Union of India and Others vs Sarla Koul

M.M. Kumar, C.J.—The instant appeal preferred by the Union of India and its officers under clause 12 of the Letters Patent is directed

against the judgment and order dated 17.05.2001. The learned Single Judge allowed the writ petition holding the writ petitioner-respondent

entitled to re-instatement. The payment of back wages was restricted to three years preceding the date of filing of the writ petition. Brief facts of

the case necessary for disposal of the instant appeal are that an advertisement was issued on 09.06.1966 by the Deputy Director Posts and

Telegraphs, J & K Circle Srinagar inviting applications for appointment as Clerks in the Post Offices. The writ petitioner-respondent was

appointed on 22.05.1967 by the Divisional Engineer Telegraphs Srinagar to a temporary post of Time Scale Clerk (Annexure P5) after she had

undergone training. Later on one month notice for termination of her service was issued vide office letter No. DST/Con/Sarla Koul/7 dated

22.09.1970 in terms of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965. On the expiry of period of one month the order

terminating her services was passed vide Memo No. Q-2043/KW/7 dated 19.10.1970 clarifying that her service would come to an end on

21.10.1970. According to the aforesaid communication sent by Divisional Engineer Telegraphs Srinagar Division the services of the writ petitioner-

respondent were terminated with effect from the afternoon of 21.10.1970 as she was given one months notice on 22.09.1970. According to the

averments made by the writ petitioner-respondent, she initially preferred an appeal/representation against the aforesaid order which remained

pending.

After a period of about 15 years she preferred WP no. 879/1985. The writ petition was decided on 05.08.1986 with a direction to the

appellant to furnish the writ petitioner respondent a copy of the order by which her representation was rejected. In para 5 of the judgment it was

observed that the appellants were to furnish a copy of the order whereby her representation was rejected and also indicate the reasons for such

rejection. It was also clarified that in case her representation had not been disposed of the same was to be disposed of within two months from the

date of order i.e. 05.08.1986 and the order disposing of the representation was to be conveyed to the writ petitioner-respondent. According to

the averments made by the writ petitioner-respondent the order was actually passed on 26.09.1986. The appellants have maintained that the order

of termination was in accordance with Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 (for brevity Temporary Rules).

The passing of order rejecting the representation on 26.09.1986 led the writ petitioner-respondent to prefer another writ petition bearing WP

no. 726/1990 which was decided on 09.07.1992. The appellant pleaded before the Court that the writ petitioner-respondent was placing reliance

on a fabricated matriculation certificate which constituted basis for the termination order. The order dated 09.07.1992 makes the aforesaid aspect

obvious as is patent from the perusal of the judgment, the relevant part whereof is set out below:-

I have heard learned counsel for the parties. The only question for consideration whether the respondents were right in terminating the services of

the petitioner without holding an enquiry. In this respect Mr. Bhardwaj has pointed out that appointment letter issued in favour of the petitioner was

clear and in accordance with para (2)(ii) of the appointment order service could have been terminated at any time by the appointing authority by a

months notice without assigning any reason.

According to him the appointing authority invoked that provision. I think this argument cannot be permitted to prevail firstly on the ground that the

services of the petitioner have been terminated after ten years of her appointment and secondly the enquiry as contemplated under rules was

necessary while awarding such like punishment. DDD.. In order to resolve this controversy think the better course would be to allow the petitioner

to produce the certificate regarding her having passed Matriculation examination and respondents would look thereafter into the criteria that was

being followed by them at the relevant time for making appointment to the post of clerks. In case the petitioner fulfills the criteria as laid down by

the competent authority at the relevant time, there will be no hitch for the respondents to appoint her again irrespective of age bar because she has

already served the department for a long time. The question of relaxation of intervening period can be considered by the authorities as pointed out.

The petitioner is presently a migrant and suffering a lot because of dislocation. The respondents are required to consider this compassionate ground

also while completing the process which is required to be done as early as possible.

