Reeta Nayak vs State of Orissa and Others

S.N. Prasad, J—Petitioner has approached this Court for quashing the order dated 24.6.2015 passed in Anganwadi Appeal No. 27 of 2011 by which selection of the petitioner as Anganwadi Worker for Jhadalinga-2 Anganwadi Centre has been held to be void and accordingly set aside.

Brief facts of the case is that the petitioner who is unmarried lady, after having been passed Madhyama Examination which is said to be equivalent to Matric (H.S.C.) Examination had applied for Anganwadi Worker as per the application invited by the C.D.P.O., Astarang for Jhadalinga-2 Anganwadi Centre. At the time of submitting application petitioner has submitted certificate in support of her age, permanent residence, qualification and mark sheet and upon its verification she was selected by the selection committee on 4.6.2011 and accordingly started discharging her duty.

Engagement of the petitioner has been challenged by the opposite party No. 5 by filing Anganwadi Appeal No. 27 of 2011 before the Additional District Magistrate, Puri who after registering the case issued notice to the petitioner and passed order declaring selection of the petitioner as void and accordingly set aside her engagement with a direction to engagement order in favour of the opposite party No. 5.

Opposite party No. 5 challenged selection of the Petitioner on the following grounds:

"(i) The selection committee without verifying/ascertaining the genuineness of educational certificate, mark sheet conducted selection process.

(ii) The date of birth has been manipulated and mark sheet filed by the petitioner has been tampered.

(iii) The respondent/petitioner has committed forgery as to date of birth, father''s name and tampered and enhanced mark sheets."

Petitioner had appeared and denied the allegations categorically stating therein that she has not tampered mark sheet or father''s name on any of the certificates submitted before the C.D.P.O. rather mischief has been done in the office of the C.D.P.O. by somebody to support opposite party No. 5 and this aspect of the matter has not been appreciated by the A.D.M., Puri while declaring selection of the petitioner as void.

The writ petition was heard on 14.7.2015 and an interim order was passed while issuing notices upon the opposite parties. Opposite party No. 5 has put her appearance through Vakalatnama and has been represented by her learned Advocate.

Learned counsel for the opposite party-State has submitted that he has obtained instruction but she does not require to file any counter affidavit and is ready to argue the case on the basis of the averments made in the writ petition as well as impugned order. Learned counsel for the State has submitted that allegations regarding tampering in the mark sheet, when pointed out by the opposite party No. 5, A.D.M. has forwarded Madhyama Certificate of the petitioner to the Registrar, Sri Jagannath Sanskrit Vishyavidyalaya, Shri Vihar, Puri vide letter No. 1410 dated 18.7.2014, petitioner is said to have got Madhyama Certificate from the said institution, Controller of Examination of the said University vide his office letter No. 1204 dated 23.7.2014 has reported that the petitioner, daughter of Bhabani Nayak, Roll No. M02579 date of birth 04.03.1981 has passed Madhyama examination in second division with aggregate of mark-493.

After getting the said report from the University concerned it has been found that the petitioner has disclosed her date of birth before the selection committee by producing Madhyama Certificate showing date of birth 12.8.1969 securing 561 aggregate marks and accordingly selection committee accepting the said Madhyama Certificate marks and date of birth ignoring the date of birth recorded in the Madhyama Certificate was selected but when actual position has come into light by proper verification from the record of the University then the A.D.M. has taken decision that since the decision of the selection committee based upon manipulated certificate showing different name of father of the petitioner and exaggerated marks, hence A.D.M. has passed conscious order declaring engagement of the petitioner as void and according she was order to be disengaged, hence there is no infirmity in the order.

Learned counsel for the opposite party No. 5 has argued the case and has submitted that since the petitioner has committed fraud which has been admitted by the petitioner but alleged office of the C.D.P.O. which amounts that the petitioner has admitted the fact that she is not secured 561 marks and her date of birth is not 12.8.1969. Even assuming that no fraud has been committed then also petitioner could not have been selected on the basis of the actual marks 493.

It has been further contended that it cannot be believed that wrong certificate has been used which is beyond knowledge of the petitioner and everything has been done for the purpose of getting engagement and as such it is clear cut misrepresentation and suppression of material facts which will said to be fraud in view of the definition of fraud given under section 17 of the General Clauses Act.

Heard learned counsel for the parties and perused the documents on record.

