Himachal Pradesh High Court
__________________________________________________________ vs State Of H.P. & Others on 20 August, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
LPA No. 414 of 2012
Reserved on:05.8.2019
Decided on: 20.08.2019
__________________________________________________________
Dila Ram ...Appellant
.
Versus
State of H.P. & others ...Respondents
__________________________________________________________
Coram:
Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
__________________________________________________________
For the appellant : Mr. Dilip Sharma Sr. Advocate with Mr.
Manish Sharma, Advocate.
For the respondents : Mr. Vikas Rathore, Mr. Narender Guleria,
Additional Advocate Generals with Mr. J.S.
r Guleria, Deputy Advocate General and Mr.
Manoj Bagga, Asstt. Advocate General, for
respondents No. 1 to 3 & 5 to 7.
Mr. Karan Singh Parmar, Advocate, for
respondent No. 4.
__
Jyotsna Rewal Dua, J.
Having failed in his attempt before the learned Single Judge, the writ petitioner is taking a second chance in the instant appeal, to contend that the appointment of respondent No.4, Ms. Meena Devi, as Vidya Upasak, is the result of fraudulent selection process and, therefore, is liable to be quashed and set aside.
1Whether reports of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 22 The facts may be narrated thus:-
2(i)(a) A selection process was undertaken by the respondents for .
filling up one post of Vidya Upasak in Government Primary School, Naharan, Tehsil Karsog, District Mandi.
2(i)(b) Applications were invited for this post and interviews were fixed for 23.07.2002. 23 candidates appeared in the interview including the petitioner and respondent No.4, Ms. Meena Devi.
2(i)(c) Selection Committee consisted of Sub Divisional Magistrate, Karsog-cum- Chairman of the Selection Committee; (ii) Block Elementary Education Officer, Karsog-I, as Secretary of the Selection Committee; (iii) Officiating Central Head Teacher, as Member; (iv) Pradhan Gram Panchayat Tebban, as its Member: (v) Up Pradhan Gram Panchayat, Tebban, as Member of the Section Committee.
2(i)(d) In the selection criteria followed by the Selection Committee, 10 marks were allocated for viva of the candidates. The result of the selection process was declared on 23.07.2002, itself.
Respondent No.4, Ms. Meena Devi was declared selected and was appointed as such.::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 3
2(i)(e). Subsequent to the implementation of Right to Information Act, the petitioner applied for the documents and the result sheet in respect to the selection process, so undertaken for filling up the post of .
Vidya Upasak. The documents were supplied to him vide Annexure P-6.
2(ii)(a) Noticing the over writings, cuttings in the marks, given to the candidates, in particular to the petitioner and respondent No.4, the petitioner submitted a representation dated 28.02.2009, to respondent No.6/Director General of Police, Himachal Pradesh, requesting for inquiring into the matter and for registration of criminal case against the concerned officials, because of whose alleged action in tampering with the marks secured by the candidates, respondent No.4, Ms. Meena Devi, was wrongly shown to have been selected and consequently appointed, causing wrongful loss and prejudice to the petitioner.
2(ii)(b) Petitioner followed the above representation with another one dated 29.06.2009, addressed to Principle Secretary Education as well as to District Primary Education Mandi, for cancelling the appointment of respondent No.4 and instead claimed his appointment in her place.
2(ii)(c) The representation/complaint of the petitioner was inquired into by respondent No.7, Superintendent of Police, Mandi and Report dated 18.08.2009, was submitted to respondent No.6, Director ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 4 General of Police. The report was to the effect that; there have been over-writings in the marks allotted to the petitioner and respondent No.4; however, over-writings were necessitated because average of .
marks given by all the Members of the Selection Committee was incorrectly calculated and thus placed in viva-voce marks; the incorrectly calculated average, was corrected with the consent of all the Members of the Selection Committee; the overwriting is only on account of such correction of initially incorrectly calculated average;
the overwriting was not to give any undue benefit to respondent No.4 or to cause wrongful loss to the petitioner.
