Punjab-Haryana High Court
Gurdeep Singh vs State Of Haryana And Others on 20 November, 2012
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.14864 of 2011
Date of decision: 20th November, 2012
Gurdeep Singh
Petitioner
Versus
State of Haryana and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. Ashok Kumar Khubbar, Advocate for the petitioner.
Mr. Ashok Jindal, Addl. Advocate General, Haryana.
Mr. H.P.S. Ishar, Advocate for respondent No.3.
RAKESH KUMAR GARG, J. (ORAL)
As per the averments made in this petition, the petitioner joined on a temporary post of Clerk at a consolidated salary of ` 1500 per month on 24.09.1997 with respondent No.3. He was also granted an increment on 28.10.1999. It is further averred that services of the petitioner were terminated vide order dated 19.04.2001. Petitioner challenged the said order before Director, Higher Education, who vide his order dated 17.05.2001 set aside the same and ordered that petitioner shall continue to be in service with all consequential benefits.
As per the further averments, services of the petitioner were terminated by the respondent-management vide order dated 12.05.2004. The said order was challenged by the petitioner before the Commissioner, Higher Education, Haryana, who vide order dated 04.10.2004 set aside the termination order dated 12.05.2004 and directed the Respondent-College to take the petitioner back in service with all consequential benefits. It is further Civil Writ Petition No.14864 of 2011 2 case of the petitioner that the Commissioner, Higher Education, Haryana also directed the College to pay the minimum wages as per the Minimum Wages Act from the date of his appointment. It was further directed that in future as and when the post of clerk is to be filled-up, the petitioner will be given preference for employment.
Grievance of the petitioner before this Court is that he is working continuously on the post of Clerk on a consolidated salary of ` 1500 to the full satisfaction of the College and despite the fact that the posts of Clerk are lying vacant with respondent No.3 and further the Government has directed them to fill up the posts of non-teaching staff, the respondents have failed to take any action to constitute a Selection Committee for the said purpose and thus, a direction be given to the respondents to constitute such a Selection Committee for consideration of his case for appointment on a regular sanctioned vacant post of Clerk.
In the written statement filed on behalf of respondents No.1 and 2, it has been stated that the petitioner is an employee of a privately managed College on self-finance basis and respondents No.1 and 2 have no direct relationship with them. It is further stated that the State Government only pays grant-in-aid to the management on the salary of approved staff appointed against the posts covered under the grant-in-aid policy. It has been further stated that the post of Clerk, if any, which had remained vacant for more than two years, stands abolished as per the Memo dated 01.05.1992 in all the aided Colleges. Hence the vacancy, if any, is to be filled up by the respondent-management as per the procedure prescribed under the Rules.
In the written statement filed on behalf of respondent No.3, it has been stated that the Committee can fill up the posts which are lying Civil Writ Petition No.14864 of 2011 3 vacant for a period less than two years, and for the posts lying vacant for more than two years prior approval of the Finance Department is required. A further stand has been taken that the respondent-management has not advertised any post of Clerk and the respondent-management had sent the case of the petitioner for consideration to respondent No.2. However, respondent No.2 has directed respondent No.3 to take necessary action in accordance with the Haryana Affiliated Colleges (Security of Service) Rules, 2006 (hereinafter referred to as, 'the 2006 Rules'). Respondent No.3 has not been granted approval by the Finance Department to fill up the post of Clerk.
A further stand has been taken that the petitioner can apply and participate in the selection process in accordance with the 2006 Rules, and so far as the appointment is concerned that falls within the domain of the Selection Committee.
At this stage, from the order dated 04.10.2004 of the Commissioner, Higher Education attached as Annexure P-1 with this writ petition it has transpired that the petitioner had filed CWP No.12830 of 2003 before this Court seeking directions to the respondents to regularize his services and also to grant him regular pay-scale; whereas in para No.16 of the instant writ petition a specific assertion has been made that the petitioner has not filed any such or similar writ petition or any other case concerning the matter either in this Court or in Hon'ble the Supreme Court.
