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2013 DIGILAW 282 (ORI)

Jamuna Singh v. Collector, Balasore

2013-08-07

S.K.MISHRA

body2013
ORDER Heard Mr. Pattnaik, learned counsel appearing for the petitioner, learned counsel appearing for O.P. No. 6 and learned Addl. Standing Counsel appearing for the State. None appears for O.P. No. 5. It is submitted on behalf of petitioner that since O.P. No. 5 has resigned, from the post, her counsel is not appearing in the case. In that view of the matter, the case is taken up in the absence of O.P. No. 5. The facts of the case are not in dispute. The petitioner, O.P. No. 5 and another submitted their applications for the post of Cook-cum-Attendant of the Barapada Ashram School, Balasore pursuance to the advertisement issued by the District Welfare Officer, Balasore (O.P. No. 3). In that selection process which was taken up on 5.7.2011, Sangita Murmu (O.P. No. 5) was shown as 10th fail having secured 198 marks out of 750 in Class X. The minimum educational qualification for applying for the post is 8th pass. On the basis of the marks obtained by O.P. No. 5 she was selected and posted as the cook of the Ashram School. The stand of the petitioner is that the School Leaving Certificate (Annexure-5) submitted by O.P. No. 5 is fake one and as such her appointment is illegal. But for her misrepresentation, the petitioner would have come out successful in the selection process and would have been appointed as the Cook-cum-Attendant of the Barapada Ashram School, Balasore. It is seen that in the School Leaving Certificate (Annexure-5) issued in favour of Sangita Murmu (O.P. No. 5) she was shown to have 10th appeared but failed. However, the certificate makes her eligible for the post as she has already passed 8th standard. Further the communication dated 26.9.2011 (Annexure-4) obtained under R.T.I. Act shows that the Headmaster of B.U.S. Bidyapitha, Kakaboral in the district of Balasore has intimated that on verification of the school record the name of Sangita Murmu, Mother-Malli Murmu, Father-Maheswar Murmu, VIII/P.O. Bidu Bazar, P.S. Nilgiri, Dist. Balasore was not found either in the admission register or T.C. Book. Therefore, the Headmaster further intimated that she was not a student of that school and had not appeared in the Supplementary or HSC Examination of the year 1999 through that school. Such communication shows that O.P. No. 5 has relied upon a forged document. Balasore was not found either in the admission register or T.C. Book. Therefore, the Headmaster further intimated that she was not a student of that school and had not appeared in the Supplementary or HSC Examination of the year 1999 through that school. Such communication shows that O.P. No. 5 has relied upon a forged document. In the counter-affidavit filed on behalf of the Collector, Balasore (O.P. No. 1) and District Welfare Officer, Balasore (O.P. No. 3) at paragraph-10 it is submitted that in the meantime O.P. No. 5 has already submitted her resignation on 21.8.2012 to the Headmaster, Barapada Ashram School who has accepted the same with intimation to the District Welfare Officer, Balasore O.P. No. 3. O.P. No. 3 also avers at paragraph-8 of the counter-affidavit that the documents submitted by O.P. No. 5 are fake. Learned counsel for the petitioner placed reliance on a decision of Division Bench of this Court in the case of Renubala Jena v. State of Orissa and others, reported in CLT (2008) Supplement 699 wherein it is held that it is settled principle 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." In that case after taking into account several reported cases, this Court had held that the appointment on the basis of fraud document is void ab initio. In applying the ratio laid down in that case, this Court comes to the conclusion that had O.P. No. 5 not been selected by playing fraud on the authorities, the present petitioner would have been selected and appointed as such. In that view of the matter, the writ petition succeeds O.P. No. 3 is directed to appoint the petitioner as the cook of the aforesaid Ashram School within a period of thirty days from the date of receipt of this order. The writ petition is disposed of. Keeping in view the nature of the case, there is no orders as to costs. Urgent certified copy of this order be granted on proper application. Petition disposed of.