K.M.Tripathi vs D.I.O.S. & Others
2011 Latest Caselaw 2481 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- WRIT - A No. - 30837 of 1990
 

 
Petitioner :- K.M.Tripathi
 
Respondent :- D.I.O.S. & Others
 
Petitioner Counsel :- D.S.M.Tripathi,Rakesh Pandey
 
Respondent Counsel :- S.C.,M.C.Chaturvedi,P.K. Tripathi
 

 
Hon'ble Arun Tandon,J.

Heard Sri Rakesh Pandey, learned counsel for the petitioner, Sri P.K. Tripathi, learned counsel for respondent no.2, Sri Ved Vyas Mishra, learned counsel for respondent no.3 and learned Standing Counsel for the State-respondents.

This writ petition has been filed for quashing of the order of the Manager of the institution dated 20th November, 1990 enclosed as Annexure-8 to the present writ petition.

Facts in short giving rise to the present writ petition are as follows:

Shree Ram Chandra Sanskrit Pathshala, Mugara Badshahpur, Jaunpur (hereinafter referred to as the 'institution) is a recognised Sanskrit Pathshala affiliated to Dr. Sampurna Nand Sanskrit Viswavidyalaya, Varanasi (hereinafter referred to as the 'University'). One Shyam Krishna Lal, who was working as permanent assistant teacher of the institution, proceeded on leave. This according to the petitioner resulted in vacancy being caused. Petitioner, who was possessed of the prescribed minimum qualification, made an application and was appointed. Papers pertaining to the appointment of the petitioner were forwarded to the Vice-Chancellor of the University for his approval. Approval is stated to have granted to the appointment on 30th January, 1990. Copy of the approval letter has been enclosed as Annexure-3 to the present writ petition. Petitioner claims to have continued to work as Lecturer in the institution since then.

In paragraph-11 of the present writ petition, it has been stated that the approval for appointment of the petitioner was given by the Vice-Chancellor of the University after permission was granted by the Head of the Department of Literature of the University.

In paragraph-13 of the present writ petition it has been stated as follows:

"That it is relevant to state here that the appointment of the petitioner was made in accordance with the provisions of para 11.21 of First Statutes of the Sampurna Nand Sanskrit University, Varanasi."

According to the petitioner, though his appointment was earlier approved by the Vice-Chancellor of the University, the Registrar of the University wrote a letter to the Committee of Management of the institution on 31st July, 1990, asking it to make regular appointment in accordance with the provisions of statute 11.21 of the First Statutes of the University. However, no order was passed in respect of his continuance or otherwise by the University. It is stated that the said letter had been issued under misconception. On that basis, the Manager of the institution issued the impugned order dated 20th November, 1990, terminating the appointment of the petitioner. It has been stated that the order dated 20th November, 1990, in response to the letter of the Registrar of the University dated 31st July, 1990 was illegal and misconceived.

The order impugned passed by the Manager of the institution records that the appointment of the petitioner was made under statute 11.21 and that the Committee of Management shall now proceed to make fresh ad hoc appointment in the leave vacancy and therefore, the appointment of the petitioner is being put to an end.

On the basis of these averments made in paragraphs-13 to 15 of the writ petition and recital contained in the order of the Manager of the institution, an interim order was obtained from this Court on 26th November, 1990 providing therein that the petitioner shall continue on the post in question till earlier incumbent returns or the services of the petitioner are terminated in accordance with law and he shall be paid his salary.

On the strength of the said interim order, petitioner has continued in the employment of the institution for the last 21 years and has drawn salary from the public exchequer.

The present writ petition was dismissed as infructuous on 22nd April, 2004 on a statement made by the counsel on behalf of the petitioner. A recall application was filed, which was dismissed in default on 3rd October, 2007. Subsequently, a new counsel was engaged and an application was filed stating therein that the present writ petition has not become infructuous. The order dismissing the writ petition as infructuous was recalled vide order dated 29th November, 2007. Thereafter, the mater has come up for consideration before this Court.

While hearing the present writ petition, this Court noticed that the averment made in paragraph-13 of the present writ petition were patently false. The petitioner was never appointed under statute 11.21 nor the procedure prescribed thereunder was ever adopted in the matter of appointment of the petitioner. Similarly, the fact recorded in the the impugned order of the Manager that the petitioner was appointed under statute 11.21 was also patently false. Therefore, under a detail order dated 19th April, 2011, notice was issued to the petitioner and the Vice-Chancellor of the University to explain. Order dated 19th April, 2011 reads as follows:

"In paragraph 3 of the present writ petition it has been stated that one Shyam Krishna Lal had proceeded on long leave in the year 1989 and, therefore, the Committee of Management decided to make appointment against the leave vacancy. The vacancy was advertised and applications were invited. The petitioner applied in response to the advertisement (paragraph 4 to the present writ petition). In paragraph 13 it has been stated that the petitioner has been appointed in accordance with the provisions of para 11.21 of the First Statutes of the Sampurna Nand Sanskrit University, Varanasi.

