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2013 DIGILAW 1377 (JHR)

Suman Kumar Srivastava v. State of Jharkhand

2013-12-20

SHREE CHANDRASHEKHAR

body2013
ORDER Questioning the issuance of charge-sheet dated 16.07.2010, the petitioner has preferred the present writ petition. During the pendency of the writ petition, order of discharge dated 01.11.2013 was issued which was challenged by the petitioner by filing amendment application and the said application being I.A. No. 8448 of 2013 has been allowed. 2. Heard the learned counsel appearing for the parties and perused the documents on record. 3. Pursuant to Advertisement No. 01 of 2004, the petitioner applied for the post of Constable in Jharkhand Armed Police Force and he was selected and appointed on the post of Constable. The petitioner joined the post on 18.05.2005. On 11.01.2007, the petitioner was summoned by the Inspector General of Police, J.A.C., Ranchi and his height was re-measured on 11.01.2007. By order dated 25.01.2007, the petitioner was discharged from service with immediate effect. The petitioner challenged the order of discharge dated 25.01.2007 in W.P.(S) No. 2717 of 2007 which was allowed by order dated 20.11.2009 and the impugned order dated 25.01.2007 was quashed. The respondents were directed to reinstate the petitioner in service with 50 % back-wages. Accordingly, the petitioner was reinstated in service. On 26.02.2010, a show-cause notice was issued to the petitioner and a charge-memo dated 16.07.2010 was served upon the petitioner on the allegation that he secured appointment deceitfully getting his height measured at 171.5 cm. The petitioner responded to the show-cause notice and the charge-sheet issued to him, raising a plea of res-judicata and pendency of Contempt Case (Civil) No. 138 of 2010. Finally, by order dated 01.11.2013, the petitioner has been discharged from service with immediate effect. 4. A counter-affidavit has been filed stating that when the height of the petitioner was re-measured, it was found that initially the height of the petitioner was wrongly measured at 171.5 cm and on that basis he was offered appointment. On re-measurement, his height has been found 165.2 cm. Paragraph nos. 8 to 12 of the counter-affidavit are reproduced below : 8. “That it is humbly stated that the petitioner had earlier preferred the writ petition WP(S) No. 2717/2007 for quashing the force order no. On re-measurement, his height has been found 165.2 cm. Paragraph nos. 8 to 12 of the counter-affidavit are reproduced below : 8. “That it is humbly stated that the petitioner had earlier preferred the writ petition WP(S) No. 2717/2007 for quashing the force order no. 74/07 dated 25.01.2007 passed by then Commandant, J.A.P.-9, Sahibganj whereby the petitioner was discharged from the post of constable from Jharkhand Armed Police-'IX' Batalion, Sahibganj, Camp-Deoghar on the ground that the height of the petitioner was re-measured in view of the anonymous/secret complaint letter, which is given to the office of Inspector General of Police, Vigilance cum Jharkhand Armed Police, Ranchi. Thereafter, a proper enquiry and re-measurement of the height of the petitioner has been done by the then Inspector General of Police, Jharkhand Armed Police, Ranchi on dated 11.01.2007 in presence of then Commandant, J.A.P.-1, Ranchi in his office, wherein after re-measurement the actual height of the petitioner was found 165.2 cm, which is much lesser than the height 171.5 cm, which was contrary and wrongly recorded at the time of selection by the selection committee & also the height differ from the height mentioned by the petitioner himself in his application form i.e. 176 cm. Thereafter for this reason the then Inspector General of Police, Jharkhand Armed Police, Ranchi issued a letter vide memo no. 27/C dated 16.01.2007 to the then Commandant, J.A.P.-7, Hazaribagh-cum-Chairman of selection committee, Board No. 3 stating therein about the difference in the height of the petitioner. Thereafter the Chairman of Selection Committee, Board no. 3 had issued a letter to the Inspector General of Police, Jharkhand Armed Police, Ranchi vide memo. no. 142 / G.S. Dated 21.01.2007 stating therein that due to the difference in the height of the petitioner, which is on re-measurement found to be 165.2 cm. The petitioner's point was reduced from 16 to 13, for which the Chairman of selection committee, Board no. 3 cancelled the previous recommendation of the selection of the petitioner and also informed and requested to the then Commandant, J.A.P. 9, Sahibganj to take necessary step for the dismissal of the petitioner. Accordingly, an impugned force order 74/07 dated 25.01.2007 was passed by the authority concerned, in which petitioner was dismissed from his service. 9. 3 cancelled the previous recommendation of the selection of the petitioner and also informed and requested to the then Commandant, J.A.P. 9, Sahibganj to take necessary step for the dismissal of the petitioner. Accordingly, an impugned force order 74/07 dated 25.01.2007 was passed by the authority concerned, in which petitioner was dismissed from his service. 