STATE OF ASSAM Vs. CHANDAN KONWAR

JUDGEMENT

(1.) This application has been filed to review the earlier judgment and order dated 3.4.96 passed by this Court in Civil Rule No. 1707/ 1996. The prayer for review is made on the ground that this order was obtained from this Court by playing fraud and misrepresenting the facts before this Court. The petitioners claimed that they were the selected candidates. But it is pointed out by the Senior Govt. Advocate appearing for the State of Assam that this statement is absolutely incorrect and a regular enquiry was made and on enquiry it was found that photocopy of the Select List which was produced along with this case, the names were subsequently entered by manipulation. Mr. C. Choudhury, Senior Govt Advocate submitted that he has not received the copy of original select list in the office at the time of filing the application. Now he has obtained a copy of the select list only from the other Civil Rule which was filed on the basis of the same Select List. He produces before me a photocopy of the Select List in the other Civil Rule wherein the names of the three petitioners are not available.

(2.) The law on this point is clear as decided by the Apex Court in (1994) 1 SCC1 (S.P.Chengalvaraya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by Lrs. & Ors.) where the Apex Court pointed out that judgment and decree obtained by fraud is to be treated as nullity and can be questioned even in collateral proceedings. The Apex Court further pointed out that the principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. A person, whose case is based on falsehood, has no right to approach the Court. A judgment or decree obtained by playing fraud on the Court is a nullity and non-est in the eyes of law. Such a judgment and decree by the first Court or by the highest Court has to be treated as a nullity by every Court whether superior or inferior, ii) AIR 1970 SC 1269 (The Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors.) where the Supreme Court pointed out that in case of malpractice the question of adhering to the principle of natural justice does not arise. The authority can take action on the basis of summary enquiry if mere are sufficient materials to come to the finding that malpractice was resorted by the person. iii).(1993) I SCC 154 (Union Territory of Chandigarh Vs. Dilbagh Singh & Ors.) That was a case where appointment was obtained on the basis of select list which was prepared in unfair and unjudicious manner. That Select List was cancelled by the authority. The question which arose before the Apex Court was that whether the selected persons are entitled to an opportunity of hearing before cancellation as even though they have a legitimate expectation. But the Supreme Court pointed out that such a selected person does not have an indefeasible right to be appointed in absence of any rule to that effect. The Supreme Court pointed out that cancellation in such situation must be non-arbitrary and bonafide. Once the administration comes to a funding that the Select List is a dubious, the authority can always cancel it. (iv) (1996) 10 SCC 749 (Promod Lahudas Meshram Vs. State of Maharashtra & Ors.). In this case, a person was appointed as Probationer, but later on it was found that the recommendation which was made for the appointment of the person was not a proper one and the service of the person was terminated without affording opportunity to the person. In this case the Supreme Court pointed out that in such a situation, the termination is not illegal. v)AIR 1979 SC 1047 (Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma). That is with regard to the power of review. The Supreme Court pointed out that an order under Article 226 can be reviewed by the Court.

(3.) In this case I find that the earlier order dated 3.4.96 was obtained from this Court by playing fraud and misrepresenting the facts. Accordingly, this Review application is allowed and the earlier order dated 3.4.96 passed in Civil Rule No. 1707/96 shall stand set aside and quashed. The petitioners in C.R. No. 1707/96 earlier appointed on the basis of the order dated 3.4.96 passed by this Court shall be thrown out from service. It is submitted that these persons have already been terminated from service by the authority. The authority may also take appropriate action as against these persons if so advised. In the facts of this case I am inclined to initiate action against these petitioners, but I have refrained from doing so. Heard Mr. A.K. Bhattacharyya, learned Sr. Advocate for the respondents, Mr.