Judgment:
1. By consent, taken up for final hearing.
2. Is this a case of a biological miracle where respondent Nos. 4 to 38, all adult employees promoted as Sub-Inspectors of Excise, have grown in physical height in some cases in as much as 8 centimeters after their employment? Or is this a plain case of a fraud committed by them with the aid of medical Officers for the purpose of getting promotion without possessing necessary physical qualification required for the post? - is what the government wants to enquire into. Is it prevented from doing so by reason of several orders of the Maharashtra Administrative Tribunal (for short M.A.T.) is the question which arises for our consideration in this petition under Articles 226 & 227 of the Constitution of India.
3. The facts giving rise to the petition may be briefly stated thus:-
The petitioners as well as respondent Nos. 4 to 38 were employed either as clerks or constables, in the State Excise Department of State of Maharashtra, 50% of the posts of Sub-inspectors in State Excise are filled in by promotion of clerks and Constables. The State of Maharashtra has published Recruitment Rules for the posts of Sub inspectors of State Excise by issuance of a Notification No. EST-2390/342/EXC-4 dated 1st January 1993. The rules prescribe the minimum height of 165 cm for male and 160 cm for female candidates for being appointed to the post of Sub-Inspector of Excise. In June 1993, height of the departmental candidates who had applied for the posts of Sub-Inspectors, was measured departmentally and the respondent Nos. 4 to 38 were found to possess height less than the height prescribed by the Rules. They were however allowed to appear for written examination conducted for the post of Sub-Inspectors of Excise or their giving a written undertaking that they would be considered for promotion only if the Rules relating to the height were relaxed by the Government and if they passed the written examination. It was common ground that the requirement of the minimum height was not relaxed by the Government and the respondent No. 4 to 36 were therefore, not promoted as Sub-Inspectors of excise in the year 1993.
4. In the year 1997, Excise Department again decided to fill up posts of Sub-Inspector of Excise, through promotion. Accordingly, applications were invited from the clerks and constables working in the Department vide circular dated 13th August 1997. The applicants were required to produce medical certificate from a Civil Surgeon or R.M.O. that they fulfilled the prescribed physical requirement of height. Respondent Nos. 4 to 38 who were not considered as eligible for promotion in the year 1993 as possessing less than the prescribed height managed to produce medical certificates issued by Civil Surgeons or R.M.Os about their heights being 165 cm or 160 cm as the case may be. Respondent Nos. 4 to 38 suppressed in their application the fact that they were found to possess height less than the prescribed height at the time of departmental measurement made at the time of examination for promotion in the year 1993 and that they were allowed to appear for the written examination on the basis of their undertakings that their height was less but they would be considered for promotion only if the Rules were relaxed by the Government. All the candidates who successfully passed the written examination in the year 1997 including Respondent Nos. 4 to 38 were called for physical test on 6th March, 1998 before committee of Panel Doctors set up by the department. Thereafter, a final merit list of successful candidates were found eligible for promotion. According to the petitioners, names of respondent Nos. 4 to 38 were not included in the final list and they were declared unfit (not possessing required physical height). Petitioners names found place in the list.
5. Thereafter, the respondent Nos. 4 to 38 filed separate Original Applications before the Maharashtra Administrative Tribunal (for short 'MAT') complaining about non inclusion of their names in the select list of candidates and praying for promotion. Two of such applications bearing O.A. No. 27/98 and O.A. No. 42/98 filed by respondent Nos. 4, 5 and 24 herein, were heard and disposed of by the MAT by common judgment and order dated 27th April 1998. The MAT held that the undertaking given in the year 1993 by the applicants should not be held against them and that the certificates issued by the Civil Surgeons/Superintendents of the Government hospitals as to the height of the applicants before it were binding on the Government. In paragraph No. 5, the MAT observed.
'We are satisfied that the petitioners have produced the certificates from the competent Medical authorities concerning their heights. If the certificates given by the Medical Authorities were to be set at naught it could only have been on the basis of a review by same Medical authority or his superior.'