9. That the Hon'ble High Court quashed the impugned force order-74/07 dated 25.01.2007 on technical ground and vide judgment order dated 20.11.2009 passed in WP(S) No. 2717/07 allowed the writ petition. The relevant portion of the above mentioned judgment order is as follows : “I am satisfied that the impugned order has been passed without adherence to the rules of procedure as laid down in the State Police Manual and is also in violation of the Principal of Natural Justice. Accordingly, I find merit in this writ application and the same is therefore allowed. The impugned order dated 25.01.2007 is hereby quashed. The respondents are directed to reinstate the petitioner in service with 50% of back wages. The period during which the petitioner has remained out of service, shall be treated as period spent on duty. 10. That it is stated that pursuant to the direction given by the Hon'ble Court the petitioner was reinstated and 50% back wages was also paid to him. Though the appeal (LPA) inadvertently could not be filed, hence order of the Hon'ble High Court was complied properly. 11. That it is submitted that the height of the petitioner was re-measured and it was found to be 165.2 cm. Further, it is stated that the cutoff marks for the general candidates for which the last general candidates was selected is 15 point and after re-measurement the height of the petitioner is reduced to 165.2 cm which is much lesser than the height which was contrary and wrongly recorded at the time of selection by the selection committee i.e. 171.5 cm. Therefore, the petitioner's point was reduced from 16 to 13 and for that reason he can't be selected against the general category seat. 12. That it is submitted that the height of last general candidate selected in the Advertisement No. 01/2004 was 169.5 cm, whereas the height of the petitioner was found 165.2 cm after re-measurement. Therefore, the petitioner's point was reduced from 16 to 13 and for that reason he can't be selected against the general category seat. 12. That it is submitted that the height of last general candidate selected in the Advertisement No. 01/2004 was 169.5 cm, whereas the height of the petitioner was found 165.2 cm after re-measurement. Therefore, the last candidate of general category who was selected had secured 15 points, whereas the petitioner secured only 13 points after re-measured of his height. Therefore, if petitioner would be selected who has secured only 13 points after re-measurement of his height, then other candidate of the same category (General) who were secured less than the cutoff marks/points i.e. 15 points would also claim for their appointment, which will not be justified.” 5. The learned counsel appearing for the petitioner has submitted that, by order dated 25.01.2007 the petitioner was discharged from service and the said order was quashed by this Court by order dated 22.11.2009 passed in W.P.(S) No. 2717 of 2007 and therefore, the charge-sheet dated 16.07.2010 issued on similar facts is illegal and consequently, the order of discharge dated 01.11.2013 is also illegal. The learned counsel has further submitted that in compliance of order passed by this Court the petitioner was reinstated in service and therefore, the second proceeding against the petitioner would be barred by the principles of res-judicata. 6. As against the above, Mr. M. K. Dubey, J.C. to A.G. appearing for the respondents has submitted that, a perusal of order passed by this Court on 20.11.2009 in W.P.(S) No. 2717 of 2007 would indicate that, in the earlier proceeding the only point urged by the petitioner was that, the order of discharge was passed in violation of principles of natural justice. It would appear from order dated 20.11.2009 that the order of discharge dated 25.01.2007 was quashed by this Court on the ground of violation of principles of natural justice and for violation of the procedure prescribed in the Jharkhand Police Manual and therefore, the present proceeding against the petitioner is not barred in law. It would appear from order dated 20.11.2009 that the order of discharge dated 25.01.2007 was quashed by this Court on the ground of violation of principles of natural justice and for violation of the procedure prescribed in the Jharkhand Police Manual and therefore, the present proceeding against the petitioner is not barred in law. The learned counsel appearing for the respondents has further submitted that, admittedly the petitioner does not qualify for being appointed on the post of Constable as, on re-measurement it has been found that he would not secure marks, the candidate last selected in the general category has secured and therefore, the petitioner cannot be permitted to retain the post. The learned counsel for the respondents has also submitted that in the earlier writ proceeding the petitioner did not disclose the true and complete facts and thus misled the Court which would amount to playing fraud upon the Court and therefore, the bar of res-judicata pleaded by the petitioner is not applicable in the present case. 7. I find that the petitioner earlier approached this Court in W.P.