IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.982 of 2010 1. THE STATE OF BIHAR through Principal Secretary, Human Resources Development Department, Vikas Bhawan, Patna 2. Director, Secondary Education, Bihar, Vikas Bhawan, Patna 3. District Magistrate, Patna 4. District Education Officer, Patna 5. Principal Dr. B R K Jalan Inter School, Patna City ..... Respondents/Appellants Versus 1. DIG VIJAY KUMAR, aged about 28 years, son of late Yogeshwar Paswan, resident of village Paroha, PS Manpur, District Nalanda..Petitioner/Respondent ----------- 03- 10/3/2011 IA No. 5462 of 2010 This interlocutory application has been filed on behalf of the appellants –State of Bihar and its functionaries to condone the delay of 330 days in filing the present appeal. Explanation for the delay has been mentioned in paragraphs- 3 to 9 of this application. Learned counsel for the private respondents opposes the prayer. From a perusal of the same, it appears to us that sufficient cause has been shown for condoning the delay. However, in view of the explanation offered and submissions made in support thereof, we are satisfied that sufficient cause has been shown for condoning the delay and as such the delay in filing the appeal is hereby condoned. IA No. 5462 of 2010 is accordingly disposed of. 2) Heard Mr. Chakradhari Sharan Singh, learned 2 AAG for the appellants, and Mr. Alim Jung Khan for the respondents. This appeal under clause 10 of the Letters Patent of the High Court of Judicature of Patna raises a grievance with respect to the order dated 19.5.2009, passed in CWJC no. 3815 of 2009, whereby the writ petition has been allowed, and the appellants herein have been directed to pay the legitimate dues of the respondent herein forthwith. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned AAG raises an objection that the writ petition has been allowed, and direction has been issued to the State of Bihar without minimum of opportunity to them to file counter affidavit. We are of the view that the grievance is fully justified and fit to be upheld. The writ petition was lodged in this Court on 27.3.2009, and was laid before the learned single Judge for the first time on 19.5.2009, on which date the writ petition was allowed. We are clearly of the view that the State of Bihar were not afforded reasonable opportunity to file their counter affidavit, and in such a situation a positive order disposing of the writ petition could not have been passed. It is not one 3 of those cases where the respondents had declined or failed to file counter affidavit inspite of reasonable opportunity given to them. As stated hereinabove, the writ petition was allowed on the first occasion itself. Justice hurried is justice buried. 4) The learned single Judge has, inter alia, observed in his order that “.....Presently there appears to be no such issue warranting the same.” We do not find any justification for such an observation in a situation where the minimum opportunity was not afforded to the appellants herein to present their case. Such an observation could have been made after the State of Bihar had filed their counter affidavit and put forth their version of the case. 5) We are equally unable to agree with the sweeping observations of the learned single Judge that “...... If the petitioner has been recommended for appointment and has joined in pursuance thereto, the petitioner is entitled to salary for the post that he is working on....” It is theoretically a possible situation that on scrutiny the appointment may be found to be based on fraud or the like and, therefore, null and void. In such a situation, arrears of salary may not be directed to be paid from the inception. 4 Reference may be made to the Full Bench decision of this Court in the case of Rita Mishra v. Director, Primary Education (1987 BBCJ 741). Reference may also be made to the judgment of the Court of Appeal in England in the case of Lazarus Estates Ltd. v Beasley [(1956) 1 All.E.R. 341], wherein it has been observed that fraud unravels everything. In that case the beneficiary may be deprived of all the benefits that had accrued to him by the illegal act. The relevant portion of the judgment is reproduced hereinbelow:- “....If this argument is correct, the landlords would profit greatly from their fraud. The increase in rent would pay the fine many times over. I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.... So here I am of opinion that, if this declaration is proved to have been false and fraudulent, it is a nullity and void and the landlords cannot recover any increase of rent by virtue of it.” Reference may also be made to the judgment of our Supreme Court in Megh Mala v G. Narsimha Reddy [(2010) 8 SCC 383]. 5 6) In the result, we respectfully disagree with the order of the learned single Judge, and allow the appeal. The writ petition may be laid before the learned single Judge for fresh disposal in accordance with law and after affording reasonable opportunity to the State of Bihar and its functionaries to file counter affidavit. ( S K Katriar ) ( S P Singh ) mrl