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Judgment
N. Kirubakaran, J.—These writ appeals arise out of a common order passed in writ petitions Nos. 4509 of 2009 etc. batch dated
4.11.2009 passed by the learned single Judge by which directions were issued to prepare a list of un-selected candidates, who answered three
disputed questions in the written examination conducted for selection of Sub-Inspector of Police, by virtue of notification dated 18.7.2006, which
was issued to fill up 682 vacancies. For the sake of convenience, the Petitioners and Respondents in the above writ petitions are referred in the
writ appeals also as Petitioners and Respondents respectively.
Brief facts are as follows:
The second Respondent Board issued a notification dated 18.7.2006 for selection of 682 candidates for the post of Sub Inspector of Police.
Written examination was conducted on 20-5-2007 and provisional selection list was announced on 20.12.2007. The un-selected candidates in the
examination, questioned the provisional selection before this Court contending that:
(1) Quota fixed for each category was not followed,
(2) Written test was not properly conducted,
(3) Answers were not published
(4) Marks were not properly given,
(5) Marks were not published in the internet,
(6) Waiting list of candidates were not published,
(7) Service Commission did not follow the established procedures in the process of selection due to show transparency.
On appreciation of the facts, the learned single Judge dismissed the writ petitions on 20.11.2007 upholding the selection, which was also confirmed
by the Division Bench of this Court in W.A. No. 194 of 2007 batch on 28.3.2008.
Subsequently, the candidates approached under RTI Act seeking information regarding questions and answers and answer sheets and they
came to know that marks were awarded for answering wrong key answers and marks were not given in spite of answering properly. The disputed
questions are 11, 38 and 44 which are as follows:
Greenhouse effect is caused by
A) Oxygen depletion B) Ozone Layer depletion
C) Hydrogen reduction D) Greenery reduction
Question No. 38 is as follows:
What percentage (%) of human body weight is water?
A) 55 B) 65 C) 70 D) 80
Question No. 44 is as follows:
44 Free India'' s first Governor-General was
A) Mountbatten B) Rajaji
C) Dr. Zakir Hussain C) Dr. Radhakrishnan
For question No. 11, the key answer given was (B) Ozone layer depletion whereas the correct answer is (D) Greenery reduction. For question
No. 3 8, the key answer given was ""C-70"", whereas all questions were found to be correct. For question No. 44, the key answer given was ""D""-
Rajaji, whereas the right answer was ""A""-Mount Batten. The aforesaid position was admitted by the second Respondent board in the reply given
under Right to Information Act.
Therefore, based on the information obtained under Rights to Information Act, the Petitioners approached this Court seeking a direction to the
Respondents to add the marks in view of wrong key answers and wrong valuation and consider them for selection.
It was contended before the learned single Judge that the Respondents admitted mistakes in the key answers, non-awarding of marks to the
candidates who wrote correct answers and awarding of marks to wrong key answers and therefore marks for the correct key answers are
required to be given to the Petitioners and based on which, the Petitioners are to be considered for the post of Sub-Inspector of Police. Secondly,
it was contended that problem started because of wrong/mistake committed by the Respondent-Board. Thirdly, the Respondents themselves were
not aware of mistakes committed by the board and only after ascertaining the facts under Rights to Information Act, they approached the Court.
They also contended that supernumerary posts could be created and based on the revaluation the Petitioners could be accommodated.
On behalf of the Respondents, it was argued that the matter already attained finality in the earlier writ proceedings, that res judicata is attracted
and that there was delay and latches on the part of the Petitioners to approach the Court and therefore no relief could be granted.
The learned single Judge after thoroughly going through the records and appreciating the contentions, held as follows:
(a) The Respondents admitted the mistakes in the key answers.
(b) The mistakes committed by board cannot be employed against the un-selected candidates.
(c) Petitioners were not aware of the wrong key answers till they got information under Right to Information Act.
(d) Res judicata would not arise, when questions involved in the writ petition were not specifically raised and considered earlier.
(e) There is no delay on the part of the Petitioners as the Respondents themselves did not verify correctness of answers even after the examination,
which is evident from first Appellant''s letter dated 30.1.2009.
