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2011 DIGILAW 242 (KER)

Shihabu v. Cochin University of Science

2011-03-04

T.R.RAMACHANDRAN NAIR

body2011
JUDGMENT :- The grievance raised by the petitioner herein is with regard to the alleged illegal reversion of the petitioner from the post of Peon to Sweeper-cum-Cleaner, that too without assigning any reason. The copy of the order has been produced as Ext.P1. 2. The genesis of the dispute emanates from the stage of selection process itself. The University conducted a selection to the post of “sweeper-cum-cleaner in 2005. Ext.P2 is the copy of the ranked list wherein the petitioner is ranked at 48 while rank No.47 is one Smt. Negimol. Both of them belong to Muslim community and were appointed by proceedings Ext.P3. 3. Alleging that Smt.Negimol had suppressed the details regarding her academic qualification, after a detailed enquiry, the Vice Chancellor cancelled the appointment as per Ext.P4 proceedings dated 5.5.2008. She had actually passed SSLC examination, but claimed to have studied only upto 9th standard. 4. According to the petitioner, since the cancellation of the appointment of Smt. Negimol is as a result of the fraud committed by her the petitioner automatically gets entitled to all the benefits and rights attached to rank No.47. Both of them being Muslims, the petitioner will have to be granted all the benefits of reservation as well as seniority by granting the turn granted to Smt. Negimol, who was given the benefit of the community. 5 Initially he was promoted as per Ext.P5 order dated 2.6.2009. But it was in a deputation vacancy. He was reverted when the Peon on deputation rejoined duty. This happened on 30.6.2009. Again he was promoted as per Ext.P6 order dated 12.10.2009, by considering him as the seniormost. 6. It is the case of the petitioner that the 46th vacancy of Last Grade Servants is reserved to a person belonging to Muslim community as per Annexure to Part II of the K.S. & S.S.R., 1959. Rank No.47, Smt.Negimol was placed in the 46th turn earmarked for Muslim community and in the light of the cancellation of her appointment, the petitioner was entitled to be accommodated in that place for enabling him to continue as Peon on promotion. Even though he filed a representation as per Ext.P7, he was reverted without any justification, according to him. Ext.P9 is the reply given to him under the Right to Information Act. It is revealed from here that Smt.Negimol was appointed against Muslim turn. Even though he filed a representation as per Ext.P7, he was reverted without any justification, according to him. Ext.P9 is the reply given to him under the Right to Information Act. It is revealed from here that Smt.Negimol was appointed against Muslim turn. The contesting respondents 2 to 9 will not therefore be entitled for seniority over him, if he allotted to the turn of Smt. Negimol. Ext.P10 is the extract of the relevant pages of the roster of appointments of the Last Grade Servants. It is pointed out that even though Smt. Negimol’s appointment has been cancelled, still her name is retained in the roster. Thereafter, the petitioner filed Ext.P11 representation seeking further action to correct the roster as well as to cancel Ext.P1 order of reversion. Alleging non consideration of the representation, this Writ Petition has been filed. 7. The stand taken by the University as evident from the counter affidavit is that the first respondent University has been following the procedure prescribed by the Public Service Commission in the matter of appointment. In the rank list Smt. Negimol and the petitioner were ranked 47th and 48th respectively. In the eligible list, Smt.Negimol was placed in the 59th turn for open category and the petitioner was placed in the 46th turn for Muslim category. By recognizing the seniority, the turn of candidates was inter-changed and Smt. Negimol who was in the 59th turn for open category, came to 46th turn for Muslim category which the petitioner was holding and the petitioner who was placed in the 46th turn for Muslim category, was placed in the 56th turn for Muslim category. The appointment of Smt.Negimol was found to be obtained by means of fraudulence and forgery and accordingly it was terminated also. 8. With regard to the claim of the petitioner for allotment of the turn of Smt.Negimol, what is pointed out as a reason to deny the claim is that even if the appointment of Smt. Negimol has been cancelled, once an appointment is made against a turn, it will be treated as done for ever and the termination of such a candidate will not result in allotment of the turn to another candidate. 9. 9. Therefore, the important question to be considered is whether the turn which was allotted to Smt. Negimol, could be allotted to the petitioner, as the cancellation was for the reason that she had obtained a fraudulent appointment. 10. Heard learned counsel for the petitioner Shri P.Leelakrishnan and Shri Shyam Krishnan and Shri K.S.Muhammed Hashim, learned Standing Counsel for the University. 