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2008 DIGILAW 598 (ORI)

RENUBALA JENA v. STATE OF ORISSA

2008-07-28

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT : B.S. Chauhan, C.J. - This writ appeal has been filed against the judgment and order of the learned Single Judge dated 14.2.2007 passed in W.P.(C) No. 12360 of 2004 by which the learned Single Judge has allowed the petition filed by the Respondent No. 4 and issued direction for her appointment as Anganwadi Worker removing the Appellant from the said post. 2. The facts and circumstances giving rise to the case are that an advertisement for the post of Anganwadi Worker in Radho Anganwadi Centre in the district of Bhadrak was published. The candidates who had applied pursuant to the said advertisement were called for an interview vide letter dated 22.12.2000. A select list was prepared and the present Appellant - opposite party No. 4 in the writ petition was appointed. Her appointment was challenged by Respondent No. 4 in appeal on the ground that she had secured more marks and the Appellant had wrongly been appointed. 3. Learned Single Judge after considering the submissions made by the parties and perusing the original record came to the conclusion that the writ Petitioner-Respondent No. 4 had secured more marks than the present Appellant and quashed the appointment issued to the Appellant and directed appointment of Respondent No. 4. While deciding the case, learned Single Judge has taken note of the fact that there had been some manipulation in the marks given to them by the members of the Selection Committee. 4. Learned Counsel for the Appellant has submitted that by all means the Appellant had secured more marks than Respondent No. 4. On this ground, the Respondent No. 4 could not have been directed to be appointed by the learned Single Judge. On the contrary, learned Counsel for the Respondent No. 4 submitted that there had been manipulation in the marks awarded by the members of the Selection Committee and in fact, Respondent No. 4 had secured more marks the judgment and order impugned does not require any interference. 5. After considering the submissions made by the learned Counsel for the parties, and perusing the record, we requested the learned Addl Standing Counsel to produce the original record of selection. It reveals a very sorry state of affairs as it is evident from the record that there were four members in the Selection Committee and each one of them had given separate marks to each candidate. It reveals a very sorry state of affairs as it is evident from the record that there were four members in the Selection Committee and each one of them had given separate marks to each candidate. Admittedly there have been manipulations in the marks given in the interview by the Sub-Collector and by the Child Development Project Officer. Marks awarded to the present Appellant Renubala Jena by the Sub-Collector have definitely been reduced by manipulation. The said Sub-Collector had awarded the Respondent No. 4 some lesser marks which have subsequently been increased to 10 by manipulation. 6. Similarly in the marks given by the Child Development Project Officer, Renubala Jena had been given 1 mark which had been manipulated to be 9. Similarly Bijaya Kumari Jena had been given 3 marks which had subsequently been manipulated to be 10. Even while taking the average after aggregating all the marks, the calculation has not been made correctly. 7. We asked the learned Counsel for the parties under these circumstances that if the manipulation had been to the sinking extent, what could be the sanctity of the Selection Process at all. We also find from the record that the District Collector has also expressed his anguish about the manipulation of the record and expressed his desire to hold a fresh selection. There is nothing on record to show as at what stage the manipulation has been made. 8. In the instant case, even it is evident that the manipulation has been made by the person not at the behest of Respondent No. 4, the Selection Process is to be vitiated and the same has lost its sanctity. 9. 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. This principle would apply also in a case where the appointee had not played any fraud but has been the beneficiary thereof. "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 with put 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," 10. Vs. Jagannath (dead) by L.Rs. and others. In Lazarus Estate Ltd. v. Besalay 1956 All.E.R. 349, the Court observed with put 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," 10. In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, ; and State of Maharashtra and Others Vs. Prabhu the Hon'ble 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." 11. 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, 12. 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. 13. The ratio laid down by the Hon'ble 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/or has been the beneficiary of manipulation though not played any fraud or misrepresentation himself. 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. 14. 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. 14. 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. 15. 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. 16. More so, if initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Subla Fundamental credit 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 Protest 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, Vs. Union of India and Others, ). 17. In view of the above, at this stage, learned Counsel for the parties have conceded fairly that the selection stood vitiated because of the aforesaid admitted manipulations. However, it has been contended by them that the matter be relegated to complete the selection process dealing afresh from the point it stood vitiated. The interview should be restricted only to Appellant and Respondent No. 4. 18. The question does arise as to whether such a joint request is worth acceptance. 19. A Constitution Bench judgment of the Hon'ble Supreme Court in Cumbum Roadways (P) Ltd. Vs. Somu Transport (P) Ltd. and Others wherein the Hon'ble Apex Court observed as under: On principle, therefore, it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring-up the matter before the High Court, simply because as the matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by the consolidated order. Therefore, we are of the opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour or against the parties which have not come to it. (emphasis added). 20. Similar view had been taken by the Hon'ble Supreme Court in Hanuman Transport Corporation v. Meenakshi G. Ramabhai, Civil Appeal No. 794 of 1963, decided,on 20.2.1963. A similar view has been reiterated in The Anamalais Bus Transports (P) Ltd., Pollachi Vs. Tiruppur KarurTransports (P) Ltd.. Tiruppur and Others. The same view has been taken by the Rajasthan High Court in M/s. Rajasthan Barytes Ltd. and Anr. v. State of Rajasthan and Ors. (1999) 2 RLW 835. 21. In view of the above, in an appropriate case as the other persons were satisfied with the result of the selection process though may be manipulated, and did not approach the "Court or any other Forum, the matter could have been restricted between the Appellant and Respondent No. 4. However, in view of the fact that the entire selection process stood vitiated because of the manipulation, such an order cannot be issued and all the four candidates who were called for the interview should be recalled again and fresh selection may be held from the stage of interview and the same should be completed within a period of six weeks from the date of production of certified copy of this order before the learned District Collector, Bhadrak. 22. The appeal stands allowed and disposed of accordingly. No costs. B.N. Mahapatra, J. 23. I agree. Final Result : Allowed