KRISHNA HARE GAURversusVINOD KUMAR TYAGI & ORS.

                    [2015]2S.C.R.153


                  KRISHNA HARE GAUR                            A
                              V.
              VI NOD KUMAR TYAGI &ORS.
              (Civil Appeal No. 1755 of 2015)
                    FEBRUARY 11, 2015
                                                                B
     [V. GOPALA GOWDA AND R. BANUMATHI, JJ.].
     Res judicata - Principle of- Allegation that respondent
no. 1 obtained appointment to the post of headmaster by
using forged experience certificates along with application-
Challenge to, by the appellant-applicant- Dismissal of writ C
petition as also writ appeal- Subsequently, on basis of the
report by the District Magistrate, cancellation of respondent
no. 1's appointment - Writ petition by respondent no. 1 -
Dismissal by High Court- However, Special appeal allowed
by the Division Bench holding that appellant's claim barred
                                                                 0
by the principle of res judicata - On appeal, held: When
appointment is made dehors the Rules, the same is a nullity
- In such an eventuality, the statutory bar like doctrine of res
judicata is not attracted- Since respondent no.1 obtained
appointment on the basis of bogus certificates the principle E
of res judicata not attracted- Order passed by the Division
Bench set aside- UP Recognized Basic Schools (Junior
High Schools) (Recruitment and Conditions of Service of
 Teachers) Rules, 1978- r. 4(2)(c) .
                                                                F
    Allowing the appeal, the Court
     HELD: 1.1 The Division Bench observed that the
appellant did not disclose the dismissal of the earlier writ
petition and also the Writ Appeal and thus, the second G
writ petition challenging the appointment is barred under
the principles of res judicata to c.hallenge the appointment
of respondent No.1. From the materials on record, it
emerges that respondent No.1 did not possess requisite
                             153                                H
154        SUPREMECOURT REPORTS                [2015] 2 S.C.R.


A experience of five years and his appointment is in
  contravention to 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 and therefore, the appointment of
8 respondent No.1 is not valid in law and the earlier Writ
  Appeal was dismissed mainly on the ground that the
  District Basic Education Officer recorded a finding that
  respondent No.1 has the requisite five years teaching
  experience. The Additional District Magistrate observed
C 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.
  [Para 14] [160-0-H; 161-A]
 o      1.2 When the appointment is made dehors the rules,
   the same is a nullity. In such an eventuality, the statutory
   bar like doctrine of res judicata is not attracted. Since
   respondent No.1 obtained appointment on the basis of
   bogus certificates the principle of res judicata will not be
 E attracted to the instant case. 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 rightly
 F upheld by the Single Judge. The Division Bench was
   not right in setting aside the order of the Single Judge
   on the principles of res judicata and thus, the impugned
   order of the Division Bench is set aside. [Paras 15, 17]
   [161-A, E, G-H; 162-A-B]
 G
           Meghmala & Ors. Vs. G. Narasimha Reddy & Ors. 2010
      (10) SCR 47: (2010) 8 SCC 383- referred to.
                       Case Law Reference

 H        2010 (10) SCR 47     Referred to.       Para 15
     KRISHNA HARE GAUR v. VI NOD KUMAR TYAGI                  155



   CIVIL APPE LLATE JURISDICTION: Civil Appeal No. A
1755 of 2015

    From the Judgment and Order dated 15.05.2014 of the
High Court of Judicature at Allahabad in Special Appeal No.
1165 of 2012                                                     B
    R. Balasubramanium, Jitin Chaturvedi, Mrinmayee Sahu
for the Appellant.

    S. R. Singh, M. R. Shamshad , Rajat Singh, Aditya
Samaddar,Avnish Singh,AnkurYadav,Asha Gopalan Nair for           C
the Respondents.

    The Judgment of the Court was delivered by

    R. BANUMATHI, J. 1. Leave granted.
                                                                 D
     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.1165/20 12 filed by
respondent No.1 observing that the appellant's claim is barred
by the principle of res judicata.                                E

     3. Brief facts which led to the filing of this appeal are as
under:- Vidyapati Junior High Schoo l , Jageshwar,
Murshangate, Mahamaya Nagar, District Hathras, U.P., which
is an aided and recognized Junior High School, issued an
advertisement on 28.07.201 0 in the daily newspapers inviting F
applications from the eligible candidates for appointment on
the post of Headmaster. Krishna Hare Gaur, the appellant along
with Vi nod Kumar Tyagi, respondent No.1 and several other
persons applied for the said post. Respondent No.1 was G
selected and his appointment was approved by the District
Basic ShikshaAdhikari 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 H
156        SUPREME COURT REPORTS                  [2015}2 S.C.R.


A 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
B 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
C dated 3.02.2011, rejected the representation of the appellant.
  Aggrieved by the said order, 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
D 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
E 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
 F institutions. The District Magistrate forwarded the report to the
   Basic ShikshaAdhikari, 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
 G 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
 H respondents. The learned Single Judge of the High Court, vide
      KRISHNA HARE GAUR v. VI NOD KUMAR TYAGI                   157
                   [R. BANUMATHI, J.]

order dated 22.05.2012, dismissed the writ petition on the A
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 8
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.                                                C

     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       0
  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       E
 facts, the appointment is liable to be cancelled. It was
. 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)      F
  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 G
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
                                                                H
158       SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A 03.02.2011 passed by the District Basic Shiksha Adhikari, a
  concurrent find ing 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
B 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)Act,
  1978 was enacted to regulate the payment of salaries to
c 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
D 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
E 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 y_ears of teaching experience.
 F      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 ShikshaAdhikari vide appointment letter
   dated 10.09.2010 . The core issue which arise for our
 G consideration is whether respondent No.1 produced 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
 H District Magistrate to conduct an inquiry, pursuant to which the
     KRISHNA HARE GAUR v. VI NOD KUMAR TYAGI                    159
                 [R. BANUMATHI, J.]

Additional District Magistrate conducted an inquiry and             A
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        8
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
experi~nce certificates from five schools to satisfy the            C
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    D
 name of 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           E
 signatures of the Headmaster and Salary Clerk. Similar
disparities were noticed in the records of S.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    F
 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      G
 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                      H
160         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A recommendation of the U.P. Secondary Education Services.
  Without showing that the necessary procedures were complied
  with, the appointment of respondent No.1 cannot be said to
  be a valid appointment.
B       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
c 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
D 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
E     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
      appointment of respondent No.1. As discussed earlier, from
F     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
G     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
H     not thoroughly conduct the inquiry, and therefore, dismissal of
     KRISHNA HARE GAUR v. VI NOD KUMAR TYAGI                    161
                 [R. BANUMATHI, J.]

the earlier writ appeal cannot be taken as res judicata.         A
    15. When the appointment is made dehors 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 8
Court held as under:-
         "From the above, it is evident that even in judicial
    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         c
    statutory remedies or statutory bars·like doctrine of
    res judicata are not attracted . Suppression of any
    material facUdocument 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         D
    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 .        E

     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 F
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 G
conditional that in the case of any concealment of facts, the
approval is liable to be cancelled , the Basic ShikshaAdhikari
rightly passed the order cancelling the appointment which was
, (201 o) 8 sec 383                                               H
162          SUPREME COURT REPORTS                  [2015] 2 S.C.R.

A 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.
B          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.

      Nidhi Jain                                       Appeal allowed