11. Shri P.Leelakrishnan, learned counsel for the petitioner submitted that the cancellation of appointment of Smt. Negimol was after finding out a fraud and therefore it is a nullity in the eye of law. In such cases, it cannot be said that the turn allotted to Smt. Negimol has been exhausted. It is not a case where the turn of Smt.Negimol had resulted in any benefit to the reservation community, viz., Muslim. If that be so, the stand taken by the University cannot be supported. Petitioner being the next rank and belonging to the same community, should get the due turn. Learned Counsel relied upon various decisions of this Court and that of the Apex Court, viz., Mariyakutty versus Convener, Municipal Common Service and Director of Municipalities & Ors. (1975(1) SLR 188), Narayanan versus State of Kerala (1981 KLT 321), V.V.Prakasini versus K.P.S.C. & Ors. (1993 (1) KLJ 632), Indra Sawhney versus Union of India (AIR 1993 SC 477), Mancheri Puthusseri Ahmed & Ors. versus Kuthiravatttam Estate Receiver((1996) 6 SCC 185), Kerala Public Service Commission versus Hareendran (1999 (2) KLT 63), Babu M. versus Kerala State Electricity Board, Tvm. & Ors. (2010(1) KLT 435 = 2010(1) KHC 379) and Sant Lal Gupta versus Modern Co-operative Group Housing Society Ltd. (2010(4) KLT SN 54 (C.No.61)(SC). 12. Learned counsel for the petitioner submitted that the decision of the Apex Court in Indra Sawheny’s case (AIR 1993 SC 477) has laid down the principle that the reservation under Article 16(4) of the Constitution confers the power coupled with duty. Therefore, it should be applied in the case of the beneficiaries strictly. In the said celebrated decision, at page 632 while laying down the principles, their Lordships held that “the power conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power of all those, namely, backward class for whom it is intended. 13. In the said celebrated decision, at page 632 while laying down the principles, their Lordships held that “the power conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power of all those, namely, backward class for whom it is intended. 13. The crucial question herein is regarding the effect of the termination of appointment of Smt.Negimol as per Ext.P4, after finding that a fraud has been committed by her. 14. In this context, learned counsel for the petitioner relied upon the principles stated in V.V.Prakasini’s cse (1993 (1) KLJ 632) to contend that even in case of a mistake committed by a Constitutional authority like Public Service Commission this Court held that the mistake will have to be corrected and the real beneficiary will have to be given the due benefit also. In the said case, after finding that there was a mistake in the ranked list, an erratum notification was issued, whereby the petitioner became the second rank in the supplementary list of Dheevara while the fifth respondent became the first rank. Initially, the petitioner was having rank No.1 and the fifth respondent was shown as rank No.2. The petitioner was accordingly advised for appointment and appointed, but later it was sought to be cancelled by the Public Service Commission which was under challenge in the Writ Petition. Therein, this Court held that the public authorities have power to correct apparent mistakes in orders even without a specific provision. It was held as follows: “Such a reserve power to correct mistakes committed by itself is to be located in every public authority in the interests of justice and to avoid arbitrariness…………Such a power to correct apparent mistakes is therefore an absolute necessity and has to be found in every authority even without a specific provision, (para 18).” While upholding the order passed by the Public Service Commission, in para 23 it was held that the rightful claimant should be given the benefit also. The said para is extracted hereunder: “23. The next question is what is the order to be passed in this Writ Petition. The said para is extracted hereunder: “23. The next question is what is the order to be passed in this Writ Petition. No doubt it entails dismissal, but the question is whether any direction should be given to render justice to the fifth respondent and to relieve him of any possible injustice arising from the continued operation of the order of stay passed by this Court on 21.1.1991. That such directions can be given in the interests of justice has been recognized in Grindlays Bank (AIR 1980 SC 656) and other cases referred to earlier. Accordingly, the fifth respondent was directed to be advised. Therefore, there cannot be any dispute that even in such cases the benefit should be given to the rightful claimant. 15. In an earlier decision of this Court in Mariyakutty’s case (1975(1) SLR 188) also a similar question was considered. Therein, in competition quota the selected candidate did not accept the appointment. The authorities were of the view that even though the said person has not accepted the job, and that too in an open competition vacancy, it has to be filled up by another candidate from the community next in turn. Therefore, the question considered was whether under R.14(c) of K.S. & S.S.R. a vacancy should go to the next group in the cycle. It was held thus in para 6: “Issuing an order of appointment which is not accepted is not tantamount to ‘appointment’ as such as mentioned in Section 14(C). What is contemplated there is effective appointment. Therefore, that vacancy to which Saraswathi Amma had been appointed and which she did not accept, has to be filled up by appointing the person, on the basis of open competition, Saraswathi Amma having been offered the appointment on the basis of her coming in the open competition group.” 