THE HIGH COURT OF MEGHALAYA W.P. (C) No.111/2013 Sister [ENTITY], Principal of Saint Mary's College, Laitumkhrah, Shillong-793003, Meghalaya. Petitioner -Vs- 1. [ENTITY], represented by the Commissioner & Secretary to the Govt. of Meghalaya, Education Department, Meghalaya, Shillong. 2. The [ENTITY]. 3. The [ENTITY]. 4. [ENTITY] represented by its Registrar, Meghalaya. 5. [ENTITY], Sisters of our Lady of the Missions. Respondents BEFORE THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH For the petitioner : Mr. [ENTITY], Adv, For the respondents : Mr. [ENTITY], Sr. GA Mr. [ENTITY], GA for respt.No.1&2 Mr. [ENTITY], Adv for respt.No.3 & 5 Mr. [ENTITY], Adv for respt.No.4 Date of hearing : 28.01.2015 Date of Judgment : 10.02.2015 JUDGMENT AND ORDER This writ petition is liable to be dismissed even without issuing rule for the sole reason that the petitioner did not annex the copy of the impugned order dated 02.04.2013 for removing the petitioner from the post of [ENTITY] to the writ petition [Surinder Singh v. Page 1 of [SECTION] [PRECEDENT]]. However, this Court was lenient enough in issuing notice to the respondents. The respondents No.3 & 5 in their joint affidavit-in-opposition had annexed the copy of the impugned order dated 02.04.2013 as Annexure-XIX. The main ground for assailing the impugned order dated 02.04.2013 is that there was violation of principles of natural justice and also the prescribed procedure had not been followed in imposing major penalty of removal from the post of Principal of St. Mary's College. 2. Heard Mr. [ENTITY], learned counsel for the petitioner, Mr. [ENTITY], learned Sr. GA assisted by Mr. [ENTITY], learned GA appearing for the respondents No.1 & 2, Mr. [ENTITY], learned counsel for the respondents No.3 & 5 and Mr. [ENTITY], learned counsel for the respondent No.4. 3. The case of the petitioner pleaded in the writ petition is briefly recapitulated. St. Mary's College, Shillong was established in 1937 by RNDM missionary Sisters and it is one of the oldest Catholic Colleges imparting education to young women of North East Region of India. However, the college is open to all students irrespective of religion, caste and community and also irrespective of their residence. The aim of the institute i.e. St. Mary's College is to cater higher education of tribal women of the North East Region of the country. The college was initially affiliated to Calcutta University in 1937. Subsequently, it was affiliated to the Gauhati University and later on to the [ENTITY]. The college offers Arts, Science, Home Science, BCA and Commerce at degree level, classes XI and XII in Arts and Science. St. Mary's College though a college run by Catholic Church, it is under the control of the Education Department, Govt. of Meghalaya. The Page 2 of [SECTION] college also followed the staff pattern prescribed by the State Govt. and rules relating to conditions of service and disciplinary control of the staff. 4. The petitioner joined the Sisterhood on 29.06.1986 and obtained her degree in Bachelor of Arts in the year 1990, B.Ed. in the year 1991, M.A. (Education) in the year 1996 and Doctorate in the year 2011. She served in the Queen of the Mission Convent, Kolkata, St. Michael Convent and School in Umsning, Meghalaya, St. Agnes Convent, Haflong, St. Joseph's Convent, Shillong, St. Mary's Convent, Mariam Nilaya in Bangalore, [ENTITY] in Bangalore, [ENTITY], Marbisu, St. Mary's Convent, Shillong and attached to College Work in the year 2002 and was appointed Principal of St. Mary's College, Shillong in the year 2007 vide Govt. Order No. CE/GA/AP/1/2005/99 dated 27.09.2007, and it reads as follows:- "OFFICE OF THE DIRECTOR OF HIGHER & TECHNICAL EDUCATION MEGHALAYA SHILLONG Subject:- Approval of appointment to the post of Principal in St. Mary's College, Shillong. ORDER
Under the authority of Government letter No.EDN.386/83/3, dated 09.03.1984, the appointment of Sister [ENTITY] as Principal of St. Mary's College, Shillong against the vacancy of Dr. (Sr.) [ENTITY], who is due to retire on 30.09.2007, is hereby approved with effect from the date of joining in the post i.e. 1st October, 2007. This is as per the recommendation of the Board of Management of the congregation and the Governing Body of the College vide resolution dated 10.05.2007.
