Dr. Raghvendra Pratap Singh vs Director of Higher Education

B.S. Chauhan, J.—All these three writ petitions involve the same questions of fact and law, thus are being disposed of by a common judgment and order. Two writ petitions have been filed by the Committee of Management for quashing the impugned order of regularising the services of Dr. Raghvendra Pratap Singh and conferring other benefits upon him. While Writ Petition No. 54549 of 2002 has been filed by Dr. Raghvendra Pratap Singh to give effect to the order of regularisation and release all consequential benefits, including the arrears of pay etc.

Facts and circumstances giving rise to these petitions are that Dr. Raghvendra Pratap Singh had been appointed by the Committee of Management, Raja Harpal Singh Maha Vidyalaya Singramau, District Jaunpur vide order dated 7th November, 1986 in exercise of its power u/s 16 of the U.P. Higher Education Services Commission Act, 1980 (hereinafter called the Act 1980. Subsequently, he claimed for regularisation in view of the provisions of U.P. Higher Education Services Commission (Amendment) Act, 1992, which was turned down on the ground that Petitioner did not possess the requisite qualification, i.e., good academic record and high second class Master''s Degree as required u/s 16 of the Act, 1980 for appointment as a lecturer on the date of initial appointment, i.e., 7.11.1986 and relaxation of qualification granted by the Committee of Management in terms of Statute 11.13 (5) of the First Statute of the Gorakhpur University adopted by the Purvanchal University, Jaunpur, was illegal. Being aggrieved, Dr. Raghvendra Pratap Singh filed Writ Petition No. 11127 of 1992 challenging the said Amendment Act, 1992, itself and by virtue of the interim order dated 23rd June, 1992, he continued to be in service. However, Petitioner''s services were terminated vide order dated 1st July, 1992 and the said termination order was challenged by filing the Writ Petition No. 25259 of 1992 and he was granted interim relief. In the meanwhile the U.P. Higher Education Service Selection Commission (hereinafter called the Commission) upon scrutiny came to know that the appointment of Shri Raghvendra Pratap Singh had been made by the Committee of Management by manipulation without notifying the vacancy to the Commission, thus it requisitioned the applications for the post by advertisement and selected one Km. Vandana Kalhans. However, she was not permitted to join as interim order passed by this Court in Writ Petition No. 6383 of 1990 in which Dr. Raghvendra Pratap Singh got himself impleaded claimed the benefit of the interim order passed in the said writ petition. Writ Petition No. 25259 of 1992 was decided by a Division Bench of this Court on 16.12.1996, holding that the vacancy of the lecturer in History in the said college was not notified to the Commission as required u/s 16 of the Act, 1980. A letter was sent on a wrong address in a different context altogether and the vacancy had never been notified to the Commission. Thus, in absence of notification of the vacancy and failure on the part of the Commission to fill up the said vacancy, the said Raghvendra Pratap Singh could not have been appointed by the Committee of Management u/s 16 of the Act, 1980; he did not possess the requisite qualification, i.e., good academic record and high second class Master''s Degree and the Management Committee did not have the competence to relax both requisite qualifications. At the most, it could not have relaxed only one of them, and thirdly, that the father of Dr. Raghvendra Pratap Singh had been the Principal of the same college at the initial time of appointment on 7.11.1986, who manipulated his appointment. Appointment of a close relations of the member of the Committee of Management or Principal was barred in view of the Government Notification of 1985, and thus, he was guilty of concealment of material facts. In view thereof the appointment of Shri Raghvendra Pratap Singh was declared by this Court as void ab initio. Being aggrieved and dis-satisfied Dr. Raghvendra Pratap Singh challenged the judgment and order of this Court dated 16.12.1996, before the Hon''ble Supreme Court by filing the SLP (Civil) No. 1116 of 1997 which stood dismissed vide order dated 27.1.1997 by a speaking order. Subsequently, he filed a Review Petition No. 1575 of 1997, which was also dismissed by the Hon''ble Supreme Court vide order dated 31st July, 1997.

