interview where he was
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successful. Mr. Sanyal also has referred to the recent decision of Apex Court in Abu
Taher -Vs - Abdul Wahab & Ors. in C.A.1203 of 2001 wherein the Apex Court
observed that the High Court was not right in upsetting the appointment received by
the petitioner only on the ground that he was not sponsored by the Employment
Exchange.
In K.B.N. Visweshwar Rao case the Apex Court observed that sponsoring of
names from the Employment Exchange is one of the mode. However, the right to be
considered for a particular post cannot be denied to any candidate and there should be
wide publicity by publication in newspaper, electronic media and as well as on the
notice board of the Employment Exchange and whoever comes should be considered
along with the candidates sponsored by the Employment Exchange. Recently after
K.B.N.Visweshwar Rao in the case of Debashis Dutta (1998) 1 ClJ 1 Special Bench
of our Court held that the ratio decided in K.B.N.Visweshwar Rao might not have
application in case of appointment where there is a statutory rule prescribing a
particular mode of recruitment. After the Special Bench decision in two other cases,
namely, Abani Mahato & Kishore Kumar Pati, Apex Court considered issue and
upheld the appointment given to a candidate not sponsored by the Employment
Exchange on the ground that the Order directing the school to participate at the inter
view was not under challenge and reached a finality. Recently a Full Bench decision
of our court answered a reference made by regular Bench holding that the decision of
the Special Bench in Debashis Dutta had been overruled by implication by the Apex
Court in Abu Taher case.
I, however, wish to approach the present problem from a different angle. The
writ court being a court of equity must consider the prayer of a litigant who has come
in clean hand. The writ petitioner approached this court with a specific averment that
he was never considered for employment by the Employment Exchange. The
Employment Exchange never sponsored him earlier. This impressed His Lordship.
His Lordship was also impressed as I find from His Lordship's order that juniors'
names were sponsored by the Employment Exchange to the concerned school.
Considering these two facts His Lordship permitted the writ petitioner to participate
at the interview subject to the result of the writ petition which I am now hearing. It
now transpires that the writ petitioner got as many as three calls, if not, four calls
earlier and he was not entitled to be sponsored by the Employment Exchange in view
of the rotational bar. I would have appreciated if the writ petitioner in his writ
petitioner in his writ petition stated so. I would have appreciated that if the writ
petitioner stated in his writ petition that those calls were not in conformity with his
qualification or that irrespective of those calls he was entitled to be considered by the
school. Such was not the case when the writ petition was moved before this Court. I
have no hesitation to hold that His Lordship was totally misled by the writ petitioner.
I have also no hesitation to hold that the petitioner suppressed the material facts while
approaching this court at the initial stage and that too ex-parte without serving notice
to other side. Had the respondents been served at the initial stage, this fact could have
been brought to light. Hence, I do not wish to go into the question at-least on this writ
petition as to whether the writ petitioner was otherwise entitled to be considered for
appointment. The litigant who has approached this Court with unclean hand must not
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be favoured with any relief even if he is otherwise entitled to. The writ petition fails
and is hereby dismissed. The petitioner will pay costs of this application assessed at
Rs.10,000/- to be deposited with the Registrar General of this court within fortnight
from date. The operation of this order would remain stayed for a period of three
weeks.
After this judgement is delivered by me Mr. Uttam Mazumder, appearing for the
writ petitioner in W.P.No.20407(W) of 2003 submits that since the writ petitioner as
an unemployed youth approached this court with this writ petition I should consider
the amount of penalty. The submission of Mr. Mazumder is considered. The costs
part be deleted.
Let Urgent xerox certified copy of this order be furnished to the learned
advocates for the parties on priority basis, if applied for".
It appears from the writ application that the point that as per the Apex Court's judgement in
the case of K.B.N. Visweshwar Rao (Supra) the writ petitioner was eligible to appear as non-
sponsored candidate, was not at all pleaded. The entire pleading of the writ application was based
on the factual foundation that despite registration of his name with the Employment Exchange, he
did not receive any call letter from the Employment Exchange authority. As such, he was entitled to
have an order from the writ Court directing his appearance in the concerned vacancy. The relevant
pleadings of paragraphs 4, 5, 6,7, 8 and 11 of the writ petition read such.
