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C.A.No.2734/2012 etc.  

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2734 OF 2012

Khub Ram       …..Appellant

Versus

Dalbir Singh & Ors.                                               …..Respondents

W I T H

CIVIL APPEAL NO. 4097 OF 2015 [Arising out of S.L.P.(C)No.15871 of 2012]

Mahavir Prasad       …..Appellant

Versus

Dalbir Singh & Ors.                                               …..Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. The Civil Appeal and the Special Leave Petition have been heard

together because claim of  the parties is in respect  of  same post of

Chief  Inspector  in the Haryana Roadways to which the appellant  -

Khub Ram was initially appointed in the year 1990 pursuant to his

selection  in  response  to  advertisement  dated  07.05.1989.   First

respondent – Dalbir Singh challenged the selection and appointment

of appellant Khub Ram by filing C.W.P. No.12711 of 1992 in the High

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C.A.No.2734/2012 etc.  

Court.  That writ  petition was allowed on 01.10.2010 by a learned

Single Judge.  Not only the appointment of Khub Ram and one more

person was quashed but a direction was also issued to appoint writ

petitioner  –  Dalbir  Singh  from  a  retrospective  date  with  all

consequential benefits.  Appellant’s appeal before the Division Bench

was  dismissed  by  the  impugned  order.   The  petitioner  of  S.L.P.  –

Mahavir  Prasad  has  sought  permission  to  file  the  Special  Leave

Petition  against  judgment  of  learned  Single  Judge  as  well  as  of

Division Bench on the ground that he is one amongst the selected

candidates and has a better claim for appointment than respondent –

Dalbir Singh and hence order should be passed for appointing him in

place of  Khub Ram.  This  judgment shall  govern both the matters

which involve common issues of facts and law.

2. Permission to file Special Leave Petition (C) No.15871 of 2012 is

granted.  Delay condoned.  Leave granted.

3. For the sake of convenience the facts have been noticed mainly

from  the  records  of  Civil  Appeal  No.2734  of  2012  except  where

indicated  otherwise.   For  deciding  the  two  issues  arising  in  these

cases it is not necessary to go deeper into the facts except to notice

that  as  per  terms  of  advertisement  dated  07.05.1989,  besides  a

Degree  of  Graduation  and  Hindi  upto  Matriculation  level  and  age

qualification of 17-35 years, it was essential for the candidate to have

two  years’  experience  in  Government/Semi-government  or  Public

Undertakings  and  Roadways  Fleet.   The  appellant’s  selection  was

questioned in the writ petition mainly on the ground that he did not

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C.A.No.2734/2012 etc.  

possess the requisite experience and the two certificates submitted by

him were from private  transporters.   There  were strong arguments

advanced against the selection of appellant and some others on the

allegation that political influence had been exercised in their favour

and it was specifically pleaded that the appellant was selected in the

second round of selection as he belonged to village of the then Chief

Minister.   The  learned  Single  Judge  noticed  that  appellant’s

experience certificates showed that he had worked with a private Bus

Service from June 1986 to June 1988 as a Field Staff (Checker) for

two  years  and  also  with  another  private  roadways  as  Assistant

Manager  between  01.09.1984  to  10.03.1987.   The  courts  below

noticed  that  both  the  certificates  contradicted  each  other  because

between June 1986 to 10.03.1987 the appellant as per his certificates

had worked in two different capacities with two different private bus

service.  The court also found that the two years’ experience as per

terms  of  the  advertisement  could  not  be  satisfied  by  showing

experience  of  working  with  private  transporters  as  they  were  not

covered  by  the  expression  ‘Government/Semi-government  or  Public

Undertakings and Roadways Fleet’.

4. On behalf of Mahavir Prasad it has been pleaded that the Select

List contained names of 14 persons which included Khub Ram and

Ram Niwas Rathi whose appointments were quashed by the learned

Single Judge as well as name of appellant – Mahavir Prasad but not

that of first respondent – Dalbir Singh.  On account of his place in the

Select  List  Mahavir  Prasad  represented  for  appointment  and

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C.A.No.2734/2012 etc.  

ultimately  filed  a  writ  petition  for  that  purpose  bearing  C.W.P.

No.17600 of 1991 but no relief was given to him by the final order

dated 04.08.1992 which for some reason was challenged by the State

of Haryana before the Division Bench but not by Mahavir Prasad. But

when  he  learnt  that  respondent  –  Dalbir  Singh  has  succeeded  in

getting a judgment against  Khub Ram and a direction for  his own

appointment, Mahavir Prasad chose to challenge those judgments in

favour of Dalbir Singh by preferring the Special Leave Petition directly

in this Court and the same was tagged for hearing along with the Civil

Appeal.

