State Of U P And 3 Others vs Dara Singh Chauhan
2023 Latest Caselaw 25287 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:180609-DB
 
Court No. - 21
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 370 of 2023
 
Appellant :- State Of U P And 3 Others
 
Respondent :- Dara Singh Chauhan
 
Counsel for Appellant :- Chandan Kumar
 
Counsel for Respondent :- Awadhesh Kumar Malviya
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Donadi Ramesh,J.

Order on the Delay Condonation Application

1. Heard counsel for the parties.

2. The appeal is reported to be beyond time by fifty days. The explanation given in the affidavit filed in support of the delay condonation application is found to be satisfactory.

3. Accordingly, the delay is condoned.

4. Office is directed to allot a regular number to the instant appeal. Order on the Memo of Appeal

1. The instant intra-court appeal is directed against the order of learned Single Judge dated 18.10.2022, passed in Writ Petition No. 59038 of 2011, filed by non-appellant Dara Singh Chauhan (the respondent herein).

2. In the writ petition, the respondent had challenged an order passed on 21.5.2011 by SDM, Madhiyanhu, District Jaunpur, terminating him from service on the post of Lekhpal. The reason for termination was that the work experience claimed by the respondent for the period 17.12.1981 to 8.8.1982 was disbelieved. This itself was based on an enquiry got done by Commissioner, Board of Revenue and the District Magistrate, wherein it transpired that there was no record available to show that the respondent had worked during this period and therefore his claim was found to be fake and fraudulent. The learned Single Judge has examined the orders passed in previous rounds of litigation between the parties and has arrived at a conclusion that the claim of the appellants that the respondent had produced fake documents relating to his experience, was no more open for consideration and barred by principles of res judicata. The learned Single Judge has also found that 148 other similarly situated persons are continuing in service.

3. Sri Chandan Kumar, learned counsel appearing on behalf of the appellant vehemently submitted that the respondent had failed to prove his work experience for the period 17.12.1981 to 8.8.1982 and therefore, he was rightly terminated from service.

4. On the other hand, learned counsel for the respondent submitted that the learned Single Judge has rightly held that the said plea is no more open to the appellants as it was repelled in the previous rounds of litigation.

5. In order to appreciate the argument of learned counsel for the appellants, it is essential to take note of the facts relating to the previous rounds of litigation between the parties. These are as follows: -

(a) The respondent and number of other persons were initially engaged as untrained Lekhpal by SDM, Madhiyanhu, District Jaunpur. After they had worked for certain period, the Board of Revenue introduced a Scheme on 15.1.1986 for imparting training to untrained Lakhpals, such as the respondent. The Scheme stipulated that after successful completion of training, the person would earn eligibility for regular appointment on the post of Lekhpal. The petitioner along with other persons (152 in number), applied for training under the said Scheme. They were permitted to undergo the training and they also qualified the examination. However, their result was cancelled. On 5.6.2000, the Commissioner and Secretary, Board of Revenue passed an order observing that upon scrutiny of documents, it transpired that in the bill book, there was no entry of payment of any salary to the respondent and other similarly situated candidates. Therefore, the work experience claimed for the said period was fake and fictitious.

(b) The petitioner and other similarly situated persons challenged the aforesaid orders cancelling the examination result of the training course by filing different writ petitions. One of the writ petition bearing number 34525 of 2001 was filed by Ram Prasad Singh and others, challenging the order dated 5.6.2000 passed by Board of Revenue and the order dated 16.9.2000 passed by Collector, Varanasi cancelling the result. It was allowed by order dated 25.3.2004, holding as follows: -

"In view of the aforesaid, the respondents are directed to grant marks to the petitioners as provided in sub clause 5 of the Rule 223 of the land Record Manual and in case their total marks go beyond the last person who was selected for grant of trained scale, the petitioners shall also be granted trained scale from the date any person junior to him was granted.

With the aforesaid directions hereinabove this petition succeeds and is allowed. The impugned orders dated 05.06.2000 and 16.09.2000 is hereby quashed but no order as to costs."

(c) Thereafter, a recall application was filed, but which was rejected by order dated 5.10.2007. The State challenged the order of learned Single Judge by filing intra-court appeal being Special Appeal Defective No. 427 of 2008 (State of U.P. vs. Ram Prasad Singh and Others). The said appeal was dismissed by order dated 7.5.2008. The State challenged the order of Division Bench dated 7.5.2008 dismissing the special appeal before the Supreme Court. It was dismissed by the Supreme Court by order dated 3.8.2009.

(d) Another set of similarly situated persons also approached this Court by filing Writ Petition No. 19555 of 1992 (Hira Singh Yadav vs. State of U.P.) for a direction to declare their result. That writ petition was in fact filed at an earlier point of time. It was disposed of by order dated 22.3.2005. The operative part of the said order is as follows: -

"Having heard the learned counsel for the parties and taking into consideration the facts and circumstances of the present case it would be appropriate that a direction to this effect be issued to the respondents to declare result of the examination of 1989 regarding the Lekhpaals in which the petitioners had appeared. It is also made clear that if the petitioners are declared successful in the Lekhpal Examinationof 1989 then appropriate orders regarding their posting be also passed complince of this order regarding declaration of the result will be done by the respondents within a period of sic weeks from the date of production of a certified copy of this order before them.

