# Krishna Chand v. D.M., Maharajganj and others

- **Citation:** (2009) 3 ILRA 1154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-14
- **Case number:** Civil Misc. Writ Petition No. 5512 of 1992
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-chand-v-d-m-maharajganj-and-others-41414
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226Termination
order-passed
without
holding enquiry without notice in utter
violation of principle of Natural justiceinitial appointment itself made against
the provision of section 19 of Group "D"
Employees
Service
Rules,
1985-No
question of granting any indulgence once
the very basis of right goes-validity of
subsequent order can not be adjudgedas fraud vitiates every thing.

Held: Para 13

In my view once it is evident that the
appointment of petitioner was illegal and
3 All] Krishna Chand V. D.M., Maharajganj and others
1155
fraudulent, no question of indulgence
granting any relief to petitioner would
arise for the simple reason that fraud
vitiates everything. If that is so, question
of
considering
the
order
cancelling
fraudulent order, whether having passed
in accordance with law, may not be
necessary to be considered since the
very basis on which the appointment is
claimed by an incumbent is a nullity in
the eyes of law and once the very basis
of the right of an incumbent goes, the
subsequent
order
passed
by
the
authority of mere declaration of such
fraudulent order to be illegal would not
confer any life to such fraudulent order if
the subsequent order passed by the
authority even if found to be not in
accordance with law.
Case law discussed:
2009(5) ADJ 563, (1956) 1 All E.R. 855,
(1956) 1 QB 702, (1986-90) All E.R. Reporter
1, (1996) 5 SCC 550, (2000) 3 SCC 581,
(2002) 1 SCC 100, 2004 (3) SCC 1, (1992) 1
SCC 534.

## Text

1154 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
material and solely on the ipse dixit of the
concerned authority cannot be sustained.
The material on which the subjective
satisfaction of the authority is based
should either be reflected from the order
or be brought on record when such
satisfaction of the concerned authority is
questioned in a court of law. The Hon'ble
Apex Court in the case of Jaswant Singh
v. State of Punjab, AIR 1991(1) SC 385
has observed as under:

"It
was
incumbent
on
the
respondents to disclose to the court the
material in existence at the date of
passing of the impugned order in support
of the subjective satisfaction recorded by
respondent no. 3 in the impugned order.
Clause (b) of the second proviso to Article
311(2) can be invoked only when the
authorities is satisfied from the material
placed before him that it is not reasonably
practicable to hold a departmental
inquiry".

10. The mere mention of fact that
the petitioner would prove to be danger to
fellow policemen and public life and
property without there being reference of
any material in the order for recording
such satisfaction and there being nothing
in the counter affidavit to demonstrate
that the petitioner had become dangerous
or caused damage to the property or
indulged into any offence against any
person or the State, the satisfaction
recorded by the Superintendent of Police,
Azamgarh for invoking Rule 8(2)(b) of
Rules of 1991 and dispensing with the
disciplinary inquiry do not satisfy the test
of exercise of such power. The order,
therefore, suffers from gross error of law
and deserves to be set aside.

11. The writ petition is allowed. The
order dated 20.8.2008 passed by the
Superintendent of Police, Azamgarh is set
aside.

12. However, liberty is given to the
respondent authorities, if they so desire, to
hold a departmental inquiry against the
petitioner in accordance with the law and
the procedure prescribed under the Rules
of 1991.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 5512 of 1992

Krishna Chand

...Petitioner
Versus
District Magistrate, Maharajganj and
others

 ...Respondent

Counsel for the Petitioner:
Sri J.P. Pandey

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Termination
order-passed
without
holding enquiry without notice in utter
violation of principle of Natural justiceinitial appointment itself made against
the provision of section 19 of Group "D"
Employees
Service
Rules,
1985-No
question of granting any indulgence once
the very basis of right goes-validity of
subsequent order can not be adjudgedas fraud vitiates every thing.

