Allahabad High Court
Smt. Rajeshwari Devi vs State Of U.P. & Others on 13 August, 2010
Author: A.P. Sahi
Bench: A.P. Sahi
1
Court No.24
Civil Misc. Writ Petition No.62031 of 2009
Smt. Rajeshwari Devi Vs. State of U.P. and others
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Hon'ble A.P. Sahi, J
Having heard learned counsel for the parties, this matter has come up
before this Court again upon remand vide judgment and order dated 12.1.2010 in
Special Appeal No. (4) of 2010. The matter was remanded on the following
ground:-
"We are of the opinion that the learned Single Judge without going
into the merit of the case, ought not to have quashed the order of
the District Magistrate dated 8.10.2009 only on the ground that he
had passed the order in the light of the order dated 22.5.2009
passed in Civil Misc. Writ Petition No.26731 of 2009."
In order to narrow down the controversy and instead of repeating facts, it
would be appropriate to quote the interim order dated 18.11.2009 which indicates
the background in which the operation of the order dated 8.10.2009 was stayed:-
"Heard learned counsel for the petitioner Sri J.N. Singh and
Sri V.P. Singh Kushwaha who has filed a short counter affidavit on
behalf of respondent no. 5. Notice is accepted by the learned
standing counsel on behalf of respondent no. 1, 2 and 3 and by Sri
Durga Prasad Singh for the respondent no. 4.
On a dispute relating to selections of Shiksha Mitra, the
respondent no. 5 aggrieved by the selection of the petitioner which
was made in the year 2007, filed writ petition No. 30351 of 2008 but
the same was dismissed on 3rd July, 2008 by on order, copy of
where of has been appended as Annexure No. 6 to the writ petition.
It appears that the respondent no. 5 thereafter filed some fresh
representation and for a decision on the same, the respondent no. 5
again filed writ petition no. 26731 of 2009.
I have summoned the records of the said writ petition and
have perused the same. A perusal of the writ petition does not
indicate a word about filing of the earlier writ petition which was
dismissed on 3rd July, 2008. It was substantially relating to the
same relief pertaining to the selections of the petitioner on the post
in question. The writ petition was therefore was filed without
disclosing the fact that the earlier writ petition has been dismissed.
On the contrary, paragraph 1 of the previous writ petition states that
it was the first writ petition which was being filed for deciding the
representation dated 27.10.2007. The said writ petition was
disposed of by the following order on 22.5.2009:-
"Hon'ble V.K. Shukla, J.
2 Contention of petitioner is that she as well as respondent no. 3 had applied for the post of Shiksha Mitra, wherein respondent no. 3 had succeeded in procuring appointment put as her appointment was based on fake marksheet, order has been passed staying her training, but thereafter no further action has been taken to cancel her appointment.
Grievance of the petitioner can be very well looked into, examined and remedied by the District Magistrate of the District concerned, as such liberty is given to petitioner to represent his case before the said authority along with a certified copy of this order within three weeks from today. In the event of any such representation being made, the District Magistrate concerned is directed to examine the grievance of petitioner and take appropriate decision in accordance with law by means of reasoned and speaking order within next eight weeks, after affording opportunity of hearing to respondent no. 3, and the decision so taken be communicated to the petitioner as well as respondent no. 3.
In terms of above observation and direction writ petition is disposed of.
22.5.2009"
It appears that after having obtained the said order the respondent no. 5 also filed contempt petition No. 3081 of 2009 and with the issuance of notice in that contempt petition the District Magistrate proceeded to examine the matter. A notice was issued by the Basic Education Officer on 20.8.2009. A copy of the notice is appended as Annexure-8 to the writ petition. The petitioner in response to the said notice informed the District Magistrate that the respondent no. 5 has played a fraud and has obtained orders from the High Court without disclosing the fact that the earlier writ petition which had been filed challenging the selection of the petitioner had already been dismissed on 3rd July, 2008. A copy of the reply submitted by the petitioner is appended as Annexure-10 to the writ petition.
