JUDGMENT C.R. Sarma, J. 1. The order dated 22.12.2000, and the Judgment and Order dated 24.11.2003, passed in WP(C) No. 7193/2000, are in challenged in this appeal. The learned Single Judge by the interim order, dated 22.12.2000, suspended the operation of the order, dated 25.08.1999 and 17.09.1999, and by judgment and order dated 24.11.03 the learned Single Judge, while allowing the writ petition, allowed the writ Petitioner to continue with his service on the basis of the date of birth shown in the service book as on 01.01.1947. The relevant facts leading to filing of this appeal by the Appellant may, briefly, be stated as under. 2. The writ Petitioner was serving as a teacher in No. 1856 Dighal Khal L.P. School. By his letter, dated 25.08.99, the Block Elementary Education Officer, Katigorah, Kalain, informed him that though he was due to retire on superannuation on 31.03.1998, the Petitioner was continuing with the service on the basis of unauthentic age proof certificate. Therefore, by the said letter the Petitioner was directed to produce the original age proof certificate and till then his pay was help up. Subsequently, vide letter dated 17.09.90, the Block Elementary Education Officer, Katigorah, Kalain, served the writ Petitioner with a notice of superannuation informing him that his actual date of retirement was 31.03.1998 and as such he should refund the entire amount already drawn w.e.f. 31.03.1998. 3. According to the writ Petitioner as per the reconstructed service book, his date of birth being 01.01.1947 he was not due for superannuation on 31.03.1998. Accordingly, the Petitioner submitted representations before the District Elementary Education Officer Cachar District, as well as the Departmental Secretary at Dispur, placing before the state authority various documents including his school certificate. 4. Failing to receive any response in respect of his representations the Petitioner approached this Court by filing Writ Petition No. 7193/2000, wherein the interim order, dated 22.12.2000, passed by the Court suspending the operation of the orders dated 25.8.99 and 17.09.1990. 5. The notice being issued the State Respondents did not file any affidavit-in-opposition refilling the contentions made in the writ petition. The Court directed the District Elementary Education Officer, Cachar to submit the service book of the Petitioner, pursuance to which the requisite records were placed before the Court by the learned Government Advocate, Assam. 6. 5. The notice being issued the State Respondents did not file any affidavit-in-opposition refilling the contentions made in the writ petition. The Court directed the District Elementary Education Officer, Cachar to submit the service book of the Petitioner, pursuance to which the requisite records were placed before the Court by the learned Government Advocate, Assam. 6. The record submitted by the State Respondents, included the original service book of the Petitioner as well as the reconstructed service book. In the original service book, there was no entry against the column with regard to the date of birth whereas in the reconstructed service book, the date of birth has been shown as 01.01.1947. 7. As no materials was placed by the State Respondents, before the learned Single Judge, in support of the impugned action, the Court considering materials on record and in view of the entry with regard to the date of birth of the writ Petitioner as revealed from the reconstructed service book, concluded that the impugned order dated 17.09.1999 was not rational and reasonable. 8. Accordingly the learned Single Judge, by the impugned order, dated 24.11.03 while interfering with the impugned order, dated 17.09.1999 allowed the Petitioner to continue in the service on the basis of his date of birth recorded in the service book as on 01.01.1947. With the above direction the writ petition was allowed. 9. Aggrieved by the said orders, dated 22.12.2000 and 24.11.2003, the Deputy Inspector of Schools Cachar, Silchar, Cachar who was the Respondent No. 5 in the writ petition, has come up with this appeal challenging the said orders on the ground that the impugned orders were obtained by the writ Petitioner by playing fraud and manipulating his date of birth. As the orders were obtained by fraud and misleading the Court, the Appellant has prayed for setting aside the impugned judgment and order aforesaid. 10. We have heard Mr. M.U. Mahmud, learned Government Advocate, Assam and Dr. B. Ahmed, learned Counsel appearing for the private Respondent. 11. Mr. M.U. Mahmud, the learned Government Advocate supporting the contention made in this appeal has submitted that the Petitioner manipulated his date of birth as on 01.01.1947 by submitting forged and fabricated school certificates. 10. We have heard Mr. M.U. Mahmud, learned Government Advocate, Assam and Dr. B. Ahmed, learned Counsel appearing for the private Respondent. 