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2008 DIGILAW 1133 (ORI)

TILOTTAMA KANHAR v. STATE OF ORISSA

2008-12-12

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT : Dr. B.S. Chauhan, C.J. - This Writ Petition has been filed for quashing the orders under Annexure-6 dated 29.9.2004 and Annexure-7 dated 30.9.2004 by which the service of the Petitioner had been terminated and she had been relieved from service. 2. The facts and circumstances giving rise to the case are that an advertisement dated 20.5.2000 was issued by the District Judge, Phulbani inviting applications for filling up four posts of Junior Stenographer in the judgeship of Kandhmal Boudh, Phulbani. The Petitioner had applied pursuant to the said advertisement. However, her name did not appear in the select list. All the posts were filled up. Subsequently, she had been offered appointment at a much later stage in spite of the fact that her name did not find place in the select list waiting list therein. It came to the knowledge of the Learned District Judge later on that Petitioner and Ors. had been appointed without any authority of law and without following any procedure prescribed by law. The Petitioner was served with a show-cause notice under Annexure-4. She had submitted her reply to the same under Annexure-5 and considering her reply, her services had been brought to an end on 29.9.2004 and she was relieved from service vide Order Dated 30.9.2004. Hence this Writ Petition. 3. There is nothing on record to show that the name of the Petitioner had ever find place anywhere in the select list pursuant to the aforesaid advertisement. Therefore, her appointment had been a product of fraud and corruption. It is settled legal proposition that fraud vitiates everything. 4. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others. In Lazarus Estate Ltd. v. Besalay, 1956 All.E.R. 349, 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." 5. In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, ; and State of Maharashtra and Others Vs. In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, ; and State of Maharashtra and Others Vs. Prabhu the Apex Court has observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. "Equity is also, known to prevent the law from the crafty evasions and sub-letties invented to evade law." 6. In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers it has been held as under:? Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. 7. In United India Insurance Co. Ltd. Vs. Rajendra Singh and Others the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries. 8. The ratio laid down by the Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud by entertaining the petitions on their behalf. In Union of India and Ors. v. M. Bhaskaran, 1995 Suppl. (4) SCC 100, the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi observed as under:? If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer. 9. Similar view has been reiterated by the Apex Court in S. Pratap Singh Vs. The State of Punjab, ; Ram Chandra Singh Vs. Savitri Devi and Others, ; and Vice Chairman, Kendriya Vidyalaya-Sangathan and Anr. v. Girdharilal Yadav, (2004) 6 SCC 325. 10. The Common Law doctrine of public policy can be enforced wherever an action affects/offends public interest or where harmful result of permitting the injury to the public at large is evident. 11. More so, if initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. 10. The Common Law doctrine of public policy can be enforced wherever an action affects/offends public interest or where harmful result of permitting the injury to the public at large is evident. 11. More so, if initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Subla Fundamento cedit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. Nullus Commodum capere Potest De Injuria Sua Propria. (Vide Union of India and others Vs. Major General Madan Lal Yadav (Retd.), ). The violators of law cannot be permitted to urge that their offence cannot be subject matter of inquiry, trial or investigation. (Vide Lily Thomas and Ors. v. Union of India and Ors. AIR 2000 SC 1650 ). 12. No person can claim any right arising out of his wrong doing. (Juri Ex Injuria Non Oritur). 13. In view of the above, as there is nothing on record to show that the Petitioner could have been appointed without her name being in the select list or against any future vacancy, the petition lacks merit and is dismissed being totally misconceived. B.N. Mahapatra, J. 14. I agree. Final Result : Dismissed