STATE OF U.P.& ORS Vs. RAVINDRA KUMAR SHARMA & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 8880 of 2016, Judgment Date: Feb 03, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO…………. OF 2016
[Arising out of S.L.P. [C] No.8880/2011]
State of U.P. & Ors. … Appellants
Vs.
Ravindra Kumar Sharma & Ors. … Respondents
J U D G M E N T
ARUN MISHRA, J.
Leave granted.
2. The question involved in the appeal is as to the right of the
appellant to verify the disability certificates issued by the Medical Board
under the provisions of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Rules, 1996. The respondents
applied for BTC training course under the physically handicapped category
on the basis of certificates issued under the aforesaid Rules. It was
claimed that they completed the training and had been offered appointment
in the primary schools run and managed by the State Government. Complaint
was received from Bhartiya Viklang Sangh of illegal usurpation of the quota
reserved for handicapped persons on the basis of fraudulently procured
certificates without suffering from the disability certified under the
Rules of 1996. The State Government issued an order dated 3.11.2009 making
a provision for constitution of fresh Medical Board in order to verify and
assess the disability of the candidates. The candidates questioned
communication dated 15.7.2010 issued by the Director, State Council for
Educational Research & Training based upon the G.O. dated 3.11.2009
requiring them to appear before the Medical Board constituted in order to
assess the disability. Out of the 234 candidates selected under the
handicapped category on being examined by the Medical Board it was found
that 21% of the candidates were not handicapped.
3. A Single Bench of the High Court of Allahabad vide judgment and order
dated 31.8.2010 dismissed the writ application holding that under the Rule
framed in exercise of the powers under sub-sections (1) and (2) of section
73 of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995, the general eligibility to apply
for facilities, concessions and benefits admissible under the scheme of the
Act is subject to such conditions as the State Government may impose and
the State Government has imposed a condition in the order dated 3.11.2009
of constitution of the Medical Board for verification of the disability.
Even otherwise under the rules there can be a review of the decision upon
representation by the applicant and fresh order can be passed. Thus the
certificate issued is not final.
4. On appeal being preferred a Division Bench of the High Court of
Allahabad by the impugned order has allowed the appeal and has held that
while the certificate has been issued in accordance with the Rules of 1996,
roving enquiry cannot be made until and unless fraud has been detected, it
is not permissible to reopen medical certification carried out under the
Rules of 1996. However the High Court has directed that a physical
verification may be made and if the candidate has not been issued
certificate of disability or otherwise or that he does not suffer from any
disability so certified which entitles him to such a certificate, in that
event the candidate can be subjected to fresh medical test not otherwise.
Accordingly the directions by the Government in order dated 3.11.2009 and
by the Director on 15.7.2010 for physical verification be construed in the
aforesaid manner.
5. It is apparent from Rules of 1996 that disability certificate is
required to be issued by Medical Board. It can issue permanent disability
certificate or the Medical Board shall indicate the period of validity in
the certificate in case where there is any chance of variation in the
degree of disability. In case of refusal of disability certificate an
opportunity is required to be given to the applicant of being heard, and
there can be a review by the Medical Board on representation by the
applicant and Rules contains a provision to the effect that the certificate
issued by the Medical Board shall make a person eligible to apply.
6. In the facts of the instant case there was a serious complaint lodged
by Viklang Sangh of illegal usurpation of the quota reserved for specially
abled by large number of persons who were not in fact specially abled and
have procured certificates fraudulently from their districts under the
Rules of 1996. On the basis of the said complaint Government has issued an
order for the purpose of verification of such certificates issued by the
Medical Board and certificates of 21% of selected candidates of handicapped
category were found to be fraudulent. It is settled proposition of law that
fraud vitiates and in such a case when large number of candidates have
illegally usurped the reserved seats of the persons suffering from
disability the action of State Government did not call for interference.
7. In Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors. (2005) 7 SCC
605, it was observed :
“16. In Lazarus Estates Ltd. v. Beasley (1956) 1 All ER 341, Lord Denning
observed at QB pp. 712 and 713: (All ER p. 345 C)
“No judgment of a court, no order of a minister, can be allowed to stand if
it has been obtained by fraud. Fraud unravels everything.”
In the same judgment Lord Parker, L.J. observed that fraud vitiates all
transactions known to the law of however high a degree of solemnity. (p.
722) These aspects were recently highlighted in State of A.P. v. T.
Suryachandra Rao (2005) 6 SCC 149.”
8. In Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 it was held
thus:
“15. x x x Fraud as is well known vitiates every solemn act. Fraud and
justice never dwell together.
16. 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 word or letter.