Sd/-W.Khyllep [ENTITY].
Memo. No.CE/GA/AP/1/2005/99 Dated Shillong, the 27th Sept.2007 Copy to:-
1. The Under Secretary to the Govt. of Meghalaya, Education Department, Shillong.
2. The [ENTITY] with reference to letter No. SMC/PK/DHTE/AP.Apnt./Principal/2007-01 dated 05.09.2007.
3. Sr. [ENTITY] C/o St. Mary's College, Shillong.
4. [ENTITY], College Branch, D.H.T.E.'s office, Shillong.
5. OFFICE ORDER BOOK.
Dy. [ENTITY]."
On bare perusal of the appointment order dated 27.09.2007, it is clear that the recommendation of the Board of Management of the Congregation and the Governing Body of the College vide resolution dated 10.05.2007 for appointment of the petitioner as Principal of St. Mary's College, Shillong, had been approved by the [ENTITY] w.e.f. the date of joining in the post i.e. 01.10.2007.
5. The petitioner had worked diligently and sincerely and the college achieved laurels both in educational field as well as in extracurricular activities and she was loved and respected by all the students and the faculty of the college. The success and popularity of the petitioner was not taken too well by some of her Sisters who wanted to have her removed from the post of Principal of St. Mary's College, Shillong and with the change of leadership in the Congregation in 2011, some rumors started circulating which were unfounded and baseless against her in the Congregation to tarnish her image and reputation as a nun so much so that they started interfering in all her works and humiliating her at every given opportunities and meetings called by the Congregation. On late evening of 01.04.2013, the petitioner received an unsigned notice dated 01.04.2013 with no agenda informing her of a Governing Body Meeting scheduled to be held on 02.04.2013 at 4:00 PM in the school premises instead of college premises as per usual practice. The petitioner further learnt that other members of the Governing Body from the University, Guardian Representative and the Teacher Representatives etc. had been informed of the same late in the evening of 01.04.2013 telephonically. The petitioner further stated that she being the Principal and Secretary of the Governing Body was not consulted before such meeting was arranged that too took such important decision which was apparently taken in the said meeting when it did not even have the required quorum as reliably learnt by the petitioner. The petitioner did not attend the meeting as it was arranged in such haste without giving proper notice to any of the members and in a manner not permitted and by violating the norms and usual practice inasmuch as, prior notice was not served to the members of the Governing Body and the notice received by the petitioner was without any agenda nor was it signed. The petitioner came to know from her colleague that a decision was taken in the meeting held on 02.04.2013 for removal her from the post of Principal of St. Mary's College, Shillong and the order dated 02.04.2013 had been issued for removal the petitioner from the post of Principal of St. Mary' College, Shillong with immediate effect.
6. On 03.04.2013, the respondent No.5 the Province Leadership Team led by Sister [ENTITY] and others forcibly entered the office of the petitioner and unethically forced her out of the office by saying that she was no longer the Principal of the college and had no right to occupy the chair of the Principal. The petitioner further alleged that during her entire service career was never warned and rebuked. However, she fell victim to the conspiracy of some of the Sisters who seemed to have some sort of personal grudge and jealousy against her and wanted to spoil her career by spreading baseless and unfounded rumors. The Commissioner & Secretary to the Govt. of Meghalaya, Education Department vide letter No. EDN.143/94/37 dated 21.06.1995 made a clarification that the Govt. of Meghalaya has not framed separate rules and the rules relating the service conditions of the [ACT] (for short "the said Rules, 1960") are followed by the Govt. of Meghalaya. The said letter of the Commissioner & Secretary to the Govt. of Meghalaya, Education Department dated 21.06.1995 (Annexure-II to the writ petition) reads as follows:-
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT No.EDN.143/94/37 Dated Shillong, the 21st June, 1995.
From: Shri. [ENTITY], IAS, Commissioner & Secretary to the Govt. of Meghalaya.
To, The Director of Public Instruction, Meghalaya, Shillong.
Sub: Clarification on applicability of the [ACT].