In pursuance of the directions issued by this Court the writ petitioner-respondent was expected to produce the certificate showing that she had

passed the matriculation examination and the appellants were required to look into the criteria that was being followed by them at the relevant time

for making appointment to the post of Clerk and if the writ petitioner respondent fulfilled the criteria, as laid down by the competent authority at the

relevant time, then she was to be given appointment irrespective of the age bar. Even otherwise the question of relaxing the intervening period was

to be considered by the authorities. The Court also found that the writ petitioner-respondent was a migrant and on that account had been suffering.

The case of the writ petitioner-respondent was required to be considered on compassionate ground. This led the Chief General Manager

Telecommunications, J & K Circle to pass an order on 01.04.1993 clarifying that the writ petitioner respondent could not have been appointed on

the post of Clerk on the basis of the criteria which was in vogue at that time and, therefore, her claim for the post of Clerk was not accepted.

Feeling aggrieved the writ petitioner-respondent preferred a contempt petition. The operative portion of the order passed in the contempt petition

deserve to be quoted in extenso, which reads thus:-

After hearing the arguments of the learned counsel for the parties, the court thought it just and proper to ask the respondents to produce the record

pertaining to the criteria laid down by them for appointment to the post of clerk. Later on Mr. Sethi submitted that the record pertaining to

appointments has been destroyed by the respondents. According to him under the relevant rules the respondents are required to destroy such

record after every three years. As the appointment in question was made in the year 1967, the same was since destroyed. He, however, produced

the record of inquiry which is not supposed to be destroyed. I have gone through the said record.

In the said record it is found that the C.G.M. has passed an order on 31.3.1993 in the following terms:

The petitioner has produced a photo-stat copy of her matriculation certificate which indicates that she has obtained 400 out of maximum of 850

marks, which comes out to be 47%. According to the criteria followed at that time the selection to the posts of clerks was made purely on merit

drawn on the basis of marks obtained in the matriculation examination in a particular category. Now, as pr the D.O. letter no. 10/39/70-Vig dated

3.7.1970 of the then Dy. Director General (Vig) to the address of Director Posts and Telegraphs, Srinagar it is clear that the last person who was

selected in the O/C category was one Shri Chaman Lal who had obtained 53.5% marks, while smt. Sarla Koul, who also belongs to O/C

category had obtained 478 marks. As such on the basis of the criteria which was in vogue at the relevant point of time she could have not been

selected with her 47% marks in matriculation examination. Smt. Sarla Koul does not fulfill the criteria of selection. Hence keeping in view the

direction of the Hon'ble High Court of J & K, she cannot be appointed to the post of clerk. The petitioner Smt. Sarla Koul may be informed about

this accordingly.

Mr. Goja submitted that it is not correct that the record of appointment is liable to be destroyed after every three years. He had offered to produce

the relevant rules to rebut the argument of Mr. Sethi. He was given one weeks time in this behalf as far back as on 9.2.1995. He has not produced

any rules so far.

In this view of the matter, the court presumes that the assertion of Mr. Sethi as regards destruction of record is correct.

I have given my due consideration to the merits of this contempt petition and have also gone through the file.

In this petition I am not supposed to go into the question as to whether the order of termination of services of the petitioner suffered from any

illegality or not. The said question has already been answered by this court while disposing of the writ petition. In this petition it is only to be seen

as to whether the judgment of this court dated 9.7.1992 has been complied with or not by the respondents. After going through the record, I am

convinced that the respondents have complied with the mandate of the judgment. They appear to have considered the case of the petitioner in the

light of the said judgment. According to them the petitioner had obtained 47% marks in the Matriculation examination, whereas according to the

criteria followed by them at the time of selection to the posts of clerks, the last person selected was Shri Chaman Lal, who had obtained 53.5%

marks in the said examination. It is categorically stated by them that the petitioner did not fulfill the criteria of selection and therefore could not be

appointed in terms of the judgment of this court.

In these circumstances of the case the respondents have not committed any contempt of the court, and therefore, the rule issued against them is

hereby discharged and the contempt petition dismissed. Let the file be consigned to the records.