Held: Para 13

In my view once it is evident that the
appointment of petitioner was illegal and
3 All] Krishna Chand V. D.M., Maharajganj and others
1155
fraudulent, no question of indulgence
granting any relief to petitioner would
arise for the simple reason that fraud
vitiates everything. If that is so, question
of
considering
the
order
cancelling
fraudulent order, whether having passed
in accordance with law, may not be
necessary to be considered since the
very basis on which the appointment is
claimed by an incumbent is a nullity in
the eyes of law and once the very basis
of the right of an incumbent goes, the
subsequent
order
passed
by
the
authority of mere declaration of such
fraudulent order to be illegal would not
confer any life to such fraudulent order if
the subsequent order passed by the
authority even if found to be not in
accordance with law.
Case law discussed:
2009(5) ADJ 563, (1956) 1 All E.R. 855,
(1956) 1 QB 702, (1986-90) All E.R. Reporter
1, (1996) 5 SCC 550, (2000) 3 SCC 581,
(2002) 1 SCC 100, 2004 (3) SCC 1, (1992) 1
SCC 534.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Writ petition has been restored to
its original number vide order of date
passed on restoration application. Since
pleadings are complete, as requested by
learned counsel for the parties, the writ
petition is taken up for hearing and is
being disposed of finally.

2. It is contended that the petitioner
was appointed on officiating basis by
District
Development
Officer,
Maharajganj on 11.12.1991 and was
regularised by order dated 13.01.1992 but
by means of the impugned order dated
16.01.1992
passed
by
the
District
Magistrate, Maharajganj it was directed
that
all
Class-III
and
Class-IV
appointments made in the last six months
in the office of District Development
Officer shall stand cancelled. It is
contended that the impugned order is in
utter violation of principle of natural
justice and hence is liable to be set aside.
It is also stated that the petitioner was
appointed
pursuant
to
the
recommendation
made
by
selection
committee and having been regularised on
Class-IV post ought not to have been
terminated abruptly by such an order and
hence the impugned order is illegal and
liable to be set aside. Reliance is placed
on a Single Judge judgement of this Court
in Rakesh Kumar Singh and others Vs.
District Magistrate, Maharajganj and
others, 2009(5) ADJ 563.

3. The respondents have filed a
counter
affidavit
stating
that
the
recruitment to Class-IV post in the State
is governed by the Group "D" Employees
Service Rules, 1985 (hereinafter referred
to as the "1985 Rules") as amended in
1986. A detail procedure for recruitment
is provided in the said Rules but without
following the said procedure, in a wholly
fraudulent
manner,
the
District
Development
Officer
initiated
the
proceedings and made such appointments.
Actually it so happened that the District
Development
Officer
get
an
advertisement
published
in
daily
newspaper
"Dainik
Jagran"
dated
05.12.1991 for clerical post, i.e., Junior
Clerk and Junior Accounts Clerk. Last
date for submitting applications provided
therein was 07.12.1991 and date of
interview was shown as 23rd and 24th
December, 1991. The District Magistrate,
however, observing that a very short time
was given for submitting applications,
deferred the interview and allowed receipt
of the applications till 30.12.1991 after
giving a fresh advertisement in the
newspaper by his order dated 19.12.1991.
However, subsequently by order dated
21.12.1991
the
District
Magistrate
1156 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
cancelled the entire selection proposed in
clerical posts. It appears that thereafter a
suit was filed being Suit No. 21 of 1992 in
the court of Munsif wherein an injunction
was granted restraining the respondents
from proceeding with the selection and
not to make any further selection on the
post in question. The District Magistrate
accordingly
passed
an
order
dated
13.01.1992
restraining
the
District
Development Officer from making any
appointment.

4. However, in the case in hand, the
District Development Officer without
making any advertisement or requisition
to the employment exchange, made
certain officiating appointments and also
on his own passed order for regular
appointment without there being any
regular selection made in accordance with
1985 Rules. A complain to this effect was
received by the District Magistrate. He
passed the impugned order particularly
considering one more fact that State
Government by order dated 17.07.1991
has imposed ban for
making any
appointment. It is further stated that the
petitioner never appeared before any
selection committee either on 01.10.1991
or 13.09.1991. Besides, there was no post
of
Messenger
sanctioned
nor
any
advertisement was ever issued and the
entire appointment was wholly illegal and
fraudulent. It is said that the District
Development Officer proceeded wholly
illegally and departmental action has been
initiated against him.

