Malti Devi vs State Of U.P. And 2 Others
2021 Latest Caselaw 11027 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 24.03.2021
 
Judgment delivered on  31.08.2021
 

 
Court No. - 46
 

 
Case :- WRIT - C No. - 4812 of 2021
 

 
Petitioner :- Malti Devi
 
Respondent :- State Of U.P. and 2 Others
 
Counsel for Petitioner :- Babloo Pant
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Ravi Nath Tilhari,J.

(Per Surya Prakash Kesarwani,J.)

1. Heard Sri Babloo Pant, learned counsel for the petitioner and Sri Alok Singh, learned Standing Counsel for the State-Respondents.

2. This writ petition has been filed praying for the following reliefs :-

"i) issue a writ, order or direction in the nature of certiorari quashing the impugned order titled as "Recovery Notice" dated 10.07.20020 issued by the District Basic Education Officer, Kaushambi (i.e. Respondent No.3) to the writ petition.

ii) issue a writ, order or direction in the nature of mandamus directing the District Basic Education Officer, Kaushambi (i.e. respondent No.3) to forthwith, release the salary of the petitioner with effect from April, 2017 till today as and when it falls due and not to cause any interference in the working of the petitioner on the post of Assistant Teacher in Mehewaghat Sarsawan Primary School, Kaushambi."

Facts

3. Briefly stated facts of the present case are that the petitioner obtained appointment as Assistant Teacher in an institution run by U.P. Basic Education Board, vide order of appointment issued by the District Basic Education Officer, Kaushambi. By order dated 14.08.2018, the appointment of the petitioner was cancelled on the ground that the petitioner had obtained public employment on the post of Assistant Teacher on the basis of forged T.E.T. Certificate/marksheet 2011. It appears that against the aforesaid order of cancellation of appointment dated 14.08.2018, the petitioner filed Writ A No. 5185 of 2019 (Malti Devi and another Vs. State of U.P. and others) in which an interim order dated 08.07.2019 was passed staying the effect and operation of the order dated 14.08.2018.

4. It appears that the petitioner has obtained salary from the State-exchequer. Consequently, the impugned recovery notice dated 10.07.2020 was issued by the respondent no.3 to the petitioner, which is reproduced below :-

"कार्यालय जिला बेसिक शिक्षा अधिकारी- कौशाम्बी

पत्रांक : अनु0-01/1717-22 /2020-21 दिनांक- 10.07.2020

रिकवरी नोटिस

श्रीमती मालती देवी पुत्री श्री हरि शंकर वर्मा

(सेवा से निष्कासित) सहायक अध्यापक,

प्राथमिक विद्यालय- बहादुरपुर, मंझनपुर

निवासी-ग्राम पुरखीपुर पोस्ट-खरगापुर

थाना-सोरांव जनपद-प्रयागराज।

कार्यालय आदेश संख्या-519/2018-19 दिनांक- 14.08.2018 के द्वारा आपको शिक्षक पात्रता परीक्षा 2011 का फर्जी प्रमाण पत्र प्रस्तुत किये जाने के कारण सेवा से पृथक करते हुए आपके विरुद्ध स्थानीय थाना में प्रथम सूचना रिपोर्ट दर्ज करा दी गयी है। वित्त एवं लेखाधिकारी बेसिक शिक्षा कौशाम्बी के पत्र संख्या-ले0सं0/348-53/2020-21 दिनांक-07.07.2020 के अनुसार विभाग में की गयी सेवा के सापेक्ष आप द्वारा वेतनादि मद में प्राप्त किये गये वेतन की रिकवरी का आगणन तैयार कर अधोहस्ताक्षरी कार्यालय को प्रेषित किया गया है।

उक्तानुसार प्राप्त आगणन के अनुसार सम्पूर्ण सेवा अवधि में आपने सभी परिलब्धियों के सापेक्ष रु0, 2185920.00 (रुपया इक्कीस लाख पचासी हजार नौ सौ बीस मात्र) का भुगतान वेतन के रुप में प्राप्त किया गया है, चुंकि आपके द्वारा कूटरचित/फर्जी अभिलेख के आधार पर नियुक्ति प्राप्त कर वेतन स्वरुप रु0, 2185920.00 (रुपया इक्कीस लाख पचासी हजार नौ सौ बीस मात्र) का भुगतान प्राप्त किया गया है। अस्तु आपको निर्देशित किया जाता है कि आप द्वारा प्राप्त किये गये वेतन को नियमानुसार राजकोष में 07 दिवसों के अन्दर जमा किये गये धन से सम्बंधित अभिलेख अधोहस्ताक्षरी कार्यालय में उपबल्ध कराना सुनिश्चित करें। अन्यथा की स्थित में आप द्वारा वेतन एवं अन्य भत्तों के साथ में की गयी कुल धनराशि रु0, 2185920.00 (इक्कीस लाख पचासी हजार नौ सौ बीस मात्र) की वसूली भू-राजस्व की भांति की जायेगी, जिसका सम्पूर्ण दायित्व आपका होगा।