" 04. That at the time of registration of name in the District Employment Exchange,
Krishnagar and since then your petitioner is unemployed. Be it is surprise to state herein
that his name was not sponsored or any interview till date the District Employment
Exchange Office, Krishnagar, Nadia, according to his qualification and this fact show that
the Employment Officer did not maintain any rules and procedure.
05. That your petitioner came to know that there is a vacancy in the post of Clerk-
Cum-Typist of Parimal Bagchi Smriti Vidyalaya, P.O. - Betai, P.S.= Tehatta, District -
Nadia. Your petitioner being duly qualified is eligible for getting an interview in the said
vacancy of the said school. Your petitioner also came to know that the school authority
requested the District Employment Exchange Office, Krishnagar for sponsoring the
names of the candidates for interview for the post of Clerk-cum-typist.
06. That your petitioner respectfully states that he was surprised to know that his name
has not been sponsored by the District Employment Exchange Office, Krishnagar to the
said school for the said post though the junior's name have been sponsored.
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07. That your petitioner respectfully states and submits that the Respondent concerned,
the Employment Officer should have sent the name of the school for interview by giving
opportunity and/or change but in the instant case the petitioner's name has not been
sponsored in the said school and even in spite of making submission the Employment
Exchange Officer did not send the petitioner's name to Parimal Bagchi Smriti Vidyalaya,
he also request the Employment Officer that he is going to be over aged if he is not get
call he will suffer irreparable loss and injury.
08. That your petitioner further respectfully states and submits that due to careless
and/or fault on the part of the respondent authority your petitioner has been deprived from
Interview for employment in the school inspite of hearing requisite qualification and
registration his name in the said employment Exchange. There are many candidates like
your petitioner might have deprived to get a chance of interview in their name from the
date of registration of their names and many candidates like your petitioner are still
suffering. In view of the facts the entire activities on the part of the respondents are bad,
illegal, motivated, arbitrary and whimsical.
11. Your petitioner begs to submit that he belongs to very poor family and he has not
any source of income and to maintain his livelihood somehow, but due to illegal and
arbitrary acts of the Respondents authority he has been deprived to get opportunity to face
interview since the date of registration because your petitioner did not get any suitable
call in his life.
In the ground also the grievance was against Employment Exchange Officer for non-
sponsoring his name. The prayers of the writ petitioner read to this effect.
" a) Issue a writ in the nature of Mandamus commanding the Respondent No.2, District
Employment Exchange Officer, Krishnagar, as to why the petitioner's name has not been
sponsored to the school by giving an opportunity to appear before the interview Board for
the post of Clerk-cum-Typist.
b) Issue a writ in the nature of Certiorari directing the Respondent No. 2 to produce and
transmit all the relevant records, including the name of the petitioner at Parimal Bagchi
Smriti Vidyalaya, Nadia, for interview.
c) Rule Nisi in terms of prayers (a) to (b) as above.
d) Grant ad-interim order of injunction directing the school authority or the Secretary,
Selection Committee of Parimal Bagchi Smriti Vidyalaya, Tehatta, District Nadia to allow
the petitioner to appear before the Selection Committee along with other candidates for
interview which has been fixed on 17.12.2003 or subsequent date for appointment of Clerk-
cum-Typist to direct the Respondent No.2 forthwith to send the petitioner's name in the said
school and further be passed that no interview shall held till the petitioner's name is sent in
the said school."
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The learned trial Judge at the motion stage directed appearance of the writ petitioner/appellant
in the interview by the order dated 16th December, 2003 which reads such.
" A.S.T.1637/03
HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
In the matter of : Pradip Kumar Mazumder
...Petitioner.
-Versus-
opposite party.
For petitioner: Mr. Uttam Kumar Mazumder,
Mr. Manas Kumar Sadhu.
16.12.03 It appears from the record that the name of the writ petitioner is registered
with the District Employment Exchange at Krishnanagar in the district of Nadia. The said
registration was made in the year 1991.
Though the name of the petitioner was registered in the year 1991 but his
name has never been sponsored by the Employment Exchange concerned for any
appointment so far, though the names of the juniors, who were registered after the writ
petitioner, their names were sponsored by the Employment Exchange. Necessary
averments have also been made in paragraph-12 of the writ application to the above
effect.