This Court has called for the record of CWP No.12830 of 2003, which is still pending and perused the same. In the said writ petition, on these very facts, the petitioner has claimed the pay-scale equal to the pay- scale being given to the other regular Clerks working with the respondent- management by making the following prayers:
Civil Writ Petition No.14864 of 2011 4
"a writ in the nature of certiorari be issued to quash the action of the respondents by which the petitioner has been deprived from regular scales meant for the post; a further writ in the nature of mandamus be issued to grant the regular scale from the date the petitioner has been appointed and the petitioner be granted all arrears with market rate of interest;
a further writ in the nature of certiorari be issued to quash the conditions imposed in the appointment letter P-2 that the petitioner will be given fixed salary and the same may be declared contrary to the Rules and various decision of the Hon'ble Supreme Court;"
Not only this, from a perusal of CWP No.12830 of 2003, it has further transpired that the petitioner had earlier issued a legal notice dated 09.04.2002 to the respondent No.3 asking for regularizing his services and to pay him the regular pay-scale as paid to the other regular employees and thereafter, the petitioner filed CWP No.7180 of 2002, which was disposed of vide order dated 08.05.2002. The said order reads thus:
"Present: Mr. Ashok Khubbar, Advocate
for the petitioner.
We have heard the learned counsel for the petitioner and with his assistance have gone through the record of the case.
We dispose of this petition by giving directions to the respondent-authorities to decide the legal notice dated 09.04.2002 Annexure P-10 within six months from the receipt of copy of this order along with certified copy of this petition, which shall be supplied by the petitioner.
Copy dasti.
Sd/- R.L. Anand, Judge Sd/- Amar Dutt, Judge"
Even the respondents had also taken decision on the Legal Notice dated 09.04.2002 and petitioner was informed vide letter dated 12.12.2002. The Legal Notice dated 09.04.2002; Order dated 08.05.2002 Civil Writ Petition No.14864 of 2011 5 passed in CWP No.7180 of 2002 and Decision of respondents on the Notice dated 09.04.2002 communicated to petitioner vide letter dated 12.12.2002 are attached with CWP No.12830 of 2003 as Annexures P-8, P-9 and P-10 respectively. But all the aforesaid facts regarding filing of CWP No.7180 of 2002 and pendency of CWP No.12830 of 2003 are not incorporated in the instant writ petition.
From the aforesaid facts, it is clearly established that the petitioner has concealed material facts from the knowledge of this Court and has misled this Court by suppressing the material facts of filing CWP No.7180 of 2002 and 12830 of 2003 seeking, in pith and substance, the same relief.
At this stage, it is necessary to refer to the observations made by Hon'ble the Apex Court in 'Dalip Singh v. State of Uttar Pradesh and others', (2010) 2 Supreme Court Cases 114, in which, it was held as under:
"A party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. A person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution.
Jurisdiction under Articles 32 and 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim."Civil Writ Petition No.14864 of 2011 6
A further reference be made to the judgment of Hon'ble the Supreme Court in 'Prestige Lights Ltd. V. SBI', (2007) 8 Supreme Court Cases 449, wherein it was observed that:
"In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
It is also appropriate to refer to the observations of Hon'ble the Supreme Court made in Salem Advocate Bar Association v. Union of India, 2005(3) R.C.R. (Civil) 530, which reads as follows:-
"Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may Civil Writ Petition No.14864 of 2011 7 direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer's fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow."
Thus, it has been noticed in the aforesaid judgment that the costs are imposed so that the same:
(a) should act as a deterrent to vexatious, frivolous and speculative litigations or defences and the spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence.
(b) costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court.
Hon'ble the Supreme Court in the case of Vinod Seth v. Devinder Bajaj & Another, 2010(3) R.C.R. (Civil) 813, observed as under:
"27. The lack of appropriate provisions relating to costs has resulted in a steady increase in malicious, vexatious, false, frivolous and speculative suits, apart from rendering Section 89 of the Code ineffective. Any attempt to reduce the pendency or encourage alternative dispute resolution processes or to streaming the civil justice system will fail in the absence of appropriate provisions relating to costs. There is therefore an urgent need for the legislature and the Law Commission of India to re-visit the provisions relating to costs and Civil Writ Petition No.14864 of 2011 8 compensatory costs contained in Section 35 and 35A of the Code."
The Hon'ble Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal and others, 2010(1) RCR (Civil) 842, has held that the Court should also ensure that the petitions filed for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.
A Division Bench of this Court in CWP No.18346 of 2005 decided on 20.5.2009 dismissed a review petition and imposed costs of `1,00,000 while observing that no one has the right to waste Court time.
In view of the aforesaid law laid down by Hon'ble the Supreme Court and the facts as mentioned, it is not necessary for this Court to look into the grievance of the petitioner at all and in fact, the petition is liable to be dismissed at the threshold.
Thus, this petition is dismissed with costs, which are assessed at ` 1.00 lakh. The petitioner is directed to deposit the amount of costs with the Secretary, High Court Legal Service Committee within one month from today.
(RAKESH KUMAR GARG) JUDGE November 20, 2012 rps