Allahabad High Court
Smt.Sarita Singh vs State Of U.P.Through Secy. on 10 March, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 17 Case :- WRIT - A No. - 5186 of 2001 Petitioner :- Smt.Sarita Singh Respondent :- State Of U.P.Through Secy. Counsel for Petitioner :- S.K.Mehrotra,Abdul Shahid,Girish Chandra Verma,Jagroopan Nishad,Lalit Shukla,Mahendra Singh Rathore,Onkar Singh Kushwaha,Rakesh Kumar Yadav Counsel for Respondent :- C.S.C., Ghaus Beg,Jyotinjay Verma Hon'ble Dinesh Kumar Singh,J.
1. This writ petition, under Article 226 of the Constitution of India, has been filed by the petitioners, seeking issuance of a writ of Mandamus commanding respondents to pay salaries to them on the basis of regular time-scale fixed by the State Government for primary teachers, as has been fixed for other teachers, out of the State Fund.
The petitioners have further prayed for issuance of a direction to the respondents to pay arrears of their salary since the date, 'Kamla Nehru Balika Vidyalaya, Bachhuapar, Raje Sultanpur, District Ambedkarnagar started receiving grants-in-aid from the State Government.
2. That Kamla Nehru Balika Vidyalaya, Bachhuapar, Raje Sultanpur, District Ambedkarnagar (herein after referred to as "the Institution") was established for teaching students for Class-VI to VIII in the year 1984; the Institution is run and managed by a registered society, registered under the Societies Registration Act; the Institution was granted temporary recognition on 25.08.1986 and, thereafter permanent recognition was granted on 04.07.1987 by the Assistant Director (Basic) Faizabad (now Ayodhya).
3. The petitioners have claimed that when the Institution was started in the year 1984, the total staff was consist of one Principal, five assistant teachers, one clerk and three peons. The Institution was granted permission to start one section for each class from Class-VI to VIII. It was stated that in due course, the Institution received wide popularity and there was considerable increase in number of students, seeking admission in the Institution and, therefore, three new sections were opened for Classes-VI to VIII.
4. This writ petition was filed in the year 2001, however, after exchange of pleadings, an amendment application was filed, which was allowed by this Court vide order dated 16.03.2010. By way of amendment, some new facts and grounds got incorporated in the writ petition to the effect that the committee of management of the Institution had requested the District Basic Education Officer, Ambedkarnagar (hereinafter referred to as "the BSA") to permit the Institution for opening new sections as strength of the students was increasing.
5. It is said that the BSA considered the request of the management of the Institution and, permitted the Institution to open new sections for each classes i.e. Class-VI, VII and VIII through Letter No.3019/90-91 dated 15.12.1990.
6. By way of amendment, the petitioners claimed that their appointment was made for new sections, approved by the respondent no. 4 after following due process as prescribed under the U.P. Primary Education Act, 1971 and rules made thereunder. It was said that the appointments were approved by the BSA. By way of amendment, it had also been claimed that the petitioners have been working after their appointment got approved by the BSA, but they were not paid salary illegally and arbitrarily.
7. It is submitted that petitioner nos. 1, 2 and 3, namely, Smt. Sarita Singh, Smt. Suman Tripathi and Smt. Manju Singh were having M.A. B. Ed. degree to their credit and, they were selected and appointed by the management of the Institution. They were issued appointment letter dated 25.06.1991 and, were directed to join their posts with effect from 01.07.1991. The petitioner nos. 1 to 3 had joined the Institution on the date fixed i.e. 01.07.1991 and, since then they have been continuously working in the Institution to the entire satisfaction of the management and all concerned.
8. It was stated that the papers relating to appointment of petitioner nos. 1 to 3 were submitted by the management of the Institution to the BSA, but no response came. However, by way of amendment, as was incorporated on 16.03.2010, it has been said that the BSA granted approval to the appointments of petitioner nos. 1 to 3 through letter no. 5231/91-92 dated 05.02.1992. The said letter of approval allegedly issued by the BSA has been placed on record as Annexure 3-A to the amendment application.
9. In respect of petitioner no. 4, Smt. Noor Jahan, it has been said that she was having qualification of B.A. and, the Institution required a Teacher for teaching Urdu subject. The petitioner no. 4 was selected by the management and, was given temporary appointment as assistant teacher vide letter dated 05.07.1996. She joined the Institution on 10.07.1996 and since then she had been performing the duties and work of assistant teacher (Urdu) to the entire satisfaction of the management of the Institution.