2(ii)(d) The petitioner unsatisfied with Inquiring Report, submitted separate representations to Principle Secretary (Vigilance), Director General of Police, Principle Secretary Education on 28.01.2010, praying that fraud committed upon him is apparent from the perusal of the result sheet and in such circumstances, selection and appointment of respondent No.4, Ms. Meena Devi, deserves to be cancelled and he deserves to be given the appointment as Vidya Upasak.
Judgment in Writ Petition:
3. Having failed before the Administrative Officers, the petitioner approached this Court by filing the writ petition. His writ ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 5 petition was dismissed by the learned Single Judge on 26.06.2012, with following observations:-
"The petitioner who had applied for the post of Vidya Upasak in the Govt. Primar School-Naharan, .
village Tebban, Tehsil Karsog, District Mandi. He also appeared in the interview held on 23.07.2002 along with other persons. The name of the petitioner appears at Sr. No.11, in the interview Performa and he had been firstly given the marks as 45.3, as it appears, then it is mentioned 46.3 and the learned counsel for the petitioner submits that he had been granted marks as 48.3 in the record. This is not borne out from the record which shows that the final marks awarded were 46.3, in favour of the petitioner then even if the petitioner is held to be granted the marks 48.3. Respondent No.4, whose name figured at Sr. No.12 had got 48.8 marks and was mentioned first and there is no cutting in the marks awarded to her at any place. Even if, the submission of learned counsel for the petitioner are accepted, the petitioner had secured less marks than Meena Devi, respondent No.4 and as such, the petitioner was not entitled to be appointed as Vidya Upasak. An enquiry was also held by the police in this regard and nothing substantial has come up in favour of the petitioner. In regard of the plea that petitioner was not associated with the enquiry or the rules of natural justice were not followed. Enquiry was sought to be made by the police rather the complainant should have approached to Director of Elementary, Education and the police had made an Enquiry and it was not necessary that the petitioner should have been associated at the time of Enquiry. Since, the petitioner was at number 2 and there was only one post against which respondent No.4, has been appointed and she has been regularized also as ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 6 submitted by counsel for respondent No.4, there is no merit in the petition by the petitioner which is dismissed accordingly and the petition is disposed of accordingly, so also the pending application(s) if any."
4(i) We have heard learned counsel for the parties and also .
gone through the original record of selection process.
4(ii) The record of Selection Process:
The record of selection process, in particular, the result sheet prepared by the Selection Committee reveals that:-
4(ii)(a) Glaring over-writings and cuttings have been made in the marks of petitioner Dila Ram and respondent No.4, Ms. Meena Devi, under the headings viva and resultant heading total marks.
4(ii)(b) So much so, a bare perusal of marks allotted under 'viva' to two candidates in question, makes it evident that:- petitioner initially scored:
(viva) (total)
22.3+ 10+10+8 = 50.3
and accordingly was shown as 'First'.
Respondent No.4, Ms. Meena Devi, was having:
(viva) (total)
19.8+ 10+10+4= 43.8.
::: Downloaded on - 29/09/2019 02:19:53 :::HCHP
7
Sr. No.15 in the result sheet Sh. Het Ram at 45.5 marks, was shown as Second and Sr. No.19, one Neelama Devi with 44 marks, was shown as Third.
.
4(ii)(c) A careful perusal of the result sheet again, makes it apparent that to give undue benefit to respondent No.4, Ms. Meena Devi, her marks have been altered; originally allotted 4 marks to her under viva, have been converted to 9, by overwritings and resultantly her initial total marks of 43.8 was changed to 48.8 and she by overwritings has been shown as First in the merit list.
4(ii)(d) Similarly, in case of petitioner Dila Ram, 8 marks initially allotted to him under viva, by way of overwritings and cuttings have been changed to 4, to reduce the original total from 50.3 to 46.3. In fact, it appears that initially attempts were made to change the petitioner's marks to 45.3 and also to 48.3. With 46.3 marks, the petitioner by way of cutting is shown at second position in the merit list. Sr. No. 14, Het Ram, earlier standing in second position with 45.5 marks, as a result of overwriting, has been shown to have secured third place in the merit list.
