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Thursday, April 30, 2015

even after notice of the writ petition when the State of Haryana became aware that Khub Ram lacked essential qualification and his certificates were unreliable, it took no action to undo the ill effects of fraud by taking any action against Khub Ram. As a result Khub Ram continued in service for a number of years and also earned promotions. This was at the cost of claim of other genuine selected candidates whose cases could have been considered if action had been taken at appropriate time. In such a situation, although we have granted no relief to Mahavir Prasad by ordering for his appointment, we direct the State of Haryana to compensate Mahavir Prasad by paying him an amount of Rs.3,00,000/- (Rupees Three Lacs) within two months. A further amount of Rs.1,00,000/- (Rupees one lac) should also be deposited by the State of Haryana with the Supreme Court Mediation Centre within the same time. The State of Haryana would be at liberty to fix responsibility as to who was at fault for not taking action in the matter after the deceitful acts came to its knowledge through filing of the writ petition in 1992, and if possible, to recover the aforesaid amount of Rs.4,00,000/- (Rupees Four Lacs) from the concerned persons, in accordance with law, if they are still in office. As discussed above, Civil Appeal No.2734 of 2012 is dismissed and the other Civil Appeal arising out of S.L.P.(C)No.15871 of 2012 is allowed only to the extent indicated above. There shall be no further order as to costs.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.2734 OF 2012


Khub Ram                                                 …..Appellant

      Versus

Dalbir                    Singh                    &                    Ors.
…..Respondents


                                   W I T H

                        CIVIL APPEAL NO. 4097 OF 2015
                 [Arising out of S.L.P.(C)No.15871 of 2012]

Mahavir Prasad                                           …..Appellant

      Versus

Dalbir                    Singh                    &                    Ors.
…..Respondents



                               J U D G M E N T



SHIVA KIRTI SINGH, J.

