Ch. V. Subrahmanya Sarma Vs. High Court of Andhra Pradesh Rep. by Its Registrar (Administration) and Three ors. - Court Judgment

Excerpt:
- specific relief act, 1963 [c.a. no. 47/1963]. sections 31 & 34: [bilal nazki, v.v.s. rao & g. chandraiah, jj] [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. -- transfer of property act,1882[c.a. no. 4/1882]. sections 53 & 126: [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. - in fact, the very selection wherein the petitioner as well as the respondents have been appointed, was assailed by one sri hariparasad and also by the a. the said rules are extracted as under for better appreciation: 14. it is well settled that no relaxation shall be given from possessing the basic essential qualification required for a particular post. the relevant portion in the judgment of the apex court reported in narinder mohan (5 supra) is extracted as under for better appreciation: syed ismail air1995sc1205 four conditions shall be satisfied viz. for better appreciation, the relevant portion of the judgment, is extracted as under: but for application of this doctrine between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned;g. chandraiah, j.1. aggrieved by the proceedings of the 1st respondent - high court of a.p. hyderabad, represented by its registrar (administration), in roc. no. 5886/2005/ estt-2 dated 16.11.2007, in communicating rejection of representation submitted by the petitioner in response to the gradation (seniority) list of computer operators in high court as on 1.7.2005, the present writ petition is filed.2. the petitioner joined service in high court of andhra pradesh on 20.12.1985 as typist. he acquired additional qualifications viz., ll.b. degree in 1996; post graduate diploma in computer programming in august, 2000 and; post graduate diploma in cyber laws and legal information system (pgdcl) in december, 2002. while so, the 1st respondent issued circular in roc. no. 6017/2000-estt dated 24.10.2000 calling for particulars from the members of the high court establishment for filling up the posts of computer operators, which are category 3(b) of division-ii post as per high court service rules, 1975 (hereafter, the rules). the petitioner submitted his application. by another circular no. 6017/2000-estt dated 31.10.2000 all the candidates were directed to appear for written and oral test on 1.11.2000. after conducting the said test, by order in roc. no. 6939/2000-estt dated 7.11.2000, ten persons including the petitioner were promoted as computer operators. the petitioner was placed at s. no. 4.3. the petitioner submitted representation dated 2.11.2001 to give him seniority in the category of computer operators (category 3(b) of division ii) as per his seniority in the lower post. he also raised objection that candidates shown at s. nos. 1 to 3 do not possess the requisite qualification. by order in roc. no. 7995/2003-estt-2 dated 15.11.2003, the representation of the petitioner dated 2.11.2001 was rejected. the petitioner again submitted another representation dated 19.2.2004 seeking review.4. in the mean while, 1st respondent issued official memorandum in roc. no. 3122/estt-2005 dated 23.9.2005 communicating the gradation (seniority) list of computers operators as on 1.7.2005. the petitioner submitted his objections on 10.10.2005. subsequently, the computer operators became eligible for consideration for promotion to the next higher post i.e., deputy section officer from 7.11.2006 as they had completed six years of service in the category of computer operators as per rule 5 of the rules. as the seniority of the petitioner as computer operator was not fixed, he made a representation dated 1.11.2006 to consider his earlier representations dated 19.2.2004 and 10.10.2005. by impugned proceeding in roc. no. 5886/2005/estt.2 dated 16.11.2007, high court rejected representation of the petitioner dated 10.10.2005. it may also be noticed that petitioner was further promoted to the post of deputy section officer by proceedings in roc. no. 13651/2007-estt-2 dated 10.12.2007. he was placed at s. no. 16 in the list of deputy section officers.5. the case of the petitioner is that as per rules 7(7) and 8(4) of the rules, as amended by notification no. 412 dated 8.10.1999, a computer operator must possess the degree, typewriting english in higher grade and post graduate diploma in computer programming or post graduate diploma in computer applications. further in the appointment orders issued by proceedings dated 7.11.2000, the petitioner was kept at s. no. 4, and three individuals who were placed above petitioner, were not qualified for the post of computer operator, but were permitted to acquire requisite prescribed qualifications within a period of one year. petitioner submits that respondents 2 to 4 do not possess the requisite qualification to hold the post of a computer operator and as rules also do not provide for any relaxation, they ought not to have been permitted to appear for selection test. the petitioner contends that seniority of respondents 2 to 4 must be reckoned from the date of their acquiring requisite qualification under the rules and not from the date of their appointment as on 7.11.2000. the further case of the petitioner is that the reasons for placing the respondents 2 to 4 above him, appear to be that they secured more marks in the written test and oral test. but the same, will not come in his way, as the merit and ability stipulated under rule 15(2) is not applicable to the marks secured in the written/oral test, as the same is only a qualifying test and not a competitive examination to give ranking among the candidates.6. registrar (administration), of high court filed counter and stated as follows. as per rule 15(2) of the rules, post of a computer operator is a selection post and promotion is on