Allahabad High Court
Mritunjay Kumar Nand vs Union Of India And 2 Others on 4 May, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 33 Case :- WRIT - A No. - 18154 of 2021 Petitioner :- Mritunjay Kumar Nand Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Prabhakar Awasthi,Rajesh Kumar Srivastava Counsel for Respondent :- A.S.G.I.,Vinay Kumar Singh Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Prabhakar Awasthi, learned counsel for the petitioner and Mr. Vinay Kumar Singh, learned counsel for the respondent-Union of India.
By means of the present writ petition, the petitioner has made following relief:
"i. Issue a writ, order or direction in the nature of Certiorari, calling for the records of the case and to quash the impugned order dated 26thOctober, 2021 passed by Lieutenant Colonel Officer Officer In-Charge Rtg., respondent no.3 (Annexure No.7 to this writ petition)."
ii. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to forthwith issue appointment letter and confer appointment in favour of of petitioner as Draughtsman in General Reserve Engineer Force, Cenre DIGHI Camp Pune, Maharashthra.
...."
It is the case of the petitioner that pursuant to the Advertisement No. 1/2021 dated 20th February, 2021, the petitioner being possessed with matriculation and intermediate mark-sheets/certificates and three Years diploma in Architectural Assistantship, applied for the post of Draughtsman through offline application form. As per the said advertisement, total 43 posts of draughtsman were advertised in following categories: (i) 19 posts for Unreserved category candidates, (ii) 6 posts for Scheduled Caste category candidates, (iii) 3 posts for Scheduled Tribe Category candidates, (iv) 11 posts for Other Backward Class category candidates and (v) 4 posts for Economic Weaker Section category candidates. The petitioner appeared in the written examination and was declared successful and his name was placed at serial no. 22 of the result. By means of letter dated 20th September, 2021, the petitioner was required to appear in the physical efficiency test and primary medical examination which were scheduled to be held between 25th October, 2021 to 27th October, 2021. Thereafter, the petitioner has received an order dated 26th October, 2021 at his residence at District Azamgarh wherein it has been mentioned that due to overlapping of Intermediate Examination Mark-sheet/certificate and Diploma Degree of the petitioner, he could not be given placement and selection. It is against this order that the present writ petition has been filed.
Challenging the order impugned, learned counsel for the petitioner submits that the order impugned cannot sustain the scrutiny of law, as there would be no bar in obtaining two degrees in one and same academic session. The order impugned is an ex parte order, as before passing the same, neither the petitioner has been afforded opportunity of hearing nor any show-cause notice has been issued to him. Even otherwise, the petitioner would submit that he undertook admission in the academic session 2013-2014 in Intermediate as a private student, whereas he took admission in undergoing diploma course in Architectural Assistantship in academic-session 2012-2015 as a regular student. The bar in obtaining two degrees in a particular academic session would be restricted only to regular candidates and not private students. The impugned order does not provide any law based upon which an alleged overlapping was stood to be not taken for consideration for conferring appointment. On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the order impugned cannot be legally sustained and is liable to be dismissed.
Learned counsel for the respondents has raised maintainability of the present writ petition before the High Court of Judicature at Allahabad on the ground that the advertisement No. 1/2021 dated 20th February, 2021 has been issued by the Government of India, Ministry of Defence, Border Roads Wing, Border Roads Organization, General Reserve Engineer Force of which neither the headquarter nor any office of the same is situated within the territorial jurisdiction of the Allahabad High Court of Judicature at Allahabad. The place wherein all the examinations i.e. written examination, physical efficiency test and primary medical examination were held at GREF Centre,Dighi Camp., Pune-15 (Maharashtra) and from where, the impugned order has been passed (by respondent no.3 i.e.Lieutenant Colonel Officer Officer In-Charge Rtg., GREF Centre, Dighi Camp., Pune), is at Pune, Maharashtra, which is also not within the territorial jurisdiction of Allahabad High Court of Judicature at Allahabad. Only on the basis of the fact that the petitioner has received the impugned order at his residence i.e. Village Khand, Post Luchui (Latghat), Azamgarh, no cause of action will arise within the territorial jurisdiction of this Court. In the facts of the present case, the entire cause of action arose at Pune, Maharashtra. Merely because the petitioner is residing at Azamgarh, Uttar Pradesh, this will not give jurisdiction to this Court. Learned counsel for the respondents, therefore, submits that the present writ petition is not maintainable before this Court, as the same has no territorial jurisdiction to entertain the same.