10. It is said that the papers relating to appointment of petitioner no. 4, Smt. Noor Jahan, were sent by the management of the Institution to the BSA. However, no response came to the appointment of the petitioner no. 4.
11. By way of amendment dated 16.03.2010, the Institution has taken a plea that appointment of the petitioner no. 4 was deemed to have been approved by the BSA under rule-10 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to "the Rules, 1978") inasmuch as the respondent no. 4 failed to communicate his decision within one month from the date when the relevant papers were sent for approval to him regarding appointment of the petitioner no. 4.
12. It is said that the committee of management had been paying the consolidated salary of Rs. 850/- per month to each of the petitioners, while regular scale of assistant teachers, as paid to teachers of the aided schools from the State Fund, was Rs. 4250-6400 per month. It is further said that the Institution was given grants-in-aid with effect from December, 1998. The petitioners were also working in the Institution as assistant teachers when the Institution started receiving Government Aid.
13. Though the writ petition was filed in the year 2001, however, this Court only on 21.02.2005, as an interim measure, directed that the petitioners must be paid respectable wages/salary in the minimum of the time scale fixed by the State Government for the assistant teachers with effect from 01.01.2005 along with other benefits. The interim order dated 21.02.2005 reads as under:-
"Heard Sri I.D. Shukla learned counsel for the petitioners, learned Chief Standing Counsel for opposite parties no. 1 to 3 and Sri Gaus Beg who has put in appearance on behalf of opposite party no. 4.
No counter affidavit has been filed by the opposite parties despite the petition being entertained on 6.11.2001.
The grievance of the petitioners is that they have been continuing as Assistant Teachers since 1.7.1991 except Smt. Noor Jahan, petitioner no. 4, who was appointed on 10.7.1996 in Kamla Nehru Balika Vidyalaya, Bachhupur-Raje Sultanpur, District Ambedkar Nagar. The school was placed on aided list of the State Government but still the petitioners are being given Rs.850/- per month. The grievance of the petitioners is that they are being deprived of their regular salary in the pay scale of Rs.4250-6400 which is being allowed to similarly placed teachers performing the same duties.
Sri Gaus Beg has resisted the petition saying that the teachers of Junior Highschool are entitled for regular scale and only this, the institution has come under the Grant-in-aid scheme. Sri Shukla learned counsel for the petitioners has stated that they are imparting education to Junior HIghschool also. He further submitted that the school was raised to Junior Highschool and they were required to impart education to Junior Highschool classes also. The petitioners are Graduate and some are having Post Graduate qualifications also.
In view of above, it is provided that the petitioners must be paid respectable wages/salary in the minimum of the time scale fixed by the State Government for the Assistant Teachers of the institution in dispute from 1.1.2005. The petitioners shall be allowed the benefits of the pay scale admissible to the similarly placed Assistant Teachers performing the same duties and functions."
14. In the counter counter affidavit, filed on behalf of the BSA on 07.12.2005, it was said that there was only one sanctioned section in each of classes from Class-VI to VIII in the Institution. Under the grants-in-aid scheme, one post of head-master and four posts of assistant teacher were sanctioned and, the salary of the head-master and four teachers was being paid from the State Exchequer after the Institution was taken under the grants-in-aid scheme. It was specifically stated that neither any permission to open additional class was granted nor additional posts were created by the competent Authority. If the petitioners claim to have been appointed by the committee of management of the Institution then their appointment would be in violation of rules 4, 5, 7, 9, 10 and 11 of the Rules, 1978. It was said that the papers relating to selection and appointment of the petitioners were not available in the office of the BSA and, their appointments were never approved by the BSA and, therefore, the payment of salary to the petitioners from the State Exchequer was not possible.
15. In the counter affidavit, stands of the respondents is that at the time of obtaining recognition of the Institution, the management of the Institution did not mention names of the petitioners as assistant teachers working in the Institution nor their names were included when the grants-in-aid was sanctioned by the Government. Therefore, the claim of the petitioners for regular salary from the State Exchequer is totally untanable.
16. The writ petition got dismissed for non-prosecution vide order dated 25.01.2006 and, the interim order dated 21.02.2005 was vacated. However, the writ petition was restored on 03.03.2006, but the interim order was not extended. After the specific stand was taken by the BSA that neither any paper relating to appointment of the petitioners were available in the office of the BSA nor appointment of the petitioners was ever approved and, their names did not include in the strength of the teachers when recognition was granted or grants-in-aid was given, an amendment application, as mentioned above, came to be filed on 19.11.2009 and, the said amendment application was allowed vide order dated 16.03.2010.
