D.I.O.S. Firozabad vs Ram Dayal Gupta & Another
2017 Latest Caselaw 5714 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- SPECIAL APPEAL No. - 1120 of 2006
 

 
Appellant :- D.I.O.S. Firozabad
 
Respondent :- Ram Dayal Gupta & Another
 
Counsel for Appellant :- S.C.
 
Counsel for Respondent :- Sri Prakash Gupta,Ashish Gupta
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

Heard the learned Standing Counsel for the appellant and Sri Ashish Gupta, learned counsel for the respondent no. 1. None appears for the respondent no.2.

This appeal (formerly numbered as Defective Appeal No. 346 of 2003) has been filed by the District Inspector of Schools, Firozabad on behalf of the State praying for setting aside the judgment of the learned Single Judge dated 1st August, 2002 whereby a learned Single Judge of this Court has allowed the writ petition and has held that the correct date of birth of the respondent no. 1 is 1st October, 1934 and not 1st October, 1929 as a result whereof, he is entitled to retain all the wages that had been received by him up to 30th June, 1995. It was further held that he was entitled to 12% interest in relation to the delayed payments including post retiral benefits which are to be paid treating his date of birth as 1st October, 1934.

The dispute has a chequered history inasmuch as, one of the peculiar facts that has come to our notice is that against the very same judgment impugned herein, the Committee of Management of the Institution, which is the respondent no. 2 in this appeal, filed Special Appeal Defective No. 239 of 2003, the delay whereof was condoned but the appeal was dismissed in the absence of learned counsel on 2nd July, 2012 on merits. The judgment of the said appeal is extracted hereinunder:-

"List has been revised yet none responded on behalf of the appellant although name of Sri P.K. Jain is shown as counsel for the appellant.

We have, however, perused the record.

It appears that the petitioner-respondent being aggrieved by the notice dated 29.9.1995 given by the Manager of the Institution in question preferred the Writ Petition No.36661 of 1995, Ram Dayal Gupta vs. District Inspector of Schools, Firozabad and others. The learned Single Judge having found that the date of birth of the petitioner-respondent both in the service book as well as in the High School certificate is recorded as 1.10.1934 allowed the writ petition vide order dated 1.8.2002 and directed the appellant to pay the retiral benefits to the petitioner-respondent on the basis of his date of birth recorded as 1.10.1934 along with interest @ 12%.

The appellant thereafter has preferred this intra court appeal, under the Rules of the Court on the ground, inter alia, that the actual date of birth of the petitioner-respondent is 1.10.1929 but the same has been changed by interpolation. The learned Single Judge, however, has found that the date of birth of the respondent-petitioner is recorded as 1.10.1934 in the service book as well as in the High School certificate and, therefore, taking it to be the correct and authentic date of birth directed for payment of pension from the date of retirement of the petitioner-respondent i.e. 30.6.1995. No evidence or material has been brought on record to show that the date of birth mentioned in the High School certificate and the service book is wrong. Besides that, there would be presumption of correctness of the date of birth mentioned in the High School certificate as well as in the service book. In the case in hand, the date of birth written in the service book of the petitioner-respondent is the same as that of the High School certificate and, therefore, in the absence of any clinching evidence, it cannot be held that the date of birth of the petitioner-respondent shown in the service book is wrong.

In view of the above we have no reason to differ with the view taken by the learned Single Judge specially in view of the fact that in the service book as well as in the High School certificate the date of birth of the petitioner-respondent is similar and therefore the impugned notice issued by the appellant after the retirement of the petitioner-respondent from service cannot sustain.

We, therefore, do not find any merit in the appeal. It is accordingly dismissed."

A perusal of the judgment would indicate that the appeal was dismissed in the absence of the counsel for the appellant and the same does not take notice of all the intervening events in relation to this dispute, particularly the interim order passed in the present appeal on 10th October, 2011, as well as the orders passed from time to time in Contempt Application No. 220 of 2003 and the consequential orders passed by the educational authorities including the order of the Deputy Director Education dated 06.06.2003, which have a direct impact on the entire litigation.

The appeal, therefore, has to be proceeded with keeping in view the aforesaid facts and for that purpose, we had summoned the records of the aforesaid appeal and the records of the contempt application that have been placed before us. In order to appreciate the controversy in correct perspective and to overcome the hurdles of the judgment dated 2nd July, 2012, it would be necessary to delineate the entire facts that have led to the passing of the orders from time to time and also the entertaining and disposal of the present appeal in the background aforesaid.

The respondent no.1-Ram Dayal Gupta was admittedly a teacher in P.D. Jain Inter College, Firozabad which is a recognized and State aided Institution managed by the respondent no.2. The provisions of the U.P. Intermediate Act, 1921 and the Regulations framed thereunder read with the U.P. High School and Intermediate Payment of Salaries Act, 1971 are applicable. He was working in the LT Grade and according to him his date of birth was recorded in the service book as 1st October, 1934 as a result whereof he was entitled to continue up to the age of superannuation followed by continuance till the end of the session i.e. 30th June, 1995. The respondent no. 1 continued to serve the Institution and withdraw wages but after his retirement he was served with a notice dated 2nd September, 1995 by the District Inspector of Schools that he had illegally continued in the Institution for five years more than that was desirable, keeping in view the age of superannuation, inasmuch as the date of birth of the respondent no. 1 was 1st October, 1929 and not 1934. The notice alleged interpolation. A direction was given by the District Inspector of Schools to the Management to calculate and send papers for recovery of excess salary and for lodging of First Information Report.

From the record of Special Appeal Defective No. 239 of 2003 as well as the rejoinder affidavit filed in this Special Appeal, it appears that the respondent no.1-Ram Dayal Gupta had appeared in the High School examination of 1949 with Roll No. 16255 from Narain Inter College, Shikohabad as a regular student and passed his High School in first division. He was appointed in the LT Grade as a teacher in P.D. Jain Inter College Firozabad in 1959. The Principal of the Institution while finalizing the pensionary papers of the respondent no. 1 found that there was an interpolation in the date of birth of the respondent no. 1 in the service book. The date of birth mentioned in the service book was 01.07.1934 that was scrapped and converted into 01.10.1934. This gave rise to suspicion and the principal wrote a letter to the Manager on 24th July, 1995 with a copy of the same to the District Inspector of Schools and when he further inquired into the matter then he personally went to Narain Inter College, Shikohabad from where he obtained the extract of the scholar register that contained the date of birth of the respondent no. 1 as 1st October, 1929 which was recorded both in digits and in words. A true copy of the scholar register issued by the Principal Narain Inter College on 22.07.1995 has been filed as Annexure RA-5A to the rejoinder affidavit of the present appeal. A copy of the rejoinder affidavit that had been filed is not on record but a copy of the same has been supplied by the learned counsel themselves which has been perused.

