KRISHNA HARE GAUR Vs. VINOD KUMAR TYAGI AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1755 of 2015, Judgment Date: Feb 11, 2015
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-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.
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-"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
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