Sir, With reference to the above subject, I am directed to state that the Government of Meghalaya has not framed separate rules relating the service condition of the employee of the Deficit Colleges and the provisions of the [ACT] has been followed from the time the [ENTITY] came into existence. It is therefore, clarified that pending issue of the Meghalaya Rules for Aided College Employees and subject to modifications on method of recruitment of Principals of Deficit Colleges and extension/re- employment of employees of such colleges on obtaining the age of superannuation, made vide Govt.'s Notification No. EDN/143/94/12 dt. 31.1.95, the provisions of the [ACT] shall apply in all the Deficit Colleges in the State except the minority institutions.
Yours faithfully, Sd/-
([ENTITY]) Commissioner & Secretary to the Govt. of Meghalaya, Education Department No. EDN.143/94/37-A Dated Shillong, the 21st June, 1995.
Copy forwarded to:
The Principals of all Deficit Colleges in Meghalaya for information and necessary action.
Commissioner & Secretary to the Govt. of Meghalaya, Education Department"
7. The petitioner further stated that she was removed from the post of Principal of the college without any show cause notice and no opportunity of hearing was afforded to her, hence, there is violation of principles of natural justice. The removal of the petitioner from the said post was not a removal simpliciter but carrying some stigma as such, the college authority is duty bound to make an enquiry into the allegations in a manner as provided under rules regarding Conduct and Discipline of the Employees of Aided Educational Institute and by not doing so, they acted malafide, arbitrarily and illegally. It is alleged in the writ petition that the copy of removal order was not received by the petitioner, but in the prayer portion of the writ petition, there was no prayer for a direction to the respondent to produce or furnish the copy of the impugned order for dismissal from service dated 02.04.2013 to the petitioner. Further, the petitioner categorically pleaded in the writ petition that the St. Mary's College, Shillong being a Govt. Aided College discharging public functions by way of imparting education is subject to the rules and regulations of the Governing Body of the Aided Educational Institute.
8. The respondents No.3 & 5 filed joint affidavit-in-opposition stating that the petitioner had been known all the illegalities and misconduct committed by her and sufficient opportunities were available to the petitioner to submit her explanation or show cause statement to all the illegalities and misconduct committed by her. The particulars of misconduct committed by the petitioner and opportunities available to her to submit her show cause statement or explanation are mentioned in the affidavit-in-opposition. Those particulars are:-
"i) On 01.02.2011 the Respondent No. 5 wrote to the Petitioner with regard to her papers for her programme in France-
England-Rome. The Respondent No. 5 stated that the transfer list was ready and would be sent to communities and that it was important that names of all the sisters be incorporated in the transfer list and hoped that the Petitioner understood the Respondent's predicament. That on 21.10.2011 the Respondents sends a reminder to the Petitioner with regard to their meeting to be held on 21.10.2011 at 5.30 p.m. in the meeting room on the second floor of St. Mary's and requested the Petitioner to bring with her a letter to the bank in order to operate the accounts of St. Mary's College. In turn the Petitioner wrote to the Respondents that she couldn't attend the meeting as the Petitioner had a prior appointment. Again on 25.01.2012 the Respondent No. 5 wrote to the Petitioner to remind her of her transfer to St. Mary's Community. The Respondent No. 5 had already spoken to the Petitioner several times in 2011 and that on 21.10.2011, the Petitioner had assured that she would write to the Respondent informing them about her decision about shifting to St. Mary's Community. However, the Petitioner refused to take any decision in this regard.
ii) On 24.04.2012 that one of the Respondents wrote to the Petitioner with regard to her meeting with Sister [ENTITY], Congregational Leader on 10.04.2012 and with the Province Leader Team and Sister [ENTITY] on 11.04.2012 and citing the reasons discussed with the Petitioner during those two meeting and on behalf of the Respondent No. 5 requested the Petitioner to tender her resignation as Principal of St. Mary's College by 30.04.2012 to be effective from 31.07.2012. The Petitioner was further informed that the Respondent No. 5 would appoint a Principal and Administrator of the College and requested the Petitioner to hand over all matters relating to the academic administrative functions of the College before 31.07.2012. The Respondent No. 5 raised concerns that had been raised with the petitioner previously which were as follows:
a. Lack of cooperation with the PLT, particularly in relation to communities and responses to requests.
b. Difficulties with community living, both in St. Mary's and Oakville.
