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2014 DIGILAW 270 (ORI)

Jasoda Giri v. State of Orissa

2014-04-22

B.R.SARANGI

body2014
JUDGMENT DR. B.R. SARANGI, J- The Petitioner has filed this petition seeking for the following reliefs: "Under the above circumstances' it is therefore humbly prayed that this Hon'ble Court be graciously pleased to call for the records of Review Petition NO.2 of 2006 from the Opp. Party No.3 & set aside the Order Dated 19.10.2006 & the communication thereof to the Petitioner under Annexure-4; & further this Hon'ble Court be pleased to direct the Opp. Party NO.3 to hear the Review application by giving an opportunity of hearing to the Petitioner & passed speaking order; and/or pass any other appropriate order/orders, writ/writ, direction/directions in the fitness of the case; & for this act of kindness. the Petitioner shall as in duty. bound ever pray." . 2. The brief fact of the case in hand is that Jagulai High School, Sana Barchi Kayan in the district of Bhadrak was established in the year 1992. The School got recognition in the year 1993 from the Government. The Board of Secondary Education, Orissa granted recognition in the year 1996 to present the candidates in the Annual H.S.C. Examination. The Petitioner was appointed as an Assistant Teacher (TG Teacher) having trained Graduate qualification on 05.08.1998/ pursuant to which he joined on 10.08.1998 but she was prevented to discharge her duty in the School w.e.f. 01.08.1999. The Petitioner filed a representation before the Inspector of Schools, Bhadrak against such illegal action of the Managing Committee & the Headmaster of the School. Thereafter/ she filed an appeal bearing Appeal No.1 0 of 1999 before the Director! Secondary Education/ Odisha against such prevention which amounted to termination of service as o.:r the Government Circular dated 27.03.1983. The Government vide notification dated 15.12.2000 authorized the Regional Joint Director to hear the appeal against termination instead of Director Secondary Education. Therefore, the appeal bearing No.1 0 of 1999 was transferred to the Regional Joint Director! Bhuabneswar for hearing. When the matter was subjudice before the Appellate forum, the institution was notified to receive grant- in-aid vide notification dated 20.2.2004. The appeal preferred by the Petitioner bearing Appeal NO.1 0 of 1999 was allowed & the termination was set aside. Further the Managing Committee was directed to reinstate the Petitioner as the 3rd TG Teacher of the School vide Annexure-2. The appeal preferred by the Petitioner bearing Appeal NO.1 0 of 1999 was allowed & the termination was set aside. Further the Managing Committee was directed to reinstate the Petitioner as the 3rd TG Teacher of the School vide Annexure-2. Despite the order of the Appellate Authority, the Petitioner was not allowed to join in her post on the plea that there is no Managing Committee of the School. The Petitioner approached the Inspector of Schools with regard to non-compliance of the order passed by the Appellate authority but the same has not been considered. In the meantime, since the institution was notified to receive grant-in-aid, the school authorities sent the proposal in favour 0f the other staff except the Petitioner. Therefore, the Petitioner filed G IA Case NO.162 of 2004 before the State Education Tribunal, which is pending for adjudication. The Opp. Party Nos. 5 & 6 coming to know about the Order Dated 20.03.2004 passed in G IA Appeal NO.10 of 1999, filed a petition for recalling the said Order Dated 20.03.2004 & also sent a petition to the Joint Director by registered post on 29.03.2005 in Annexure-F/5. The Opp. Party Nos. 5 & 6 filed W.P.(C) NO.9414 of 2005 with following reliefs. "The Petitioners most respectfully pray that the Hon'ble Court may be graciously pleased to allow the Writ Petition & issue a writ or direction in ,the nature of certiorari or other appropriate writ or direction quashing the order No.4542 dated 20.03.2004 passed by the Joint Director (school), Regional Directorate under Annexure2 & further issue a writ or direction in the nature of mandamus or other appropriate writ or direction to Opp. Parties NO.1 & 3 to give approval to the service of Petitioner No.2 as Trained Graduate Teacher (arts) of Jagulai High School & give him all the consequential, financial benefits & further pass such other or further order/orders as are deemed just & proper. . 