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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1755    OF 2015 (Arising out of SLP (Civil) No. 22246/2014)

KRISHNA HARE GAUR             … Appellant

Versus

VINOD KUMAR TYAGI & ORS.       …  Respondents

J U D G M E N T

R. BANUMATHI, J  .   

Leave granted.

2. This appeal is preferred against the judgment dated  

15.05.2014 passed by the High Court of Judicature at Allahabad  

allowing the Special Appeal No.1165/2012 filed by respondent  

No.1  observing  that  the  appellant’s  claim  is  barred  by  the  

principle of res judicata.

3. Brief facts which led to the filing of this appeal are as  

under:- Vidyapati Junior High School, Jageshwar, Murshangate,  

Mahamaya Nagar, District Hathras, U.P., which is an aided and  

recognized  Junior  High  School,  issued  an  advertisement  on

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28.07.2010 in the daily newspapers inviting applications from  

the  eligible  candidates  for  appointment  on  the  post  of  

Headmaster.  Krishna Hare Gaur, the appellant along with Vinod  

Kumar  Tyagi,  respondent  No.1  and  several  other  persons  

applied for the said post.  Respondent No.1 was selected and  

his  appointment  was  approved by  the  District  Basic  Shiksha  

Adhikari on 09.09.2010 and appointment letter was issued on  

10.09.2010.  Based on the information obtained through RTI,  

the appellant made a representation dated 04.10.2010 to all  

the  concerned authorities  alleging  that  respondent  No.1  had  

obtained appointment by using forged experience certificates  

along  with  his  application.   The  appellant  also  submitted  

another complaint dated 15.10.2010 to the District Magistrate,  

Mahamaya Nagar.   Since no action was taken by any of  the  

authorities,  the  appellant  filed  Writ  Petition  No.70074/2010  

raising objections to the said appointment.  The learned Single  

Judge of the High Court, after hearing the parties, vide order  

dated 02.12.2010 directed the District Basic Shiksha Adhikari to  

pass a reasoned order within a period of six weeks.  The District  

Basic Shiksha Adhikari, vide order dated 3.02.2011, rejected the  

representation of the appellant.  Aggrieved by the said order,

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the appellant preferred Writ Appeal No.13537/2011, which was  

also dismissed, vide order dated 10.03.2011,  holding that the  

District  Basic  Shiksha  Adhikari  has  recorded  a  categorical  

finding that he inspected the original records and found that  

Respondent No.1 has requisite five years teaching experience.

4. In  the  meantime,  the  District  Magistrate  took  

cognizance of the appellant’s representations dated 04.10.2010  

and 15.10.2010 and directed the Additional District Magistrate  

to  conduct  an  inquiry  and  submit  a  report.   The  Additional  

District  Magistrate  submitted  his  report  stating  that  the  

experience certificates  filed  by Respondent  No.1  were  bogus  

and obtained with the collusion of the principal of respective  

institutions.  The District Magistrate forwarded the report to the  

Basic  Shiksha Adhikari,  vide order  dated 09.4.2012,  directing  

him to take appropriate action in the matter and report at the  

earliest.   Pursuant  to  the  finding  and  the  report,  the  

appointment of  Respondent No.1 was cancelled by the Basic  

Shiksha Adhikari on 16.04.2012.

5. Aggrieved  by  the  cancellation  of  appointment,  

Respondent No.1 filed Writ Petition No. 20297/2012 before the  

High  Court,  impleading  the  appellant  herein  as  one  of  the

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respondents.  The learned Single Judge of the High Court, vide  

order  dated  22.05.2012,  dismissed  the  writ  petition  on  the  

ground that appointment of respondent No.1 is contrary to the  

statutory  provisions  as  he  did  not  possess  the  relevant  

experience  certificates.   Aggrieved  by  the  above  order,  the  

respondent  No.1  herein,  preferred  a  Special  Appeal  No.  

1165/2012  before  the  High  Court  which  was  allowed by  the  

Division Bench by applying  the principle of res judicata.  Being  

aggrieved  by  the  order  of  the  Division  Bench,  the  appellant  

(respondent No.8 before the High Court) preferred this appeal  

by special leave assailing the correctness of the order of the  

Division Bench.

6. We have heard learned counsel appearing for both  

the parties.   