4(iii) The over-writings are glaring and apparent to the naked eyes. The injustice caused to the writ petitioner is writ large. One cannot turn a blind eye to the overwritings and cuttings in the marks secured by the candidates. The defence that these overwritings and ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 8 cuttings were necessitated because of the average of marks given by the Members of the Selection Committee having been incorrectly calculated under the head viva, is not satisfactory. The Selection Committee .
consisted of a Sub Divisional officer as its Chairman and also Block Elementary Education Officer as its Secretary besides Officiating Central Head Teacher and Pradhan as well as Up Pradhan, Tebban, as its Members. Had it been a case of incorrectly calculated average originally figuring in the viva marks of the candidates, the least which, was expected from the Selection Committee, was to put initials on the corrections so made. No initials of any of the Members of the Selection Committee including its Chairman are there on the overwritings and cuttings so made in the result sheet. A glance on the result sheet leads to the only conclusion that theory of correction of wrong average of viva marks given by Members of Selection Committee, leading to overwriting in the marks, has been put forward only to cover up the practical fraud committed by the Selection Committee in the result sheet, after the same was brought to light by the petitioner after getting the documents under Right to Information Act. Even otherwise, if any corrections were required in the score card of the candidates, one may expect to see clear-cutting and not cuttings, tamperings and over-
writings in the marks again and again and without initials. The result ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 9 also reflects that primarily, it is only against the name of the petitioner and respondent No.4, Ms. Meena Devi that these tamperings and over-
writings have been made in their viva-voce and total marks, affecting the .
entire scenario of the final results of the selection process. There is no cutting in fact against the name of any other candidate, which affects his total marks.
5. It is, thus, clear that respondent No.4, Ms. Meena Devi, was appointed as Gram Vidya Upasak by giving her undue advantage, rather, as a result of fraudulent selection process, on account of Selection Committee having made material alterations, over-writings and tampering with the marks originally allotted to the candidates. Such an appointment, genesis of which is fraudulent selection process, cannot be sustained. We have been informed that respondent No.4, Ms. Meena Devi, having been appointed in 2002, now stands regularized in service.
However, such regularization cannot make her initial void and invalid appointment as valid.
6(i) It is apt to quote Hon'ble Apex Court in Civil Appeal No. 3925 of 2019, titled as Punjab Urban Planning and Development Authority & Anr. vs. Karamjit Singh, as under:-
"3.3.......Since the appointment of the Respondent on regular basis was void on account of having been fraudulently obtained by collusion, the Respondent was ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 10 not entitled to the protection under the provisions of the Industrial Disputes Act, 1947."
"5.2 The Respondent had sought to have his name included in the final list recommended for regularization by colluding with certain officials of the Appellant Authority, who had interpolated his name in the final list .
forwarded to the Authority."
"6. In the present case, the Single Judge had held that "rightly or wrongly", the Respondent had obtained regularization, and was therefore entitled to a disciplinary enquiry. The Division bench affirmed the judgment of the Single Judge.
6.1 the High Court however failed to appreciate that the decision in Managing Direcotr, ECIL Hyderabad (supra)is applicable to "employees" of Government Departments. Since, the very appointment of the Respondent on regular basis was illegal, he could not be treated as an "employee" of the Appellant-Authority.
In Rupa Rani Rakshit & Ors. vs. Jharkhand Gramin Bank & Ors., this Court held that service rendered in pursuance of an illegal appointment or promotion cannot be equated to service rendered in pursuance of a valid and lawful appointment or promotion. 6.2 The illegality of such an appointment goes to the root of the Respondent's absorption as a regular employee.
The Respondent could not be considered to be an "employee", and would not be entitled to any benefits under the Regulations applicable to employees of the Appellant-Authority.
Therefore, the High Court erroneously placed reliance on the decision in Managing Director, ECIL, Hyderaband (supra), which would not be applicable to the facts of the present case.
7. The question of holding disciplinary proceedings as envisaged under Article 311 of the Constitution, or under any other disciplinary rules did not arise in the present ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 11 case since the Respondent was admittedly not an "employee" of the Appellant-Authority, and did not hold a civil post under the State Government. He was merely a daily wager on the muster rolls of the Appellant-Authority.