In 1997 the provisions of the Act 1980 were amended by U.P. Ordinance No. 5 of 1997; The Uttar Pradesh Higher Education Service Commission (Amended) Ordinance, 1997, by which Clause (5) to Section 31C was inserted which provided for considering the case of regularisation of all those teachers who had been appointed as ad hoc but ceased to be teachers. In view of the said provisions the case of said Dr. Raghvendra Pratap Singh was reconsidered and his services were regularised vide order dated 6.3.1998 (Annexure-15 in Writ Petition No. 16576 of 1998) and challenging the same the said writ petition has been filed by the Committee of Management. As the order passed therein had not been complied with, and Dr. Raghvendra Pratap Singh had not been given the benefit of the regularisation, he preferred Writ Petition No. 54549 of 2002, seeking direction to the Respondents to allow him to join the post and pay salary, etc. As during the pendency of those petitions order dated 2.5.2003 was passed that he should be paid salary regularly, the Writ Petition No. 21545 of 2003 has been filed by the Committee of Management challenging the said order.

It has been submitted by Shri S.P. Singh that whatever may be the declaration of this Court earlier in its judgment dated 16.12.1996, which has duly been approved by the Hon''ble Apex Court, the effect thereof has been taken away completely by the amendment Ordinance of 1997 amending the provisions of Section 31C of the Act, 1980, providing for regularisation of every teacher who ceased to hold the post, and therefore, his case has rightly been considered by the authorities and his regularisation is strictly in accordance with law, and therefore, the Committee of Management and other Respondents are bound to give effect to the said order of regularisation and pay him the salary, etc.

On the contrary, Shri P.S. Baghel, learned Counsel appearing for the Respondents has submitted that once his appointment had been declared void by the Division Bench of this Court in its judgment and order dated 16.12.1996 which has duly been approved by the Hon''ble Apex Court by a speaking order, he cannot claim himself to be eligible to be considered for regularisation under the provisions of Ordinance, 1997, and the order of regularisation is liable to be set aside. More so, the question of regularisation of these persons who ceased to hold the post does not arise under any law for the reason that regularisation should be claimed by the person who is continuously working as ad hoc/temporary for a long time, and thus, in spite of the fact that the said Ordinance is not under challenge this Court may not take notice thereof.

We have considered the rival submissions made by learned Counsel for the parties, particularly, Shri S.P. Singh for Dr. Raghvendra Pratap Singh in all the writ petitions, S/Shri P.S. Baghel, A.B. Srivastava and A.N. Pandey for the Committee of Management and other Respondents and the learned standing counsel for the State and perused the record of the cases.

Admittedly, Petitioner''s appointment dated 7.11.1986, had been a subject-matter of scrutiny before this Court earlier and in its judgment dated 26.11.1996 this Court has recorded the following findings of fact.

(1) Dr. Raghvendra Pratap Singh did not possess the requisite qualification for the post, i.e., good academic record with high second class Master''s Degree. Therefore, he lacked into qualifications.

(2) Committee of Management was not competent to grant relaxation in respect of both the qualifications.

(3) Appointment was made u/s 16 of the Act, 1980, without intimation to the Commission in the manner prescribed. A letter in different context had been sent to the Commission on a wrong address and without following the procedure.

(4) Appointment was made by manipulation at the behest of his father who happened to be the then Principal of the said college. Appointment of the close relations of the members of the Committee of Management or Principal was prohibited by the Ordinance of 1984.

(5) When Commission came to know about the manipulation, it directed the Committee of the Management to notify the vacancy and proper selection was made in 1988 appointing one Km. Vandana Kalhans.

(6) She could not join the services because of the interim order obtained by Dr. Raghvendra Pratap Singh from this Court.

(7) Rejection of a case for regularisation was strictly in accordance with law as he had been appointed without following the procedure prescribed in law and manipulation was done by his father misrepresenting the Commission and not furnishing the information as required under Rule 7 and filling up the Form 7 notifying the vacancies as required by the provisions of Section 12 (3) of Act, 1980.

