KHUBRAMversusDALBIR SINGH & ORS.

                         [2015] 5 S.C.R. 350


A                            KHUBRAM

                                   v.
                       DALBIR SINGH & ORS.
B                  (Civil Appeal No. 2734 of 2012)

                           APRIL 29, 2015

        [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
C                SHIVA KIRTI SINGH, JJ.]

            Service law: Appointment- Post of Chief Inspector in
    Haryana Roadways - KR appointed - DS challenged
    appointment of KR- Writ petition allowed on the ground that
o   KR did not meet experience certificate -Appointment of KR
    quashed - Direction to appoint DS from retrospective effect
    - MP challenged the said decision on the ground that he
    was one amongst the selected candidates and has better
    claim for appointment than OS and therefore, MP should be
E   appointed in place of OS - Held: The appellant-KR 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 requisite working
    experience - As regard OS, he was only an applicant and
F   was not among the selected 14 candidates - In that view of
    the matter, High Court was misled to issue a direction for his
    appointment and that too from an earlier date when KR was
    appointed, and with consequential benefits- Such directions
G   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 DS set aside - However, the
    other prayer made on behalf of MP that authorities be directed
    to offer him appointment or consider his claim cannot be
H   allowed on account of the fact that writ petition of MP filed in
                                 350
         KHUB RAM v. DALBIR SINGH & ORS.                      351


1991 was decided against him and had attained finality- A
His claim thus suffered 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, no relief
can be granted - However in view of inaction of the State B
Government after becoming aware that KR lacked essential
qualification and obtained job by fraud, State is directed to
pay compensation of Rs.3 lacs to MP and further deposit
Rs.1 lac with Mediation Centre - Compensation.
                                                               c
       Disposing of the appeals, the Court

       HELD: 1. KR is not entitled to hold the office which
he obtained by submitting questionable certificates of
experience and more so when he lacked the essential            D
qualification of working experience in a Government/
Semi-government/Public Sector Undertaking. MP has
shown from the pleadings that while he was at serial no.9
of the Select List containing 14 names prepared for
appointment to 5 advertised posts, first respondent-OS         E
did not find any place in such Select List. This fact
escaped the attention of Single Judge as well as Division
Bench possibly because there was no rival claimant to
point out such shortcoming in the case of writ petitioner-     F
OS. There is no dispute that first respondent-OS was
only an applicant and was not among the selected 14
candidates. In 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 KR was appointed,           G
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
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352       SUPREME COURT REPORTS                [201515 S.C.R.


A aside. To that extent, appeal of MP has to be allowed.
  However, the other prayer made on behalf of MP that
  authorities be directed to offer him appointment or
  consider his claim cannot be allowed on account of the
  fact that writ petition of MP filed in 1991 was decided
B against him. 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. MP chose not to appeal against that order nor
C he challenged the appointment of any of the persons
  selected and appointed. His claim thus suffered 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
D preparation of the Select List, 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. MP is presently
E about 50 years of age and has not crossed the age of
  superannuation and is still working on another post with
  Haryana Roadways. Hence he is not granted any further
  relief and his appeal is allowed only in part as a result
  whereof the direction to appoint OS is set aside. [paras
F 10, 11, 15] [360-B-F; 362-G-H; 363-A-D]

      State of Mysore v. K. N. Chandrasekhara AIR 1965 SC
      532; R.S. Mittal v. Union oflndia 1995 (2) SCR 1127 :
      1995 Supp. (2) SCC 230 - referred to.
G
           .2. A disturbing feature of this case is that even
    after notice of the writ petition when the State of Haryana
    became aware that KR lacked essential qualification and
    his certificates were unreliable, it took no action to undo
H
        KHUB RAM v. DALBIR SINGH & ORS.                 353


the ill effects of fraud by taking any action against KR. A
As a result KR 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 no relief B
is granted to MP by ordering for his appointment, the
State of Haryana is directed to compensate MP by paying
him Rs.3 Lacs. A further amount of Rs.1 lac should also
be deposited by the State of Haryana with the Supreme C
Court Mediation Centre. [para 16] [363-D-G]

  Jiten Kumar Sahoo v. Mahanadi Coalfields Ltd. 2011
  (1) scR 572 : (2011) 11 sec 520; Buddhi Nath
  Chaudhary v. Abahi Kumar 2001 (2) SCR 18 : (2001)
                                                         D
  3 SCC 328; Meghmala v. G. Narasimha Reddy 2010
  (10) SCR 47 : (2010) 8 SCC 383; Central Bank of
  India v. Madhulika Guruprasad Dahir 2008 (11)
   SCR 319: (2008) 13SCC170 - referred to.