The impugned order of District Magistrate does not indicate any consideration of the said reply and further it proceeds to adjudicate the matter on merits keeping in view the direction issued by this Court vide order dated 22.5.2009.
Sri J.N. Singh learned counsel for the petitioner contends that merits apart, this is a case where the respondent no. 5 has played fraud with this Court and has obtained a copy of the order dated 2.6.2009 which is nothing short of criminal contempt. Sri V.P.S. Kushwaha, learned counsel for the respondent no. 5 contends that as a matter of fact the second writ petition which was filed only for a decision of the representation dated 27.10.2007 and therefore it could not be said to be a second writ petition for the same cause of action. A short counter affidavit has been filed today to justify the impugned order on the strength of merits of the claim and further that the order has been passed after given notice and opportunity of hearing.
Having heard learned counsel for the parties it is by now well settled that fraud vitiates all solemn proceedings. The respondent no. 5 did not disclose the fact of the dismissal of the earlier writ petition on 3rd July, 2008, in the second writ petition filed by him 3 being writ petition No. 26731/2009 which fact is apparent from a bare perusal of the record of said writ petition. There is no escape from the conclusion that the respondent no. 5 had played fraud on this Court. Accordingly, the respondent no. 5 in my opinion Court deserves to be prosecuted and as such let the respondent no. 5 be present before this Court on Monday next without fail.
Having heard learned counsels for the parties and in view of the fact the impugned order is an out come of fraud played by the respondent no. 5. The operation of the order dated 8th October, 2009 shall remain stayed until further orders and no hindrance shall be caused in the functioning of the petitioner as Shiksha Mitra."
When the matter was heard finally, the fact that the earlier writ petition filed by the respondent No.5, was a Second Writ Petition was accepted and it was also indicated that the earlier writ petition had been dismissed on 3.7.2008. In view of the aforesaid facts, the writ petition was allowed on 24.11.2009 which judgment is quoted herein after:-
"Heard Shri J.N. Singh, learned counsel for the petitioner, Shri V.P. Singh Kushwaha, learned counsel for the respondent no. 5 and the learned standing counsel.
Learned counsel for the parties agree that the matter be disposed of finally at this stage.
An order had been passed on 18.11.2009 upon discovery that the respondent no. 5 had filed a second writ petition without disclosing the fact of the dismissal of her earlier writ petition on 3rd July, 2008. The respondent no. 5 had been summoned by this Court to face perjury charges upon which an affidavit has been filed today by the said respondent tendering unqualified apology and giving an explanation that the respondent no. 5 being a villager had no idea as to how the writ petition came to be framed and in what manner it was presented.
In view of the explanation afforded the apology is accepted.
However, it is more than evident that the second writ petition filed by the respondent no. 5 being writ petition no. 26731 of 2009 was not maintainable before this Court as the earlier writ petition filed by the said respondent had been dismissed.
Having heard learned counsel for the parties and keeping in view the facts as brought out in the order dated 18.11.2009 as referred to hereinabove, the impugned order cannot be sustained as it was a result of the filing of the second writ petition by the respondent no.
5. As already noticed that the first writ petition had been dismissed on 3rd July, 2008, there was no occasion for the District Magistrate to proceed to decide and reopen the matter afresh. Accordingly, the order dated 08.10.2009 is quashed.
However, from a perusal of the impugned order, it appears that there is some indication of the certificates relied upon by the petitioner to be forged. Bereft of the directions of this Court the District Magistrate on his own could have held an inquiry, provided 4 that there was material to do so, but the said inquiry cannot be done at the instance of the respondent no. 5, whose writ petition has already been dismissed on 3rd July, 2008.
With the aforesaid observations the writ petition is allowed. Dt. 24.11.2009"
The order of remand indicates that the matter had not been gone into on merits.
At this stage when the matter was heard afresh, Sri J.N. Singh, learned counsel for the petitioner, contended that he has no further instructions in the matter. In such a situation, it will not be appropriate for this Court to again examine the merits of the contention between the petitioner and the respondent No.5.
The writ petition is consigned to records.
Dt. 13.8.2010 Irshad