Learned counsel for the respondents next submits that against the order impugned which has been passed by respondent no.3 i.e.Lieutenant Colonel Officer Officer In-Charge Rtg., GREF Centre, Dighi Camp., Pune, the petitioner has efficacious statutory alternative remedy by approaching the concerned Armed Forces Tribunal either at Mumbai or at Delhi under the Armed Forces Tribunal Act, 2007. Learned counsel for the respondents, therefore, submits that the present writ petition be dismissed on the ground of availability of statutory alternative remedy.
Apart from the above, learned counsel for the respondents submits that the petitioner has made false averment in paragraph-17 by submitting that the petitioner has no other efficacious alternative remedy except to invoke the extraordinary writ jurisdiction before this Court.
When as a matter of fact in the Advertisement No. 1/2021 dated 20th February, 2021 itself pursuant to which the petitioner applied for the post of draughtsman, in sub-clause (j) of Clause-14, which provides for Miscellaneous Information, it has been provided that any legal issues arising out of this Advertisement shall fall within the legal jurisdiction of Hon'ble High Court of Delhi. However, deliberately, the petitioner has enclosed only first page of the said advertisement as Annexure-4 to the writ petition, when as matter of fact the said advertisement contains 31 pages, a copy of which has been placed before this Court by the learned counsel for the respondents which is taken on record. In view of the aforesaid, learned counsel for the petitioner submits that as the petitioner has not approached this Court with clean hands, the present writ petition is liable to be dismissed with exemplary cost, on the ground of fraud and misrepresentation.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition including the copy of the Advertisement No. 1/2021 dated 20th February, 2021, which has been placed before this Court today by the learned counsel for the respondents.
This Court finds substance in the submissions made by the learned counsel for the respondents that this Court has no territorial jurisdiction to entertain the same, as the entire cause of action in the present case arose at Pune. The Full Bench of this Court in the case of Rajendra Kumar Mishra Vs. Union of India reported in 2004 0 Supreme (All) 1841, after following various judgments of the Apex Court has answered that for the reasons given above we are of the opinion that the Chief of Army Staff can only be sued either at Delhi where he is located or at a place where the cause of action, wholly or in part, arises. Relevant paragraphs of the aforesaid Full Bench judgment, which are relevant for deciding the present writ petition, read as follows:
"10. In our opinion the observation in the aforesaid decision "The Chief of Army Staff may be sued in any High Court in the Country" cannot be construed to mean that the Supreme Court has laid down any absolute proposition that it is open to the petitioner to file a writ petition in any High Court in India. Such an absolute proposition as canvassed by the learned Counsel for the petitioner may lead to conflicting decisions because different petitions can be filed in different High Courts by co-accused in the same case and conflicting decisions can be given.
11. It may be noted that the aforesaid observation in the three Judges decision of the Supreme Court in Dinesh Chandra Gahlori's case (supra) is only a laconic observation and it cannot be override Larger Bench decisions of the Supreme Court.
12. In the present case it may be noted that the misconduct was committed at Calcutta and Summary Court Martial was also held at Calcutta. Thus the entire cause of action arose at Calcutta. We, therefore, fail to understand how a writ petition can be entertained at Allahabad High Court where no part of the cause of action had arisen.