17. It is also well settled that misrepresentation itself amounts to
fraud. Indeed, innocent misrepresentation may also give reason to claim
relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading
a man into damage by wilfully or recklessly causing him to believe and act
on falsehood. It is a fraud in law if a party makes representations which
he knows to be false, and injury ensues therefrom although the motive from
which the representations proceeded may not have been bad.
x x x x x
23. An act of fraud on court is always viewed seriously. A collusion or
conspiracy with a view to deprive the rights of others in relation to a
property would render the transaction void ab initio. Fraud and deception
are synonymous.
x x x x x
25. Although in a given case a deception may not amount to fraud, fraud is
anathema to all equitable principles and any affair tainted with fraud
cannot be perpetuated or saved by the application of any equitable doctrine
including res judicata.
26. In Shrisht Dhawan v. Shaw Bros. (1992) 1 SCC 534, it has been held
that: (SCC p. 553, para 20)
“20. Fraud and collusion vitiate even the most solemn proceedings in any
civilized system of jurisprudence. It is a concept descriptive of human
conduct.”
x x x x x
29. In Chittaranjan Das v. Durgapore Project Ltd. (1995) 99 CWN 897, it
has been held: (Cal LJ p. 402, paras 57-58)
“57. Suppression of a material document which affects the condition of
service of the petitioner, would amount to fraud in such matters. Even the
principles of natural justice are not required to be complied with in such
a situation.
58. It is now well known that a fraud vitiates all solemn acts. Thus, even
if the date of birth of the petitioner had been recorded in the service
returns on the basis of the certificate produced by the petitioner, the
same is not sacrosanct nor the respondent company would be bound thereby.”
9. This Court in Express Newspapers (P) Ltd.& Ors. v. Union of India &
Ors. (1986) 1 SCC 133 at para 119 has held thus:
“119. Fraud on power voids the order if it is not exercised bona fide
for the end design. There is a distinction between exercise of power in
good faith and misuse in bad faith. The former arises when an authority
misuses its power in breach of law, say, by taking into account bona fide,
and with best of intentions, some extraneous matters or by ignoring
relevant matters. That would render the impugned act or order ultra vires.
It would be a case of fraud on powers. The misuse in bad faith arises when
the power is exercised for an improper motive, say, to satisfy a private or
personal grudge or for wreaking vengeance of a Minister as in S. Partap
Singh v. State of Punjab AIR 1964 SC 72. A power is exercised maliciously
if its repository is motivated by personal animosity towards those who are
directly affected by its exercise. Use of a power for an ‘alien’ purpose
other than the one for which the power is conferred is mala fide use of
that power. Same is the position when an order is made for a purpose other
than that which finds place in the order. The ulterior or alien purpose
clearly speaks of the misuse of the power and it was observed as early as
in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v.
Overtoun (1904) AC 515, ‘that there is a condition implied in this as well
as in other instruments which create powers, namely, that the powers shall
be used bona fide for the purpose for which they are conferred’. It was
said by Warrington, C.J. in Short v. Poole Corpn. (1926) Ch 66, that:
‘No public body can be regarded as having statutory authority to act in bad
faith or from corrupt motives, and any action purporting to be of that
body, but proved to be committed in bad faith or from corrupt motives,
would certainly be held to be inoperative.’”
10. The Division Bench of the High Court has ignored and overlooked
the material fact that verification has already been done by the Medical
Board and it has been found that certificates of 21% were fraudulently
obtained. The High Court has issued a direction in the impugned order for
physical verification of the candidate by the authorities and in case he
does not suffer from disability so certified candidate can be subjected to
fresh medical test. The High Court has overlooked that on mere physical
verification it may not be possible to know various kinds of disabilities
such as that of eyes, ear impairment etc. That can only be done by the
medical examination and particularly when the High Court itself has
observed that in case there is genuine suspicion and fraud has been
committed medical certification can be reopened. Direction issued in this
regard has not been questioned by the respondents and in fact process of re-
verification was already over when High Court issued aforesaid directions.
11. In our considered opinion in the peculiar facts of this case of such
a fraud and genuine suspicion raised in the representation lodged by the
Viklang Sangh and when 21% of such certificates have been found to be
fraudulently obtained there was no scope for the Division Bench to
interfere and issue order to perpetuate fraud, writ is to be declined in
such a scenario and no equity can be claimed by the respondents.
12. In the circumstance we set aside the impugned judgment and order
passed by the Division Bench of the High Court and dismiss the writ
petition. However before taking any action against the individuals they
shall be issued show cause in the matter and thereafter decision will be
rendered in accordance with law. Let this exercise be completed within a
period of four months. The appeal is allowed to the aforesaid extent.
………………………..J.
(M.Y. Eqbal)
New Delhi; …………………….J.
February 3, 2016. (Arun Mishra)
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