The Manager of the institution however forwarded a letter to the petitioner stating that it is now proposed to make ad hoc appointment in accordance with the provisions of para 11.21 of the First Statutes of the University, therefore, the services of the petitioner are being brought to an end. It is against this order of the Manager dated 20.11.1990 that the present writ petition has been filed.

On record is an order of the University dated 31.07.1990 whereby the appointment has been directed to be made in accordance with the provisions of para 11.21 of the First Statutes of the University by the management afresh.

This writ petition is liable to be dismissed on one short ground alone that the consequential action taken by the Manager, could not be challenged without challenging the main order of the University. However, the petitioner on the basis of the statement made in paragraph 3, 4 and 13 of the present writ petition, misled the Court to believe that the appointment of the petitioner was earlier made in accordance with the provisions of para 11.21 of the First Statutes of the University and on that basis succeeded in contending that an ad hoc appointee cannot be replaced by another. This resulted in an interim order dated 26.11.1990 directing payment of salary to the petitioner. This has continued for nearly 20 years together. During this period the petitioner did not take any steps to serve the University. It was only when the Court on 04.04.2011 noticed the aforesaid fact directed the Registry of the High Court to serve a notice upon the University with a further direction upon the University to produce the original records available qua selection/appointment of the petitioner.

A counter affidavit has been filed by the Vice Chancellor of the University. From the counter affidavit it is apparent that it has been stated in paragraph 7 that approval was granted to the appointment of the petitioner under the provisions of para 11.21 of the First Statutes of the University (Reference Annexure-3 to the writ petition).

The statement so made on the face of record is false. The appointment of the petitioner was earlier approved vide order dated 30.01.1990 which specifically records that the same has been made under Statute 11.33 of the First Statute of the University.

The relevant Statute reads as follows :

"11-33 ¼1½ egkfo|ky; dk izcU/kra=] dqyifr }kjk bl fufer uke& fufnZ"V fo'ofo|ky; ds lEcfU/kr foHkkxk/;{k ds ijke'kZ ls] nl ekl ls vuf/kd vof/k ds fy, fdlh in/kkjh dks Lohd`r NqV~Vh ds dkj.k gqbZ fjfDr esa p;u&lfefr dks vfHkns'k fd;s fcuk fdlh v/;kid dks LFkkukiUu :i ls fu;qDr dj ldrk gS( fdUrq fdlh ,slh fjfDr ;k in dks ftlds N% ekl ls vf/kd cus jgus dh lEHkkouk gks] fcuk ,slk vfHkns'k fd;s] ugha HkjsxkAß

The University was aware of the said fact and, therefore, it vide order dated 31.07.1990 directed that since the leave vacancy was for a period of more than 10 months, the same be filled afresh in accordance with the provisions of para 11.21 of the First Statutes of the University which provides for the vacancy being advertised and a selection committee being constituted for appointment on the post in question. Para 11.21 of the Statutes of University is being quoted herein below :

"11-21 fdlh ,slh fjfDr esa ¼tks fdlh v/;kid dks nl ekl ls vuf/kd ds fy;s NqV~Vh fn;s tkus ds dkj.k gqbZ fjfDr u gks½ ftlds N% ekl ds vf/kd cus jgus dh lEHkkouk gks] fu;qfDr ds fy;s dksbZ p;u ¼de ls de nks ,sls lekpkj&i= es½a ftldk lEc) jkT; ;k la?k&{ks= esa i;kZIr ifjpkyu gks] foKkiu fn;s fcuk ugha fd;k tk;xk vkSj foKkiu esa ml lekpkj&i= ds] ftlesa foKkiu izdkf'kr fd;k tk;] fudyus ds fnukad ls de&ls&de rhu lIrkg dk le; lkekU;r% vH;fFkZ;ksa dks fn;k tk;xkAß

Selections referred to Statute 11.21 has to be made by the Selection Committee constituted under Statute 11.16 in the manner prescribed under the Statute.

From the records produced today, it is further apparent that neither there is any advertisement on record of the University in respect of the earlier appointment of the petitioner nor there is any recommendation of the Selection Committee referable to Statute 11.21.

It is in this background that the approval order dated 30.01.1990 specifically recorded that the appointment is being approved under Statute 11.33 (1) of the University.

It is thus clear that not only the petitioner has mislead this Court, the Vice Chancellor of the University has also filed a false affidavit. (Reference paragraph 13 of the counter affidavit).

Let the petitioner and the Vice Chancellor show cause as to why proceedings for contempt be not initiated for misleading the Court. The original records may be retained by the Bench Secretary of this Court.

Both the persons may appear before this Court along with their affidavit on 04.05.2011.

List on 04.05.2011 in first ten cases, peremptorily.

The petitioner may also show cause as to why the entire salary obtained under an interim order passed in this petition, may not be directed to be recovered from his personal assets."

Reply has been filed by the petitioner and the Vice-Chancellor of the University. It is now an admitted case of the petitioner that the petitioner was not appointed under statute 11.21. According to the petitioner now, he was appointed under statute 11.33 and that his appointment was also approved with reference to statute 11.33 only.

The different nature of vacancies, the method of selection and appointments under statutes 11.21 and 11.33, is apparent from a simple reading of the two provisions, which are already noticed in the order dated 19th April, 2011 quoted above.

