*THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G. SHANKAR +Writ Petition No.29401 of 2010 % 07.07.2011 Between: #Union of India, rep.by the General Manager, South Central Railway, Rail Nilayam, Secunderabad, A.P., and 5 others … Petitioners Vs. $C. Aruna Devi and another … Respondents ! Counsel for the petitioner: C.V. Rajeeva Reddy, C.V. Vinitha Reddy, S.C. for SC Railways Counsel for the Respondent: K.R.K.V. Prasad, Counsel for R-1. <Gist: >Head Note: ? Cases referred: 1. (2002) 3 SCC 634 2. (2010) 8 SCC 383 3. (2004) 2 SCC 105 4. (2005) 7 SCC 690 5. AIR 2008 SC 3266 6. (2009) 13 SCC 600 T THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Writ Petition No.29401 of 2010 Date: 07.07.2011 Between: Union of India, rep.by the General Manager, South Central Railway, Rail Nilayam, Secunderabad. A.P., and 5 others .. Petitioner AND C. Aruna Devi and another .. Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Writ Petition No.29401 of 2010 ORDER (per Hon’ble Sri Justice Ghulam Mohammed): The writ petition is filed to issue an order, more particularly, one in the nature of Writ of Certiorari to call for the records relating to the order dated 05.08.2010 passed in O.A.No.553 of 2010 on the file of the Central Administrative Tribunal, Hyderabad and to quash the same as illegal and arbitrary. 2. The brief facts of the case are as follows: a) One P. Obulesu while working as Senior Gangman under SSE/PW/BG/Ananthapur, one of the units of South Central Railway, Secunderabad died on 18.09.2000. During the lifetime of said P. Obulesu, he executed an affidavit dated 16.09.1995 stating that he has adopted a girl by name C. Aruna Devi, the first respondent herein, when she was six years old. He submitted the said adoption deed, which was registered by the Joint Sub-Registrar, Anantapur on 13.04.1995, before the Senior Divisional Personnel Officer, South Central Railway, Guntakal Division seeking permission to recognize her as his adopted daughter. The said Senior Divisional Personnel Officer vide letter dated 13.05.1998 informed that the request of P. Obulesu has been agreed to by the competent authority. In terms of the said approval, P. Obulesu has included the name of her adopted daughter in the family declaration form and submitted for drawing privilege passes and accordingly her name was included in the privilege passes drawn from time to time. Consequent to the death of P. Obulesu, the first respondent herein, who is her adopted daughter and who is the applicant in O.A.No.553 of 2010, submitted an application for a suitable appointment on compassionate grounds. Thereafter, she was appointed as Ticket Collector on production of adoption deed. She was also paid the pensionary benefits as per Rules. She was later promoted to the post of Senior Travelling Ticket Examiner. b) While the matter stood thus, a complaint was received by the Senior Deputy General Manager (Vigilance), South Central Railway, Secunderabad stating that the first respondent was not adopted daughter of P. Obulesu and she had managed to produce a fake adoption deed as if she was adopted by P. Obulesu. Thereafter, the Railway Vigilance Branch conducted detailed investigation. In the investigation, all relevant documents were scrutinized viz., adoption deed dated 13.04.1995, affidavit of P. Obulesu dated 16.09.1995, affidavit of first respondent dated 22.02.2001, nomination dated 17.01.2003 executed by the first respondent, copy of divorce petition of the first respondent seeking for divorce from her husband and school/college certificates obtained by her during the years 1994, 2001 & 2004. On the scrutiny of above documents, it was noticed that as per adoption deed dated 13.04.1995, Sri C.Obulesu, S/o.C.P.Obulesu, r/o.D.No.13/440-A, Srinivasanagar, Ananthapur is the party, who adopted C. Arunadevi, first respondent herein, whereas as per affidavit dated 16.09.1995 of Sri P. Obulesu, s/o. Pedda Obulesu Chakala, r/o. D.No.13/678, C-117-2, Sreenivasanagar, Ananthapur, he is the party who adopted her. By which it was evident that Sri P. Obulesu, s/o. Pedda Obulesu Chakala did not adopt the first respondent. Therefore, the first respondent was issued with a show cause notice dated 27.10.2009 by the Assistant Personnel Officer (Traffic), Guntakal calling upon her to establish her relationship as adopted daughter of the deceased employee, failing which to submit her explanation as to why her services should not be terminated. In response to the show cause notice, the first respondent by letter dated 11.12.2009 sought time for 90 days for submitting relevant documents in proof of her adoption to Sri P. Obulesu. Despite time was granted up to 10.03.2010, she had not produced the relevant documents and therefore, she was terminated with immediate effect vide order dated 28.05.2010. c) Questioning the termination order, she filed O.A.No.553 of 2010 before the Central Administrative Tribunal, Hyderabad seeking to reinstate her as Senor Ticket Collector. After considering the matter in detail, the Tribunal by order dated 05.08.2010 allowed the said O.A. setting aside the termination order dated 28.05.2010 and the railway authorities are directed to reinstate the first respondent immediately and grant all consequential benefits within one month from the date of receipt of a copy of said order. Further, in regard to validity of the registered adoption deed, the respondents are, however, at liberty to approach the appropriate authority/forum to declare the registered adoption deed, which was accepted by the administration as void with due notice to the first respondent. Assailing the Tribunal order dated 28.05.2010, the South Central Railway filed the present writ petition. 