8. It is abundantly clear from the facts of the case, and the material on record that the regularization of the .
services of the Respondent was illegal and invalid. The Respondent was provided a full opportunity to adduce evidence to establish that he had 3 years' continuous service prior to 22.01.2001. However, he failed to furnish any proof whatsoever to substantiate his claim.
9. In light of the aforesaid discussion, the present Civil Appeal is allowed and the Order dated 09.07.2018, passed by the Division Bench of the Punjab & Haryana High court is set aside.
The appointment of the Respondent on regular basis was invalid since the Respondent did not have the pre-requisite experience of 3 years' continuous service prior to 22.01.2001.
The Respondent had sought to secure regularization on the basis of interpolation in the final list of employees recommended for regularization. Such an appointment would be illegal and void ab initio, and cannot be sustained.
The Appellant-Authority rightly terminated the Respondent vide order dated 22.05.2003..."
6(ii) Hon'ble Apex Court in (2010) 8 SCC, 383, titled as Meghmala and Others v. G. Narasimha Reddy and Other, held as under:-
"28.Fraud/Misrepresentation: -
It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 12 fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath). In Lazarus Estate Ltd. Vs. Besalay, the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to .
stand if it has been obtained by fraud, for fraud unravels everything."
29. In A.P State Financial Corpn. Vs. GAR Re-Rolling Mills and State of Maharashtra Vs. Prabhu, this Court observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courtsare obliged to do justice by promotion of good faith."Equity is, also, known to prevent the law from the crafty evasions and subleties invented to evade law."
r to
30. In Shrisht Dhawan Vs. Shaw Bros., it has been held as under:-
"20 Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."
31. In United India Insurance Co. Ltd. Vs. Rajendra Singh, this 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.
32. The ratio laid down by this 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 and in such circumstances the Court should not perpetuate the fraud. (See District Collector & Chairman, Vizianagaram Social Welfare Residential School Society Vs. M. Tripura Sundari Devi, Union of India Vs. M. Bhaskaran, Kendriya Vidyalaya Sangathan Vs. Girdharilal Yadav, State of Maharashtra v. Ravi Prakash Babulalsing Parmar, Himadri Chemicals ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 13 Industries Ltd. Vs. Coal Tar Refining Company and Mohammed Ibrahim & Ors. Vs. State of Bihar.
33. 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.
(Vide Dr. Vimla (Dr.) Vs. Delhi, Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd., State of A.P. Vs. T. Suryachandra Rao, K.D. Sharma Vs. SAIL and Central Bank of India Vs. Madhulika Guruprasad Dahir.
34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the 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. 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. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya Naidu Gowrishankar . Vs. Joshi Amba Shankar Family Trust, Ram Chandra Singh Vs. Savitri Devi, Roshan Deen Vs. Preeti Lal, Ram Preeti Yadav Vs. U.P. Board of High School & Intermediate Education and Ashok Leyland Ltd.
Vs. State of T.N).
35. In kinch Vs. Walcott (1929) AC 482, it has been held that "....mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 14 aside upon mere proof that the judgment was obtained y perjury."
Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.
.
36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."
6(iii) Hon'ble Apex Court in (2015) 8 SCC, 368, titled as Khub Ram v. Dalbir Singh and Others, held as under:-
"10. We have carefully looked into the averments made in the writ petition, the reply filed by State and other respondents as well as the judgment of the learned Single Judge as well as the Division Bench. We find no good reason to take a different view in respect of the finding that the appellant lacked the essential qualification of experience because his experience certificates were only from private bus operators. It is also found that even the alleged corrected certificate said to be dated 06.06.1989 contained in Annexure P-2 is an unreliable document inasmuch as the date 06.06.1989 is clearly a subsequent correction without any authorization by way of counter signature and so is the case with the words and letters 'June 1987' which have been altered subsequently by converting '1986' to '1987'. Even after such unauthorized corrections the total experience as per last line of the certificate remains two years. Had the Bus Service concerned issued a fresh corrected certificate then the experience from June 1987 to June 1988 could not have ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 15 been certified to be experience for two years. The list of dates also has been subsequently corrected to show the date of experience certificate, Annexure P-2 as 06.06.1989 in place of 05.06.1989. This appears to have been done at the instance of the appellant to justify his stand and apparently a bogus claim that he had obtained a correct certificate on the .
very next date when he found mistakes in the certificates dated 05.06.1989. Had this been the case, there was no occasion for submission of the certificate dated 05.06.1989 with his application which issue has been discussed in detail by the learned Single Judge.
