HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 10 Case :- WRIT - A No. - 28500 of 2011 Petitioner :- Mukti Nath Tiwari Respondent :- State Of U.P. And Others Petitioner Counsel :- S.C. Tripathi,Radha Kant Ojha Respondent Counsel :- C.S.C.,A.K. Yadav,Brij Raj Singh,Hari Pratap Gupta Hon'ble Arun Tandon,J.
There are allegation and counter allegations between the petitioner and respondent no. 4 qua there appointment being fraudulent and being perpetuated with the help of the education authorities of the State of U.P. including the Director of Education and the District Inspector of Schools of the district concerned.
According to the petitioner, respondent no. 4 Rajendra Kumar Singh claims to have been appointed in the institution, namely Udit Narain Inter College Padrauna, District Kushi Nagar in the year 1976. For the purposes of salary and for approval of his appointment he along with others filed Writ Petition No. 1131 of 1978. The writ petition was dismissed by a Division Bench of this Court on 03.09.1979. A copy of the order of the Division Bench is enclosed as Annexure 5 to the present writ petition. The High Court held that there were serious disputed issues of fact with regard to (a) there being a resolution of the Committee of Management offering appointment to Rajendra Kumar Singh and (b) the claim of Rajendra Kumar Singh that he had been appointed under the Removal of Difficulties Order. According to the stand taken by the District Inspector of Schools in his counter affidavit, no such appointment was made, as there was no vacancy against which Rajendra Kumar Singh could be so appointed.
The Division Bench held that such disputed issues of fact cannot be examined in a writ petition. The only remedy available to the petitioner was to file a suit where title could be determined after considering the material evidence. The Court further went to hold that if a suit proceedings are instituted by the petitioners for declaration of their title, the Civil Court will try to dispose it of as expeditiously as possible. This judgment has admittedly been permitted to become final between the parties. Respondent No. 4 Sri Rajendra Kumar Singh was petitioner no. 8 in the said petition.
It is admitted on record that Sri Rajendra Kumar Singh did not file any suit for declaration of his title, as was permitted by the High Court.
Rajendra Kumar Singh thought it proper to exercise political pressure and approached the education authorities in defiance to the decision of the writ petition filed by him, as would be apparent from the following facts:
Officer on Special Duty (Vishesh Karya Adhikari) U.P. Government forwarded a letter dated 30th July, 1980 asking the Director of Education to submit his report with regard to the legality or otherwise of 16 teachers appointed in Udit Narain Inter College Padrauna, District Kushi Nagar. These 16 teachers were none other than those who had filed Writ Petition No. 1131 of 1978 The Director of Education forwarded a reply on 30 March, 1981 stating therein that four vacancies are available and therefore against these four vacancies, four teachers can be absorbed in order of seniority and thereafter 9 teachers will remain, their claim can be considered with reference to the number of post which may become available/created having regard to the strength of the students admitted, qua which information is to be asked for from the District Inspector of Schools.
Thereafter on record is an order of the District Inspector of Schools dated 25.01.1985 i. e. after 6 years of the High Court's judgment and four years after the letter of Director of Education. This order of District Inspector of Schools refers to a letter of the Secretary, Secondary Education with reference to the letter of local M.L.A. of Padrauna constituency Sri B.K. Mishra dated 10.10.1984 and the letter of the Director of Education dated 20.11.1984 as well as to the letter sent by the Rajendra Kumar Singh along with other teachers. Under this letter Rajendra Kumar Singh has been directed to be absorbed against the vacancy of one Gopi Chandra Srivastava w.e.f. 10.12.1984 as Lecturer Civics.
Under which statutory provision such absorption has been directed is not known.
On the strength of such fraudulent order passed by the District Inspector of Schools, Rajendra Kumar Singh claims to have worked in the institution and to have drawn salary from the State Exchequer.
Such absorption and continuance of Rajendra Kumar Singh would have been perpetuated only if he had not applied for the post of Principal of a recognized Inter College and his consequent selection, which is subject matter of challenge in the present writ petition.
Sri P.S. Baghel, Senior Advocate intervened after said part of the order was dictated. He comes up with a plea that Rajendra Kumar Singh was appointed for the first time under the First Removal of Difficulties Order on 01.08.1976 and that he joined on 02nd August, 1976. Therefore, in view of Section 16-GG, which has been introduced in the Intermediate Education Act on 21.04.1977, his services stood absorbed as regular teacher. The submission has only been made to be rejected by this Court.
All these issues qua appointment and absorption were under consideration in the writ petition filed by Rajendra Kumar Singh himself, being Writ Petition No. 1131 of 1978. The same was dismissed by this Court vide order dated 03rd September, 1979. The Division Bench specifically held that there are serious disputed issues of fact (a) as to whether Rajendra Kumar Singh was ever appointed under the Removal of Difficulties Order and (b) as to whether there was any resolution of the Committee of Management offering appointment to the petitioner as teacher in the institution. The District Inspector of Schools in his counter affidavit filed in the said petition had specifically denied the appointment claimed.
It is in this background that the Division Bench permitted the petitioner to file a civil suit for declaration of his title. The judgment of the Division Bench has become final and therefore neither the State Government nor the District Inspector of Schools nor Rajendra Kumar Singh can escape the consequences of the judgment. The only course open to Rajendra Kumar Singh was to file a civil suit for declaration of his title but he did not do so. He decided to approach the politicians, Secretary and the Director of Education.
The situation is alarming. None of the education authorities, who had earlier disputed the appointment claimed by Rajendra Kumar Singh by filing a counter affidavit in his petition, cared to notice the direction issued by the Division Bench of this Court although they were party to the writ petition. Instead of insisting upon to Rajendra Kumar Singh to file a civil suit, an order has been issued for his absorption. How, why and under which statutory provision such absorption is being done has not been recorded in any of the orders.