3. Along with the writ petition, the South Central Railway filed WPMP No.37444 of 2010 seeking to suspend the order dated 05.08.2010 of the Tribunal pending disposal of the writ petition. While admitting the writ petition on 26.11.2010, this Court granted interim suspension as prayed for. Aggrieved by the order of interim suspension, the first respondent filed vacate stay petition seeking to vacate the interim suspension granted by this Court on 26.11.2010. 4. When the vacate stay petition came up for hearing, with the consent of both the counsel, the writ petition is taken up for final disposal. 5. Heard Sri C.V. Rajeeva Reddy, learned counsel appearing on behalf of C.V. Vinitha Reddy, learned Standing Counsel for the writ petitioner-South Central Railway, Secunderabad and Sri K.R.K.V. Prasad, learned counsel for the first respondent. 6. Now, the points that arise for our consideration is a) Whether the impugned order of the Tribunal dated 05.08.2010 passed in O.A.No.553 of 2010 is perverse or not; and b) Whether there is any fraud or misrepresentation committed by the first respondent. 7. The learned Standing Counsel for the petitioner-South Central Railway contended that the statutory presumption under Section 16 of the Hindu Adoption and Maintenance Act, 1956 (‘the Act’ for brevity) is a rebuttable presumption and mere producing the registered adoption deed is not a conclusive proof of adoption; that the legal presumption u/s.16 of the Act stood rebutted in the facts and circumstances of the case rendering the first respondent not entitled for appointment in South Central Railway and that the impugned order of the Tribunal is contrary to the decision rendered by the Supreme Court in Jai Singh v. Shakuntala[1], wherein, it was observed thus: “The issue thus arises as to whether the High Court was justified in laying emphasis on the conduct of the adopted son. While it is true that the registered instrument of adoption presumably stands out to be taken to be correct but the Court is not precluded from looking into it upon production of some evidence contra the adoption. Evidence, which is made available to the court for rebutting the presumption, can always be looked into.” 8. The learned Standing Counsel for the petitioners further contended that the finding of the Tribunal that after the death of her adopted father, the first respondent has declared Smt. Ch. Narayanamma, who is her natural mother, as her nominee on 17.01.2003 and in her school certificates obtained by her during 1994, 2000 and 2001, her father’s name is shown as C. Ranganayakulu, is not sufficient reason to declare that the registered adoption deed, is not legally valid and is perverse and such a finding is liable to be set aside. He further contended that the adoption deed dated 13.04.1995 is sham and is brought into existence only for the purpose of her claiming compassionate appointment; that the first respondent secured the appointment on compassionate grounds by fraudulent means by playing fraud on Railway administration and also committed fraud on the Constitution and therefore, the order under challenge in this writ petition is liable to be set aside. 9. The learned Standing Counsel for the writ petitioners further contended that as per adoption deed dated 13.04.1995, Sri C. Obulesu, s/o.C.P. Obulesu residing in Door No.13/440-A, Srinivasanagar, Ananthapur is the party who adopted the first respondent, whereas as per the affidavit dated 16.09.1995, P. Obulesu, s/o. Peda Obulesu Chakala residing in D.No.13/678-C- 117-2, Srinivasa Nagar, Ananthapur, is the party who adopted the first respondent and therefore, as per the adoption deed dated 13.04.1995, P. Obulesu Chakala working as a Senior Gangman is not the person who adopted the first respondent. He further submitted that as per notarised affidavit sworn and signed by the first respondent on 20.02.2001, P. Obulesu adopted her, vide registered deed No.188/98 dated 13.04.1998 and whereas in terms of the adoption deed, it was registered on 13.04.1995, vide deed No.188/95, which is indicative of lack of bona fides and therefore, the impugned order is liable to be set aside. 10. The learned Standing Counsel for the writ petitioners further contended that the first respondent has declared one Ms.C. Maheswari aged 22 years, who is her natural unmarried sister in the declaration of family members in the year 2008; the first respondent availed three railway privilege passes including her natural sister, even though P. Obulesu adopted her and therefore, the first respondent remained in her natural parents house rendering the adoption deed legally not valid. He further contended that the Tribunal committed a serious error in not going into the factual matrix and the entire proceedings of the first respondent in securing appointment on compassionate grounds in the South Central Railway as Ticket Collector consequent to the death of P. Obulesu, is void ab initio and the first respondent was rightly terminated from service. 