The Civil Appeal and the Special Leave Petition  have  been  heard  together
because claim of the parties is in respect of same post of  Chief  Inspector
in the Haryana Roadways to which the appellant  -  Khub  Ram  was  initially
appointed in the  year  1990  pursuant  to  his  selection  in  response  to
advertisement dated 07.05.1989.  First respondent – Dalbir Singh  challenged
the selection and  appointment  of  appellant  Khub  Ram  by  filing  C.W.P.
No.12711 of 1992 in the High Court.   That  writ  petition  was  allowed  on
01.10.2010 by a learned Single Judge.  Not only the appointment of Khub  Ram
and one more person was quashed but a direction was also issued  to  appoint
writ  petitioner  –  Dalbir  Singh  from  a  retrospective  date  with   all
consequential benefits.  Appellant’s appeal before the  Division  Bench  was
dismissed by the impugned order.  The petitioner of S.L.P. – Mahavir  Prasad
has sought permission to file the Special Leave  Petition  against  judgment
of learned Single Judge as well as of Division Bench on the ground  that  he
is  one  amongst  the  selected  candidates  and  has  a  better  claim  for
appointment than respondent – Dalbir Singh and hence order should be  passed
for appointing him in place of Khub Ram.  This judgment  shall  govern  both
the matters which involve common issues of facts and law.
Permission to file Special Leave Petition (C) No.15871 of 2012  is  granted.
Delay condoned.  Leave granted.
For the sake of convenience the facts have  been  noticed  mainly  from  the
records of Civil Appeal No.2734 of 2012 except  where  indicated  otherwise.
For deciding the two issues arising in these cases it is  not  necessary  to
go  deeper  into  the  facts  except  to  notice  that  as  per   terms   of
advertisement dated 07.05.1989, besides a Degree  of  Graduation  and  Hindi
upto Matriculation level and  age  qualification  of  17-35  years,  it  was
essential  for  the   candidate   to   have   two   years’   experience   in
Government/Semi-government or Public Undertakings and Roadways  Fleet.   The
appellant’s selection was questioned in the  writ  petition  mainly  on  the
ground that he  did  not  possess  the  requisite  experience  and  the  two
certificates submitted by him were from private  transporters.   There  were
strong arguments advanced  against  the  selection  of  appellant  and  some
others on the allegation that political  influence  had  been  exercised  in
their favour  and  it  was  specifically  pleaded  that  the  appellant  was
selected in the second round of selection as he belonged to village  of  the
then Chief Minister.  The learned  Single  Judge  noticed  that  appellant’s
experience certificates showed  that  he  had  worked  with  a  private  Bus
Service from June 1986 to June 1988 as  a  Field  Staff  (Checker)  for  two
years and also with another private roadways as  Assistant  Manager  between
01.09.1984  to  10.03.1987.   The  courts  below  noticed  that   both   the
certificates  contradicted  each  other  because  between   June   1986   to
10.03.1987  the  appellant  as  per  his  certificates  had  worked  in  two
different capacities with two different  private  bus  service.   The  court
also found that the two years’ experience as per terms of the  advertisement
could not be  satisfied  by  showing  experience  of  working  with  private
transporters as they were not covered by  the  expression  ‘Government/Semi-
government or Public Undertakings and Roadways Fleet’.
On behalf of Mahavir Prasad  it  has  been  pleaded  that  the  Select  List
contained names of 14 persons which included Khub Ram and  Ram  Niwas  Rathi
whose appointments were quashed by the learned Single Judge as well as  name
of appellant – Mahavir Prasad but not that  of  first  respondent  –  Dalbir
Singh.   On  account  of  his  place  in  the  Select  List  Mahavir  Prasad
represented for appointment and ultimately filed a writ  petition  for  that
purpose bearing C.W.P. No.17600 of 1991 but no relief was given  to  him  by
the final order dated 04.08.1992 which for some  reason  was  challenged  by
the State of Haryana before the Division Bench but not  by  Mahavir  Prasad.
But when he learnt that respondent – Dalbir Singh has succeeded  in  getting
a judgment against Khub  Ram  and  a  direction  for  his  own  appointment,
Mahavir Prasad chose to challenge those judgments in favour of Dalbir  Singh
by preferring the Special Leave Petition directly  in  this  Court  and  the
same was tagged for hearing along with the Civil Appeal.
On behalf of appellant - Khub Ram, Mr. P.N. Misra,  Sr.  Advocate  raised  a
strong objection that writ petition should not have been allowed in 2010  in
view of delay in impleading the appellant as late as in  2004  when  he  had
already earned a promotion on 01.03.1996 and a second promotion  as  Traffic
Manager on 05.05.2000.  It was also  highlighted  that  because  of  interim