5. On  behalf  of  appellant  -  Khub  Ram,  Mr.  P.N.  Misra,  Sr.

Advocate raised a strong objection that writ petition should not have

been allowed in 2010 in view of delay in impleading the appellant as

late  as  in  2004  when  he  had  already  earned  a  promotion  on

01.03.1996  and  a  second  promotion  as  Traffic  Manager  on

05.05.2000.  It was also highlighted that because of interim order of

this  Court  he has continued in service and has been promoted as

General Manager in December 2014.  He pointed out that objection

was  taken  to  the  impleadment  application  dated  16.02.2004  on

grounds  of  delay  as  well  as  promotion  already  earned  by  the

appellant.   In support  of  the aforesaid plea reliance was placed on

judgment  of  this  Court  in  the  case  of  Jiten  Kumar  Sahoo  v.

Mahanadi  Coalfields  Ltd. (2011)  11  SCC 520  and in  the  case  of

Buddhi Nath Chaudhary v. Abahi Kumar (2001) 3 SCC 328.

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C.A.No.2734/2012 etc.  

6. Learned  senior  counsel  Mr.  Misra  also  submitted  that

experience in private roadways fleet would meet the requirement of

advertisement if the word ‘and’ appearing before the ‘Roadways Fleet’

is understood and treated as ‘or’.  According to him, now when the

appellant - Khub Ram has worked for long years, he cannot be denied

continuance in service for lack of minimum experience at the stage of

recruitment.  He further pointed that the appellant noticed the error

in experience certificate dated 05.06.1989 relating to experience of two

years  in  Shyam  Bus  Service  from  June  1986  to  June  1988  and

therefore  he  obtained  a  corrected  certificate  on  the  next  day,  i.e.,

06.06.1989 showing such experience to be from June 1987 to June

1988.  According to the appellant, the corrected experience certificate

dated 06.06.1989 is on record as Annexure P-2.

7. In reply, Mr. Vikas Singh, Sr. Advocate for first respondent has

pointed  out  that  issue  of  delay  in  impleading  the  appellant  as  a

respondent  in  the  writ  petition  was  not  argued  before  the  learned

Single Judge or before the Division Bench.  He pointed out that in

respect of two years of working experience in paragraph 2 of the writ

petition it was claimed that the experience required was of working in

a Government or semi-government department and such claim was

admitted by the State, second respondent in para 2 of its reply.  It was

also  shown that  the  learned  Single  Judge  as  well  as  the  Division

Bench have returned concurrent findings that the appellant – Khub

Ram  did  not  meet  the  experience  qualification  and  not  only  his

certificates were from private bus operators but also the same were

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C.A.No.2734/2012 etc.  

untrustworthy  because  of  apparent  conflict  and  overlapping  of  a

particular period in both the certificates.

8. Anticipating  the  arguments  on behalf  of  appellant  –  Mahavir

Prasad in the light of pleadings in the appeal filed by him, Mr. Vikas

Singh, learned senior counsel for first respondent highlighted that no

other claimant for the post joined the litigation when first respondent

preferred the connected writ petition in the year 1992 and even till

2010 when the writ  petition was allowed, no other candidate came

forward  with  a  rival  claim  and  in  such  circumstances  writ  court

committed no error in directing for appointment of first respondent as

a consequence of setting aside the appointment of appellant – Khub

Ram and another person.

9. Before adverting to the claims of first respondent and similar

claim of appellant – Mahavir Prasad for appointment to the post held

by the appellant – Khub Ram, it would be appropriate to first examine

the merit  of  appeal  preferred by appellant  –  Khub Ram.  We have

carefully looked into the averments made in the writ petition, the reply

filed by State and other respondents as well as the judgment of the

learned Single Judge as well as the Division Bench.  We find no good

reason  to  take  a  different  view  in  respect  of  the  finding  that  the

appellant lacked the essential qualification of experience because his

experience certificates were only from private bus operators.  It is also

found  that  even  the  alleged  corrected  certificate  said  to  be  dated

06.06.1989  contained  in  Annexure  P-2  is  an  unreliable  document

inasmuch as the date 06.06.1989 is clearly a subsequent correction

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C.A.No.2734/2012 etc.  

without any authorization by way of counter signature and so is the

case with the words and letters ‘June 1987’ which have been altered

subsequently  by  converting  ‘1986’  to  ‘1987’.   Even  after  such

unauthorized corrections the total experience as per last line of the

certificate remains two years.  Had the concerned Bus Service issued

a fresh corrected certificate then the experience from June 1987 to

June  1988  could  not  have  been  certified  to  be  experience  for  two

years.  The list of dates also has been subsequently corrected to show

the date of experience certificate, Annexure P-2 as 06.06.1989 in place

of 05.06.1989.  This appears to have been done at the instance of the

appellant to justify his stand and apparently a bogus claim that he

had obtained a correct certificate on the very next date when he found

mistakes in the certificates dated 05.06.1989.  Had this been the case,

there  was  no  occasion  for  submission  of  the  certificate  dated

05.06.1989 with his application which issue has been discussed in

detail by the learned Single Judge.

