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False affidavit, Unclean hands by concealing the material facts.

Allahabad High Court

on 7 January, 2010

 AFR Court No. - 18 CIVIL MISC. WRIT PETITION NO. 274 of 2010 

Shiv Lochan 
Vs. 
State of U.P.  Others 

Hon'ble Sudhir Agarwal,J.

This is not only a frivolous and mischievous petition but also apparently the petitioner has approached this Court with unclean hands by concealing the material facts.

Though the writ petition has been drafted in an innocuous manner, a simple reading of paragraphs 4 and 5 shows that he was initially appointed as Assistant Teacher in Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, District Azamgarh (Presently District Mau) on 25th August, 1977 and respondent No.5 issued approval letter on 25th March, 1982 in respect to the appointment of the petitioner. Para 6 further shows that respondent No.5 also issued another letter on 12th January, 1983 in respect to the appointment of teachers who were appointed before permanent recognition and granted approval in respect of the appointment of four teachers including the respondent No.8, ignoring the petitioner and experience certificate claimed to be obtained by the petitioner in 1995 and thereafter he has mentioned that Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Mau was upgraded as Uchcha Prathmik Vidyalaya i.e. Junior High School in December, 1996. Again he has said that the respondent No.5 granted approval to the petitioner on 30.12.1996. The relief sought in the writ petition is that the petitioner should be given appointment to the post of Head Master in the concerned institution which has been mentioned by the petitioner’s counsel as Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Mau.

However, on a closer scrutiny it is evident that the petitioner was initially appointed as Assistant Teacher in a privately managed recognized junior primary school i.e. Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Azamgarh on 25th August, 1977 (Annexure – 2 to the writ petition) but on 25th March, 1982 he was appointed on purely adhoc/temporary basis as Assistant Teacher in Junior Basic School of Basic Shiksha Parishad by the District Basic Education Officer, Azamgarh. In order to join pursuant to the appointment letter dated 25th March, 1982, the petitioner left his service from Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Mau and joined at Junior Basic School, Azamgarh therein. Later on at some point of time when Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Mau was upgraded, the petitioner somehow obtained some documents in order to lay his claim, after more than a decade, in Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Mau claiming seniority with effect from his initial appointment i.e. 25th August, 1977.

It appears that based on documents obtained by the petitioner later on, he approached the Director of Education claiming that he is working at the institution “Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Mau” and is not getting salary and then filed writ petition No.14472 of 2001 which was disposed of by this Court on 18th April, 2001 directing the concerned authority to decide the matter after giving opportunity. An order was passed on 7th July, 2001 by the Finance and Accounts Officer, Basic Shiksha, Mau pursuant to judgment dated 18.4.2001 against which another writ petition No.38242 of 2004 was filed by some other persons along with petitioner which was disposed of on 14th December, 2005. It is pursuant thereto the order dated 11/15th May, 2007 was passed by the Director Basic Education observing that Shiv Lochan, the present petitioner had left the institution i.e Maharana Pratap Purva Madhyamik Vidyalaya, Punapur, Bhatauli, Mau long back and could not have been permitted to join the said institution again in 1997. The validity of the said order dated 11/15.5.2007 was challenged in writ petition no.27602 of 2007 which was dismissed by the Hon’ble Single Judge vide judgement dated 17th April, 2009 observing as under:

“……………Admitted position is that after petitioner had left the institution he had no concern with the institution and another incumbent had been appointed and had been function. After 14 year under what contingency he was permitted to come back in the institution. There is no provision of adjustment in the institution as has been sought to be done in the present case. Entire proceedings taken in favour of petitioner is void on this score. Admitted position is that in the vacancy of the petitioner another incumbent had been appointed and petitioner by no stretch of imagination could have ipso facto returned and resume his duty. Return of petitioner cannot be subscribed in law. View taken by the Director of Education is totally correct view, as petitioner was not at all retaining his lien on earlier post and said post had already substantively been filled up and in this background by no stretch of imagination he could have been absorbed and adjusted in the institution against any other vacancy as per U.P. Act No.6 of 1979. There is no provision of absorption/ adjustment there and in case there is fresh vacancy then fresh selection proceeding will have to be undertaken.”

Aggrieved by the aforesaid judgement of the Hon’ble Single Judge, the petitioner preferred Special Appeal No. (847) of 2009 which has been dismissed by the Division Bench vide order dated 30th July, 2009.

Without disclosing the above facts and taking pleadings in a misleading manner, as pointed out above, this writ petition has been filed by the petitioner stating that this is the first writ petition being filed by him seeking relief for appointment on the post of Head Master in the institution concerned i.e. Maharana Pratap Purva Madhyamik Vidyalaya Punapar Bhatauli, Mau.

In my view by not disclosing the factum of earlier writ petition no.27602 of 2007 in the present one, the petitioner is guilty of approaching this Court with unclean hands and of concealment of material facts.

In Ram Saran Vs. IG of Police, CRPF and others, (2006) 2 SCC 541, the Apex Court observed “A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. ……………”

In Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and others, 2003 (Suppl.) 3 SCR 352, it was reiterated after referring to various earlier decisions of the Apex Court that fraud misrepresentation and concealment of material fact vitiates all solemn acts. In State of Andhra Pradesh another Vs. T. Suryachandra Rao, AIR 2005 SC 3110, the Apex Court after referring to various earlier decisions held that suppression of a material document would also amount to a fraud on the Court. The same view has been reiterated in Bhaurao Dagdu Paralkar Vs. State of Maharashtra others, AIR 2005 SC 3330. In R. Vishwanatha Pillai Vs. State of Kerala others, JT 2004(1) SC 88 the Apex Court observed that a person, who seeks equity, must act in a fair and equitable manner. In Rajabhai Abdul Rehman Munshi Vs. Vasudev Dhanjibhai Mody, AIR 1964 SC 345, it was held that if there appears on the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal. The same view was reiterated and followed in Vijay Syal another Vs. State of Punjab others (2003) 9 SCC 401.

A litigant who has approached this Court in extra ordinary equitable jurisdiction with unclean hands, his conduct makes him liable to pay an exemplary cost for abusing the process of the Court besides wasting precious time of the Court which could have been utilized for other more delinquent employee serving cases. Moreover, he is also guilty of swearing a false affidavit. Thus the petitioner must be saddled with the liability of heavy cost so that in future such thing may not recur.

The writ petition is accordingly dismissed with cost quantified at Rs.25,000/-. The cost shall be deposited by the petitioner within two months with the Registrar General of this Court. In case of failure by the petitioner to pay the amount of cost, it shall be recovered as arrears of land revenue for which the Registrar General of this Court shall take appropriate steps.

Order Date :- 7.1.2010 KA


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