It is on receiving such information that the District Inspector of Schools issued the directions on 2nd September, 1995 to the Management to take action as noted above. Not only, this the Principal of the Institution made an enquiry from the Secretary Board of High School and Intermediate examination vide his letter dated 14.10.1995 and the Board which is the custodian of the original information of the High School examination informed the Principal vide letter dated 28.10.1995 that in the notification of the High School examinations of 1949, the respondent no. 1 had appeared as a regular student with roll no. 16255 in 1949 from Narain Inter College, Shikohabad and had obtained 348 marks out of 500 standing in first division. His recorded date of birth both in digits and in words was indicated as 1st October, 1929. This document has also been filed as Annexure RA-5 to the rejoinder affidavit.

As a consequence of the direction of the District Inspector of Schools dated 02.09.1995, an FIR was also lodged on 22.11.1995 against the respondent no. 1 at Police Station, North Firozabad and registered as Case Crime No. 665 of 1995. The respondent no. 1 filed Criminal Writ Petition No. 198 of 1996 challenging the said FIR that was disposed of on 22.03.1999 staying his arrest. However a charge-sheet was filed in the said case on 10th February, 1996 and the said case was converted into Case No. 1410 of 1996. During investigation the original records pertaining to the respondent no. 1 were handed over to the police that were given in custody to the then Manager Sri Ram Prakash Jain. No further information is available as to the outcome of the criminal case.

This notice dated 2nd September, 1995 was assailed by the respondent no. 1 in Writ Petition No. 36661 of 1995 that gave rise to the present Special Appeal, as well as Defective Special Appeal No. 239 of 2003 that was dismissed on 2nd July, 2012 vide judgment extracted hereinabove.

The learned Single Judge came to the conclusion that in view of the no dues certificate given to him by the Principal and in view of having passed the High School examination recording his date of birth as 01.10.1934, he was entitled to continue till 30th June, 1995 and even otherwise having actually worked in the Institution up to the said date, no recovery could be made. It was further held that since the date of birth recorded in the service book was 01.10.1934, therefore, he was also entitled to all the benefits, including the post retiral benefits on the said status of his date of birth.

From the judgment it appears that there was no other consideration taken into account by the learned Single Judge except the assertion on behalf of the respondent no. 1 about the facts stated in his service book and High School certificate, the photostate copies only whereof were filed on record. The originals were not before the Court.

The Management filed Special Defective Appeal No. 239 of 2003 that remained pending without even condoning the delay till the date of its dismissal in the year 2012. It appears that no interim order had been passed staying the operation of the judgment of the learned Single Judge either in the said Special Appeal or even in the present Special Appeal which was filed in July, 2003 and remained defective till 10th October, 2011.

It is evident that even before the filing of these defective appeals, the respondent no. 1 filed Contempt Application No. 220 of 2003 for compliance of the judgment dated 01.08.2002 where notices were issued on 23.01.2003. The officers, who were arrayed in the contempt application filed their counter affidavits; and not being satisfied with the same and further in view of the new officers having taken over charge who came to be impleaded, notices were issued by the Court directing the officials to be personally present alongwith the original record on 18th April, 2003. Orders were passed thereafter, and on 5th May, 2003 the Committee of Management instituted Defective Appeal No. 239 of 2003 in which notice on the delay condonation application was issued on 9th May, 2003.

On 20th May, 2003 the learned Single Judge in the contempt proceedings passed an order to the following effect:-

"Respondent nos.1, 2, 3, 5 and 6 are present in Court today.

Shri Raman Prakash Jain, former Manager of the College respondent no.6 under whose custody the original records for payment of retiral dues of the petitioner are along with respondent no.1, Smt. Maya Devi, DIOS Firozabad Shri Ashok Kumar Jain, Principal, P.D. Inter College, Firozabad and Sri Nirmal Kumar Jain, Manager P.D.Inter College, Firozabad will assemble in the office of respondent no.5, Shri Narendra Singh Bist on 27th May, 2003 at 11 A.M. Shri Raman Prakash Jain will also bring the original records pertaining to the retiral dues of the petitioner on that date in the office of respondent no.5 for verification with the records available in the office of respondent no.5. The original records thereafter will be returned to Shri Raman Prakash Jain. The applicant will also be present on that date along with papers pertaining to his retiral dues in the office of respondent no.5. After completing all the formalities respondent no.5, Deputy Director of Education, Agra, Region Agra will pass appropriate orders within a period of fifteen days from today.

Personal appearance of the respondents except Deputy Director of Education, Agra is exempted subject their cooperation in passing necessary orders on 27th May, 2003.

List on 9th July, 2003."

It is worth noticing that the above quoted order was passed in the Contempt jurisdiction by the same Hon'ble Judge who delivered the judgment dated 01.08.2002 in the writ petition.

The instant appeal then numbered as defective appeal no. 346 of 2003 was presented in July 2003 by the District Inspector of Schools.

On the passing of the above quoted order, the Deputy Director Education proceeded to verify the records, recorded the statement of the Principal, the then Manager, the District Inspector of Schools and the respondent no.1 on 27.05.2003 and then passed an order on 6th June, 2003. This order of 6th June, 2003 was noticed by a learned Judge in the contempt matter who passed an order on 12th May, 2004 calling upon the authorities for framing of charges for non-compliance of the judgment of the learned Single Judge. The case was taken up on 24th May, 2004 and again on 21st July, 2004 when the following orders were passed:-

Order dated:-24.05.2004

"Opposite party no.5, Sri N.S.Bisht, Deputy Director of Education, Agra is present in the Court. When he has been confronted that when the issue with regard to the date of birth has already been adjudicated and the Court has specifically held the date of birth of the applicant as 01.10.1934 how by passing the order dated 06.06.2003 the date of birth has been taken as 01.10.1929. No positive reply has come forward in this regard. In the circumstances, the following charges are being framed against him :

"When in the order dated 01.08.2002 passed in Writ Petition NO.36661 of 1995 Court has held the date of birth of the applicant as 01.10.1934 whey the date of birth as 01.10.1929 has been taken in a gross violation of the order of this Court and for such violation why you may not be punished for Contempt of court."

Sri K.R.Singh, learned Standing Counsel states that the opposite party no.1, Smt. Maya Devi, the then District Inspector of Schools, Firozabad is under suspension and therefore, she could not appear. Present District Inspector of Schools, Firozabad Sri Ram Chet is present in the Court. He has joined as District Inspector of Schools, Firozabad in June, 2003. However, he admitted that in compliance of the order of this Court, payment has not been made. Learned Counsel for the applicant is directed to implead Sri Ram Chet, District Inspector of Schools, Firozabad as opposite party. Since he is present in the Court, no notice is required to be issued. As prayed one more opportunity is provided to him to comply the order of this Court.