7. Learned  counsel  appearing  for  the  appellant  

contended that  respondent No.1 secured appointment to  the  

post of Head Master by committing fraud on the basis of forged  

documents and such an appointment cannot be upheld.  It was  

further  submitted  that  respondent  No.1’s  appointment  letter  

dated 09.09.2010 is conditional and in case of any concealment  

of  facts,  the  appointment  is  liable  to  be  cancelled.  It  was

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submitted that the appointment of respondent No.1 is contrary  

to the statutory provisions contained in Rule 4(2)(c) read with  

Rule  2(h)  of  the  U.P.  Recognized  Basic  Schools  (Junior  High  

Schools)  (Recruitment and Conditions of  Service of  Teachers)  

Rules, 1978 (hereinafter referred to as “the 1978 Rules”) which  

prescribes a minimum of five years of teaching experience.

8. Per contra, learned counsel appearing for respondent  

No.1 contended that once the issue regarding the validity of  

appointment has been adjudicated in the earlier writ  petition  

being Writ Petition No.13537/2011, the District Magistrate has  

no authority to question the experience of respondent No.1 and  

the subsequent writ petition was barred by the principle of res  

judicata.   It  was  further  submitted  that,  by  an  order  dated  

03.02.2011  passed  by  the  District  Basic  Shiksha  Adhikari,  a  

concurrent  finding  was  recorded  that  respondent  No.1  

possessed  requisite  five  years  experience  and  the  Division  

Bench  rightly  dismissed  the  writ  petition.   It  was  further  

submitted that no reasonable opportunity of hearing was given  

to respondent No.1 by the Additional District Magistrate.

9. In  the  year  1978,  the  Uttar  Pradesh  Junior  High  

School (Payment of Salaries of Teachers and other Employees)

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Act, 1978 was enacted to regulate the payment of salaries to  

teachers and other employees of junior high schools receiving  

aid out of the State Funds and to provide for matters connected  

therewith.  1978 Rules were framed by the State in exercise of  

the powers under sub-section (1) of Section 19 of the U.P. Basic  

Education  Act,  1972.  The  criterion  and  qualification  for  

appointment  of  teachers  and  headmasters  in  junior  high  

schools is governed by the provisions of the above Rules.  This  

amendment  was brought  vide Notification  dated 12.06.2008,  

whereby  Rule  4(1)  was  amended  and  B.Ed.  Degree  was  

included to satisfy the criteria of teachers training course.  Rule  

4(2)(c) was also amended bringing about five years of teaching  

experience in a recognized school for being appointed as the  

headmaster as against the earlier Rules which provide for only  

three years of teaching experience.

10. Admitted facts of the case are that respondent No.1  

was appointed on the post of Headmaster in Vidyapati Junior  

High School,  Mahamaya Nagar  after  approval  from Selection  

Committee and Basic Shiksha Adhikari vide appointment letter  

dated  10.09.2010.   The  core  issue  which  arise  for  our  

consideration  is  whether  respondent  No.1  produced

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bogus/forged experience certificates to secure employment to  

the post of Headmaster.  

11. Based on the complaint  made by the appellant  to  

the  District  Magistrate,  the  District  Magistrate  directed  

Additional District Magistrate to conduct an inquiry, pursuant to  

which the Additional District Magistrate conducted an inquiry  

and submitted his inquiry report on 31.03.2012.  On a perusal  

of the order passed by the District Magistrate dated 3.04.2012  

and the report of the Additional District Magistrate, it is seen  

that the Additional District Magistrate has conducted a detailed  

inquiry  and perused all  the  relevant  documents  viz.,  inquiry  

proceedings conducted by the District Basic Education Officer  

dated  03.02.2011  and  attendance  and  salary  registers  of  

various  colleges  from  whom  respondent  No.1  obtained  

experience certificates.  Respondent No.1 produced experience  

certificates from five schools to satisfy the mandatory norm of  

Rule  4(2)(c)  read  with  Rule  2(h)  of  the  1978  Rules  which  

prescribes a minimum of five years of teaching experience for  

appointment  on  the  said  post.   On  perusal  of  the  relevant  

records, the Additional District Magistrate noticed that in the  

registers  of  Mata Premlata Tiwari  Inter  College,  the name of

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respondent  No.1  was  shown  at  the  end  of  the  respective  

months.  The Additional District Magistrate noticed that even  

the  ink  and  handwriting  with  which  the  names  of  other  

teachers and respondent No.1 were written was found to be  

different.   The  salary  registers  produced  did  not  bear  the  

signatures  of  the  Headmaster  and  Salary  Clerk.   Similar  

disparities were noticed in the records of  B.M. Inter College.  

Upon perusal of those records, attendance register and salary  

registers of various schools, the Additional District Magistrate  

submitted his report opining that the first respondent obtained  

forged certificates  for  securing appointment.   The Additional  

District  Magistrate  also  observed  that  the  Basic  Education  

Officer did not thoroughly conduct the inquiry and, therefore,  

the said  report  of  District  Basic  Education Officer  cannot  be  

relied upon.  

