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ASHOK KUMAR versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Ashok Kumar v. State Of U.P. & Others - SPECIAL APPEAL DEFECTIVE No. 335 of 2003 [2006] RD-AH 15923 (13 September 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.32

Special Appeal No.335 of 2003

Ashok Kumar vs. State of U.P. & others.

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This special appeal, under the rules of the Court, is preferred against the judgment of the Hon'ble Single Judge dated 9.4.2003 dismissing Civil Misc. Writ Petition No.15353 of 2003 filed by the appellant.

Heard learned counsel for the petitioner and the learned Standing Counsel.

It appears that the petitioner claims to have been engaged as daily wage sweeper cum chaukidar in the office of the Divisional Ayurvedic and Unani Officer, Jaunpur on 28.3.1992.  After working for a period of three years he sought regularisation and approached this Court in writ petition no.414 (S/S) of 1995, which was disposed of vide order dated 7.2.1995 with the direction to the respondents to decide his representation pursuant thereto it is contended that the Director, Ayurvedic and Unani issued an order on 18.2.1995 for his regularisation and consequently the Regional Ayurvedic and Unani Officer, Ghazipur vide his order dated 25.2.1995 adjusted the petitioner in the pay scale of 750-940 on the post of chaukidar.  It is also contended that though he was absorbed as chaukidar but was prevented from signing the attendance register whereupon he approached the authority by making representation and ultimately approached this Court in writ petition no.315 of 1997, which was disposed of vide judgment dated 30.9.1997 passing the following order: -

"Aggrieved the petitioners preferred a representation before the respondent no.1, which is annexure 6 & 7 to the writ petition.  It is alleged that the said representation has not been disposed of.

After hearing learned counsel for the petitioner and learned Additional Chief Standing Counsel this writ petition is disposed of by directing respondent no.1 to consider, decide and dispose of the petitioners representation in accordance with law without being influenced by any observation made in this order as early as possible within a period of four months from the date a certified copy of this order is produced before the concerned respondent.

There will, however, be no order as to cost."

Pursuant to the aforesaid judgment the Director, Ayurvedic and Unani passed the order dated 15.1.1999 and found that the order pertaining to petitioner's appointment were forged and fictitious inasmuch as he was never engaged even on daily wage basis at Ghazipur and, therefore, there was no question of his absorption in the said office.  He further found that there was no direction issued from his office pursuant whereof the Regional Officer could have passed order for absorption of the petitioner and the said order appears to have been obtained based on a forged and fictitious document.  Consequently, he rejected petitioner's representation and declared that his service shall stand terminated.  Thereafter again the petitioner approached this Court in writ petition no.6479 of 1999 (Ram Janam Ram and others vs. Director of Ayurvedic and Unani and another), which was allowed on the ground that the petitioner was terminated without giving opportunity of hearing and consequently, the order dated 15.1.1999 was quashed and the competent authority/Secretary U.P. Government, Department of Ayurvedic and Unani was directed to decide the matter afresh after giving opportunity of hearing to the petitioner.  The petitioner was also directed to make a fresh representation annexing copy of the aforesaid judgment as well as writ petition, supplementary affidavit and all annexures attached thereto and the authority concerned was required to decide the matter in accordance with law without being influenced with the observation made in the said order.  Pursuant to the aforesaid judgment it appears that the competent authority issued letters dated 3.11.2002, 23.11.2002 and 24.12.2002 directing the petitioner to appear in his office and produce original document including the document pertaining to his appointment but he did not avail the aforesaid opportunity and failed to produce any appointment letter before the competent authority.  In the circumstances, the order dated 8.1.2003 was passed cancelling petitioner's appointment based on fraudulent and fictitious ground and terminating his services against which writ petition was filed, which has been dismissed by the Hon'ble Single Judge vide judgment under appeal. The Hon'ble Single Judge has observed that the learned counsel for the petitioner was given opportunity to produce appointment letter even before the Court but he failed to produce the same.  

Learned counsel for the petitioner has not challenged the aforesaid fact recorded in the judgment under appeal that he failed to produce copy of the appointment letter even before the Hon'ble Single Judge.  We also permitted learned counsel for the appellant to produce copy of the alleged appointment letter but he says that only appointment letter he possesses is annexure I to the affidavit filed in support of the stay vacation application in this appeal, which is a letter dated 28.3.1992 issued by the Regional Ayurvedic and Unani Officer, Jaunpur engaging petitioner on daily wage basis.  It is not disputed by the learned counsel for the appellant that there is no order of appointment engaging the petitioner at Ghazipur and learned counsel for the appellant also failed to explain as to how he got the order of absorption passed by the Regional Ayurvedic and Unani Officer, Ghazipur though neither he was ever engaged at Ghazipur nor was transferred thereto nor ever worked thereat. Learned counsel for the appellant also could not dispute the finding of the competent authority that there was no order issued from the office of the Director, Ayurvedic and Unani and the reference of such a letter in the alleged absorption letter dated 25.2.1995 passed by the Regional Officer, Ghazipur is based on forged and fictitious letter.

It is settled law that a person invoking extra ordinary equitable jurisdiction under Article 226 of the Constitution of India must come with clean hands, since this court does not exercise its equitable jurisdiction in favour of a person, who is guilty of fraud and misrepresentation. 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 avoid all judicial 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.  The petitioner, in the case in hand, is beneficiary of some fraudulent orders, therefore, neither is entitled for any relief in law nor this Court would be justified in exercising its jurisdiction under Article 226 of the Constitution of India.

In view of the aforesaid discussions, we do not find any fault in the judgment under appeal passed by the Hon'ble Single Judge dismissing the writ petition of the appellant.  This appeal, therefore, is without merit and is accordingly dismissed without there being any order as to costs.

13.9.2006

A.


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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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