5. In the rejoinder affidavit the
petitioner has reiterated what has been
said in the writ petition stating that the
selection
committee
made
recommendations of several persons but
has not given any detail as to how and in
what manner vacancies were advertised,
when the selection was made and the
details of the constitution of selection
committee.

6. Having heard learned counsel for
the parties and perusing the record, I find
that the petitioner is not entitled for any
relief.

7. From the pleadings it is evident
that Class-IV post on which the petitioner
claims to have been appointed were never
advertised. Rule 19 of 1985 Rules
provides procedure for selection which
reads as under:

"19. Procedure for Selection--(1)
The appointing authority shall determine
the number of vacancies to be filled
during the Course of the year as also the
number of the vacancies to be reserved
for the candidates belonging to the
Scheduled Castes, Scheduled Tribes and
other categories. The vacancies shall be
notified to the Employment Exchange. The
appointing authority may also invite
application directly from the persons who
have their names registered in the
Employment Exchange. For this purpose,
the appointing authority shall issue an
advertisement in a local daily newspaper
besides posting the notice for the same on
the notice board. All such applications
shall be placed before the Selection
Committee.
(2) When the names both of the
general
candidates
and
reserve
candidates for whom vacancies are
required to be reserved under the orders
of the Government have been received by
the Selection Committee it shall interview
and select the candidates for various
posts.
3 All] Krishna Chand V. D.M., Maharajganj and others
1157
(3) In making selection the Selection
Committee shall give weightage to the
retrenched employees awarding marks in
the following manner:

(i) For the first complete year .. 5
marks
(ii) For the next and every completed
year of service .. 5 marks
Provided that the maximum marks
awarded to a retrenched employee under
this sub-rule shall not exceed 15 marks.
(4) The number of the candidates to
be selected will be larger (but not larger
by more than 25 per cent) than the
number of vacancies for which the
selected has been made. The names in the
select list shall be arranged according to
the marks awarded at the interview."

8. There is nothing on record that
the vacancy was ever advertised in the
newspaper and any requisition sent to
employment exchange. There is also
nothing on record to show that any
selection committee as provided in 1985
Rules was ever constituted. The petitioner
was appointed on purely officiating basis
as Messenger (Patravahak) in the scale of
Rs.750-940 by order dated 11.12.1991
passed by the District Development
Officer with the condition that the same is
liable to be terminated at any point of
time and the petitioner was posted in
Development Block Partawal. Pursuant
whereof the petitioner claims to have
joined on 12.12.1991. Thereafter the
District Development Officer transferred
him to Awas Vikas Parishad, Maharajganj
by order dated 13.12.1991 pursuant
whereof the petitioner claims to have
joined
on
01.01.1992.
The
above
officiating arrangement claims to be
regularised by order dated 13.01.1992
passed by the District Development
Officer, Maharajganj allegedly pursuant
to
the
approval
of
the
selection
committee. In the entire writ petition there
is nothing on record to show as to when
the above selection committee made
selection and whether the petitioner ever
appeared
before
the
selection
for
interview etc. On the contrary, from para
18 of the rejoinder affidavit it appears to
be admitted by the petitioner that there
was no question of any advertisement or
facing selection committee since the
above
recommendation
was
for
regularisation and not for making any
selection.

9. Even from the judgement relied
on by learned counsel for the petitioner it
is evident that Hon'ble Single Judge has
recorded
a
finding
of
fact,
after
considering entire matter on merits that all
appointments
made
by
the
District
Development Officer were utterly illegal
and fraudulent as is evident from the
following:

"Accordingly, as held above, on the
one hand, all the appointments were
utterly illegal and fraudulent; the then
D.D.O., Shiv Ram Bhatt made the
appointment
for
extraneous
considerations and no rule was followed.
Appointments were made in spite of
restraint order by the D.M. No interview
was held for these posts. Reasonable
opportunity to apply was not provided to
the general public. Accordingly, all the
appointments were illegal."

