Narendar J. And Nagaprasanna J. - Aggrieved by the order dated 9.4.2019 passed in W.P. Nos.203450-203460/2014 by which the learned Single Judge allowed the writ petitions setting aside the orders of discharge and directing reinstatement of the writ petitioners forthwith, respondent Nos.1 and 3 before the learned Single Judge have filed the instant writ appeals.

2. Parties will be referred to as per their ranking before the learned Single Judge in the writ petitions.

3. Brief facts that are necessary for adjudication of the instant writ appeals are as follows:

A notification came to be issued by the 3rd respondent calling for applications from the eligible persons to be appointed as peon in the Courts of Bidar District. Pursuant to the notification, the writ petitioners applied to the post and were selected and appointed on 25.3.2011 and were placed on probation for a period of two years. In terms of the order of appointment the testimonial submitted by the writ petitioners were sent for verification to the competent authorities and on such verification, it was found that everyone of the testimonials submitted by the writ petitioners were forged, fabricated, tampered and bogus. On receipt of reports from the authorities show causes notices were issued to the writ petitioners on 17.1.2014. After receipt of the reply to the show cause notice, the writ petitioners were discharged from service. All the writ petitioners questioned the orders of discharge by filing writ petition Nos.203450- 203460/2014. The learned Single Judge allowed the writ petitions on the ground that the orders of discharge were punitive and departmental enquiry ought to have been conducted against the writ petitioners as the orders of discharge did cast a stigma upon the petitioners. On the said ground, the learned Single Judge, by his order 9.4.2019, set aside the orders of discharge dated 5.4.2014 and directed reinstatement of the writ petitioners forthwith and a further direction was issued to the appointing authority to proceed further in accordance with law and complete the proceedings within six months. Being aggrieved, respondent Nos.1 and 3 have filed instant appeals.

4. We have heard Sri Ameet Kumar Deshpande, learned Counsel appearing for the appellants and Sri P. Vilaskumar Marthand Rao, learned Counsel appearing for caveator-respondent Nos.1 to 11 and Smt. Archana P. Tiwari, learned Additional Government Advocate for respondent No.12.

5. Learned Counsel for the appellants contends that the writ petitioners were all appointed on the basis of the marks cards given by them. The said marks cards were sent for verification after their appointment and on such verification and investigation, it was noticed that the marks cards submitted by the writ petitioners were bogus and fabricated. On receipt of the report, a show cause notice was issued to the petitioners on the ground that a report was received from the Education Department with regard to tampering and fabrication of marks cards. On receipt of the reply to the show cause notice and considering the same, the respondents thought it fit to discharge the services of the writ petitioners invoking Rule 5(1) of the Karnataka Civil Services (Probation) Rules, 1977, and even without holding any departmental enquiry. Though the order of discharge dated 5.4.2014 refers to the various correspondences, the order nonetheless is still an order of discharge simpliciter. Hence, the contention of the writ petitioners that the order of discharge casts a stigma upon them for which a departmental enquiry ought to have been conducted, is erroneous.

6. Learned Counsel for the appellants would further contend that the learned Single Judge has committed an error in accepting the contentions of the writ petitioners that the order of discharge was stigmatic and allowed the writ petitions directing reinstatement of the writ petitioners. Learned Counsel would further contend that the writ petitioners secured employment by playing fraud on the employer and therefore, conduct of the regular departmental enquiry is unnecessary as fraud vitiates everything. Above all, it is contended that the petitioners were discharged in terms of the order of appointment after complying with the principles of natural justice.

7. Per contra, learned Counsel for the respondents would contend that the services of the writ petitioners could not have been terminated without holding a regular departmental enquiry as discharge of the writ petitioners on the ground that there were allegations with regard to tampering of the marks cards would cast a serious stigma upon the writ petitioners. This is clear from a reading of the preamble of the order and the references made, which cast serious aspersions upon the petitioners. The learned Single Judge, having found that the impugned order would cast a stigma, has rightly allowed the writ petitions and directed reinstatement of the writ petitioners.

8. The learned Counsel would further contend that the instant appeals would not have been filed as a direction was given by the learned Single Judge to the respondents to proceed in accordance with law and complete the proceedings within six months. It is his submission that with the reinstatement, the writ petitioners earn their livelihood and prays that the writ appeals be dismissed.

9. We have given our anxious consideration to the submissions made by the learned counsel appearing for the respective parties. After hearing the parties, we summoned the original records pertaining to the writ petitioners and have perused them as well, in furtherance of which the following points would arise for our consideration:

1) Whether the discharge of the writ petitioners invoking the provisions of the Karnataka Civil Services (Probation) Rules, 1977, was valid

2) Whether the appointments secured by fraud should be annulled only after conduct of departmental enquiry even in case of probationers

3) Whether the order of the learned Single Judge requires interference

10. Re. Point No.1:

A notification was issued by the 3rd respondent calling for applications from eligible persons on 18.6.2008 in terms of Rule 5(v) of the Karnataka Subordinate Courts (Ministerial and Other Posts) (Recruitment) (Amendment) Rules, 2007 and on receipt of the applications from the writ petitioners, they were all appointed on 4.1.2011. The order of appointment was in terms of merit of the candidates in VII Standard. The petitioners were placed on probation for a period of two years. Certain clauses in the order of appointment are required to be noticed. The terms of the order of appointment read as follows:

"The following candidate/s are hereby selected and appointed as Peons in the pay scale of 4800-100-6000-125-6500-150-7100- 175-7275, with other admissible allowances, in the interest of public service, with immediate effect, purely on Temporary basis, subject to termination at any time, without notice and posted as such to the Courts in Bidar unit as shown against their names.