11. Had the appellant not committed such acts for obtaining selection and appointment, we could have considered the issue of delay as well as judgments supporting such a claim. However, Mr. Patwalia has rightly submitted that delay in impleading the appellant could not weigh with this Court when a case of fraudulent entry into service has been found by the learned Single Judge as well as Division Bench and an attempt has been made by the appellant even to mislead this Court by producing Annexure P-2 and claiming it to be copy of the corrected certificate freshly issued on 06.06.1989. Such conduct of the appellant in our considered view disentitles the appellant - Khub Ram to get any relief under Article 136 of the Constitution of India.
12. Mr. Patwalia has rightly placed reliance to support the aforesaid submissions, on a judgment of this Court in the case of Meghmala v. G. Narasimha Reddy. The law relating to effect of fraud upon a competent authority to get an appointment/office as well as effect of fraud upon court has been discussed in detail in paragraphs 28 to 36 of the said judgment with which we are in respectful agreement. As a result, we hold that the appellant - Khub Ram is not entitled to hold the office which he obtained by submitting questionable certificates of experience and more so when he lacked the essential qualification of working experience in a Government/Semi-government/Public Sector Undertaking. Hence his appeal is dismissed."::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 16
7. Therefore, the judgment dated 26.06.2012, passed by learned Single Judge, is set aside. Appointment of respondent No.4, Ms. Meena Devi, is quashed and set aside. Respondents are at liberty to .
initiate fresh selection process for the post in question, in accordance with law.
8. Before parting, we shall be failing in our duty if we do not take into consideration the overall acts, conduct and behaviour of the Chairman and Members of the Selection Committee comprising Shri Gopal Chand, the then Sub Divisional Magistrate, Karsog (Chaiman), presently Deputy Commissioner, Kinnaur at Recong Peo, District Kinnaur, H.P., Smt. Bhuvneshwari Gupta w/o Shri Tara Chand Gupta, the then B.E.E.O Karsog-I (Secretary), resident of village and Post Office Pangna, Tehsil Karsog, District Mandi, Himachal Pradesh, Shri Kirat Ram s/o Shri Mangal Ram, the then officiating CHT, Government Primary School, Paloh, Education Block, Karsog-I (Member), r/o Village Porla, Post Office Tebban, Tehsil Karsog, District Mandi, Shri Ganga Ram, the then Pradhan, Gram Panchayat Tebban (Member), r/o Village Keulidhar, P.O. Tebban, Tehsil Karsog,District Mandi, Himachal Pradesh and Shri Tulsi Ram, the then Up-Pradhan, Gram Panchayat, ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 17 Tebban (Member), r/o village Porla, P.O. Tebban, Tehsil Karsog, District Mandi, Himachal Pradesh.
9. The Chairman of the Committee and also other Members, .
prima facie, were not fair in conducting the interviews of the candidates and in awarding marks to them. It is writ large on the face of the evaluation chart/the marks list produced in original before us that the marks originally awarded had been tampered with by way of interpolation, overwriting and cuttings made and thereby changed the result to the reasons best known to them. The Chairman and Members of the Committee have, therefore, rendered themselves liable to be dealt with in accordance with law. However, before that we would like to have their version(s) in the matter. Therefore, issue show cause notice to each of them for 16.09.2019.
The copy of evaluation chart/marks list, duly authenticated by the Deputy Registrar (Judicial) on perusal of the original lying in sealed cover be also supplied to them along with the show cause notices.
The record be re-sealed by the Deputy Registrar (Judicial) himself and retained for our perusal at the time of further consideration of this matter after filing of responses by the then Chairman and Members of the ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 18 Selection Committee to the show cause notices issued against them pursuant to this order.
.
(Dharam Chand Chaudhary) Judge (Jyotsna Rewal Dua) Judge August 20, 2019 (reena) ::: Downloaded on - 29/09/2019 02:19:53 :::HCHP 19 .
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