District Basic Education ... vs Chandra Kant Tripathi S/O Kunj ...
2013 Latest Caselaw 4161 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- REVIEW PETITION DEFECTIVE No. - 96 of 2009
 

 
Petitioner :- District Basic Education Officer, ( S/S 918/2009 )
 
Respondent :- Chandra Kant Tripathi S/O Kunj Bihari Tripathi & Others
 
Counsel for Petitioner :- Jyotinjay Verma
 
Counsel for Respondent :- K.M. Shukla,P.K.Khare
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Shri Jyotinjay Verma, learned counsel for review applicant and Shri K.M. Shukla and Shri P.K. Khare, learned counsel appearing for respondent no. 1.

By means of the instant review petition, the final judgment and order dated 06.02.2009 passed by this Court has been sought to be reviewed on the ground inter alia that the order dated 6.2.2009 passed by this Court has resulted in miscarriage of justice for the reason that this Court was persuaded to pass the order on account of suppression and concealment of material facts by the  respondent no. 1.

Opposing the plea taken by learned counsel appearing for review applicant, Shri P.K. Khare, learned counsel for respondent no. 1 has vehemently submitted that the order under review dated 6.2.2009 is an innocuous order and the same does not suffer from any legal infirmity so as to call for its review. He has further stated that the order under review is a conditional order, according to which, the respondents in the writ petition were directed to allow joining of the petitioner therein and to pay him salary only in case the petitioner was reinstated. He has further stated that in case according to the review applicant, respondent no. 1 was not reinstated then the order dated 6.2.2009 ought to have been interpreted by the review applicant accordingly. He further states that the order, being conditional in nature, does not suffer from any error apparent on the face of record and hence the review petition is misconceived.

Shri Khare has further stated that on one hand in compliance of order dated 6.2.2009, the respondent no. 1 has not only been allowed his joining but is also being paid his salary as well and on the other hand, the same order is being assailed by the review applicant by filing the instant petition, which according to him, is not legally permissible.

I have considered the rival arguments advanced by learned counsels for respective parties.

Admittedly, the writ petition filed by respondent no.1 (Chandra Kant Tripathi) bearing Writ Petition No. 918 (SS) of 2008 in which the order under review dated 6.2.2009 has been passed was finally disposed of on the date when it was presented for the first time before the Court. The order dated 6.2.2009 was passed after hearing the learned Standing Counsel appearing for the State authorities and also learned counsel appearing for the Basic Shiksha Adhikari, who is the applicant in the instant review petition.

The order dated 6.2.2009 is based on the grievance raised by respondent no. 1 to the effect that since he was reinstated by the order dated 7.11.2007 as such, he is entitled to be permitted his joining and further to be paid the salary. The Court while passing the order dated 6.2.2009 only observed that if the respondent no. 1 has been reinstated by the order of Basic Shiksha Adhikari then there cannot be said to be any authority under which he can be restrained from functioning as teacher in the institution in question and further that there cannot be any legal provision or legal authority under which the petitioner can be denied his continuance and salary as teacher unless any subsequent order has been passed against him. Based on the aforesaid observations, the Court only directed the respondents of the writ petition to allow the joining of the petitioner therein  and to pay him salary only if the petitioner was reinstated. The operative portion of the aforesaid order dated 06.02.2009 is as follows:-

 "In view of the fact, it is directed that if the petitioner has been reinstated, he shall be allowed to join on his post within a period of fifteen days from the date a certified copy of this order is produced before the authority concerned and will also be entitled for salary if permissible under the law."

True, from a perusal of the order dated 6.2.2009 passed by this Court while finally disposing of Writ Petition No. 918 (SS) of 2009, it cannot be said that the said order suffers from any apparent infirmity. However, this case has very disturbing facts, which are being narrated here in after. These facts make it evident that while passing the order dated 6.2.2009, this Court was persuaded to pass the said order by concealment of material facts by the petitioner in the writ petition.

