IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE R. DEVDAS WRIT PETITION NO.35739/2018(S-RES) BETWEEN SMT. LAVANYA K. H W/O NAGESH, D/O HANUMANTHARAYAPPA, AGED ABOUT 30 YEARS, GOKULA EXTENSION, NEAR TALUK OFFICE, KORATAGERE TOWN, TUMKUR DISTRICT-572 102.
... PETITIONER (BY SRI.PRUTHVI WODEYAR, ADVOCATE) AND 1. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH, TUMAKURU-572102.
2. THE EXECUTIVE OFFICER TALUK PANCHAYATH, KORATAGERE, TUMAKURU DISTRICT-572 102.
3. THE PANCHAYATH DEVELOPMENT OFFICER TUMBADI VILLAGE PANCHAYATH TUMBADI, KORATAGERE TALUK, TUMAKURU DISTRICT-572 102.
4. THE PRESIDENT TUMBADI VILLAGE PANCHAYATH TUMBADI, KORATAGERE TALUK, TUMAKURU DISTRICT-572 102.
5. SMT.LALITHAMMA D/O NARAYANAPPA, TUMBADI VILLAGE, KORATAGERE TALUK, TUMAKURU DISTRICT-572 102.
... RESPONDENTS (BY SRI. A. NAGARAJAPPA, ADVOCATE FOR R1; SRI. MOHAN S, ADVOCATE FOR R2 TO R4 & SRI. HARISHCHANDRA M, ADVOCATE FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:10.7.2018 PASSED BY THE R-1 VIDE ANNEXURE-N IN RESPECT OF PETITIONER IS CONCERNED.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
Though the matter is coming up for Hearing on Interlocutory application, with the consent of learned counsels for both the sides, the matter is heard and disposed of finally.
2. The petitioner was appointed as Data Entry Operator in the office of the 4th respondent on 28.08.2013. The appointment was on contract basis. On an allegation made against the petitioner, the petitioner was relieved of her service on 23.06.2014, on the recommendation of the Chief Executive Officer of the Zilla Panchayath. Thereafter, the petitioner seems to have made one more representation to the Chief Executive Officer seeking to appoint her once again to the very same post.
3. It is contention of the learned counsel for the petitioner that the Chief Executive Officer has communicated to the Executive Officer of the Taluk Panchayath by letter dated 28.08.2014 to take appropriate action in that regard. Thereafter, the Executive Officer seems to have communicated the same to the Grama Panchayath. On 15.11.2014, it is stated, that the Grama Panchayath resolved in its meeting, to appoint the petitioner once again as Data Entry Operator.
4. The petitioner has approached this Court since an order was passed by the Chief Executive Officer in an appeal filed by the 5th respondent in Appeal No.106/2014-15, recommending removal of the petitioner from service. It is seen from the said order that the appeal preferred by the 5th respondent seeking reinstatement has also been rejected. Since the illegality in the appointment of the petitioner was also brought to the Chief Executive Officer, the Chief Executive Officer, has held that the second appointment of the petitioner, having once been removed from the services, and without prior approval of the Chief Executive Officer is not in accordance with law and therefore, the Chief Executive Officer has recommended the Grama Panchayath to remove the petitioner from service. Consequently, the petitioner was removed from service.
5. Since the petitioner was removed from service on the ground of dereliction of duty, the respondents, prima-facie could not have appointed the petitioner.
6. The petitioner contends that the Chief Executive Officer of the Zilla Panchayath could not have passed an order directing the removal of the petitioner without affording an opportunity of hearing and more so, in an appeal filed by the 5th respondent herein, questioning her removal. It is contended by the learned counsel for the petitioner that the impugned order requires to be set-aside.
7. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eyes of law. “Fraud avoids all judicial acts, ecclesiastical or temporal”. It has also been held 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. The Hon’ble Apex Court has also held that while exercising equitable jurisdiction, the Courts should act to prevent perpetration of a legal fraud as Courts are obliged to do justice by promotion of good faith. Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law. The above observations are found in the case of Devendra Kumar Vs State of Uttaranchal & Ors reported in 2013 (9) SCC 363.
8. In the light of the above, this court is of the opinion that the appointment of the petitioner was not in accordance with law. Moreover, when the petitioner was removed from service on serious charges, the second appointment itself is bad in law. It is also to be noticed that the order of removal of the petitioner having attained finality and the petitioner having not questioned the same, the second appointment of the petitioner cannot be termed as reinstatement, as contended by the learned counsel. A person having acquired the stigma of dismissal from service, cannot be appointed to service more so, by the same authority. When the appointment itself is fraudulent, question of affording opportunity of hearing will not arise. In the light of the above, the petition fails and is accordingly, dismissed. No order as to costs.
9. Since, the petition itself is dismissed, the interlocutory applications i.e., I.A.No.1/2018, I.A.No.2/2018 and I.A.No.3/2018 do not survive for consideration and the same stand disposed of.
Sd/- JUDGE DL