c. Concern about the treatment of student sisters from Bangladesh and the lack of welcome and support in enrolling Sisters from other Provinces in our own Congregation College. d. Difficulties in cooperating with CLT and PLT in matters relating to finance and the contribution from the College to the common purse. That it appears that different members of the CLT had repeated spoken to the Petitioner about the need for the College to contribute to the common purse of the Province. e. Repeated disregard for authority, particularly in the Province.
f. Lack of active participation in some Province gatherings. g. Concerns that have been expressed repeatedly about the relationship with [ENTITY] by Sisters in the Province and by lay people.
iii) Later Sister [ENTITY] read the letter given by certain concerned people regarding the Petitioner's absence in the College. Another member of the Congregation namely Sister [ENTITY], following a decision of the Respondent No. 5, on 10.04.2012 requested the Petitioner to tender her resignation letter from College by the end of April to be effective within (3) three months and transfer her to St. Agnes' Convent Haflong as the Principal of the School. It appears that the Petitioner seemed to have serious problems in community life. The Respondent No. 5 had asked the Petitioner to join the St. Mary's Community but she had not taken any notice and that the Petitioner responded that St. Mary's community is not life giving for her. That on 18.06.2012 and 15.07.2012 the Respondents wrote to the Petitioner to submit a written response with regard to her resignation letter from the post of Principal of the St. Mary's College to her new post in Haflong by 1st August, 2012. Again on 29.08.2012 the Respondents wrote to the Petitioner that since 25.01.2011 the Petitioner had been absent from the religious community life and living on her own without any lawful, authorization. That on 18.09.2012 the Respondents again wrote to the Petitioner that in accordance with the provisions of canon law and the law of Congregation, the Petitioner was given the first canonical warning required by [SECTION] prior to being dismissed from the Congregation.
iv. On 01.02.2013, the Respondents wrote to the Petitioner with regard to HBC Visit from 21st to 26th Feb, 2013 to review all accounts of the Province and to make available the following detail regarding fee register and fee structure, acquaintance register of all staff and non Teaching staff, enrolment of students for the last three years, budget of 2013 and income and expenditure of the last three years. On 14.03.2013 the Respondents yet again wrote to the Petitioner informing that she had failed to comply with legitimate requests made in the above said letter dated 01.02.2013 and that till date it had been ignored. It appears that the writer also visited the college on 22.02.2013 to meet and discuss the urgent need to comply with the request and that the Respondents tried to call the Petitioner within the college hours but the Petitioner was never present at the college premises. The College is an institution owned by the congregation and that the Respondents jointly are responsible for its management. The Petitioner being the principal had a duty to report and provide information as requested by the Respondent No. 5 and as such, the Petitioner was given a last chance to furnish the information requested for by Monday the 18th March, 2013."
9. The respondents No.3 & 5 further stated in their joint affidavit- in-opposition that as part of an administrative decision the Congregation decided to transfer the Petitioner from St. Mary's College, Shillong to St. Agnes' Convent, Haflong. This decision was communicated to the Petitioner on 11.04.2012 and she was requested to resign from the post of Principal of St. Mary's College, Shillong and assume her new duties. The Petitioner however refused to obey the instructions of the Congregation. Vide letter dated 25.07.2012 the Respondent No. 5 issued the petitioner a reminder to tender her resignation from the post of Principal by 28.07.2012 without fail but the petitioner did not respond to the said request and continued in the post of Principal of the College. Most shockingly, a news report was published in the edition of The Shillong Times dated 03.08.2012 and 04.08.2012 on the basis of the statements of the parents who had experienced some problems with the petitioner. The contents of the newspaper reports revealed that news reports were based on complaints of parents of students and as opposed to tarnishing the petitioner's name, the image of the college suffered as a result. The plague of these reports and several other complaints against the petitioner compelled the intervention of the respondent No. 5. Several discreet meetings were held to remedy the situation as it was increasingly being reported that the petitioner was not carrying out her duties properly.