Section 16-GG heavily relied by Sri Baghel was existing on the date writ petition was dismissed. The contention raised by the counsel for Rajendra Kumar Singh is only an attempt to justify the void appointment of Rajendra Kumar Singh.
What is further argued is that this Court should close its eyes to the nature of appointment of Rajendra Kumar Singh and his continuance at this stage, as while adjudicating the inter se seniority the District Inspector of Schools has found that Rajendra Kumar Singh is senior to the other teachers.
The judgments in the cases of Smt. Bharti Roy vs. Deputy Director of Education-II, Kanpur and others; 2008(2) ESC 911 (All), Vijai Narain Sharma vs. District Inspector of Schools, Etawa and others; 1986 UPLBEC 44 and Smt. Manju Keshi Dixit vs. State of U.P. and others; 2004 (5) ESC 234 have been relied upon for contending that this Court may not interfere with the order of absorption of Rajendra Kumar Singh.
The law, with regard to an order outcome of fraud and the effort of the Court of Law to ensure that same is brought to an end as soon as it is known and no plea of statutory bar, or lack of power be permitted to be raised, has been settled by the Apex Court in the case of Indian Bank v. Satyam fibres (India) Pvt. Ltd.; JT 1996 (7) SC 135, wherein after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus:
"Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudice a party, the Court has the inherent power to recall its order."
In All Bengal Excise Licensees Association vs. Raghbendra Singh & others, reported in AIR 2007 SC 1386, in paragraphs-26 and 27 it has held as follows:
"26........It is settled law that a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof by pleading misunderstanding and thereafter retain the said advantage gained in breach of the order of the Court. .......
27. .........As already observed by the Full Bench of the Madras High Court in AIR 1975 Madras 270, that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court's orders. ..........."
In Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. & Anr., reported in AIR 1996 SC 2005, the Hon'ble Supreme Court has held as follows:
"The principal that a contemmnor ought not to be permitted to enjoy and/ or keep the fruits of his contempt is well settled."
In Clarke vs. Chadbum reported in (1985) 1 ALL. E.R. 211, Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot seek what it should be said that although they ware labile to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if act is done, it is not undone merely by pointing out that it was done in breach in law......................................what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
What is true in respect of an order passed by a Court of Law is equally true in the matter of orders obtained from statutory authorities, specifically when they adversely affect the public exchequer.
The facts of this case are akin to what has been noticed above. Absorption of Rajendra Kumar Singh as teacher in the institution under order dated 25.01.1985 and his continuance thereof is nothing but a fraud both upon the statutory provision as well as upon the judgment of this Court passed by the Division Bench. Rajendra Kumar Singh in collusion with the education authorities cannot be permitted to render the judgment passed by the Division Bench on a petition filed by him a mere waste paper.
This Court, therefore, holds that Rajendra Kumar Singh could not have absorbed except after obtaining declaration of his title after filing a civil suit, which he has not done.
In the connected petition filed by Rajendra Kumar Singh, being Writ Petition No. 1784 of 2009, an order of the District Inspector of Schools dated 29.12.2008 has been challenged. By means of the said order the District Inspector of Schools has declared Mukti Nath Tiwari to be the senior to Rajendra Kumar Singh. It is pointed out that the appointment of Mukti Nath Tiwari itself is a fraud, as it was made without there being any post available in the institution. In any view of the matter the appointment offered to Mukti Nath Tiwari in the year 1974 was only on 2/3 of the trained graduate grade, inasmuch as he was not trained on the relevant date. He obtained a degree of B. Ed. in the year 1997. In support of the said allegation, reference has been made to the appointment letter (Annexure 19 to the writ petition) as well as to the letter filed by Mukti Nath Tiwari in his Writ Petition No. 28500 of 2011 dated 25.05.1976 issued by the District Inspector of Schools, wherein the Committee of Management has recommended promotion of Mukti Nath Tiwari as Lecturer History under the Removal of Difficulties Order.
It is further stated that absolutely no records qua the appointment of Mukti Nath Tiwari are available in the institution. Selection proceedings, as contemplated under Section 16-G of the Intermediate Education Act read with Removal of Difficulties Oder as then applicable, have neither been disclosed nor are available on record.
Sri P.S. Baghel points out that in fact the Director of Education had issued an order on 24.11.1978 directing that Mukti Nath Tiwari to be treated to have been appointed in Lecturers Grade w.e.f. 07.11.1974 under Section 16-G. When as a matter of fact from the order of the District Inspector of Schools his promotion as Lecturer was approved under the Removal of Difficulties Order. He submits that the order of the Director of Education is the root cause for Mukti Nath Tiwari being treated as Lecturer when in fact he was never appointed as such in accordance with the statutory provisions applicable, namely Section 16-G.
Let the Secretary, Secondary Education hold a detail enquiry in the matter of appointment and continuance of Mukti Nath Tiwari. He will also examine as to who is responsible for fraudulent absorption of Rajendra Kumar Singh, in light of the findings recorded above. He shall record a categorical finding as to under which statutory provision Mukti Nath Tiwari has been appointed, the relevant documents which could support such appointment must also be referred to.
The Secretary is directed to summon all the original records, as may be available in the office of the District Inspector of Schools as well as with the Committee of Management, and in the office of Director of Education for the purpose.
Mukti Nath Tiwari and Rajendra Kumar Singh are granted liberty to file such documents as may be available with them in support of their respective case. The Secretary shall submit his report along with an affidavit within 5 weeks from today and recommend as to what action in the facts of the case is required to be taken against all responsible.
Standing Counsel is directed to communicate the order passed today to the Secretary, Secondary Education immediately.
Put up on 10.10.2011.
Order Date :- 1.9.2011 Pkb/