10. Had  the  appellant  not  committed  such  acts  for  obtaining

selection  and appointment,  we could  have  considered  the  issue  of

delay as well as judgments supporting such a claim.  However, Mr.

Patwalia has rightly submitted that delay in impleading the appellant

could not weigh with this Court when a case of fraudulent entry into

service has been found by the learned Single Judge as well as Division

Bench  and  an  attempt  has  been  made  by  the  appellant  even  to

mislead this Court by producing Annexure P-2 and claiming it to be

copy of the corrected certificate freshly issued on 06.06.1989.  Such

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C.A.No.2734/2012 etc.  

conduct  of  the  appellant  in  our  considered  view  disentitles  the

appellant  –  Khub  Ram  to  get  any  relief  under  Article  136  of  the

Constitution  of  India.   Mr.  Patwalia  has  rightly  placed  reliance  to

support the aforesaid submissions, on a judgment of this Court in the

case of  Meghmala v.  G. Narasimha Reddy (2010) 8 SCC 383.  The

law relating to effect of fraud upon a competent authority to get an

appointment/office  as  well  as  effect  of  fraud upon court  has  been

discussed in detail in paragraphs 28 to 36 of the said judgment with

which we are in respectful agreement.  As a result, we hold that the

appellant  –  Khub  Ram is  not  entitled  to  hold  the  office  which  he

obtained  by  submitting  questionable  certificates  of  experience  and

more  so  when  he  lacked  the  essential  qualification  of  working

experience  in  a  Government/Semi-government/Public  Sector

Undertaking.  Hence his appeal is dismissed.

11. The next question is whether in the facts and circumstances of

the case the direction of the High Court to appoint first respondent

from a retrospective date along with consequential benefits deserves to

be upheld or not, particularly when a strong challenge has been made

to such direction through a Special Leave Petition of Mahavir Prasad.

On  this  issue  Mr.  Patwalia,  learned  senior  advocate  appearing  for

Mahavir  Prasad has shown from the  pleadings  that  while  Mahavir

Prasad  was  at  serial  no.9  of  the  Select  List  containing  14  names

prepared  for  appointment  to  5  advertised  posts,  first  respondent

Dalbir  Singh did not find any place in such Select  List.   This fact

escaped  the  attention  of  learned  Single  Judge  as  well  as  Division

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C.A.No.2734/2012 etc.  

Bench possibly because there was no rival claimant to point out such

shortcoming in the case of writ petitioner – Dalbir Singh.

12. Mr. Patwalia has shown from the supplementary affidavit filed

in  the  Special  Leave  Petition  to  support  the  application  for

condonation of  delay,  that  as far  back as on 25.08.1993 the High

Court  had  passed  an  order  in  the  writ  petition  directing  the  writ

petitioner to implead the  selected candidates (emphasis added) who

are likely to be affected by the result of the present writ petition.  The

writ petitioner was given liberty to file an application for early hearing

after  impleading  the  affected  party.   The  writ  petitioner  filed  the

impleadment application only for adding Khub Ram and one another

person and did not implead all the selected candidates.  As a result

appellant – Mahavir Prasad was denied the opportunity of contesting

the claim of the writ petitioner by placing the relevant correct facts

particularly the fact that Dalbir Singh was not a selected candidate.

13. A  number  of  judgments  including  State  of  Mysore v.  K.N.

Chandrasekhara AIR 1965 SC 532 and R.S. Mittal v. Union of India

1995 Supp. (2) SCC 230 were relied upon by Mr. Patwalia in support

of his submission that if challenge to an appointment succeeds, the

court will direct for appointment against consequent vacancy only as

per the merit list prepared for the purpose of such appointment.  The

list has to be given due weightage unless the court has proceeded to

quash the Select List itself.  Since the proposition is well founded in

law and there is no caveat on this issue, there is no need to discuss

the case law on the subject in any detail.

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C.A.No.2734/2012 etc.  

14. Learned counsel for the State of Rajasthan has submitted that

Khub Ram was ineligible for want of a requisite experience and hence

by working on the post as claimed by him for subsequent two years he

cannot  get  the  required  eligibility.   He  placed  reliance  upon  a

judgment  of  this  Court  in  the  case  of  Central  Bank  of  India v.