17. An application for interim relief was again filed on 12.05.2010 on behalf of the petitioners. However, no order has been passed on the said application till date.
18. In the counter affidavit filed to the amended parts of the writ petition, it was reiterated that the appointment of the petitioners had been made without following due procedure prescribed under the law and, it was in violation of the rules 4, 5, 7, 9, 10 and 11 of the Rules, 1978 and, therefore, no salary could be paid to the petitioners from the State Exchequer and, it was only the management of the Institution, which would be responsible for payment of salary, if any, to the petitioners. It was further said that the BSA had written letter dated 27.04.2005 to the manager of the Institution in which the BSA had said that the appointment of the petitioners was made in violation of the Rules, 1978, without any permission/creation of the post by the Government and without permission/approval, appointment of the petitioners had allegedly been made. It was further said that when the Institution sent the papers for receiving grants-in-aid, the names of the petitioners were not mentioned in the list of teachers working in the Institution and, therefore, there was no question of making any payment of salary to the petitioners and, it was for the management of the Institution to make payment to the petitioners, as the management of the Institution had allegedly appointed them. A specific stand was also taken that the alleged letters of the BSA, regarding permission to open new sections and approval of appointment of the petitioners, were forged document.
19. After the interim order was obtained and the BSA wrote a letter dated 27.04.2005 to the management of the Institution, denying the payment of salary from State Exchequer, as mentioned above, contempt petition, bearing Contempt No.1515 (C) of 2005 came to be filed before this Court for alleged violation/non-compliance of the interim order dated 21.05.2005.
20. This Court, vide order dated 23.04.2013, directed the BSA as well as Finance and Accounts Officer, Ambedkanagar to remain present in the Court to show-cause as to why contempt proceedings be not initiated against them for not complying the interim order dated 21.02.2005. On 08.05.2013, as directed by this Court vide order dated 23.04.2013, BSA as well as Finance and Accounts Officer, Ambedkarnagar were present in person. It appears that sometime was asked by them regarding compliance of the order dated 21.02.2005. However, this Court again directed the BSA and the Finance and Accounts Officer to remain present on the next date of listing of the contempt petition on 22.05.2013.
21. On 22.05.2013, the BSA and the Finance and Accounts Officer remained present before this Court. On the said date, it appears that they assured the Court that the interim order dated 21.02.2005 would be complied with within a period of one month. Affidavits filed by the BSA and Finance and Accounts Officer were taken on record and, on the basis of the said assurance, framing of the charges against them was deferred and, it was observed that in case the interim order was not complied with, both the officers would appear in person again for framing of charges. The case was directed to be listed on 09.07.2013.
22. On 09.07.2013, the contempt Court noted contention of counsel that as per the interim order dated 21.02.2005 minimum of pay-scale was not being paid to the petitioners nor arrears of salary were paid to them. This Court again directed the BSA and the Finance and Accounts Officer, Ambedkanagar to remain present in the Court on the next date of listing of the matter on 09.09.2013 and a cost of Rs.10,000/- was imposed. The Court directed the authorities to release arrears of salary to the petitioners. The Court also directed for filing affidavit of compliance.
23. Under the pain of contempt proceedings, the interim order dated 21.02.2005 was complied with despite filing of the counter affidavit in which a specific stand was taken that the petitioners had approached this Court by filing forged documents regarding their approval of appointment etc and, the writ petition got dismissed on 25.01.2006 for non-prosecution and, the same was restored on 03.03.2006, but no order for extending the interim order dated 21.02.2005 was passed, while restoring the petition. The arrears of salary were also paid to the petitioners and the contempt Court, in its order dated 09.09.2013, recorded that the interim order dated 21.02.2005 was complied with in letter & spirit and the cost of Rs.10,000/- was directed to be deposited with the Oudh Bar Association and in view of the aforesaid fact, the contempt petition was disposed of vide order dated 09.09.2003, which reads as under:-
"This petition seeks initiation of proceedings under the Contempt of Courts' Act 1971 against the respondent-contemners for willful disobedience of judgment dated 21.2.2005 rendered in Writ Petition No.5186 (SS) of 2001.