List on 20.07.2004. He may appear in person on that date. However, if the order is complied with, he need not to appear in person. Opposite party no. 5 may also appear on the date fixed and give the reply to the charges framed against him.

Copy of this order may be given to the learned Standing Counsel on the payment of usual charges."

Order Dated:-21.07.2004

"After hearing the counsel for the parties, I was dictating the order yesterday but on the request of the Learned Standing Counsel the matter was posted for today.

This matter has been called out twice but neither the counsel for the applicant nor the applicant is present. Learned Standing Counsel has produced the entire record relating to this dispute before me and it transpire that the Board of High School has sent a official letter to the Institution stating that the date of birth as recorded in the Board of the applicant is 1st of October, 1929. From the record, it is also apparent that the applicant was directed on several occasions to produce the original or duplicate High School certificate or mark sheet, which was never presented. From the record, it transpires that statement of several persons have been recorded and the applicant has admitted that the date of birth originally mentioned in the service book had been erased and new dates have been re-entered. It has also been stated that the Institution has already preferred a Special Appeal No. 346 of 2003 which is pending consideration. From the record of this petition, it also transpires that an order has already been issued for releasing the payments to the applicant.

Considering the entire facts and circumstances of the case, it is provided that no payments be made to the applicant till further orders passed in this petition or till the decision or any order in the Special Appeal.

List before me on 26.10.2004 by which time the opposite parties may get orders in the pending Special Appeal.

Let a copy of this order be given to learned Standing Counsel today and on the next dat fixed Shri Bist need not appear in person."

A perusal of the said order of the learned Single Judge demonstrates that the Court took notice of the records that are mentioned in the order dated 6th June, 2003 and the contents thereof and also noticed the admission of the respondent no.1 that the original date of birth as recorded in the service book had been erased and new date has been re-entered. The Court noticed the absence of the counsel for the applicant (respondent no. 1 herein). The Court also took notice of the fact that the State has filed a Special Appeal which is pending and after considering the entire facts, the learned Judge provided that no payments shall be made to the respondent no. 1 till further orders are passed either in the contempt application or in the Special Appeal. Since no interim orders were passed in the Special Appeal, the Court proceeded to hear the matter and on 20th July, 2005 passed the following order and granted further time to the learned Standing Counsel to obtain orders in the Special Appeal:-

"I had already passed a detailed order on 21.07.2004 which is reiterated.

"After hearing the counsel for the parties, I was dictating the order yesterday but on the request of the Learned Standing Counsel the matter was posted for today.

This matter has been called out twice but neither the counsel for the applicant nor the applicant is present. Learned Standing Counsel has produced the entire record relating to this dispute before me and it transpire that the Board of High School has sent a official letter to the Institution stating that the date of birth as recorded in the Board of the applicant is 1st of October, 1929. From the record, it is also apparent that the applicant was directed on several occasions to produce the original or duplicate High School certificate or mark sheet, which was never presented. From the record, it is also apparent that the applicant was directed on several occasions to produce the original or duplicate High School certificate or mark sheet, which was never presented. From the record, it transpires that statement of several persons have been recorded and the applicant has admitted that the date of birth originally mentioned in the service book had been erased and new dates have been re-entered. It has also been stated that the Institution has already preferred a Special Appeal No. 346 of 2003 which is pending consideration. From the record of this petition, it also transpires that an order has already been issued for releasing the payments to the applicant.

Considering the entire facts and circumstances of the case, it is provided that no payments be made to the applicant till further orders passed in this petition or till the decision or any order in the Special Appeal.

List before me on 26.10.2004 by which time the opposite parties may get orders in the pending special appeal.

Let a copy of this order be given to learned Standing Counsel today and on the next date fixed Shri Bist need not appear in person."

The Special Appeal No. 346 of 2003 challenging the order, of which contempt is alleged, is still pending. On the facts of this case, it appears necessary that the contempt proceedings should await the decision of the special appeal. The parties to the appeal may get the hearing expedited in the aforesaid special appeal.

List this petition on 04.10.2005."

The Court granted further time on 05.12.2005 to obtain orders in the pending Special Appeal.

The matter was again taken up on 10th February, 2006 and the learned Standing Counsel was called upon to pursue the appeal. Ultimately, a compliance affidavit was filed on behalf of the State-authorities that the entire retiral benefits had been released to the respondent no. 1 but 12% interest had not been paid. The Court after noticing the said facts passed the order that either the interest be paid within one month or the decision in the appeal be awaited in which case the respondent no. 1 would be entitled to 6% interest only. The order dated 10th May, 2006 is extracted hereinunder:-

"A compliance affidavit on behalf of opposite party has been filed stating that the entire retiral benefits have been released. However, learned counsel for the applicant states that 12% interest as directed by the writ court has not been released. It is not denied that Special Appeal No. 346 of 2003 is still pending decision though there is no interim order therein and thus the learned Standing Counsel states that the interest part may await the decision in the special appeal.

The opposite parties may either pay the interest within a month from today or they may await the decision of the special appeal in which case the applicant would be entitled to 6% simple interest from today.

Let a copy of this order be given to the learned Chief Standing Counsel within a week.

List on 12.09.2006."

After passing of the aforesaid order it appears that no interim order was passed in the special appeal as a result whereof, payments stood released. The contempt Court took notice of these facts in the order dated 19th September, 2006 which is extracted hereinunder:-

"An affidavit sworn by the District Inspector of Schools, Firozabad has been filed through which it is stated that interest of GPF at the rate of 6% has been calculated to Rs.37,487/- and a cheque dated 15.09.2006 of the aforesaid amount has been handed over today in Court to the Counsel for the applicant who had issued a due receipt thereof. With regard to the interest on pension, an authorization letter for Rs.42,380/- has been issued to the Senior Treasury Officer, Firozabad who will make the payment to the applicant.

Let a reply to the said affidavit be filed and Treasury Officer, Firozabad may in the meantime release payment in favour of the applicant.

List on 11.10.2006."

Since there was some deficit in the payment a learned Single Judge in the Contempt proceeding passed the following order on 11th October, 2006:-

"Heard learned counsel for the parties.

The following order was passed on 19.09.2006.

"An affidavit sworn by the District Inspector of Schools, Firozabad has been filed through which it is stated that interest of GPF at the rate of 6% has been calculated to Rs.37,487/- and a cheque dated 15.09.2006 of the aforesaid amount has been handed over today in Court to the counsel for the applicant who had issued a due receipt thereof. With regard to interest on pension, an authorization letter for Rs.42,380/- has been issued to the Senior Treasury Officer, Firozabad who will make the payment to the applicant.

Let a reply to the said affidavit be filed and Treasury Officer, Firozabad may in the meantime release payment in favour of the applicant.