ह0 अपठनीय

(राजकुमार पंडित)

जिला बेसिक शिक्षा अधिकारी

कौशाम्बी

पृ0सं0 : अनु0-01/ /2020-21 तद्दिनांक

प्रतिलिपि-निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषित-

1- जिलाधिकारी महोदय, कौशाम्बी।

2- शिक्षा निदेशक (बेसिक) उ0प्र0 लखनऊ।

3- सचिव, उ0प्र0 बेसिक शिक्षा परिषद् प्रयागराज।

4- वित्त एवं लेखाधिकारी (बेसिक शिक्षा) कौशाम्बी।

5- सम्बंधित खण्ड शिक्षा अधिकारी जनपद-कौशाम्बी को इस निर्देश के साथ के उक्त अध्यापक के पते का मिलान सेवा पंजिका से करते हुए सही पते पर पत्र की प्रति रजिस्टर्ड डाक से प्रेषित करते हुए रजिस्ट्री की छाया प्रति आधोहस्ताक्षरी को उपलब्ध कराना सुनिश्चित करें।

ह0 अपठनीय

जिला बेसिक शिक्षा अधिकारी

कौशाम्बी "

5. Aggrieved with the aforequoted recovery notice, the petitioner has filed the present writ petition.

Submissions of the Petitioner

6. Learned counsel for the petitioner submits as under :-

i) Against the order of cancellation of her appointment as Assistant Teacher, the petitioner has filed Writ A No. 5185 of 2019 (Malti Devi and another Vs. State of U.P. and others) in which an interim order dated 08.07.2019, staying the effect and operation of the order dated 14.08.2018, was passed. Therefore, no salary can be recovered from the petitioner.

ii) Similar writ petitions were decided by the Hon'ble Single Judge against which a Special Appeal Defective 240 of 2020 (Kiran Lata Singh Vs. State Of U.P. Through Secretary, Department of Basic Education And 5 others) was filed in which an interim order dated 31.07.2020 has been passed, therefore, salary cannot be recovered from the petitioner.

Submissions on behalf of the State

7. Learned standing counsel submits as under:-

i) The Special Appeal Defective No.240 of 2020 has been finally decided by the Division Bench and the said Special Appeal alongwith all connected Special Appeals have been dismissed. Therefore, the submission of the petitioner on the basis of interim order in Special Appeal Defective 240 of 2020 is wholly misconceived.

ii) The dispute involved in Special Appeal Defective No. 240 of 2020 was with regard to forged B.Ed. Degree and not the forged T.E.T. Certificate. Therefore, in any circumstances, the case of the petitioner being different on the facts, the petitioner is not entitled for any relief.

iii) When salary to the petitioner was not paid after cancellation of appointment, the petitioner filed Writ A No.1148 of 2020 (Malti Devi and another Vs. State of U.P. And 2 others) which was disposed of by order dated 23.01.2020, directing authority concerned to decide claim of the petitioner in regard to payment of salary and the representation was disposed of by order dated 24.04.2020.

iv) The petitioner is not entitled to any relief inasmuch as a direction issued by this Court by order dated 18.03.2021 to obtain verification report of T.E.T. Certificate of the petitioner, the same was verified and it was found that alleged T.E.T. Certificate year 2011 in favour of the petitioner bearing Roll No.15054567 was never issued by the office of the Board of High School and Intermediate Education, Uttar Pradesh, Prayagraj.

v) Referring to paragraphs 3 & 4 of the short counter affidavit dated 24.03.2021, it is submitted that the alleged T.E.T. Certificate is forged and manufactured and it has not been issued by the Board of High School and Intermediate Education and in support, a copy of verification report has been filed as an Annexure S.C.A.-1. The verification report filed alongwith the short counter affidavit has not been disputed by the petitioner. Therefore, the petitioner is not entitled for any relief inasmuch as, after undisputed facts have been brought on record by means of the verification report of the Secretary, Board of High School and Intermediate Education, Uttar Pradesh, Prayagraj, dated 23.03.2021, the fact of obtaining public employment by the petitioner on the basis of forged T.E.T. Certificate 2011, is undisputed and, therefore, the petitioner cannot take advantage of her own fraud.

Questions

8. With the consent of learned counsel for the parties following questions were framed for determination in this writ petition by order dated 24.03.2021 :-

(i) Whether under the facts and circumstances of the case the impugned recovery notice dated 10.7.2020 is valid?

(ii) Whether recovery of salary can be made where the order of appointment is cancelled on the ground that the appointment itself was obtained by forged eligibility educational certificate?