It is alleged by learned counsel appearing for the review applicant that the respondent no. 1 was allegedly appointed in the year 1991 on compassionate ground. However, he was placed under suspension on the ground that he claimed his appointment on compassionate ground on the basis of a forged document i.e. his very appointment letter. In this regard, he has drawn attention of the Court towards the letter dated 21.7.2005, written by the then Basic Shiksha Adhikari (who has since retired) to the Assistant Director of Education (Basic) Faizabad Division, Faizabad stating therein that though alleged appointment order issued in favour of respondent no. 1 is dated 20.8.1991, which is allegedly issued under his signature whereas he had joined on his posting only on 12.9.1991. The then Basic Shiksha Adhikari has categorically stated in the said letter that the alleged order of appointment of the respondent no. 1  dated 20.8.1991 is completely forged and fabricated.

It has further been stated by the learned counsel appearing for review applicant that an inquiry was conducted and by means of order dated 30.6.2005 reinstatement of the respondent no. 1 ordered earlier was cancelled. He has further stated  that in the said inquiry, it was found that the appointment order of the respondent no.1, allegedly issued on 20.8.1991 appointing him on compassionate ground, was a forged document. It has also been brought to the notice of the Court that challenging the aforesaid order dated 30.6.2005, the respondent no.1 had earlier filed a Writ Petition bearing No. 532 (SS) of 2005 wherein no interim order was passed by the Court and on the date of disposal of Writ Petition No. 918 (SS) of 2009, the said writ petition i.e. Writ Petition No. 532 (SS) of 2005 was pending. It has also been pointed out by learned counsel that the factum of pendency of Writ Petition No. 532 (SS) of 2005 was not disclosed by the respondent no.1 while filing Writ Petition No. 918 (SS) of 2009. He further stated that if such an averment was made in Writ Petition No. 918 (SS) of 2009 bringing to the notice of the Court the factum of pendency of Writ Petition No. 532 (SS) of 2005, the Court would not have been persuaded to pass the order under review dated 6.2.2009.

It has also been brought to the notice of the Court and the said fact has not been controverted by learned counsel appearing for respondent no.1 that in respect of alleged forgery committed by respondent no.1 in obtaining forged appointment of compassionate ground as Assistant Teacher, First Information Report was lodged in the year 2005 and after investigation in the said criminal case a charge sheet was also submitted before the court concerned. It has also been stated that non-bailable warrants by the court concerned have been issued against him. Learned counsel for review applicant states that the factum of lodging of F.I.R., filing of charge sheet and pendency of the criminal case in respect of very initial appointment of petitioner ought to have been brought to the notice of the Court by respondent no.1 while filing Writ Petition No. 918 (SS) of 2009 and by not bringing these facts to the notice of the Court, the respondent no.1 is, in fact, guilty of misrepresentation and concealment of relevant facts. He further states that on account of the aforesaid misrepresentation, the Court appears to have been persuaded to pass the order dated 6.2.2009.

Shri Verma has further argued that as far as the earlier Writ Petition No. 532 (SS) of 2005 is concerned, the same was got dismissed as withdrawn on 19.2.2006 i.e. subsequent to the final disposal of Writ Petition No. 918 (SS) of 2009 by means of the order dated 6.2.2009, which is under review. He has also stated that  no notice of the application seeking withdrawal of Writ Petition No. 532 (SS) of 2005 was ever given to the learned counsel appearing for Basic Shiksha Adhikari in the said case.

In the background of the aforesaid facts, especially the misrepresentation and concealment of relevant facts and material made by respondent no.1, it can safely be observed that order under review may not apparently appear to suffer from any infirmity for the reason that it is apparently very innocuously worded but it has ultimately resulted in miscarriage of justice, as such, the instant review petition deserves to be allowed.

As regards the submission made by Shri P.K. Khare, regarding the maintainability of the review petition, regard may be had to the judgment of the Division Bench of this Court in the case of Vijay Pratap Singh Vs. Union of India and seven others reported in [2004 (22) LCD 115] wherein it has categorically been held that the orders obtained by concealment of fact deserves to be set aside and further that the order of the Court should not be prejudicial in any manner and if the Court finds that the order was passed under a mistake or in a situation where it would not have exercised the jurisdiction, but for its erroneous assumption, which in fact did not exist, it can rectify the error. In other words, if an order has been passed by mistake or by suppression of material facts and further if the order is causing miscarriage of justice, it can be reviewed.