merit and ability and not on basis of seniority. seniority in feeder cadre cannot be criteria for fixing seniority in higher selection post. the respondents 2 to 4 did not possess the requisite qualification as per the rules at the time of appointment. by proceedings in r.o.c. no. 6939/2000/estt.2 dated 7.11.2000, they were directed to acquire the requisite prescribed qualification within one year. pursuant to circular dated 24.10.2000 inviting particulars from eligible and qualified candidates for appointment/promotion as computer operator, 35 candidates working in category 4 and 5 of division - ii, submitted their applications. out of them only eleven candidates possessed the requisite qualification. the registry, issued another circular dated 31.10.2000 asking all 35 members to appear for the written test. after conducting of the test, the list in the order of merit was approved by the hon'ble the chief justice and promotion of candidates at s. nos. 1, 2,3,9 and 10 was made conditional; they were required to acquire requisite qualification within one year. as per rule 23 of the rules, the hon'ble the chief justice has the power to relax rules in respect of any member of the service or any person to be appointed to the service in such manner as may appear to him to be just and equitable. the respondents 2 to 4 have submitted applications in october/november, 2001 requesting that they may be permitted to submit prescribed certificates, soon after receipt of the same from the concerned authority. on consideration of the said requests, the then hon'ble chief justice granted extension of time for a further period of one year from 7.11.2001 to enable them to acquire the requisite qualifications and accordingly they acquired the requisite qualifications. it is further stated that the petitioner was promoted after written and oral tests, conducted by the nic officials and the rank obtained by him in the test, was taken as the basis of merit. no doubt the candidates placed above the petitioner, did not possess the requisite qualifications, but they were permitted to acquire the same, later. the seniority in the feeder cadre cannot be the criteria for fixing seniority in the higher selection post and so, the representation of petitioner along the other representations raising self same grounds, were rejected on the ground that the representationists did not choose to challenge the decision taken to conduct written test and oral test/interview for appointment to the post of computer operators. he also attended written and oral test without any demur along with others. the post of computer operator being a selection post, seniority in the feeder category cannot be maintained in the selection category.7. the 2nd respondent filed counter affidavit on his behalf and also on behalf of respondents 3 and 4. in the counter affidavit, while referring to the facts of issuing circulars by the 1st respondent calling for the applications for filling up the posts of computer operator, further stated that the fact of placement of petitioner at sr. no. 4 instead of at sr. no. 1 was within his knowledge on 7.11.2000 itself, but he submitted his representation after a lapse of one year on 2.11.2001 without explaining delay of one year in agitating his rights and, therefore, on the ground of latches, the writ petition is liable to be rejected. the recruitment to the post of computer operator was by way of direct recruitment and hence the claim of seniority based on the lower post, is without any basis and the 1st respondent has rightly rejected the representation of the petitioner by proceedings dated 15.11.2003. the petitioner has not chosen to question the correctness of the same, but filed a review petition. though it is not disposed of till date, he has not agitated this, in promptitude as is expected by a vigilant employee. it is further stated that the review petition submitted by the petitioner dated 19.2.2004 was pending consideration, does not mean that the petition can wait for the same to be disposed of more particularly when his allegation was that the persons who cannot be placed above him in the gradation list, have also been further promoted as deputy section officers, much before him. it is stated that the respondents 2 to 4 were not qualified at the time of issuance of circular, cannot be called in question at this late hour. in fact, the very selection wherein the petitioner as well as the respondents have been appointed, was assailed by one sri hariparasad and also by the a.p. high court service association represented by one punreddy venkatareddy wherein the respondents were parties in the writ petition and the petitioner herein was also one of the respondents. the contention, similar to one raised by the petitioner herein, has been raised by the petitioner therein, and the division bench of this court was pleased to hold that proficiency in computer operation was the main criterion and the other qualifications were only ancillary. article 229 as also rule 23 of the rules, empower the chief justice to relax the rules. in view of the fact that the issue has been finally decided by the division bench, to which the petitioner was also a party, he cannot be permitted to rake up the issue once again.8. the learned counsel appearing for the petitioner reiterating the averments made in the writ petition, sought to set aside the impugned order dated 16.11.2007 and to direct the 1st respondent to re-fix the seniority of the computer operators in accordance with the rules. 