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CM APPL. No.427/2015 in W.P.(C) 14097-100/2005
HIGH COURT OF DELHI
Date of hearing & Order: January 27, 2015.
CM APPL. No. 427/2015 In W.P.(C) 14097-100/2005
DR. RAJENDRA KUMAR & ORS. .... Petitioners
Through: Ms. Usha Mann & Ms. Vijayata M. Bhalla, Advocates
HIGH COURT OF DELHI
Date of hearing & Order: January 27, 2015.
CM APPL. No. 427/2015 In W.P.(C) 14097-100/2005
DR. RAJENDRA KUMAR & ORS. .... Petitioners
Through: Ms. Usha Mann & Ms. Vijayata M. Bhalla, Advocates
VERSUS
THE GOVT. OF NCT OF DELHI ..... Respondent
Through: None.
Through: None.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA KAILASH GAMBHIR, J. (ORAL)
CM APPL. No. 428/2015 (Condonation of Delay)
By this application filed under Section 5 of the Limitation Act read with Section 151 CPC, the applicant seeks condonation of delay of 20 days in re-filing the application. For the reason stated in the application, the same is allowed and the delay of 20 days in re-filing the application is condoned.
Application stands disposed of.
By this application filed under Articles 215 & 226 of the
Constitution of India read with Section 151 C.P.C., the applicant seeks to
2015:DHC:801-DB recall and amend the order dated 11.10.2006.
The grievance raised by the applicant in the present application is that on account of the fraud played by the petitioners, they succeeded in securing an order dated 11.10.2006 from this Court whereby this Court while setting aside the order of the learned Tribunal directed the respondent to consider the case of the petitioners for promotion to the post of Assistant Directors in their respective disciplines, duly taking into account the service rendered by them as Senior Scientific Officers (in short ‘SSO’), from the dates of their respective appointment on deputation for the purpose of fulfilling the condition of 5 years service as
SSO for the post of Assistant Directors. This Court also directed that these petitioners be considered for notional promotion to the post of
Assistant Directors, falling vacant in their respective discipline, with the grant of consequential benefits from the date they have been discharging the functions of Assistant Directors.
As per the applicant, these petitioners are junior to him but they got the benefits of the order dated 11.10.2006 passed by this Court pursuant to which these petitioners were given notional promotion on the post of
Assistant Directors vide order dated 03.10.2011.
Ms. Usha Mann, the learned counsel for the applicant vehemently submits that the applicant was not a party to the present writ petition being Writ Petition (C) No. 14097-100/2005 and therefore, he had no opportunity to refute the claim of these petitioners. She also submits that the applicant acquired locus standi after actual exercise of granting notional promotion was carried out by respondent No.1 on 03.10.2011 and the final combined seniority list of Assistant Directors was declared on 19.01.2012. She further submits that these petitioners played fraud upon this Court by concealing material facts regarding their initial deputation period of one year not being legally extended under the rules and stating wrong and misconceived facts that they rendered continuous services in the regular Grade of SSO and were discharging the duty of
Assistant Directors for the last two and a half years. She also submits that even the respondent failed to place on record all the material facts relating to service/ appointment of these petitioners in order to help them and in this manner both the parties succeeded in misleading the Court. She also argued that it is a settled legal preposition of law that any
HON'BLE MR. JUSTICE I.S.MEHTA KAILASH GAMBHIR, J. (ORAL)
CM APPL. No. 428/2015 (Condonation of Delay)
By this application filed under Section 5 of the Limitation Act read with Section 151 CPC, the applicant seeks condonation of delay of 20 days in re-filing the application. For the reason stated in the application, the same is allowed and the delay of 20 days in re-filing the application is condoned.
Application stands disposed of.
By this application filed under Articles 215 & 226 of the
Constitution of India read with Section 151 C.P.C., the applicant seeks to
2015:DHC:801-DB recall and amend the order dated 11.10.2006.
The grievance raised by the applicant in the present application is that on account of the fraud played by the petitioners, they succeeded in securing an order dated 11.10.2006 from this Court whereby this Court while setting aside the order of the learned Tribunal directed the respondent to consider the case of the petitioners for promotion to the post of Assistant Directors in their respective disciplines, duly taking into account the service rendered by them as Senior Scientific Officers (in short ‘SSO’), from the dates of their respective appointment on deputation for the purpose of fulfilling the condition of 5 years service as
SSO for the post of Assistant Directors. This Court also directed that these petitioners be considered for notional promotion to the post of
Assistant Directors, falling vacant in their respective discipline, with the grant of consequential benefits from the date they have been discharging the functions of Assistant Directors.
As per the applicant, these petitioners are junior to him but they got the benefits of the order dated 11.10.2006 passed by this Court pursuant to which these petitioners were given notional promotion on the post of
Assistant Directors vide order dated 03.10.2011.