(Emphasis added)

A perusal of the aforesaid extract from the order discharging the Rule nisi dated 07.03.1995 would show that the writ petitioner-respondent

produced a photo stat copy of her matriculation certificate which indicated her marks as 400/850. On calculation it was found that she had secured

47% marks. The criteria followed for selection and appointment to the post of Clerk was purely merit drawn on the basis of marks obtained in

matriculation examination. The last person who was selected in Open Category (OC) category was one Chaman Lal who had secured 53% marks

while the writ petitioner-respondent had secured 47% marks. Accordingly, it was found that she did not fulfil the criteria of selection and thus could

not be appointed to the post of Clerk. An attempt to challenge this order before the Division Bench in appeal met with the same fate on

09.08.1995 and Hon'ble the Supreme Court also dismissed the SLP on 09.10.1995.

The writ petitioner-respondent then filed another writ petition, namely, SWP no. 1195/1996 relatable to this appeal, challenging the order dated

01.04.1993 and submitted that even the earlier order dated 19.10.1970 was unsustainable in the eye of law. The original order dated 19.10.1970

and letter dated 01.04.1993 were assailed on a variety of grounds. It was claimed that writ petitioner-respondent was at par with two ladies,

namely, Brij Kishori and Vijay Kumari Dulloo. The learned Single Judge found that the appellant did not disclose the criteria for selection and by

the date of termination on 19.10.1970 the writ petitioner-respondent has completed three years period. The learned Single Judge also felt

influenced by the terms and conditions stipulated in the appointment order which were to govern the relationship between the appellant and the writ

petitioner-respondent. In that regard reliance was placed on the judgment of Hon'ble the Supreme Court rendered in case of Central Inland Water

Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, . Accordingly, the learned Single Judge held that in the terms

and conditions incorporated in the letter of appointment, the services of an employee could be terminated at any time because such condition

would be ultra vires and would encourage the principle of hire and fire which is opposed to public policy. The learned Single Judge also supported

his view by citing the principle of equitable estoppel and how the case of the writ petitioner-respondent was different then those two ladies, namely,

Brij Kishori and Vijay Kumari Dulloo. Thereafter the Writ Court examined the delay by observing as under:-

The question of delay be now examined. Against the order of termination, the petitioner was fighting tooth and nail. It was on 5.8.1986 the

respondents were commanded to decide the representation of the petitioner and to furnish her with the copy of the order of rejection. This led to a

non speaking order being passed. This was again challenged through a writ petition. This came to be decided on 9.7.1992. The petitioner filed a

contempt petition. In the contempt jurisdiction the view expressed was that the plea sought to be taken did not fall within the parameters of

contempt jurisdiction. Thereafter she availed of the remedy under Article 226 of the Constitution. As such this objection is found to be devoid of

merit. The petitioner was seeking her remedies in contempt jurisdiction. She was not sitting idle. If this be the position then delay and latches would

not stand in the way of the petitioner.

We have heard the learned counsel for the parties at a considerable length and are of the view that this appeal deserves to be accepted.

The service conditions of the writ petitioner-respondent are regulated by Temporary Rules. According to Rule 5 the services of a temporary

government servant would be liable to termination at any time by a notice in writing by the employer or by the appointing authority. The period of

such notice has to be one month. The proviso clarifies that the services of any such employee may be terminated forthwith by making payment of a

sum equal to the amount of pay plus allowances for the period of notice. It would be necessary to read the relevant extract of Rule 5, which is set

out below:-

Termination of temporary service._(1)(a) The services of a temporary Government Servant () shall be liable to termination at any time by a

notice in writing given either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant;

(b) the period of such notice shall be one month: Provided that the services of any such Government Servant may be terminated forthwith by

payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing

them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.

In the present case the writ petitioner-respondent was selected and appointed on a temporary post of Time Scale Clerk on 22.05.1967.