                   Case Law Reference
                                                         E

2011 (1) SCR 572          Referred to.      Para 5

2001 (2) SCR 18           Referred to.      Para 5
                                                         F
2010 (10) SCR 47          Relied on.        Para 10

AIR 1965 SC 532           Referred to.      Para 13

1995 (2) SCR 1127         Referred to.      Para 13
                                                         G
2008 (11) SCR 319         Referred to.      Para 14

      CIVILAPPELLATE JURISDICTION: Civil Appeal No.
2734 of2012
                                                         H
354        SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A           From the Judgment and Order dated 09.11.2010 of the
      High Court of Punjab & Haryana at Chandigarh in LPA No.
      1510 of 2010

            WITH
B
      C.A. No. 4097 of 2015.

        P. N. Misra, Paramjit Singh Patwalia, Vikas Singh,
  Aruna Bhardwaj,AAG, TarjeetSingh, Satyendra Kumar,Ashok
C K. Mahajan, Deepeika Kalia, Kapish Seth, Ajay Sharma, Dr.
  Monica Gusain, Sanjeev Tayal (for Kamal Mohan Gupta),
  Naresh Bakshi, for the appearing parties.

            The Judgment of the Court was delivered by

D          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 Haryan9--Roadways to which the appellant - Khub Ram
  was iniuafl(clppointed in the year 1990 pursuant to his selection
E 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 Court. That writ petition was allowed on
F 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
G 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
H
          KHUB RAM v. DALBIR SINGH & ORS.                            355
               [SHIVA KIRT! SINGH, J.]

than respondent - Dalbir Singh and hence order should be A
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) B
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           c
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,        D
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 possess
the requisite experience and the two certificates submitted by        E
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        F
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            G
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
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356       SUPREME COURT REPORTS                   (2015] 5 S.C.R.


A 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
B '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
C 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
0
  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
E 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
F 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
G 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
H
         KHUB RAM v. DALBIR SINGH & ORS.                     357
              [SHIVA KIRTI SINGH, J.]

has been promoted as General Manager in December 2014. A
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. B
(2011) 11 SCC 520 and in the case of Budd hi Nath Chaudhary
v. Abahi Kumar (2001) 3 SCC 328.
                                   -
        6. Learned senior counsel Mr. Misra also submitted that
experience in private roadways fleet would meet the C
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
                                                                0
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 E
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 asAnnexure P-2.
                                                               F
        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 G
experience in paragraph 2 of the writ petition it was claimed
that the experience required was of working in a Government
or semi-government dep':lrtment and such claim was admitted
by the State, second respondent in para 2 of its reply. It was
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358       SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A also shown thatthe 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 untrustworthy because of apparent conflict and
B 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
C 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
D 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
E 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
F 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
G 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 inAnnexure
  P-2 is an unreliable document inasmuch as the date
  06.06.1989 is clearly a subsequent correction without any
H
          KHUB RAM v. DALBIR SINGH & ORS.                           359
               [SHIVA KIRTI SINGH, J.]

authorization by way of counter signature and so is the case . A
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 B
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 C
of 05.06.1989. This appears to have been done atthe 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
05.06.1 Q89. Had this been the case, there was no occasion D
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           E
 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      F
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 b~ copy of
the corrected certificate freshly issued on 06.06.1989. Such
conduct of the appellant in our considered view disentitles the     G
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)          H
360       SUPREME COURT REPORTS                  [2015] 5 S.C.R.


A 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-
s 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
C 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
D 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
E 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 Bench possibly because there was
F 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
G 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
H
         KHUB RAM v. DALBIR SINGH & ORS.                       361
              [SHIVA KIRTI SINGH, J.]

given liberty to file an application for early hearing after A
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 B
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. ChandrasekharaAIR 1965 SC 532 and R.S. Mittal v. Union C
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
                                                                  0
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.                        E

          14. Learned counsel for the State of Rajasthan has
submitted that Khub Ram was ineligible for want of a req1_1is:te
experience and hence by working on the post as claimed by
him for subsequent two years he cannot get the required F
eligibility. He placed reliance upon a judgment of this Court in
the case of Central Bank of India v. Madhulika Guruprasad
Dahir (2008) 13SCC170. 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 G
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
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362         SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A 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
B 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
C 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
D     14 candidates. In 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
E     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
F     offer him appointment or consider his claim, in our conside~ed
      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.17600of1991.
      Rightly or wrongly the High Court held that he could not claim
G     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.
H     His claim thus suffers from res judicata as well as
         KHUB RAM v. DALBIR SINGH & ORS.                           363
              [SHIVA KIRTI SINGH, J.]

acquiescence and estoppel. In that view of the matter and A
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 B
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 Haryana Roadways. That in our opinion, will C
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 respon,dent - Dalbir Singh is set aside.
                                                                    D
        16. A disturbing feature of this ca~e 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        E
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          F
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      G
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     H
364          SUPREME COURT REPORTS                  [2015] 5 S.C.R.



A     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.

B            17.Asdiscussed above, Civil Appeal No.2734 of2012
      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.

C     Devika Gujral                                 Appeal disposed of.