Paragraph no. 8 of the aforesaid judgment in the case of Vijay Pratap Singh (supra) is relevant to be quoted here which runs as under:-

"8.    It appears to be a settled legal position that orders obtained by concealment of facts, deserves to be set aside. In this connection, reference may be made to Welcom Hotel & others V. State of Andhra Pradesh & others (1983) 4 SCC page 575, the Chancellor & another v. Dr. Vijaynanda Kar & others, (1994) 1 SCC, 169, wherein it has clearly been held that suppression of material facts disentitles the petitioner to any relief at the hands of the Court. The Apex Court has also ruled in S.Nagraj & others v. State of Karnataka & others, (1993) Supp. (4) SCC 595 that the order of the court should not be prejudicial to any one and if the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exit, it an rectify the error. In other words, if an order has been passed either by mistake or by suppression of material facts and if the order is causing miscarriage of justice, it has to be reviewed. Similar was the view of this Court in Dr. Sushma Misra, Vs. U.P. Higher Education Service Commission, (1982) 2 UPLBEC 1502. it was said that if an order was passed on misapprehension of facts, then there was no rule which prevented it from reviewing the same."

It does not require any discussion to observe that forgery vitiates all judicial acts and since in the instant case, the very initial appointment of respondent no.1 is allegedly based on forged and fabricated appointment order, hence, respondent no.1 was not entitled to any kind of relief howsoever innocuously worded the order under review may be. The submission of learned counsel appearing for the respondent No.1 that the order dated 6.2.2009, which is under review in the instant review petition is a very innocuous order and further it is a conditional order and hence instead of filing the review petition, it was incumbent on the part of review applicant to have appropriately interpreted the said order does not impress the Court.

As noticed above, the allegation of the review applicant is that the very initial appointment order of respondent no.1 appointing him as Assistant Teacher on compassionate ground is forged. Further noticeable feature in this case is that on an inquiry, the department has found the order dated 21.6.2004, on the strength of which the respondent no.1 had claimed his reinstatement, has also been found to be forged. This report is embodied in the order dated 30.6.2005. The said order dated 30.6.2005 was challenged by respondent no.1 by way of filing Writ Petition No. 532 (SS) of 2005. Further, while filing the subsequent Writ Petition No. 918 (SS) of 2009 even the factum of pendency of the earlier writ petition was deliberately suppressed by the respondent no.1. Another material suppression, which is apparent in the instant case, which the respondent no.1 indulged into, is that  while filing Writ Petition No. 918 (SS) of 2009, pendency of criminal case  in respect of allegations of forgery in the appointment order dated 20.8.1991 was not disclosed. It is also noteworthy that the order dated 7.11.2007 is also being termed to be a forged document allegedly fabricated by respondent no.1.

From a close scrutiny and analysis of the aforesaid facts and circumstances of the case as also  the competing arguments raised by learned counsels appearing for the parties, I have no hesitation to hold that this Court was persuaded to pass the order dated 6.2.2009 by suppression and concealment of material facts as noted above. Though the order dated 6.2.2009 is innocuously worded and in fact it is a conditional order, however, for the reason that the said order is causing miscarriage of justice on account of the fact that the departmental authorities have already held the initial appointment of respondent no.1 to be forged, in my considered view, the order dated 6.2.2009 deserves to be reviewed, albeit without giving any finding as to the genuineness of the appointment of respondent no. 1.

In view of the discussions made and reasons given above, in the result, the  instant review petition is allowed and the order dated 6.2.2009 is hereby set aside. It is expected that pleadings in the Writ Petition No. 918 (SS) of 2009 shall be completed within the shortest possible span of time and the same shall be decided expeditiously.

There shall be no order as to costs.

Order Date :- 15.7.2013

Virendra