List on 11.10.2006.

A counter affidavit has been filed stating that neither the copy of the authorization letter sanctioning Rs.42,380/- has been received by the petitioner nor the aforesaid amount has been paid by the Treasury till date.

Let an affidavit of the Treasury Officer and the District Inspector of Schools be filed as to why the amount has not been paid till date.

List on 18.10.2006."

The aforesaid facts, therefore, leave no room for doubt that the judgment of the learned Single Judge was practically complied with the payments except some part of the interest having been released to the respondent no. 1. The contempt application was ultimately dismissed noticing the aforesaid compliance on 30th July, 2009, the order whereof is extracted hereinunder:-

"In view of the averments made in counter affidavit, the order passed by this Court in Writ Petition No. 36661 of 1995 (Ram Dayal Gupta Vs. District Inspector of Schools, Firozabad and another) appears to have been complied with. Accordingly, there appears no justification to further proceed with the contempt proceeding. Accordingly, the same is hereby dropped. The contempt application is dismissed."

Throughout the contempt proceedings and from the orders passed we find no mention of Special Appeal Defective No. 239 of 2003.

The gamut of facts as enumerated above would therefore establish that the judgment of the learned Single Judge was complied with by the appellant during the pendency of both the special appeals as there were no interim orders therein except the interest part as per the order of the contempt court.

It is in this background that the special appeal filed by the Committee of Management does not appear to have been pursued and the same was dismissed on 02.07.2012 in the absence of the counsel for the Committee of Management which ought to have been done in default, but was dismissed noticing the facts of the case as indicated in the impugned judgment on merits.

There is no restoration or recall or review application filed in the aforesaid special appeal.

The instant appeal has, however been heard and the delay was condoned on 10th October, 2011 prior to the dismissal of the aforesaid special appeal filed by the Management. This appeal was admitted and the following interim order was passed on 10th October, 2011:-

"1.The counsel for the appellant submits that:

In the High School Certificate, the forgery has been committed by the respondent.

The U.P. Intermediate and High School Board has also certified that date of birth recorded in the High School Certificate is 01.10.1929.

2.Admit. Issue notice.

3.Till further orders of the Court, the operation of the order of the Single Judge dated 01.08.2002 shall remain stayed. However, till further orders of the Court, the amount of salary already paid to the respondent shall not be recovered and the appellant shall be given post retiral benefits treating the date of birth to be 01.10.1929."

It appears that the passing of the interim order in this appeal extracted hereinabove was not noticed by the Division Bench that dismissed the Defective Special Appeal No. 239 of 2003 on 2nd July, 2012 as it is obvious that the same was dismissed in the absence of the counsel for the appellant and the District Inspector of Schools being not served with notice. It also appears that the learned Standing Counsel for the State in the appeal could not bring the order dated 20.05.2003 and 21.07.2004 as well as the other orders quoted above passed in the contempt matter to the notice of the Division Bench inasmuch as from the record of Special Appeal Defective 239 of 2003, it appears that no notice of the appeal was either dispatched or served on the learned State Counsel representing the District Inspector of Schools. This is noted in the order sheet dated 26.03.2012 of the said appeal. The respondent no. 1 had filed a counter in the said appeal to the delay condonation application on 01.07.2003 but he did not file documents or evidence to contradict the findings of the Deputy Director of Education in the order dated 06.06.2003. Neither the orders of the contempt court or the order of the Deputy Director Education dated 06.06.2003 were taken notice of while dismissing the appeal on 02.07.2012.

It has been urged on behalf of the State that the respondent no. 1 also did not point out these facts to the notice of the Division Bench and consequently the said dismissal order should not be read adverse in so far as the appellant is concerned as the appeal filed by the Management was dismissed without noticing these developments; including the orders passed by this Court in the contempt jurisdiction and this appeal as well as the order of the Deputy Director Education dated 6th June, 2003 which remains unchallenged till date and of no notice of the said appeal to the District Inspector of Schools.

It is, therefore, submitted on behalf of the appellant that the respondent no. 1, in view of the findings recorded in the order dated 6th June, 2003 and the facts on record, cannot claim any benefit treating him to have retired on the strength of the date of birth as disclosed by the respondent no. 1 i.e. 01.10.1934.

Replying to the aforesaid submissions Sri Gupta, learned counsel for the respondent no. 1 submits that the entire judgment of the learned Single Judge has been complied with. In such circumstances, the conclusion drawn by the Division Bench in the order of Special Appeal dated 2nd July, 2012 should be treated to be final and binding and this appeal also deserves to be dismissed. He further submitted that in the absence of any material that may clinchingly establish the date of birth of the respondent no. 1 to be 01.10.1929, there is no occasion for this Court to take a different view in the matter contrary to the Division Bench order dated 2nd July, 2012 even if it was delivered in the absence of the learned counsel for the parties.

Having heard learned counsel for the parties, at the very outset we may clarify the status of the judgment of the Division Bench dated 2nd July 2012. The said judgment was delivered in the absence of the learned counsel. Learned counsel for the respondent no. 1 or the respondent no. 1 himself did not choose to bring any of the aforesaid intervening facts noted above to the Court hearing the Special Appeal Defective No. 239 of 2003. The respondent no. 2 therein, i.e. the District Inspector of Schools was never put to notice about the appeal. There is no endorsement of service on the memo of appeal no.239(D) of 2003 and the office report dated 26.03.2012 on the order sheet categorically records that no steps were taken to serve the respondent no. 2 therein namely the District Inspector of Schools.

In our considered opinion, the dismissal of the appeal on merits in the absence of the learned counsel for the appellant and with no notice of the District Inspector of Schools, and without noticing these facts was almost a futile exercise that resulted in miscarriage of justice. The aforesaid Division Bench judgment, therefore, cannot be treated to be a judgment on a full consideration on merits and the appeal ought to have been dismissed for default on account of no steps having been taken as per Chapter XII Rule 4 of the Allahabad High Court Rules, 1952.

It cannot, therefore, be treated to have been dismissed on merits inasmuch as it does not notice any of the facts as disclosed hereinabove.

It is here that we have to meet the issue of res-judicata, as the judgment dated 02.07.2012 in Defective Special Appeal No. 239 of 2003, as a matter of fact, has been rendered. The question is that if such a judgment exists which is between the same parties, then can the said judgment be avoided in the wake of the fact that the present appeal also arises from the same judgment of the learned Single Judge. It is settled that res-judicata would not apply on a question of law but if the facts in issue have been adjudicated and the issues raised decided, then whether such a judgment can be avoided even if it was rendered in the absence of the counsel for the appellant and the State-respondent.