(8) He did not approach the Court with clean hands and was not entitled for relief in equity.

Thus, on the basis of the above his appointment was declared void ab initio. The said order was affirmed by the Hon''ble Apex Court by a speaking order rejecting the SLP vide order dated 27.1.1997 and dismissing the review petition also vide order dated 31.7.1997.

The U.P. Ordinance No. 5 of 1997 ''THE UTTAR PRADESH HIGHER EDUCATION SERVICES COMMISSION (AMENDED ORDINANCE), 1997'' introduced drastic amendment in Section 31 (c) of the Principal Act, while deleting certain words and inserting figures, which clearly stated that if a person is appointed on ad hoc basis u/s 16 of the Act as it stood before its omission, whether or not the vacancy was notified to the Commission and was given relaxation, shall be considered for regularisation. Clause 5 of the Ordinance is being reproduced herein below:

(5) Notwithstanding anything to the contrary in Sub-section (4), the selection committee constituted under Sub-section (2), shall in view of the amendments made in Clauses (b) to (d) of Sub-section (1), by the Uttar Pradesh Higher Education Service Commission (Amendment) Ordinance, 1997, reconsider the case of every teacher who ceased to hold appointment under Sub-section (4) and if as a result of reconsideration any such teacher is found suitable for substantive appointment, he may be given substantive appointment as provided in Sub-section (1) and shall be deemed never to have ceased to hold appointment.

Shri Singh has submitted that every teacher who ceased to hold appointment was entitled to be reconsidered for substantive appointment, and therefore, the statutory authorities have rightly allowed the case of the Petitioner regularising his services. The submission made by Shri S.P. Singh is untenable for the reason that his appointment had been declared void ab initio by this Court for the reason that employment had been obtained by him by misrepresentation and fraud.

The issue of misrepresen-tation and fraud has been considered by the Courts time and again. A Constitution Bench of Hon''ble Supreme Court in S. Pratap Singh Vs. The State of Punjab, , placed reliance upon the judgment in Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341, wherein it has been observed as under:

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

It is settled proposition of law that where an applicant get an order by making misrepresentation or playing fraud upon the competent authority, such an order cannot be sustained. (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, .

In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, and State of Maharashtra and Others Vs. Prabhu, , the Hon''ble Apex Court has observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent preparation of a legal fraud as the Courts are obliged to do justice by promotion of good faith.

Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law.

The ratio laid down by the Hon''ble Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud by entertaining the petitions on their behalf. (Vide District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, and M. Bhaskaran v. Union of India and Ors. .

In United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, , the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

Similar view has been reiterated in K.G. Ashok and Ors. v. Kerala Public Service Commission and Ors. AIR 2001 SCW 1969 ; Biswanath Poddar Vs. Archana Poddar and Another, and Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav 2003 (2) AWC 1245 : AIR 2003 SCW 1126.

In Upen Chandra Gogoi Vs. State of Assam and Others, , the Apex Court held that Court should not "validate an action which was not lawful at inception." Nor the Court can permit an appointment made by giving a go-bye to the essential mode of recruitment as provided by the Statutory Rules as the rules framed under the proviso to Article 309 of the Constitution have binding force and the same cannot be permitted to be over-looked/violated. (Vide R.K. Trivedi and Others Vs. Union of India (UOI) and Others, .

Similarly, in New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., , the Apex Court held that an order which is null and void remains in-executable and unenforceable for ever as it cannot acquire legal validity by any process of sanctification whatsoever for the reason that forgery in antethesis to legality and law cannot afford to validate a forgery.

In view of the fact that Dr. Raghvendra Pratap Singh had made misrepresentation and employment had been obtained by playing fraud, his appointment had been declared by this Court void ab initio.