The Learned Advocate appearing for the petitioner submits that no prejudice
will be caused if the writ petitioner is allowed to take part in the interview and a
direction be made upon the concerned respondent to allow the writ petitioner to appear at
the said interview without prejudice to the rights and contentions of the petitioner and all
the concerned respondents herein.
Mr. Mazumder further submits that due to extreme urgency as pleaded in
paragraphs 12 and 18of the writ application the necessary notice could not be served
upon the Respondents and as such the compliance with the Rule 26A should be
dispensed with.
Having considered the submissions of Mr. Mazumder the requirement of Writ
Rule under section 26 be dispensed with. The concerned Respondents namely the
respondent Nos. 3 & 4 are directed to allow the writ petitioner to appear at the interview
which is to be held on 17th December, 03 or any subsequent day or date thereafter. The
writ petitioner shall be permitted to appear at the interview and his name shall be
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considered along with the other candidates by the Employment Exchange concerned as
Clerk and Typist in the category of Group-'C' staff in the district of Nadia. The above
direction upon the concerned respondents, however, is made wholly without prejudice to
the rights and contentions of the concerned respondents and the writ petitioner herein.
This writ petition is to appear in the list as a 'Listed Motion' marked as part-heard on
next Tuesday.
The writ petitioner is directed to serve upon all the respondents the copy of this
petition along with the copy of the Order passed today and file Affidavit of service on or
before the next date of hearing.
Let xerox plain copy of this order counter-signed by the Assistant Registrar
(Court) or A.C.O. be given to the Learned Advocate appearing for the petitioner."
The said order was passed by the learned trial Judge without prejudice to the rights and
contentions of the concerned respondents and the writ petitioner. The matter was directed to appear
as Listed Motion. On the strength of such interim order the writ petitioner appeared and the panel
as prepared, therein he stood first. The second candidate of the panel, a sponsored candidate, filed
an application for vacating the said interim order dated 16th December, 2003 on the ground that the
non-sponsored candidate was not eligible to appear in the interview and also on the point that there
was a false submission in the writ application about in-action of the Employment Exchange
authority to sponsor the name of the writ petitioner. The second candidate in the meantime moved a
writ application, being W.P.20562(W) of 2004, praying for cancellation of approved panel made
by the District Inspector of Schools concerned on 18th October, 2004 wherein the present
appellant's name was in 1st position. The learned trial Judge heard both the two writ applications
and passed different judgements. On the ground of fraud it appears from the records that when the
appeal was taken up for hearing on earlier date, we considered that as the allegation against
Employment Exchange Officer was made for non-sponsoring the writ petitioner/appellant, despite
registration of his name in the Employment Exchange concerned long back, affidavit should be
filed by the Employment Exchange Officer as he got no chance to file affidavit before the learned
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trial Judge. In pursuance thereof, an affidavit was filed before us disclosing the relevant fact
wherefrom it reveals that the appellant earlier was sponsored thrice and as per rotational rule
stipulated in Employment Exchange Manual he was not eligible to be sponsored further. The
details of such sponsorship from Employment Exchange have been dealt with in the affidavit filed
by the Employment Exchange authority which read such.
" a) That when a candidate approaches to any Employment Exchange for registration he is
given an Index Card (X-I) to fill up his name, father's name, address, date of birth,
educational qualification etc. Thereafter, a registration number is given on that index card
along with his qualification wise National Occupational Code( N.C.O.) and the details of it
are recorded in a register (X-63). He is also given an Identity Card ( X-I0) for registration
and in case of enhancing educational/technical qualification separate index cards are to be
filled up and registrations are to be done consequtively with separate re-registration number
with date of seniority for previous registration and that separate N.C.O. used for separate
qualification such as XO2.10 for Class VIII pass, XO1.10 for M.P./equivalent examination
pass, XO1.20 for H.S. pass, XO1.30 for B.A.pass, 321.10 for Type Writters qualification etc
.
b) That the Secretary, Parimal Bagchi Smriti Vidyalaya requested the District Employment Exchange vide letter dated 4.7.2002 to sponsore the names of eligible candidates for the post of Clerk as per the prior permission dated 28.5.2002 given by the District Inspector of Schools ( S.E), Nadia.