(f) The Respondents cannot take advantage of their own wrong and contend laches is on the part of the Petitioner and issued following directions:
24 Hence after taking into consideration of the above said factual and legal position, this Court is of the opinion that it is a fit case where the
following directions will have to be issued:
(i) The Respondents are directed to prepare a list of all the un-selected candidates who have answered question No. 11 with option No. (D),
Question No. 38 with all the answers and question No. 44 with option No. (A) and grant marks accordingly.
(ii) The Respondents are directed to take the cut-off marks fixed for the selection made in the written examination on the basis for respective
categories for the consideration of the non-selected candidates who would get higher marks in pursuant to the directions given by this Hon''ble
Court.
(iii) The Respondents are directed to conduct vivo-voce Test for those candidates who come within the cut-off marks in pursuant to the granting of
higher marks in the written examination.
(iv) The Respondents are directed to take into consideration of the marks obtained in the interview for those unsuccessful candidates who have
already attended the interview and who would be getting additional marks.
(v) The Respondents are directed to consider the candidates who would become eligible to be selected in view of the directions of this Hon''ble
Court by adding the marks due to them in the available vacancies, in the respective categories, as on the last date of the interview conducted.
(xi) For the future examinations, the second Respondent is directed to verify the key answers immediately after the written examination is over and
published the same in the web site of the second Respondent as well as in any one of the news papers.
(vii) The second Respondent is also directed to publish the marks obtained by the candidates in the written examination after the evaluation of the
written examination in the web site of the second Respondent.
Insofar as the Petitioner in W.P. Nos. 9181 of 2009 is concerned, the Respondents are directed to consider the seniority of the Petitioner based
upon the revised marks by taking into consideration of the marks to be awarded for the right answers in accordance with law.
Aggrieved by the order of the learned single Judge, the Respondents are before this Court. Learned Advocate General raised the following
contentions:
He submitted that two types of Petitioner are before this Court namely
(a) the candidates, who were parties to the earlier writ proceedings.
(b) other candidates, who approached this Court for the first time.
(1) As far as first group of Petitioners are concerned, he submitted that the entire selection process was challenged by them earlier and it attained
finality and therefore constructive res judicata applies.
(2) As far as new candidates are concerned, they are guilty of latches as they approached the Court belatedly after passage of two years and
discretionary remedy of writ cannot be granted to them in view of failure to ascertain their rights in time.
3) All the contentions were raised in the earlier proceedings and they were negatived against the Petitioners/candidates. Even if the contentions
were not specifically raised, they were decided as a whole by upholding entire selection process.
Learned Advocate General further submitted that:
(1) The entire processes of selection was already over;
(2) The selected candidates were sent for training in batches and they were appointed already;
(3) When the selection processes was already over, there was no necessity for re-consideration by way of re-valuation.
(4) If the exercise as per the order of the learned single judge is to be done, it will unsettle the selection which was completed;
(5) It is not possible to create supernumerary posts and appoint candidates based on revaluation;
(6) Subsequent vacancies cannot be filled up with the candidates who participated in the earlier selection process, which was already completed;
(7) Filling up of vacancies over and above the vacancies advertised would be against the judgments of the Hon''ble Supreme Court.
(8) There was no suppression of material facts before the Court and there was no fraud committed by the Respondents.
(9) If at all any mistake was committed, it was only a bona fide and unintended mistake and nothing could be attributed against the officials.
(10) The verification of answers was not taken to avoid leakage of question papers.
He relied upon the following judgments in support of his contentions.
1) State of Orissa and Others Vs. Harapriya Bisoi, .
2) Shiba Shankar Mohapatra and Others Vs. State of Orissa and Others, .
3) Chairman, U.P. Jal Nigam and Another Vs. Jaswant Singh and Another, .
4) Smt. Sulochana Chandrakant Galande Vs. Pune Municipal Transport and Others, .
5) S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others, .
6) P.S. Sadasivaswamy Vs. State of Tamil Nadu, .
7) A.P. Steel Re-Rolling Mill Ltd. Vs. State of Kerala and Others, .
8) Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.), Andheri and Others, .
9) Heena Kausar v. Competent Authority (2008) 14 SCC 724.