Two things have to be kept in mind on the peculiar facts of this case. The first is the final status of the order dated 06.06.2003 passed by the Deputy Director Education in compliance of the order of the learned Single Judge dated 20th May, 2003. We have noted above that the judgment was delivered on 01.08.2002 by the learned Single Judge and the same learned Judge while dealing with the contempt matter on 20th May, 2003 issued the direction to the Deputy Director Education to enquire into the status of the date of birth of the respondent no. 1 and passed an order. The order was passed on 06.06.2003. The second issue is that this order dated 06.06.2003 remains unchallenged by the respondent no.1 and therefore, if the same is final, can still the principles of res-judicata be pressed into service to avoid the directions issued by the learned Judge and the order passed by the authority.

In our considered opinion, the learned Single Judge vide order dated 20th May, 2003 himself invited a review of the situation on the entire facts having been brought to his notice. This was necessarily to be done because neither the District Inspector of Schools nor the Management had brought any of the aforesaid facts to the notice of the learned Judge to be considered or adjudicated in the writ petition when the judgment was delivered on 01.08.2002. We find that the proper course could have been to file a review or recall application before the same learned Single Judge in the writ petition but instead of doing so two appeals were filed, one by the State i.e the present special appeal and the other by the Management that has been dismissed on 2nd July, 2012 giving rise to this complication. The issue was not even brought to the notice before the Division Bench when the said special appeal was dismissed. Thus, not only res-judicata but the judgment dated 01.08.2002 having merged into the judgment dated 2nd July, 2012 also arises for consideration.

To appreciate the issue of res-judicata, we may refer to the decision of Mathura Prasad Bajoo Jaiswal and Others Vs Dossibai N.B. Jeejeebhoy reported in AIR 1971 Supreme Court Pg 2355 = 1970 (1) SCC 613.

It will also be apt to mention that if a person has obtained an advantage, the obtaining whereof rests on deceitful circumstances that are established from record, and the said circumstances have not been adjudicated after considering the entire evidence on the issue, then the principle of res-judicata cannot be attracted keeping in view the law referred to by the Apex Court in the case of Ram Chandra Singh Vs. Savitri Devi and Others 2003 Volume 8 SCC 319 and the judgment in a matter relating to the U.P. Board of High School and Intermediate Education in the case of Ram Preeti Yadav Vs U.P. Board of High School and Intermediate Education and Others 2003 Volume 8 SCC Pg 311.

Apart from this on the question of finality of litigation the Apex Court has held that where the outcome of any litigation has resulted in a decision being rendered due to fraud or misrepresentation, a subsequent adjudication cannot be foreclosed in the case of A.V. Papayya Sastry & Others Vs. Govt. of A.P. And Others 2007 (4) SCC 221.

Apart from the two issues, there is a third dimension which goes to the root of the manner and which has to be considered, namely, the conduct of the respondent no. 1. It is evident from the order of the Deputy Director Education dated 06.06.2003, that has not been challenged by the respondent no. 1, that a full scale inquiry was conducted as per the directions of the same learned Single Judge vide order dated 20.05.2003 with opportunity to the respondent no. 1 to produce original documents to establish his date of birth as 01.10.1934.

In his statement recorded before the Deputy Director Education that has been filed as Annexure RA-4 to the rejoinder affidavit in the present appeal, the respondent no. 1 has stated that the original documents which he had given to the Institution had not been returned back to him and that after retirement he had no occasion to peruse the service records or any such interpolation as alleged. If the then Principal of the Institution has counter signed and has put his stamp thereon then the same cannot be a fault on his part and the matter had now become final with the judgment of the learned Single Judge dated 01.08.2002. He produced photostat copies that had been filed before this Court in the writ petition. On the issue of the verification from the scholar register of Narain Inter College, he gave a clear reply that I will consider the date of birth mentioned in the High School certificate to be correct and would not agree to any endorsement in the scholar register. He, however, failed to produce any original documents. On the issue of interpolation in the service record he categorically stated that he has done nothing.

On a question put to the Manager on this issue he stated that either the Principal or the clerk concerned or the then Manager may be responsible for the same. The respondent no. 1 stated that he had given the original High School certificate to the then Principal Ram Chandra Gupta. All this had happened on 27.05.2003.

The respondent no. 1 in his counter affidavit to the delay condonation application in Special Appeal Defective No. 239 of 2003 had nowhere brought these facts on record, even though the said affidavit was filed on 1st July, 2003. Secondly, even though he stated that the Deputy Director Education could not pass a fresh order on 06.06.2003 as that would amount to sitting in appeal over the judgment dated 01.08.2002, yet such a stand or statement of fact does not appear to have been brought to the notice of the Court when the Special Appeal was dismissed on 2nd July, 2012 after almost 9 years of the aforesaid facts had come into existence. This has to be understood in the background that the notice of the said appeal was never served on the District Inspector of Schools and no steps were taken to serve the said respondents as is evident from the order sheet of the said appeal dated 26.03.2012 but the respondent no.1 was aware of the same. Consequently, there was no occasion for the Standing Counsel representing the appellant herein to have brought that information on record.

It was only the the respondent no. 1 who had been served with the copy of the said appeal and had already put in appearance as noted above by filing a counter affidavit to the delay condonation application on 01.07.2003 who could have further brought all these facts including the directions of the contempt Judge to the notice of the Division Bench when the appeal was dismissed on 2nd July, 2012. The respondent no. 1 or his counsel kept silent and he did not file any further affidavit in the said appeal so as to apprise the High Court of these developments. The non-appearance of the counsel for the appellant-Committee of Management in the said appeal, as noticed, went to the advantage of the respondent no.1 who very conveniently benefitted at the expense of such silence. The counsel for the Committee of Management did not appear as he was the counsel for the appellant, nor has anyone appeared in this appeal on behalf of the Management. The advantage of this non-appearance of the counsel for the Committee of Management went to the advantage of the respondent no. 1. This is an element which reflects a collusive effort whereby the attempt was made for getting the judgment of the learned Single Judge confirmed in appeal. A passive collusion to the detriment of the appellant is what that can be inferred from the non participation of the Management and withholding of correct information by the respondent no. 1.

In our opinion, it was the duty of the respondent no. 1 who is the beneficiary of its entire litigation to have communicated this fact and also the interim order dated 10.10.2011 passed in this appeal to the Division Bench that heard Defective Special Appeal No. 239 of 2003. The respondent no. 1, therefore, had concealed and avoided these facts before the Division Bench on 2nd July, 2012 when the appeal of the Management came to be dismissed in the absence of the counsel for the appellant therein and as observed above without notice to the present appellant.