order of this Court he has continued in service and  has  been  promoted  as
General Manager in December 2014.  He pointed out that objection  was  taken
to the impleadment application dated 16.02.2004 on grounds of delay as  well
as promotion already earned by the appellant.  In support of  the  aforesaid
plea reliance was placed on judgment of this Court  in  the  case  of  Jiten
Kumar Sahoo v. Mahanadi Coalfields Ltd. (2011) 11 SCC 520 and  in  the  case
of Buddhi Nath Chaudhary v. Abahi Kumar (2001) 3 SCC 328.
Learned senior counsel Mr. Misra also submitted that experience  in  private
roadways fleet would meet the  requirement  of  advertisement  if  the  word
‘and’ appearing before the ‘Roadways Fleet’ is  understood  and  treated  as
‘or’.  According to him, now when the appellant - Khub Ram  has  worked  for
long years, he cannot be denied continuance in service for lack  of  minimum
experience at the  stage  of  recruitment.   He  further  pointed  that  the
appellant noticed the  error  in  experience  certificate  dated  05.06.1989
relating to experience of two years in Shyam Bus Service from June  1986  to
June 1988 and therefore he obtained a  corrected  certificate  on  the  next
day, i.e., 06.06.1989 showing such experience to be from June 1987  to  June
1988.  According to the  appellant,  the  corrected  experience  certificate
dated 06.06.1989 is on record as Annexure P-2.
In reply, Mr. Vikas Singh, Sr. Advocate for  first  respondent  has  pointed
out that issue of delay in impleading the appellant as a respondent  in  the
writ petition was not argued before the learned Single Judge or  before  the
Division Bench.  He pointed out that in respect  of  two  years  of  working
experience in paragraph 2 of the writ  petition  it  was  claimed  that  the
experience required was  of  working  in  a  Government  or  semi-government
department and such claim was admitted by the State,  second  respondent  in
para 2 of its reply.  It was also shown that the  learned  Single  Judge  as
well as the Division  Bench  have  returned  concurrent  findings  that  the
appellant – Khub Ram did not meet the experience qualification and not  only
his certificates were from private bus operators  but  also  the  same  were
untrustworthy because of apparent conflict and overlapping of  a  particular
period in both the certificates.
Anticipating the arguments on behalf of appellant – Mahavir  Prasad  in  the
light of pleadings in the appeal filed by  him,  Mr.  Vikas  Singh,  learned
senior counsel for first respondent highlighted that no other  claimant  for
the  post  joined  the  litigation  when  first  respondent  preferred   the
connected writ petition in the year 1992 and even till 2010  when  the  writ
petition was allowed, no other candidate came forward  with  a  rival  claim
and in such circumstances writ court committed no  error  in  directing  for
appointment of first respondent  as  a  consequence  of  setting  aside  the
appointment of appellant – Khub Ram and another person.
Before adverting to the claims of first  respondent  and  similar  claim  of
appellant –  Mahavir  Prasad  for  appointment  to  the  post  held  by  the
appellant – Khub Ram, it would be appropriate to first examine the merit  of
appeal preferred by appellant – Khub Ram.  We  have  carefully  looked  into
the averments made in the writ petition, the reply filed by State and  other
respondents as well as the judgment of the learned Single Judge as  well  as
the Division Bench.  We find no good reason to  take  a  different  view  in
respect  of  the  finding  that   the   appellant   lacked   the   essential
qualification of experience because his experience  certificates  were  only
from private bus  operators.   It  is  also  found  that  even  the  alleged
corrected certificate said to be dated 06.06.1989 contained in Annexure  P-2
is an unreliable document inasmuch as  the  date  06.06.1989  is  clearly  a
subsequent correction without any authorization by way of counter  signature
and so is the case with the words and letters ‘June 1987’  which  have  been
altered subsequently by  converting  ‘1986’  to  ‘1987’.   Even  after  such
unauthorized corrections the total  experience  as  per  last  line  of  the
certificate remains two years.  Had  the  concerned  Bus  Service  issued  a
fresh corrected certificate then the experience from June 1987 to June  1988
could not have been certified to be experience for two years.  The  list  of
dates also has been subsequently corrected to show the  date  of  experience
certificate, Annexure P-2  as  06.06.1989  in  place  of  05.06.1989.   This
appears to have been done at the instance of the appellant  to  justify  his
stand  and  apparently  a  bogus  claim  that  he  had  obtained  a  correct
certificate  on  the  very  next  date  when  he  found  mistakes   in   the
certificates dated 05.06.1989.   Had  this  been  the  case,  there  was  no
