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.
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.
1.
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.
2.
Permission to file
Special Leave Petition (C) No.15871 of 2012 is granted. Delay condoned. Leave
granted.
3.
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’.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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
