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2013 DIGILAW 87 (CHH)

KIRAN OJHA v. STATE OF C. G.

2013-03-07

Prashant Kumar Mishra

body2013
ORDER Prashant Kumar Mishra, J. 1. This batch of writ petitions concerns challenge to the order dated 22.10.2010 passed by Janpad Panchayat, Sitapur, District Surguja, whereby the petitioners have been restrained from functioning as Shiksha Karmi Grade-III, as their appointments and consequent joining were found to be based on forged appointment letters. In some of the writ petitions, the respective counsel have raised arguments based on their own facts, therefore, the said writ petitions would be dealt with separately. 2. Janpad Panchayat, Sitapu issued an advertisement on 3.6.2007 for filling up 30 posts of Shiksha Karmi Grade-III. The applications received in pursuance of the said advertisement were dealt with and the persons appeared in the examination conducted by Chhattisgarh Vyavasayik Pariksha Mandal (for short 'VYAPAM'). For the concerned Janpad Panchayat select lists of different category were issued vide Annexure-R/2 and thereafter, 30 appointment letters to the selected candidates were issued on 3.9.2007 vide Annexure-R/3. 3. The petitioners along with large number of other Shiksha Karmi Grade-III joined at their respective schools after they were relieved by the Janpad Panchayat on or about 12.6.2009, as prior to that they were allegedly working in the office of the Janpad Panchayat. On receiving complaint, an enquiry team consisting of 4 members including one IAS Officer and 2 Sub Divisional Officers (Revenue) was constituted by the Zila Panchayat, Sarguja on 3.8.2009 vide Annexure-R/6. The enquiry team found huge irregularities in the appointment inasmuch as most of the petitioners had never appeared in the examination conducted by the VYAPAM and did not participate in the counselling, yet they were allowed to join on or after 12th June, 2009 in their respective schools. When the affected candidates including the petitioners were directed to submit affidavit in course of enquiry and for that a press release was issued, they preferred Writ Petition (S) No.5592/2009, which was decided along with other connected matters on 6.4.2010 (Annexure-R/10). This Court quashed the press release, however, liberty was reserved in favour of the respondent authorities to take appropriate steps after affording proper opportunity of hearing to the petitioners. Pursuant to the said order, the Janpad Panchayat issued notice to the affected candidates vide Annexure-R/11 dated 9.8.2010 for presenting their cases in course of scrutiny of their cases. A sample copy of notice has been annexed as Annexure-R/12. Pursuant to the said order, the Janpad Panchayat issued notice to the affected candidates vide Annexure-R/11 dated 9.8.2010 for presenting their cases in course of scrutiny of their cases. A sample copy of notice has been annexed as Annexure-R/12. About 82 candidates appeared in the enquiry and after recording statements of each of the candidates, who appeared in the enquiry, a detailed report dated 27.9.2010 (Annexure-R/15) was submitted wherein the appointments were found to be forged. 4. It has been urged by learned counsel for the petitioners that they joined in the concerned school and thereafter they were sent for training and some of them have been paid salary, therefore, it cannot be said that the appointments were forged. According to them, the enquiry committee has not conducted enquiry or scrutiny in accordance with law therefore, the impugned order passed by the Janpad Panchayat, Sitapur deserves to be set aside. 5. Heard learned counsel for the parties. 6. This Court has already dismissed one such writ petition bearing W.P.(S) No.7229/2010 with the following observations:- "(3) There is nothing in the record to convince this court that the observation made by the Chief Executive Officer, Janpad Panchayat, Sitapur in the impugned order regarding the appointment letter being forged, is incorrect or perverse. (4) Since the appointment letter was never in existence, the petitioner has no right to continue as Shiksha Karmi, Grade-III." 7. In a leading English case Derry Vs. Peek (1886-90) ALL ER 1, it has been described that fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. 8. In the matter of Shrisht Dhawan (Smt) Vs. M/s Shaw Brothers (1992) 1 SCC 534 , it has been held that fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy- hearted man and trap him into snares'. 9. It has been defined as an act of trickery or deceit. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy- hearted man and trap him into snares'. 9. It has been defined as an act of trickery or deceit. In Websters Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false and therefore a misrepresentation, if it was at the material date false in substance and in fact. 10. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. 11. Yet again in the matter of S.P. Chengalvaraya Naidu (Dead) By Irs. Vs. Jagannath (Dead) By Irs. and other (1994) 1 SCC 1 , it has been held thus in paragraph 1 that "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is thus settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It is thus settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings and further that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a cheating intended to get an advantage. 