11. Mr. M.U. Mahmud, the learned Government Advocate supporting the contention made in this appeal has submitted that the Petitioner manipulated his date of birth as on 01.01.1947 by submitting forged and fabricated school certificates. The learned Counsels for the Appellant submitted that the school certificates relied on by the writ Petitioner was and alleged to be issued by the Headmaster of the 12 Leverputa L.P. School, Cachar district and the Gumra Public M.E. School in Cachar District, showing therein the date of birth of the Petitioner as 01.01.1947, were forged documents, in as much as during the subsequent enquiry made by the District Elementary Education Officer and the Deputy Inspector of School, it was found that the said Head Masters did not issue the certificates aforesaid in favour of the writ Petitioner. 12. The learned Government Advocate further submitted that as per the school registers the date of birth of the Respondent/Petitioner was on 01.04.1940 and as such his death of retirement was 31.03.1998. It is also submitted that after thorough enquiry the Sub Inspector of School on 06.10.1971 submitted a report indicating therein that the Petitioner's claim that his death of birth was 01.01.1947 was false but the report was not brought to the notice of the learned Single Judge consequent upon which the impugned order dated 24.11.2003 was passed. 13. It is further submitted that the present Deputy Inspector of Schools after joining his post on 04.05.2005, made a thorough enquiry perusing the records and submitted a detailed report to the Government on 05.11.05 (Annexure-17), and that upon receipt of the said report, the Government directed the Appellant to file the appeal. 14. The learned Government Advocate in support of his contention that the certificates used by the Petitioner were forged referred to the clarifications issued by the teacher of the 12 Leverputa Primary School, and the Head Master of the Gumra Public M.E. School, which have been annexed as Annexures Nos. 7 and 9 respectively to the writ appeal. 15. By Annexure No. 7, it was stated that the certificate purported to be issued by the name of the writ petition was not issued to the Md. A.R. Laskar, teacher of the said school. 7 and 9 respectively to the writ appeal. 15. By Annexure No. 7, it was stated that the certificate purported to be issued by the name of the writ petition was not issued to the Md. A.R. Laskar, teacher of the said school. Annexure No. 8 indicates that the certificate purported to be issued by the Head Master on 04.09.1974 in favour of Sri Khalilur Rahman Borbhuiya (writ Petitioner) was false and fabricated. In Annexure-9, it was mentioned that as per the records maintained in the Gumra Public M.E. School, the name of the Khalilur Rahman, son of Late Amir Ali (Writ petition) was not available in the school register. 16. At paragraph 2(E)-2, of this writ appeal it was categorically stated that the certificates produced by the writ Petitioner in support of his claim that his date of birth was on 01.01.1947, were fake, false and fabricated. 17. To fortify his contention the learned Government Advocate has relied on the decisions held in the cases of A.V. Papayya Sastry and Ors. v. Government of A.P. and Ors., reported in (2007) 4 SCC 221 , Krishna Mohan Kul @ Nani Charan Kul and Anr. v. Pratima Maiiy and Ors., reported in (2004) 9 SCC 468, Hamza Haji v. State of Kerala and Anr., reported in (2006) 7 SCC 416, and the case of State of A.P. and Anr. v. T. Suryachandra Rao, reported in (2005) 6 SCC 149 . 18. The learned Government Advocate has submitted that the impugned order having been obtained by the Petitioner on the basis of the forged documents and by misleading the Court the order is vitiated and the same cannot be legal and valid. 19. It is also submitted that the order, obtained by misleading Court and by playing fraud, can be challenged in any Court and as such the impugned order is liable to be a set aside by this appellate Court. 20. Controverting the said argument advanced by the learned Government Advocate Dr. 19. It is also submitted that the order, obtained by misleading Court and by playing fraud, can be challenged in any Court and as such the impugned order is liable to be a set aside by this appellate Court. 20. Controverting the said argument advanced by the learned Government Advocate Dr. B. Ahmed, learned Counsel, appearing for the private Respondent/writ Petitioner has submitted that before the learned Single Judge, the Respondent state authority failed to produce any document or material to refute the claim of the Petitioner and as such the learned Single Judge rightly passed the impugned order and that the plea of forgery not being taken before the learned Single Judge, the Appellant can not challenged the order passed by the learned Single Judge, by raising some new pleas/grounds. 21. Dr. B. Ahmed, the learned Counsel, appearing on be half of the private Respondent contended that, the fraud not being proved by due procedure of law, the Appellant can not be permitted to challenge the order passed by the learned Single Judge. 22. Having heard the learned Counsel for both the parties and carefully perusing the impugned order dated 24.11.2003, aforesaid it is found that be fore the learned Single Judge, the Petitioner specifically claimed that on the basis of the entry made in the reconstructed Service Book his date of birth was 01.01.1947 and as such he was entitled to continue his service beyond 31.03.1998. The Petitioners/State Respondents did not make any attempt to produce any materials before the Court. It was noticed by the learned Single Judge. 