13. In our opinion merely because the petitioner is presently residing in Ballia this will not give jurisdiction to this Court in view of the Seven Judges Bench decision of the Supreme Court in Lt. Col. Khajoor Singh Vs. Union of India. AIR 1961 SC 532. In paragraph 13 of the aforesaid decision the Supreme Court observed:
"Now it is clear that the jurisdiction conferred on the High Court by Article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority x against whom a writ is sought being within those territories. It seems to us, therefore, that it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say , in Calcutta, the forum in which he has to seek relief is not the Mumbai High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Article the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article."
.....
42. In the present case no part of the cause of action has arisen in U.P. Hence in our opinion the writ petition is not maintainable in this Court. It is accordingly dismissed. The decision of the Division Bench in Kailash Nath Tiwari Vs. Union of India (Supra) in our opinion does not lay down the correct law and is overruled."
(Emphasis supplied) In the case of Board of Trustees for the Port of Calcutta Vs. Bombay Flour Mills Pvt. Ltd., reported in AIR 1995 SC 577, the Apex Court has affirmed the principle that the place where the whole or part of the cause of action arises, gives jurisdiction to the Court within whose territory such place is situated. Whether the cause of action has arisen within the territory of the particular Court will have to be determined in each case on its own facts in the context of the subject matter of the litigation, and relief claimed.
In the case of Oil and Natural Gas Commission Vs. Uptal Kumar Basu, reported in (1994) 4 SCC 711, it was held by the Apex Court:
"Under Article 226 a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against, whom the direction, order or writ is issued is not within the said territories. The expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus, the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial."
In Union of India Vs. Adani Exports Ltd. And Anr. reported in AIR 2002 SC 126. the Apex Court held that the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the Court to decide a dispute which has, at least in part, arisen within its jurisdiction. Each and every fact pleaded by the party in its application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court's territorial jurisdiction unless those facts, pleaded are such which have a nexus or relevance with the lis that is involved in the case Facts, which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.
Similarly in the case of Rajasthan High Court Advocates Association Vs. Union of India & Ors. reported in AIR 2001 SC 416, the Apex Court held that clauses (1) and (2) of Article of the Constitution provide how territorial jurisdiction shall be exercised by any High Court and one of the test may be as to whether the cause of action partly or fully has arisen within its territorial jurisdiction. While deciding the said case reliance was placed upon the Court's earlier judgment in U.P. Rashtriya Chini Mill Adhikari Parishad Vs. State of U.P. reported in (1995) 4 SCC 738, wherein it had been held that the expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense, cause of action means the circumstances forming, the infraction of the right of the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises the "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises.
In Navinchandra N.. Majithia y. state of Maharashtra and others reported in AIR 2000 SC 2966, the Apex Court while considering the provisions of clause (2) of Article of the Constitution, observed :
"In legal parlance the expression 'cause of action' is generally understood to mean a situation or State of facts that entities a party to maintain an action in a Court or a Tribunal; a group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in Court from another person..........'Cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment..:the meaning attributed to the phrase 'cause of action1 in common legal parlance is existence of those facts which give a party a right to judicial interference on his behalf."
To the submissions made by the learned counsel for the respondents that against the order impugned the petitioner has efficacious statutory alternative remedy by approaching the concerned Armed Forces Tribunal, this Court is of the opinion that in view of the judgment of the Apex Court in the case of L. Chandra Kumar Vs. Union of India and others reported in (1997) 3 SCC 261, specifically after enforcement of Armed Forces Tribunal Act, 2007, the petitioner first should have apportioned the concerned Armed Forces Tribunal against the order impugned.
In Devi Saran Mishra Vs. Union of India and Others, reported in 2010 (3) ADJ 593 (paragraphs 23, 24, 25, 26 and 27), a learned Single Judge of this Court has considered in detail the provisions of the Armed Forces Tribunal Act, 2007 (in short "the Act") in the light of various judicial decisions, and has held that in case, the cause of action involved in a Writ Petition is such as falls within the jurisdiction of the Tribunal after enforcement of the Armed Forces Tribunal Act, 2007, such cause of action has to be adjudicated upon in the first instance by the Tribunal. It is only after the decision of the Tribunal, that the matter would come to the High Court under Article 226/227 of the Constitution of India. The cause of action of the present Writ Petition as noted above, is evidently such as falls within the jurisdiction of the Tribunal after enforcement of the Act. This is evident from the provisions contained in Section 14 read with Section 3(o) of the said Act as well as Section 15 of the said Act, 2007.
