2007 Supreme(SC) 171

2007(2) Supreme 252
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. AR. Lakshmanan and Altamas Kabir, JJ.
Deepa Gourang Murdeshwar Katre—Appellant
versus
The Principal, V.A.V. College of Arts & Ors.—Respondents
Civil Appeal No. 744 of 2007
(Arising out of SLP (C) No. 22356-22358 of 2005)
Decided on 13-2-2007
Counsel for the Parties :
For the Appellant : Gaurav Agrawal, Advocate.
For the Respondents : Ravindra K. Adsure, Gautam Godra, Sunil Kumar Verma and Prashant Kumar, Advocates.

IMPORTANT POINT
When fraud was clear on the fact of the record, the High Court erred in law in dismissing the writ petition as the High Court was misled by incorrect representation made by the respondent at the time of hearing of the writ petition and the review petition.

Headnote:(i) SERVICE LAW—Appointments—Constitution of India—Articles 226, 136—High Court misled by fraudulent representations made by the University at the time of hearing of writ petition and the review petition—Appellant applied for appointment in respondent’s college on the post of English Lecturer—Appellant was duly interviewed by the local selection committee and was appointed as full time lecturer in 1993 on temporary basis—College advertised a number of vacant posts and one of the posts was of English Lecturer—Post was reserved for Scheduled Caste candidate—As no backward class candidate applied for the post, three general category candidates applied but appellant was selected on 11-7-1994—She was appointed as full time Lecturer in the college for one academic year—By way of Government Resolution dated 19-1-1995, Government took a decision that in all Government-aided colleges, reserved post of a Lecturer should be advertised for five years—Therefore, in the 6th year, an advertisement should be issued with interchangeability clause and only if no eligible backward candidate is available, the post should be de-reserved—University implemented the said decision—No candidate from the reserved category was available for six years—Appellant continued on the temporary basis year to year—Appellant filed a writ petition for direction for confirmation of her services—Dismissal of writ petition in view of misrepresentations made by the University—Whether orders passed by the High Court are sustainable—(No)—University directed to regularize services of appellant.

       Held : The High Court, in our opinion, has erred in law rejecting the writ petition without considering the merits of the matter though the merits of the matter were specifically argued by the appellant and the mis-representations made by the University were brought to the notice of the High Court. It is not in dispute that the appellant has been in service of the respondent-College for the last 12 years. No candidate from the reserved category was available for six years. The appellant continued on the temporary basis year to year and hence it is a fit case where the appellant should be regularized on this post after de-reserving the same and if the appellant is now thrown out, the appellant would be age barred for any other service. We are of the opinion that the case on hand is a fit case for interference by this Court in exercise of the jurisdiction under Art. 136 of the Constitution of India in view of the misrepresentations made by the respondent-University and considering the long service rendered by the appellant to the respondent-College at a time when no other candidate was willing to take the assignment.(Paras 26 to 28)

       It is well settled by catena of decisions of this Court that if a case of fraud or mis-representation of such a dimension is discovered that the very basis of the order passed by a Court of law is affected, the Court can recall its order. The power to recall an order founded upon fraud and mis-representation is an inherent power of the Court. The present case is one such instance where the High Court has mislead by incorrect representations made by the University at the time of hearing of the writ petition and the review petition. The question was whether the post occupied by the appellant was entitled to be de-reserved as for six years no backward class candidate was available.(Paras 30 and 31)

       The records also reveal that the interviews for the post of English Lecturer pursuant to the 6th advertisement were made on 5.7.1999 and no candidate belonging to the backward class turned up for interview. The University was fully aware of this as the University had on 1.11.1999 accepted the non-availability report. However, it mislead the Review Bench of the High Court by sating that no interviews were held. The review order dated 5.5.2005 was totally vitiated due to fraud which compel the appellant to file a fresh writ petition challenging the order of the University of Bombay calling for the 6th advertisement. However, the High Court by the impugned order dated 7.8.2005 dismissed the writ petition by relying on the dismissal of the earlier writ petition and review petition without appreciating that the previous orders had been founded upon fraudulent mis-representations made by the University and the said orders were liable to be recalled. When fraud was clear on the fact of the record, the High Court erred in law in dismissing the writ petition of the appellant.(Paras 32 and 33)

       (ii) Constitution of India—Article 226—Writ petition—Dismissal on basis of false statements made by opp. party—Review petition—If a case of fraud or mis-representation of such a dimension is discovered that the very basis of the order passed by a Court of law is affected, the Court can recall its order—Power to recall an order founded upon fraud and mis-representation is an inherent power of Court.