(S) No. 2717 of 2007 seeking quashing of order dated 25.01.2007 whereby he was discharged from service. In the writ petition the petitioner has pleaded that on 18.05.2005 his height was measured and it was found “according to yardstick fixed by the State Government”. Order dated 25.01.2007 was challenged on the ground of violation of the principles of natural justice. Paragraph no. 14 in W.P.(S) No. 2717 of 2007 is reproduced below : 14. “That, it is submitted that the petitioner, by that time, completed about 2 years service with good record. It is stated that without drawing departmental proceeding and without asking show-cause as required in P.M. Rule 828 (B), the petitioner has been discharged from his service of constable on 25.01.2007, as such, the impugned order as contained in Annexure-1 is illegal and arbitrary and fit to be quashed.” 8. The respondents filed a counter-affidavit in the proceeding of W.P.(S) No. 2717 of 2007 justifying order dated 25.01.2007 on the ground that, when on re-measurement the height of the petitioner was found 165.2 cm, the actual point secured by him for appointment on the post of constable reduced from 16 to 13 and thus, the petitioner did not qualify for appointment on the post of constable. This Court quashed order dated 25.01.2007. This Court quashed order dated 25.01.2007. The relevant paragraphs from order dated 20.11.2009 are extracted below : 6. “Learned counsel for the petitioner submits that the impugned order of the petitioner's dismissal from service, is totally illegal and against the procedure laid down under the provisions of the State Police Manual and also against the principles of natural justice in as much as, before proceeding to terminate the petitioner's services, he was neither served with any notice to explain as to why his services should not be terminated, nor was any disciplinary proceeding initiated against him on any specific charge. 7. Learned counsel adds further that even otherwise, the ground on which the petitioner's services have been terminated, would be of no relevance in view of the admitted fact that the minimum required height for appointment of constables is 160 cm. whereas admittedly, the petitioner possesses more than 165 cm. 8. A counter-affidavit has been filed on behalf of the respondents, learned counsel for the respondents would want to invite attention to certain paragraphs of the counter affidavit to explain that as it appears, the petitioner has suppressed his actual height and on re-measurement his height was found less than 165.2 cm, though earlier, his height was recorded as much higher. 9. From the counter-affidavit, it appears that the petitioner's specific contention that no prior notice was served upon him before passing the impugned order of dismissal from service, has not been controverted by the respondents. It also appears that admittedly, the petitioner's actual height was found to be 165.2 cm which apparently, is much above the minimum prescribed height required for the post of constable. The counter-affidavit does not explain as to what could be the reason and the circumstances which had prompted the concerned authorities to re-measure the height of the petitioner after the petitioner was finally appointed and allowed to discharge his duty for almost two years from the date of his appointment. 10. I am satisfied that the impugned order has been passed without adherence to the Rules of procedure as laid down in the State Police Manual and is also in violation of principles of natural justice. Accordingly, I find merit in this writ application and the same is therefore allowed. The impugned order dated 25.01.2007 (Annexure-1) is hereby quashed. 10. I am satisfied that the impugned order has been passed without adherence to the Rules of procedure as laid down in the State Police Manual and is also in violation of principles of natural justice. Accordingly, I find merit in this writ application and the same is therefore allowed. The impugned order dated 25.01.2007 (Annexure-1) is hereby quashed. The respondents are directed to reinstate the petitioner in service with 50% of the back wages. The period during which the petitioner has remained out of service, shall be treated as the period spent on duty.” 9. Pursuant to order passed by this Court the petitioner was reinstated in service however, the petitioner was issued show-cause notice again on 26.02.2010 and 26.06.2010. The reply of the petitioner was found not satisfactory and therefore, charge-memo dated 16.07.2010 was served upon the petitioner on the allegation that, he got his height wrongly recorded at 171.5 cm instead of 165.2 cm and thus, he secured appointment by deceitful