Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 1755 of 2015, Judgment Date: Feb 11, 2015

  • -When the appointment is made de hors the rules, the  same  is  a
    nullity.  In such an eventuality, the statutory bar  like  doctrine  of  res
    judicata is not attracted.
  • -"From the above, it is evident that even in  judicial  proceedings,  once  a
    fraud is proved, all advantages gained by playing fraud can be  taken  away.
    In such an eventuality the  questions  of  non-executing  of  the  statutory
    remedies or statutory bars like doctrine of res judicata are not  attracted.
     Suppression of any material fact/document amounts to a fraud on the  court.
     Every court has an inherent power to  recall  its  own  order  obtained  by
    fraud as the order so obtained is non est."-

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.  1755    OF 2015
                 (Arising out of SLP (Civil) No. 22246/2014)


KRISHNA HARE GAUR                                         ... Appellant

                                   Versus

VINOD KUMAR TYAGI & ORS.                               ...  Respondents


                               J U D G M E N T


R. BANUMATHI, J.

Leave granted.
2.          This appeal is preferred against the judgment  dated  15.05.2014
passed by the High Court of Judicature at  Allahabad  allowing  the  Special
Appeal No.1165/2012 filed by respondent No.1 observing that the  appellant's
claim is barred by the principle of res judicata.
3.          Brief facts which led to  the  filing  of  this  appeal  are  as
under:- Vidyapati Junior  High  School,  Jageshwar,  Murshangate,   Mahamaya
Nagar, District Hathras, U.P., which is an aided and recognized Junior  High
School, issued an  advertisement  on  28.07.2010  in  the  daily  newspapers
inviting applications from the eligible candidates for  appointment  on  the
post of Headmaster.  Krishna Hare  Gaur,  the  appellant  along  with  Vinod
Kumar Tyagi, respondent No.1 and several other persons applied for the  said
post.  Respondent No.1 was selected and his appointment was approved by  the
District Basic Shiksha Adhikari on 09.09.2010  and  appointment  letter  was
issued on 10.09.2010.  Based on the information obtained  through  RTI,  the
appellant made a  representation  dated  04.10.2010  to  all  the  concerned
authorities alleging that respondent No.1 had obtained appointment by  using
forged experience certificates along with his  application.   The  appellant
also  submitted  another  complaint  dated  15.10.2010   to   the   District
Magistrate, Mahamaya Nagar.  Since  no  action  was  taken  by  any  of  the
authorities,  the  appellant  filed  Writ  Petition  No.70074/2010   raising
objections to the said appointment.  The learned Single Judge  of  the  High
Court, after hearing the parties, vide order dated 02.12.2010  directed  the
District Basic Shiksha Adhikari to pass a reasoned order within a period  of
six  weeks.   The  District  Basic  Shiksha  Adhikari,  vide   order   dated
3.02.2011, rejected the representation of the appellant.  Aggrieved  by  the
said order, the appellant preferred Writ  Appeal  No.13537/2011,  which  was
also dismissed, vide order dated  10.03.2011,   holding  that  the  District
Basic Shiksha Adhikari has recorded a categorical finding that he  inspected
the original records and found  that  Respondent  No.1  has  requisite  five
years teaching experience.
4.          In the meantime, the District Magistrate took cognizance of  the
appellant's representations dated 04.10.2010  and  15.10.2010  and  directed
the Additional District Magistrate  to  conduct  an  inquiry  and  submit  a
report.  The Additional District Magistrate  submitted  his  report  stating
that the experience certificates filed by Respondent  No.1  were  bogus  and
obtained with the collusion of the  principal  of  respective  institutions.
The District Magistrate forwarded the report to the Basic Shiksha  Adhikari,
vide order dated 09.4.2012, directing him to take appropriate action in  the
matter and report at the earliest.  Pursuant to the finding and the  report,
the appointment of Respondent  No.1  was  cancelled  by  the  Basic  Shiksha
Adhikari on 16.04.2012.
5.          Aggrieved by the cancellation of  appointment,  Respondent  No.1
filed Writ Petition No. 20297/2012 before the  High  Court,  impleading  the
appellant herein as one of the respondents.  The  learned  Single  Judge  of
the High Court, vide order dated 22.05.2012, dismissed the writ petition  on
the ground that appointment of respondent No.1 is contrary to the  statutory
provisions as he did  not  possess  the  relevant  experience  certificates.
Aggrieved by the above  order,  the  respondent  No.1  herein,  preferred  a
Special Appeal No. 1165/2012 before the High Court which was allowed by  the
Division Bench by applying  the principle of res judicata.  Being  aggrieved
by the order of the Division Bench, the appellant  (respondent  No.8  before
the High Court)  preferred  this  appeal  by  special  leave  assailing  the
correctness of the order of the Division Bench.
6.          We have heard learned counsel appearing for both the parties.
7.          Learned counsel  appearing  for  the  appellant  contended  that
respondent  No.1  secured  appointment  to  the  post  of  Head  Master   by
committing fraud on the basis of forged documents and  such  an  appointment
cannot  be  upheld.   It  was  further  submitted  that  respondent   No.1's