On the other hand, Mr. Venkatramani, learned senior counsel appearing for the Petitioners submitted that most of the Petitioners could not be
selected by one or two marks or who missed the selection because of seniority in age when their marks were the same as that of selected
candidates. He made the following contentions:
(1) Admittedly, there were wrong key answers.
(2) Marks of each category for selection were not given.
(3) Petitioners were deprived of marks and selection though answering questions rightly.
(4) Arbitrariness and discrimination vitiated the selection processes.
(5) In view of the admission made by the government there cannot be any delay. Admittedly, when the mistake was committed by the authorities,
there could not be any laches. He relied upon the judgment of the Hon''ble Supreme Court (2001) 12 SCC 259.
Mr. C. Selvaraj, learned senior counsel appearing for some of the Petitioners submitted that his parties approached this Court only in 2009
after ascertaining the details under Right to Information Act. The writ petitions were filed on 6.9.2009. He raised the following contentions:
(1) Mere selection would not confer any right on the selected candidates.
(2) When the issue was pending before this Court, there was no delay.
(3) After getting the details under RTI Act, the Petitioners approached this Court rightly and there is no delay.
(4) Illegality cannot be perpetuated that too on technicality.
(5) Petitioners have legitimate expectation of selection.
He relied upon the following judgments:
1) State of Orissa v. Prajnaparamita Samanta, (1996) 7 SCC 106 President, Board of Secondary Education v. D.Suvankar 2006 JT 10 .
2) Sandeep v. State of Haryana, 2001 (1) ALD (Crl.) 620 (SC), .
3) Guru Nanak Dev University v. Saumil Garg (2005) 13 SCC 749.
4) K. Venkatachalam Vs. A Swamickan and Another, .
5) State of U.P. and Others Vs. Rajkumar Sharma and Others,
Mr. Viswanathan, learned Counsel appearing for Petitioners in 51 cases made the following submissions:
(1) There is no scope for application of res judicata if original order sanctified illegality.
(2) Moreover the key answers were not given in the original proceedings and no opportunity to controvert the key answers was given.
(3) No proper and fair opportunity was given in the earlier proceedings regarding written examination.
(4) Orders obtained fraudulently cannot be a res judicata in view of Section 44 of Evidence Act.
(5) In spite of opportunity to produce the key answers in the earlier proceedings, the Respondent/ government deliberately not produced the
details.
(6) Silence on the part of the government would amount to fraud.
(7) There is no delay, as the Petitioners were waiting list candidates who waited for call letters.
He relied upon the following judgments:
1) Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and Another, .
2) Devilal Modi, Proprietor, M/s. Daluram Pannalal Modi Vs. Sales Tax Officer, Ratlam and Others,
3) Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another, .
4) Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, .
5) United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, .
6) Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas (supra).
7) Hope Plantations Ltd. v. Taluk Land Board (supra).
8) Krishna Chandra Pallai Vs. Union of India (UOI) and Another,
9) S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, .
Mr. Ravi Anandhapadpanabhan, appearing for the Petitioners in W.A. Nos. 1603 and 1606 of 2010 submitted that as the key answers were
found to be wrong, this Court can grant relief to the candidates. He relied upon the following judgments:
1) Union of India (UOI) and Others Vs. R. Reddappa and Another, .
2) B.C. Chaturvedi Vs. Union of India and others, .
3) State of Gujarat and Others Vs. Biharilal (D) By Lrs., .
4) State of M.P. and Others Vs. Hazarilal, .
5) P. Rathinam/Nagbhusan Patnaik Vs. Union of India and another, .
6) Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others,
7) The Consumer Action Group and Another Vs. State of Tamil Nadu and Others, .
Mr. Gnanasambandam, appearing for the candidates in 9 writ appeals in W.A. No. 1605 of 2010 and others submitted the following:
(1) Facts should be certain and known to both the parties and they should have been adjudicated to attract res judicata.
(2) When fact in issue viz ""wrong key answers"" was not the subject matter in the earlier proceedings and it was not known to the Petitioners which
was also admitted by the government, it cannot attract res judicata.