Discussion and Findings

9. Since both the questions are interlinked and, therefore, both the aforementioned questions are taken up together for decision.

Whether TET Certificate Filed by the Petitioner is Forged

10. The sole point of dispute between the parties is as to whether the T.E.T. Certificate 2011 bearing Roll No.15054567, is forged or genuine. Therefore, by order dated 18.03.2021, this Court directed the learned standing counsel to obtain instructions and verification report of the alleged T.E.T. Certificate from the respondent no.2 i.e. the Board of High School and Intermediate Education Uttar Pradesh, Prayagraj, which allegedly issued the aforesaid T.E.T. Certificate. Pursuant to the aforesaid direction, Sri Divyakant Shukla, Secretary, Board of High School and Intermediate Education, Uttar Pradesh, Prayagraj, has filed a short counter affidavit dated 24.03.2021. In paragraphs 3, 4 & 5 of his short counter affidavit he (respondent no.2) stated as under :-

"3. That it is submitted before this Hon'ble Court that TET Certificate-year 2011 in favour of the petitioner namely Malti Devi Roll No.15054567 never issued by the office of the answering respondent.

4. That it appears the aforesaid TET Certificate is forged and manufactured because of it has not been issued by the office of the answering respondent.

5. That in this regard the enquiry has been conducted and record has been verified to assist this Hon'ble Court. For the kind perusal of this Hon'ble Court copy of the verification report is being filed herewith and marked as Annexure No.S.C.A.1 to this affidavit."

11. The verification report dated 23.03.2021, filed alongwith the aforesaid short counter affidavit is reproduced below:

"परिषदीय अभिलेखानुसार शिक्षक पात्रता परीक्षा वर्ष-2011 अनुक्रमांक-15054567

की सत्यापन आख्या

TET /EXAM-2011 (प्राथमिक स्तर)

ROLL NUMBER- 15054567

NAME- MALTI DEVI

FATHER'S NAME-HARI SHANKAR PATEL

CATEGORY-OBC

RESULTS-024/150 FAIL

अनुत्तीर्ण परीक्षार्थियों के प्रमाण पत्र निर्गत नहीं किया जाता है। याचिका के साथ संलग्नक 1 ए (पृष्ठ-28 पर) के रुप में संलग्न प्रमाण पत्र सह अंकपत्र परिषद कार्यालय द्वारा जारी नहीं किया गया है।

ह0 अपठनीय

23.03.2021

उप सचिव अभिलेख

माध्यमिक शिक्षा परिषद

उ0प्र0, प्रयागराज

ह0अपठनीय"

12. Thus, it is proved on record that the alleged T.E.T. Certificate 2011 bearing Roll No.15054567 in the name of the petitioner and allegedly issued by the Board of High School and Intermediate Education, Uttar Pradesh, Prayagraj, is forged and manufactured. The Board of High School and Intermediate Education has, after due inquiry and verification stated in the short counter affidavit that the aforesaid alleged T.E.T. Certificate is forged and manufactured and it was not issued by the office of the Board. The verification report and relevant paragraphs of the short counter affidavit have been quoted above. Thus, the facts as aforenoted, leave no manner of doubt that the aforesaid alleged T.E.T. Certificate 2011 on the basis of which the petitioner obtained public employment on the post of Assistant Teacher, is forged and manufactured.

Fraud and its consequences

13. Since the public employment was obtained by the petitioner on the basis of forged and manufactured T.E.T. Certificate, therefore, the appointment so obtained was void ab initio. Faced with this situation, this Court cannot consciously follow a wrong path by interfering with the impugned recovery notice and protect the petitioner from the consequences of fraud committed by her or to enable her to take advantage of her own fraud. It is well settled that fraud and justice never dwell together and no one can take advantage of his/her own fraud.

14. In the case of United India Insurance Company Ltd. Vs. B. Rajendra Singh and others, JT 2000 (3) SC 151, considering the fact of fraud, Hon'ble Supreme Court held in paragraph 3 as under:

"Fraud and justice never dwell together." (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that" no judgement of a Court, no order of a Minister can be allowed to stand if it has been obrtained by fraud, for fraud unravels everythin " (Lazarus Estate Ltd. V. Beasley 1956 (1) QB 702).

15. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, 2004 (6) SCC 325, Hon'ble Supreme Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraph 12 as under :

"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed :

"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.

16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.

It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."

19. In Derry V. Peek (1889) 14 AC 337 it was held: "In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.

A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit."

16. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :

"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.

16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.

17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.

25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.

37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."

17. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :

"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."

18. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10 as under :

"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.

29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.

29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.

29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.

29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.

29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.

29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.

29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.

29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.