In deference to order dated 22.5.2013 Sri D.S. Yadav, Basic Shiksha Adhikari, Ambedkar Nagar, and Sri Krishna Kumar Yadav, Finance & Accounts Officer, Ambedkar Nagar, are present in court alongwith cost amount.
Affidavits filed by the contemners are taken on record.
This Court has taken note of the fact that the contempt petition was filed in the year 2005. Compliance of the order has been made in August 2013.
Let Rs.10,000/-(Ten thousand only) be deposited with Oudh Bar Association.
The two contemners, named above, state that the order at issue has been complied with in its letter and spirit. Arrears have been paid.
Learned counsel for the petitioner states that indeed the order has been complied with in its letter and spirit.
Considering the fact that the order at issue has been complied with, which fact has been admitted by learned counsel for the petitioner, this petition is disposed of."
24. This Court finds it strange and intrigue that despite the fact that the interim order dated 21.02.2005 was not extended vide the order dated 03.03.2006, which was passed on the application for recalling the order dated 25.01.2006 whereby the writ petition was dismissed for non-prosecution, the contempt proceedings continued and orders were passed for compliance of the non-existent interim order dated 21.02.2005. Not only current salary, but arrears of salary were also directed to be paid to the petitioners, which was not the scope of the interim order dated 21.02.2005. The order dated 03.03.2006, restoring the writ petition, reads as under:-
"This is application for recalling the order dated 25.01.2006.
Counsel for opposite party is present.
He has no objection for recalling the order on personal grounds.
Order dt. 25.1.06 is recalled.
List for hearing on 27the March, 2006"
25. After the interim order dated 21.02.2005 was obtained, the petitioners made no stone unturned to see that hearing of the case does not take place. The order-sheet is full of adjournment sought by the counsel for the petitioners on one pretext or the other.
26. On 23.09.2013, this Court, noticing the conduct of the petitioners, granted only one week's time to file rejoinder affidavit to the counter affidavit filed by the respondents and, made it clear that no further time shall be allowed to the counsel for the petitioners on the next date. It was also observed that in case the counsel for the petitioners again ask for adjournment, the interim order granted earlier would stand automatically vacated. The order dated 23.09.2013 reads as under:-
"Learned counsel for the petitioner prays for and is granted one week and no more time to file rejoinder affidavit.
List thereafter.
It is made clear that no further time shall be granted to the learned counsel for the petitioner on the next date. In case he seeks further time, the interim order granted earlier shall stand automatically vacated."
27. On 23.10.2013, when the case was listed before the Court, learned counsel for the petitioners again sought adjournment on the ground that he was not prepared with the case. Looking to the fact that the writ petition had remained pending since 2001 and the interim order dated 21.02.2005 amounted to allowing the final relief sought in the writ petition regarding the payment of salary to the petitioners, this Court passed the order and, kept the interim order dated 21.02.2005 in abeyance till the next date of listing. The order dated 23.10.2013 reads as under:-
"This writ petition is pending since 2001 wherein an interim order has been passed by this Court on 21.02.2005 allowing the relief which has been sought i the main petition regarding payment of the salary to the petitioner in terms of the interim order.
Thereafter, on one pretext or the other the writ petition was adjourned. A contempt petition has already been filed.
The contention of the opposite party that some forged paper has been placed on record regarding the approval of the appointment of petitioner.
Today also the counsel for the petitioner wants adjournment on the ground that he has not prepared the case.
The case is adjourned.
Interim order dated 21.02.2005 shall remain in abeyance till next date of listening.
28. On 17.12.2015, it appears that due to some inadvertent mistake, the interim order, which was kept in abeyance, was extended till further orders. However, this Court on the next date of listing i.e. on 27.01.2016, noticed the said order dated 17.12.2015, granted life to the interim order dated 21.02.2005, which was kept in abeyance vide order dated 23.10.2013. The Court noticed that the counsel for the respondents had prayed for extension of time, however, due to an inadvertent mistake, the interim order dated 21.02.2005 got extended. This Court also noticed that the counsel for the petitioners did not take any proceeding against the order dated 23.10.2013 whereby the interim order dated 21.02.2005 was put in abeyance. In view thereof, vide order dated 23.10.2013, whereby the interim order dated 21.02.2005, was kept in abeyance, was extended till next date of listing of the petition. The order dated 27.01.2016 reads as under:-
"The previous interim order passed by this Court on 21.2.2005 continued to operate till 23.10.2013. After hearing the matter at some length, this Court passed the following order on 23.10.2013:
"This writ petition is pending since 2001 wherein an interim order has been passed by this Court on 21.02.2005 allowing the relief which has been sought i the main petition regarding payment of the salary to the petitioner in terms of the interim order.