10. Having said so, the Hon'ble
Single Judge thereafter has noticed that
since the order of cancellation impugned
in the writ petition passed by the District
Magistrate does not give a reason as a
result whereof the petitioners in that
matter were able to get interim order and
1158 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
continued
to
work.
In
these
circumstances, His Lordship has observed
that the order dated 16.01.1992 is not in
accordance with law and disposed of the
writ
petition
with
the
following
directions:

"All the petitioners must be permitted
to continue to work on the posts on which
they were appointed until they attain the
age of superannuation. However they
must be paid the salary at the lowest level
of the same pay scale on which they were
appointed. They must not be entitled for
any increment or any revision of pay
subsequently affected. Petitioners of the
first three writ petitions were appointed in
the pay scale Rs.950-1500/-. Accordingly,
they must be continued to be paid only the
basic pay of Rs.950/- basic without any
increment or benefit of revision of pay
apart from dearness allowance admissible
on Rs.950/- pay. No other allowances
shall be given to them. They shall not be
entitled for any promotion. If any
promotion has already been granted, the
same
shall
stand
withdrawn
with
immediate effect. They shall not be
entitled for any retiral benefit apart from
the amount which they may have
contributed
towards
provident
fund.
However, salaries and other benefits paid
to the petitioners till date shall not be
refundable.
Sri Shiv Ram Bhatt, the then D.D.O.
is liable to pay damages of Rs.1 lac for
each of the petitioners (total Rs.21 lacs).
This amount shall be recovered from him
like arrears of land revenue. If he has
died, the amount shall be recovered from
the property left behind by him. Recovery
shall positively be made by the Collector
concerned within four months and the
amount
shall
be
deposited
in
the
government treasury. The other two
members of selection committee are also
liable to pay Rs.25,000/- each per
petitioner as damages to the State (5.25
lacs each) as they were equal partners in
illegal design of D.D.O., Sri Shiv Ram
Bhatt. . The said amount shall also be
recovered from them in the same manner.
Compliance report shall be filed
within six months.
Office is directed to supply a copy of
this judgment to learned Chief Standing
Counsel within a week."

11. It is not in dispute that against
the aforesaid judgement dated 05.05.2009
of the Hon'ble Single Judge, Special
Appeal No. (1185) of 2009, State of U.P.
and others Vs. Daya Shanker Upadhyay
was filed wherein the operation of the
judgement dated 05.05.2009 has been
stayed by Hon'ble Division Bench.

12. Counsel for the petitioner
submitted that despite of the stay having
been granted to the above judgement the
petitioner is also entitled for similar relief.

13. In my view once it is evident
that the appointment of petitioner was
illegal and fraudulent, no question of
indulgence
granting
any
relief
to
petitioner would arise for the simple
reason that fraud vitiates everything. If
that is so, question of considering the
order cancelling fraudulent order, whether
having passed in accordance with law,
may not be necessary to be considered
since the very basis on which the
appointment is claimed by an incumbent
is a nullity in the eyes of law and once the
very basis of the right of an incumbent
goes, the subsequent order passed by the
authority of mere declaration of such
fraudulent order to be illegal would not
confer any life to such fraudulent order if
3 All] Krishna Chand V. D.M., Maharajganj and others
1159
the subsequent order passed by the
authority even if found to be not in
accordance with law.

14. It is now well known that the
fraud vitiate all solemn acts. In Smith Vs.
East Ellos Rural District Council,
(1956) 1 All E.R. 855, it was held that the
effect of fraud would normally be to
vitiate all acts and orders. In Lazarus
Estate Ltd. Vs. Beasely, (1956) 1 QB
702, Lord Denning , I.J. said:

"no judgment of Court, no order of a
Minister can be allowed to stand if it has
been obtained by fraud. "Fraud unravels
everything".

15. In the same judgment, Lord
Parkar-CJ said:

"Fraud vitiate all transactions known
the law to whatever high degree of
solemnity".

16. In Derry Vs. Peek-(1986-90)
All E.R. Reporter 1, what constitute
fraud was described as under:

"Fraud is proved when it is shown
that the a representation has been made
(1) knowingly, or (ii) without belief in its
truth, or (iii) recklessly, careless whether
it be true or false".