The issue, therefore, cannot be said to have been adjudicated in the appeal after appreciating the aforesaid facts including the judicial order dated 20.05.2003 and the passing of the order of the Deputy Director Education on 06.06.2003 at the instance of the same learned Single Judge who had allowed the writ petition on 01.08.2002. The peculiar fact therefore, led to the dismissal of the appeal which cannot be said to have laid down the law and therefore, this legal issue of adjudication of the correct date of birth based on the facts aforesaid remained unattended and unadjudicated, and was therefore not an issue decided. The very absence of these material facts led to a decision of in-absentia which therefore cannot be construed as a decision in the appeal on merits. In order to appreciate this conclusion, it is to be noted that the judgment of the learned Single Judge dated 1st August, 2002 was delivered as no response was filed by the appellant before the learned Single Judge. However, the appeal arising out of the same was clearly a proceeding where the District Inspector of Schools, the appellant herein, even though arrayed as a respondent was never put to notice as discussed hereinabove. This fact therefore, remains undisputed that Special Appeal Defective No. 239 was decided without notice to the District Inspector of Schools who is the appellant herein. It has been held by a Division Bench of this Court in the case of Smt. Kanti Khare Vs Kali Prasad Asthana, IIIrd Additional District Judge, Allahabad at present Ist Additional District Judge, Allahabad & Another 1982 AWC Pg 638 Paragraph 21 in Civil Misc. Writ No. 6456 of 1978 decided on 6th May, 1982 as follows:-

"21. The next submission of the learned Counsel was on the applicability of principles of res judicata. The res judicata principle is that question directly in issue and decided by a court of competent jurisdiction cannot be relitigated in future between the same parties or their successor-in-interest in the same court or another court of concurrent jurisdiction. The doctrine is that an existing final judgment rendered on merits, without fraud or collusion by a court of competent jurisdiction, is conclusive of right, questions and facts in issue, as to the parties. It is a rule of judicial administration grounded on the principle of bringing to an end to litigation. The Petitioner's argument was that the nature of proceedings in the present case being quasi in rem, the decision even if was behind the back of the Petitioner, would be treated to be a judgment about the status of building, viz, that it was not vacant and that it would be binding in all subsequent proceedings taken in respect of the said premises. We find no substance in this submission. The doctrine of res-judicata is bottomed of the question that the party to be affected or some one with whom he is in pravity has litigated. If a party who had no opportunity of litigating an issue, the judgment given in the said proceedings cannot operate against him. In the present case, the Petitioner cannot be said to have relitigated a matter which has been previously determined in an action between himself and the contesting Respondent. The Rent Control and Eviction Officer dropped the proceedings. The necessary result of dropping the proceedings was that no decision on merits was arrived at. As no decision was arrived at, nothing can be said to have been settled by the judgment relied upon by the contesting Respondent. For applying the principle of res judicata, it is basic that the party sought to be debarred must have been also actually heard or by any fiction of law be deemed to be heard. Nothing of the sort happened in the present case. We are also not in agreement with the submission of the counsel for the other side that the nature of the proceedings in the present case was quasi in rem. It was a litigation between the two parties and the decision given thereon would be binding only on them. It did not involve any adjudication on the status of any particular subject matter. It was essentially a dispute between the parties claiming the right in controversy and does not directly or indirectly affect the status of the subject matter."

This view has been reiterated in paragraph 5 of another judgment of a learned Single Judge in the case of Brij Lal and others Vs. Deputy Director of Consolidation, Lucknow camp at Lakhimpur Kheri and others 1982 AWC Pg 862 Paragraph 5. The position of law came to be further explained in the decision reported in Nathai Vs Joint Director of Consolidation, Allahabad & Others 1984 ALJ Pg 324 Paragraph 7 in Civil Misc. Writ Petition No. 14683 of 1983 decided on 24.10.1983 which is extracted hereinunder:-

".........he further contended that since it was not established that the petitioner was sufficiently served in the second appeal, as such in the absence of that evidence, the ex parte order could not operate as res-judicata between the parties and in support of his contention he placed reliance on a decision of this Court reported in 1982 All WC 862 (Brij Lal Vs. Deputy Director of Consolidation, Lucknow Camp at Lucknow), wherein it was held that for an ex parte decree to operate as res-judicata between the parties it must be established that in the suit the defendants were served with the notice and in spite of service they did not appear to contest the case. He also referred to a Division Bench decision reported in 1982 All WC 638 : (AIR 1983 All 45) (Smt. Kanti Khare V. Kali Prasad Asthana) wherein it was held that where a party, who had no opportunity of litigating an issue, the judgment given in the proceedings cannot operate as res-judicata against him. There is no dispute to the proposition of law laid down in the aforesaid directions........."

...............It is well settled that for an ex parte decree to operate as res-judicata between the parties it is to be established that the defendants in the suit were served, which was decided against them. The doctrine of res-judicata will then apply. Ex parte decree will operate as res-judicata if a party, in spite of service of notice on him did not put in his appearance to contest the suit or appeal, as the case may be........."

It is thus clear from the law enunciated above that the decision in an appeal where the party against whom judgment is to be given has not been put to notice, the same will not operate as res-judicata as a decision can be rendered operative as res-judicata only if the decision has been taken after service of notice.

It will also be apt to discuss the issue of merger, keeping in view the nature of the judgment dated 2nd July, 2012. The judgment of the learned Single Judge dated 01.08.2002 was subjected to an appeal that came to be decided on 02.07.2012 in the absence of the counsel. If the judgment dated 2nd July, 2012 is treated to be a judgment by default then there is no adjudication or affirmance of a judgment on contest as it was rendered without notice to the appellant as indicated hereinabove. But if the said judgment of the learned Single Judge is treated to be intact, and has been tested in appeal, then the question is whether the doctrine of merger would be attracted. To understand this, the doctrine of merger as explained in the judgment of the Apex Court in the case of Kunhayammed & Others Vs. State of Kerela & Another 2000 (6) SCC Pg 359 deserves reference. While discussing the parameters of merger the Apex Court in paragraph 10 referred to two other decisions of the Apex Court and observed in paragraph 10 of the said judgment as under:-

"10. In Gojer Brothers Pvt. Ltd. v. Ratan lal Singh this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal of modification or an order of confirmation passed by the appellate authority. In all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision - whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this Court in U.J.S. Chopra v. State of Bombay wherein it was held:-

A judgment pronounced by a High Court in the exercise of its appellate or

revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties... would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the courts below."

The said observations of the Apex Court, clearly indicates that the principle of merger would apply if the High Court in the exercise of its appellate or revisional jurisdiction has pronounced a judgment after issue of a notice and a full hearing in the presence of both the parties. It is then only that the appellate judgment can replace the judgment of the court below.

In the instant case, as has been established herein, the judgment of the special appeal dated 02.07.2012 is without notice to the appellant herein and without any full hearing in the presence of both the parties. Thus, if the judgment dated 02.07.2012 by a coordinate Bench is a judgment where the judgment of the learned Single Judge dated 01.08.2002 has merged, then the said Division Bench judgment cannot have any binding effect so as to preclude this Court to proceed to test the validity of the judgment of the learned Single Judge independently. Consequently, in the absence of any such legal bar, we are justified in taking the view as we have done in the present appeal.

