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2009 Supreme(All) 3221
[2010(1) ADJ 438]
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON, J.
BANWARI LAL UPADHYAY ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 42350 of 2009, decided on 18th September, 2009)
Counsel :
S.N. Tiwari, S.K. Tiwari, P.N. Saxena for the Petitioner; R.N. Singh, G.K. Singh, V.K. Singh, S.C., A.P. Mathur for the Respondents.
Headnote:(A) Appointment—Obtained by fraud by concealing material facts of dismissal of writ petition by decree of Civil Court—Salary/monetary benefits directed to be returned to State Exechequer—Plaintiff/petitioner was appointed as a Library Clerk in Institution on a short-term vacancy for a period of three months, later on, on a probation for one year by Management—He was not paid salary as D.I.O.S. informed C.O.M. that appointment of plaintiff/petitioner was not against any sanctioned post and further that Resolution of C.O.M. offering appointment to him as Librarian was illegal—Petition against filed by plaintiff/petitioner, was dismissed by Court—After dismissal of writ petition by Court, after expiry of six years of D.I.O.S. rejecting financial approval to appointment of petitioner he filed O.S. 136/88 in Court of Addl. Civil Judge wherein C.O.M. (i.e. appointing authority) was not party to suit—Civil Judge decreed suit ex parte and granted declaration, despite there being a mention in written statement qua filing of W.P. 10578/85 by plaintiff/petitioner himself, did not consider it proper to refer pendency of writ petition, nor judicial officer cared to obtain information from plaintiff/petitioner about that writ petition which he had filed—Therefore, suit filed by plaintiff/petitioner itself was nor maintainable thus plaintiff/petitioner has deliberately concealed filing of W.P. No. 10578/85 and its judgment in his plaint—Thus, fraud has been played by petitioner/plaintiff in Court of law—Therefore, judgment and decree obtained by plaintiff/petitioner from Civil Court was declared null and void—Thus, petitioner directed to return monetary benefits (i.e. entire salary) on strength of fraudulent decree obtained by Civil Court, to State Exchequer—Thus, petition liable to be dismissed.
[Paras 9 to 13, 19, 21, 24, 37, 43, 48, 49 and 50]
(B) Words and Phrases—Word “fraud”—Meaning of. [Paras 25 and 26]
Result; Petition Dismissed.
Hon’ble Arun Tandon, J.—Heard Sri P.N. Saxena, Senior Advocate assisted by Sri S.N. Tiwari Advocate on behalf of the petitioner, Standing Counsel on behalf of the State Respondents and Sri R.N. Singh, Senior Advocate on behalf of the Judicial Officer.
2. Affidavit filed on behalf of Judicial Officer in response to the order of the Court dated 18.8.2009 may be taken on record.
3. Facts giving rise to the present writ petition are as follows :
Dharma Samaj Inter College, Aligarh is an aided and recognized Intermediate College. The provisions of the U.P. Intermediate Education Act and the Regulations framed thereunder as well as those of U.P. High School and Intermediate Colleges (Teachers and Other Employees) (Payment of Salary) Act, 1971 (hereinafter referred to as ‘Act, 1971’) are fully applicable to the teachers and staff of the said institution.
4. One Mahavir Prasad Sharma retired from the post of Head Clerk on 31.7.2008. The petitioner Banwari Lal Upadhyay, claiming himself to be the senior most person working on Class-III post in the institution, set up a claim for promotion on the post of Head Clerk. By means of the order of the Authorized Controller dated 15.6.2009 one Hari Om Sharma has been held to be senior most Class-IV employee and therefore, entitled to promotion in preference to the petitioner. It is against this order of the Authorized Controller dated 15th June, 2009 that the present writ petition has been filed.
5. Various grounds and pleas have been raised for challenging the order and a serious dispute with regard to seniority has also been raised.
6. Normally this Court would have required the petitioner to agitate his claim before the education authorities at the first instance inasmuch as without approval of the education authority no appointment on Class-III post can be made in a recognized and aided institution.
7. Such a course has not been adopted by this Court in the peculiar facts and circumstances of the case as are on record. The interest of justice compelled the Court to examine the entire claim set up by the petitioner on its merit and to ensure that whatever fraud, has continued for long duration, is immediately brought to an end. The Hon’ble Supreme Court has repeatedly held that fraud and justice cannot go together and therefore, such exercise was undertaken by this Court resulting in issuance of notice to the Judicial Officer concerned, who is said to have granted a decree of declaration in favour of the petitioner.
8. The Judicial Officer has responded to notice and has filed her affidavit explaining the circumstances in which decree was granted in the original suit filed by the petitioner. It would be appropriate at this stage to reproduce the relevant fact leading to the filing of the Original Suit No. 136 of 1988 as also the facts stated in the plaint, which in turn resulted in ex parte decree of declaration granted by the Judicial Officer (respondent No. 7).
9. According to the plaintiff/petitioner a short term vacancy on the post of Library Clerk was caused in the institution due to grant of leave to one Sri Ashok Kumar Sharma. Against the leave vacancy the plaintiff/petitioner is stated to have made an application before the Manager of the institution, who vide order dated 28.11.1980 offered appointment to the petitioner as Library Clerk for a period up to 31.1.1981 i.e. for a period of three months only with a condition that the petitioner shall be paid salary only if financial approval in his favour is granted by the office of the District Inspector of Schools, Aligarh.
10. It appears that Sri Ashok Kumar Sharma extended his leave up to 30th June, 1981 and thereafter did not report for duty in the institution. The Committee of Management, therefore, decided to terminate the services of Sri Ashok Kumar Sharma vide its resolution dated 4.7.1982 w.e.f. 30th June, 1982. In the same meeting dated 4th July, 1982 the Committee of Management decided to offer appointment to the petitioner on t
