Allahabad High Court
Sudhakar Pathak And 15 Others vs State Of U.P. And Another on 11 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5278
Bench: Bharati Sapru, Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 35 Case :- SPECIAL APPEAL No. - 1105 of 2018 Appellant :- Sudhakar Pathak And 15 Others Respondent :- State Of U.P. And Another Counsel for Appellant :- Seemant Singh,Shri Ashok Khare Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha,Mohammad Ali Ausaf And Case :- SPECIAL APPEAL DEFECTIVE No. - 850 of 2018 Appellant :- Arun Ranjan And Another Respondent :- State Of U.P. And Another Counsel for Appellant :- Shiv Lal,Manvendra Narain Pathak Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha And Case :- SPECIAL APPEAL No. - 1134 of 2018 Appellant :- Shivam Patel And 6 Others Respondent :- State Of U.P. And Another Counsel for Appellant :- Ram Swaroop Umrao,Rajesh Kumar Srivastava Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha Hon'ble Bharati Sapru,J.
Hon'ble Saurabh Shyam Shamshery,J.
(Delivered by: Hon'ble Saurabh Shyam Shamshery, J) As the controversy involved in all these matters are similar and arise from the common order dated 04.10.2018 passed by the learned Single Judge whereby bunch of writ petitions, leading matter being the Writ Petition No.14724 of 2018, Sanjay Sharma and 37 Ors. Vs. State of U.P. & Anr, filed by the appellants have been dismissed, therefore, all are being decided by this common judgment. In Special Appeal Defective No.850 of 2018, the delay is condoned in view of the facts mentioned in the affidavit filed in support of the delay condonation application. The factual matrix sans unnecessary details, leading to filing of present special appeals are as follows- U.P. Subordinate Service Selection Commission had issued Advertisement No.4-Examination/2016 for Junior Assistant (Selection) Competitive Examination 2016. The schedule of the examination as per the advertisement was as follows:
Date of commencement of online registration of form-10.2.2016.
Date of commencement of online deposit of fee-12.2.2016.
Last date for registration for examination-29.2.2016.
Last date for depositing online fee for examination-2.3.2016.
Last date for submitting online application-4.3.2016.
(Later on extended upto 11.3.2016) Essential qualifications (Educational) for the Junior Assistant were prescribed in Clause 8 of the said advertisement, which were as follows:
"(i) Candidate should have passed intermediate or equivalent examination;
(ii) He should possess the typing speed of 25 words per minute and 30 words per minute in Hindi and English typing respectively; and
(iii) He should possess CCC Certificate issued from DOEACC or any equivalent certificate."
Comment No.1 of Clause (7) provides that only those candidates who have possessed the essential educational qualifications are competent to submit online form. Clause 15 (1) provides that those candidates who did not possess requisite essential qualification need not to submit form as they are not eligible. It is admitted case of all the appellants that they had undertaken the 'Course on Computer Concepts' (hereinafter referred as 'CCC') from the National Institute of Electronics and Information Technology and appeared in the examination of the said course on 08.2.2016 and their results were published on 9.3.2016 which is evident from their result cards placed on record. It is also admitted that the certificates from the institute were issued in the year 2017.
The appellants had submitted online application forms on 22.2.2016 as well as on some different dates, but all of them had submitted before 09.3.2016 the day when their results were published. In the online form there was a column below the heading for 'essential qualification details'. A specimen of the said column of the form filled by one of the appellants is mentioned herein below:
Sr No. Qualification Acquired Is Grade System Obtain Marks Total Marks Percentage % 1 Must have passed intermediate Examination from Board of High School and Intermediate U.P. or any Examination recognised by the Government as equivalent there to.
Yes No 346 500 69.2 2 Minimum 25 words per minute and 30 words per minute in typing is essential in Hindi and English respectively.