(3) The Petitioners have no means to find out what was going on in the recruitment board. He referred to ""ADMINISTRATIVE LAW"" by Hw
WADE and C.F. FORSYTH and ""JUDICIAL REVIEW ON ADMINISTRATIVE ACTION"" by SAD SMITH. He further referred to
explanation 4 of Section 11 Code of CPC to contend that res judicata would not apply to the facts of the case and writs are to be allowed on the
admission made by the Respondents as per order 21 Rule 6 of the Code of Civil Procedure.
He relied upon
1) Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, .
2) P.N. Subramanyam Reddy Vs. Andhra Pradesh State Road Transport Corporation and others, .
3) Mohan Singh Vs. State of Punjab, .
In reply, learned Advocate General submitted that:
(1) There was no plea of fraud by the Petitioners.
(2) There was no willful suppression of fact.
(3) Government was not gained or benefited out of the alleged suppression.
(4) If at all any mistake was there, it was only a bona fide mistake.
He relied upon the following judgments
1) State of Orissa v. Harapriya Bisoi (supra)
2)Shiba Shankar Mohapatra and Ors. v. State of Orissa and Ors. (supra).
Heard the rival contentions and perused the records.
The case can be divided into two.
(1) Case of 23 candidates, who were parties to the earlier proceedings.
(2) Case of other writ Petitioners, who approached the Court for the first time.
Petitioners who were Parties to the earlier proceedings
The case of those who were parties to the earlier proceedings is resisted on the ground of constructive res judicata by the government relying
upon the Apex Court judgments in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. (supra) in Heena Kausar v.
Competent Authority (supra). However the Hon''ble Supreme Court in Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port
Trust and Another, held that the technical rule of res judicata, although a wholesome rule based on public policy, cannot be stretched too far to bar
the trial of identical issues in separate proceedings merely on an uncertain assumption that the issues must have been decided. In Hope Plantations
Ltd. v. Taluk Land Board (supra) it was held that the parties may not be bound by the determination earlier, if there is fresh cause of action, or
continuous cause of action or law is changed or differently interpreted. In the case on hand, in the earlier proceedings ""Wrong Key answers"" were
not raised specifically and decided. Therefore, the learned Judge correctly held that ""Constructive Res judicata"" cannot be applied as the
correctness of key answer was not specifically raised and decided in the earlier proceedings and only based on RTI query, the Petitioners came to
know about the details of the key answers. Therefore, we respectfully agree with the said conclusion. In any event, the learned Advocate General
tacitly conceded that res judicata would not attract in respect of those 23 candidates, who approached the Court earlier. He produced a list of 23
candidates, whose papers were re-valued and out of revaluation 10 persons are eligible to be appointed. The list of candidates are given below:
Sub Inspector of Police-2006
Eswaramoorthy-BC
Hemanth Kumar-BC
Rethina Kumar-MBC
Shanmugam-SC
Thiruvengadam-MBC
Hari Krishnan-BC
Vijayakumar-BC
M. Mariappan-BC
M.A. Kamal Mohan-SC
T. Vannavamalai-MBC
Therefore, based on the above 10 candidates who got qualified are directed to be appointed after complying with formalities.
The Candidates those who approached the Court for the first time
They were not parties to the earlier proceedings. Therefore, the question of res judicata does not arise. The only point to be decided is as to
whether the candidates could be granted relief, in view of delay on their part to approach the Court seeking remedy.
It is seen that the notification was issued on 19.7.2006 for selection of candidates for the post of Sub-Inspectors of Police and the vacancies
sought to be filled up was as on 31.12.2004; results were announced on 17.7.2007; Earlier proceedings attained finality by order dated
28.3.2008. Subsequently, only the applications were filed under RTI Act seeking details regarding key answers. Meanwhile, the first batch of
selected candidates were sent for training in January, 2008 and the second batch in June, 2008. The entire process of selection was over and the
rights got accrued to the selected candidates. On 30.1.2009, the second Respondent board wrote a letter to the first Respondent about the wrong
key answers given for question No. 44 and further informed that 145 candidates were eligible for selection based on awarding of extra marks to
the said question No. 44 and that they could be accommodated. The said proposal was rejected by the government by letter dated 22.5.2009. It
was admitted before the learned single Judge that the key answers for three questions namely 11, 38 and 44 were wrong and there was a mistake
in awarding of marks for the said question.