3. After considering the same, this Court disposed .of the said Writ Petition by Order Dated 17.11.2005, which reads as follows: "Heard learned Counsel for the Petitioners. The Petitioners in this writ application have assailed the order passed by the Regional Director of Education, Bhubaneswar (Annexure-2) on the ground that the said order was passed without impleading the Managing Committee represented through its Secretary, as a party & only the Headmaster was made a party to the proceeding. The Petitioners in this writ application have assailed the order passed by the Regional Director of Education, Bhubaneswar (Annexure-2) on the ground that the said order was passed without impleading the Managing Committee represented through its Secretary, as a party & only the Headmaster was made a party to the proceeding. In course of hearing we find that the Petitioners have filed an application to recall the aforesaid order, & the said application is pending before the Regional Director, Education, Bhubaneswar, under Anneuxre4. We are not inclined to entertain this writ application at this stage. Let the Director of Education deal with the matter in accordance with law. The review application filed by the Petitioners be disposed of within a period of two months from the date of receipt of this order." This Court while disposing of the Writ Petition, relying upon the statement made by the Petitioner that without impleading the Managing committee represented through the Secretary as a party, only the Headmaster was made party to the proceeding, disposed of the matter directing the Directqr of Education to deal with the matter in accordance with law & !urther directed to dispose of the review application filed by the Petitioners in the said case within a period of two months from the date of receipt of the order. The said order of this Court dated 17.11.2005 has also been passed without giving notice to the present Petitioner but the order itself indicates that this Court has not interfered with the order passed by the Appellate Authority dated 20.03.2004 in Appeal Case NO.1 0 of 1999 under Annexure-2. I he copy of the petition for review/ recall filed by the Opp. Party Nos. 5 & 6 was not served on the Petitioner when the matter was posted for hearing on 18.03.2006. However, the Petitioner filed counter to the petition for review/ recall on 29.04.2006 & thereafter the matter was posted to 20.05.2006 on which date due to absence of the Joint Director the matter was posted to 01.07.2006 on which date the matter was again adjourned to 29.07.2006. However, the Petitioner filed counter to the petition for review/ recall on 29.04.2006 & thereafter the matter was posted to 20.05.2006 on which date due to absence of the Joint Director the matter was posted to 01.07.2006 on which date the matter was again adjourned to 29.07.2006. Thereafter on 29.07.2006 the matter was again adjourned to 19.08.2006 & 13.09.2006 but on 13.09.2006 when the recall petition was heard in part, since the Petitioner was not served a copy of the review petition or Writ Petition, Learned Counsel appearing for the Petitioner prayed before the forum to direct the review Petitioner to serve a copy of the petition. Accordingly the Regional Joint Director directed the Review Petitioner to supply the copy of the Review Petition NO.2 of 2006 & Writ Petition filed before this Court & posted the matter for hearing on the question of maintainability of Review Petition NO.2 of 2006 after Puja vacation by passing the following order: "Heard both the parties. Respondent No..1 of the Review Petition No. 2/2006 raised question regarding non availability of the Original Writ Petition filed before the Hon'ble High Court & the Order passed by the Hon'ble High Court thereof. This Appellate authority directs review Petitioner to provide Xerox copy of the above documents in 2 sets, one to the Respondent NO.1 & another to this forum. Hearing on maintainability as per law of the review petition NO.2/06 will be fixed preferable after puja Vacation. The Inspector of Schools concerned be directed to appear before the Court with factual report as regards the status & the position of the M.C. as on the date the institution became aided. Sd/- B.N. Parida, dt.13.9.06 Joint Director (Schools)" 4. From the aforesaid order, it appears that the matter was adjourned for hearing on the question of maintainability of Review Petition NO.2 of 2006 without fixing any date & without any notice to the Petitioner the matter was posted to 19.10.2006 by the Regional Director for hearing. But the order sheet reveals that initial order was passed for adjourning the matter for fresh hearing on 01.11.2006 but later on the order