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The candidates as appointed shall be on probation for a period of two years.

The candidates are directed to report for their duties within (15) days from the date of receipt of this order, failing which the order entail cancellation.

The Pending Officers, of the concerned Courts, are requested to verify the original certificates, of the newly appointed candidates before allowing them to join his/her duties with regard to age, academic qualifications prescribed for the said post etc. The date of joining of the candidates should be reported to this office for further needful."

(emphasis supplied)

11. All the petitioners accepted the order of appointment and joined the duties at the respective places indicated in the order of appointment between 6.1.2011 and 8.1.2011. In terms of the order of appointment, the marks cards and testimonials based upon which they had secured employment were sent for scrutiny and when the office of the 3rd respondent collected the original records from the school authorities, got them verified with the Deputy Director of Public Instructions, Bidar, it came to light that the writ petitioners had all submitted false, forged, fabricated and bogus marks cards.

12. A perusal of the original records would reveal that petitioner No.1 had submitted VII standard marks card showing that he had secured 430 marks. But while seeking admission to VIII standard, in the transfer certificate of the 1st petitioner, the marks secured in VII standard was shown as 250. The signatures on the marks card were sent to hand writing and finger print expert, Bengaluru, who submitted a report that the signature in question was at variance with that of the petitioner.

12.1. In respect of petitioner No.2, the Subject Inspector in the office of the Deputy Director of Public Instruction, Bidar, had communicated in his report that the marks in the entry register of 2004-05 concerning admission No.65/2004-05 were different from the marks entered in admission number i.e. No.75/2004-05 which concerned the 2nd petitioner wherein all the marks were tampered and over written using whitener ink.

12.2. In respect of petitioner No.3, a similar kind of tampering, as was found in petitioner No.2s case, was found and added to that, when the original marks register was seen, the person whose marks card was produced to secure employment was in fact a person who had secured 488 marks out of 600 in the year 1991-92 which was not the 3rd petitioner.

12.3. In respect of petitioner No.4, the information that was furnished to the 3rd respondent was that he had studied in Kavita Higher Primary School, Bidar and passed out during the year 1991-92. On verification of the marks entry register, it was found that the marks were tampered with whitener ink showing complete manipulation of the marks.

12.4. In respect of petitioner No.5, the marks secured by him was 518 out of 600, which was not verified by the Head Master of the school by submitting the original marks entry register on the ground that the same was deposited with the office of the Block Education, Bidar. Hence, the marks of petitioner No.5 was not authenticated.

12.5. In respect of petitioner No.6, the marks entry register was completely contrary to what was submitted at the time of employment and contained complete over writings on the marks register were found.

12.6 In respect of petitioner No.7, the marks found in the marks register were completely tampered and were at gross variance to what was submitted at the time of employment.

12.7. In respect of petitioner No.8, who claimed to have passed VII Standard in April 2003 as a private candidate, her name is entered as Gouramma, daughter of Maruthi, which is tampered and changed as Gouramma, daughter of Kamalakar, and the date of birth is tampered as 1.1.1978 instead of 5.6.1988 which clearly showed that was somebody elses marks card which was tampered and produced at the time of employment.

12.8. In respect of petitioner No.9 who claimed to have completed VII standard in 1988-89 in terms of admission No.59/1981-82, on verification of the original records, it was found that the marks obtained by him were completed tempered.

12.9. In respect of petitioner No.10, the marks card sent for verification and the marks entry register produced by the Head Master of the concerned school did not tally with each other and hence, it had to be disbelieved.

12.10. In respect of petitioner No.11, the petitioner had submitted the marks card during employment that he had studied in Revenasiddeshwar Higher Primary School, Hallikhed-B, securing 556 marks out of 600 marks. But on verification, it was found that he had actually secured only 214 out of 600 marks and he had studied in Model Primary School, Khatakchincholi. Thus, the entire information given by petitioner No.11 was completely bogus and false.

13. In terms of the perusal of the original records and the aforementioned facts concerning every one of the petitioners, one common inference that emerges is that every one of the petitioners have produced false, fabricated, tampered and bogus marks cards of VII standard and have secured employment on the basis of those marks cards/testimonials. All these factors came to light when the probation of the petitioners was coming to an end and the documents submitted by them were sent for verification.

14. On receipt of the report from the concerned authorities, the 3rd respondent lodged a criminal case as well with the jurisdictional police against the petitioners in crime No.110/2013 in Market Police Station, Bidar, for offences punishable under Sections 109, 417, 465, 468, 471 and 420 of IPC, which is pending consideration.

15. On the totality of the circumstances narrated hereinabove, including the reports from the concerned authorities, all the petitioners herein were issued with show cause notices on 17.1.2014 seeking to show cause as to why their services should not be discharged in the light of them playing fraud on the Court to secure employment by their act of submission of false, fabricated, forged and bogus marks cards. All the petitioners submitted their replies between 20.1.2014 and 28.1.2014 explaining that they had submitted documents that were in their possession and pleaded for a sympathetic consideration of their cases as they were in dire need of employment.

