Narendra Singh vs State Of U.P.And 5 Others
2013 Latest Caselaw 1075 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 35
 

 
Case :- SPECIAL APPEAL No. - 600 of 2013
 

 
Petitioner :- Narendra Singh
 
Respondent :- State Of U.P.And 5 Others
 
Petitioner Counsel :- Pramod K.Sinha
 
Respondent Counsel :- C.S.C.,Vivek Varma
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Karuna Nand Bajpayee,J.

(Delivered by Hon'ble Rakesh Tiwari,J.)

Heard learned counsel for the parties and perused the record.

The appellant has challenged the order and judgement dated 19.3.2013 passed by the learned Single Judge in Writ-A no. 15405 of 2013, Narendra Singh Vs. State of U.P. and others by which the court has opined that petitioner will not be able to get any relief even if the aforesaid writ petition is entertained. The aforesaid judgement and order dated 19.3.2013 reads thus.

"Learned counsel for the petitioner contends that the petitioner was in the panel of selection of adhoc appointments as an Assistant Teacher in L.T.grade in Babu Ram Singh Inter College Badaun at serial no.2 along with respondent 6 Raja Ram. He contends that Raja Ram had obtained the appointment on the basis of forged certificates.

The petitioner had contested the matter earlier also by filing a Writ Petition No.15453 of 2004 which was dismissed on 20.4.2004. The petitioner attempted another round of litigation after certain inquiries were made under the Right to Information Act. The petitioner appears to have succeeded in getting hold the information with regard to the forged certificates of the respondent no.6.

The appointment of the respondent no.6 came to be cancelled which was challenged by the respondent no.6 in Writ Petition No.35198 of 2007 and an interim order was granted on 7.8.2007 but the writ petition was dismissed for want of prosecution.

It is to be noted that the petitioner against the dismissal of his writ petition on 6.4.2004 had filed a special appeal. The same was dismissed with the observation that in case the services of Raja Ram has been terminated on the ground of forged certificates then the decision in the special appeal as well as the learned Single Judge will have no bearing on the writ petition filed by Raja Ram.

The writ petition filed by Raja Ram has been dismissed for want of prosecution but has been restored on 13.7.2012 where after the petitioner applied for impleadment in the said writ petition The said impleadment application has been rejected vide order dated 5.2.2013. with the observation that in the event the petitioner is seeking any relief for himself it is open to him to file his own writ petition. The present writ petition is for the said purpose.

In the opinion of the Court even if the services of the respondent no.6 are terminated and are held to be unlawful as on date the claim of the petitioner cannot be countenanced on the basis of the panel of 1992. There is no provision as on date that may allow the management to appoint or the authorities to approve the same under the 1982 Act or the rules framed thereunder. Thus the prayer is for a futile writ which cannot be issued.

In the said circumstances the petitioner will not be able to get any relief even if the writ petition is entertained.

The writ petition is dismissed."

The grievance of the appellant is that the impugned order dated 19.3.2013 effects his legal right of appointment and in view of the fact that it is settled law that the party claiming fundamental right must move the court before the others' right come in existence; that the action of the court cannot harms innocent parties if their rights immersed by reason of delay on the part of the persons moving the Court. Therefore, the observation of the Court in the impugned order that even if the services of the respondent no.6 are terminated and are held to be unlawful as on date the claim of the petitioner cannot be countenanced on the post of the panel of 1992.

Learned counsel for the appellant submits that the observation made by the learned Single Judge in the impugned judgement and order that the claim of the petitioner can not be countenanced on the basis of the panel of 1992 is wholly misconceived and perverse; that while rejecting the impleadment application filed by the appellant in Civil Misc. Writ Petition No. 35198 of 2007, Raja Ram Vs. State of U.P. and others filed by the respondent no.6, which is still pending, vide order dated 5.2.2013 provided an option for the appellant to get redressed his grievances through a separate writ petition, therefore, it was incumbent upon the learned Single Judge to consolidate both the aforesaid writ petition and decide jointly. Hence, the impugned judgement and order suffers from manifest error of law and as such is not sustainable in the eye of law.

Learned counsel for the appellant further submits that the legal and valid right of the appellant to join the post in question has been illegally denied by the respondents by relying on the forged document supplied by the respondent no.6 and when the fraud played by the respondent no.6 has been detected, his services have been terminated at the instance of the appellant, then the appellant may not be deprived from the fruit of his continuous efforts without any cogent reason.

According to the appellant, the right of the appellant in respect of the post in question will relate back on the day when he was illegally denied to join the post in question and in his place respondent no.6 was allowed to join the post on the basis of his forged certificate which has been later on cancelled.

He next submits that it is settled law that a person who has obtained appointment by playing fraud and on the basis of a forged document is not entitled to any relief, his services may be terminated straight away without giving any opportunity of hearing. In these circumstances, respondent no.6 is not entitled to any relief from this Court and the writ petition filed by him is being delayed for want of ineffective pairvi on behalf of the State side.

He also submits that respondent no.6 has no right to continue on the post of Assistant Teacher in the Institution and the petitioner-appellant is the only suitable candidate for the said post and is entitled for all service benefits admissible to the said post. The appellant's right over the post in question has been delayed due to deliberate inaction of the respondents which can not be denied for no fault of the appellant and his continuous efforts for justice may not wave his legal and constitutional rights. Thus, there is a gross violation of Article 14,16 and 21 of the Constitution of India.

It is lastly argued that the post in question is lying vacant by virtue of termination of services of respondent no.6 against which the above noted writ petition is pending before this Court but the termination order has neither been recalled by the authority concerned nor set aside by the competent court of law till date, therefore, the petitioner-appellant's claim over the post in question may be subject to decision in the said writ petition.

Having heard the learned counsel for the parties and on perusal of the record, we are of the view that as services of respondent no.6 have been terminated. The writ petition filed by him was dismissed but after filing of restoration application now is pending. However, he was appointed almost 21 years back. Therefore, even if his termination is held to be illegal and appointment invalid, the petitioner-appellant would not get any relief as life of merit list could not continue to 21 years. Therefore, we do not find any illegality or infirmity in the impugned order.

For all the reasons stated above, the appeal sans merit and is, accordingly dismissed.

Order Date :- 18.4.2013

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