In criminal cases, when on the same set of evidence, where against the same judgment of conviction, one special leave petition under Act 136 was dismissed against an accused, the other co-accused can pray for a different order, but before applying such principle it was held by the Apex Court that it has to be recorded that the earlier judgment of dismissal did amount to an affirmance of the findings of the court below and was a judgment. This principle of exception vis-a-vis Act 136 in a criminal case has been explained in para 10 to 16 of Hari Singh Vs State of Haryana 1993(3) SCC Pg 114. Even though the said judgment combines the principles of precedent and merger, yet was in relation to a discretionary jurisdiction of Act 136 of the Constitution and not in exercise of an appellate jurisdiction as ordinarily understood. If the logic of the said judgment can be adopted on the present set of facts in a regular special appeal then such a course can be followed in this case in order to avoid manifest injustice because no litigant should be allowed to suffer on account of any such deliberation as involved in the present case.

The principle of res-judicata cannot be pressed into service also for the reason that the conduct of the respondent no. 1 in reflecting his incorrect date of birth in the service book that was filled up by him, and which is against the statutory record maintained by the Board of High School and Intermediate examination of Uttar Pradesh and preserved under the provisions of the U.P. Intermediate Education Act, 1921 and the regulations framed thereunder, is a deceitful act, the beneficiary whereof is the respondent no. 1. Once these facts were disclosed to the respondent no. 1 and a criminal case was also launched against him, then it was the duty of the respondent no. 1 to have made attempts to contradict the same. The respondent no. 1 relied on the same documents which he had filed in the writ petition without producing anything further. The record of the Board and the record of the scholar register of the Institution from where the respondent no. 1 had appeared and passed in the High School examination remains uncontroverted with any reliable proof to the contrary. The respondent no. 1 could not establish and succeed in dislodging the aforesaid stand taken by the State consistently since the order of the District Inspector of Schools on 2nd September, 1995 and culminating in the order of the Deputy Director Education dated 06.06.2003.

This, therefore was a clear case on facts of deceit that had been uncovered and the conduct of the respondent no. 1 unravelled after the delivery of the judgment, where no response had been filed. These facts were however, pre-existing facts. It is not the case of the respondent no. 1 that the records of the Board or the scholar register of the Institution are forged or fabricated. To the contrary as observed above the said evidence remains uncontradicted. The only conclusion that can be drawn is that the records reflect the correct date of birth of the respondent no. 1 as 01.10.1929 that was wrongly recorded as 01.10.1934 against the true records. These facts were never placed either before the learned Single Judge or in Special Appeal Defective No. 239 of 2003.

Applying the principles of Section 44 of the Indian Evidence Act, it is evident that the judgment dated 01.08.2002 of the learned Single Judge appears to have been rendered without noticing the aforesaid deceitful circumstances of the case, and therefore, the judgment dated 01.08.2002 would not operate as res-judicata. Section 44 is an inbuilt safeguard to salvage orders obtained by deceit or collusion. We may reiterate that the judgments in the case of Ram Chandra Singh (supra), Ram Preeti Yadav (supra) and A.V. Papkayya Sastry (supra) support our conclusions.

In law or in fact there cannot be two dates of birth of one person. This is neither physically possible nor legally permissible and therefore, this is a legal question that has to be answered in law on the strength of the uncontroverted facts. In our opinion, the principle of res-judicata cannot be taken aid of so as to perpetuate any miscarriage of justice, more so when deceit and misrepresentation are clearly reflected from the conduct of the respondent no.1. The interpolation and alteration has resulted in a benefit that is attributable to the respondent no. 1. The presumption, therefore, is that the respondent no. 1 had been responsible for this situation.

The judgment dated 02.07.2012 therefore, for the purpose of present appeal would not bind us to take the same view inasmuch as, the interim order passed in this appeal on 10th October, 2011 and all the other above noted events were neither brought to the notice of the Bench nor it has been noticed or considered and decided. The consequence of the passing of the judgment dated 2nd July, 2012 therefore, is an exercise in futility, may be on account of the default of the learned counsel, but the same cannot be treated to be binding on us as or on the appellant as in our opinion any deliberate avoidance touching deceit of bringing the correct facts to notice of this Court, in the exercise of jurisdiction of Article 226 of the Constitution of India is sufficient to avoid the said judgment even in an appeal hearing a matter arising out of the same judgment by a coordinate Bench in view of what has been observed above.

Learned counsel for the respondent no. 1 has been unable to satisfy us that the judgment of the Division Bench dated 2nd July, 2012 was rendered on the merits of the case after noticing the facts as indicated hereinabove. There is a counter affidavit filed in this appeal by the respondent no. 1 which does not bring any new facts or material in support of his claim except for bald denials and averments.

Apart from this, what we find is that respondent no. 1 was fully aware of the order dated 6th June, 2003 passed against him by the Deputy Director Education. This was part of the record of the contempt application and also the part of the record of the present appeal when it came to be admitted and an interim order was passed on 10th October, 2011. Learned counsel for the respondent no. 1 has been unable to give any explanation as to why the respondent no. 1 did not choose to challenge the said order dated 06.06.2003 which had been passed under the directions of the learned Single Judge in the contempt jurisdiction on 20th May, 2003. The findings recorded in the order dated 6th June, 2003 therefore, had become final in so far as the respondent no. 1 was concerned. The said order was not treated to be an order contrary to law, rather it had been rendered pursuant to the direction of this Court and after getting the facts verified with regards to the date of birth of the respondent no. 1. The said order categorically records that the date of birth which had been manipulated in the original service record was verified from the U.P. Board High School & Intermediate examination and in response thereto the Board had categorically informed the Deputy Director Education that the records maintained in the Board clearly establishes that the date of birth of the respondent no. 1 is 01.10.1929 and not 01.10.1934.

It is also evident from the order passed by the learned Contempt Judge in the order dated 21st July, 2004 that the conduct of the respondent no. 1 was also noticed by the Deputy Director Education where he failed to produce the original certificates and lead any evidence in support of his claim. The then the Principal of the Institution had been summoned alongwith the attested copies of the records and it was established before the Deputy Director Education that the date of birth of the respondent no. 1 as recorded therein had been scrapped and had been substituted by interpolation. These facts, therefore, had to be challenged by the respondent no. 1 once it had been recorded by the authority who had been directed by this Court to inquire into the matter and recorded his findings. The respondent no. 1 having not challenged the same, he cannot, on account of his conduct, take a different stand and even before us, Sri Gupta has been unable to satisfy us that the said order in any way suffers from any infirmity. It appears that because of all the aforesaid facts and reasons that the respondent no. 1, applicant in the contempt matter, neither appeared before the contempt court on 21.07.2004 nor his counsel turned up to assist the Court on that date nor did they question the said order.