16. On consideration of the reply and the in the light of the fact that the petitioners were still probationers, action was taken by the 3rd respondent in terms of the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as Probation Rules for short). The 3rd respondent invoked Rule 5(1)(b) of the Probation Rules to discharge all the petitioners. Rule 5 which deals with declaration of satisfactory completion of probation etc., reads as follows:

"5. Declaration of satisfactory completion of probation etc.

(1) At the end of the prescribed or, as the case may be, the reduced or extended period of probation, the Appointing Authority shall consider the suitability of the probationer to hold the post to which he was appointed, and-

(a) if it decides that the probationer is suitable to hold the post to which he was appointed and has passed the special examinations or tests, if any, required to be passed during the period of probation it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation and such an order shall have effect from the date of expiry of the prescribed, reduced or extended period of probation;

(b) if the Appointing Authority decides that the probationer is not suitable to hold the post to which he was appointed or has not passed the special examinations or special tests, if any, required to be passed during the period of probation, it shall, unless the period of probation is extended under Rule 4, by order, discharge him from service.

(2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order under sub-rule (1) shall not entitle the probationer to be deemed to have satisfactorily completed his probation.

NOTE- In this rule and Rule 6 discharge in the case of a probationer appointed from another service or post, means reversion to that service or post.

Invoking the aforementioned Rules, all the petitioners were discharged on 5.4.2014. In our considered view, the discharge of the petitioners is an order of discharge simpliciter. The purport of these very Probations Rules came up for consideration before a three Judge Bench of the Honble Supreme Court in the case of H.F. SANGATI Vs. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA, (2001) 3 SCC 117 [LQ/SC/2001/539] , wherein considering the very Rules, the Honble Supreme Court has held as follows:

" 6. It was not disputed before the High Court, either before the learned Single Judge or before the Division Bench hearing the writ appeals and has also not been disputed before this Court that the two appellants have been discharged from service during the period of probation. It is also an admitted fact that no order was passed declaring the period of probation having been successfully completed and confirming any of the two appellants in service.

7. It is also not disputed that the relevant rules governing the period of probation of the appellants are the Karnataka Civil Services (Probation) Rules, 1977. The controversy centres around Rule 6, which reads as under:

"6. Discharge of a probationer during the period of probation.-

(1) Notwithstanding anything in Rule 5 the appointing authority may at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the rules or in the order of appointment or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government shall not be given effect to, till it has been submitted to and confirmed by the next higher authority.

(2) An order discharging a probationer under this Rule shall indicate the grounds for the discharge but no formal proceeding under the Karnataka Civil Services (Classification Control and Appeal) Rules, 1957, shall be necessary."

It is submitted by the learned counsel appearing for K.M. Hanumanthappa, and H.F. Sangati who appeared in person, that the order of discharge is not an order of discharge simpliciter; it casts a stigma on the appellants inasmuch as it records - "... they are unsuitable to hold the post of Munsifs" and, therefore, they should have been afforded an opportunity of hearing before passing the impugned orders which having not been done, the impugned order is vitiated for non-compliance with the principles of natural justice. Reliance was placed on a decision of this Court in V.P. Ahuja v. State of Punjab, (2000) 3 SCC 239 [LQ/SC/2000/467] : 2000 SCC (Cri) 606 [LQ/SC/2000/467] .

8. It is well settled by a series of decisions of this Court including the Constitution Bench decision in Parshotam Lal Dhingra v. Union of India, (1958) AIR SC 36 : 1958 SCR 828 [LQ/SC/1957/116] and seven-Judge Bench decision in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 [LQ/SC/1974/248] : 1974 SCC (L&S) 550 : AIR 1974 SC 2192 [LQ/SC/1974/248] , that services of an appointee to a permanent post on probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. In Samsher Singh case, (1958) AIR SC 36 : 1958 SCR 828 [LQ/SC/1957/116] it was observed that the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post; the competent authority may come to the conclusion that the probationer is unsuitable for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. No punishment is involved in such a situation. Recently, in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60 [LQ/SC/1999/144] : 1999 SCC (L&S) 596, having reviewed the entire available case-law on the issue, this Court has held that termination of a probationers services, if motivated by certain allegations tantamounting to misconduct but not forming foundation of a simple order of termination cannot be termed punitive and hence would be valid. In Satya Narayan Athya v. High Court of M.P., (1996) 1 SCC 560 [LQ/SC/1995/1202] : 1996 SCC (L&S) 338 : AIR 1996 SC 750 [LQ/SC/1995/1202] the petitioner appointed on probation as a Civil Judge and not confirmed was discharged from service in view of the non-satisfactory nature of his service. This Court held that the High Court was justified in discharging the petitioner from service during the period of probation and it was not necessary that there should have been a charge and an inquiry on his conduct since the petitioner was only on probation and it was open to the High Court to consider whether he was suitable for confirmation or should be discharged from service.

9. In the two cases at hand we find that the Administrative Committee of the High Court took into consideration all the relevant material and thereafter formed an opinion as to the unsuitability of the two appellants to hold the post of Munsifs, which opinion was communicated to and upheld and accepted by the Full Court of the High Court. Pursuant thereto, the State Government issued the impugned order of discharge from service.