was scored through & on the same date i.e.on 19.10.2006 another order was passed recalling the Order Dated 20.03.2004 & Appeal Case No.1 0 of 1999 was posted for hearing to 01.11.2006. But the order sheet reveals that initial order was passed for adjourning the matter for fresh hearing on 01.11.2006 but later on the order was scored through & on the same date i.e.on 19.10.2006 another order was passed recalling the Order Dated 20.03.2004 & Appeal Case No.1 0 of 1999 was posted for hearing to 01.11.2006. In view of the Order Dated 19.10.2006 the GIA Case NO.162 of 2004 also stood dismissed. The Petitioner immediately filed the present Writ Petition challenging the Order Dated 19.10.2006 passed by the Regional Joint Director & though copy of the said order has not been provided to the Petitioner on the basis of the communication made under Annexure-4, he filed this Writ Petition before this Court. While recalling Order Dated 20.03.2004 passed in Appeal Case NO.1 0 of 1999, it was directed that the original appeal was posted for hearing on merit on 01.11.2006 at 11.30 a.m. While entertaining this Writ Petition considering the situation in absence of the Order Dat8d 19.10.2006, this Court passed order in the main Writ Petition as well as in the Misc. Case which reads as follows: " Heard Issue notice, on admission indicating therein that this writ application shall be disposed of at the stage of admission. Learned Standing Counsel for the School & Mass Education Department accepts notice & enters appearance for Opp. Parties No.1 to 4. Four extra copies of the Writ Petition be served on him & receipt be filed as undertaken by tomorrow. Mr. Manoj Mohanty, Learned Advocate enters appearance for Opp. Parties No.5 & .6. Two extra copies of the Writ Petition be served on him & receipt be filed as undertaken by tomorrow. Opp. Parties NO.5 & 6 have filed an affidavit on one Narottam Sahu (Opp. Party No.6) & has annexed documents, copy of the same has been served on the Learned Counsel for the Petitioner. It is also stated at the Bar & noted in the order, Annexure-H regarding disposal of Writ Petition (W.P.(C) No. 9414 of. 2005). Therefore, we direct Learned Standing Counsel to produce entire case records of the Appeal/Revision/Review petition filed & the order passed by Opp. Party No.2 "in original". We also direct the Deputy Registrar (Judl.) of this Court to tag W.P.(C) No.9414 of 2005 disposed of on 17.11.2005 for reference. List this Writ Petition next week. 2005). Therefore, we direct Learned Standing Counsel to produce entire case records of the Appeal/Revision/Review petition filed & the order passed by Opp. Party No.2 "in original". We also direct the Deputy Registrar (Judl.) of this Court to tag W.P.(C) No.9414 of 2005 disposed of on 17.11.2005 for reference. List this Writ Petition next week. Records & affidavit, if any, be filed in the meantime. Misc. Case NO.12656 of 2006 & Misc. Case No. 13066 of 2006 Copy of Misc. Case NO.12656 of 2006 was filed together with the Writ Petition & the other Misc. Case is filed today of copy served on the Learned Counsel for the Opp. Parties. Heard. Further proceeding of the Appeal/Review/Recall application pending before Opp. Party NO.3 shall remain stayed till next week." Since the Writ Petition was filed before this Court on 31.10.2006 assailing the Order Dated 19.10.2006, the Petitioner sought for adjournment before the Regional Director on02.11.2006 & accordingly the matter was adjourned. 5. Mr. S.K. Das, Learned Counsel for the Petitioner states that as the Appeal Case NO.1 0 of 1999 has been disposed of by the Appellate Authority, the said authority has become functus officio & more so in absence of any power of review, the application filed for review of the Order Dated 20.03.2004 passed in Appeal Case NO.1 0 of 1999 is without jurisdiction & as such the same is not maintainable & therefore, he seeks to quash the Order Dated 19.10.2006 passed by the Joint Director in Review Petition NO.2 of 2006. In order to substantiate his contention, he has relied upon the Judgments of this Court in Gopinath Deb v. Budhia Swain & ors, 54 (1982) C.L.T. 515 & Jayaram Bhuyan v. State of Orissa & ors, 2008(11) OLR 438. It is further urged that the Opp. Party Nos. 5 & 6 having not come to this Court with clean hand & having practised fraud on the Court by adopting falsehood & by giving misleading statement in the appeal that the Managing Committee was not made a party. no relief can be granted to them. But in fact the Appeal Case NO.10 of 1999 in Annexure-1, the appeal memo which has been annexed itself indicates that the Managing Committee of Jagulai High School represented through its Secretary has been made a party. no relief can be granted to them. But in fact the Appeal Case NO.10 of 1999 in Annexure-1, the appeal memo which has been annexed itself indicates that the Managing Committee of Jagulai High School represented through its Secretary has been made a party. Therefore, on that score, the order passed by the Joint Director dated 19.10.2006 is liable to be set aside. 