c) That accordingly, District Employment Exchange, Krishnagar sponsored the names of eligible candidates having seniority of registration under N.C.O. No. 321.10 upto 15.5.1997 and a list of 20 candidates was sent to the School under No.KRI/p/42/2002/8085.85 dated 24.12.2002.
d) That in case of the petitioner first ( original) registration was done on 12.9.1991 as Madhyamik pass candidate. He was given Registration No. KLM/6465/91 dated 12.9.1991 being N.C.O. XO1.10 and re-registration was done on 07.10.1993 to include his type writing qualification and was given a re-registration No. KM/6026/93 dated 07.10.1993 being N.C.O. 321.10 with seniority from 12.9.1991 as X01.10 ( M.P. pass). It is further stated that the petitioner's B.A. pass qualification was included on 13.02.1996 after filling up a Secondary Index Card being N.C.O. X01.30 ( No re-registration number was given for inclusion of B.A. pass due to addition of technical qualification on 07.10.1993 as per norms). It is further stated that at present the petitioner's Registration number is KM/6026/93 dated 07.10.93 with N.C.O. XO1.10 ( Seniority - 12.9.91)/321.10 ( Seniority 07.10.93)/XO1.30 ( Seniority - 13.02.96).
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e) That the candidates are sponsored in accordance to the essential qualification prescribed in the notification of vacancy for any post and seniority and rotation of sponsoring names have been followed as per rules of submission of candidates for any post. The name of the petitioner was not sponsored for the post of Clerk under Parimal Bagchi Smrity Vidyalaya, P.O. Betai, District Nadia against the Notification Memo No. Nil dated 04.07.2002. It is further stated that 20 ( twenty) names were sponsored for the said post under this Office Memo No. IROI/P/42/2002/8084-85 dated 24.12.2002 excluding the name of the petitioner due to rotational bar.
f) That as per Synopsis of Instruction on Employment Exchange Procedure, a candidate who has been sponsored thrice or above is not eligible for selection for 2 years from the date of last submission and his selection is barred for 2 years according to rotational bar. It is further stated that the records of registration containing all particulars of submission of the petitioner revel that he was submitted in separate establishments on 02.09.1998, 16.02.2000 and 31.05.2001 and as the name of the petitioner was last submitted on 31.05.2001 he was not eligible for selection and submission upto 30.05.2003." In the vacating application aforesaid the candidate who stood second in the panel and in his separate writ application, being W.P.20562(W) of 2004, the same fact was asserted about sponsorship of the writ petitioner/appellant thrice to satisfy the point that a false statement was made by appellant to mislead the Court and such exercise of fraud was proved. The learned trial Judge also proceeded with the matter holding that fraud was proved and that there was miss- representation to reject the writ application by directing cancellation of the name of the writ petitioner/appellant from approved panel. It appears that during pendency of the litigation the panel got approved and the appellant was appointed in the School on 19th October, 2004 but post appointment approval as yet has not been granted in view of the pendency of the matter before us. Learned Advocate for the appellant submitted before us interpreting the language of paragraph 4 of the writ application by contending, inter alia, that as per qualification the writ petitioner was never sponsored with the Employment Exchange. We are not convinced with the point as from the affidavit filed by the Employment Exchange Officer affirmed on 30th July, 2007, it appears that the writ petitioner got his name sponsored in different establishments on 2nd September, 1998, 16th 11 February, 2000 and 31st May, 2001 respectively and as the name of the petitioner was submitted last on 31st May, 2001, he was not eligible for selection and submission till 31st May, 2003. A positive opposition made by detailing the sponsorship of the writ petitioner earlier, namely, 1) Date of submission - 21st August, 1996, the name of the Employer - Executive Officer, Nakashipara Panchayet Samity, P.O. Nakashipara, Dist. Nadia under Order No.KRI/SG/125/95 for the post of Clerk-come-Typist; (2) Date of submission - 2nd September, 1998, the name of the employer - Officer on Special duty & Ex-Officio Director of Social Welfare, W.B. 45, Ganesh Avenue, Kolkata- 13 under Order No.KRI/SG/26/98 for the post of Typist come Store Keeper; (3) Date of submission - 16th February, 2000, the name of the employer - Register, University of Kalyani, Kalyani, Nadia under Order No.KRI/10A/SG/31/99 for the post of Clerk Came Typist; (4) Date of submission - 31st May, 2001, the name of the employer - Addl. District Magistrate, Nadia, & District Land & Land Reforms Officer, Nadia, Krishnagar, Nadia under Order No. KRI.SG/05/2001 for the post of Clerk Came Typist; (5) Date of submission - 8th October, 2003, the name of the employer - A.O.I., HQ., Chief Engineer M.E.S. Sililguri Zone, Salugma, Jalpaiguri under Order No. KRI/10A/CG/25/2003 for the post of L. D. Clerk.