This order was challenged by the State by filing a Writ petition No. 5981 of 1998 in this Court. The Division Bench of this Court summarily dismissed the petition by passing the following order:
'We are not inclined to interfere with the impugned order of M.A.T. Promotions have been given also. In this matter there is no provision of relaxation. The matter is decided on basis of Report of Civil Surgeon. The matter is decided on facts recorded by M.A.T. Rejected'
Following its earlier decision passed in O.A. 27/98 and O.A. 42/98 as confirmed by this Court, the M.A.T. allowed the Original Applications filed by rest of the respondent Nos. 4 to 38. On the basis of the orders passed by the M.A.T. on the various Original Application filed by them, Respondent Nos. 4 to 38 are thus appointed to the post of a Sub-Inspector of Excise by the Government. Though the Government doubted the correctness of the certificates issued by Civil Surgeons/R.M.Os and also doubted whether Respondent Nos. 4 to 38 possessed requisite physical qualifications of height required by the Rules, it felt helpless on account of the orders passed by the M.A.T. and summary dismissal of one Writ Petition.
6. Mr. Subhash Anavate and five others who are working as constables in the State Excise Department of the State of Maharashtra for more than 7-8 years and whose names were included in the select list for promotion for the posts of Sub-Inspector of Excise and who posses the requisite physical qualifications did not get promotions on account Nos 4 to 38 in pursuance of the orders of the M.A.T. Mr. Subhash Anavate and five others filed a Writ Petition bearing Writ Petition No. 3989/01 in this Court, alleging that respondent Nos. 4 to 38 do not possess the necessary physical qualification as to the height for appointment as Sub-Inspectors of Excise and prayed for quashing of the orders passed by the M.A.T. and also for a direction appointing independent competent authority to verify the medical certificates issued by the Civil Surgeons/RMOs produced by the promotees. On 8th September 2001, a Division Bench of this Court ordered that the Government to consider the matter afresh and inform the court within four weeks as to whether the Government proposed to hold an enquiry and if so determined the selected candidates who had been appointed on the basis of false certificates could be called upon by the enquiry authority for impartial ascertainment of their height.
7. In view of this order of the Division Bench passed on 8th September 2001 in Writ Petition No. 1389/2001, the Government constituted a committee/Medical Board for re-examination of the height of the respondent Nos. 4 to 38. Accordingly, re-examination of the height of 17 candidates was made by the Medical Board at J.J. Hospital and re-examination of the height of 14 candidates was made by the Medical Board at G.T. Hospital on 8th and 10th October 2001. Four of the respondent Nos. 4 to 38 were absent. On re-examination, the Medical Board at J.J. hospital found that as many as 16 out of 17 candidates examined did not possess the necessary height of 165 cms or 160 cms and only Mr. G.R. Chavan (the respondent No. 20 herein) was found to possess the requisite height of 165 cm. Out of 14 candidates examined by the Medical Board at G.T. hospital, 13 candidates were to be found to possess the necessary height and only one candidate Mr. M.J. Garude (respondent No. 32 herein) was found to possess the requisite height of 165 cm. As against the certificate of height of 160 cm produced by Smt. M.M. Sawant she was found to possess height of only 152 cm. The height was less by 8 cm. (more than 3 inches) Except one of two cases, which showed minor variations, the chart shows that a wide variation between the height mentioned in the certificates produced by the respondents and the height found on measurements by the Medical Board. Thus, at least prima facie it appears that fraud was committed by procuring false certificates which came to light on re-examination of their height by the Medical Board. In this report dated 6th November 2001, the Additional Director of Health Services, Mumbai has submitted that the height re-examined by the Medical Board are final and that the report overrides the earlier certificates issued by the Civil Surgeons/R.M.Os. of the Government Hospitals.
8. The petitioners who were the successful candidates at the examination and whose names were included in the select list but were not appointed on account of the posts being filled in by respondent Nos. 4 to 38 came to know of this fraud on reading of the news in the newspapers dated 9th February, 2002. The petitioners thereafter filed the present petition for quashing the orders passed by M.A.T. in the Original Application filed by respondent Nos. 4 to 36 quashing and setting aside the promotion of respondent Nos. 4 to 38 as Sub-Inspectors of Excise, and for a mandamus directing the State to strictly follow the Recruitment Rules framed under the Article 309 of the Constitution of India and notified by Notification No. EST-2390/342/EXC-4 dated 1st January 1993. The respondent No. 1 State of Maharashtra has filed an affidavit dated 8th January 2003 sworn in by Purshottom L. Mawale, Assistant Commissioner of Excise, supporting the petitioners. In para Nos. 13 of the affidavit he says:
As regards para 12 of the petition I say and submit that out of 35 respondents 33 respondents have been examined by the Medical Board and except two respondents at serial Nos. 20 and 32 others have been found having less height than prescribed in the Rules. Two respondents at serial Nos. 19 and 31 have not appeared before the Medical Board. I say and submit that they are being directed to appear before the board immediately.