According to para 2 of the letter the appointment was temporary and same was liable to be terminated at any time by one months notice by the

appointing authority without assigning any reason. Notice bearing office no. DET/Con/Sarla Koul/7 dated 22.09.1970 was given and on expiry of

30 days the order was passed terminating her services with effect from 21.10.1970 (P-6 with the original writ petition). The writ petitioner-

respondent claimed that an appeal/representation was filed against the aforesaid order. For the first time the order was challenged in writ petition

no. 879/1985, which is after a period of almost 15 years on 08.05.1985. The writ petition was disposed of with a direction to the appellant to

furnish the writ petitioner-respondent a copy of the order rejecting her representation. The writ petitioner respondent alleges that an order was

passed on 26.09.1986.

The General Manager Telecommunications again reiterated that her termination from service vide order dated 19.10.1970 by the Divisional

Engineer was in order because under Rule 5 of the Temporary Rules it was temporary service. On the ground that the aforesaid order was non-

speaking the writ petitioner-respondent filed another writ petition almost after four years which was registered as WP no. 726/1990 and the same

stands decided on 09.07.1992. A perusal of the order passed by the learned Single Judge would show that the judgment and order proceeds on

wrong premise and is based on the presumption that the writ petitioner-respondent had rendered more then ten years service on the date of her

termination whereas she had rendered just three years of service. Eventually directions were issued by the learned Single Judge on 09.07.1992. In

pursuance of the directions the writ petitioner-respondent produced a photo stat copy of her matriculation certificate which indicated that she had

secured 400/850 marks whereas the last candidate, namely, Chaman Lal, appointed on the post of Clerk had secured 450/850 marks. Obviously

the writ petitioner-respondent had relied upon the fabricated document at the time of her initial selection. All these facts could be gleaned from the

record placed with the objections. For example letter dated 03.07.1970 (Annexure J) sent by the office of Director General of Posts and

Telegraphs, Parliament Street, New Delhi to Director, Posts and Telegraphs, J & K Circle, Srinagar would make an interesting reading, which is

set out below in extenso:-

As you are aware, the question of recruitment in the clerical cadre of one Smt. Sarla Koul was recently investigated by Agarwal and it is now

noticed from the personal file of this official that the original application along with the attested copy of the Matriculation certificate and mark sheet

is found missing. The verification made by the SPE with the Board of Secondary Education, Srinagar showed that this official had obtained 400

marks out of 850 marks in the Matriculation examination of 1965 with roll no. 7810. An attested copy of the Boards letter is with Ved Kumar.

The recruitment register however, shows that she had obtained 58.82% marks in the Matriculation which would work out to 499 marks. The last

candidate of other communities recruited in 1966 was Shri Chaman Lal with 53.52% marks and had joined Jammu Engg. Dvn. Thus Sarla Koul

would not have been selected at all with 47% marks and would not have been included even in the preliminary selection in Register A in which the

last candidate was shown to have obtained 49.2% marks. Thus there is no doubt that this official was recruited by fraudulent means and managed

to remove or get removed the original application and the mark sheet from her personal file in the office of the D.E.T., Srinagar. It is understood

that this official was working in the same selection in which the personal files are maintained. This could naturally be with the connivance and

assistance of the officials in the DETs office. It has, therefore, been decided that the DET may be asked to get the original Matriculation certificate

and the mark sheet from the official within a reasonable time of 10/15 days failing which disciplinary proceedings for a major penalty should be

initiated against her. It may be added for your information that this official was punished for copying in the confirmation examination and her

increment was withheld for 1 year. Another official of your office-Shri M.L. Muttoo-was charge sheeted on 15th December, 1969 for helping this

official in the confirmation examination and was severely warned and was also not promoted to LSG. It seems that several officials of your office

and DETs office are involved in the irregular recruitment of Sarla Koul. A further communication would follow as to what action is proposed to be

taken against them.