Madhulika Guruprasad Dahir (2008)  13 SCC 170.  That judgment

was rendered in a case where the caste certificate which was the basis

for  claiming  and getting  appointment  was  found to  be  false.   The

court,  in  the  facts  of  the  case  held  the  action  of  the  applicant

concerned to be fraudulent and on that basis,  after discussing the

relevant case law in detail in paragraphs 15, 16 and 17, declined to

endorse the lenient view taken by the High Court and instead, upheld

the order of termination of service of the concerned employee with a

sound reasoning -  “the selection of  the employee  was conceived in

deceit and, therefore, could not be saved by equitable considerations”.

According to learned counsel for the State Dalbir Singh did not find

place  in the list  of  selected candidates  and hence  it  would  not  be

proper to uphold the direction for his appointment and if Mahavir’s

claim finds favour then the authority concerned may be directed to

consider the claim of all selected candidates including that of Mahavir

Prasad but only against original post, if available.  The appointment

should  not  be  ordered  from  any  retrospective  date  or  with  any

consequential benefits.

15. There is no dispute that first  respondent  – Dalbir Singh was

only an applicant and was not among the selected 14 candidates.  In

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C.A.No.2734/2012 etc.  

that view of the matter, the High Court was misled to issue a direction

for his appointment and that too from an earlier date when Khub Ram

was  appointed,  and  with  consequential  benefits.   Such  directions

could not have been issued without considering the claims of other

persons in the Select List.  For that reason, the directions issued in

favour of  first  respondent  are set  aside.   To that  extent,  appeal  of

Mahavir Prasad has to be allowed.  However, the other prayer made

on behalf of Mahavir Prasad that authorities be directed to offer him

appointment or consider his claim, in our considered view cannot be

allowed on account of the fact that writ petition of Mahavir Prasad

filed  in  1991  was  decided  against  him by  order  dated  04.08.1992

passed in C.W.P.No.17600 of 1991.  Rightly or wrongly the High Court

held that he could not claim any right of appointment on account of a

place in the Select  List.   That judgment attained finality.  Mahavir

Prasad chose not to appeal against that order nor he challenged the

appointment of any of the persons selected and appointed.  His claim

thus suffers from  res judicata  as well as acquiescence and estoppel.

In that view of the matter and also for the reason that a long period of

more than 25 years has passed since the preparation of the Select

List, in our view it would be inappropriate to grant any relief which

may require the authorities to examine the claim of persons in the

Select List for appointment to the original post which may not even be

available  after  lapse  of  so  many  years.   We  have  been  told  that

Mahavir is presently about 50 years of age and has not crossed the

age  of  superannuation  and  is  still  working  on  another  post  with

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C.A.No.2734/2012 etc.  

Haryana Roadways.  That in our opinion, will not change the relevant

factors indicated above.  Hence we are not persuaded to grant any

further relief to Mahavir Prasad and his appeal is allowed only in part

as a result whereof the direction to appoint first respondent – Dalbir

Singh is set aside.

16. A disturbing feature of this case is that even after notice of the

writ petition when the State of Haryana became aware that Khub Ram

lacked essential  qualification and his certificates were unreliable,  it

took no action to undo the ill effects of fraud by taking any action

against Khub Ram.  As a result Khub Ram continued in service for a

number of years and also earned promotions.  This was at the cost of

claim of other genuine selected candidates whose cases could have

been considered if action had been taken at appropriate time.  In such

a situation, although we have granted no relief to Mahavir Prasad by

ordering  for  his  appointment,  we  direct  the  State  of  Haryana  to

compensate  Mahavir  Prasad  by  paying  him  an  amount  of

Rs.3,00,000/-  (Rupees  Three  Lacs)  within  two  months.   A  further

amount of Rs.1,00,000/- (Rupees one lac) should also be deposited by

the State of Haryana with the Supreme Court Mediation Centre within

the  same  time.   The  State  of  Haryana  would  be  at  liberty  to  fix

responsibility  as  to  who  was  at  fault  for  not  taking  action  in  the

matter after the deceitful acts came to its knowledge through filing of

the  writ  petition  in 1992,  and if  possible,  to  recover  the  aforesaid

amount  of  Rs.4,00,000/-  (Rupees  Four  Lacs)  from  the  concerned

persons, in accordance with law, if they are still in office.

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C.A.No.2734/2012 etc.  

17. As discussed above, Civil Appeal No.2734 of 2012 is dismissed

and the other Civil Appeal arising out of S.L.P.(C)No.15871 of 2012 is

allowed only to the extent indicated above.  There shall be no further

order as to costs.

......………………...……………………………….J. [FAKKIR MOHAMED IBRAHIM KALIFULLA]

……………………………………………………….J.  [SHIVA KIRTI SINGH]

New Delhi. April 29, 2015

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