17. It is stated when a document has
been forged, it amounts to a fraud. In
Webster's Comprehensive Dictionary,
International Edn., ''forgery' is defined
as:

"The act of falsely making or
materially altering, with intent to defraud;
any writing which, if genuine, might be of
legal efficacy or the foundation of a legal
liability."

18. Thus forgery is the false making
of any written document for the purpose
of fraud or deceit. Its definition has been
quoted with approval by Apex Court In
Indian Bank Vs. Satyam Fibres (India)
Pvt Ltd. (1996) 5 SCC 550 ( Paras 26
and 27). The Apex Court in para 28 has
said that fraud is an essential ingredient of
forgery. It further held:

"since fraud affects the solemnity,
regularity
and
orderliness
of
the
proceedings of the court and also
amounts to an abuse of the process of
court, the courts have been held to have
inherent power to set aside an order
obtained by fraud practiced upon that
court. Similarly, where the court is misled
by a party or the court itself commits a
mistake which prejudices a part, the court
has the inherent power to recall its
order."

19. Extending the said principle to
the tribunal, in United India Insurance
Co. Ltd. Vs. Rajendra Singh, (2000) 3
SCC 581, the Apex Court held:

"We have no doubt that the remedy
to move for recalling the order on the
basis of the newly-discovered facts
amounting to fraud of high degree, cannot
be foreclosed in such a situation. No court
or tribunal can be regarded as powerless
to recall its own order if it is convinced
that the order was wangled through fraud
or misrepresentation....."

20. Similar is the view taken in
Roshan Deen Vs. Preeti Lal, (2002) 1
SCC
100,
It
was
held
that
the
Commissioner
under
the
workmen
1160 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Compensation Act can recall an order
which was a result of a fraud played upon
him. It cannot be said that he would be
helpless in such a situation and the party
who has suffered would also be helpless
except to succumb to such fraud.

21. In Ashok Layland Ltd. Vs.
State of Tamil Nadu and others, 2004
(3) SCC 1, it was held that an order
obtained
by
fraud,
collusion,
misrepresentation, suppression of material
facts or giving or furnishing false
particulars would be vitiated in law and
cannot be reopened. The Apex Court
following the proposition laid down
earlier in the case of Shrisht Dhawan Vs.
Shaw Bros, (1992) 1 SCC 534, held:

"Fraud is proved when it is shown
that a false representation has been made
(i) knowingly, or (ii) without belief in its
truth, or (iii) recklessly, careless whether
it be true or false."

22. It is well settled that where an
order of appointment is wholly illegal and
void ab initio, neither the principles of
natural justice would be attracted in such
a case nor any irregularity in the order
passed by the authorities concerned
declaring the fraudulent orders to be
illegal would make it valid for any
purpose whatsoever.

23. Even otherwise, the petitioner
having invoked equitable extraordinary
jurisdiction of this court under Article 226
of the Constitution cannot seek the revival
of an illegal order by stressing that since
the order cancelling such illegal order is
in violation of principle of natural justice
or without reason, therefore, this court is
under an obligation to revive an illegal
order of his appointment. It is well settled
that this Court shall be justified in
refusing to grant any indulgence in a case
where setting aside of an order would
result in revival of another illegal order.

24. In view of the above discussion,
I find no merit in the writ petition.
Dismissed. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 65941 of 2009

Tulsi Ram and others

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.D. Tripathi

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Appointment of Class 4th employeeD.I.O.S. refused to approve on two
grounds-appointment
being
out
of
sanctioned strength secondly appointing
authority has no power-ad-hoc-principal
working till end of academic Session can
not be treated working as Head of the
institution-order
passed
by
DIOS
perfectly justified-However power of
approval or disapproval-within the ambit
of regional level committee-petitioner
may approach there-who shall take
decision without being influenced with
order of Court.

Held: Para 8 & 9

In view of this, the then ad hoc Principal
Shri Mool Chand Pandey could not have
functioned as dejure Principal so as to
empower him to exercise his discretion