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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………. OF 2016 [Arising out of S.L.P. [C] No.8880/2011]

State of U.P. & Ors. … Appellants

Vs.

Ravindra Kumar Sharma & Ors. … Respondents

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted.

2. The question involved in the appeal is as to the right of the appellant  

to verify the disability certificates issued by the Medical Board under the  

provisions of the Persons with Disabilities (Equal Opportunities, Protection  

of Rights and Full Participation) Rules, 1996. The respondents applied for  

BTC training course under the physically handicapped category on the basis  

of  certificates issued under the aforesaid Rules.  It  was claimed that  they  

completed  the training and had been offered appointment  in  the primary

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schools run and managed by the State Government. Complaint was received  

from Bhartiya Viklang Sangh of illegal usurpation of the quota reserved for  

handicapped  persons  on  the  basis  of  fraudulently  procured  certificates  

without suffering from the disability certified under the Rules of 1996. The  

State Government issued an order dated 3.11.2009 making a provision for  

constitution  of  fresh  Medical  Board  in  order  to  verify  and  assess  the  

disability of the candidates. The candidates questioned communication dated  

15.7.2010 issued by the Director, State Council for Educational Research &  

Training  based  upon  the  G.O.  dated  3.11.2009 requiring  them to  appear  

before the Medical Board constituted in order to assess the disability. Out of  

the  234  candidates  selected  under  the   handicapped  category  on  being  

examined by the Medical Board it was found that 21% of the candidates  

were not handicapped.  

3. A Single Bench of the High Court of Allahabad vide judgment and  

order dated 31.8.2010 dismissed the writ application holding that under the  

Rule framed in exercise  of  the powers under sub-sections (1)  and (2)  of  

section 73 of the Persons with Disabilities (Equal Opportunities, Protection  

of Rights and Full Participation) Act, 1995, the general eligibility to apply  

for facilities, concessions and benefits admissible under the scheme of the  

Act is subject to such conditions as the State Government may impose and

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the State Government has imposed a condition in the order dated 3.11.2009  

of constitution of the Medical Board for verification of the disability. Even  

otherwise  under  the  rules  there  can  be  a  review  of  the  decision  upon  

representation  by  the  applicant  and  fresh  order  can  be  passed.  Thus  the  

certificate issued is not final.

4. On appeal  being preferred a  Division Bench of  the  High Court  of  

Allahabad by the impugned order has allowed the appeal and has held that  

while the certificate has been issued in accordance with the Rules of 1996,  

roving enquiry cannot be made until and unless fraud has been detected, it is  

not permissible to reopen medical certification carried out under the Rules of  

1996. However the High Court has directed that a physical verification may  

be made and if the candidate has not been issued certificate of disability or  

otherwise or that he does not suffer from any disability so certified which  

entitles him to such a certificate, in that event the candidate can be subjected  

to  fresh  medical  test  not  otherwise.  Accordingly  the  directions  by  the  

Government in order dated 3.11.2009 and by the Director on 15.7.2010 for  

physical verification be construed in the aforesaid manner.

5. It is apparent from Rules of 1996 that disability certificate is required  

to be issued by Medical Board.  It can issue permanent disability certificate  

or the Medical Board shall indicate the period of validity in the certificate in

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case where there is any  chance of variation in the degree of disability. In  

case of refusal of disability certificate an opportunity is required to be given  

to the applicant of being heard, and there can be a review by the Medical  

Board on representation by the applicant and Rules contains a provision to  

the  effect  that  the  certificate  issued  by  the  Medical  Board  shall  make  a  

person eligible to apply.  

6. In the facts of the instant case there was a serious complaint lodged by  

Viklang Sangh of illegal usurpation of the quota reserved for specially abled  

by large number of persons who were not in fact specially abled and have  

procured  certificates  fraudulently  from their  districts  under  the  Rules  of  

1996. On the basis of the said complaint Government has issued an order for  

the purpose of verification of such certificates issued by the Medical Board  

and certificates of 21% of selected candidates of handicapped category were  

found to be fraudulent. It is settled proposition of law that fraud vitiates and  

in such a case when large number of candidates have illegally usurped the  

reserved seats of the persons suffering from disability the action of State  

Government did not call for interference.  

7. In Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors. (2005) 7  

SCC 605, it was observed :

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“16. In  Lazarus Estates Ltd. v.  Beasley (1956) 1 All   ER 341, Lord Denning observed at QB pp. 712 and 713:  (All ER p. 345 C)

“No judgment of a court, no order of a minister,  can be allowed to stand if it has been obtained by  fraud. Fraud unravels everything.”

In  the  same  judgment  Lord  Parker,  L.J.  observed  that  fraud  vitiates  all  transactions  known  to  the  law  of  however  high  a  degree  of  solemnity.  (p.  722)  These  aspects were recently highlighted in  State of A.P. v.  T.  Suryachandra Rao (2005) 6 SCC 149.”