6. Mr. M.K. Mohanty, Learned Counsel for the Opp. Party Nos. 5 & 6 strenuously urged that Opp. Party Nos. 5 & 6 have never intended to review the Order Dated 20.03.2006 passed by the Appellate Authority in Appeal Case No.10 of 1999. On the other hand, they moved the application for recall of the said order & such recalling order has been passed in view of the order passed by this Court on 17.11.2005 in W.P.(C) No.9414 of 2005. It is further argued that since the Order Dated 20.03.2004 in Appeal Case No. 10 of 1999 has been passed by playing fraud, the order has to be recalled. It is stated that the application for recall of the Order Dated 20.03.2004 is maintainable. In order to substantiate his contention, he has relied upon the Judgments of the Apex Court in United India Insurance Co. Ltd. v. Sanjay Singh & ors, AIR 2000 SC 1165 & Indian Bank v. Sat yam Fibers (India), AIR 1996 SC 2592 . In addition to the same it is argued that the Writ Petition is not maintainable since the order sought to be quashed i.e. 19.10.2006, having not been annexed, the same cannot be set aside. To that extent, he has relied upon the Judgment of this Court in Sachidananda Das v. State of Orissa & Ors. 109 (2010) CLT 396. 7. Mr. A.K. Pandey, learned Standing Counsel appearing for the School & Mass Education Department referring to para 7 of the counter affidavit, supported the stand of the Regional Director of Education, Orissa, Bhuabneswar & stated that the Petitioner was never given appointment as an Assistant Teacher in the T.G. post at Jagulai High School. Further, it is stated that the Regional Director has no power to review his own order. Therefore, the impugned order passed is without jurisdiction. 8. Further, it is stated that the Regional Director has no power to review his own order. Therefore, the impugned order passed is without jurisdiction. 8. Considering the above contention raised & after hearing the learned Counsel for the parties & on perusal of the records, the sole question arises for consideration is whether the Joint Director of the Secondary Education has got any power of review for reviewing the Order Dated 20.03.2004 in Review Petition NO.2 of 2006 passed in Appeal NO.10 of 1999. 9. The Order Dated 20.03.2004 passed in Appeal NO.10 of 1999 has not been assailed by the opp. Party Nos. 5 & 6 before this Court in W.P.(C) No. 9414 0f 2005 on the ground that the opp. Party Nos. 5 has not been made a party in the appeal & the order has been passed without giving any opportunity to him. Therefore, the application for review/recall has been filed, which is pending for consideration. At the stage of admission of the Writ Petition/ believing on the contention raised by the opp. Party Nos. 5 & 6 & recording the contention that the Managing Committee represented through the Secretary is not a party, this Court disposed of the Writ Petition directing the Director to consider the Review Application in accordance with law. The fact that the Managing Committee has not been made a party, is absolutely a misleading statement made by the opp. Party Nos. S' & 6 in W.P.(C) No.9414 of 2005. The appeal memo filed registered as Appeal Case NO.1 0 of 1999 which has been annexed as Annexure-1 to the Writ Petition clearly indicates that the Managing Committee of the Jagulai High School represented through its Secretary has been impleaded as Respondent No.1 in the appeal. In all fairness, the Opp. Party Nos. 5 & 6 could not have made such patent erroneous statement before this Court to grab an order in their favour in W.P.(C) No.9414 of 2005 & as such, this Court has not interfered with the order assailed, i.e., the order of the Appellate Authority dated 20.03.2004 passed in Appeal NO.1 0 of 1999, which was annexed as Annexure-2 to the said W.P.(C) No. 9414 of 2005 nor the said order has been set aside by this Court. But this Court passed order in W.P.(C) No. 9414 of 2005 only enabling the opp. Party Nos. But this Court passed order in W.P.