Thereafter, on one pretext or the other the writ petition was adjourned. A contempt petition has already been filed.
The contention of the opposite party that some forged paper has been placed on record regarding the approval of the appointment of petitioner.
Today also the counsel for the petitioner wants adjournment on the ground that he has not prepared the case.
The case is adjourned.
Interim order dated 21.02.2005 shall remain in abeyance till next date of listening.
Later on, this Court passed the following order on 17.12.2015:
On the request of Mr. Jyotinjay Verma, learned Counsel for the opposite parties, interim order dated 21.02.2005 is extended, till further orders of the Court.
List the petition in the second week of January, 2016.
Sri Jyotinjay Verma, learned counsel for the respondent has submitted that the order passed on 17.12.2015 grants life to the earlier order passed by this Court on 21.2.2015 which was subsequently modified by an order dated 23.10.2013 conditionally. Learned counsel states that it was the order dated 23.10.2013 which was prayed to be extended. It appears that at an inadvertent error has crept in while passing the order dated 17.12.2015. It is also pointed out by Sri Verma, learned counsel, the petitioner has not taken up any proceedings against the order dated 23.10.2013 and the said order remains unaltered.
In view of above, the interim order dated 23.10.2013 is hereby extended till the next date of listing, subject to the statement recorded hereinabove.
List in the next cause list.
On the next date of listing, the writ petition itself may be disposed of finally."
29. The Director, Education (Basic), Government of Uttar Pradesh vide letter dated 30.10.2013 directed the Joint Director, Education (Basic), Ayodhya Division, Ayodhya to hold an inquiry for making payment of more than 50 Lakhs to the three petitioners in pursuance of the interim order dated 21.02.2005. In the inquiry report, the Joint Director of Education said that the BSA vide his order dated 17.06.2013 directed the Manager/Principal of the Institution to ensure compliance of the interim order dated 21.02.2005 and, the copy of the said letter was also given to the petitioners. The BSA made an inspection of school on 04.05.2013 and inspected the attendance register of the school and obtained photocopy thereof. It was found that besides the persons working against sanctioned posts, in another register Smt. Sarita Singh and Smt. Suman Tripahti made signatures. However, petitioner, Smt. Noor Jahan was not found to have even signed the register and, she was not working in the school at all. Despite this, she was also made payment by the Finance and Accounts Officer (Basic Education) Ambedkarnagar and, he had written a letter seeking permission for making further payments to all the petitioners. The Joint Director said that release of payment in favour of Smt. Sarita Singh and Smt. Suman Tripathi, without there being any sanctioned post, would come within the purview of financial irregularities committed by the officials. The BSA was directed to ensure appropriate legal action in the matter.
30. After the departmental inquiry, a first information report came to be registered on 17.01.2005 on a written complaint of the BSA, Ambedkarnagar against Mr. K.K. Pandey, the then Finance and Accounts Officer in the office of BSA, Ambedkarnagar under Section 409 IPC at Police Station Akbarpur, District Ambedkarnagar. The Finance and Accounts Officer, Mr. K.K. Pandey was instrumental in making payment against the forged documents and, he had also made payment of more than 25 Lakhs to one Mr. Ram Roop Yadav, assistant teacher of Adarsh Janata Junior High School, Rasoolpur, Ambedkarnagar and, in the inquiry it was found that no appointment was approved of the said persons by the BSA and, the bills regarding payment were found to be forged and for the said offence, the case was pending against him. These documents have been brought on record by way of an affidavit dated 23.08.2016 filed by the BSA, Ambedkanagar. However, no response to the said affidavit has been filed on behalf of the petitioners.
31. The documents, which were never brought on record along with the writ petition, were subsequently brought on record by way of amendment and, supplementary affidavit, which have been found to be forged. Supplementary affidavit dated 15.09.2016 was filed by the petitioners to bring on record an alleged letter dated 18.02.1990 sent by the management of the Institution to the BSA, stating therein that at that time, the strength of the students was 288 and, therefore, request was made to create four more posts of assistant teacher. It is further said that the management of the Institution had written to the BSA a letter dated 09.04.2005, stating therein that vide Letter No.3019 dated 15.12.1990 the permission for starting new sections and, its approval was granted vide order dated 05.02.1992, however, nothing was done and, therefore, request was made for creation of the post. It is strange that after 15.12.1990 when the alleged persmission was granted for opening new sections, more than 13-15 years thereafter the request was made for creation of four posts of assistant teachers. It was further said that a similar request was made again vide letter dated 09.05.2005.