9. the learned standing counsel for the 1st respondent, also reiterating the averments made in the counter affidavit, sought to dismiss the writ petition.10. the learned counsel appearing for the respondents 2 to 4 further contended that by virtue of the proceedings dated 7.11.2000 itself the petitioner was aware of the seniority, but he filed his representation after a lapse of one year i.e., on 2.11.2001, without explaining the delay and however, the same was rightly rejected by proceedings dated 15.11.2003. further, though the petitioner filed the review petition on 19.2.2004 with the self same grounds as raised in the representation dated 2.11.2001, the same is still pending and the petitioner has not agitated this issue and allowed the matter to settle. it is further stated that the petitioner and also the respondents 2 to 4 were given further promotions and at this belated stage, he cannot be permitted to agitate the issue, which was already rejected by the competent authority. therefore on the ground of latches, the writ petitioner is liable to be dismissed. in support of this contention, he relied on the judgments of the apex court reported in roshan lal v. international airport authority of india 1980 (supp) supreme court cases 449 and b.v. sivaiah v. k. addanki babu : (1999)illj754sc . he further submitted that the very same selection had fallen for consideration before a division bench of this court in w.p. no. 22501/2000 and 2217/2001 dated 08.05.2001, to which the present writ petitioner and the respondents are parties and this court has upheld the selections and hence the writ petitioner cannot agitate the very same selections and the same is hit by the principles of res judicata. in support of this contention, he relied on the judgment of the apex court reported in direct recruit class ii engineering officers assn. v. state of maharashtra : [1990]2scr900 .11. in order to appreicate rival contentions, it is necessary to note the relevant rules and few admitted facts.12. rules 7(7) and 8(4) deal with qualifications required for the post of a computer operator. the said rules are extracted as under for better appreciation:rule 7: qualifications:(7) for the posts of computer operators: must have passed degree in arts or science or commerce of a university in india established or incorporated by or under a central act, provincial act or a state act or from any institution recognized by the university grants commission. ormust have passed degree in b.c.a. (bachelor of computer application) of a university in india established incorporated by or under a central act, provincial act or a state act or from any institution recognized by the university grants commission. rule 8 special qualifications:(4) for computer operators: in addition to the graduation, a computer operator must have passed typewriting english higher grade and post graduate diploma in computer programming or post graduate diploma in computer application (one year course) which is recognized by the central or state government.13. from a reading of the above rules it is clear that for appointment to post of computer operator, one must possess (i) degree; (ii)typewriting english in higher grade; and (iii) post graduate diploma in computer programming or post graduate diploma in computer applications. there is no dispute that as on the date of the issuance of the circulars dated 24.10.2000 and 31.10.2000 calling for the applications for the post of computer operator and permitting to appear for the test, the petitioner possessed the requisite qualification as per rules 7 (7) and 8(4) of the rules. it is also admitted in the counter affidavits filed by the respondents that the respondents 2 to 4 did not possess requisite essential qualification when they applied for the post or by the date of their appointment. as per the rules, there is no enabling provision for relaxation of the basic and essential qualification. the respondents in the counter affidavits sought to justify their stand by giving certain reasons. whether the reasons are justifiable or not, will be considered in the course of the judgment. the fact remains that unofficial respondents 2 to 4 do not possess requisite essential qualification and they acquired such qualification after appointment to the post of computer operator. therefore, before proceedings further, it is to be noticed that when the respondents 2 to 4 do not possess the basic qualification required for the post of a computer operator, the respondent no. 1 ought not have allowed them to appear for the test conducted for the said post.14. it is well settled that no relaxation shall be given from possessing the basic essential qualification required for a particular post. in the decision reported in v. bulleswara rao v. govt. of a.p. : 1998(2)ald98 , a division bench of this court; considering the claim of the petitioners therein who were appointed as district munsifs on temporary basis and sought to be regularized without undergoing selection process by public service commission, which is the condition precedent; held that where the recruitment/appointment is through the agency of public service commission, the persons appointed temporarily otherwise than through selection by public service commission cannot claim a right for regularization or confirmation despite their long service. the division bench made it clear that the petitioners therein, cannot be exempted from undergoing the selection process by the public service commissioner, which is the requisite condition. in the said decision of the division bench, referring to two judgments of the apex court reported in j&k; public service commission v. narinder mohan : (1994)illj780sc and keshav chandra joshi v. union of india : air1991sc284 , it was contended that rules prescribing the process and qualification for recruitment cannot be relaxed and only the conditions of service can be relaxed. the plea was accepted by division bench. the relevant portion in the judgment of the apex court reported in narinder mohan (5 supra) is extracted as under for better appreciation:the rules or instructions should be in compliance with the