(C) No. 9414 of 2005 only enabling the opp. Party Nos. 5 & 6 to move application for recall before the Regional Director, Bhubaneswar under Annexure-4 of the Writ Petition. This clearly indicates that by playing fraud on Court, the opp. Party. Nos. 5 & 6 have succeeded to get an Order Dated 17.11.2005 & while passing such order, this Court has also not issued notice to the opp. Parties in the said Writ Petition, who is the Petitioner before this Court in the present Writ Petition. Apart from the same, in compliance to the order passed by the Director dated 13.09.2006, copy of the Review Application NO.2 of 2006 has been served on Learned Counsel for the Petitioner which has been annexed as Annexure-4 in WP(C) No. 9414 of 2005. In the cause title, it has been specifically mentioned "in the matter of an application for review/recall of the Order Dated 20.03.2004". From this expression, it is made clear that the Opp. Party Nos. 5 & 6 are not certain about the provision under which they have moved the application• & more so the said application has been registered in the office of the Regional Director, Bhubaneswar in Review Application NO.2 of 2006 but in course of hearing Mr. M.K. Mohanty, Learned Counsel appearing for the opp. Party Nos. 5 & 6 emphatically stated that since there is no provision under the Act & Rules of the Orissa Education Act, the application so filed cannot be nomenclatured as 'review' rather it is a 'recall' application fiied by Opp. Party Nos. 5 & 6. But the said application has been registered as Review Application No. 02 of 2006 which is apparent on the face of record. 10. Once the appeal bearing Appeal No. to of 1999 has been disposed of vide Order Dated 20.03.2004, the Appellate Authority has become functus officio & it cannot entertain any application for review/recall filed by any party, because the statute does not empower it for review of its owner order. If the application filed by the opp. Party Nos. 5 & .6 is nomenclatured as "review/recall" of the Order Dated 20.03.2004, in this circumstances, the meaning of 'review' & 'recall' vis-a-vis the jurisdiction of this• Court has to be taken note of. 11. If the application filed by the opp. Party Nos. 5 & .6 is nomenclatured as "review/recall" of the Order Dated 20.03.2004, in this circumstances, the meaning of 'review' & 'recall' vis-a-vis the jurisdiction of this• Court has to be taken note of. 11. According to Black's Law dictionary, 7th Edn., p. 1320, 'review' means consideration, inspection, or re-examination of a subject or thing. As per the decision of the Apex Court in Lily Thomas v. Union of India, (2000) 6 SCC 224 , 'review' is the act of looking, offer something again with a view to correction or improvement. In Major Chandra Bhan Singh v. Latafat Ullah Khan, AIR 1978 SC 1814 (1817): (1979) 1 SCC 321 : (1978) 1 SCR 891, the Apex Court has held that 'review' is a creature of statute & cannot be entertained in the absence of a provision thereof. In Delhi Cloth & General Mills Co. Ltd. V. Rajasthan State Electricity Board, AIR 1986 SC 1126 : (1986) 2 SCC 431 : (1986) 1 SCR 633 , the word 'review' necessarily implies the power of the Board to have a second look & to so adjust from time to time its changes as to carryon its operations under the Act without sustaining a loss. 12. In S. Nagraj v. State of Karnataka, 1993 Supp (4) SCC 595 (619), Apex Court held that 'review' literally & even judicially means re-examination or re-consideration. The basic philosophy inherent in it is the universal acceptance of human fallibility. In State of Maharashtra v. Smt. Sobha Vithal Kolte" AIR 2006 Bom. 44 , the expression 'review' used in two different senses, namely (1) a procedural review which is either inherent or implied in a Court or Tribunal, to set aside a palpably erroneous order passed under-by misapprehension under it & (2) a review on merits when the error sought to be corrected is one of law & is apparent on the face of the record. In Simrikhia v. Dolley Mukharjee, AIR 1990 SC 1605 , the Apex Court held that if there had been change in the circumstances of the case, it would be an order for the High Court to exercise its inherent powers in the prevailing circumstances & pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstance & the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same Il)aterials to arrive at different conclusion is in effect a review. 13. This Court in Gopinath Deb(supra) held as follows: "The term 'review' means a judicial re-examination of the case in certain specified & prescribed circumstances. The power of review is not inherent in a Court or Tribunal. It is a creature of the statute. A Court or Tribunal cannot review its own decision unless it is permitted to do so by statute. The Courts having general jurisdiction like Civil Courts have inherent power. But the Courts or Tribunals of limited jurisdiction creates under special statutes have no inherent power." 