23. As the State Respondents did not take any steps to controvert the said claim, the Court, vide order dated 13.03.1998 directed the District Elementary Education Officer, Cachar to submit to the Court the service book of the Petitioner and accordingly the requisite records contending the original service book of he Petitioner as well as the reconstructed service book were placed before the Court. Perusing the said Service Book, it was noticed by the Court that in the original Service Book there was no entry against the column with regarding the date of birth while in the reconstructed Service Book the date of birth w as shown as on 01.01.1947. Perusing the said Service Book, it was noticed by the Court that in the original Service Book there was no entry against the column with regarding the date of birth while in the reconstructed Service Book the date of birth w as shown as on 01.01.1947. It was also observed by the Court, that the re-construction was made on due and proper consideration c f all relevant facts and circumstances as well as all the relevant papers and documents submitted by the Petitioner and otherwise available. The service book was reconstructed on the basis of the order dated 19.02.2003 passed by the Director Elementary Education. 24. The learned Single Judge while allowing the writ petition observed: In the reconstructed Service Book the date of birth of the Petitioner having been shown as 01.01.1947 and the reconstruction having been made pursuant to the order of the director dated 19.02.2003, obviously the Petitioner was not due for superannuation on 31.03.1998. Errors, therefore, are apparent on the face of the impugned order 17.09.1999. As no material has been laid before the Court in support of the impugned action, little persuasion will be required to enable this Court to come to the conclusion that the impugned order dated 17.09.1999, discloses no rational and reasonable basis. With the above observation, the impugned order dated 17.9.99 issued by the authority was interfered and the writ Petitioner was allowed to continue in service on the basis of his date of birth recorded in the Service Book as 1.1.47. 25. There is no dispute that the State Respondents failed to take any plea regarding forgery or manipulation in respect of the certificates submitted by the Petitioner in support of his claim regarding date of birth. The State Respondents also failed to controvert the contention made in the writ petition regarding the date of birth of the Petitioner. Therefore, the Petitioner's plea that his date of birth should be 1.1.47 stood unchallenged. 26. In view of the above, in our considered opinion, the learned Single Judge, on the basis of the records available before the Court rightly came to the conclusion that the date of birth of the Petitioner being 01.01.1947, he was not liable to go on superannuation on 31.03.1998 and that the impugned order dated 17.09.1990 passed by the State authority were irrational and unreasonable. 27. 27. Supporting the contention made in this appeal the learned Government Advocate submitted that the Sub Inspector of Schools Silchar, in his report dated 06.02.2010 addressed to the Deputy Inspector of School mentioned that the claim of the Petitioner, that his date of birth was 01.01.1947, was false, but the matter was not brought to the notice of the Court. The learned Government Advocate further submitted that, subsequently, the present Appellant after joining his service on 04.05.2002, made a thorough enquiry and unearth that the Petitioner obtained the order on the basis of the forged documents and, thus, misleading the Court, for which he cannot draw any benefit from such order passed by the Court. 28. Referring to the decision held in the case of A.V. Papayya Sastry and Ors. v. Government of A.P. and Ors., reported in (2007) 4 SCC 221 , the learned Counsel submitted that the order obtained by fraud or misrepresentation can be challenged at any time and in any Court i.e. before the appellate Court also. 29. In the above referred case the Hon'ble Supreme Court held: It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order by the first Court or by the final Court-has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. 30. The Supreme Court in the above referred case observed: Now it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke Proclaimed: Fraud avoids all judicial acts, ecclesiastical or temporal. 31. The Hon'ble Supreme Court referred to the following observation made by the Lord Denning in the case of Lizarus Estates Ltd. v. Beasley reported in (1956) 1 All ER 341: No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. 32. The Hon'ble Apex Court referred to the case of United India Insurance Co. 32. The Hon'ble Apex Court referred to the case of United India Insurance Co. Ltd. v. Rajendra Singh, reported in (2000) 3 SCC 581 , in which by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached the Hon'ble Supreme Court. Allowing the appeal and setting aside the orders, the Hon'ble Supreme Court stated: 15. It is unrealistic to expect the Appellant Company to resist a claim at the first instance on the basis of the fraud because the Appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. 