requirements of articles 14 and 16 of the constitution. the procedure prescribed shall be just, fair and reasonable. opportunity shall be given to eligible persons by inviting applications through the public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the state.15. from the above judgment it is clear that the appointment shall be made only from the eligible and qualified candidates by following the valid procedure. in view of the above facts and circumstances and judgments of the apex court and the division bench judgment of this court, the contention of the 1st respondent that the petitioner participated in the test without any demur, cannot be countenanced and the action of the 1st respondent in permitting the respondents 2 to 4 even without the requisite qualification is unsustainable.16. the contention of the 1st respondent is that based on the marks obtained in the qualifying test conducted by the nic officials, seniority was fixed and the same was approved by the then hon'ble chief justice and in exercising the powers conferred under rule 23 of the rules, hon'ble chief justice relaxed the rules and permitted the respondents 2 to 4 herein to acquire the requisite qualifications within a period of one year from 7.11.2000. this contention cannot be countenanced for the reason the 1st respondent has no authority to permit the unqualified candidates to appear for the post of a computer operator and as the respondents 2 to 4 do not possess the requisite qualification, even though they acquired more marks in the qualifying test, that is of no consequence. further, relaxation granted by the hon'ble chief justice under rule 23 of the rules is only with regard to the extension of time for a period of one year from 7.11.2000 for acquiring the requisite qualification. there could not be relaxation with regard to basic and essential qualification at the time of their appearing for the test or appointment as computer operator. even if the relaxation with regard to extension of time for acquiring requisite qualification is taken into consideration, respondents 2 to 4 may be entitled to reckon their seniority from the date of their acquiring requisite qualification under the rules and not from the date of their appointment as on 7.11.2000. 17. the other contention of the counsel for the respondents 2 to 4 is that the proceedings dated 07.11.2000 had fallen for consideration before the division bench of this court in w.p. nos. 22501 of 2000 and 2217 of 2001 dated 08.5.2001 and this court upheld the same and since the present petitioner and the respondents are parties to the said writ petitions, petitioner cannot agitate the very same issue in the present writ petition.18. from a perusal of the facts in w.p. no. 22501 of 2000 it could be seen that based on the merit list submitted by the nic, the 1st respondent had taken a policy decision to fix the cut off marks of 45 per cent to consider the case of the qualified candidates for the post of computer operator. aggrieved by the fixation of 45 per cent, the writ petition was filed. the division bench considering the facts and circumstances held that as the petitioners having not obtained qualifying marks, cannot make any grievance, as it is not shown that there is any discrimination and any candidate who has not obtained cut off mark has been selected. similarly considering the grievance of the petitioners in w.p. no. 2217 of 2001 that sufficient time has not been given and that the ratio of 2:1 between the assistants/examiners and typists/copyists has not been maintained, the division bench held that the same is applicable only for promotions and not the direct recruitment.19. from the factual basis in w.p. no. 22501 of 2000 and w.p. no. 2217 of 2001, it is clear that present dispute raised by the petitioner with regard to permitting the candidates without basic qualification and the dispute of inter se seniority between the petitioner and respondents 2 to 4, had not fallen for consideration and the decision on the said dispute is not the lis between the parties in the earlier writ petitions. the observation by the division bench that 'proficiency in computer operation being the main criterion, the other qualifications are ancillary' are incidental and they cannot be taken to operate as res judicata in the present writ petition. so as to attract bar of res judicata, as per the judgment of the apex court, mahboob sahab v. syed ismail : air1995sc1205 four conditions shall be satisfied viz., (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict, in order to give the reliefs, which the plaintiffs claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. it was further held that if the plaintiff cannot get at his right without trying and deciding a case between co- defendants, the court will try and decide the case, and the co-defendants will be bound by the decree. but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other. for better appreciation, the relevant portion of the judgment, is extracted as under:. the question then is whether the doctrine of res judicata stands attracted to the facts in this case. it is true that under s.11, c.p.c. when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiff or co- defendant. but for application of this doctrine between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co- defendants were necessary or proper parties in the former suit. this is the settled law as held in s.m. sadat ali khan v. mirza wiquar ali ; shashibushan prasad mishra v. babuji raj : [1969]2scr971 ; and iftikhar ahmed v. syed meharban ali : [1974]3scr464 . take for instance that if in a suit by 'a' against 'b' & 'c', the matter is directly and substantially in issue between b & c, and an adjudication upon the matter was necessary to determine the suit to grant relief to 'a'; the adjudication would operate as