Though it was admitted by the Government that wrong key answers were given for three questions, this Court has to see whether the said act
is a deliberate one warranting interference by this Court. Para-8 the communication dated 30.1.2009 written by the second Respondent board to
the first Respondent reads as follows:
Regarding the key for Question No. 44, it is submitted that because of the previous leakage of question papers abundant precautions were
taken by the Recruitment Board in setting up of the question paper. Three set of question papers along with keys were obtained from three Senior
IPS Officers whose integrity/record was impeachable. Later the Chairman picked up one of the question papers which was sent to Tamil Nadu
Public Service Commission for printing. The question paper was opened only in the Printing Press where it was printed. The Board never verified
either the question paper or the key. The Board members saw the question paper only after the examination was over. This was done as an
abundant precaution to prevent the leakage of the Board.
The aforesaid communication would prove that only to avoid leakage of question papers, the question and answers were not verified. It was
done only in the interest of public to maintain secrecy regarding the questions, considering earlier instances of leakage of question papers. Hence, it
is evident that there is no deliberate act on the part of the board to give wrong key answers and it was only a bona fide mistake and unintentional.
Therefore, this Court agrees with the submission of the learned Advocate General in this regard.
Fraud and Suppression of Material Facts
It is seen from the files produced that only after the candidates started applying under RTI Act in June, 2008, the board started to verify the
correctness of the key answers writing to the University of Madras. The process of verification undertaken by the second Respondent was also
given by way of RTI reply dated 31.3.2009. For question No. 44, the correct answer ""Mount Batten"" was received from the University by letter
dated 22.12.2008. As far as question No. 38 is concerned, the board wrote a letter to Madras Medical College on 3.4.2009 and a reply was
obtained on 15.4.2000. As far as question No. 11 is concerned, the correct answer was ""D"" which was also obtained from the experts. The said
exercise was done till 26.5.2009. After verification only, the board came to know the wrong key answers in May, 2009. The correct details about
the wrong key answers were given by RTI reply dated 4.8.2009 to the Petitioners. In the above circumstances, there was no possibility of having
information regarding correct key answers by the Respondents themselves and consequently informing the same before the Court in the earlier
proceedings in 2007. Therefore, there was no deliberate suppression of material facts by the government.
Though it is seen as serious lapse and failure of duty on the part of the government, it can not be said deliberate act. Equally, it cannot be said
that the government is taking advantage of its own wrong. There was no necessity for the Respondents to deliberately frame wrong key answers.
There is no dispute that ""fraud vitiates even solemn proceedings"". The Apex Court in detail discussed about ""Fraud"" in State of Orissa and
Ors. v. Harapriya Bisoi (supra) and para 40 is extracted as follows:
It is necessary to consider the effect of fraud.
By ''fraud'' is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the
other is immaterial. The expression ''fraud'' involves two elements, deceit and injury to the person deceived. Injury is something other than
economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any
person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will
almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no
corresponding loss to the deceived, the second condition is satisfied. (See Vimla (Dr.) v. Delhi Admn.4 and Indian Bank v. Satyam Fibres (India)
(P) Ltd. )
A ''fraud'' is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in
order to gain by another''s loss. It is a cheating intended to get an advantage. (See S.P. Chengalvaraya Naidu v. Jagannath.)
''Fraud'' as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which
includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It
is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against
fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and
act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensures there from although the
motive from which the representations proceeded may not have been bad. 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. (See Ram Chandra Singh v. Savitri
Devi.)