appointment letter dated 09.09.2010  is  conditional  and  in  case  of  any
concealment of facts, the appointment is liable  to  be  cancelled.  It  was
submitted that the  appointment  of  respondent  No.1  is  contrary  to  the
statutory provisions contained in Rule 4(2)(c) read with Rule  2(h)  of  the
U.P.  Recognized  Basic  Schools  (Junior  High  Schools)  (Recruitment  and
Conditions of Service of Teachers) Rules, 1978 (hereinafter referred  to  as
"the 1978 Rules") which prescribes a  minimum  of  five  years  of  teaching
experience.
8.          Per  contra,  learned  counsel  appearing  for  respondent  No.1
contended that once the issue regarding  the  validity  of  appointment  has
been  adjudicated  in  the  earlier  writ  petition  being   Writ   Petition
No.13537/2011, the District Magistrate has  no  authority  to  question  the
experience of respondent No.1 and the subsequent writ  petition  was  barred
by the principle of res judicata.  It was  further  submitted  that,  by  an
order dated 03.02.2011 passed by the  District  Basic  Shiksha  Adhikari,  a
concurrent finding was recorded that  respondent  No.1  possessed  requisite
five years experience and the Division  Bench  rightly  dismissed  the  writ
petition.  It was  further  submitted  that  no  reasonable  opportunity  of
hearing was given to respondent No.1 by the Additional District Magistrate.
9.          In the year 1978, the Uttar Pradesh Junior High School  (Payment
of Salaries of Teachers and  other  Employees)  Act,  1978  was  enacted  to
regulate the payment of salaries to teachers and other employees  of  junior
high schools receiving aid out  of  the  State  Funds  and  to  provide  for
matters connected therewith.   1978  Rules  were  framed  by  the  State  in
exercise of the powers under sub-section (1)  of  Section  19  of  the  U.P.
Basic Education Act, 1972. The criterion and qualification  for  appointment
of teachers and headmasters in  junior  high  schools  is  governed  by  the
provisions  of  the  above  Rules.   This   amendment   was   brought   vide
Notification dated 12.06.2008, whereby  Rule  4(1)  was  amended  and  B.Ed.
Degree was included to satisfy the criteria  of  teachers  training  course.
Rule 4(2)(c)  was  also  amended  bringing  about  five  years  of  teaching
experience in a recognized school for being appointed as the  headmaster  as
against the earlier Rules which provide for only  three  years  of  teaching
experience.
10.         Admitted  facts  of  the  case  are  that  respondent  No.1  was
appointed on the  post  of  Headmaster  in  Vidyapati  Junior  High  School,
Mahamaya Nagar after approval from Selection  Committee  and  Basic  Shiksha
Adhikari vide appointment letter dated 10.09.2010.   The  core  issue  which
arise  for  our  consideration   is   whether   respondent   No.1   produced
bogus/forged experience certificates to secure employment  to  the  post  of
Headmaster.
11.         Based on the complaint made by the  appellant  to  the  District
Magistrate, the District Magistrate directed Additional District  Magistrate
to conduct an inquiry, pursuant to which the Additional District  Magistrate
conducted an inquiry and submitted his inquiry report on 31.03.2012.   On  a
perusal of the order passed by the District Magistrate dated  3.04.2012  and
the report of the Additional  District  Magistrate,  it  is  seen  that  the
Additional District Magistrate has conducted a detailed inquiry and  perused
all the relevant  documents  viz.,  inquiry  proceedings  conducted  by  the
District Basic Education Officer dated 03.02.2011 and attendance and  salary
registers of various colleges from whom respondent No.1 obtained  experience
certificates.  Respondent No.1 produced experience  certificates  from  five
schools to satisfy the mandatory norm of Rule 4(2)(c) read  with  Rule  2(h)
of the 1978 Rules which prescribes a  minimum  of  five  years  of  teaching
experience for appointment on the said post.  On  perusal  of  the  relevant
records, the Additional District Magistrate noticed that  in  the  registers
of Mata Premlata Tiwari Inter College,  the  name  of  respondent  No.1  was
shown at  the  end  of  the  respective  months.   The  Additional  District
Magistrate noticed that even the ink and handwriting with  which  the  names
of other  teachers  and  respondent  No.1  were  written  was  found  to  be
different.  The salary registers produced did not  bear  the  signatures  of
the Headmaster and Salary Clerk.  Similar disparities were  noticed  in  the
records of B.M. Inter College.  Upon perusal of  those  records,  attendance
register and salary registers of various schools,  the  Additional  District
Magistrate submitted his report opining that the first  respondent  obtained
forged certificates  for  securing  appointment.   The  Additional  District
Magistrate  also  observed  that  the  Basic  Education  Officer   did   not
thoroughly conduct the inquiry and, therefore, the said report  of  District
Basic Education Officer cannot be relied upon.
12.         Respondent No.1 has also not  produced  any  document  to  prove
that his appointment in the above-said institutions was  made  by  obtaining
prior  approval  of  the  authorities  mentioned  under   the   Intermediate
Education Act or on the  recommendation  of  the  U.P.  Secondary  Education
Services.  Without showing  that  the  necessary  procedures  were  complied
with, the appointment of respondent No.1  cannot  be  said  to  be  a  valid
appointment.