16. Therefore, 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 of misrepresentation of such a dimension as would affect the very basis of the claim. 33. In the case of State of A.P. and Anr. v. T. Suryachara Rao, reported in (2005) 6 SCC 149 , the Hon'ble Apex Court referred to the following enervation made in leading English case i.e. Deny v. Peek, reported in 5 1886 All ER Rep 1 : (1889) 14 AC 337 (ML). Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (i) without belief in its truth, or (iii) recklessly, careless whether it be true or false. 34. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (i) without belief in its truth, or (iii) recklessly, careless whether it be true or false. 34. In the case of Krishna Mohan Kul @ Nani Charar Kul and Anr. v. Pratima Maity and Ors. reported in (2004) 9 SCC 468, the Hon'ble Supreme Court observed: When fraud misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of moving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that it the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. 35. In the case of Hamza Haji v. State of Kerala and Anr. reported in (2006) 7 SCC 416, the Hon'ble Supreme Court referred to the following observation made in the case of Nemchand Tvntia v. Kishinchand Chellaram (India) Ltd., reported in 7 (1959) 63 CWN 740 : AIR 1959 Cal 776 . A decree can be reopened by a new action when the Court passing it had been misled by fraud, but it car not be reopened when the Court is simply mistaken: when the decree was passed by relying on perjured evidence, it cannot be said that the Court was misled. 36. In the case of S.P Changalvaraya Naiciu v. Jagannalh, reported in (1994) 1 SCC 1 , the Hon'ble Supreme Court observed thus: It is settled proposition of law that a judgment/decree obtained by playing fraud on the Court, is a nullity and non est in the eye of the law. Such a judgment/decree by the first Court or by the highest Court has to be treated as nullity by every Court whether superior or inferior. It can be challenged in any Court even in collateral proceedings. 37. Such a judgment/decree by the first Court or by the highest Court has to be treated as nullity by every Court whether superior or inferior. It can be challenged in any Court even in collateral proceedings. 37. In the case of Hemza Haji (supra) the Hon'ble Apex Court referred to the following definition provided made in Story s Equity Jurisprudence Nth. 2nd Vol. I, Page 263: fraud indeed in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. 38. Patch v. Ward, reported in (1867) 3 Ch App 203 : 18 IT 134 it has been stated thus: Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. 39. The Hon'ble Supreme Court in the case of Hamza Haji (supra) referred to the following observation made by the Full Court of the Bombay High Court in Guddappa Chikkappa Kurhar v. Balaji Ramji Dange, reported AIR 1941 Horn. 274. No Court will allow itself to be used as an instrument of fraud, and no Court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. 40. In the case of A.V. Papayya Sastry and Ors. v. Govt. of A.P. and Ors., it was observed: Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the Court of first instance or by the final Court. And it has to be treated as non est by every Court, superior or inferior. 41. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the Court of first instance or by the final Court. And it has to be treated as non est by every Court, superior or inferior. 41. In the case of A.V. Papayya Sastry (supra) the Hon'ble High Court recalled its earlier order on the ground that the order was obtained by playing fraud and by suppressing material facts. The order of recall was challenged before the Hon'ble Apex Court by filing appeal under Articles 226 and136 of the Constitution of India. While dismissing die appeal the Hon'ble Apex Court observed: Keeping in view totality of facts and attending circumstances including serious allegations of fraud said to have been committed by the landowners in collusion with officers of the Respondent Port Trust and the Government, report submitted by the Central Bureau of Investigation (CBI), prima facie showing commission of fraud and initiation of criminal proceedings, etc. if the High Court was pleased to recall the earlier order by issuing directions to the authorities to pass an appropriate order afresh in accordance with law, it cannot be said that there is miscarriage of justice which calls for interference in exercise of discretionary and equitable jurisdiction of this Court. We therefore, hold that this is not a fit case which calls for our intervention under Article 136 of the Constitution. We therefore, decline to do so. 42. In the light of the above principles of law laid down by the Hon'ble Apex Court in various cases, it is now settled position of law that order or decree obtained by misrepresentation or fraud cannot be allowed to stand in the eye of law and the same is liable to be recalled. What is important is that before passing such recall order it is required to be satisfied that prima facie it has been shown that the decree on the order was obtained by fraud or misrepresentations and the onus generally lies on the party who alleges fraud. 