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2015 DIGILAW 14 (MAN)

State of Manipur v. Talat Muhammed

2015-01-23

KH.NOBIN SINGH, LAXMI KANTA MOHAPATRA

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JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. State has preferred this writ appeal against the judgment and order of the learned Single Judge dt. 19.3.2000 passed in WP(C) No. 1145 of 2006. 2. The respondent No. 1 was initially appointed as a Road Mohorrir on officiating basis against a vacancy caused due to officiating promotion of one Section Officer and such appointment was to continue till regularisation of officiating promotion of the Section officer. Similarly the respondent No. 2 was also appointed as Road Mohorrir on officiating basis against the vacancy caused due to officiating promotion of one Road Mohorrir to the post of Section Officer Grade-II and such appointment was to continue till regularisation of officiating promotion of the said Road Mohorrir to the post of Section Officer Grade-II. In pursuance of such appointment orders, both the respondents joined as Road Mohorrir and continued to serve at different places on being transferred. Their services were also regularised by order dt. 4.11.1999. By order dt. 30.10.06 the respondent No. 1 was transferred to Imphal West II CD block and the respondent No. 2 was transferred to Jiribam block CD. Both of them were not allowed to join on the ground that their services have been terminated by order dated 2.11.2006. The earlier order of transfer dt. 30.10.2006 was also cancelled. Challenging the said order of cancellation of the transfer as well as the order of termination, writ application had been filed. 3. The learned Single Judge allowed the writ petition setting aside the two orders. 4. In appeal, only one ground has been taken by the State and it is stated that the order dt. 4.11.1999 by which both the respondents were regularised in service, is a fake order issued by the then Director in collusion with the respondent Nos. 1 and 2 and that the DPC held on 30.10.1999 had not recommended names of the respondents- 1 and 2 for regularisation as Road Mohorrir nor the Govt. had, at any point of time, approved such regularisation. The further ground taken in the appeal is that the respondent No. 1 was never recommended by the DPC and his name was fraudulently inserted by erasing someone else's name. 5. had, at any point of time, approved such regularisation. The further ground taken in the appeal is that the respondent No. 1 was never recommended by the DPC and his name was fraudulently inserted by erasing someone else's name. 5. At the time of hearing of the writ appeal, the learned counsel for the State fairly submitted that such a ground had not been taken in the counter affidavit filed in the writ petition and that such a ground has been taken for the first time in appeal. It was submitted by the learned counsel for the respondents that the State had taken time to comply with the order of the Court and therefore it is no more open for them to challenge the same in appeal. 6. We have carefully examined the counter affidavit filed on behalf of the State authorities in the writ petition. The ground taken in the writ appeal had not been taken in the counter affidavit. Therefore, question that arises for consideration is as to whether a ground which had not been taken in the writ petition at the time of filing counter affidavit can be raised for the first time in appeal. The learned counsel for the State placed reliance on a decision of the Supreme Court in the case of A.V. Papayya Sastry & Ors vs. Govt. of A.P. & Ors: reported in : (2007) 4 SCC 221 . In the said decision, the apex Court has laid down the meaning of the word, "fraud" and held that judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by court of first instance or by the final court even in collateral proceedings. Reliance was also placed on another decision of the Apex Court in the case of State of Orissa & Anr vs. Mamata Mohanty reported in : (2011)3 SCC 436 . It was held by the Apex Court in the said decision that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. The Court further observed that it would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefit. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. 7. Relying on the above two decisions, it was contended by the learned counsel for the State that the respondents obtained an order of regularisation of their service as Road Mohorrir by committing fraud and therefore such an order is non est in the eye of law. In order to support his contention, he also placed the original records of appointment and regularisation. From the record, we find that the DPC held on 30.10.1999 had recommended some names. The names of both the respondents appear in the said recommendation. A specific plea is taken by the learned counsel for the State that the name of the respondent No. 1 has been inserted in the said recommendation by deleting someone else's name. This is a dispute raised by the learned counsel for the State with reference to the records which cannot be adjudicated in a writ petition. However, copy of the recommendation of the DPC on which much reliance was placed by the learned counsel for the State does not appear to be a photocopy of the original in which interpolation is alleged to have been made. Under these circumstances, it is difficult to say as to whether there was any interpolation in the original document, i.e. the recommendation of the DPC, after it was signed by the Members. Apart from the above, there is no material to show that the respondent No. 1 and 2 committed fraud by inserting the name of respondent No. 1 in the recommendation of the DPC. It was contended by the learned counsel for the State that the said two respondents in collusion with the then Director managed to interpolate the recommendation and inserted name of the respondent No. 1. 8. We are unable to accept such submission without any material in support of the same. It was contended by the learned counsel for the State that the said two respondents in collusion with the then Director managed to interpolate the recommendation and inserted name of the respondent No. 1. 8. We are unable to accept such submission without any material in support of the same. Since there is no material to show that either of the two respondents, i.e. respondent No. 1 or the respondent No. 2 had committed any fraud in the alleged interpolation of recommendation of the DPC dt. 30.10.1999, the two decisions cited by the learned counsel for the State have no application to the facts of the present case. 9. For the reasons stated above, we find no justification to interfere with the order of the learned Single Judge. The writ appeal is, accordingly, dismissed.