I say and submit that the promotions to the respondents Nos. 4 to 38 have been given on the basis of various orders passed by the Hon'ble Maharashtra Administrative Tribunal and the orders passed by this Hon'ble High Court in the Writ Petition No. 5981 of 1998. I say and submit that the respondent No. 1 and 2 have decided to revert all those sub-inspectors including the respondents 4 to 38 who do not possess physical standards as have been prescribed in the relevant Recruitment Rules if this Hon'ble High Court directs to do so. I further submit that the respondent Nos. 1 and 2 herein would like to take disciplinary action against all those Sub-Inspectors who have produced false certificates from the Medical Authorities.
9. Learned AGP submits that the Government wants to take action against respondent Nos. 4 to 38 except respondent Nos. 20 and 32 but feels precluded from doing so on account of the various orders passed by the M.A.T. He further submits that orders were obtained by respondent Nos. 4 to 38 (except respondents Nos. 20 and 32) from M.A.T. fraudulently by suppressing that they did not possess the prescribed physical height and also by relying upon medical certificates fraudulently obtained by them. Though the department always doubted the correctness of the medical certificates produced by the respondent Nos. 4 to 38, it felt bound by the orders of the M.A.T. and therefore, though it wanted to take further action the Government felt its hands were tied and was unable to do anything. He further submits that if the bar for holding of an enquiry and taking the disciplinary action against respondent Nos. 4 and 38 (except respondent Nos. 20 and 32) is removed by this court, then the Government wants to take action against the said respondents who have procured false medical certificates, and fraudulently obtained orders for the M.A.T.
10. The learned counsel for the contesting respondents strongly relied upon the judgment of the Supreme Court in Kendriya Vidyalaya Sanghathan v. Subhas Sharma reported in AIR 2002 SC 1295 and submitted that the present petition is essentially a service matter and this Court cannot entertain the petition as exclusive jurisdiction is conferred on the Administrative Tribunal under Section 18 of the Administrative Tribunals Act. He invited our attention to prayer Clause (a), in which petitioners have prayed for setting aside of the orders passed by the M.A.T. in the Original Applications filed by respondent Nos. 4 to 38. Relying upon the judgment of the Supreme Court in K. Ajit Babu v. Union of India reported in 1997 SCC (L & S) 1520, he submitted the remedy of the petitioners was to approach the M.A.T. and request it so set aside its orders if the said orders affected them. The fact that the petitioners were not parties in the petition before the MAT did not affect their right of approaching the MAT if it affected their right of promotion which was a service matter. The learned counsel for the contesting respondents submitted that in the case of K. Ajit Babu and Ors. v. Union of India and Ors. (Supra) the Supreme Court has held that a judgment of an Administrative Tribunal given in one class of employees may at the same time affect another class of employees and in such circumstances, the judgment of the Court of the Tribunal may not be strictly a judgment in personem affecting only parties to the case but a judgment in rem. In such a situation, the remedy available to the person who is affected but who may not be a party to the original petition is to file the Review Petition of the judgment and not to file fresh application under Section 19 of the Act. By similar logic, it can be held that if the orders of the M.A.T. affect petitioners and it affects their rights and/or chances of promotion, the remedy for them is to file a Review Petition. Petitioners cannot directly approach this Court for a mandamus to appoint them as Sub-Inspectors or Excise.