43. In the present case before us the state authority i.e. the Appellant has alleged that the Petitioner's date of birth was recorded as on 01.01.1947, in the reconstructed service book on the basis of false and fabricated school certificates and that the impugned order was obtained by misleading the Court. 44. 43. In the present case before us the state authority i.e. the Appellant has alleged that the Petitioner's date of birth was recorded as on 01.01.1947, in the reconstructed service book on the basis of false and fabricated school certificates and that the impugned order was obtained by misleading the Court. 44. Though the Appellant has categorically alleged that the writ Petitioner/Respondent committed forgery and obtained the impugned order in his favour on the basis of false/forged school certificates. 'The Respondent/Petitioner preferred not to controvert the said allegations by filling any affidavit. 45. In support of the plea that the certificates submitted by the writ Petitioners were forged and fabricated, the Appellant has annexed the certificates/clarifications issued from 12 No. Leverputa LP. School, Gumra Public M.E. School, the Head Master (retired), Gumra Public M.E. School as Annexure Nos. 7, 8 & 9 respectively. 46. Though the Annexure Nos. 7 & 8 were issued on 18.03.2004 i.e. after the passing of the impugned order dated 28.11.2003, the Annexure-9, was issued on 02.03.2000 i.e. prior to the order passed by the learned Single Judge. In the Annexure No. 9 the Head Master of the Gumra Public M.E. School appears to have stated that as per the school admission register, for the period from 1953-1960, the name of Sri Khalilur Rahman Borbhuiya son of Late Amir Ali Borbhuiya (Writ Petitioner) was not found. 47. By Annexure 7 Mr. A.R. Laskar, who appears to have issued the school certificate dated 08.11.1999, in his capacity as Head Master, in favour of the Writ Petitioner indicating therein the date of birth of the Petitioner to be 01.01.1947, appears to have stated that he never signed that the signature appearing in the certificate used by the writ Petitioner. 48. By Annexure-8 the Head Master (retired) Gumra Public M.R. School, who appears to have issued a school certificate on 07.09.1998 (Annexure-2) in favour to the Petitioner indicating therein his death of birth as on 01.01.1947 stated that his name appearing in the said certificate issued on 07.09.1974 was false and fabricated. 49. As the private Respondent/Petitioner failed to controvert the allegation of fraud as contended in the appeal as well as in the above mentioned certificates i.e. Annexures-7, 8 & 9, it appears that there is sufficient controversy with regard to the genuineness/authenticity of the said certificates. That apart the reports dated 03.06.2004, 15.10.1999, 12.02.2001 i.e. Annexure Nos. 49. As the private Respondent/Petitioner failed to controvert the allegation of fraud as contended in the appeal as well as in the above mentioned certificates i.e. Annexures-7, 8 & 9, it appears that there is sufficient controversy with regard to the genuineness/authenticity of the said certificates. That apart the reports dated 03.06.2004, 15.10.1999, 12.02.2001 i.e. Annexure Nos. 10, 11 & 13 to the writ appeal a so raise question regarding the genuineness of the certificates relied on by the writ Petitioner. In view of the above, it is doubtful whether the writ Petitioner's correct date of birth is on 01.04.1940 or 01.01.1947. 50. For the reasons best known to him, the writ Petitioner/Respondent No. 1 failed to controvert the allegations made in the said reports as well as in the writ appeal. Therefore, the said allegation/contentions remained uncontroverted/unchallenged. 51. In view of what has been discussed, we are constrained to hold that the genuineness/authenticity of the certificates produced and relied on by the Petitioner in support of his claim regarding his date of birth as 1.1.1947 is a matter to be examined. Therefore, the writ Petitioner cannot be allowed to derive benefit on the strength of the impugned order, obtained on the basis of such controversial certificates/documents. In order to decide finally, whether the said certificates are genuine or forged, a fact finding process will have to be undertaken and this Court, exercising writ jurisdiction, can not take up such exercise. Therefore we deem it appropriate to direct the State Authority i.e. the Respondent No. 3 to cause initiation of process to arrive at a correct finding regarding the genuineness/correctness of the certificates relied on by the writ Petitioner and to ascertain the correct date of birth of the Respondent No. 1. In doing so the writ Petitioner/Respondent No. 1 shall be given appropriate opportunity to put forward his case and of being heard. After completing the said process the authority concerned, shall pass appropriate order regarding release of the pay and salary etc. in favour of the Petitioner as per his entitlement under the law. The entire exercise shall be completed within a period of six months from this date. 52. With the above direction the writ appeal is disposed of. Writ Appeal disposed of.