Sudhir Agarwal, J.@mdashWrit petition has been restored to its original number vide order of date passed on restoration application. Since pleadings are complete, as requested by learned Counsel for the parties, the writ petition is taken up for hearing and is being disposed of finally.
2. It is contended that the petitioner was appointed on officiating basis by District Development Officer, Maharajganj on 11.12.1991 and was regularised by order dated 13.1.1992 but by means of the impugned order dated 16.1.1992, passed by the District Magistrate, Maharajganj it was directed that all Class III and Class IV appointments made in the last six months in the office of District Development Officer shall stand cancelled. It is contended that the impugned order is in utter violation of principle of natural Justice and hence is liable to be set aside. It is also stated that the petitioner was appointed pursuant to the recommendation made by selection committee and having been regularised on Class IV post ought not to have been terminated abruptly by such an order and hence the impugned order is illegal and liable to be set aside. Reliance is placed on a single Judge judgment of this Court in
3. The respondents have filed a counter-affidavit stating that the recruitment to Class IV post in the State is governed by the Group "D" Employees Service Rules, 1985 (hereinafter referred to as the "1985 Rules") as amended in 1986. A detail procedure for recruitment is provided in the said Rules but without following the said procedure, in a wholly fraudulent manner, the District Development Officer initiated the proceedings and made such appointments. Actually it so happened that the District Development Officer get an advertisement published in daily newspaper "Dalnik Jagran" dated 5.12.1991 for clerical post, i.e., Junior Clerk and Junior Accounts Clerk. Last date for submitting applications provided therein was 7.12.1991 and date of interview was shown as 23/24.12.1991. The District Magistrate, however, observing that a very short time was given for submitting applications, deferred the interview and allowed receipt of the applications till 30.12.1991 after giving a fresh advertisement in the newspaper by his order dated 19.12.1991. However, subsequently by order dated 21.12.1991 the District Magistrate cancelled the entire selection proposed in clerical posts. It appears that thereafter a suit was filed being Suit No. 21 of 1992 in the court of Munsif wherein an injunction was granted restraining the respondents from proceeding with the selection and not to make any further selection on the post in question. The District Magistrate accordingly passed an order dated 13.1.1992 restraining the District Development Officer from making any appointment.
4. However, in the case in hand, the District Development Officer without making any advertisement or requisition to the employment exchange, made certain officiating appointments and also on his own passed order for regular appointment without there being any regular selection made in accordance with 1985 Rules. A complain to this effect was received by the District Magistrate. He passed the impugned order particularly considering one more fact that State Government by order dated 17.7.1991 has imposed ban for making any appointment. It is further stated that the petitioner never appeared before any selection committee either on 1.10.1991 or 13.9.1991. Besides, there was no post of Messenger sanctioned nor any advertisement was ever issued and the entire appointment was wholly illegal and fraudulent. It is said that the District Development Officer proceeded wholly illegally and departmental action has been initiated against him.
5. In the rejoinder-affidavit the petitioner has reiterated what has been said in the writ petition stating that the selection committee made recommendations of several persons but has not given any detail as to how and in what manner vacancies were advertised, when the selection was made and the details of the constitution of selection committee.
6. Having heard learned Counsel for the parties and perusing the record, I find that the petitioner is not entitled for any relief.
7. From the pleadings it is evident that Class IV post on which the petitioner claims to have been appointed were never advertised. Rule 19 of 1985 Rules provides procedure for selection which reads as under:
19. Procedure for Selection.- (1) The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of the vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories. The vacancies shall be notified to the Employment Exchange. The appointing authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the appointing authority shall issue an advertisement in a local daily newspaper besides posting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee.
(2) When the names both of the general candidates and reserve candidates for whom vacancies are required to be reserved under the orders of the Government have been received by the Selection Committee it shall interview and select the candidates for various posts.
(3) In making selection the Selection Committee shall give weightage to the retrenched employees awarding marks in the following manner:
(i) For the first complete year - 5 marks
(ii) For the next and every completed year of service - 5 marks:
Provided that the maximum marks awarded to a retrenched employee under this sub-rule shall not exceed 15 marks.
(4) The number of the candidates to be selected will be larger (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made. The names in the select list shall be arranged according to the marks awarded at the interview.
8. There is nothing on record that the vacancy was ever advertised in the newspaper and any requisition sent to employment exchange. There is also nothing on record to show that any selection committee as provided in 1985 Rules was ever constituted. The petitioner was appointed on purely officiating basis as Messenger (Patravahak) in the scale of Rs. 750-940 by order dated 11.12.1991, passed by the District Development Officer with the condition that the same is liable to be terminated at any point of time and the petitioner was posted in Development Block Partawal. Pursuant whereof the petitioner claims to have joined on 12.12.1991. Thereafter the District Development Officer transferred him to Awas Vikas Parishad, Maharajganj by order dated 13.12.1991 pursuant whereof the petitioner claims to have joined on 1.1.1992. The above officiating arrangement claims to be regularised by order dated 13.1.1992, passed by the District Development Officer, Maharajganj allegedly pursuant to the approval of the selection committee. In the entire writ petition there is nothing on record to show as to when the above selection committee made selection and whether the petitioner ever appeared before the selection committee for interview etc. On the contrary, from para 18 of the rejoinder-affidavit it appears to be admitted by the petitioner that there was no question of any advertisement or facing selection committee since the above recommendation was for regularisation and not for making any selection.