''Fraud'' and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human
conduct. MICHAEL LEVI likens a fraudster to MILTON''S SORCERER, COM US, who exulted in his ability to ''wing me into the easy-hearted
man and trap him into snares''. It has been defined as an act of trickery or deceit. In WEBSTER''S THIRD NEW
INTERNATIONAL DICTIONARY, ''fraud'' in equity has been defined as an act or omission to act or concealment by which one person obtains
an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In BLACK''S LEGAL
DICTIONARY, ''fraud'' is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some
valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or
misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he
shall act upon it to his legal injury. In CONCISE OXFORD DICTIONARY, it has been defined as criminal deception, use of false representation
to gain unjust advantage; dishonest artifice or trick. According to HALSBURY''S LAWS OF ENGLAND, a representation is deemed to have
been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act,
1872 defines ''fraud'' as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise, fraud
arises out of deliberate active role of the representation about a fact, which he knows to be untrue yet he succeeds in misleading the represented by
making him believe it to be true. The representation to become fraudulent must be of a fact with knowledge that it was false. In a leading English
case i.e. Deny v. Peek what constitutes ''fraud'' was described thus:
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.''
But ''fraud'' in public law is not the same as ''fraud'' in private law. Nor can the ingredients, which establish ''fraud'' in commercial transaction, be of
assistance in determining fraud in administrative law. It has been aptly observed by LORD BRIDGE in Khawaja v. Secy. of State for Home
Deptt., that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. ''Fraud'' in
relation to statute must be a colorable transaction to evade the provisions of a statute.
''20. ... ""If a statute has been passed for some one particular purpose, a Court of law will not countenance any attempt which may be made to
extend the operation of the Act to something else which is quite foreign to its object and beyond its scope."" Present day concept of fraud on statute
has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of
statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colors of fraud in public law or
administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly
and deliberately to invoke exercise of power and procure an order from an authority or Tribunal. It must result in exercise of jurisdiction which
otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a Section on existence or non-
existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in
commercial transactions non-disclosure of every fact does not vitiate the agreement. ""In a contract every person must look for himself and ensures
that he acquires the information necessary to avoid bad bargain."" In public law the duty is not to deceive.'' (See Shrisht Dhawan v. Shaw Bros. 10
SCC 554, para 20.)
In that case it was observed as follows: (Shrisht Dhawan v. Shaw Bros, case 10 SCC. 553, para 20)
Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human
conduct. MICHAEL LEVI likens a fraudster to MILTON''S SORCERER, COMUS, who exulted in his ability to, ""wing me into the easy-hearted
man and trap him into snares"". It has been defined as an act of trickery or deceit. In WEBSTER''S THIRD NEW INTERNATIONAL
DICTIONARY fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against
conscience over another or which equity or public policy forbids as being prejudicial to another. In BLACK''S LEGAL DICTIONARY, fraud is
defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him
or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal
injury. In CONCISE OXFORD DICTIONARY, it has been defined as criminal deception, use of false representation to gain unjust advantage;
dishonest artifice or trick. According to HALSBURY''S LAWS OF ENGLAND, a representation is deemed to have been false, and therefore a
misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as an act committed by a
party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of
representation about a fact which he knows to be untrue yet he succeeds in misleading the represented by making him believe it to be true. The
representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case Derry v. Peek what constitutes
fraud was described thus: (All Er p. 22 B-C)(AC p.374)
''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.
This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School
and Intermediate Education, Ram Chandra Singh case and Ashok Leyland Ltd. v. State of T.N.
Suppression of a material document would also amount to a fraud on the Court. (See Gowrishankar v. Joshi Amba Shankar Family Trust and
S.P. Chengalvaraya Naidu case.)
''Fraud'' is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response
to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti
Yadav v. U.P. Board of High School and Intermediate Education (supra).
In Lazarus Estates Ltd. v. Beasley, LORD DENNIN Go bserved at QB p. 712:
''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.''
In the same judgment LORD PARKER, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity.
This Court already concluded that there was no suppression of material facts by the Government and consequently it has to be held that there was
no fraud committed by the Government. Moreover, the government is not gained/benefited out of the alleged suppression or fraud. Therefore, the
judgment of the Apex Court in Meghmala and Ors. v. G. Narasimha Reddy rendered in SLP (C) Nos. 14447-14448 of 2007 and in S.P.
Chengalvaraya Naidu (Decd) by Lrs v. Jagannath (Decd) by Lrs and Ors. (supra) relied on by the Petitioners based on fraud/suppression of
material facts are not applicable to the facts of the case. Even otherwise, there is no plea of ""fraud"" by the Petitioners.
