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2017 DIGILAW 1726 (ALL)

KISHAN YADAV v. STATE OF U. P.

2017-07-26

IFAQAT ALI KHAN, RAN VIJAI SINGH

body2017
JUDGMENT : Hon'ble Ran Vijai Singh, J. Hon'ble Ifaqat Ali Khan, J. 1. We have heard Sri Umesh Narain Sharma, learned Senior Counsel assisted by Sri Chandan Sharma, learned counsel for the petitioners and learned Standing Counsel appearing for the State respondents. 2. By means of this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 10.7.2017 passed by the Director of Higher Education, Uttar Pradesh Allahabad by which earlier order passed by the Director of Higher Education dated 24.2.2016 was cancelled and it has been held that the petitioners were not eligible for selection as being candidates of outside the State, they were not entitled to seek benefit of reservation belonging to other backward classes. 3. The facts of this case, in brief, are that U.P. Higher Education Service Commission has issued advertisement no. 20 in the year 1994 advertising certain posts of Lecturers including 50 posts of Lecturers in Political Science and 18 posts of Lecturers in Economics. The petitioner no. 1 has applied for his appointment as Lecturer of Political Science and the petitioner no. 2 for the post of Lecturer in Economics. The result was published on 15.4.1996 and the petitioner no. 1 was selected and placed at serial no. 8 in the select list and petitioner no. 2 at serial no. 1 in the waiting list of selected candidates. The petitioner no. 1 was allotted Atarra College, Atarra Banda, later on transferred to Bundelkhand Mahavidyalaya, Jhansi. 4. On account of non-joining of one selected candidate, the petitioner no. 2, being placed at serial no. 1 in waiting list, has also been allocated the same College, since 1997 the petitioners had been performing their duties to the utmost satisfaction of the College authorities. However, Sri Kesh Bhan Singh, the then Manager of the College has made compliant before the Director of Higher Education to the effect that the petitioners have obtained their appointment by playing fraud/misrepresenting the authorities. When nothing was done, the then Manager of the College has filed Writ Appeal No. 36428 of 2015 (C/M Bundelkhand Mahavidyalaya vs. State of U.P. and Others). The aforesaid writ petition was disposed of on 6.7.2015 with the following observations:- In view of the aforesaid, we dispose of the present writ petition, requiring the respondent no. When nothing was done, the then Manager of the College has filed Writ Appeal No. 36428 of 2015 (C/M Bundelkhand Mahavidyalaya vs. State of U.P. and Others). The aforesaid writ petition was disposed of on 6.7.2015 with the following observations:- In view of the aforesaid, we dispose of the present writ petition, requiring the respondent no. 2 Director of Higher Education, Allahabad to summon the records with regard to selection and appointment of the respondent no. 6 and 7 and to satisfy himself as to whether the appointment offered to the respondent no. 6 and 7 is vitiated on account of fraud, if any, or not. Such decision must be taken by the respondent no. 2, after affording opportunity of hearing to the respondent no. 6 and 7, by passing a reasoned speaking order within a period of eight weeks from the date of receipt of a certified copy of this order. All issues are left open to be considered by the respondent no. 2. 5. On 6.10.2015, a show cause notice was issued to the petitioners requiring them to appear on 20.10.2015 at 12.00 noon and place their case before the Committee. The petitioners appeared and filed their reply on 20.10.2015 denying the allegations. Thereafter the Director of Higher Education, vide order dated 24.2.2016, has found that the petitioners' appointment were made in accordance with law. 6. The aforesaid order was made subject matter of Writ Appeal No. 50988 of 2016 (C/M Bundelkhand Mahavidyalaya Jhansi and Another vs. State of U.P. and Others). On 20.12.2016, this Court has allowed the writ petition and set aside the order passed by the Director of Higher Education on 24.2.2016 with the following observations:- 7. It clearly transpires from the order that the Director of Higher Education has failed to appreciate the directions issued by the Division Bench of this Court. The Director of Higher Education was in fact required to examine whether the selection and appointment of respondent Nos. 6 and 7 were vitiated on account of fraud, if any, having been committed because the contention that was raised was that they did not belong to the OBC category at all. All that has been noticed by the Director of Higher Education in the order is that they had been selected under the OBC category. 6 and 7 were vitiated on account of fraud, if any, having been committed because the contention that was raised was that they did not belong to the OBC category at all. All that has been noticed by the Director of Higher Education in the order is that they had been selected under the OBC category. We fail to understand as to why an Officer of the rank of Director of Higher Education should not be able to understand the directions issued by the Court. The Division Bench apart from directing the Director to examine the issue mentioned in the order had also directed the Director of Higher Education to pass a reasoned and speaking order. 8. The order passed by the Director of Higher Education cannot be sustained as it does not comply with the directions by the Division Bench of this Court. It is, accordingly, set aside. 9. After the aforesaid order was passed, the petitioners were served with another notice dated 2.3.2017 (annexure 15 to the writ petition) intimating the petitioners to appear on 17.3.2017 at 12.00 noon for placing their case. The petitioners thereafter have filed their reply on 17.3.2017, the date fixed, before the Director and thereafter the Director of Higher Education has passed the impugned order dated 10.7.2017. 