32. If the permission for opening new sections was granted on 15.12.1990 and the said sections were approved, this Court does not find any justification for writing the letter for creation of posts on 09.04.2005 i.e. after 13-15 years. These documents, which at no point of time were placed along with record of the writ petition, are shrouded in mystery and under deep clouds of suspicion. If the petitioners had all these documents when the writ petition was filed, they would have certainly placed them on record in support of their claim.
33. It appears that the police filed a closure report in respect of the FIR against the Finance and Accounts Officer, which was submitted in the trial Court on 26.04.2016. However, the trial Court had rejected the said final report vide order dated 22.12.2016 and, directed the Station House Officer to make further investigation under Section 173(8) CrPC.
34. After the interim order dated 21.02.2005 was kept in abeyance vide order dated 23.10.2013, the petitioners have not been paid salary from the State Exchequer. The order-sheet from 11.07.2006 would show that the case was got adjourned on one pretext or the other by the counsel for the petitioners every time and, every effort was made to see that the case was not heard and decided finally.
35. This Court is not extracting the orders passed in the writ petition, adjourning the case on the request of learned counsel for the petitioners. Suffice it to mention that every time, the matter got adjourned on request of learned counsel for the petitioners. On 17.02.2022 when the case was listed before this Court, again request was made for adjourning the case, however, hearing the counsel for the respondents for sometime, the Court directed the case to be listed on next day i.e. 18.02.2022 for further hearing and, thus, the hearing could get concluded.
36. From the facts, as stated above, the petitioners' names were not included in the list of the teachers working when the request for taking the Institution under grants-in-aid was sent to the BSA. Under the grants-in-aid scheme, one post of head-master and four posts of assistant teachers were sanctioned in the year 1997, which did not include names of the petitioners. The letters for permission for opening new sections and, approval are stated to be forged for which the FIR has been registered. The claim of the petitioners by way of amendment and supplementary affidavit that there appointments were approved by the BSA has been found to be untenable inasmuch as no papers regarding their selection and appointment is available in the office of BSA and, the alleged approval letter is said to be completely forged document. This allegation of forgery gets cemented from the fact that if the appointments of the petitioners were approved in 1992 then there was no occasion for the management to write to BSA in 2005 for creation of posts.
37. For several years, in the State of Uttar Pradesh, the game of appointing teachers by the management of the educational institutions without prior permission for creation of posts and then coming to the Court for payment of salary has been going on and, several thousands crores of rupees of tax-payers money has been paid to such appointees on the basis of the interim/final orders passed by this Court. Therefore, it is not only committee of management and such appointees, who are culprits, but the officials in the Education Department have equal share in the culpability. There is nothing on record except the alleged letters regarding approval for opening new sections or sanctioning the additional posts, which were not part of the grants-in-aid scheme. This Court is of the view that the petitioners were appointed by the management of the Institution while there being no sanctioned post and, their appointments were totally illegal, against the statutory prescription as provided under the U.P. Basic Education Act, 1972 (hereinafter referred to "the Act, 1972") and the Rules, 1978. This Court, therefore, finding no merit and substance in the writ petition in directing the payment of salary to the petitioners whose claim is based on untenable grounds, on allegedly forged and fabricated documents, dismiss the writ petition.
38. If a person approaches the Court with unclean hands, basing his claim on forged and fabricated documents, such a person is not entitled for any relief. The power of the High Court to be exercised under Article 226 of the Constitution of India is a discretionary power. When a person approaches the High Court under Article 226 of the Constitution of India, either against State or other on allegations of infringement of his rights, such a person's conduct has to be unblamed-worthy. In the present case, the petitioners have approached this Court with unclean hands and their conduct is blamed-worthy, therefore, this Court would refuse to exercise the discretion under Article 226 of the Constitution of India. The Supreme Court in the case of State of Maharashtra Vs. Digamber in paragraph-19 has held as under:-
"19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct."