11. The learned counsel for the contesting respondents strongly relied upon the observations made by the Division Bench of this Court in it's order dated 8th September passed in Companion Writ Petition No. 1389 of 2001, which are quoted below:
'It may be that in view of the order passed by the Tribunal and this Court, at this stage the Government may not be able to question the appointments made, but the question still remains whether the concerned Medical officers and the Civil Surgeons acted bonafide within the scope of their authority or whether they acted dishonestly and malafide by granting false certificates on the basis of extraneous consideration. If it is found that the Resident Medical Officer/Civil Surgeon acted in a malafide manner it is always open to the Government to hold an enquiry to find out the true facts, not with a view to disturb the appointments made, but with a view to stop illegal appointments being made on the basis of false certificates. The Government can even today order an enquiry and for that purpose constitute an authority which would enquire into and submit its report, on the basis of which, the Government may take appropriate action. We appreciate the submission that the certificates having been produced from the specified authorities, the same cannot be challenged in each and every case. However, if there is material to show that the certificates have been wrongly obtained and on extraneous considerations, and further that these certificates are false, the action of the certifying officers is open to challenge, since malafide exercise of power vitiates the action taken. We would, therefore, direct the Government to consider the matter afresh and to inform this Court within four weeks as to whether Government proposed to hold an enquiry into the conduct of the R.M.O.s/Civil Surgeons concerned, who are alleged to have issued false certificates to the candidates declaring them as eligible though they are really not eligible. If the Government decided to do so, even those selected candidates who have been appointed on the basis of such false certificates may be called upon by the enquiring authority for an impartial ascertainment of their height with a view to verify whether the certificates issued by the R.M.Os/Civil Surgeons were correct or incorrect.
The learned counsel submitted that the Division Bench had ordered an enquiry into the height of the respondent Nos. 4 to 38 not with a view to disturb their appointments made, but with a view to stop illegal appointments being made on the basis of false certificates issued by the medical officers. The Division Bench contemplated granting permission to the State to hold an enquiry against every medical officer who had issued the false certificates and not to hold enquiry against the respondent Nos. 4 to 38 who had procured those certificates. We are unable to agree. We are prima facie satisfied that the certificates obtained by respondent Nos. 4 to 38 (except respondent Nos. 20 and 32) were fraudulent. It is difficult to believe that incorrect certificates were issued innocently by the concerned medical officers. This is not a case of one or two isolated medical certificates but almost all but two medical certificates are found to be false. Such large number of medical certificates could not have been issued except for collateral reason and probably for extraneous consideration. The certificates were used by respondent Nos. 4 to 38 (except respondent Nos. 20 and 32) for securing promotion. The certificates were relied upon before the M.A.T. From paragraph No. 5 of the order of the M.A.T. it is clear that the orders were passed by the M.A.T. relying upon the said certificates which were fraudulent. The orders of the M.A.T. which were thus, obtained, on the basis of fraud cannot stand in the way of the Government from holding an enquiry.
12. Fraud and justice cannot coexist. They do not dwell together. Fraus et jus nunquam cohabitant is a pristine maxim which has never lost its temper all over the centuries. In United India Insurance Co. Ltd. v. Rajendra Singh and Ors. reported in (2003) 4 SCC 581, the Supreme Court applied the said maxim and quoted with approval observation of Lord Denning in Lazarus Estates Ltd. v. Beasley reported in (1956) 1 All ER 341: (1956) 1 QB 702 to the effect '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. Castigating the Motor Accident claims Tribunal and the High Court for not annulling the awards obtained by fraud, the Supreme Court observed (para 4 of the judgment)
'For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a tribunal. The plenary power conferred on the High Court by the constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode'
In S.P. Chengalvaraya Naidu v. Jagannath reported in : AIR1994SC853 , the Supreme Court has observed:
'Fraud avoids all judicial acts, ecclesiastical or temporal observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgement or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.'
13. In Ronald Hyacinth Mendosa v. State of Maharashtra a Division Bench of this Court (to which one of us A.P. Shah, J was a party) also had an occasion to consider the effect of a fraud, on administrative actions and/or judgments obtained by fraud. Repelling that the contention that the petitioner aggrieved by an order of transfer based on a judgment of Administrative Tribunal, which is obtained by fraud, is, required to approach the Administrative Tribunal, at the first instance this Court observed:
'There cannot be any dispute about the proposition that the litigant is required to approach the Central Administrative Tribunal as the court of first instance in respect of the areas of law fr which it has been constituted. However, when the party has approached this court complaining of fraud or collusion by another party resulting in an order which directly affects him, should the remedy under Article 226 be foreclosed. Surely this court exercising jurisdiction under Article 226 is not powerless and would not hesitate to quash and set aside such order if it is convinced that the order was procured by fraud, collusion, misrepresentation, or suppression of material which would affect the very basis of the claim made before the Tribunal.'
A Special Leave Petition to appeal against this judgment was rejected by the Hon'ble Supreme Court.