10. In our opinion the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsifs. It is pertinent to note that Rule 6 contemplates a probationer being discharged from service on one or more of the following grounds: (i) in terms of a condition imposed by the Rules, (ii) in terms of the order of appointment, or (iii) on account of unsuitability of the appointee for the service or post. Subrule (2) of Rule 6 requires an order discharging the probationer to indicate the grounds for the discharge. It also provides that such indicating of the grounds for the discharge in the order would not require any formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 being held. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to be preceded by any formal proceedings of inquiry before making the order.

11. Reliance by the appellants on the decisions of this Court in V.P. Ahuja, (2000) 3 SCC 239 [LQ/SC/2000/467] : 2000 SCC (Cri) 606 [LQ/SC/2000/467] is misconceived. In V.P. Ahujas case, (2000) 3 SCC 239 [LQ/SC/2000/467] : 2000 SCC (Cri) 606 [LQ/SC/2000/467] the appellants appointment was terminated during the period of probation. One of the recitals of the order was that the appellant "failed in the performance of his duties, administratively and technically". The order was founded on a stigmatic allegation and was, therefore, held punitive. The appellant was an employee of a Cooperative Federation in Punjab. The judgment does not refer to the relevant service rules and none have been brought to our notice so as to claim parity of the appellants case with that of V.P. Ahuja case, (2000) 3 SCC 239 [LQ/SC/2000/467] : 2000 SCC (Cri) 606 [LQ/SC/2000/467] . In these appeals, as we have already stated, the statutory rule requires the order of discharge to indicate the grounds for the discharge. If the ground for discharge would not have been mentioned in the impugned order, it would have invited the criticism of being arbitrary or not satisfying the requirement of the rule. It may be stated that in the High Court, the appellants have not laid any challenge to the vires of Rule 6. H.F. Sangati, the appellant appearing in person, made a faint attempt at challenging the vires of sub-rule (2) of Rule 6 abovesaid but the same was not permitted in the facts and circumstances of the case as such a plea was not raised before the learned Single Judge or the Division Bench of the High Court."

In terms of the law declared by the Honble Supreme Court in the case of H.F. Sangati (supra), no notice even need be given to the probationer. But in the case on hand, notices were issued and all the petitioners were afforded an opportunity of reply and on considering the reply, the orders of discharge were passed, which, by no stretch of imagination, would cast any stigma upon the petitioners. It is useful to refer to judgment of a three Judge Bench of the Honble Supreme Court in the case of STATE OF W.B. V. TAPAS ROY, (2006) 6 SCC 453 [LQ/SC/2006/361] , wherein the Honble Supreme Court was considering as to whether the order of discharge would cast a stigma merely because the order did refer to certain allegations upon the probationer. The facts before the Honble Supreme Court read as follows:

" 4. The High Court allowed the writ petition holding that Rule 10 of the Rules did not apply in the facts of the case. It was also of the view that the statement, quoted below, in the order of discharge casts a stigma on the respondent. Since no opportunity of hearing had been granted to the respondent, therefore, the order could not be sustained. The decision of the Tribunal was, accordingly, set aside and the appellants were given liberty to take appropriate action against the respondent on the same grounds in accordance with law.

5. The particular passage from the order of discharge which the High Court found to be stigmatic reads as follows:

"I am convinced that he is not likely to make an efficient constable and is unsuitable for the Police Department. His frequent unauthorised absence from training centre also indicates his lack of interest in training and his scant respect for discipline."

Considering the aforementioned facts, the Honble Supreme Court has held as follows:

" 6. In our view, the High Court has erred in interfering with the decision of the Tribunal. It misconstrued the provisions of Rule 10 of the Rules. The Rule provides that,

"10. A constable, while undergoing training in the Police Training College or undergoing probation in the district/unit, may at any time be discharged by the Principal, Police Training College or by the Superintendent/Commandant, as the case may be, if he is considered by them to be unsuitable for the post, but the order of discharge shall not be given effect to till it has been submitted to and confirmed by the next higher authority.

The order of discharge shall intimate the grounds for the discharge but no formal proceedings, such as are prescribed for the removal or dismissal of government servants, shall be necessary.

No appeal shall lie against the order of discharge."

The Rule was not the subject-matter of challenge before the High Court. It specifically requires that the order of discharge should intimate the grounds for discharge. It also mandates that the order of discharge, provided it was procedurally valid, would not require any formal proceedings to be drawn up before it is passed.

7. The order of discharge has, as we have already indicated, set out several instances of the respondent absenting himself unauthorisedly from the training centre. These facts have been relied upon for the purpose of concluding that the respondent was not interested in the training and had no respect for discipline. This conclusion was a ground for holding that the respondent was unsuitable for the Police Department.