10. While assailing the aforesaid order, learned Senior Counsel has contended that twice i.e. on 6.7.2015 and another on 20.12.2016, this Court has required the Director of Higher Education to find out as to whether appointment offered to the petitioners is vitiated on account of fraud and twice authority concerned has passed the order but has not recorded any finding as to whether the appointment of the petitioners were an outcome of fraud or not. The submission of learned Senior Counsel is that the impugned order passed by the learned Director is vitiated on this ground alone. He has also submitted that considering the complaint of the then Manager of the College that the petitioners have obtained their appointment by playing fraud/misrepresenting the authorities, atleast in the show cause notice, it was to be detailed as to what was the misrepresentation/fraud committed by the petitioners in the process of the selection. It is contended that in the show cause notice, the petitioners were not informed the factual misrepresentation/fraud played by them, therefore there was no occasion for them to state anything apart that. 11. It is contended that in the show cause notice, the petitioners were not informed the factual misrepresentation/fraud played by them, therefore there was no occasion for them to state anything apart that. 11. On the contrary, it has been submitted that the petitioners have through out disclosed their caste as 'yadav' belonging to District Tikamgarh, Madhya Pradesh. It has also been contended that letters for interview as well as appointment letters have also been sent at the address of Tikamgarh, therefore it cannot be inferred that the petitioners have played any fraud in order to obtain their selection. Sri Sharma has also brought on record photo stat copy of the original form made before the U.P. Higher Education Commission. Learned Standing Counsel contended that this form was not placed before the Director of Higher Education and it has only been annexed in the writ petition, therefore it could not be taken into consideration. 12. Considering the submissions of learned counsel for the parties, on 19.7.2017, this Court has directed the learned Standing Counsel to seek instructions and apprise the Court as to whether pursuant to the order of this Court dated 20.12.2016, the Director of Higher Education has recorded any finding that the petitioners' appointment were outcome of misrepresentation/fraud. Learned Standing Counsel has sought instructions and shown to the Court. At this time, what has been done by the Director of Higher Education, which, this Court can infer, is that the Director has come to the conclusion that in view of the fact that the petitioners belong to another State, therefore they were not entitled to get benefit of reservation in State of U.P. 13. The instructions obtained by learned Standing Counsel is silent on the point of fraud played by the petitioners. 14. Undoubtedly, fraud vitiates even the very solemn proceeding but simultaneously it is also settled that it is easy to allege that particular thing has been obtained by playing fraud but it is very difficult to prove the same. It is settled that fraud and justice cannot live together. 15. It is also settled that fraud is always intentional and is being played with a view to obtain certain benefit knowing it well that in case true facts are stated that benefit would not be extended to the person concerned. 16. It is settled that fraud and justice cannot live together. 15. It is also settled that fraud is always intentional and is being played with a view to obtain certain benefit knowing it well that in case true facts are stated that benefit would not be extended to the person concerned. 16. The Apex Court in the case of State of A.P. and Another vs. T. Suryachandra Rao, 2005 (6) SCC 149 , has observed as under:- "8. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill-will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla vs. Delhi Admn., AIR 1963 SC 1572 and Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550 ). 9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Chengalvaraya Naidu vs. Jagannath, (1994) 1 SCC 1 ). 11..............In Webster's 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 Law 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. In Black's Law 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. Section 17 of the Contract Act, 1872 defines "fraud" as an act committed by a party to a contract with the intent to deceive another. From dictionary meaning or even otherwise fraud arises out of a deliberate active role of the 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 the knowledge that it was false. In a leading English case i.e. Derry vs. Peek, (1886-90) All ER Rep 1 what constitutes "fraud" was described thus: 15. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav vs. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311 ." 17. From the perusal of the Apex Court's judgment, it is clear that the fraud is always intentional and it is played by a person knowing it well that he does not belong to a particular category and files certificate on the basis of falsehood with a view to obtain the benefit of falsehood. 18. From the perusal of the Apex Court's judgment, it is clear that the fraud is always intentional and it is played by a person knowing it well that he does not belong to a particular category and files certificate on the basis of falsehood with a view to obtain the benefit of falsehood. 18. We have gone through the impugned order dated 10.7.2017 passed by the Director of Higher Education, Uttar Pradesh Allahabad, we find that the Director of Higher Education has not addressed himself on the point as to whether the petitioners have played any fraud in order to obtain their selection. Hence, we find that the order impugned is vitiated for non-consideration of the direction of this Court, therefore the impugned order dated 10.7.2017 cannot be allowed to remain in force. It is hereby quashed. 19. The writ petition succeeds and is allowed. The matter is remitted back before the respondent no. 3 for passing a fresh order in accordance with law after giving proper notice looking into the letters and spirit of the orders of this Court dated 6.7.2015 passed in Writ Appeal No. 36428 of 2015 (C/M Bundelkhand Mahavidyalaya vs. State of U.P. and Others) and order dated 20.12.2016 passed in Writ Appeal No. 50988 of 2016 (C/M Bundelkhand Mahavidyalaya Jhansi and Another vs. State of U.P. and Others) and after giving full opportunity of hearing to the petitioners. The petitioners are directed to cooperate with the inquiry. While passing the final order, version of the Higher Education Service Commission be also obtained and considered by the Director of Higher Education.