With these observations the writ petition disposed of."

(e) Once again, the State preferred an intra-court appeal being Special Appeal Defective No. 492 of 2005 (State of U.P. vs. Hira Singh Yadav and Others). It was dismissed by order dated 8.12.2005. One of the grounds specifically pressed by the State in special appeal was that the claim of the candidates was based on forged experience certificates. They also sought to place on record some fresh evidence in support of the plea that the experience certificate furnished by the candidates were forged. However, the Division Bench deciding the special appeal declined to accept the prayer of the State to adduce additional evidence and dismissed the appeal, holding as follows: -

"In our opinion, too much time has already been elapsed. The order under Appeal also directs only passing of appropriate orders after declaration of results. Forgery is only urged on the basis that the writ petitioners could not produce materials to show their adhoc rendering or work. It is hard on them to ask for 11 years old papers when they have crossed two stages after that, namely, training and examination.

The appeal court does not interfere with the discretionary exercise by the learned Single Judge unless some/ordinary, principle of law has been applied or for non production of relevant materials.

We find no such infirmities in the judgment and order. The appeal is, therefore, dismissed."

(emphasis supplied)

(f) The State carried the matter in appeal before the Supreme Court in Civil Appeal No. 4623 of 2008 (State of U.P. vs. Heera Singh Yadav). It was dismissed by the Supreme Court by order dated 2.6.2010. The specific contention of the State relating to forgery committed by the candidates in the documents relating to their experience was repelled with the following observations:- 

"Learned counsel appearing for the appellants with great emphasis argued that as per the report of the District Magistrate, the certificates were forged and, therefore, the respondents herein are not entitled to any relief as it would tantamount to giving premium on the forgery of documents. This being the only ground, at the first instance, one gets impressed. However, when examined in its proper perspective, this argument is found to be without any merit and substance."

(Emphasis supplied)

(g) The order of learned Single Judge dated 22.3.2005 in Writ Petition No. 19555 of 1992 and the order dated 25.3.2004 in Writ Petition No. 34525 of 2001 had attained finality.

(h) The State therefore issued appointment letters in favour of the candidates. The one issued in favour of the petitioner is dated 10.12.2010. However, while issuing appointment letter, the State introduced a clause to the following effect: - 

"If the experience claimed by the petitioner is found to be forged, appropriate action shall be taken."

(i) The State thereafter conducted some further enquiry on basis of the aforesaid clause in the appointment letter which was again based on the same material, i.e. bill book and arrived at a conclusion that the respondent had not worked during the period 17.12.1981 to 8.8.1982. Thus, once again, the appellants alleged that the experience certificate was a forged one. It was followed by an order dated 21.5.2011, terminating the respondent from service.

(j) The writ petition filed by the respondent was initially allowed by a learned Single Judge by order dated 12.9.2016 with the following observations: -

"In my view, once the orders dated 5.6.2000 and 16.9.2000 stood quashed upto the stage of the Supreme Court, the petitioner's appointment could not have been cancelled thereafter. The reason for reopening of the enquiry is to said to be pursuant to the various orders passed by this Court but in none of those orders any such direction was given to re-open the question, which has already been settled up to the Supreme Court.

Under the aforesaid facts and circumstances, the impugned order dated 21.5.2011 cannot be sustained and is hereby quashed and the petitioner is entitled to re-instatement with all consequential benefits.

The writ petition accordingly stands allowed."

(k) The order was challenged by the State in Special Appeal No. 70 of 2017 State of U.P. and others Vs. Dara Singh Chauhan. It was allowed and the writ petition was directed to be decided afresh on merits. The two main grounds on which the appeal was allowed were as follows:-

"In our opinion the impugned order is bad on two grounds :--

(a) The earlier writ petition filed by the petitioner being Writ Petition No. 13062 of 2011 which was admittedly pending should have been heard and decided together with the petition giving rise to this appeal. Keeping the earlier writ petition pending and deciding the subsequent writ petition, in our opinion, is not correct.

(b) The judgment referred to by the learned Single Judge relating to the earlier order passed in Writ Petition No. 59038 of 2011 which have been affirmed up to the Hon'ble Supreme Court appears to be misplaced.

We have been taken through the order of the writ Court dated 25.03.2004 which is annexed at page 59 of the paper book. We find that it proceeds only on the ground of violation of principles of natural justice and the other ground mentioned is that the petitioner was failed in only one subject.

We further find that the Special Appeal against the said order was dismissed on the ground of delay and laches. Similarly, the Apex Court had refused to entertain the special leave to appeal on the ground of limitation only. Reference page 66 of the paper book.

Therefore, the order of the learned Single Judge in Writ Petition No. 59038 of 2011 had no application in the facts of present case including its affirmance of the appeal as barred by limitation.