Delay/Laches
As far as the delay is concerned, as stated earlier for the vacancies as on 31.12.2004, notification was issued on 19.7.2006 for recruitment.
Examination was conducted on 20.5.2007. Results were published on 17.7.2007 and final selection list was published on 20.12.2007. First batch
of candidates were sent for training in January, 2008 and second batch of candidates were sent in June, 2008 and the selection process was
already over. Earlier writ proceedings initiated challenging the selection were dismissed by the learned single Judge on 20.12.2007 and by the
Division Bench on 28.3.2008 and by Apex Court on 28.10.2008. Subsequently, the Petitioners started applying under RTI Act to get details of
the examination. The Petitioners cannot take advantage of their delayed query under RTI Act in June 2008. There was no prohibition for the
Petitioners to apply and they could have made the exercise even at the earliest point of time. Delayed RTI application cannot give them cause of
action for filing the above writ petitions. If the contention of the Petitioners in this regard is to be accepted, there will not be any finality to the
selection process and it will be against public interest.
As stated earlier, there was a considerable long delay on the part of the Petitioners even for applying under RTI Act which enabled them to file
the writ petitions from March, 2009 onwards before this Court. Petitioners are required to approach this Court without any delay and it is well
settled law that delay defeats the rights. The entire process was already over and the selected candidates already were appointed. Apart from that,
another recruitment for the post of Sub-Inspector was made in 2010 and it is informed that about 1091 +4 candidates were provisionally selected.
In P.C. Sethi and Others Vs. Union of India (UOI) and Others, , it was held that petitions could not be dismissed on the ground of delay, as there
were hopes given by the government to the Petitioners therein and believing the same they did not approach the Court in time. Therefore, the facts
of the case are different. In State of Karnataka v. Y. Moideen Kunhi (Dead) by L.Rs and Ors. AIR (2009) SCW 4491 : (2010) 3 MLJ 668 and
in Collector Land Acquisition Anntnag and Anr. v. Mst. Katiji and Ors. (supra), the point for consideration was condo nation of delay in Land
Acquisition proceedings and therefore, they are not useful to the Petitioners. However, in Smt. Sulochana Chandrakant Galande Vs. Pune
Municipal Transport and Others, , it has been held that those who approached the Court belatedly, could not be permitted to get the same benefits
when similarly placed diligent people got the benefits. The Hon''ble Supreme Court in P.S. Sathasivasamy v. State of Tamil Nadu (supra) dealt
with a service matter in which promotion was challenged and held that a person aggrieved by the promotion of his juniors should approach within
or in a year. It was further held that it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary
power under Article 226 of the Constitution of India, in the case of persons who do not approach it expeditiously for the relief and who stand by
allow things to happen and then approach the Court to put forward stale the claim and try to unsettle settled matters. In State of Orissa v.
Prajnaparamita Samanta, (1996) 7 SCC 106 President, Board of Secondary Education v. D.Suvankar 2006 JT 10 , it was held that only those
who are diligent and approach the Court in time can be given relief. Therefore, discretionary relief sought for belatedly by the Petitioners under
Article 226 cannot be granted on the ground of delay.
It is true that when the government is at fault, it should not stand on plea of limitation or technicality as held by Apex Court in S.R. Bhanrale
Vs. Union of India and others, . As rightly pointed out by the learned Counsel for the Petitioners, there is no dispute with regard to powers of this
Court under Article 226 to render complete justice beyond technicalities and the same is recognised in Collector Land Acquisition Antnag and
Ors. v. Mst. Katiji and Ors. (supra), Dwarthnath v. I. T. Officer (1996) SCC 1981, Union of India and Ors. v. R. Reddappa and Anr. (supra),
B.C. Chaturvedi Vs. Union of India and others, , Air India Statutory Corporation v. United Labour Union AIR 1977 SCC 645. Similarly, this
Court has power to order revaluation in case of irregularities/malpractice and is recognised in Abhijitsen v. State of UP. AIR 1994 SC 1402, C.
Tulasi Priya Vs. A.P. State Council of Higher Education and Others, . However, the delay in this case is too long. The paper valuation done in
2007 has been challenged in 2009. It is found in this case that the mistake occurred was bona fide and not deliberate one. Therefore, the directions
given by the learned single judge to add marks for wrong key answers to the non-selected candidates and consider them for selection at this
distance of time are not warranted and therefore they are set aside.