16. The question considered in Narayanan’s case (1981 KLT 321), by a Division Bench of this Court was, whether the right to a particular turn in appointment to a post earmarked for Scheduled Tribe will be lost if the candidate advised is unable to take up that post. The question considered in Narayanan’s case (1981 KLT 321), by a Division Bench of this Court was, whether the right to a particular turn in appointment to a post earmarked for Scheduled Tribe will be lost if the candidate advised is unable to take up that post. It was held that “the rule of reservation would be effective only if to a post reserved for a community, a person is actually appointed.” This was relied upon by the learned counsel for the petitioner to contend for the position that the benefit of the community cannot be taken away. 17. The decision of the Division Bench in Hareendran’s case (1999 (2) KLT 63) considered the effect of fraud committed by a candidate which resulted in inclusion in the ranked list, which was remedied by the Public Service Commission. Challenge was against the decision of the name from the ranked list. It was held as follows: “A party to a fraud cannot be permitted to take advantage of a Rule providing for limitation on the power of the Commission to cancel an advice if it is subsequently found that such advice was made on some mistake. The mistake on the part of the Commission and fraud practiced on the Commission are different things. Whereas limitation will apply to the former, the same will not apply to the latter. It is settled by a catena of decisions that all actions of fraud are void. Sometimes it has been said that a benefit obtained by fraud is nullity, some times that it can be set aside. Lord Cottenham said “It is true that if a case of fraud be established, Enquiry will set aside all transactions founded upon it by whatever machinery they may have been effected and notwithstanding any contrivances by which it may have been attempted to protect them. (See Modern Law Review, Vol.18 page 44 1).” Therefore, it is evident from the above principle that when an appointment is cancelled after finding that fraud has been committed by the candidate, it is nullity and void from inception. 18. The same question was considered by a later Division Bench in Babu’s case (2010 (1) KLT 435 = 2010(1) KHC 379). It was held that apart from judicial orders, administrative orders obtained by fraud can be recalled at any time. The case was of a similar nature. 18. The same question was considered by a later Division Bench in Babu’s case (2010 (1) KLT 435 = 2010(1) KHC 379). It was held that apart from judicial orders, administrative orders obtained by fraud can be recalled at any time. The case was of a similar nature. Therein also, the candidate had produced forged qualification certificate. The Division Bench held thus in para 6: “If a candidate applies for a post producing a forged qualification certificate and the same is discovered after one year, can it be said that he cannot be terminated because of the time limit under Rule 3(c)? We have no doubt such an interpretation cannot be placed on Rule 3(c). Nothing gained by playing fraud attains finality. In view of the above authoritative pronouncement, it is clear that not only judicial orders, but also administrative orders obtained by fraud can be recalled at any time. So, the appellant cannot be allowed to take shelter behind any time limit under Rule 3(c) and retain the gain obtained by him by playing fraud on the P.S.C.” In the above decision, the Division Bench relied upon a decision of the Apex Court in A.V. Papayya Sastry versus Government of A.P. ((2007) 4 SCC 221), wherein it was held thus in paras.21 to 23: “21. 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”. 22. 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. 23. In the leading case of Lazarus Estates Ltd. v. Beasley (1956(1) ALL.ER 341) Lord Denning observed. It can be challenged in any Court at any time, in appeal, revision, writ or even in collateral proceedings. 23. In the leading case of Lazarus Estates Ltd. v. Beasley (1956(1) ALL.ER 341) Lord Denning observed. (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.” In that view of the matter, if fraud is played, whatever may be the time lag which has occurred in finding out the same and to cancel the appointment, it need not affect the claim of an eligible candidate. 19. Herein, the stand taken by the University is that the turn of Smt. Negimol has been satisfied. The said contention cannot be accepted in the light of Ext.P4 order itself. The appointment of Smt. Negimol was cancelled and she was ordered to be terminated after finding that she had obtained the appointment after submitting a forged document any by withholding the relevant documents. If that be so, it can be seen that the cancellation is as a result of finding out the fraud committed by the candidate. Therefore, the appointment itself is a nullity and void from inception. The argument that the appointment was made against a turn which will be treated as done for ever, cannot therefore be accepted. It is not a case where the appointee has chosen to resign from service or left the service for better job, etc. The situation is quite different. 