29.10 The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."

(Emphasis supplied by us)

Equitable Jurisdiction

19. Public employment has been procured by the petitioner on the basis of a forged TET Certificate. This amounts to misrepresentation and fraud on the employer. Fraud vitiates every solemn act. Therefore, it would not create equity in favour of the petitioner so as to get protection from recovery of the amount under the impugned recovery certificate.

20. The writ jurisdiction under Article 226 of the Constitution of India is an equitable jurisdiction. Facts of the present case reveal that petitioner has no equity in his favour. Therefore, the equitable and discretionary jurisdiction under Article 226 of the Constitution of India can not be exercised in favour of the petitioner on the facts of the present case

Recovery

21. Since public employment on the post of Assistant Teacher was obtained by the petitioner on the basis of a forged and manufactured T.E.T. marksheet 2011 which resulted in cancellation of her appointment, therefore, the amount received by the petitioner as salary and other benefits relating to her employment is a fraudulently received amount from the State-exchequer. Therefore, the salary so drawn by the petitioner is liable to be recovered from her. Recovery of excess payment from an employee is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance or on a particular interpretation of the applicable rules, which is subsequently found to be erroneous. But where the payment from State-exchequer is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment. The view being taken by us is fortified by the law laid down by Hon'ble Supreme Court in Registrar, Cooperative Societies, Haryana and others Vs. Israil Khan and others (2010) 1 SCC 440 (para 9). In Chandi Prasad Uniyal Vs. State of Uttarkhand and Ors (2012) 8 SCC 417 (paras 13 & 14) Hon'ble Supreme Court held that any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

22. In the case of State of Punjab and others Vs. Rafiq Masih (White washer) 2015 4 SCC 334 (para 15) Hon'ble Supreme Court held as under :

"................the right to recover would be sustainable so long as the same was not iniquitous or arbitrary."

23. It is settled principle of law that no one can take advantage of his own wrong or fraud. The amount fraudulently obtained by a person, if allowed to be retained, shall result in unjust enrichment. In the case of Indian Council for Enviro-legal Action Vs. Union of India 2011 8 SCC 161 (para 151, 152, 153, 154, 159, 160, 161 and 197), Hon'ble Supreme Court explained meaning of the word "unjust enrichment" as under :-

"151. Unjust enrichment has been defined as:

"A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense."

See Black's Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573. A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience."

152. ''Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware.1999). USA)

154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus :

"....(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution."

159. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

160. While the term ''restitution' was considered by the Supreme Court in South-Eastern Coalfields 2003 (8) SCC 648 and other cases excerpted later, the term ''unjust

enrichment' came to be considered in Sahakari Khand Udyog Mandal Ltd vs Commissioner of Central Excise & Customs ((2005) 3 SCC 738). This Court said: (Sahakari Khand case SCC p.748, para 31)

"31.....'Unjust enrichment' means retention of a benefit by a person that is unjust or inequitable. ''Unjust enrichment' occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else."

161. The terms ''unjust enrichment' and ''restitution' are like the two shades of green - one leaning towards yellow and the other towards blue. With restitution, so long as the

deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders.

197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.

3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.

4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

5. No litigant can derive benefit from the mere pendency of a case in a court of law.

6. A party cannot be allowed to take any benefit of his own wrongs.

7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."

24. The petitioner has obtained employment by misrepresentation and fraud and thus unauthorisedly and fraudulently received payment of public money. Neither extreme hardship in recovery has been argued before us nor any material has been placed to indicate extreme hardship on recovery of the amount. That apart, the equitable and discretionary jurisdiction under Article 226 of the Constitution of India can not be invoked by the petitioner under the facts and circumstances of the present case. The principle laid down in the case of Chandi Prasad Uniyal (supra) have been reiterated by Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White washer) (2014) 8 SCC 883. In the case of Chandi Prasad Uniyal (supra) vide para 16, Hon'ble Supreme Court held that "in such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant's salary in twelve equal monthly installments."

25. Under the facts and circumstances of the present case, the recovery under the impugned order/Recovery Notice is neither iniquitous nor arbitrary. The petitioner has received public money by obtaining appointment on the basis of a forged TET marksheet. Therefore, retention of the public money received by the petitioner as salary is against the fundamental principles of justice, equity and good conscience. It is an unjust retention of public money by the petitioner which amounts to unjust enrichment. Therefore, the impugned recovery notice can not be interfered under Article 226 of the Constitution of India.

26. Thus, for all the reasons aforestated, we do not find any good reason to invoke on the facts of the present case, the extraordinary, discretionary and equitable jurisdiction under Article 226 of the Constitution of India.

27. For all the reasons aforestated, the writ petition is dismissed. However, there shall be no order as to costs.

Order Date :- 31.08.2021/vkg

Judgment delivered by me under Chapter VII Rule 1(2) of the Allahabad High Court Rules 1952.

				(Surya Prakash Kesarwani,J.)	 					31.08.2021