39. It is well settled that one who comes to the Court, he must come with clean hands. In the present case, the petitioners have approached this Court with unclean hands and, have made every effort to drag the litigation for the last long 21 years. They have wasted very precious and valuable time of the Court. The order-sheet of the case bears the testimony of this fact, which is full of adjournments sought by the counsel for the petitioners. Thus, this Court feels that the petitioners need to be saddled with some costs and, thus, the writ petition is dismissed with cost of Rs.50,000/- (Rupees fifty thousand) to be deposited by the petitioners jointly in the Army Causalities Welfare Fund.
40. Another aspect, which needs deliberation, is that the petitioners have been paid salary and arrears of salary in compliance of the interim order dated 21.02.2005 and, the order passed in the contempt petition. Once the writ petition is dismissed, the interim order gets marged in the final order of dismissal of the writ petition. What would be the effect of dismissal of the writ petition on the benefits drawn by the petitioners on the strength of the interim order dated 21.02.2005 is the question needs to be answered. It is well settled that 'act of Court shall prejudice no one', which is based on latin maxim "actus curiae neminem gravabit". This principle is based on justice and good sense and, is guide for administrative law as held by the Supreme Court in (2012) 3 SCC 522 (State of Gujarat and others Vs. Essar Oil Limited and another).
41. This is also encompassed partly within the doctrine of restitution. This 'actus curiae' principle is founded upon justice and good sense and, is a guide for administration of law. This doctrine is basically founded on the idea that when a decree is reversed, law imposes an obligation on the party who received an unjust benefit of the erroneous decree to restitute the other party for what the other party has lost during the period, the erroneous decree was in operation. Therefore, the Court, while granting restitution, is required to restore the parties as far as possible to their same position as they were in at the time when the Court by its erroneous action displaced them. Pragraphas 60, 61, 62, 63, 64, 65 and 66 of the said judgment, which are relevant, are extracted hereunder:-
60. Subsequently, in Binayak Swain v. Ramesh Chandra Panigrahi [AIR 1966 SC 948] this Court relied on the principles in Lal Bhagwant Singh [AIR 1953 SC 136] and explained the concept of restitution as follows: (Binayak Swain case [AIR 1966 SC 948] , AIR p. 950, para 4) "4. ... The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost."
61. The concept of restitution is virtually a common law principle and it is a remedy against unjust enrichment or unjust benefit. The core of the concept lies in the conscience of the court which prevents a party from retaining money or some benefit derived from another which it has received by way of an erroneous decree of court. Such remedy in English Law is generally different from a remedy in contract or in tort and falls within a third category of common law remedy which is called quasi-contract or restitution.
62. If we analyse the concept of restitution one thing emerges clearly that the obligation to restitute lies on the person or the authority that has received unjust enrichment or unjust benefit (see Halsbury's Laws of England, 4th Edn., Vol. 9, p. 434).
63. If we look at Restatement of the Law of Restitution by American Law Institute (1937 American Law Institute Publishers, St Paul) we get that a person is enriched if he has received a benefit and similarly a person is unjustly enriched if the retention of the benefit would be unjust. Now the question is what constitutes a benefit. A person confers benefit upon another if he gives to the other possession of or some other interest in money, land, chattels, or performs services beneficial to or at the request of the other, satisfies a debt or a duty of the other or in a way adds to the other's security or advantage. He confers a benefit not only where he adds to the property of another but also where he saves the other from expense or loss. Thus the word "benefit" therefore denotes any form of advantage (p. 12 of the Restatement of the Law of Restitution by American Law Institute).
64. Ordinarily in cases of restitution if there is a benefit to one, there is a corresponding loss to other and in such cases, the benefiting party is also under a duty to give to the losing party, the amount by which he has been enriched.
65. We find that a person who has conferred a benefit upon another in compliance with a judgment or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable (p. 302 of the Restatement of the Law of Restitution by American Law Institute).
66. Equity demands that if one party has not been unjustly enriched, no order of recovery can be made against that party. Other situation would be when a party acquires benefits lawfully, which are not conferred by the party claiming restitution, court cannot order restitution."