Ms. Usha Mann, the learned counsel for the applicant vehemently submits that the applicant was not a party to the present writ petition being Writ Petition (C) No. 14097-100/2005 and therefore, he had no opportunity to refute the claim of these petitioners. She also submits that the applicant acquired locus standi after actual exercise of granting notional promotion was carried out by respondent No.1 on 03.10.2011 and the final combined seniority list of Assistant Directors was declared on 19.01.2012. She further submits that these petitioners played fraud upon this Court by concealing material facts regarding their initial deputation period of one year not being legally extended under the rules and stating wrong and misconceived facts that they rendered continuous services in the regular Grade of SSO and were discharging the duty of
Assistant Directors for the last two and a half years. She also submits that even the respondent failed to place on record all the material facts relating to service/ appointment of these petitioners in order to help them and in this manner both the parties succeeded in misleading the Court. She also argued that it is a settled legal preposition of law that any
JUDGMENT
, order or decree obtained by playing fraud on the court is a nullity and non- est in the eyes of law, and therefore, the applicant has every legal right to seek justice in the matter by placing on record the correct facts and to expose the petitioners for playing fraud on the court by misleading and misrepresenting the facts.
We have heard the learned counsel for the applicant at considerable length and have given our conscious consideration to the arguments advanced by her.
As per own case of the applicant, the notional promotion was granted to the petitioners by respondent No.1 on 03.10.2011 in compliance with the direction given by this court vide order dated
11.10.2006 and the final combined seniority list of Assistant Directors was declared on 19.01.2012. This combined final seniority list was challenged by the applicant in Original Application (in short ‘OA’)
No.261/2012 before the learned Tribunal and the said OA was dismissed by the learned Tribunal vide order dated 11.09.2013. This order of the learned Tribunal was challenged by the applicant herein before this Court in W.P.(C) No.346/2014. The said Writ Petition preferred by the applicant was also dismissed vide order dated 26.09.2014. In para 18, the
Division Bench of this Court observed that the dates of promotion prior to
11.02.2009, assigned to the private respondents, was based on the previous ruling of this Court in Dr. Rajendra Kumar and Ors. v.
GNCTD of Delhi, W.P.C 14097-14100/2005 which was affirmed by the
Supreme Court. The Bench further observed that having regard to the law declared by the Supreme Court- noticed above- which was in effect the basis of the reasoning in Dr. Rajendra Kumar (supra), it cannot be held that such ante- dating was either arbitrary or whimsical. The Bench further observed that the petitioner (the applicant herein) could not have claimed any right over and above the private respondents, who entered
FSL as deputationists in the lower grade of SSO, and were later promoted in accordance with the Rules. For better appreciation, para 18 of the judgment is reproduced as under:
“18. The records of this case reveal that the dates of promotion prior to 11.02.2009, assigned to the private respondents, were on the basis of the previous ruling of this
Court in Dr. Rajendra Kumar (supra) which was affirmed by the
Supreme Court. This was done on 03.10.2011, when the official respondents, while implementing the judgment of this Court in
W.P.(C) 14097-14100/2005, granted notional promotions to the private respondents in the post of Additional Directors on dates prior to the actual dates of promotion. Having regard to the law declared by the Supreme Court – noticed above- which was in effect the basis of the reasoning in Dr. Rajendra Kumar (supra), it cannot be held that such ante-dating was either arbitrary or whimsical. This court also notes that there is no direct recruit quota per se, provided by the 1998 Rules; rather, it can be resorted to failing other methods, including promotion and deputation. Such being the case, the Petitioner could not have claimed any right over and above the private respondents, who entered FSL as deputationists in the lower grade of SSO, and were later promoted in accordance with the Rules. The assignment of prior dates was necessary to ensure justice to them, for the simple reason that FSL earlier refused to consider their service prior to absorption, for purpose of promotion to
Assistant Director.”
While addressing the arguments in the present application, the learned counsel for the applicant has fairly admitted that neither before the learned Tribunal nor before the Division Bench of this Court, the plea of fraud on the part of the petitioners, was raised by the applicant. By this application, the applicant seeks to challenge the order dated 11.10.2006 passed by this Court, which has already attained finality after being upheld by the Supreme Court. There is no dispute to the legal preposition that the fraud vitiates even the most solemn transaction and even an innocent misrepresentation may give reason to give relief against fraud and that fraud is an anathema to all equitable principles therefore, such a plea can be raised in any Court at any stage or in any collateral proceeding, but at the same time the party feeling aggrieved by such fraud shall also act with all promptness and if it remains complacent and fails to approach the Court within a reasonable time, it shall be deemed to have waived his right. Further the Courts entertaining the plea of fraud, at any belated stage, have to be conscious to examine whether the plea of fraud raised by the party is based on some strong foundation to satisfy itself that the fraud played by the other party is writ large on the very face of it.