8. In Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 it was  

held thus:  

“15. x x x Fraud as is well known vitiates every solemn  act. Fraud and justice never dwell together.  16.  Fraud is a conduct either by letter or words, which  induces the other person or authority to take a definite  determinative stand as a response to the conduct of the  former either by word or letter. 17.   It  is  also  well  settled that  misrepresentation itself  amounts  to  fraud.  Indeed,  innocent  misrepresentation  may also give reason to claim relief against fraud.  18.  A fraudulent  misrepresentation is  called deceit  and  consists  in  leading  a  man  into  damage  by  wilfully  or  recklessly causing him to believe and act on falsehood. It  is a fraud in law if a party makes representations which  he  knows  to  be  false,  and  injury  ensues  therefrom  although  the  motive  from  which  the  representations  proceeded may not have been bad.  

x x x x x 23. An act of fraud on court is always viewed seriously. A  collusion or conspiracy with a view to deprive the rights  of  others  in  relation  to  a  property  would  render  the  transaction  void  ab  initio.  Fraud  and  deception  are  synonymous.

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x x x x x 25. Although in a given case a deception may not amount  to fraud, fraud is anathema to all equitable principles and  any  affair  tainted  with  fraud  cannot  be  perpetuated  or  saved  by  the  application  of  any  equitable  doctrine  including res judicata.

26. In Shrisht Dhawan v. Shaw Bros.  (1992) 1 SCC 534,  it has been held that: (SCC p. 553, para 20)

“20.  Fraud  and  collusion  vitiate  even  the  most  solemn  proceedings  in  any  civilized  system  of  jurisprudence. It is a concept descriptive of human  conduct.”

x x x x x 29. In  Chittaranjan  Das v.  Durgapore  Project  Ltd.   (1995) 99 CWN 897, it has been held: (Cal LJ p. 402,  paras 57-58)

“57.  Suppression  of  a  material  document  which  affects  the condition of  service of  the  petitioner,  would amount to fraud in such matters. Even the  principles of natural justice are not required to be  complied with in such a situation.

58. It is now well known that a fraud vitiates all  solemn acts. Thus, even if the date of birth of the  petitioner had been recorded in the service returns  on  the  basis  of  the  certificate  produced  by  the  petitioner,  the  same  is  not  sacrosanct  nor  the  respondent company would be bound thereby.”

9. This Court in Express Newspapers (P) Ltd.& Ors.  v. Union of India   

& Ors. (1986) 1 SCC 133 at para 119 has held thus:

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  “119. Fraud on power voids the order if it is not  exercised bona fide for the end design. There is a  distinction between exercise of power in good faith  and misuse in bad faith. The former arises when an  authority misuses its power in breach of law, say,  by taking into account bona fide, and with best of  intentions, some extraneous matters or by ignoring  relevant matters. That would render the impugned  act or order ultra vires. It would be a case of fraud  on powers. The misuse in bad faith arises when the  power is exercised for an improper motive, say, to  satisfy a private or personal grudge or for wreaking  vengeance of a Minister as in  S. Partap Singh v.  State  of  Punjab  AIR  1964  SC  72.  A power  is  exercised maliciously if its repository is motivated  by  personal  animosity  towards  those  who  are  directly affected by its exercise. Use of a power for  an ‘alien’ purpose other than the one for which the  power is conferred is mala fide use of that power.  Same is the position when an order is made for a  purpose other than that  which finds place in  the  order. The ulterior or alien purpose clearly speaks  of the misuse of the power and it was observed as  early  as  in  1904  by  Lord  Lindley  in  General   Assembly of Free Church of Scotland v.  Overtoun  (1904) AC 515, ‘that there is a condition implied in  this as well as in other instruments which create  powers, namely, that the powers shall be used bona  fide for the purpose for which they are conferred’.  It was said by Warrington, C.J. in  Short v.  Poole  Corpn. (1926) Ch 66, that:

‘No public body can be regarded as having  statutory authority to act in bad faith or from  corrupt motives, and any action purporting to  be of that body, but proved to be committed  in bad faith or from corrupt motives, would  certainly be held to be inoperative.’”

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10.      The Division Bench of the High Court has ignored and overlooked  

the  material  fact  that  verification  has  already been  done by the  Medical  

Board  and  it  has  been  found  that  certificates  of  21% were  fraudulently  

obtained. The High Court has issued a direction in the impugned order for  

physical verification of the candidate by the authorities and in case he does  

not suffer from disability so certified candidate can be subjected to fresh  

medical  test.  The  High  Court  has  overlooked  that  on  mere  physical  

verification it may not be possible to know various kinds of disabilities such  

as that of eyes, ear impairment etc. That can only be done by the medical  

examination and particularly when the High Court itself has observed that in  

case  there  is  genuine  suspicion  and  fraud  has  been  committed  medical  

certification can be reopened. Direction issued in this regard has not been  

questioned  by the  respondents  and in  fact  process  of  re-verification  was  

already over when High Court issued aforesaid directions.

11. In our considered opinion in the peculiar facts of this case of such a  

fraud  and  genuine  suspicion  raised  in  the  representation  lodged  by  the  

Viklang Sangh and when 21% of such certificates have been found to be  

fraudulently obtained there was no scope for the Division Bench to interfere  

and issue order to perpetuate fraud, writ is to be declined in such a scenario  

and no equity can be claimed by the respondents.

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12. In the circumstance we set aside the impugned judgment and order  

passed  by  the  Division  Bench  of  the  High  Court  and  dismiss  the  writ  

petition. However before taking any action against the individuals they shall  

be issued show cause in the matter and thereafter decision will be rendered  

in accordance with law. Let this exercise be completed within a period of  

four months. The appeal is allowed to the aforesaid extent.

………………………..J. (M.Y. Eqbal)

New Delhi; …………………….J. February 3, 2016. (Arun Mishra)