12. In view of the above settled legal position and for the reason that in the present matter an apparent fraud has been committed either by the Janpad Panchayat and its officers or by the petitioners, who have obtained letter of appointment even without appearing in the competitive examination and without participation in the counselling, the appointment letters were non est and since they are the beneficiaries of fraud and collusion, they cannot derive any benefit out of the said forged appointment letters. It is strange as to why if the petitioners have been successful in the competitive examination and others were appointed in September, 2007, the petitioners waited for more than 1½ years and thereafter they were relieved enbloc by the Janpad Panchayat on or after 12.6.2009 for submitting joining in different schools. There is absolutely no explanation as to whether they were working during the period September, 2007 to June, 2009. Learned Deputy Advocate General would submit that the office of Janpad Panchayat has staff of only 15 persons, therefore, it is impossible that hundreds of Shiksha Karmis were working in the office of Janpad Panchayat from where they were relieved in June, 2009. W.P. (S) No. 6919/2010 (Ku. Sunita Ekka Vs. State of CG & others) 13. In this matter, additional submission has been made that the name of the petitioner is not mentioned in the initial enquiry despite the fact that she represented her case in the first enquiry therefore, her case is not covered within the meaning of fraud. It has also been argued that the impugned order has been passed by incompetent authority i.e. C.E.O. of Janpad Panchayat without any approval of the General Administrative Committee of the said Janpad Panchayat. It has also been argued that the impugned order has been passed by incompetent authority i.e. C.E.O. of Janpad Panchayat without any approval of the General Administrative Committee of the said Janpad Panchayat. It has also been argued that the impugned order is not an order of termination but a restraint order, therefore, it is illegal. W.P. (S) No. 6920/2010 (Smt. Sharda Pandey Vs. State of C.G. & others) 14. In this matter, the petitioner has appeared in the examination and was issued appointment letter on 13.10.2008. She joined on 17.6.2009 and was paid salary up to April, 2010. 15. In W.P. (S) No. 6918/2010 (Shankar Ram Vs. State of Chhattisgarh & others) similar argument has been raised as in the case of Ku. Sunita Ekka (supra). W.P. (S) No. 7260/2010 (Abha Xalxo Vs. State of Chhattisaarh & others) 16. In this matter, it has been argued that she had appeared in the examination conducted by VYAPAM and was appointed on 18.6.2008 therefore, she is also not covered within the meaning of fraud. W.P. (S) No. 5999/2011 (Jitendra Kansari Vs. State of C.G. & others) 17. In this matter, the petitioner has argued that his name is not mentioned in the first enquiry report therefore, finding against him in the second enquiry report cannot be acted upon to oust him from service. 18. So far as petitioners Smt. Sharda Pandey and Abha Xalxo are concerned, it is to be seen that even if they have appeared in the examination conducted by VYAPAM, as per the return filed by the respondents, their names did not appear in the select list of 30 candidates prepared by the Janpad Panchayat. Thus, even if it is not a case of fraud per se, as has been conceptualized with regard to other candidates, who never appeared in the examination conducted by the VYAPAM, but the fact remains that these petitioners were not at all selected by the Janpad Panchayat, yet on the strength of appointment letters, which were never issued by the concerned Janpad Panchayat in their favour, they joined on the post and had worked for some time. Mere participation in the recruitment test would not make them entitled for joining as Shiksha Karmi Grade-III nor they can be allowed to raise plea of equity or estoppal because they were never selected and their appointment letters are non est in the eye of law. Mere participation in the recruitment test would not make them entitled for joining as Shiksha Karmi Grade-III nor they can be allowed to raise plea of equity or estoppal because they were never selected and their appointment letters are non est in the eye of law. 19. The arguments raised by petitioners Ku. Sunita Ekka, Smt. Sharda Pandey and Jitendra Kansari to the effect that their names were not mentioned in the first enquiry report, therefore, their appointments should be treated to be valid, have also no legs to stand inasmuch as the second enquiry report was conducted pursuant to liberty reserved by this Court in favour of the respondents, a detailed enquiry was conducted and the report has been annexed as Annexure-R/15 with the return in which clear finding has been recorded in column 5 of the report against the names of each of the candidates. 20. It is condign to mention that the petitioners have not been able to place before this Court any material to demonstrate or substantiate that they had in-fact appeared in the recruitment test conducted by VYAPAM or they participated in the counselling. Similarly, other petitioners, who although appeared in the examination, but were not included in the select list prepared by the Janpad Panchayat, have not been able to produce any document in support of their case that on the strength of merit they were entitled to be included in the select list or that the persons less meritorious have been selected ignoring their claim. In the absence of any such material before this Court, it is difficult to accept the plea of equity or some defect in mentioning the name of place where they were appointed or non-inclusion of their names in the first enquiry report so as to allow them to function as Shiksha Karmi Grade-III, which would otherwise amount to granting benefit in favour of such candidates, who do not deserve to be appointed on the post of Shiksha Karmi Grade-III. The fact that the impugned orders have not cancelled the appointment but have only restrained the petitioners would not, make the order or the action illegal inasmuch as since the appointments were never made, it was not necessary to cancel them, as the orders are non est. The fact that the impugned orders have not cancelled the appointment but have only restrained the petitioners would not, make the order or the action illegal inasmuch as since the appointments were never made, it was not necessary to cancel them, as the orders are non est. Therefore, since the petitioners were not at all appointed, even without canceling the order, the impugned orders restraining them from working as Shiksha Karmi Grade-III is sufficient for denying them the benefit of non est order. 21. For the foregoing reasons, this Court does not find any merit in I aforesaid writ petitions and as a consequence, all the writ petitions deserve to be and are hereby dismissed. Petitions Dismissed.