8. The High Court was of the view that Rule 10 of the Rules did not apply to orders which were stigmatic. As has already been held by this Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 [LQ/SC/2001/2546] : 2002 SCC (L&S) 170 that in order to constitute a stigmatic order necessitating a formal inquiry, it would have to be seen whether prior to the passing of the order, there was an inquiry into the allegations involving moral turpitude or misconduct so that the order of discharge was really a finding of guilt. If any of these three factors are absent, the order would not be punitive. We have also held that stigma in the wider sense of the word is implicit in every order of termination during probation. It is only when there is something more than imputing unsuitability for the post in question, that the order may be considered to be stigmatic. In our view, the language, quoted earlier in the discharge order, cannot be said to be stigmatic as it neither alleges any moral turpitude or misconduct on the part of the respondent nor was there an inquiry as such preceding the order of discharge. The order has been passed strictly in terms of Rule 10 of the Rules. We are, accordingly, of the view that the appeal must be allowed. It is, accordingly, allowed and the impugned order is set aside."

Thus, in terms of the Rules and the law declared by the Honble Supreme Court in the afore-extracted judgments, no fault can be found with the respondents in invoking the Probations Rules and passing an order discharging the petitioners.

17. Learned Counsel for the writ petitioners have raised yet another contention taking recourse to Rule 6 of the Probation Rules, if a probationer is to be discharged during the period of probation, the order of discharge will not be given effect to until it is confirmed by the next higher authority. Rule 6 of the Probation Rules reads as follows:

6. Discharge of a probationer during the period of probation -

(1) Notwithstanding anything in Rule 5, the Appointing Authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the rules or in the order of appointment, or an account of his unsuitability for the service of post; but the order of discharge except when passed by the Government, shall not be given effect to, till it has been submitted to and confirmed by the next higher authority.

(2) An order discharging a probationer under this rule shall indicate the grounds for the discharge but no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, shall be necessary."

18. The petitioners herein were all discharged on 5.4.2014. This was ratified and confirmed by the Honble Administrative Judge of Bidar on 17.7.2014 and the same was later approved by the then Honble the Chief Justice of this Court. The contention of the writ petitioners that until the higher authority approves, the order of discharge would not come into effect, is unacceptable to us as the principle of ratification is a permissible procedure in law. The ratification given by the Honble Administrative Judge on 17.7.2014 would relate back to the date of discharge. This view of ours, in this regard, is fortified by the judgments of the Honble Apex Court dealing with an identical situation where an order of dismissal was subsequently ratified, in the cases of MAHARASHTRA STATE MINING CORPORATION Vs. SUNIL, (2006) 5 SCC 96 [LQ/SC/2006/367 ;] , wherein the Honble Supreme Court was pleased to hold as follows:

"7. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently "rectified" by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, "a subsequent ratification of an act is equivalent to a prior authority to perform such act". Therefore ratification assumes an invalid act which is retrospectively validated. [ See P. Ramanatha Aiyars Advanced Law Lexicon, (2005) Vol. 4, p. 3939 et seq.]

8. In Parmeshwari Prasad Gupta [(1973) 2 SCC 543] [LQ/SC/1973/221] the services of the General Manager of a company had been terminated by the Chairman of the Board of Directors pursuant to a resolution taken by the Board at a meeting. It was not disputed that that meeting had been improperly held and consequently the resolution passed terminating the services of the General Manager was invalid. However, a subsequent meeting had been held by the Board of Directors affirming the earlier resolution. The subsequent meeting had been properly convened. The Court held: (SCC pp. 546-47, para 14)

"Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on 17-12-1953."

The view expressed has been recently approved in High Court of Judicature for Rajasthan v. P.P. Singh, (2003) 4 SCC 239 [LQ/SC/2003/116] : 2003 SCC (L&S) 424, [ See also Claude-Lila Parulekar v. Sakal Papers (P) Ltd., (2005) 11 SCC 73 [LQ/SC/2005/392] .] .

9. The same view has been expressed in several cases in other jurisdictions. Thus in Hartman v. Hornsby [142 Mo 368, 44 SW 242, 244] it was said:

" Ratification is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance."

10. In the present case, the Managing Directors order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20-2-1991 and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it."

This principle is reiterated by the Honble Supreme Court at a later point of time in the case of NIT Vs. PANNALAL CHOWDARY, (2015) 11 SCC 669 [LQ/SC/2015/814] , which reads as follows:

28. That apart, the issue in question could be examined from yet another angle by applying the law relating to "ratification" which was not taken note of by the High Court.

29. The expression "ratification" means "the making valid of an act already done". This principle is derived from the Latin maxim "ratihabitio mandato aequiparatur" meaning thereby "a subsequent ratification of an act is equivalent to a prior authority to perform such act". It is for this reason, the ratification assumes an invalid act which is retrospectively validated.

30. The expression "ratification" was succinctly defined by the English Court in one old case, Hartman v. Hornsby [Hartman v. Hornsy, 142 Mo 368 : 44 SW 242 at p. 244 (1897)] as under:

"Ratification is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance."

31. The law of ratification was applied by this Court in Parmeshwari Prasad Gupta v. Union of India [Parmeshwari Prasad Gupta v. Union of India, (1973) 2 SCC 543 [LQ/SC/1973/221] ] . In that case, the Chairman of the Board of Directors had terminated the services of the General Manager of a Company pursuant to a resolution taken by the Board at a meeting. It was not in dispute that the meeting had been improperly held and consequently the resolution passed in the said meeting terminating the services of the General Manager was invalid. However, the Board of Directors then convened subsequent meeting and in this meeting affirmed the earlier resolution, which had been passed in improper meeting. On these facts, the Court held: (SCC pp. 546-47, para 14)

"14. ... Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on 17-12-1953."