A letter dated 10th July, 2007, detailing the synopsis of those sponsorship numbers, the names of the employer, order number and the post concerned has been filed before us by the Employment Exchange Officer which be kept with the record.
From the writ application it appears that the writ petitioner annexed a xerox copy of his Identity card Issued by the Employment Exchange Officer wherefrom it is revealed that the particulars of earlier sponsorship were duly recorded in his Identity card. From Annexure 'P2' which is at page 18 of the Paper Book, it appears that in the Identity card the Order no. SG/125/95 with the date August, 1996 12 was written at the top, thereafter SG/26.98 dated 31st August, 1998 also was recorded and at the bottom SG/5/2001 was mentioned. On the left side of the Identity card there was also another noting of sponsorship, being No.SG/31/99 with the date February, 2000. Xerox copy of this Identity card was annexed with the writ application as documentary evidence as a proof of his averment that his name was not sponsored earlier. The learned trial Judge while passing the interim order was misled due to the pleading made in the writ application. The interim order as passed by the learned trial Judge allowing appearance in the interview as a non-sponsored candidate was based on the reasoning that the writ petitioner's name never was sponsored earlier. The learned trial Judge in the order dated 16th December, 2003 accordingly held in the second paragraph to this effect "though name of the writ petitioner was registered in the year 1991, his name has never been sponsored by the Employment Exchange concerned for any appointment so far, though the name of the juniors, who were registered after the writ petitioner, their names were sponsored by the Employment Exchange."
Having regard to the specific pleading that the writ petitioner never has been sponsored by the Employment Exchange concerned, the learned trial Judge initially at the motion stage was pleased to pass interim order. Subsequently fraud revealed when the vacating application filed by the panellist No.2. The learned trial Judge accordingly dismissed the writ application.
On the factual scenario of the case and the foundational fact of the writ petitioner, we are also satisfied that the fraud was proved and the writ petitioner purposely and wilfully mislead the High Court by pleading a case against the Employment Exchange concerned in the matter of sponsorship of the candidates. The learned trial Judge at the motion stage due to said pleading allowed his appearance in the selection process for the post of clerk wherein the rule provides, namely, the recruitment guidelines that only the candidates sponsored from the Employment 13 Exchange would be considered for appearance in the interview. Since a fraud has been committed and proved due to suppression of the material fact and specific false submission, it is a fit case wherein "suggestio falsy or suppresio veri" principle is squarely applicable.
It is settled legal position that fraud vitiates all action, reliance may be placed to the judgement passed ion the case Smith vs. East Elloe Rural District Council & Ors., reported in (1956) 1 All. E.R. 855. " No judgement of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything" as observed in the case by Lord Denning, LJ. in Lazarus Estates Ltd. Vs. Beasley, reported in (1956) 1 All. E.R.341. In the said case Lord Parker, CJ. Observed "fraud vitiates all transactions known to the law of however high a degree of solemnity". Similar view echoed by Apex Court in the case Ram Chandra Singh vs Savitri Devi & Ors., reported (2003) 8 SCC 319 in paragraph 15-18 and 23-25 and in the case Vijay Shekhar & Anr. Vs. Union of India & Ors., reported in (2004) 4 SCC 666, a judgement of three Judges Bench. It is also a legal position that any judgement/order obtained by fraud is a nullity and all subsequent proceeding also will be nullity. Reliance may be placed to the judgement passed in the case T.Vijendradas & Anr. Vs. M. Subramanian & Ors. reported in (2007) 8 SCC 751. Even in the case of fraud, the Apex Court held that second review by the High Court was permissible. Reliance is placed to the judgement passed in the case Hamza Haji vs. State of Kerala & Anr., reported in (2006) 7 SCC 416, wherein an order was procured by appellant from a Forest Tribunal by fraud on submitting a statement that the concerned land was under self-cultivation (though the fact was not true), to have an order under Section 3(3) of Kerala Private Forests (Vesting of Assignment) Act, 1971 to retain the land. High Court dismissed the appeal of State Government at admission stage. A statutory review before Tribunal failed on the ground that the order of Tribunal merged with the order of High Court in appeal. Thereafter a review application in High Court was dismissed on the 14 ground of long delay, which was 8 years. Order of dismissal again placed for review along with review of original order. A body of citizens filed the writ application assailing Tribunal's order pointing out fraud. High Court quashed the order of Tribunal and its earlier order on hearing second review application and writ application analogously. The question raised before the Apex Court whether second review was permissible, where the Apex Court answered that when there was a fraud proved, it was permissible.