14. Considering the above meaning of 'review', since there is no power vested under the statute to review the order, the Joint Director could not have entertained such application for review of the Order Dated 20.03.2004 passed by him in Appeal No.10 of 1999 because the power of review is not available under any of the provisions created under the statute. 15. Now the question that arises for consideration is whether the Joint Director has considered it as a 'recall' application. 16. The Apex Court in Budhia Swain v. Gopinath Deb, AIR 1999 SC 2089 , held as follows: "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 & such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgement, (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 & the estate was not represented. The power to recall a Judgment will not be exercised when the ground for reopening the proceedings or vacating the Judgment, was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The power to recall a Judgment will not be exercised when the ground for reopening the proceedings or vacating the Judgment, was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a Judgment may be lost by waiver, estoppel or acquiescence." The distinction between 'review' & 'recall' has come up for consideration before Apex Court in Asit Kumar v. State of West Bengal, 2009 AIR SCW 2784, wherein the Apex Court has held that there, is a distinction between a petition under Article 32 & a petition for 'review'& 'recall'. While 'review' considers merit where there is error apparent on the face of the record, in a 'recall' petition Court does not go into the merits but simply recall the order. 17. In view of the aforesaid law laid down by the Apex Court & applying the same to the present context, it appears that Joint Director has acted in excess of his jurisdiction which was not conferred on him & more so he is not competent to do so in view of the Judgment in Jayaram Bhuyan (supra), in which this Court has referred to the Judgment of the Apex Court in Tikaram v. Mundikota Shikshan Prasarak Mandai & ors, AIR 1984 SC 1621 & Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahayidyaiaya Sitapur (U.P.) & ors, AIR 1987 SC 2186 wherein the Apex Court has taken a consistent view even by referring to the earlier precedent that in the absence of specific power conferred, review jurisdiction cannot be exercised by quash judicial body while discharging the quasi judicial function. 18. The reliance placed by Mr. M.K. Mohanty, Learned Counsel appearing for opp. Parties 5 & 6 on the Judgment of the Apex Court in United India Insurance Company Ltd. (supra), where reference has 'also been made to Indian Bank (supra), the Apex Court held that since 'fraud' affects the solemnity, regularity & orderliness of the proceedings of the Court & 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 practiced 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. It is further held that 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 or misrepresentation of such a dimension as would affect the very basis of the claim. The above two Judgments cited by Mr. Mohanty, Learned Counsel appearing for the opp. Parties 5 & 6 has no assistance to his case in the present Writ Petition, rather, it has got full-fledged application to the case of the Petitioner in view of the fact that the Order Dated 17.11.2005 passed in W.P.(C) No. 9414 of 2005 has been obtained by the Opp. Parties 5 & 6 by misrepresenting the Court & playing fraud on Court. Therefore, no relief can be granted to the opp. Parties 5 & 6, who have misrepresented or played fraud on the Court. That itself vitiates from the very beginning. 19. This Court in W.P.