We may also consider the impact of the judgment of the Apex Court in case of State of U.P. vs. Hira Singh being Civil Appeal No. 4623 of 2008 decided on 02.06.2010. It is no doubt true that there are observations with regard to the completion of the training but a direction has been issued for the employment being provided on production of certificates.

Since the documents produced by the petitioner qua his training have been found to be forged after due notice and opportunity to him, we fail to understand as to how such a person can continue in government service. Fraud and justice can never go together. (Ref. United India Insurance Co. Ltd. vs. Rajendra Singh and Others; JT 2000 (3), 151) We find that the learned Single Judge has lost sight of the aforesaid facts.

We may record that in Special Appeal No. 492 of 2005 decided on 08.12.2005 (copy provided by the counsel for the appellant) amongst other it has been recorded that the orders were passed cancelling the examination only on the ground that proper material was not shown in respect of rendering of work. The Court had not given any clean chit to those who had played fraud like the petitioner.

Accordingly, the judgment and order passed by the learned Single Judge is hereby set aside. Writ petition is restored to its original number to be heard and finally decided along with records of Writ Petition No. 59038 of 2011 in the week commencing 20.02.2017.

Special appeal is allowed. "

(l) The respondent challenged the order of the Division Bench before the Supreme Court in SLP Civil Diary No.1947 of 2017 and it was disposed of by order dated 27.11.2017 as follows:-

"Delay condoned.

All that the Division Bench in the impugned judgment has held is that the Writ Petition filed by the petitioners should be heard and disposed of along with Civil Misc. Writ Petition No.59038 of 2011.

We request the High Court to dispose of the writ petitions filed by the petitioners and Civil Misc. Writ Petition No.59038 of 2011 together, as directed by the Division Bench, expeditiously and preferably within two months from the date of production of a copy of this order.

We make it clear that while deciding the cases, as above, the Court shall not be influenced by any of the observations and findings in the impugned judgment in Special Appeal No.70 of 2017 and connected matters.

We further make it clear that we have not expressed any opinion on the merits of the matter.

The special leave petition (s) is/are, accordingly, disposed of.

Pending application (s), if any, shall stand disposed of."

(m) The learned Single Judge after noticing the background facts and the orders passed in previous rounds of litigations between the parties, arrived at the conclusion that the order passed by learned Single Judge dated 25.3.2004 in Writ Petition No. 34525 of 2001, as upheld in Special Appeal (Defective) No. 427 of 2008, has attained finality. It is held that as both the orders impugned dated 5.6.2000 and 16.9.2000 were quashed, without any leave to the State respondents to conduct any further enquiry, it does not lie in the mouth of the State to contend that the orders were quashed only on the ground of breach of principles of natural justice and therefore, they were empowered to enquire into the validity of the experience certificates. In identical circumstances in case of Heera Lal the Division Bench while dismissing the special appeal filed by the State declined to examine the genuineness of the experience certificates on the ground that since thereafter the petitioner had crossed two other stages namely training and the Lekhpal examination. The said view of the Division Bench came to be tested in Civil Appeal No.4623 of 2008 filed by the State before the Supreme Court, but the Supreme Court specifically repelled the plea of the State that the view taken by the Division Bench would amount to giving premium to acts of forgery. Therefore, the appellants were not entitled to incorporate any condition in the appointment letter which may empower them to hold any further enquiry on the selfsame issue, i.e. regarding genuineness of the experience certificate.

(n) The learned Single Judge has also rightly repelled the contention of the State that the Division Bench in Special Appeal No. 70 of 2017 had permitted the State to examine the issue of fraud afresh. It has been noted by learned Single Judge that the order passed by the Division Bench was challenged before the Supreme Court in Special Leave Petition (Civil) Diary No. 1947 of 2017 and the Supreme Court while disposing of the special leave petition clarified that the observations made by the Division Bench would not influence the decision that has to be taken by learned Single Judge in compliance of the remand order. The effect of the aforesaid clarification by the Supreme Court was that learned Single Judge was not bound by the observation made by the Division Bench while remitting the matter.

(o) Learned Single Judge has also rightly observed that the respondents had arrived at the conclusion relating to experience certificate being a forged one merely on basis of the same evidence, i.e. bill book, which in the earlier round of litigation, was also relied upon, but the order passed on basis thereof was set aside and was later upheld upto Supreme Court.

6. It is not disputed before us by learned Standing Counsel that all other 148 persons who are similarly situated and whose services were also terminated on same ground, are still continuing in service. The said factor has rightly weighed with learned Single Judge in holding that it was not open to the State to reopen the issue of forgery in the experience certificate qua the respondent. We are also of considered opinion that the State should give quietus to the issue and should not continue to raise it again and again.

7. In the result, we find no ground to interfere with the order of learned Single Judge.

8. The appeal lacks merit and is dismissed, with a cost of Rs. 25,000/-.

Order Date :- 19.09.2023

Jaideep

(Donadi Ramesh, J.)  (Manoj Kumar Gupta, J.)