Void has been defined as: ineffectual; nugatory; having no legal force or legal effect: unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid. (Vide Black''s Law Dictionary). "Void" means a contract entirely devoid of legal effect or it is devoid of main result contemplated. In Smt. Kalawati Vs. Bisheshwar, , the Apex Court held that "void" means non-existent from its very inception and a ban against its recognition. It also means merely a nullity and may be ignored even in collateral proceeding as if it never were. "Void" does not have any legal force or effect, the validity of which may be ascertained by any person whose rights are affected at any time or at any place directly or indirectly. "Void" means without any legal force, effect or consequence; invalid; null; worthless; sipher; useless and ineffectual. [Vide Nutan Kumar v.I Ind Additional District Judge 1993 (2) AWC 1090 .

In State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, , the Apex Court held that the word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of infirmity as to whether fundamental or otherwise. A thing which is found non-est and does not require to set that aside though it is sometimes convenient to do so, and a void order does not require setting aside. (Vide Suresh Chandra v. State of West Bengal AIR 1936 Cal 110.

Thus, in view of the above, it is evident that appointment of Dr. Raghvendra Pratap Singh being void remained in-executable and unenforceable, and thus, he could not be eligible for being considered for regularisation under the (Amendment) Ordinance, 1997.

Be that as it may, we cannot sit in appeal against the earlier judgment of this Court duly approved by the Hon''ble Apex Court. In fact, entertaining the issue again would amount to entertaining the petition challenging the said judgment in writ jurisdiction duly approved by the Hon''ble Supreme Court in writ jurisdiction, which is certainly not permissible.

A Constitution Bench of the Hon''ble Supreme Court in Budhan Choudhry and Others Vs. The State of Bihar, , while examining the scope of issuance of writ when the judicial order is under challenge on ground of discrimination, the Court held as under:

Further, the discretion of judicial officers is not arbitrary and the law provides for revision by superior courts of orders passed by the subordinate courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial Tribunals....on the facts and circumstances of this case ....no case of infringement of fundamental right under Article 14 has been made out.

Similarly, Constitution Bench of the Supreme Court in the Sahibzada Saiyed Muhammed Amirabbas Abbasi and Others Vs. The State of Madhya Bharat and Others, , the Apex Court observed as under:

The second Respondent was appointed guardian of the minors by order of a competent court, and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a compete Tribunal. The remedy of a person aggrieved by the decision of a competent judicial Tribunal is to approach for redress a superior Tribunal, if there be one.... And that order cannot be circumvented by resorting to an application for a writ under Article 34.... A petition to this Court under Article 32 of the Constitution or enforcement of that right, notwithstanding the adjudication of the Civil Court, cannot be entertained.

A seven Judges Bench of the Supreme Court in Ujjam Bai v. State of Uttar Pradesh and another AIR 1962 SC 1621, examining the same issue observed that the findings of a judicial or quasi-judicial Tribunal

cannot be impeached collaterally or on an application for certiorari but are binding until reversed in appeal.....an error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than in appeal unless the erroneous demand relates to a matter of which the jurisdiction of that body depends.

In view of the law laid down by nine-Judge Bench of the Hon''ble Supreme Court in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, , an order passed in writ jurisdiction cannot be challenged in writ jurisdiction. The Court held as under:

Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19(1).

... The order is not collateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proceeding in appeal. Just as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the Petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties or is passed incidentally to make the adjudication of the dispute between the parties fair and effective.

Similar view has been reiterated in Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, and Khoday Distilleries Ltd. and Another Vs. Registrar General, Supreme Court of India, , wherein the Supreme Court considered its earlier judgments and held that writ petition challenging the final decision on merit in a judicial proceeding, is not maintainable. The Supreme Court has explained that the judgment in A.R. Antulay Vs. R.S. Nayak and Another, , stood on its own facts and the same was explained and distinguished. The said judgment in Antuley (supra) also stood distinguished on similar ground in a Constitution Bench judgment in Krishna Swami Vs. Union of India and another, , wherein the Hon''ble Supreme Court held as under:

In a case like the present, wherein substantially the challenge is to the correctness of the decision on merits after it had become final, there can be no question of invoking Article 32 of the Constitution to claim reconsideration of decision on the basis of its effect in accordance with law. Frequent resort to the decision in Antuley in such situations is wholly misconceived and impels us to emphasise this fact.