(C) No. 24527 of 2013 disposed of on 11.02.2014 (Urmila Tripathy & another v. Smt.Charulata Kar & others) referring to the Judgment of the Apex Court in Meghmala & ors v. G.Narasimha Reddy & ors, 2010, 8 SCC 383 held as follows: "It is settled proposition 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 eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu v. Jagannath) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that: (OB p. 712) "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 A.P. State Financial Corpn. v. GAR Re-Rolling Mills & State of Maharashtra v. Prabhu this Court observed that a Writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. Fraud unravels everything." In A.P. State Financial Corpn. v. GAR Re-Rolling Mills & State of Maharashtra v. Prabhu this Court observed that a Writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. "Equity is always known to defend the law from crafty evasions & new subtleties invented to evade law." In Shrisht Dhawan v. Shaw Bros, it has been held as under: (SCC p. 553, para 20) "20. Fraud & collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct." In United India Insurance Co. Ltd. v. Rajendra Singh this Court observed that "Fraud & justice never dwell together" (frauset jus nunquam cohabitant) & it is a pristine maxim which has never lost its temper over all these centuries. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit & benefit to the persons who played fraud or made misrepresentation & in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, Union of India v. M. Bhaskaran, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, State of Maharashtra v. Ravi Prakash Babulalsing Parmar, Hiniadri Chemicals Industries Ltd. v. Coal Tar Refining Co. & Mohd. Ibrahim v. State of Bihar.) Fraud is an intrinsic, collateral act, & fraud of an egregious nature would vitiate the most solemn proceedings of Courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression 'fraud' involves two elelments, deceit & injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn., Indian Bank v. Satyam Fibres (India) (P) Ltd., State of A.P.v.T. Suryachandra Rao, K.D. Sharma v. SAIL & Central Bank of India v. Madhulika Guruprasad Dahir.] An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud &. deception are synonymous. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud &. deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles & any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. 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. Suppression of R material document would also amount to a fraud on the Court. (Vide S.P. Chengalvaraya Naidu, Gowrishankar v. Joshi Amba Shankar Family Trust, Ram Chandra Singh v. Savitri Devi, Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education & Ashok Leyland Ltd. v. State of T.N.) In Kinch v. Walcott it has been held that: "...mere constructive fraud is not, at all events after long delay, sufficient but such a Judgment will not be .set aside upon mere proof that the Judgment was obtained by perjury". 20. In the present case, by asking an innocuous order by misrepresenting the Court that the Managing Committee is not a party & believing on the statement, this Court having passed the order directing for 'review' or 'recall' of the Order Dated 20.3.2004 & taking advantage of the same, the opp. Parties 5 & 6 cannot avail the benefit out of the same as the Order Dated 17.11.2005 passed in W.P.(C) No. 9414 of 2005 obtained by playing fraud on the Court. 21. It appears that the impugned Order Dated 19.10.2006 has not been annexed & it is the settled law that a document, which is not a part of the brief cannot be set aside. But then, it appears that in this case the order, which is impugned, having not been provided to the Petitioner, he prayed for calling for records in Review Petition NO.2 of 2006 referring to the communication made by 'the authorities in Annexure-4 he sought for setting aside the Order Dated 19.10.2006 recalling the ex parte Order Dated 20.3.2004 passed in Appeal NO.10 of 1999. Since the order has been passed by an authority having no jurisdiction to pass the order, that itself is a nullity in the eye of law. Therefore, if the Petitioner indicates the date of the order & reference is made to the lower Court record, as the said copy of the order has not been provided to him & further communication has been made him referring to the same vide Annexure-4, it cannot be construed that no relief can be granted to set aside the same even though the same has not been annexed to the Writ Petition. The order impugned being a nullity, the Court can on perusing the record set aside the order & grant relief to the Petitioner as the order so passed is void ab initio in view of the fact that the authority has no jurisdiction to pass such order. 22. In view of the foregoing discussions & the ratio of the Judgments referred to supra, the Order Dated 19.10.2006 passed by the Joint Director, Regional Directorate of Education, Bhubaneswarcum- Appellate Authority in Review Application No.2 of 2006 communicated to the Petitioner vide letter dated 19.10.2006 under Annexure-4 is hereby quashed. 23. The Writ Petition is accordingly allowed. No cost.