Even otherwise a mention of the documents by the Division Bench in the judgment dated 02.07.2012 are of photostat copies filed by the respondent no.1-petitioner that are inadmissible unless proved by the production of their originals. As noted above, the appeal was dismissed without any assistance on the above facts and the respondent no. 1 never produced the original certificate or marksheet of High School before the Deputy Director of Education.

The order of the Deputy Director Education dated 06.06.2003 was an outcome of the direction of the learned Single Judge dated 20.05.2003. The said order was never recalled nor was it challenged by the respondent no. 1. This enquiry which was a post decisional enquiry after the judgment dated 01.08.2002 was not objected to by the respondent no. 1. He did not file any appeal challenging the said order of the learned Single Judge directing an enquiry nor is there any indication to that effect in his pleadings. The respondent no. 1 has however, described the order of the Deputy Director Education dated 06.06.2003 as an over reach as against the judicial judgment dated 01.08.2002. This is unacceptable for two reasons, firstly, the respondent no. 1 as noted above did not question the authorization to the Deputy Director of Education for passing of an order by the learned Single Judge vide order dated 20.05.2003. If the respondent no. 1 was aggrieved by any such action being taken, he could have assailed the order dated 20.05.2003. To the contrary, he acquiesced to the same and appeared before the Deputy Director Education on 27.05.2003 where he failed to produce the original documents or any valid document to controvert the recording of his date of birth as 01.10.1929 in the records of the Board and the scholar register maintained in the school. The order passed as a consequence of this enquiry on 06.06.2003 therefore attained finality.

The said order does not amount to sitting in appeal over the judgment of the High Court where the circumstances are such that the same learned Single Judge who had delivered the judgment on 01.08.2002 allowed this enquiry to be conducted and an order to be passed. This aspect has totally gone unnoticed by the Division Bench while dismissing the appeal on 02.07.2012. The doctrine of finality, therefore, on the facts of the present case has not been able to make a dent and to the contrary has allowed the order dated 06.06.2003 to become final after the judgment dated 01.08.2002. This is supplemented by the conduct of the respondent no. 1 who acquiesced to the said order and did not challenge the same. The order dated 06.06.2003 is based on facts that were in existence since inception and were neither noticed by the learned Single Judge in the judgment dated 01.08.2002 or by the Division Bench in the order dated 2nd July, 2012.

Consequently, what is final is the order dated 06.06.2003 which was allowed to intervene inspite of the judgment dated 01.08.2002. It is the Court itself which had permitted this to happen and, therefore, the order dated 20.05.2003 by the learned Judge clearly amounted to an exception being carved out in the present case where fraud and deception was the outcome of enquiry and was ultimately found to be true. There is no finality in the judgment dated 01.08.2002 upon the dismissal of the appeal on 02.07.2012 as facts that were not before the Court on account of a strategical deceit, were neither adjudicated nor law was allowed to take it's due course. This was coupled with a mistake of the appeal not being connected and heard with this appeal. Such deceit, or mistake of the Court or party, should not be allowed to be perpetuated and should be corrected once full facts are brought to the fore. The deceit or mistake cannot be of any advantage to the respondent no. 1 as it vitiates the solemn proceedings of the Court. Our view finds support from the judgment in the case of A.V. Papayya Sastry (supra) where observations of the Apex Court in Paragraph Nos. 21 to 33 indicate that if the judgment is an outcome of a conduct where the Court was not mistaken but misled by trickery to deliver the judgment on account of deliberate deception to designedly secure some advantage, the same vitiates the proceedings. The Court has also discussed the conduct of a litigant indicating that a litigant is bound to produce all documents and any withholding of vital information vitiates the decision making process. In these circumstances a party affected by such deceitful act cannot be precluded from raising the issue as such rights cannot be foreclosed so as to result in subversion of the judicial process.

There is one more aspect which we may put on record and which has resulted almost in a uphill and a herculean task for us to avoid the judgment dated 01.08.2002 of the learned Single Judge and that of the Division Bench dated 02.07.2012. This situation arose because if the present appeal had been connected with Special Appeal Defective No. 239(D) of 2003 and heard together, the situation would have been different. In that case the interim order passed in the present appeal on 10.10.2011 and all the entire facts that have been placed before us in this appeal would have been possibly before the Division Bench that dismissed the Defective Appeal on 02.07.2012. In the absence of any order connecting the appeal and in the absence of any service on the District Inspector of Schools in the said appeal, the present situation has arisen.

In both these appeals the State is a party, the appellant in the present appeal and the respondent in the previous appeal. The State had to be heard as payments to the respondent no. 1 are a burden on the appellant. The office while listing such cases should take care to connect such matters, inasmuch as, had this step been taken in the year 2012, this anomalous situation would not have arisen. We expect that the learned counsel and the office shall take such care in future.

Consequently, we are of the opinion that the learned Single Judge committed a manifest error in proceeding to extend the said benefits to the respondent no. 1 under the impugned judgment and cannot be confirmed by us inspite of Special Defective No. 239 of 2003 against the same judgment having been dismissed for all the reasons given hereinbefore. We also therefore do not concur with the judgment dated 02.07.2012.

The next hurdle before us is that in the absence of an interim order in both the appeals, the contempt court proceeded with the matter and the authorities proceeded to comply with the judgment of the learned Single Judge and they have made payments except some of the interest as indicated therein.

In such circumstances, what we find is that the interim order dated 10th October, 2011, whereby recovery of any amount from the respondent no. 1 was not permitted, deserves to be affirmed.

We, therefore, do not uphold the reasonings given by the learned Single Judge in the judgment impugned dated 01.08.2002 so as to acknowledge any right of the respondent no. 1 to treat his date of birth to be 01.10.1934 nor are we bound by the judgment dated 02.07.2012 of the Division Bench with which we do not concur, yet in the peculiar facts of this case, we dispose of this appeal with a direction that any amount that has already been paid to the respondent no. 1 shall not be recovered from him but henceforth any further payment to the respondent no. 1 shall be made treating his date of birth to be 1st October, 1929 and not 1st October, 1934. No further amount of interest shall be payable then what has already been paid up till now. We are passing this order on equitable considerations keeping in view that the respondent no. 1 by now must have attained the age of 83 years as according to the counter affidavit filed by the respondent no. 1 in 2004, his age at that time was about 70 years. The impugned judgment of the learned Single Judge dated 01.08.2002 would stand modified accordingly.

Disposed of with the said directions. No orders as to costs.

Order Date :- 25.10.2017/S.Chaurasia