12. Respondent  No.1  has  also  not  produced  any  

document  to  prove  that  his  appointment  in  the  above-said  

institutions  was  made  by  obtaining  prior  approval  of  the  

authorities mentioned under the Intermediate Education Act or  

on  the  recommendation  of  the  U.P.  Secondary  Education  

Services.  Without showing that the necessary procedures were

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complied with, the appointment of respondent No.1 cannot be  

said to be a valid appointment.

13. Referring  to  the  report  of  the  Additional  District  

Magistrate  in  Writ  Petition  No.  20297  of  2012,  the  learned  

Single Judge observed that the impugned order passed by the  

Basic Shiksha Adhikari cancelling the appointment of the first  

respondent is based on records and the report of the Additional  

District  Magistrate.   The learned Single  Judge,  while  dealing  

with the said writ petition, also examined the original records  

and also verified that the experience certificates obtained by  

respondent No.1 were bogus and based on appointments which  

were of no legal consequence and his appointment cannot be  

treated to be valid.

14. The Division Bench did not go into the merits of the  

matter,  but  dismissed  the  writ  appeal  mainly  applying  the  

principle of res judicata.   The Division Bench observed that the  

appellant  has  not  disclosed  the  dismissal  of  the  earlier  writ  

petition and also the Writ Appeal No. 13537 of 2011 and thus  

the second writ petition challenging the appointment is barred  

under  the  principles  of  res  judicata  to  challenge  the

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appointment of  respondent No.1.  As discussed earlier, from  

the materials on record, it emerges that respondent No.1 did  

not  possess  requisite  experience  of  five  years  and  his  

appointment is in contravention to Rule 4(2)(c) read with Rule  

2(h)  of  the  1978  Rules,  and  therefore,  the  appointment  of  

respondent No.1 is not valid in law and the earlier Writ Appeal  

No. 13537 of 2011 was dismissed mainly on the ground that  

the District Basic Education Officer has recorded a finding that  

respondent  No.1  has  the  requisite  five  years  teaching  

experience.   The  Additional  District  Magistrate,  as  noticed  

earlier, observed that the District Basic Education Officer did  

not thoroughly conduct the inquiry, and therefore, dismissal of  

the earlier writ appeal cannot be taken as res judicata.

15. When the appointment is  made  de hors  the rules,  

the same is a nullity.  In such an eventuality, the statutory bar  

like doctrine of  res judicata is  not attracted.   In the case of  

Meghmala & Ors. Vs.  G. Narasimha Reddy & Ors.1, this  

Court held as under:-

“From  the  above,  it  is  evident  that  even  in  judicial  

1  (2010) 8 SCC 383

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proceedings, once a fraud is proved, all advantages gained  by playing fraud can be taken away.  In such an eventuality  the questions of non-executing of the statutory remedies or  statutory bars like doctrine of res judicata are not attracted.  Suppression  of  any  material  fact/document  amounts  to  a  fraud on the court.  Every court has an inherent power to  recall  its  own  order  obtained  by  fraud  as  the  order  so  obtained is non est.”

Since respondent No.1 obtained appointment on the basis of  

bogus certificates, in our considered view, the principle of  res  

judicata will not be attracted to the case on hand.

16. Insofar  as  the  plea  of  respondent  No.1  that  no  

opportunity of hearing was afforded to him by the Additional  

District Magistrate, it is seen from the records that respondent  

No.1  himself  has  filed  a  representation  dated  29.09.2011  

before the Additional District Magistrate, which was considered  

by the Additional District Magistrate and we find no merit in the  

contention  of  respondent  No.1  that  there  was  violation  of  

principles of natural justice.

17. Since  the  appointment  of  respondent  No.1  is  

conditional that in the case of any concealment of facts, the  

approval is liable to be cancelled, the Basic Shiksha Adhikari  

rightly passed the order cancelling the appointment which was

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rightly upheld by the learned Single Judge.  The Division Bench  

was not right in setting aside the order of the learned Single  

Judge on the principles of res judicata and the impugned order  

of the Division Bench is liable to be set aside.

18. In  view  of  the  above,  the  order  passed  by  the  

Division Bench of High Court in Special Appeal No.1165 of 2012  

is set aside and the appeal is allowed.  The parties are left to  

bear their own costs.

……………………..J.                                                                           (V. Gopala Gowda)  

……………………..J.                                                                       (R. Banumathi)  

New Delhi; February 11, 2015