14. The superior courts have a right and obligation to set aside the orders obtained by fraud and not allow perpetuation of the benefits obtained by fraud. This is all the more true where persons who exercise the police powers of the state are involved in and are beneficiaries of fraud committed by them. The respondent Nos. 4 to 38 are appointed as State Excise Inspector. They exercise the police powers of the State to supervise and regulate trade in liquor. Appointment of the persons to such posts, if obtained on the basis of fraud, cannot be sustained. The state wants to take appropriate action against them but doubts whether the order's passed by M.A.T., writ petition against one of which was summarily dismissed prevent it from enquiring into the allegations of fraud. We have no doubt that the State has a power to enquire and find out if any fraud is committed. if at all the State feels any constraints we hereby remove the shackles apparently aced by it making an enquiry whether the respondent Nos. 4 to 38 (except respondent Nos. 20 and 32) have obtained medical certificates fraudulently and holding appropriate enquiries against them.
15. By prayer (e) of the petition, petitioners seek a writ or order or direction against respondent Nos. 1 and 2 directing them to take action and revert respondent Nos. 4 to 38 or such of them who are found not to be eligible for being appointed as Sub Inspectors on account of their not possessing requisite physical qualifications prescribed by the Rules. Such reliefs can be granted under Article 226 and 227 of the Constitution of India and there is no bar of Section 15 of the Administrative Tribunal Act 1985 for granting that relief. Frauds by Government officials exercising police powers of the State, we believe, are rare. Obtaining of judicial orders by Government officials on the basis of fraudulent certificates procured by them are exceptionally rare. In such exceptional circumstances, the High Court can interfere under Article 226 of the Constitution of India even if an alternative remedy is available. Very recently in T.K. Rangarajan v. Government of Tamil Nadu reported in : (2003)IIILLJ275SC , the Supreme Court had an occasion to consider the judgment of the High Court which had declined to entertain a Writ Petition under Article 226 and 227 of the Constitution of India in a service matter where the State Government of Tamilnadu had suspended and dismissed on a very large scale employees who had participated in an illegal strike. After referring to the decision of the Constitution Bench in the case of L. Chandrakumar v. Union of India reported in : [1997]228ITR725(SC) , the Supreme Court held that even where the alternative remedy of approaching the Administrative Tribunal was available to the suspended/dismissed employees, the High Court should have entertained the Writ Petition in view of the exceptional circumstances of the case. In paragraph No. 10 of its judgment, the Supreme Court has observed:
Hence, as stated earlier, because of very very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the Statute.
We have already observed that the present case is a very exceptional case in which we are prima facie satisfied that the respondent Nos. 4 to 38. (except respondent Nos. 20 and 32) had obtained medical certificates by fraud and had obtained the orders from the M.A.T. on the basis of such fraudulent certificates. The Government wants to hold an enquiry into the allegation of fraud committed to respondent Nos. 4 to 38 (except respondent Nos. 20 and 32) and take appropriate action. We are of the opinion that the existence of an alternative remedy of filing an application for review to the M.A.T. available to the Petitioners is not a bar for granting prayer(s) for a direction to respondent Nos. 1 and 2 to make an enquiry into the allegations of fraud, especially when the State itself supports the petitioners and wants to make an enquiry. We make it clear that the observations made by us in this judgment about the existence of fraud are prima facie observations and the enquiry officer who may be appointed by the Government would be entitled to reach an independent conclusion whether respondent Nos. 4 to 38 (excluding respondent Nos. 20 and 32), had obtained medical certificates of their height fraudulently and had secured the appointments through the orders from M.A.T. on the basis of such fraudulent certificates.
16. In the circumstances, we pass the following order:
The respondent Nos. 1 and 2 are permitted and directed to make an enquiry on the basis of the report of the Medical Boards as forwarded to it by the Addl. Director of Health Services, Mumbai under his letter dated 6th November 2001. If the medical certificates produced by respondent Nos. 4 to 38 (excluding respondent Nos. 20 and 32) are found to be false and/or fraudulent and/or procured by them by malpractices, the State Government is free to take such action against them as well medical officers who fraudulently issued the certificates State thinks fit. Needless to say the person against whom the action is proposed to be taken shall be given an opportunity of having and principles of natural justice shall be followed. In case any orders adverse to the respondent Nos. 4 to 38 or any of them are passed the same shall not be implemented for a period of four weeks from the date of communication of the order.
All concerned to act on a copy of this order duly authenticated by the Associate.