This view was approved by this Court in High Court of Judicature of Rajasthan v. P.P. Singh [High Court of Judicature of Rajasthan v. P.P. Singh, (2003) 4 SCC 239 [LQ/SC/2003/116] : 2003 SCC (L&S) 424] .

32. The aforesaid principle of law of ratification was again applied by this Court in Maharashtra State Mining Corpn. v. Sunil [Maharashtra State Mining Corpn. v. Sunil, (2006) 5 SCC 96 [LQ/SC/2006/367 ;] : 2006 SCC (L&S) 926] . In this case, the respondent was an employee of the appellant Corporation. Consequent to a departmental enquiry, he was dismissed by the Managing Director of the appellant. The respondent then filed a writ petition before the High Court. During the pendency of the writ petition, the Board of Directors of the appellant Corporation passed a resolution ratifying the impugned action of the Managing Director and also empowering him to take decision in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs 4700 p.m. Earlier, the Managing Director had powers only in respect of those posts where the maximum pay did not exceed Rs 1900 p.m. The respondent at the relevant time was drawing more than Rs 1800 p.m. Therefore, at the relevant time, the Managing Director was incompetent to dismiss the respondent. Accordingly, the High Court held [Sunil v. Maharashtra State Mining Corpn., (2006) 1 MhLJ 495 [LQ/BomHC/2005/1059] : 2005 SCC OnLine Bom 758] the order of dismissal to be invalid. The High Court further held that the said defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court set aside the dismissal order and granted consequential relief. The appellant then filed the appeal in this Court by special leave. Ruma Pal, J. speaking for the three-Judge Bench, while allowing the appeal and setting aside the order of the High Court held as under: (Sunil case [Maharashtra State Mining Corpn. v. Sunil, (2006) 5 SCC 96 [LQ/SC/2006/367 ;] : 2006 SCC (L&S) 926] , SCC pp. 96g-h & 97a-b)

"The High Court rightly held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act could not be subsequently rectified by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, a subsequent ratification of an act is equivalent to a prior authority to perform such act. Therefore, ratification assumes an invalid act which is retrospectively validated.

***

In the present case, the Managing Directors order dismissing the respondent from the service was admittedly ratified by the Board of Directors unquestionably had the power to terminate the services of the respondent. Since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it."

19. If the principle of ratification, as enunciated by the Honble Supreme Court, is paraphrased to the facts of the case on hand, the action of the respondents in ratifying the order of discharge dated 5.4.2014 on 17.7.2014 would not render the action illegal as contended by the learned Counsel for the writ petitioners.

Thus, the action of the respondents in invoking the Probation Rules is legally valid. Hence, we answer point No.1 against the writ petitioners.

20. Re. Point No.2:

It cannot disputed for the reasons indicated in answering point No.1 that all the writ petitioners secured employment by submitting false, fabricated and bogus marks cards pertaining to VII standard which was the requisite qualification for appointment to the post of peon. The marks cards produced by the petitioners were sent for verification and comparison with the original records to the Department of Education. It is at the time of such scrutiny, it was found that the writ petitioners had secured employment by submitting bogus marks cards, a complaint was lodged with the jurisdictional police and a criminal case which was registered against the petitioners is pending consideration before the competent Criminal Court.

21. A specific question was asked to the learned counsel representing the writ petitioners that whether they had challenged the action of the respondents in alleging that they had submitted bogus and false testimonials to secure employment and the institution of a criminal case in crime No.110/2013 for such acts. The learned counsel submitted that they have neither challenged the allegations made with regard to submission of false and bogus documents nor the institution of the criminal case before any judicial fora. It is only when the orders of discharge were issued, they approached the learned Single Judge by filing writ petitions.

22. Thus, there can be no shadow of a doubt that the writ petitioners had secured employment by playing fraud on the employer and in the case on hand, the employer is the judiciary. The conduct of the writ petitioners playing fraud to seek employment in the judiciary if allowed to be got away with the rigmarole of procedure, it would put a premium on the conduct of the writ petitioners more so in the light of the fact that they were still probationers and could be discharged in terms of the order of appointment at any time, as also on the ground of unsuitability, which has several forms and hues one being playing fraud on the employer.

23. It is trite, in certain cases, a regular departmental enquiry before passing an order of termination or dismissal even in the cases of this nature will be only in the case of an employee who is confirmed in service. A probationer is not entitled to the same right as is available to a permanent employee. Thus, the contention of the learned Counsel for the writ petitioners that regular departmental enquiry ought to have been held prior to passing an order of discharge is unacceptable to us more so in the light of the fact that the employment is secured by fraud.

24. This view of ours, in this regard, is fortified by the judgment of the Honble Supreme Court in the case of UNION OF INDIA Vs. M. BHASKARAN, (1995) Supp4 SCC 100, wherein the questions involved before the Honble Supreme Court were as follows:

" 3. The short question involved in these three appeals is as to whether the respondentworkmen who had obtained employment in railway service run by appellant-Union of India, on the basis of bogus and forged casual labourer service cards could be continued in railway service once such fraud was detected by the railway authorities. The Central Administrative Tribunal, Ernakulam Bench has taken the view that as the aforesaid misconduct of the respondent-railway employees does not fall within the four corners of Rule 3(1)(i) and (iii) of Railway Services (Conduct) Rules, 1966 (hereinafter referred to as the Rules), the orders of removal from service passed against the respondents could not be sustained and they were entitled to be reinstated in railway service with all consequential benefits. The aforesaid view of the Tribunal is brought on the anvil of scrutiny in the present proceedings moved by the appellant-Union of India and the railway authorities concerned under whom the respondent-workmen worked at the relevant time."