means. A departmental proceeding was initiated against the petitioner and during the enquiry four witnesses were examined by the department. During the enquiry proceeding, it was brought on record that the last candidate selected in the category in which the petitioner was appointed, had obtained 15 marks (height 169.5 cm) whereas, the petitioner was initially given 16 marks (height 171.5 cm). On an anonymous complaint received, the height of the petitioner was re-measured when it was found that it measured 165.2 cm only and thus, the marks obtained by the petitioner reduced from 16 to 13 which rendered the petitioner ineligible for appointment. A reasoned order dated 01.11.2013 has been passed whereby the petitioner has been discharged from service. 10. The only point urged by the petitioner in the present proceeding is that, after order dated 20.11.2009 charge-memo dated 16.07.2010 could not have been issued by the respondents as, it would be barred by the principles of res-judicata and therefore, the subsequent order of removal from service is illegal and liable to be quashed. Referring to the contention raised by the counsel for the petitioner, I am of the opinion that the charge-memo dated 16.07.2010 has rightly been issued to the petitioner. Referring to the contention raised by the counsel for the petitioner, I am of the opinion that the charge-memo dated 16.07.2010 has rightly been issued to the petitioner. The order dated 25.01.2007 was quashed by this Court by order dated 20.11.2009 passed in W.P.(S) No. 2717 of 2007 on the ground of violation of principles of natural justice and therefore, after reinstating the petitioner in service, show-cause notices were issued to the petitioner and thereafter, a regular departmental proceeding was initiated. Admittedly, at the first instance no charge-memo was served upon the petitioner and the order of discharge dated 25.01.2007 was quashed by this Court on a technical ground and therefore, the charge-memo dated 16.07.2010 issued to the petitioner is not the second charge-sheet. Therefore, the contention of the petitioner that in similar facts charge-sheet dated 16.07.2010 could not have been issued to the petitioner, is not tenable. 11. In “Nand Kumar Verma Vs. State of Jharkhand and Others”, reported in (2012) 3 SCC 580 the Hon'ble Supreme Court has held as under: 26. “In our opinion, having accepted the explanations and having communicated the same to the appellant, the High Court could not have proceeded to pass the order of initiating departmental proceedings and reverting the appellant from the post of Chief Judicial Magistrate to the post of Munsif. On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charge is permissible.” 12. From the pleadings in W.P.(S) No. 2717 of 2007 as well as in the present proceeding, I find that the petitioner has not challenged his height re-measured on 11.01.2007 which was found 165.2 cm. In the present proceeding or in the earlier writ proceeding, no where the petitioner claimed that his height measured as 171.5 cm at the time of his appointment, that is, on 18.05.2005 is the correct measurement. In the present proceeding or in the earlier writ proceeding, no where the petitioner claimed that his height measured as 171.5 cm at the time of his appointment, that is, on 18.05.2005 is the correct measurement. The order dated 20.11.2009 would indicate that a contention was raised on behalf of the petitioner that the minimum requirement for appointment on the post of constable is 160 cm and since, the petitioner's re-measured height is more than 160 cm, that is, 165.2 cm, the petitioner was rightly appointed on the post of constable. The contention raised on behalf of the petitioner indicates that an impression was given to this Court that in so far as, the requirement of height for the post of constable is concerned, it is only qualifying. It was not brought to the notice of this Court that appointment on the post of constable was made considering the total marks obtained on account of educational qualification and height of a candidate. It was the duty of the petitioner to come to the Court with a true case and prove his case by true evidence. One who comes to the Court, must come with clean hands. As noticed earlier, the petitioner did not bring the actual facts on record and by doing so he tried to mislead this Court. 13. In “S. P. Chengalvaraya Naidu (Dead) By LRS. Vs. Jagannath (Dead) By LRS. and Others”, reported in (1994) 1 SCC 1 the Hon'ble Supreme Court has stated; 6. “.............. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” 14. In “A. V. Papayya Sastry Vs. Govt. of A. P. and Others”, reported in (2007) 4 SCC 221 [: 2007(2) JLJR (SC) 183] 26. “Fraud may by defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another..........” 15. In view of the aforesaid, I am of the opinion that a fraud was played upon the Court. “Fraud may by defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another..........” 