9. Even from the Judgment relied on by learned Counsel for the petitioner it is evident that Hon''ble single Judge has recorded a finding of fact, after considering entire matter on merits that all appointments made by the District Development Officer were utterly illegal and fraudulent as is evident from the following:
Accordingly, as held above, on the one hand, all the appointments were utterly illegal and fraudulent; the then D.D.O., Shiv Ram Bhatt made the appointment for extraneous considerations and no rule was followed. Appointments were made in spite of restraint order by the D.M. No interview was held for these posts. Reasonable opportunity to apply was not provided to the general public. Accordingly, all the appointments were illegal.
10. Having said so, the Hon''ble single Judge thereafter has noticed that since the order of cancellation impugned in the writ petition passed by the District Magistrate does not give a reason as a result whereof the petitioners in that matter were able to get interim order and continued to work. In these circumstances, His Lordship has observed that the order dated 16.1.1992 is not in accordance with law and disposed of the writ petition with the following directions:
All the petitioners must be permitted to continue to work on the posts on which they were appointed until they attain the age of superannuation. However, they must be paid the salary at the lowest level of the same pay scale on which they were appointed. They must not be entitled for any increment or any revision of pay subsequently effected. Petitioners of the first three writ petitions were appointed in the pay scale Rs. 950-1,500. Accordingly, they must be continued to be paid only the basic pay of Rs. 950 without any increment or benefit of revision of pay apart from clearness allowance admissible on Rs. 950 pay. No other allowances shall be given to them. They shall not be entitled for any promotion. If any promotion has already been granted, the same shall stand withdrawn with immediate effect. They shall not be entitled for any retiral benefit apart from the amount which they may have contributed towards provident fund. However, salaries and other benefits paid to the petitioners till date shall not be refundable.
Sri Shiv Ram Bhatt, the then D.D.O. is liable to pay damages of Rs. 1 lac for each of the petitioners (total Rs. 21 lacs). This amount shall be recovered from him like arrears of land revenue. If he has died, the amount shall be recovered from the property left behind by him. Recovery shall positively be made by the Collector concerned within four months and the amount shall be deposited in the Government treasury. The other two members of selection committee are also liable to pay Rs. 25,000 each per petitioner as damages to the State (5.25 lacs each) as they were equal partners in illegal design of D.D.O., Sri Shiv Ram Bhatt. The said amount shall also be recovered from them in the same manner.
Compliance report shall be filed within six months.
Office is directed to supply a copy of this judgment to learned chief standing counsel within a week.
11. It is not in dispute that against the aforesaid judgment dated 5.5.2009 of the Hon''ble single Judge, Special Appeal No. (1185) of 2009, State of U.P. and Ors. v. Daya Shanker Upadhyay, was filed wherein the operation of the judgment dated 5.5.2009 has been 3tayed by Hon''ble Division Bench.
12. Counsel for the petitioner submitted that despite of the stay having been granted to the above judgment the petitioner is also entitled for similar relief.
13. In my view once it is evident that the appointment of petitioner was illegal and fraudulent, no question of indulgence granting any relief to petitioner would arise for the simple reason that fraud vitiates everything. If that is so, question of considering the order cancelling fraudulent order, whether having passed in accordance with law, may not be necessary to be considered since the very basis on which the appointment is claimed by an incumbent is a nullity in the eyes of law and once the very basis of the right of an incumbent goes, the subsequent order passed by the authority of mere declaration of such fraudulent order to be illegal would not confer any life to such fraudulent order if the subsequent order passed by the authority even if found to be not in accordance with law.
14. It is now well-known that the fraud vitiate all solemn acts. In Smith v. East Ellos Rural District Council (1956) 1 All ER 855, it was held that the effect of fraud would normally be to vitiate all acts and orders. In Lazarus Estate Ltd. v. Beasely (1956) 1 QB 702, Lord Denning, I.J. said:
No judgment of Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. "Fraud unravels everything".
15. In the same judgment, Lord Parkar, C.J. said:
Fraud vitiate all transactions known in the law to whatever high degree of solemnity.
16. In Deny v. Peek 1986 90 All ER 1, what constitute fraud was described as under:
Fraud is proved when it is shown that the a representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.
17. It is stated when a document has been forged, it amounts to a fraud. In Webster''s Comprehensive Dictionary, International Edn., "forgery'' is defined as:
The act of falsely making or materially altering, with intent to defraud; any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability.
18. Thus, forgery is the false making of any written document for the purpose of fraud or deceit. Its definition has been quoted with approval by Apex Court In
since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a part, the Court has the inherent power to recall its order.
19. Extending the said principle to the Tribunal, in
We have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation...
20. Similar is the view taken in
21. In
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.
22. It is well-settled that where an order of appointment is wholly illegal and void ab initio, neither the principles of natural justice would be attracted in such a case nor any irregularity in the order passed by the authorities concerned declaring the fraudulent orders to be illegal would make it valid for any purpose whatsoever.
23. Even otherwise, the petitioner having invoked equitable extraordinary jurisdiction of this Court under Article 226 of the Constitution cannot seek the revival of an illegal order by stressing that since the order cancelling such illegal order is in violation of principle of natural justice or without reason, therefore, this Court is under an obligation to revive an illegal order of his appointment. It is well-settled that this Court shall be justified in refusing to grant any indulgence in a case where setting aside of an order would result in revival of another illegal order.
24. In view of the above discussion, I find no merit in the writ petition. Dismissed. No costs.