occasion for  submission  of  the  certificate  dated  05.06.1989  with  his
application which issue has been discussed in detail by the  learned  Single
Judge.
Had the appellant not  committed  such  acts  for  obtaining  selection  and
appointment, we could  have  considered  the  issue  of  delay  as  well  as
judgments supporting such  a  claim.   However,  Mr.  Patwalia  has  rightly
submitted that delay in impleading the appellant could not weigh  with  this
Court when a case of fraudulent entry into service has  been  found  by  the
learned Single Judge as well as Division Bench and an attempt has been  made
by the appellant even to mislead this Court by producing  Annexure  P-2  and
claiming it to be copy  of  the  corrected  certificate  freshly  issued  on
06.06.1989.   Such  conduct  of  the  appellant  in  our   considered   view
disentitles the appellant – Khub Ram to get any relief under Article 136  of
the Constitution of India.  Mr. Patwalia  has  rightly  placed  reliance  to
support the aforesaid submissions, on a judgment of this Court in  the  case
of Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383.   The  law  relating  to
effect of fraud upon a competent authority to get an  appointment/office  as
well as effect  of  fraud  upon  court  has  been  discussed  in  detail  in
paragraphs 28 to 36 of the said judgment with which  we  are  in  respectful
agreement.  As a result, we hold that  the  appellant  –  Khub  Ram  is  not
entitled to hold the office which he  obtained  by  submitting  questionable
certificates of  experience  and  more  so  when  he  lacked  the  essential
qualification of working experience in  a  Government/Semi-government/Public
Sector Undertaking.  Hence his appeal is dismissed.
The next question is whether in the facts and circumstances of the case  the
direction  of  the  High  Court  to  appoint   first   respondent   from   a
retrospective date along with consequential benefits deserves to  be  upheld
or not,  particularly  when  a  strong  challenge  has  been  made  to  such
direction through a Special Leave  Petition  of  Mahavir  Prasad.   On  this
issue Mr. Patwalia, learned senior advocate  appearing  for  Mahavir  Prasad
has shown from the pleadings that while Mahavir Prasad was  at  serial  no.9
of the Select List  containing  14  names  prepared  for  appointment  to  5
advertised posts, first respondent Dalbir Singh did not find  any  place  in
such Select List.  This fact escaped the attention of learned  Single  Judge
as well as Division Bench possibly because there was no  rival  claimant  to
point out such shortcoming in the case of writ petitioner – Dalbir Singh.
Mr. Patwalia has  shown  from  the  supplementary  affidavit  filed  in  the
Special Leave Petition to support the application for condonation of  delay,
that as far back as on 25.08.1993 the High Court had passed an order in  the
writ  petition  directing  the  writ  petitioner  to  implead  the  selected
candidates (emphasis added) who are likely to be affected by the  result  of
the present writ petition.  The writ petitioner was given  liberty  to  file
an application for early hearing after impleading the affected  party.   The
writ petitioner filed the impleadment application only for adding  Khub  Ram
and one another person and did not implead all the selected candidates.   As
a  result  appellant  –  Mahavir  Prasad  was  denied  the  opportunity   of
contesting the claim of the writ petitioner by placing the relevant  correct
facts particularly the fact that Dalbir Singh was not a selected candidate.
A number of judgments including State of Mysore v. K.N.  Chandrasekhara  AIR
1965 SC 532 and R.S. Mittal v. Union of India 1995 Supp. (2)  SCC  230  were
relied upon by Mr. Patwalia in support of his submission that  if  challenge
to an appointment succeeds, the court will direct  for  appointment  against
consequent vacancy only as per the merit list prepared for  the  purpose  of
such appointment.  The list has to be given due weightage unless  the  court
has proceeded to quash the Select List itself.   Since  the  proposition  is
well founded in law and there is no caveat on this issue, there is  no  need
to discuss the case law on the subject in any detail.
Learned counsel for the State of Rajasthan has submitted that Khub  Ram  was
ineligible for want of a requisite experience and hence by  working  on  the
post as claimed by him for subsequent two years he cannot get  the  required
eligibility.  He placed reliance upon a judgment of this Court in  the  case
of Central Bank of India v. Madhulika Guruprasad Dahir (2008)  13  SCC  170.
That judgment was rendered in a case where the caste certificate  which  was
the basis for claiming and getting appointment was found to be  false.   The
court, in the facts of the case held the action of the  applicant  concerned
to be fraudulent and on that basis, after discussing the relevant  case  law