10. Both the parties admitted in their respective pleadings that the "[ACT]" are applicable to the institute i.e. St. Mary's College, Shillong and also not only the institute but also the Govt. of Meghalaya had followed the said Rules of 1960. The methods of recruitment of Principals of Colleges are provided under [SECTION] of the said Rules, 1960, which read as follows:-
"4. Method of recruitment. (1) Principals. (i) There shall be a State Selection Board consisting of the following, viz.:
(a) A member of the Assam Public Service Commission
- Chairman;
(b) Director of Public Instruction - Secretary;
(c) Deans of the Faculties of Arts and Science, Gauhati University - Members;
(d) One Educationist nominated by Government - Member :
(e) One Principal nominated by Government - Member.
(ii) The Director of Public Instruction shall ascertain from various institutions concerned well ahead of each academic year probable vacancies that are likely to arise during the year and advertise such vacancies in at least two newspapers and also in the Assam Gazette.
(iii) The Selection Board after scrutiny of particulars and after interview, if necessary, shall prepare a list of candidates in order of preference and shall forward the list so prepared to the Governing Bodies concerned.
Appointment of Principals already in service shall be regularized in accordance with the conditions as in R. 5. Principals not having the requisite qualifications and experience as set forth in R. 5, if retained or taken on for non-availability of duly qualified persons and shall get their grade pay and a special pay.
(iv) The Governing Body shall make appointments after necessary verification and with prior approval of the Director of Public Instruction, Assam.
(v) The list of candidates shall ordinarily remain valid for one year from the date of selection.
(2) Professors and Lecturers. The Governing Body shall advertise all vacancies for a period not exceeding six months in at least two newspapers and shall, on scrutiny of the records, and after interview, if necessary, make appointments subject to the approval of the Director of Public Instruction.
(3) Office Assistants. The Governing Body concerned shall after due advertisement in at least two newspapers make the appointment of office Assistants subject to the approval of the Director of Public Instruction, Assam.
(4) Power to fill up temporary vacancies. Except where it is otherwise provided in these rules, the Governing Body, shall have powers to fill up any temporary vacancy without advertisement which may not extend beyond six months subject to necessary approval of the Director of Public Instruction, Assam."
11. Under [SECTION] of the said Rules, 1960, there shall be a Selection Board consisting of the members mentioned in the Rule itself. The procedure for regular appointment of Principal is that the Governing Body may invite applications from the interested candidates for appointment to the post of Principal and the Selection Board shall prepare a list of the selected candidates from amongst the candidates who are duly qualified after scrutiny of particulars and after interview, if necessary. The Governing Body shall obtain prior approval from the concerned Director before the appointment of the selected candidate as Principal. The list of the selected candidates shall ordinarily remain valid for one year from the date of selection. It is clear from the respective pleadings of the parties that there was no advertisement for appointment to the post of Principal of St. Mary's College, Shillong and there was no recommendation of the duly constituted Selection Board for appointment of the petitioner to the post of Principal of St. Mary's College nor prior approval of the Director of Higher and Technical Education, Meghalaya, Shillong to the appointment of the petitioner as Principal of St. Mary's College, Shillong w.e.f. 01.10.2007. The so called appointment order of the petitioner dated 27.09.2007, clearly speaks that it is an order for approval the recommendation of the Board of Management of the Congregation and the Governing Body of the College vide resolution dated 10.04.2007 for appointment of the petitioner as Principal of St. Mary's College, Shillong. It is crystal clear that the petitioner was never appointed as Principal of St. Mary's College, Shillong by following the Rules i.e. the said Rules of 1960 and therefore, the appointment of the petitioner as Principal of St. Mary's College, Shillong is illegal.