Having regard to such state of affairs, we are of the view that since a fraud has been established and there was suppression of material facts and false representation, the case of the writ petitioner is otherwise attracted by "the doctrine of clean hand". It is a settled law, that a person who comes with a writ petition with unclean hand is not entitled to get any relief by using the language that a writ is not permissible to be handed over to unclean hands.
Having regard to the aforesaid findings and observation, accordingly we are of the view that the learned trial Judge was not wrong to reject the writ application on the ground of fraud and miss- representation of fact by applying the principles thereof.
Before the trial Court and before us, a new point has been raised irrespective of the fact that the writ petitioner/appellant was not eligible to be sponsored in view of earlier sponsorship that the writ petitioner/appellant was entitled to appear in the interview as non-sponsored candidate having regard to the judgement of the Apex Court in the case of Visweshwar Rao (Supra) wherein dealing with the case Court held that a non-sponsored candidate was entitled to appear in the interview. In the judgement of Visweshwar Rao ( Supra) the Apex Court held that for justice, equality and fairness, all the eligible candidates having merit should appear from Employment Exchange as well as non-sponsored and for that reason there should be an advertisement in the daily Newspaper of wide publication inviting application from the eligible candidates. In the case of Visweshwar Rao 15 (Supra) it was not the ratio decidendi that a non-sponsored candidate out of his desire suo moto or out of favour of the Managing Committee or the employer or out of other consideration of the employer, would appear before the interview committee and will be considered thereof as the same would directly hit Article 14, equality clause of the Constitution. A Division Bench discussed the issue in details in the case of Gayanath Rajbangshi -vs.= The State of West Bengal and others reported in 2008( 2) CHN.879 wherein one of us ( Pratap Kumar Ray, J.) was a member. Subsequently the Division Bench ( Coram : S.S.Nijjar, C.J. and Pinaki Chandra Ghose, J.) in the case of Radha Giri (Prodhan) -vs.- The State of West Bengal and others, being MAT.1653 of 2007, reported in 2008(2) CHN. 661 quoted the views expressed by said Division Bench in the case Gayanath Rajbangshi (Supra) and held accordingly that a non-sponsored candidate without any advertisement was not entitled to appear in the interview and the High Court should not pass any direction for appearance of a non-sponsored candidate in the interview when there is no public advertisement of the vacancy. Subsequently a Division Bench of this Court ( Coram : Pratap Kumar Ray, J. and Prasenjit Mandal, J.) in the case of Debendra Nath Mondal -vs.- Ratan Kumar Das and others reported in (2008) 1 CLJ (Cal) 912 which was on identical factual foundation of the instant case except the fraud as committed by the present appellant herein. There also the first candidate of the panel got order from the High Court for appearance in the interview as a non-sponsored candidate though no advertisement was published by the School authority; the High Court considered that issue and quashed the appointment. A Special Leave Petition, being SLP. No.( Civil) 10024/2008, was led against this judgement by us, unsuccessful and the Special Leave Petition was dismissed on 8.9.2008. The ratio considered in passing the said judgement on analysing the ratio decidendi of the case Visweshwar Rao ( Supra) was to this effect that for the purpose of selection, best meritorious candidate should be selected and the source of such selection 16 of candidates should be (i) from Employment Exchange and (ii) by public advertisement inviting eligible candidates. In Debendra Nath Mondal (Supra) Division Bench dealt with the issue in details by holding, inter alia, that in the event High Court passes an order directing appearance of a non-sponsored candidate wherein the post has not been advertised in the daily Newspaper, that will breach the basic feature of the Constitution, being Articles 14, 16 and 21 of the Constitution, and will breach the equality clause of the Constitution as a candidate who is equally qualified or better qualified either having no resources to approach High Court or having no knowledge about vacancy of the concerned School or the concerned employer of his locality would not be entitled to appear in the interview whereas his next door neighbour since has approached High Court and on the strength of the High Court's order would be entitled to appear as non-sponsored candidate. It was held in the said case that it goes to the root of the matter and breaches Article 14 of the Constitution of India. Relevant paragraph from the said judgement read such:-