The aforesaid two statutes categorically contemplate two different nature of vacancies, two different nature of selection procedures and two different nature of appointments. Appointment made under statute 11.33 is without any advertisement and without any selection proceedings being held while appointment under statute 11.21 is after advertisement and after holding selection through a duly constituted selection committee. Under statute 11.21 there is a right of being considered for being absorbed after the vacancy become substantive, while no such right exists in favour of person appointed under statute 11.33.

The fact that the petitioner was appointed under statute 11.33 is further established from the order of the Registrar of the University enclosed as Annexure-3 of the present writ petition dated 30th January, 1990.

The Registrar of the University vide order dated 31st July, 1990, having regard to the fact that the leave of Sri Shyam Krishna Lal had been extended beyond 10 months, insisted upon the college to proceed under statute 11.21 i.e. to make appointment after advertisement and after constitution of selection committee.

This order of the Registrar of the University dated 31st July, 1990 was never challenged by the petitioner.

It is writ large on the records of the present writ petition that the petitioner now accepts that his appointment was made without any advertisement and without any selection against the vacancy which was for a period less than 10 months. After the vacancy stood converted into the vacancy, which was covered under statute 11.21, i.e. a leave vacancy for a period of more than ten months, the University has rightly insisted upon the Management to advertise the vacancy and to make fresh appointment strictly in accordance with the procedure prescribed under Statute 11.21.

Petitioner deliberately concealed the true facts from the Court at the time of obtaining the interim order. The impugned order of the Manger also contained deliberate incorrect facts qua the nature of the appointment of the petitioner.

In order to keep the record straight, it may be stated that an amendment application has been filed today with a prayer to amend paragraph-13 of the present writ petition, which has been quoted above. This amendment application after 21 years of the filing of the present writ petition and after an order passed by this Court dated 19th April, 2011, noticing the mischief played by the petitioner has to be rejected. It is an attempt to wriggle out of the false averments made in the present writ petition for the purposes of obtaining an interim order from this Court. The amendment application is therefore, rejected.

It may be recorded that the Vice-Chancellor of the University had initially filed an affidavit stating therein that the appointment of the petitioner was made under Statute 11.21. However, after the relevant facts were noticed and the Vice-Chancellor of the University was called upon by this Court to show-cause, he has filed a 2nd affidavit on 18th May, 2011. It has been now stated that he was mislead by the officers of the University and correct facts were not disclosed resulting in a false affidavit being filed before this Court earlier. He has further informed that departmental proceedings have already been initiated against the persons concerned. The Vice-Chancellor of the University in his 2nd affidavit, has stated that the appointment of the petitioner was made under Statute 11.33 of the First Statutes of the University and that in the earlier affidavit it was wrongly mentioned that the appointment of the petitioner was made under Statute 11.21.

From the facts as have been noticed herein above, this Court has no hesitation to record that the appointment of the petitioner was made under Statute 11.33, which confers no right upon the petitioner to object to fresh selections being held after due advertisement against the vacancy which was vacant for a period of more than ten months, under Statute 11.21. The recital contained in the impugned order of the Manger to the effect that the petitioner was appointed under Statute 11.21 is false, so is the averment made by the petitioner in paragraph-13 of the present writ petition. This Court holds that the petitioner has no right to continue in the institution nor he can object to the holding of fresh selections in terms of the order of the University dated 31st July, 1990, which was very much in the knowledge of the petitioner and still he has chosen not to challenge the same. The order of the University has to be given effect to, as it is a lawful order.

In the totality of the circumstances as they stand on record this Court finds no good ground to grant any relief prayed for in the present writ petition. This Court further holds that the persons like the petitioner, who make deliberate false statement of facts before this Court for the purposes of obtaining ex parte order, do not deserve any sympathy of this Court in exercise of equitable jurisdiction under Article 226 of the Constitution of India.

The present writ petition, is therefore, dismissed. Interim order granted earlier by this Court stands discharged.

Issue now arises as how the benefits drawn under the interim order of this Court must be ensured to be returned by the petitioner. Any act of Court of law shall not prejudice the rights of the parties. Illegal benefits drawn by the petitioner on the strength of false averments made in paragraph-13 of the present writ petition and also with reference to false facts recorded in the impugned order passed by the Manager of the college, must be repaid to the public exchequer. Whatever may have been the duration of the working of the petitioner under the interim order of this Court, fruits of such fraud cannot be permitted to enjoy. Persons like the petitioner along with the Manager of the institution must be put to terms and must be brought to book. They must be told that such practice will not do in a Court of law. The Court will not remain a mute spectator, when such facts come to the knowledge of this Court.

Therefore, this Court directs that half of the entire salary paid to the petitioner during all this period under interim order of this Court shall be paid by the petitioner and the other half of the amount so paid shall be recovered from the Manager of the institution by the respondent no.1. The said recovery must be affected within three months from the date a certified copy of this order is filed before respondent no.1

The present writ petition is accordingly dismissed with cost.

(Arun Tandon, J.)

Order Date :- 5.7.2011

Sushil/-