42. The Supreme Court in the case of (2010) 1 SCC 417 (Amarjeet Singh and others Vs. Devi Ratan and others) has held that no litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always gets merged in the final order to be passed in the case and, if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrong by getting an interim order and, thereafter blame the Court. In paragraphs 17, 18, 19, 20, 21, 22, 23 and 24 of the said judgment, while taking note of the earlier judgments on this point, has held as under:-
"17. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. (Vide Shiv Shankar v. U.P. SRTC [1995 Supp (2) SCC 726 : 1995 SCC (L&S) 1018 : (1995) 30 ATC 317] , GTC Industries Ltd. v. Union of India [(1998) 3 SCC 376 : AIR 1998 SC 1566] and Jaipur Municipal Corpn. v. C.L. Mishra [(2005) 8 SCC 423] .)
18. In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC 620 : AIR 1992 SC 1888] this Court examined the similar issue while placing reliance upon its earlier judgment in Grindlays Bank Ltd. v. ITO [(1980) 2 SCC 191 : 1980 SCC (Tax) 230 : AIR 1980 SC 656] and held that no person can suffer from the act of the court and in case an interim order has been passed and the petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised.
19. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. [(1995) 3 SCC 33] this Court observed that while granting the interim relief, the court in exercise of its discretionary power should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction is also competent to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The court can do so in exercise of its inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. Such a procedure is necessary as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of the court at the behest of the plaintiff.
20. In South Eastern Coalfields Ltd. v. State of M.P. [(2003) 8 SCC 648 : AIR 2003 SC 4482] this Court examined this issue in detail and held that no one shall suffer by an act of the court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.
21. The Court further held: (South Eastern Coalfields case [(2003) 8 SCC 648 : AIR 2003 SC 4482] , SCC pp. 664-65, para 28) "28. ... Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated...."
22. Similarly, in Karnataka Rare Earth v. Deptt. of Mines & Geology [(2004) 2 SCC 783] a similar view has been reiterated by this Court observing that the party which succeeds ultimately is to be placed in the same position in which it would have been if the court would not have passed an interim order.
23. In A.R. Sircar (Dr.) v. State of U.P. [1993 Supp (2) SCC 734 : 1993 SCC (L&S) 896 : (1993) 24 ATC 832] a dispute arose regarding the seniority of direct recruits and promotees on the post of Professor of Medicine in a medical college. The appellant therein faced the selection process for direct appointment along with the respondents who had been working on the said post on ad hoc basis. The appellant was duly selected, however, the private respondents could not succeed. The respondents filed the writ petition before the High Court and precluded the appointment of the appellant pursuant to his selection, by obtaining an interim order and on the other hand they got their ad hoc promotion to the post regularised under the Rules. The appellant could succeed in obtaining the appointment only after dismissal of the writ petition against him after several years of his selection. This Court held that in addition to the relief under the statutory provisions the appellant was entitled in equity to get the seniority over the respondents as they succeeded in precluding his appointment to the post by obtaining an interim order in a case having no merits whatsoever.
24. In Arya Nagar Inter College v. Sree Kumar Tiwary [(1997) 4 SCC 388 : 1997 SCC (L&S) 967 : AIR 1997 SC 3071] the services of the respondent therein were terminated, however, he continued to be in service on the basis of an interim order passed by the High Court in the writ petition filed by him. During the pendency of the writ petition, the rules for regularisation of ad hoc appointees were amended and in pursuance thereof his services also stood regularised. Ultimately, the writ petition filed by the respondent was dismissed. This Court held that his continuity in service and regularisation had to be understood as it was subject to the result of the writ petition. As the writ petition was dismissed the order regularising his services, passed during the pendency of the writ petition, became inoperative."
43. Thus, it is also well settled that the doctrine of restitution is also applicable to interim orders and a litigant would not be allowed to gain by swallowing the benefits yielding out of the interim order. If the petition is dismissed, the injury, if any, caused by the act of the Court is required to be undone and, the gain, which the party would have earned as a result of interim order of the Court would be restored to or conferred on the other party, otherwise it would lead to unjust consequences.
44. In the present case, since the petitioners had drawn the salary on the strength of the interim order dated 21.02.2005 although same was not extended after the writ petition was dismissed for non-prosecution on 25.01.2006, the petitioners are required to refund the salary drawn by them illegally and, therefore, the petitioners are directed to refund the amount of salary with interest @ 6% per annum within a period of two months from today.
45. The BSA is directed to communicate the amount to be recovered from each of the petitioners for making payment by them in compliance of this order. In case of failure to refund the amount by the petitioners, as directed above, the District Magistrate, Ambedkarnagar shall initiate proceedings for recovery as arrears of land revenue.
Order Date :-10th March, 2022 MVS/-