11. In support of his contentions, the learned Standing Counsel for the writ petitioners placed the following citations: a) In Meghmala v. G. Narasimha Reddy[2], the Supreme Court in paras 28 to 36 & 52 observed thus: “Fraud/Misrepresentation: - 28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC 853). In Lazarus Estate Ltd. Vs. Besalay 1956 All. E.R. 349), the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything." 29. In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr. AIR 1994 SC 2151; and State of Maharashtra & Ors. Vs. Prabhu (1994) 2 SCC 481 this Court observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and subtletties invented to evade law." 30. In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers. AIR 1992 SC 1555, it has been held as under:- "Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct." 31. In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. AIR 2000 SC 1165, this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim, which has never lost its temper over all these centuries. 32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. Vs. M. Tripura Sundari Devi (1990) 3 SCC 655; Union of India & Ors. Vs. M. Bhaskaran (1995) Suppl. 4 SCC 100; Vice Chairman, Kendriya Vidyalaya Sangathan & Anr. Vs. Girdharilal Yadav (2004) 6 SCC 325; State of Maharashtra v. Ravi Prakash Babulalsing Parmar (2007) 1 SCC 80; Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Company AIR 2007 SC 2798; and Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr. (2009) 8 SCC 751). 33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. (Vide Dr. Vimla Vs. Delhi Administration AIR 1963 SC 1572; Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; State of Andhra Pradesh Vs. T. Suryachandra Rao AIR 2005 SC 3110; K.D. Sharma Vs. Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481; and Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir & Ors. (2008) 13 SCC 170). 34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya Naidu (supra); Gowrishankar & Anr. Vs. Joshi Amba Shankar Family Trust & Ors. AIR 1996 SC 2202; Ram Chandra Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002 SC 33; Ram Preeti Yadav Vs. U.P. Board of High School & Intermediate Education AIR 2003 SC 4628; and Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr. AIR 2004 SC 2836). 35. In kinch Vs. Walcott (1929) AC 482, it has been held that: "....mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained y perjury." Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury. 36. 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 statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document 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 is non est. 52. The High Court failed to take all aforesaid factors into consideration before passing impugned judgment and order.” b) In R. Vishwanatha Pillai v. State of Kerala[3] the Supreme Court in paras 12, 13 & 15 observed thus: “12. Article 311 provides that a member of a civil service of the Union or the State shall not be dismissed or removed by any authority subordinate to that by which he was appointed. That the employee shall not be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him and a give a reasonable opportunity of being heard in respect of those charges. In exercise of the power conferred by sub-section (1) of Section 3 of the All India Services Act, 1951, the Central Government, in consultation with the Governments of the States concerned, framed the All India Services (Discipline and Appeal) Rules, 1969. These Rules lay down the detailed procedure as to the manner in which the action is required to be taken against a delinquent public servant. Relying upon the Article 311 and provisions of the Rules, it was contended by Shri Ranjit Kumar, learned senior counsel for the appellant, that the service of the appellant could not be terminated without following the procedure laid therein. 13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court. Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) The Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer having intimate knowledge in the verification and issuance of the social status certifies, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put-forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld up to this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority. 15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post, which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all. c) In Bank of India v. Avinash D. Mandivikar[4] the Supreme Court in paras 6, 9 and 12 observed thus: “6. Respondent 1 employee obtained appointment in the service on the basis that he belonged to a Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate. 9. A similar plea about long years of service was considered by this Court in R. Vishwanatha Pillai v. State of Kerala to be inconsequential. "It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come