(Emphasis added)

Another letter sent by the Director General (Vigilance) on 14.09.1970 to the Director Posts and Telegraphs, Srinagar would indicate some

what similar factual position and the same reads as under:-

On going through the case, it is found that the recruitment of Smt. Sarla Kaul was irregular. She was recruited on the basis of having secured an

overall average of 58.82%. This works out to 499 marks out of 850. Actually she had obtained only 400 marks and considering the fact that the

last person in the merit list who was selected had secured only 53.52% marks, the official concerned viz. Smt. Kaul would not have been selected

on the basis of the marks actually obtained by her. The marks sheet which she had filed with her original application form on the basis of which she

was selected, is reported to be missing. It may, therefore, not be fruitful to conduct a successful enquiry into the case without this vital document.

Since Smt. Kaul is still temporary you may resort to rule 5 of CCS (TS) Rules, 1965 and terminate her services on one months notice or pay in

lieu. Necessary action may please be taken at your end.

From the enquiries conducted, it is further clear that Smt. Kauls recruitment under wrong premises has been assisted by officials in the Circle

Office. The suspects may therefore be dispersed without delay. We would suggest that Shri P.N. Pandit may be posted as cashier on account of

his past antecedents. You may like to relieve him from that post quickly. Shri T.N. Dhar, HAE may be shifted to Jammu.

A copy of a further complaint regarding irregular recruitment of certain other candidates in collusion with some officials in your office is sent

herewith for necessary action lat your end.

The following files/documents of your office are also returned herewith.

Register D of 1966.

Register A of 1966.

File no. Q. 2043.

File no. Staff P/Rectt.-1/66.

File no. Q-3009

File no. Staff CO/N-5/Rectt.

Kindly acknowledge receipt.

It is well settled that fraud vitiates all acts. In case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, ,

Hon'ble the Supreme Court quoted Edward Coke of England who held that fraud avoids all judicial acts, ecclesiastical or temporal. The view has

been followed in case of A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, and K.D. Sharma Vs. Steel Authority of India

Ltd. and Others, . In para 22 of the judgment rendered in A.V. Papayya Sastry's case (supra) the following pertinent observations have been

made which arm the Courts to declare any fraudulent judgment as a nullity at any time and the same reads as under:-

It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and

non est in the eye of law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court,

superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

In K.D. Sharmas case (supra) the Court summed up the definition of expression fraud as under:-

The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one

gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic

collateral act which vitiates all judicial acts, whether in rem or in personam.

In the present case the writ petitioner-respondent produced a fabricated document in order to secure the appointment by showing that she had

secured 58.82% marks whereas her total percentage of marks was 47. The department, instead of adopting the procedure of holding a regular

inquiry, discharged her from service because she was a temporary employee. Rule 5 of the Temporary Rules arm the appellant to discharge an

employee by serving one months 15 notice. Therefore, no legal fallacy could have been found in the order of discharge dated 19.10.1970. We

further find that the writ petitioner-respondent has approached the Court after long delays. After 15 years the first petition was filed in the year

1985 which was disposed of on 05.08.1986, the writ petitioner respondent filed SWP no. 726/1990 after a period of more than 3 years. (see

State of Madhya Pradesh Vs. Bhailal Bhai and Others, . That apart, we are unable to concur with the view expressed by the learned Single Judge

that the principles of equitable estoppel were applicable. In that regard observations made by Hon'ble the Supreme Court in case of M. Bhaskaran

v. Union of India and Ors. , would apply to the facts of the present case. In that case an employee had continued working on the basis of bogus

and forged casual labourer service cards. It was held that appointment order on the length of service cannot create any equity in his favour and the

employee cannot plead estoppel against the employer.

(See also the judgment of Hon'ble the Supreme Court rendered in District Collector and Chairman, Vizianagaram Social Welfare Residential

School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, .

As a sequel to the above discussion this appeal succeeds. The judgment and order dated 17.05.2001 rendered by the learned Single Judge is

set aside. The writ petition of the 16 writ petitioner-respondent is dismissed. The order of termination and all subsequent orders passed by the

appellant are up held. Keeping in view the facts and circumstances of this case we take a lenient view and saddle the writ petitioner respondent

with costs of Rs. 5000/- only.