res judicata in a subsequent suit between b & c in which either of them is plaintiff and the other defendant. in other words, if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court will try and decide the case, and the co-defendants will be bound by the decree. but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other.20. in view of the above judgment it is clear that in the earlier proceedings, if the plaintiff cannot get any relief without deciding the dispute between the defendants, then such a decision will operate as res judicata in the subsequent suit filed by one defendant another defendant. in the present case, as already noted, the dispute in the earlier round of writ petition is with regard to fixing of cut of marks and for not giving sufficient time and for not maintaining ratio of 2:1 between the assistants/examiners and typists/copyists and assistants. for deciding this dispute, the decision on the present grievance of the petitioner i.e., permitting the unqualified candidates to appear for the exam and placing those candidates above the petitioner in the seniority list; was not required for disposing of the earlier writ petitions and it was also not finally decided. therefore, the order, dated 8.5.2001 in w.p. nos. 22501 of 2000 and 2217 of 2001 would not operate as res judicata in this writ petition and hence the contention of the counsel for the respondents 2 to 4 in this regard cannot be countenanced and the same is rejected. 21. the judgment of the apex court in direct recruit class ii engineering officers' assn (supra) cannot be made applicable to the facts of the present case. the facts in that case would disclose that there was a dispute between the direct recruitees and promotees. for several years there was no direct recruitment, and though quota rule between direct recruitment and promotions was not maintained, promotions were given in excess of the quota, to in-service candidates. considering this contingency, the apex court held that where quota rule broke down and appointments are made from one source in excess of the quota, following the procedure prescribed by relevant rules, the appointees should not be pushed down below the appointees from other source appointed to service at a later date. further considering the fact that after dismissal of writ petition by high court on merits, when a subsequent writ petition on the same set of facts and for the same relief, was filed before the apex court by same parties, it was held that it would be hit by the principles of res judicata. the facts of the case on hand are different. in the present case, as already noted above, initial appointment of respondents 2 to 4 is contrary to rules 7(7) and 8(4) of the rules, as they do not possess the basic essential qualifications required to hold the post of a computer operator. in the earlier round of litigation, the petitioners are different and cause of action is different and the relief sought is also different and the present dispute between the writ petitioner and the respondents 2 to 4, was not required to be decided to grant the relief claimed by the petitioners in the earlier round of litigation.22. the other contention of the counsel for the respondents 2 to 4 is with regard to latches on the part of the petitioner in approaching this court. as already noted above, the earlier round of litigation would not operate as res judicata for the present writ petition. the petitioner initially filed objection to the proceedings dated 7.11.2000 on 2.11.2001 for considering his seniority in the feeder cadre and also raised the contention that the respondents 2 to 4 herein were not at all qualified to hold the post of a computer operation. the said objection was rejected on 15.11.2003 and again he filed review on 19.2.2004 and the same is pending and the petitioner in the present writ petition confined his grievance to the aspect of permitting the respondents 2 to 4 who are not qualified to appear for the post of computer operator. further, for the gradation list published on 23.9.2005 calling for the objections, he filed objections on 10.10.2005 and when the same was not disposed of, he again filed another representation dated 1.11.2006 and the impugned order is passed on 16.11.2007 rejecting his objections. he filed the writ petition on 2.5.2008 within a reasonable period. the subsequent events of further promotions will not come his way, as the seniority in the post of computer operator was not fixed in accordance with rules. therefore, the contention of the counsel for the respondents 2 to 4 that there are latches on the part of the petitioner, is not tenable and the judgments relied on, in this regard, are not applicable to the facts of the present case.23. the respondents 2 to 4 did not possess the requisite qualification as on the date of the appearing for the post or as on the date of appointment. but, they were permitted to appear for the test. they qualified in the test and they acquired the requisite qualification within the time granted by the chief justice in exercise of the power conferred under rule 23 of the rules. therefore, as noted above, they can be considered for giving seniority from the date of their acquiring qualification and not from the date of their appointment.24. for the foregoing reasons, the impugned proceedings dated 16.11.2007 is set aside and consequently the official memorandum in roc. no. 3122/estt-2005 dated 23.9.2005 communicating the gradation (seniority) list of computer operators as on 1.7.2005, issued by the 1st respondent is set aside and the 1st respondent shall re-fix the seniority of computer operators taking the date of their acquiring requisite qualification as per rules 7(7) and 8(4) of the rules and accord consequential benefits arising therefrom.25. the writ petition is accordingly allowed. no costs.