The Hon''ble Supreme Court further explained that under Article 32, the petition filed in Antulay''s case challenging the decision of the Supreme Court was dismissed and it was only in an appeal filed subsequently by Antulay against an order of the Bombay High Court made during trial that relief was granted to him. While dismissing the earlier writ petition under Article 32 of the Constitution filed by Antulay, the Supreme Court had observed as under:

... The writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise incorrect, cannot be entertained.

Similar view has been reiterated by the Hon''ble Supreme Court in P. Ashokan Vs. Union of India and Another, and Ajit Kumar Barat Vs. Secretary, Indian Tea Association and Others, .

Therefore, the issue already settled by this Court cannot be permitted to be reopened under any circumstance in writ jurisdiction even indirectly.

It is settled proposition of law that what cannot be done "per directum is not permissible to be done per obliquum", meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud."

In Jagir Singh Vs. Ranbir Singh and Another, , the Apex Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance." While deciding the said case, the Hon''ble Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester (1824) 2 BC 635, wherein it has been observed as under:

To carry out effectually the object of a statute, it must be considered as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined.

Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the Apex Court in M.C. Mehta v. Kamal Nath and Ors. AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of Article 142 of the Constitution, which empowers the Court to pass any order in a case in order to do "complete justice".

Thus, under the garb of enforcing the orders passed by the concerned authorities in favour of Dr. Raghvendra Pratap Singh, he cannot ask this Court that it should examine the correctness of its earlier judgment or its sting after commencement of Amendment Ordinance Act, 1997.

The submission made by Shri Baghel that a person who is not in service cannot claim regularisation for the reason that regularisation can be claimed complaining that he is working for a very long time on ad hoc basis, and not regularising his services amounts to arbitrariness on the part of the employer and such non-action of the said employer falls within the ambit of Article 14 of the Constitution, has some merit.

The Hon''ble Supreme Court in Himachal Pradesh Housing Board Vs. Om Pal and others, and Ramchander and Others Vs. Additional District Magistrate and Others, , categorically held that the services of a temporary employee who stood removed cannot be regularised unless the order of termination itself is quashed by the Court. Thus, validity of the provisions inserted by the Amendment Ordinance, 1997, becomes doubtful. Even if the validity of a law is not challenged, the Court can bypass it and ignore it as has been held by the Apex Court in Bharathidasan University and Anr. v. All India Council for Technical Education and Ors. (2001) 8 SCC 676. But we are not inclined to decide the issue as there are no proper pleadings in this respect.

In the facts and circumstances of the case, we conclude that as the initial appointment of the Petitioner dated 7.11.1986, had been declared by this Court null and void vide its judgment and order dated 22.11.1996, which stood duly approved by the Hon''ble Apex Court, he ceased to be the incumbent on the post and was not eligible at all to be considered for regularisation under the Amendment Ordinance, 1997, for the reason that Petitioner''s appointment had been declared in-executable and unenforceable by this Court and it was not permissible for the statutory authorities to consider his case for regularisation. The orders passed by the statutory authority regularising the services of Dr. Raghvendra Pratap Singh not only amounts to colourable exercise of power but sitting in appeal and setting aside the judgment and order of this Court as well as of the Hon''ble Apex Court. The conduct of the authorities is deplorable and requires to be deprecated. In view thereof Writ Petition No. 54549 of 2002 filed by Dr. Raghvendra Pratap Singh is hereby dismissed. Two Writ Petitions, i.e., Nos. 16576 of 1998 and 21545 of 2003 filed by the Committee of Management are allowed and order of regularisation dated 6.3.1998, is hereby quashed. All consequential orders thereto passed by any authority subsequently are also quashed.

There shall be no order as to costs.