15. In view of the aforesaid, I am of the opinion that a fraud was played upon the Court. The petitioner cannot be permitted to take benefit of order dated 20.11.2009 on the ground that the order was complied by the respondents and therefore, it was not open to the respondents to issue a charge-sheet on similar facts. 16. Centuries ago Chief Justice, Edward Coke proclaimed “Fraud avoids all judicial acts, ecclesiastical or temporal”. In “Lazarus Estates Ltd. v. Beasley” reported in (1956) 1 QB 702 Lord Denning declared, “No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything”. In “Meghmala and Others Vs. G. Narasimha Reddy and Others”, reported in (2010) 8 SCC 383 , the Hon'ble Supreme Court has observed thus:–– 33. “Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of the courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due.” 17. The Hon'ble Supreme Court has further held as under: 34. “...............Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, material document would also amount to a fraud on the Court.” 18. From the order passed by this Court on 20.11.2009 in W.P.(S) No. 2717 of 2007 it is abundantly clear that the order of discharge dated 25.01.2007 was quashed by this Court on the ground of violation of principles of natural justice however, it is also apparent from a bare reading of order dated 20.11.2009 and the pleadings in the writ petition that the true facts were not fully disclosed by the petitioner before this Court. I am of the view that had the complete facts been pleaded by the petitioner, this Court would not have interfered with the order of discharge dated 25.01.2007. It is apparent that the petitioner could not have been appointed on the post of Constable in view of his height measured on 10.01.2007 and thus, the initial appointment of the petitioner itself was a nullity. It is apparent that the petitioner could not have been appointed on the post of Constable in view of his height measured on 10.01.2007 and thus, the initial appointment of the petitioner itself was a nullity. I find that in cases, where it is detected that the initial appointment itself was a nullity, the question of observance of principles of natural justice would not arise. It is also true that when a fraud is detected, the principles of natural justice are not required to be complied with before nullifying the order obtained by fraud. 19. In “Ganpatbai Mahijibhai Solanki vs. State of Gujarat and others”, reported in (2008) 12 SCC 353 , the Hon'ble Supreme Court has held that:–– “19. .......................If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same.” 20. In “Kendriya Vidyalaya Sangathan and others vs. Ajay Kumar Das and Others”, reported in (2002) 4 SCC 503 , when it was found that, the appointment orders are a nullity it has been held that, question of observance of principles of natural justice would not arise. 21. In “Nazira Begum Lashkar and Others Vs. State of Assam and Others”, reported in (2001) 1 SCC 143 , the Hon'ble Supreme Court has noticed as under : 14. “The decisions cited by Mr. Parikh, in support of his contention, not only do not support is contention but on the other hand, appears to us to be against his contention. In Ashwani Kumar case this Court in no uncertain terms held that as the appointments had been made illegally and contrary to all recognised recruitment procedures and were highly arbitrary, the same were not binding on the State of Bihar. This Court further went on to hold in the aforesaid case that the initial appointments having been made contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorised and no right would accrue to the incumbent on that score. The Court had also held that it cannot be said that the principles of natural justice were violated or full opportunity was not given to he employees concerned to have their say in the matter before their appointments were recalled and terminated...............” 22. The Court had also held that it cannot be said that the principles of natural justice were violated or full opportunity was not given to he employees concerned to have their say in the matter before their appointments were recalled and terminated...............” 22. Adverting to the contention raised by the learned counsel for the petitioner that, the charge-sheet dated 16.07.2010 is barred by principles of res-judicata, I am of the opinion that the contention raised by the learned counsel for the petitioner is misconceived and is liable to be rejected. There is no doubt in my mind that order dated 20.11.2009 was obtained by the petitioner by suppressing true facts from the Court and thus, a fraud was played upon the Court. 23. In “Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar and Others”, reported in (2008) 9 SCC 54 , the Hon'ble Supreme Court has held that, it is also well settled that, when an order is obtained by playing fraud/mis-representation, it would be inequitable to confer a benefit on a party who is a beneficiary thereunder. The Hon'ble Supreme Court has also held that principle of res-judicata would not be applicable when a judgment has been obtained by committing fraud on the Court. 