In view of the aforesaid, this Court is of the opinion that the present writ petition is liable to be dismissed on the ground of availability of statutory alternative remedy being available to the petitioner.
This Court also agrees with the submissions made by the learned counsel for the respondents that the petitioner has not approached this Court with clean hands by making false averments in paragraph-17 and by enclosing incomplete copy of the advertisement deliberately only in order to obtain a fruitful order from this Court.
For ready reference, paragraph-17 of the present writ petition reads as follows:
"17. That petitioners have no other efficacious alternative speedy remedy except to invoke extraordinary writ jurisdiction before this Hon'ble Court under Article 226 of the Constitution of India, on inter alia amongst other."
This Court also perused the copy of the complete Advertisement No. 1/2021 dated 20th February, 2021 published by the Government of India, Ministry of Defence, Border Roads Wing, Border Roads Organization, General Reserve Engineer Force, which contains 33 pages, has been placed before by this Court today by the learned counsel for the respondents, when as matter of fact the petitioner has enclosed first page of the said advertisement deliberately. After perusal of the same, this Court finds that as per the terms and conditions mentioned in the said advertisement itself, it has been provided that in case any legal issues arises pursuant to the aforesaid advertisement, the same shall be adjudicated upon before the High Court of Delhi.
It would worthwhile to reproduce Clause-14 (j) of the Terms and Conditions mentioned in the aforesaid advertisement, which reads as follows:
"14. Miscellaneous Information .......
(j) Any legal issues arising out of this Advertisement shall fall within the legal jurisdiction of Hon'ble High Court of Delhi.
..."
From the aforesaid it is apparently clear that that the petitioner has misrepresented this Court by means of the present writ petition only in order to obtain fruitful order.
When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.
In the case of Nooruddin Vs. (Dr.) K.L. Anand reported in (1995) 1 SCC 242, the Apex Court observed as under:
"????..Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."
Similarly, in the case of Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., reported in AIR 1997 SC 1236, the Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point??. the interest of justice and public interest coalesce. They are very often one and the same. ?? The Courts have to weight the public interest vis--vis the private interest while exercising the power under Art. 226?? indeed any of their discretionary powers.
(Emphasis added)"
In the case of Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., reported in AIR 1996 SC 2687, the Apex Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Apex Court in the case of K.K. Modi Vs. K.N. Modi & Ors. reported in (1998) 3 SCC 573.
In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., reported in AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, reported in AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., reported in (1999) 1 SCC 271, the Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court.
In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., reported in AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Apex Court had placed reliance upon the judgment in King Vs. General Commissioner, reported in (1917) 1 KB 486, wherein it has been observed as under:-
"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."
In Abdul Rahman Vs. Prasony Bai & Anr., reported in AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., reported in (2004) 7 SCC 166, the Apex Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the merit of the case.
In K.D. Sharma vs. SAIL, reported in (2008) 12 SCC 481, the Apex Court has held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 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. The same law was reiterated in G. Jayashree vs. Bhagwandas S. Patel reported in (2009) 3 SCC 141.
The Apex Court has repeatedly held that filing of false affidavit and concealment of material facts amounts to interference in the administration of justice and as such is criminal contempt of Court. Again the Apex Court in the case of Sunkara Lakshminarasamma & Anr. Versus Sagi Subba Raju & Ors. reported in (2009) 7 SCC 460 held that filing of false affidavit knowingly is a contempt and exemplary cost be imposed.
In view of the aforesaid, this Court finds no good ground to interfere in the present writ petition. This petition is accordingly dismissed. There shall be no order as to costs.
(Manju Rani Chauhan, J.) Order Date :- 04.05.2022 Sushil/-