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MOHAMMAD ALI KHAN versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Mohammad Ali Khan v. State Of U.P. And Others - WRIT - A No. 59249 of 2005 [2005] RD-AH 2549 (8 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 53

Civil Misc. Writ Petition No.  59249 of the 2005

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Mhammad Ali Khan Versus State of U.P. and others

HON. ARUN TANDON, J.

Heard Sri Akhila Nand Mishra, Advocate on behalf of the petitioner and learned Standing Counsel on behalf of the respondents.

This is the fourth writ petition filed by the petitioner before this  Court. The petitioner on the basis of having been completed his training as apprenticeship, claimed appointment on  the post of typist/clerk and in that regard  filed writ petition no. 4807  (SS) of 2002 before the Lucknow Bench of this Court wherein an interim order was passed on 4th September, 2002, which reads as follows:

"Heard.

Learned Standing Counsel for the opposite parties to seek instructions within four weeks. List thereafter for admission.

In the meanwhile, the petitioner's claim for being appointed as Junior Clerk on the ground of his having acquired apprenticeship training may be considered."

It is not in dispute that in compliance of the aforesaid order the petitioner made a representation before the Superintending Engineer. Since such representation made by the petitioner was not considered the petitioner filed another writ petition being Civil Misc. Writ Petition No.  16556 of 2003 before this Court, wherein following interim order was passed   this Court on 18th April, 2003:

"Learned Standing Counsel prays for and is granted four weeks time to file counter affidavit. List in the third week of July, 2003.

In the meantime, respondent no.2 shall also decide the petitioner's representation dated 30th January, 2003 annexing a copy of the decision to be taken by reasoned order along with counter affidavit."

In compliance of the interim order passed by this Court dated 18th April, 2003 the Superintending Engineer considered the claim of the petitioner and offered appointment on the post of Junior Clerk. However, the said appointment of the petitioner was cancelled vide order dated 5th December, 2003. The petitioner filed Civil Misc. Writ Petition No. 55000 of 2003  before this Court challenging the order dated 5th December, 2003. The writ petition was finally allowed vide order dated 5th January, 2005 only on the ground that no opportunity of hearing was afforded to be the petitioner before passing the impugned order. The petitioner was accordingly reinstated. However, the authorities issued a notice dated 20th June, 2005 calling upon the petitioner to show-cause as to why his services may not be terminated on the ground of concealment of material facts. On 19th July, 2004 the petitioner submitted reply to the said show cause notice. The Superintending Engineer by means of the order dated 21st August, 2005 has terminated the services of th petitioner after recording following findings:

(a) The petitioner has filed writ petition no. 4807 (SS) of 2002 before the Lucknow Bench of this Court wherein an interim order was granted (quoted hereinabove). During the pendency of the said writ petition before the Lucknow Bench of this Court the petitioner filed second Civil Misc. Writ Petition No.  16556 of 2003 before this Court and he deliberately did not disclose the filing of his earlier writ petition no. 4807 of 2002 in subsequent writ petition no. 16556 of 2003 before this Court and obtained an interim order dated 18th April, 2003 (quoted hereinabove).

(b) On the strength of the order dated 18th April, 2003 the petitioner was offered appointment. The said act of the petitioner to obtain orders by concealing material facts, dis-entitle him. As such he is not entitled for any appointment. Accordingly the services of the petitioner are being terminated after giving notice of one month.

The finding recorded by the Superintending Engineer in his order dated 21st August, 2005 with regard to the concealment of material facts as noticed hereinabove has been explained by the petitioner by means of Paragraph-9 of this writ petition, which reads as follows:

"That for filing of the Civil Misc. Writ Petition No.  16556 of 2003 in this Hon'ble Court the petitioner had informed his counsel about the writ petition filed by him in the Lucknow Bench of this Hon'ble Court and also about the order dated 4th September, 2002 passed therein and the order dated 12th November, 2002 passed by the Superintending Engineer in compliance of the order dated 4th September, 2002. His counsel was further informed about  a representation dated 30-1-2003 made by the  petitioner against the order dated 12-11-2002. The copy of the representation dated 30-1-2003 in which the reference  of the order dated 12.11.2002 passed by  Superintending  Engineer and the order dated 4.9.2002 passed by the  Lucknow Bench of this Hon'ble  Court  in the Civil Misc. Writ Petition No. 4807(SS)/2002 were given was handed  over to the counsel for the petitioner; the copy of the representation dated 30.1.2003 was annexed with the Civil Misc. Writ Petition No. 16556 of 2003. It  appears that the counsel for the petitioner is inadvertently did not mention the fact of filling the writ petition in the Lucknow Bench of this Hon'ble Court . The petitioner also could not mark it. The representation dated  30.1.2003  was on the record of the Civil Misc. Writ petition No. 16556 of 2003 which disclose  the facts of the filing writ petition filed in the Lucknow Bench of this Hon'ble Court; the order dated 4.9.2002 passed on it by the Lucknow  Bench of this Hon'ble Court  and the order dated 12.11.2002 passed  by the Superintending Engineer in compliance of the order dated 4.9.2002. It is  thus apparent that there was no deliberate concealment of the writ petition filed in the Lucknow Bench in the Civil Misc. Writ petition No. 16556 of 2003"

This fourth writ petition was filed before this Court on 2nd September, 2005 and came up for admission on 6th September, 2005. On 6th September, 2005 the Court insisted upon the petitioner to disclose the name of the Counsel to whom instruction as mentioned in para quoted above, about  Civil Misc. Writ Petition No. 4807 (SS) of 2002 pending before the  Lucknow Bench of this Court was disclosed. The  Learned counsel for the petitioner was unable to disclose the same, therefore, this Court directed that the present writ petition may be listed  along with Civil Misc. Writ Petition No.  16556 of 2003 on 8th September, 2005. Today i.e. 8th September, 2005 when the matter came up before this Court, learned counsel for the petitioner has filed a Supplementary affidavit, which has been taken on record. In paragraph-2 of the Supplementary affidavit it has been stated as follows:

"That the deponent did not disclose the writ petition filed by him in the Lucknow Bench of this Hon'ble Court in his writ petition no. 16556 of 2003 for which he regrets and tenders an apology."

From the aforesaid paragraph-2 of the Supplementary affidavit it is apparently clear that the statement made by the petitioner in paragraph-9 of the present  writ petition (quoted herein above) is patently false. In such circumstances this Court has no hesitation to hold that the petitioner has not approached this Court with clean hands and therefore, he is not entitled to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.

The writ petition is accordingly dismissed.

08.09.2005

Sushil/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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