Yes N/A N/A N/A N/A 3 Must have CCC Certificate in Computer application provided by DOEACC Society or must have any Certificate as equivalent there to given by any Institute recognized by the Government. Yes N/A N/A N/A N/A (underlined by us) In the present case, we are concerned with the word marked as 'YES' at Serial No.3 in the column 'Acquired'. All the appellants had mentioned 'YES' despite they were fully aware that on the date of submitting their applications, neither their results were declared nor certificates were issued. The appellants have not denied this factual aspect. This is a clear case of fraudulent misrepresentation and by putting the word 'YES' they have wilfully mislead the commission. It is settled proposition of law that 'fraud vitiates every solemn act' and 'fraud and justice never dwell together'. Appellants appeared in the interview with the help of interim order passed by the learned Single Judge. Subsequently, all the appellants had passed the typing test also. The learned Single Judge by a detailed judgment dated 04.10.2018 dismissed the bunch of writ petitions (leading being Writ A No.14724 of 2018, Sanjay Sharma and 37 Ors. Vs. State of U.P. & Ors). The learned Single Judge after considering different aspects of the case has held that:
"This Court is aware of the Constitution Bench Judgement in RAMANA DAYARAM SHETTY Vs. International Airports Authority of India reported in 1979 SCC (3) 489 where the Supreme Court has relied upon American Authority on the similar proposition of law with regard to the change of the eligibility conditions during the selection procedure, to include the persons who were ineligible at the time of making of advertisement. The Hon'ble Supreme Court has referred to the said principle saying that he who holds the procedural sword shall perish with the sword. The Hon'ble Supreme Court has also observed that several other persons who did not possess the required qualifications may not have applied, honestly believing that the Selection Committee shall follow the Rules laid down by it for admitting the candidature of all applicants. Such persons cannot be allowed to be discriminated by the arbitrary procedure of selection adopted by the Selection Committee in including those persons who were although ineligible were allowed to participate in the selection as well."
(Emphasis is supplied by us) Now the appellants have filed the present special appeals.
We have heard the learned counsels for the parties and perused the record.
The facts of the present case are crystal clear. There is no doubt that the appellants despite being fully aware of the fact that they did not possess the requisite qualification with respect of the CCC Certificate, declared that they possessed the Certificate of CCC course at the time of submitting the online form and as such they have committed misrepresentation and fraud. Even their results were not declared on the date of submitting online form. Learned counsel for the appellants has also submitted that case of the appellants be considered on the ground of equity as they are successful in the examination and now they have possessed the requisite certificate of CCC course also. We are of the considered opinion that such submission is devoid of merit and cannot be accepted. At this juncture, it is relevant to quote a judgment passed by Hon'ble Supreme Court rendered in the case of State of U.P. & Ors. Vs. Ravindra Kumar Sharma & Ors, 2016 (4) SCC, 791, wherein it has held that:
"7. In Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors, (2005) 7 SCC 605, it was observed:
"16. In Lazarus Estates Ltd. v. Beasley (1956) 1 All ER 341, Lord Denning observed at QB pp. 712 and 713: (All ER p. 345 C) '....No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.' In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (p 722). These aspects were recently highlighted in State of A.P. Vs. T. Suryachandra Rao (2005) 6 SCC 149."
8. In Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 it was held thus:
"15. .... Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
x x x
23. 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.
x x x
25. 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.
26. In Shrisht Dhawan v. Shaw Bros. (1992) 1 SCC 534, it has been held that: (SCC p. 553, para 20) '20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.' x x x
29. In Chittaranjan Das v. Durgapore Project Ltd. (1995) 99 CWN 897, it has been held: (Cal LJ p. 402, paras 57-58) '56. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation.
57. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby.' The appellants were candidates, who were applying for responsible government services and at the very threshold of their career they had indulged in giving wrong and misleading information. It is expected of every person, who hopes to be in any kind of service to render honest, faithful and dedicated service. To start with misrepresentation is an indication that even in the future, the person may indulge in such acts of fraud and wrong doing. Such action not to be tolerated.
Thus, we hold that the appellants had indeed indulged in acts of misrepresentation and had knowingly submitted incorrect information in their application forms with regard to their qualifications and, thus, we are of the opinion that they would not be entitled for any relief in these appeals as fraud vitiates everything. It is indeed unfortunate that young people, who seek to embark upon a career of responsibility should indulge in such wrong doing. It does not reflect very well on the inherent nature and conduct of the candidate.
For all the reasons stated above, we decline to interfere in this matter.
In view of the foregoing discussions, all the special appeals are dismissed.
No orders as to costs.
Order Date:-11.12.2018 SB