24. Again in “National Institute of Technology and Oters Vs. Niraj Kumar Singh”, reported in (2007) 2 SCC 481 , the Hon'ble Supreme Court has held as under : 22. “If the appointment of the respondent was wholly illegal and without jurisdiction and such an appointment had been obtained by practising fraud upon the appellant, the same was a nullity. We are, however, not oblivious of the fact that the same attained finality in view of the fact that the writ petition of the said Vidhya Devi was dismissed. Despite the same, the principles of res judicata shall not apply in a case of this nature. It is well known that where an order is passed by an authority which lacks inherent jurisdiction, the principles of res judicata would not apply, the same being a nullity.” 25. It is also a settled proposition in law that a judgment or decree or order obtained by playing fraud can be challenged in any Court at any time in appeal, revision, writ or even in collateral proceedings. 26. In “Budhia Swain and Others Vs. It is also a settled proposition in law that a judgment or decree or order obtained by playing fraud can be challenged in any Court at any time in appeal, revision, writ or even in collateral proceedings. 26. In “Budhia Swain and Others Vs. Gopinath Deb and Others” reported in (1999) 4 SCC 396 , the Hon'ble Supreme Court has held that a tribunal or a Court may recall an order earlier made by it if–– (i) “the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.” 27. In “A.V. Papayya Sastry and Others Vs. Govt. of A.P. And Others” reported in (2007) 4 SCC 221 , the Hon'ble Supreme Court has observed as under : “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.” 28. In “Kiran Manjhi Vs. State of Jharkhand and Others” reported in 2012 (3) JLJR 191 when it was found that the earlier judgment of the Court was rendered under mistaken belief of fact and the fact that Rules were not brought to the notice of the Court, the Division Bench of this Court has held as under:– 18. “As we have already observed that in a case where earlier judgments are per incuriam, the Coordinate Bench can take a different view instead of referring the matter to a larger Bench. “As we have already observed that in a case where earlier judgments are per incuriam, the Coordinate Bench can take a different view instead of referring the matter to a larger Bench. In this case, the learned single Judge clearly recorded the finding that the earlier Single Judges proceeded on wrong facts and we are also of that view and that mistake is due to the poor assistance to the learned Single Judges and even if in so many words, it has not been mentioned that earlier judgments are per incuriam and only it has been mentioned that earlier judgments proceeded on wrong facts then that clearly indicate that earlier judgments were found to be per incuriam by the learned Single Judge and then the learned Single Judge proceeded to decide the matter. 19. In view of the above reasons, we are of the view that the petitioners were not eligible to be appointed as they were lacking the basic eligibility under Rules of 2002 as well as under the advertisement dated 28th August, 2002 and therefore, the L.P.As. Preferred by the State deserve to be allowed and the L.P.As preferred by the private parties deserves to be dismissed.” 29. In “Indian Bank vs. Satyam Fibres (India) Pvt. Ltd.”, reported in (1996) 5 SCC 550 , the Hon'ble Supreme Court has held as under : 23. “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 practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. The court has also the inherent power to set aside a sale brought about by fraud practised upon the court (Ishwar Mahton v. Sitaram Kumar) or to set aside the order recording compromise obtained by fraud.” 30. It is also equally true that, no person shall be prejudiced by an act of the Court. In “FreeMan Vs. Tranah 12 CB 406: 138 ER 964, Cresswell, J” declared that, the maxim “actus Curiae Neminem grabavit” is founded upon justice and good sense and affords a safe and certain guide for the administration of law. It is also equally true that, no person shall be prejudiced by an act of the Court. In “FreeMan Vs. Tranah 12 CB 406: 138 ER 964, Cresswell, J” declared that, the maxim “actus Curiae Neminem grabavit” is founded upon justice and good sense and affords a safe and certain guide for the administration of law. Since, the petitioner was not entitled for appointment, the order passed by this court in earlier proceeding would not prejudice the interest of the respondent-State. In “S.P. Chengalvaraya Naidu (Dead) By LRS. Vs. Jagannath (Dead) By LRS. and Others” (supra) the Hon'ble Supreme Court has also observed that, “the principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.” 31. In the result, the writ petition fails and accordingly, it is dismissed.