" That the appeal could be dismissed on the said reasoning but as the learned Advocate for the appellant has opened a new area in the appeal being a point of law that following the K.B. N.Visweshwara Rao 7 Ors. (supra), judgement of Apex Court and Rabindra Nath Mahata (supra), a judgement of Full Bench of Calcutta High Court, the participation of respondent No.6 in the interview was not illegal as he accrued a right to appear, otherwise than the order of D.P.Kundu, J. ( as His Lordship then was ) and as the learned Advocate for the appellant has submitted that the judgement delivered by the Division Bench, wherein one of us (Pratap Kr. Ray, J.) was a member in the case Gaya Nath Rajbanshi (supra) has no retrospective effect but a perspective one, we think that point should be dealt with also.
Having regard to those aspect of the matter, we hold that a non-sponsored candidate without any advertisement of the vacancy in State wide daily Newspaper has no right to appear in the interview, the employer also cannot allow anybody and at the same time High Court also cannot pass any order directing appearance of such type of candidates. High Court at best on proper regard to the Article 14 of the Constitution could may pass direction directing the employer to advertise the vacancy in the daily Newspaper so that the writ petitioner who approached High Court, could 17 have applied as and when such vacancy would be declared. No order directing straightway appearance should be passed by High Court in absence of any advertisement of post in the manner aforesaid since it would breach Article 14 of the Constitution of India. In the instant case besides that point, fraud has been proved and established. Once fraud established, we cannot exercise our discretionary equitable jurisdiction to legalise appearance of a candidate who approached the Court in unclean hand irrespective of the submission made for sympathetic approach by the learned Advocate appearing for the appellant that the gentleman is already in employment. Rule of law is required to be strictly followed and sympathy has no place in such a situation.
It is settled legal proposition that sympathy has no place in the rule of law to construe the statutory provision. Reference may be made to the judgement passed in the case of Uma Rani -vs.- Registrar, Co-operative Societies reported in (2004) 7 SCC. 112 wherein the Apex Court referred the earlier judgements passed in the case Tori Oat Estates (P) Ltd. -vs.- U.T. Chandigarh reported in (2004) 2 SCC.130 and the case of Ramakrishna Kamat -Vs. State of Karnataka reported in (2003) 3 SCC. 374.
The same view reiterated by Apex Court in the case of Maruti Udyog Ltd. -vs.- Ram Lal reported in (2005) 2 SCC.638 and in the case Asoke Kumar Sonkar -vs. Union of India and others reported in (2007)4 SCC. 54. Farewell L.J. in Latham -vs.- Richard Johnson & Nephew Ltd. held "sentiment is a dangerous will 0' the wisp to take as a guide in the search for legal principles".
Having regard to such, we cannot consider the issue on sympathetic ground as fraud has been established and proved and there was breach of Article 14 to hold interview.
The appeal accordingly stands dismissed and the impugned judgement under appeal stand confirmed. Writ application stands dismissed.
18
In view of such exercise of fraud, appearance of the writ petitioner was vitiated and as such the panel as prepared by empanelling his name and the appointment thereof as made in the School in question all stands set aside and quashed. Appellant/writ petitioner is directed to vacate the post forthwith.
The District Inspector of Schools and the School authority both are directed to implement this Judgement strictly and immediately.
(Pratap Kumar Ray, J.) I agree.
(Manik Mohan Sarkar, J.)