13.         Referring to the report of the  Additional  District  Magistrate
in Writ Petition No. 20297 of 2012, the learned Single Judge  observed  that
the impugned order passed by  the  Basic  Shiksha  Adhikari  cancelling  the
appointment of the first respondent is based on records and  the  report  of
the  Additional  District  Magistrate.   The  learned  Single  Judge,  while
dealing with the said writ petition, also examined the original records  and
also verified that the experience certificates obtained by  respondent  No.1
were bogus and based on appointments which were of no legal consequence  and
his appointment cannot be treated to be valid.

14.         The Division Bench did not go into the  merits  of  the  matter,
but  dismissed  the  writ  appeal  mainly  applying  the  principle  of  res
judicata.    The  Division  Bench  observed  that  the  appellant  has   not
disclosed the dismissal of the earlier  writ  petition  and  also  the  Writ
Appeal No. 13537 of 2011 and thus the second writ petition  challenging  the
appointment is barred under the principles of res judicata to challenge  the
appointment of  respondent No.1.  As discussed earlier, from  the  materials
on record, it  emerges  that  respondent  No.1  did  not  possess  requisite
experience of five years and his appointment is  in  contravention  to  Rule
4(2)(c)  read  with  Rule  2(h)  of  the  1978  Rules,  and  therefore,  the
appointment of respondent No.1 is not valid in  law  and  the  earlier  Writ
Appeal No. 13537 of 2011  was  dismissed  mainly  on  the  ground  that  the
District Basic Education Officer has  recorded  a  finding  that  respondent
No.1 has the requisite  five  years  teaching  experience.   The  Additional
District Magistrate, as noticed earlier, observed that  the  District  Basic
Education Officer did not thoroughly conduct  the  inquiry,  and  therefore,
dismissal of the earlier writ appeal cannot be taken as res judicata.

15.         When the appointment is made de hors the rules, the  same  is  a
nullity.  In such an eventuality, the statutory bar  like  doctrine  of  res
judicata is not attracted.  In the case of Meghmala & Ors. Vs. G.  Narasimha
Reddy & Ors.[1], this Court held as under:-

"From the above, it is evident that even in  judicial  proceedings,  once  a
fraud is proved, all advantages gained by playing fraud can be  taken  away.
In such an eventuality the  questions  of  non-executing  of  the  statutory
remedies or statutory bars like doctrine of res judicata are not  attracted.
 Suppression of any material fact/document amounts to a fraud on the  court.
 Every court has an inherent power to  recall  its  own  order  obtained  by
fraud as the order so obtained is non est."


Since  respondent  No.1  obtained  appointment  on  the   basis   of   bogus
certificates, in our considered view, the principle  of  res  judicata  will
not be attracted to the case on hand.

16.         Insofar as the plea of respondent No.1 that  no  opportunity  of
hearing was afforded to him by the Additional  District  Magistrate,  it  is
seen  from  the  records  that  respondent  No.1   himself   has   filed   a
representation dated 29.09.2011 before the Additional  District  Magistrate,
which was considered by the Additional District Magistrate and  we  find  no
merit in the contention of respondent  No.1  that  there  was  violation  of
principles of natural justice.

17.         Since the appointment of respondent No.1 is conditional that  in
the case of  any  concealment  of  facts,  the  approval  is  liable  to  be
cancelled, the Basic Shiksha Adhikari rightly passed  the  order  cancelling
the appointment which was rightly upheld by the learned Single  Judge.   The
Division Bench was not right in setting  aside  the  order  of  the  learned
Single Judge on the principles of res judicata and  the  impugned  order  of
the Division Bench is liable to be set aside.

18.         In view of the above, the order passed by the Division Bench  of
High Court in Special Appeal No.1165 of 2012 is set aside and the appeal  is
allowed.  The parties are left to bear their own costs.

                                                ..........................J.

                              (V. Gopala Gowda)

                                                ..........................J.
                                                                        (R.
                                 Banumathi)

      New Delhi;
      February 11, 2015

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[1]
      [2]    (2010) 8 SCC 383