12. As stated above, the only case of the petitioner in the present writ petition is that there had been violation of the principles of natural justice in issuing the impugned order dated 02.04.2013 inasmuch as, the petitioner was never informed of the misconduct and illegalities alleged to have been committed by her nor opportunity was available to her to submit her explanation or show cause statement to the illegalities and misconduct committed by her. The petitioner approached this Court for seeking the remedy of quashing the impugned order dated 02.04.2013 by filing the present writ petition, as if, the petitioner had never been informed the illegalities alleged to have been committed by her nor opportunity was available to her to submit her explanation or show cause statement to the illegalities alleged to have been committed by her. In the joint affidavit-in- opposition filed by the respondents No.3 & 5, a bundle of fact regarding instances of committing the illegalities is clearly mentioned. No doubt, the petitioner had denied those allegations. But the fact remains that the petitioner had been informed the illegalities alleged to have been committed by her and opportunity was available to her to submit her explanation or show cause statement to the said alleged illegalities. This highly disputed fact, for which parties are required to produce their respective evidence, cannot be decided in the writ proceedings. It is fairly settled law that an employee has to go back to the same door, he had entered. In the present case, the petitioner had been appointed illegally without following the due procedure for appointment as provided under the said Rules of 1960. Mr. [ENTITY], learned counsel for the respondents No.3 & 5 in order to fortify the case of the respondents No.3 & 5 that the principles of natural justice will not be applicable in the case of removal of an employee, who was appointed by an incompetent authority or appointed illegally had relied heavily on (i) [ENTITY] & Ors v. Ajay Kumar Das & Ors: (2002) 4 SCC 503 and (ii) State of Manipur & Ors v. [ENTITY] & Ors: (2007) 5 SCC
65. Para 5 of the SCC in [ENTITY]'s case (Supra) reads as follows:-
"5. The narration of the facts made above, make it clear that the respondents were appointed by the said Dr. [ENTITY], Assistant Commissioner, Guwahati when his service had been terminated and his continuation in service itself was under a cloud and in an inquiry serious lapses had been noticed in the matter of recruitment. It is clear that if after the termination of services of the said Dr. [ENTITY], the orders of appointment are issued, such orders are not valid. If such appointment orders are a nullity, the question of observance of principles of natural justice would not arise. "
Para [SECTION] & 17 of the SCC in [ENTITY] case (Supra) read as follows:-
"[SECTION]. The offers of appointment issued in favour of the respondents herein were cancelled inter alia on the premise that the same had been done without the knowledge of the Revenue Department of the State. No records therefore were available with the State. As noticed hereinbefore, an inquiry had been made wherein the said Shri [ENTITY], the then Commissioner of Revenue stated that no such appointment had been made to his knowledge. The State proceeded on the said basis. The offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non est in the eye of the law. The purported appointment letters were fake ones. They were not issued by any authority competent therefor.
17. If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework, would not be binding on the State."
13. The Apex Court in State of Orissa & Anr v. [ENTITY]: (2011) 3 SCC 436 held that:
"36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of [SECTION] and [SECTION] of the [ACT]. Such a course violates the mandates of [SECTION] and [SECTION] of the [ACT] as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in [SECTION] requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
14. The Apex Court in [ENTITY] case (Supra) further held that if an order is bad in its inception, it does not get sanctified at a later stage. Para 37 of the SCC in [ENTITY] case (Supra) reads as follows:-
"37. It is well settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. ([PRECEDENT], [PRECEDENT]:
AIR 2005 SC 1964 and [PRECEDENT]: AIR 2010 SC 3823)"
15. The Apex Court in [PRECEDENT] held that the Court cannot set aside the order which appears to be illegal, if its effect is to revive another illegal order. In the present case, setting aside the impugned order dated 02.04.2013 will have the effect of reviving another illegal order i.e. illegal appointment order of the petitioner dated 27.09.2007. The Apex Court in Bhartiya Seva Samaj Trust case (Supra) further held that if a party had committed a wrong, he cannot be permitted to take the benefit of his own wrong. Paras 14 & 28 of the SCC in Bhartiya Seva Samaj Trust case (Supra) read as follows:-
"14. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. ([PRECEDENT], Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar: (1999) 8 SCC [SECTION]: AIR 1999 SC 3609, [PRECEDENT], [PRECEDENT] and State of Uttaranchal v. Ajit Singh Bhola:
(2004) 6 SCC 800).
28. A person alleging his own infamy cannot be heard at any forum, what to talk of a writ court, as explained by the legal maxim allegans suam turpitudinem non est audiendus. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. ([PRECEDENT], Narender Chadha v. Union of India: (1986) 2 SCC 157:
1986 SCC (L&S) 226, Molly Joseph v. George Sebastian:
(1996) 6 SCC 337: [PRECEDENT], [PRECEDENT] (connected case), and [PRECEDENT]. This concept is also explained by the legal maxims commodum ex injuria sua non habere debet and nullus commodum capere potest de injuria sua propria. (See also [PRECEDENT] and [PRECEDENT].)"
[SECTION]. For the foregoing reasons, the present writ petition is devoid of merit. Accordingly, it is dismissed.
17. Parties are to bear their own costs.
JUDGE Lam