Answering the said question, the Honble Supreme Court was pleased to hold as follows:

"6. It is not necessary for us to express any opinion on the applicability of Rule 3(1)(i) and (iii) on the facts of the present cases for the simple reason that in our view the railway employees concerned, respondents herein, have admittedly snatched employment in railway service, maybe of a casual nature, by relying upon forged or bogus casual labourer service cards. The unauthenticity of the service cards on the basis of which they got employment is clearly established on record of the departmental enquiry held against the employees concerned. Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant-employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. Learned counsel for the respondents submitted that for getting service in railway as casual labourers, it was strictly not necessary for the respondents to rely upon such casual service cards. If that was so there was no occasion for them to produce such bogus certificates/service cards for getting employed in railway service. Therefore, it is too late in the day for the respondents to submit that production of such bogus or forged service cards had not played its role in getting employed in railway service. It was clearly a case of fraud on the appellant-employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent-employees have continued in service for a number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer. In this connection we may usefully refer to a decision of this Court in Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, (1990) 3 SCC 655 [LQ/SC/1990/261 ;] : 1990 SCC (L&S) 520 : (1990) 14 ATC 766. In that case Sawant, J. speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the concerned appointee. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case. And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the candidate concerned acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in the aforesaid decision, if by committing fraud any employment is obtained, such a fraudulent practice cannot be permitted to be countenanced by a court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent-workmen with all consequential benefits. The removal orders could not have been faulted by the Tribunal as they were the result of a sharp and fraudulent practice on the part of the respondents. Learned counsel for the respondents, however, submitted that these illiterate respondents were employed as casual labourers years back in 1983 and subsequently they have been given temporary status and, therefore, after passage of such a long time they should not be thrown out of employment. It is difficult to agree with this contention. By mere passage of time a fraudulent practice would not get any sanctity. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual labourers, started departmental proceedings years back in 1987 and these proceedings have dragged on for a number of years. Earlier, removal orders of the respondents were set aside by the Central Administrative Tribunal, Madras Bench and proceedings were remanded and after remand, fresh removal orders were passed by the appellant which have been set aside by the Central Administrative Tribunal, Ernakulam Bench and which are the subjectmatter of the present proceedings. Therefore, it cannot be said that the appellants are estopped from recalling such fraudulently obtained employment orders of the respondents subject of course to following due procedure of law and in due compliance with the principles of natural justice, on which aspect there is no dispute between the parties. If any lenient view is taken on the facts of the present case in favour of the respondents, then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present cases cannot be permitted."

25. In a later judgment in the case of AVTAR SINGH Vs. UNION OF INDIA, (2016) 8 SCC 471, the Honble Supreme Court considering Bhaskarans case (Supra) has held as follows:

"25. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskarans case (supra) it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any enquiry, however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2) due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information."

The afore-extracted judgment, though was a case where there was material suppression of facts by the candidate for employment and the Honble Supreme Court took a lenient view with regard to reformation of the candidate, nonetheless, in the above extracted paragraph considered in Bhaskarans case (Supra) and the purport of getting appointment on the basis of the forged documents.

26. In terms of the law laid down by the Honble Supreme Court in the afore-extracted judgments, which were the cases of employees playing fraud to secure employment and such fraud being detected the appointment orders themselves which are found to be tainted and vitiated by fraud would be liable to be recalled at the option of the employer. In the instant case also, the appointment is secured by the petitioners by producing false, fabricated and bogus marks cards.

27. The writ petitioners had taken away the employment of the persons who had genuinely scored the requisite marks which could get them employment. We are of the considered view that the appointment which was secured by playing fraud, in the case of the petitioners who were probationers need not precede and pass through a regular departmental enquiry which is a right available to permanent employee, as the right to discharge a probationer is available under the Probation Rules. Thus, we hold point No.2 against the writ petitioners.

28. Re. Point No.3:

The learned Single Judge has interfered with the impugned orders on the ground that they are stigmatic. To consider this, the orders of discharge passed against the petitioners are required to be considered, one of which is extracted hereunder for the propose of ready reference:

" ORDER No.76/2014 DATED 5th April 2014.

In exercise of the powers vested in me, under the provisions of Rule 5(1)(b) of Karnataka Civil Services (Probation) Rules, 1977, I hereby discharge the official, simplicitor who is under probation, Gouramma w/o. Bheemanna, Peon, Civil Judge and JMFC Court, Basavakalyan, from her services."

Considering the afore-extracted order, the learned Single Judge has invoked Rule 7 of the Probation Rules which deals with termination for misconduct. Rule 7 of the Probation Rules would mandate that no order terminating the services of a probationer, whether during or at the end of the period of probation for any misconduct, shall be passed except in accordance with the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957. Invocation of Rule 7 of the Probation Rules by the learned Single Judge is erroneous as there is no allegation of any misconduct committed by the writ petitioners. The order of discharge is per se is an order of discharge simpliciter. Though the preamble and a few references have preceded the order, but does not in any way cast a stigma upon the writ petitioners as the order is an order of discharge simpliciter.