in detail in paragraphs 15, 16 and 17, declined to endorse the lenient  view
taken by the High Court and instead, upheld  the  order  of  termination  of
service of the concerned employee with a sound reasoning  -  “the  selection
of the employee was conceived in deceit and, therefore, could not  be  saved
by equitable considerations”.  According to learned counsel  for  the  State
Dalbir Singh did not find place in  the  list  of  selected  candidates  and
hence it would not be proper to uphold the  direction  for  his  appointment
and if Mahavir’s claim finds favour then  the  authority  concerned  may  be
directed to consider the claim of all selected candidates including that  of
Mahavir  Prasad  but  only  against  original  post,  if   available.    The
appointment should not be ordered from any retrospective date  or  with  any
consequential benefits.
There is no dispute that  first  respondent  –  Dalbir  Singh  was  only  an
applicant and was not among the selected 14 candidates.   In  that  view  of
the matter, the  High  Court  was  misled  to  issue  a  direction  for  his
appointment and that too from an earlier date when Khub Ram  was  appointed,
and with consequential  benefits.   Such  directions  could  not  have  been
issued without considering the claims of other persons in the  Select  List.
For that reason, the directions issued in favour  of  first  respondent  are
set aside.  To that extent, appeal of Mahavir  Prasad  has  to  be  allowed.
However, the other prayer made on behalf of Mahavir Prasad that  authorities
be directed  to  offer  him  appointment  or  consider  his  claim,  in  our
considered view cannot be allowed on account of the fact that writ  petition
of Mahavir Prasad filed in 1991 was  decided  against  him  by  order  dated
04.08.1992 passed in C.W.P.No.17600 of 1991.  Rightly or  wrongly  the  High
Court held that he could not claim any right of appointment on account of  a
place in the Select List.  That judgment attained finality.  Mahavir  Prasad
chose not to appeal against that order nor he challenged the appointment  of
any of the persons selected and appointed.  His claim thus suffers from  res
judicata as well as acquiescence and estoppel.  In that view of  the  matter
and also for the reason that a long period of more than 25 years has  passed
since the  preparation  of  the  Select  List,  in  our  view  it  would  be
inappropriate to grant any relief  which  may  require  the  authorities  to
examine the claim of persons in the  Select  List  for  appointment  to  the
original post which may not even be available after lapse of so many  years.
 We have been told that Mahavir is presently about 50 years of age  and  has
not crossed the age of superannuation and is still working on  another  post
with Haryana Roadways.  That in our opinion, will not  change  the  relevant
factors indicated above.  Hence we are not persuaded to  grant  any  further
relief to Mahavir Prasad and his appeal is allowed only in part as a  result
whereof the direction to appoint first respondent  –  Dalbir  Singh  is  set
aside.
A disturbing feature of this case is that even  after  notice  of  the  writ
petition when the State  of  Haryana  became  aware  that  Khub  Ram  lacked
essential qualification and his certificates were  unreliable,  it  took  no
action to undo the ill effects of fraud by taking any  action  against  Khub
Ram.  As a result Khub Ram continued in service for a number  of  years  and
also earned promotions.  This was at the cost  of  claim  of  other  genuine
selected candidates whose cases could have been  considered  if  action  had
been taken at appropriate time.  In  such  a  situation,  although  we  have
granted no relief to Mahavir Prasad by  ordering  for  his  appointment,  we
direct the State of Haryana to compensate Mahavir Prasad by  paying  him  an
amount of Rs.3,00,000/- (Rupees Three Lacs) within two  months.   A  further
amount of Rs.1,00,000/- (Rupees one lac) should also  be  deposited  by  the
State of Haryana with the Supreme Court Mediation  Centre  within  the  same
time.  The State of Haryana would be at liberty to fix responsibility as  to
who was at fault for not taking action in the  matter  after  the  deceitful
acts came to its knowledge through filing of the writ petition in 1992,  and
if possible, to recover the aforesaid amount of Rs.4,00,000/-  (Rupees  Four
Lacs) from the concerned persons, in accordance with law, if they are  still
in office.
As discussed above, Civil Appeal No.2734 of 2012 is dismissed and the  other
Civil Appeal arising out of S.L.P.(C)No.15871 of 2012  is  allowed  only  to
the extent indicated above.  There shall be no further order as to costs.

......………………...……………………………….J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]



……………………………………………………….J.
 [SHIVA KIRTI SINGH]
New Delhi.
April 29, 2015
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