In the facts of the present case, the applicant has raised the plea of fraud on the part of the petitioners neither in OA No.261/2012 nor in Writ
Court being W.P.(C) No. 346/2014 filed by him and having not succeeded before the learned Tribunal and before this Court, the applicant has taken this route of challenging the order which was passed by this
Court almost nine years back i.e. on 11.10.2006. As already stated above, this order has already attained finality after the dismissal of SLP preferred by the respondent. In the background of these facts, we do not find any tangible reason to entertain the present application.
In view of the above discussion, we find no merit in the present application and the same is accordingly dismissed.
KAILASH GAMBHIR, J I.S.MEHTA, J JANUARY 27, 2015 v
We have heard the learned counsel for the applicant at considerable length and have given our conscious consideration to the arguments advanced by her.
As per own case of the applicant, the notional promotion was granted to the petitioners by respondent No.1 on 03.10.2011 in compliance with the direction given by this court vide order dated
11.10.2006 and the final combined seniority list of Assistant Directors was declared on 19.01.2012. This combined final seniority list was challenged by the applicant in Original Application (in short ‘OA’)
No.261/2012 before the learned Tribunal and the said OA was dismissed by the learned Tribunal vide order dated 11.09.2013. This order of the learned Tribunal was challenged by the applicant herein before this Court in W.P.(C) No.346/2014. The said Writ Petition preferred by the applicant was also dismissed vide order dated 26.09.2014. In para 18, the
Division Bench of this Court observed that the dates of promotion prior to
11.02.2009, assigned to the private respondents, was based on the previous ruling of this Court in Dr. Rajendra Kumar and Ors. v.
GNCTD of Delhi, W.P.C 14097-14100/2005 which was affirmed by the
Supreme Court. The Bench further observed that having regard to the law declared by the Supreme Court- noticed above- which was in effect the basis of the reasoning in Dr. Rajendra Kumar (supra), it cannot be held that such ante- dating was either arbitrary or whimsical. The Bench further observed that the petitioner (the applicant herein) could not have claimed any right over and above the private respondents, who entered
FSL as deputationists in the lower grade of SSO, and were later promoted in accordance with the Rules. For better appreciation, para 18 of the judgment is reproduced as under:
“18. The records of this case reveal that the dates of promotion prior to 11.02.2009, assigned to the private respondents, were on the basis of the previous ruling of this
Court in Dr. Rajendra Kumar (supra) which was affirmed by the
Supreme Court. This was done on 03.10.2011, when the official respondents, while implementing the judgment of this Court in
W.P.(C) 14097-14100/2005, granted notional promotions to the private respondents in the post of Additional Directors on dates prior to the actual dates of promotion. Having regard to the law declared by the Supreme Court – noticed above- which was in effect the basis of the reasoning in Dr. Rajendra Kumar (supra), it cannot be held that such ante-dating was either arbitrary or whimsical. This court also notes that there is no direct recruit quota per se, provided by the 1998 Rules; rather, it can be resorted to failing other methods, including promotion and deputation. Such being the case, the Petitioner could not have claimed any right over and above the private respondents, who entered FSL as deputationists in the lower grade of SSO, and were later promoted in accordance with the Rules. The assignment of prior dates was necessary to ensure justice to them, for the simple reason that FSL earlier refused to consider their service prior to absorption, for purpose of promotion to
Assistant Director.”
While addressing the arguments in the present application, the learned counsel for the applicant has fairly admitted that neither before the learned Tribunal nor before the Division Bench of this Court, the plea of fraud on the part of the petitioners, was raised by the applicant. By this application, the applicant seeks to challenge the order dated 11.10.2006 passed by this Court, which has already attained finality after being upheld by the Supreme Court. There is no dispute to the legal preposition that the fraud vitiates even the most solemn transaction and even an innocent misrepresentation may give reason to give relief against fraud and that fraud is an anathema to all equitable principles therefore, such a plea can be raised in any Court at any stage or in any collateral proceeding, but at the same time the party feeling aggrieved by such fraud shall also act with all promptness and if it remains complacent and fails to approach the Court within a reasonable time, it shall be deemed to have waived his right. Further the Courts entertaining the plea of fraud, at any belated stage, have to be conscious to examine whether the plea of fraud raised by the party is based on some strong foundation to satisfy itself that the fraud played by the other party is writ large on the very face of it.
In the facts of the present case, the applicant has raised the plea of fraud on the part of the petitioners neither in OA No.261/2012 nor in Writ
Court being W.P.(C) No. 346/2014 filed by him and having not succeeded before the learned Tribunal and before this Court, the applicant has taken this route of challenging the order which was passed by this
Court almost nine years back i.e. on 11.10.2006. As already stated above, this order has already attained finality after the dismissal of SLP preferred by the respondent. In the background of these facts, we do not find any tangible reason to entertain the present application.
In view of the above discussion, we find no merit in the present application and the same is accordingly dismissed.
KAILASH GAMBHIR, J I.S.MEHTA, J JANUARY 27, 2015 v