20. Learned counsel for the petitioner submitted that the stand of the University that the turn should be “deemed” to have been satisfied, cannot be accepted at all. My attention is drawn to the relevant aspects for invoking the principle of legal fiction by referring to “A selection of Legal Maxims, Classified and Illustrated, by Herbert Broom, 10th Edn.1998”. Therein at page 80 it was noticed that fictions must never be allowed to work prejudice or injury to an innocent party. The relevant observations are extracted below: “Since equity is the life of legal fiction, where substantial justice does not require its interference, still more where it would suffer from its operation, fiction has no place (x). Fictions, therefore, are only to be made for necessity, and to avoid mischief(y) and must never be allowed to work prejudice or injury to an innocent party (z). Fictions, therefore, are only to be made for necessity, and to avoid mischief(y) and must never be allowed to work prejudice or injury to an innocent party (z). Fictio legis neminem loedit, nemini operatur damnum vel injuriam(a).” 21. Learned counsel for the petitioner placed reliance on a decision of the Apex Court in Sant Lal gupta’s case (2010(4) KLT SN 54(C.No.61)SC), laying down the principle with regard to the interpretation of a legal fiction. It was held that a legal fiction cannot be created by judicial interpretation as it may amount to legislation. The relevant principles have been stated thus: “It is the exclusive prerogative of the Legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. Even if a legal fiction is created by the Legislature, the court has to ascertain for what purpose the fiction is created and it must be limited to the purpose indicated by the context and cannot be given a larger effect. More so, what can be deemed to exist under a legal fiction are merely facts and no legal consequences which do not flow from the law as it stands. It is a settled legal proposition that in absence of any statutory provision, the provision cannot be construed as to provide for a fiction in such an eventuality. More so, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature.” Hence, it is contended that the stand of the University cannot be accepted. 22. Learned Standing Counsel appearing for the University emphasized one fact, that after the appointments have been made, subsequent cancellation by Ext.P4 will not enure to the benefit of the petitioner and the petitioner cannot claim the benefit of the turn allotted to Smt. Negimol. The contention raised is that once the turn has been exhausted, the same will not enure to the same community, whatever may be the mode under which the appointment was cancelled and the appointee was terminated. 23. Herein, as noted already, the cancellation was on the basis of the findings of fraud played by the candidate concerned. The contention raised is that once the turn has been exhausted, the same will not enure to the same community, whatever may be the mode under which the appointment was cancelled and the appointee was terminated. 23. Herein, as noted already, the cancellation was on the basis of the findings of fraud played by the candidate concerned. The decisions of the Division Benches of this Court in Hareendran’s case (1999 (2) KLT 63) and Babu’s case (2010(1) KLT 435 = 2010 (1) KHC 379) will show that there is no limitation with regard to the power to cancel an appointment if fraud is found out. The Division Bench in Hareendran’s case(supra), was of the view that all acts of fraud are void. In Babu’s case (supra), the Division Bench held that it applies to administrative orders also. Therefore, at any point of time, the power to cancel the appointment can be exercised. Therefore, such appointment can only be treated as non est in the eye of law, being a nullity, as held by the Apex Court in A.V. Papayya Sastry’s cse ((2007) 4 SCC 221). If it is treated as a nullity, then that appointment cannot be termed as one which will satisfy the turn of the Muslim community. 24. In the light of the decision of the Apex Court in Indra Sawhney’s case (AIR 1993 SC 477), the power under Article 16(4) of the Constitution is one coupled with duty and the power has to be exercised to benefit the backward class community to which it is intended. 25. Therefore, it is evident that once Smt. Negimol’s appointment has been cancelled as per Ext.P4, the community cannot be said to have been benefited. Naturally, the turn will go to the next person who is eligible. Herein, the petitioner being the eligible person going by the rank list, the benefit will have to be granted to him. He was granted 56th turn of the community. The contention that the turn will be deemed to have been satisfied by appointing Smt.Negimol, cannot therefore hold good. Therefore, the name of Smt.Negimol cannot be retained in the roster, a copy of which has been produced herein as Ext.P10. 26. Hence, the petitioner is entitled to succeed in this Writ Petition. He was granted 56th turn of the community. The contention that the turn will be deemed to have been satisfied by appointing Smt.Negimol, cannot therefore hold good. Therefore, the name of Smt.Negimol cannot be retained in the roster, a copy of which has been produced herein as Ext.P10. 26. Hence, the petitioner is entitled to succeed in this Writ Petition. There will be a declaration that the petitioner is entitled for the 46th turn reserved for Muslim community, in the light of the cancellation ordered as per Ext.P4 and necessary corrections will be made in Ext.P10 roster accordingly. The order Ext.P1 to the extent to which the petitioner is reverted as Sweeper-cum-Cleaner, is also quashed. The respondents are directed to pass fresh orders with regard to the restoration of promotion of the petitioner as Peon by granting the benefit of 46th turn for Muslims, within one month from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above. No costs.