29. The invocation of Rule 20 of the Karnataka Civil Services (General Recruitment) Rules, 1977, which deals with misconduct, is also erroneous as the specific Rules for discharge of a probationer are the probation Rules and the General Recruitment Rules would not be applicable to the fact situation. Insofar as the judgments relied on by the learned Single Judge in the order impugned are concerned, it is to be noticed that none of the judgments deal with a situation where the employment was secured by playing fraud on the employer by producing false, fabricated and forged marks cards/testimonials. All the judgments quoted in the order were concerning misconduct of probationers during their services.

30. The learned Single Judge has failed to notice that the writ petitioners had played fraud on the employer, namely the 3rd respondent, and fraud vitiates every solemn act. It is apposite to refer to a judgment of the Honble Supreme court in the case of STATE OF U.P. Vs. RAVINDRA KUMAR SHARMA, (2016) 4 SCC 791 [LQ/SC/2016/190] , wherein the Honble Supreme Court was considering a case where 21% of the selected candidates in a particular recruitment belonging to handicapped category were found to have been appointed by playing fraud. The facts before the Honble Supreme Court are as follows:

" 6. In the facts of the instant case there was a serious complaint lodged by Viklang Sangh of illegal usurpation of the quota reserved for specially abled by a large number of persons who were not in fact specially abled and have procured certificates fraudulently from their districts under the Rules of 1996. On the basis of the said complaint the Government has issued an order for the purpose of verification of such certificates issued by the Medical Board and certificates of 21% of selected candidates of handicapped category were found to be fraudulent. It is settled proposition of law that fraud vitiates and in such a case when a large number of candidates have illegally usurped the reserved seats of the persons suffering from disability, the action of the State Government did not call for interference."

Considering the aforementioned facts, the Honble Supreme Court has held as follows:

"7. In BhauraoDagduParalkar v. State of Maharashtra [BhauraoDagduParalkar v. State of Maharashtra, (2005) 7 SCC 605 [LQ/SC/2005/827] ], it was observed: (SCC p. 614, para 16)

"16. In Lazarus Estates Ltd. V. Beasley [Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA)] , Lord Denning observed at QB pp. 712 and 713: (All ER p. 345 C)

... 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. (p. 722) These aspects were recently highlighted in State of A.P. v. T. Suryachandra Rao [State of A.P. v. T. Suryachandra Rao, (2005) 6 SCC 149 [LQ/SC/2005/718 ;] ] ."

8. xxxx

9. This Court in Express Newspapers (P) Ltd. v. Union of India [Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133 [LQ/SC/1985/323] ] at para 119 has held thus: (SCC p. 219)

"119. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Partap Singh v. State of Punjab [S. Partap Singh v. State of Punjab, (1964) AIR SC 72] . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an alien purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Lord Overtoun [General Assembly of Free Church of Scotland v. Lord Overtoun,1904 AC 515 : (1904-07) All ER Rep Ext. 1448 (HL)] : (AC p. 695)

... that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purposes for which they are conferred.

It was said by Warrington, C.J. in Short v. Poole Corpn. [Short v. Poole Corpn., (1926) Ch 66: 1925 All ER Rep 74 (CA)] , that: (Ch pp. 90-91)

... no public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative."

10. The Division Bench of the High Court has ignored and overlooked the material fact that verification has already been done by the Medical Board and it has been found that certificates of 21% were fraudulently obtained. The High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from the disability so certified, the candidate can be subjected to fresh medical test. The High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment, etc. That can only be done by the medical examination and particularly when the High Court itself has observed that in case there is genuine suspicion and fraud has been committed, medical certification can be reopened. Direction issued in this regard has not been questioned by the respondents and in fact process of reverification was already over when the High Court issued the aforesaid directions.

11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sangh and when 21% of such certificates have been found to be fraudulently obtained, there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the respondents."

The afore extracted judgment of the Apex Court covers the fact situation on all fours as the writ petitioners herein have played fraud by submitting bogus marks cards. The order of discharge as observed by us hereinabove does not cast any stigma upon the writ petitioners as their discharge was not on account of any misconduct committed during the period of service while performing their duties, but on the fact that the very appointment was based on production of false certificates. Mere references to certain correspondences in the order of discharge will not and cannot be stigmatic in the facts and circumstances of the case on hand. We, however, will have to reserve liberty to the writ petitioners to seek for reinstatement, if available in law, in the event the reports discrediting their marks cards are set aside by any judicial fora. For the aforementioned reasons, we find that the order of the learned Single Judge warrants appropriate interference.

31. In the result, we pass the following:

ORDER

(i) Writ appeals are allowed.

(ii) The order of the learned Single Judge dated 9.4.2019 passed in Writ Petition Nos.203450- 203460/2014, is set aside. However, liberty is reserved to the writ petitioners to seek for reinstatement of their services, in accordance with law, in the event the report of the authorities discrediting their marks cards/testimonials is set aside in a manner known to law in a judicial proceeding.

(iii) Writ petitions are dismissed.

(iv) There shall be no order as to costs.