As found in the impugned order that letter dated 30.1.2009 itself would show that the second Respondent did not verify the answers even after
the examination. This Court found that there was bona fide mistake committed in setting key answers, and the verification was not done only to
prevent leakage of question papers. If any direction is to be issued, it would certainly un-settle the selection process which was already completed,
and it would give room for many claims from various parties making the issue very complicated. At this point of time, if the directions of the learned
single judge are given effect, more candidates would possibly be eligible for appointment, and it would compel the government to make
appointments more than advertised and it would be against settled position of law. In Union of India v. Easwersingh Khatri (1992) Suppl. 3 SCC
Thakur Kishan Singh (dead) Vs. Arvind Kumar, , Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and others, and State of UP. and Ors.
v. Rajkumar Sharma and Ors. (supra) it has been held that filling up vacancies over and above the number of vacancies advertised could be
violative of fundamental rights guaranteed under Article 14 and 16 of Constitution of India. Therefore, the directions (i) to (v) given para 24 of the
impugned order are set aside.
Fence Sitters
No doubt the Petitioners had legitimate expectation about the selection and they are also not responsible for the problem. However, the
Petitioner approached the Court only in 2009 for the first time. The Hon''ble Supreme Court in Shiba Shankar Mohapatra and Ors. v. State of
Orissa and Ors. (supra) held as follows:
It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can
claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the
latches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the
interregnum.(vide Aflatoon and Others Vs. Lt. Governor of Delhi and Others, :, State of Mysore and Others Vs. V.K. Kangan and Others, ; The
Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, ; Inder Jit Gupta and Others Vs. Union of India and Others, ;
Shiv Dass Vs. Union of India (UOI) and Others, ; The Regional Manager, APSRTC Vs. N. Satyanarayana and Others, :and City and Industrial
Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and Others, .
(Emphasis supplied)
.
Hence, the Petitioners who approached the Court for the first time are definitely ""fence sitters"". In view of that, the writ petitions filed by those
Petitioners who approached the Court for the first time in 2009 are dismissed on the ground of delay.
As far as writ Petitioner in W.P. No. 9181 of 2009(W.A. No. 1739 of 2010) is concerned, he was already selected and was appointed as
Sub-Inspector of Police (Armed Reserve). In view of the wrong key answers, he sought for additional marks. Therefore, he gave representation
only on 9.4.2009 to award two additional marks and to post him as Sub-Inspector of Police (Taluk). It is seen that he was selected on
19.12.2007 and sent for training on 18.1.2008 as Sub-Inspector of Police (Armed Reserve) on 28.4.2008. Subsequently, he gave a
representation only on 9.4.2009. Hence, the said representation is directed to be considered by the Respondents based on merits as per law. The
appeal is allowed and the writ petition is disposed with the above direction the writ petition is disposed.
In fine,
(1) The appeals filed by the government are allowed setting aside the directions given in the impugned order in para 24(i) to (iv) except para 25(vi)
& (vii).
(2) As far as 23 old candidates are concerned, as stated above, the list provided by the Advocate General would disclose that revaluation was
done and out of 23 candidates 10 candidates are found to be eligible for appointment. Accordingly, they are directed to be appointed subject to
usual formalities.
(3) W.A. No. 1739 of 2010 is also allowed with a direction to dispose of the Petitioner''s representation dated 9.4.2009. Appeals are allowed as
stated above. No costs.
However, it is seen that the litigations are due to mistakes committed during setting up question paper. The Petitioners are not responsible for
wrong key answers. Though this Court found the mistake/wrong committed was unintentional and bona fide, the second Respondent has to bear in
mind that it is conducting exams to recruit persons for uniformed services. Any irregularity in the process of selection would affect morale of the
force and interest of the public. In future, the second Respondent board should be very seriously and carefully and responsibly conduct exams
without giving any room for challenge. In this regard, the learned judge issued general guide lines to be followed in future in para 25 (vi). (vii) of the
impugned order and the same are confirmed.