Fact which is not in dispute in this case is that petitioner along with opposite party No. 5 and others have participated in the selection process. Petitioner had been selected for engagement of Anganwadi Worker. Selection committee has selected the petitioner on the basis of the Madhyama Certificate and marks having been secured as claimed by the petitioner is 561.

Opposite party No. 5 after knowing the fact that some manipulation, misrepresentation and suppression of facts is there in the matter of engagement of the petitioner, she immediately made complaint before the appellate authority who entertained the appeal, issued notice to the petitioner and thereafter in order to corroborate the allegation, has forwarded Madhyama Certificate filed by the petitioner to the Registrar, Sri Jagannath Sanskrit Biswavidyala, Shrivihar, Puri vide letter No. 1410 dated 18.7.2014 and the Controller of Examination of the University vide office letter No. 1204 dated 23.7.2014 reported that "Reeta Nayak father Bhabani Nayak Roll No. M02579 date of birth 04.03.1981 has passed Madhyama examination in Second Division with aggregate of mark-493". Accordingly, on the basis of the fact having been come to light the A.D.M. has found that the petitioner said to have daughter of Bhabani Nayak, date of birth 4.3.1981 passed Madhyama Examination in the year 1981 in second division and secured 493 marks but as per the record of the selection committee, where petitioner has produced document, she is shown to be daughter of Sunakar Nayak Roll No. 08363M02579, date of birth as 12.8.1969 having secured aggregate of marks-561, was selected as Anganwadi Worker which has been found to be by tampering and correcting name of father, date of birth and aggregate marks for getting selection. Petitioner accordingly was selected on the basis of the manipulated certificate showing her exaggerating marks.

From the pleadings made in the writ petition and from perusal of the order impugned, it can easily be gathered that engagement of the petitioner is based upon Madhyama Certificate which actually does not belong to her. On the basis of the certificate which does not belong to the petitioner she has been selected since she had shown exaggerated marks 561 in place of actual marks 493. In the writ petition although petitioner is shown her ignorance regarding commission of suppression and misrepresentation of material fact before the selection committee and alleged the office of the C.D.P.O.. Even said argument is accepted then also it amounts to admission on the part of the petitioner that she was selected on the basis of the certificate which does not belong to her and as such the petitioner has been engaged on the basis of the certificate which does not belong to her which will be said to be misrepresentation/suppression of material fact and as per the definition of fraud under section 17 of the General Clauses Act active concealment of any fact will be said to be fraud, for better appreciation the provision of Section 17 of Indian Contract Act, 1872 is being quoted herein below:

"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:--

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent."

It is stated that fraud vitiates everything as per the decision of the Hon''ble Supreme Court in the case of Devendra Kumar Vs. State of Uttaranchal and Others, AIR 2013 SC 3325 : (2013) 139 FLR 284 : (2013) 10 JT 566 : (2013) LabIC 4279 : (2013) 4 LLN 450 : (2013) 9 SCALE 703 : (2013) 9 SCC 363 : (2014) 1 SCC(L&S) 270 : (2013) 4 SCT 482 : (2013) AIRSCW 4938 wherein in para-13 which is being reproduced below:

"It is settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal". (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 : (1993) 2 BC 546 : (1993) 6 JT 331 : (1995) 109 PLR 293 : (1993) 4 SCALE 277 : (1994) 1 SCC 1 : (1993) 3 SCR 422 Supp : (1994) 1 UJ 1 . In Lazarus Estates Ltd. vs-Beasley reported in (1956)1 QB 702 the Court observed without equivocation that:

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

This aspect of the matter has not been dealt with by the Additional District Magistrate.

Placing the ratio of the judgment of the Hon''ble Supreme Court referred to above with the facts of the case, it is evident that there active concealment by the petitioner for getting undue benefit by making manipulation in the Madhyama Certificate which has been found to be corroborated from its original having been supplied from its original by the concerned University from where said Madhyama Certificate was issued. Hence, engagement of the petitioner will said to be made on the basis of the certificate which does not belong to her.

Taking into consideration all these aspect of the matter, A.D.M., Puri has held that engagement of the petitioner is void.

In view of the reasons stated above and in view of the finding given by the A.D.M., Puri, I find no merit in the writ petition.

Accordingly the writ petition is dismissed being devoid of merit.