1. Petitioner Dr. Avinash Mohan Singh claims to have been appointed as Lecturer in the R.P. Degree College, Farrukhabad in the Department of Zoology on 23/1/1984 on probation.
2. In paragraph 3 of the writ petition, it has been stated that he was confirmed on the said post with effect from the date, the U.P. State Universities (Validation of Appointments) Act, 1984 was enforced and letter of confirmation was issued by the President of the Committee of Management on 24/1/2005(Annex.1). The writ petition further records that since subsequently some objection was raised by the Committee of Management about the appointment of the petitioner and similar other four teachers including Archana Singh, his sister, they filed Original Suit No. 302/1987 in which State of Uttar Pradesh, District Inspector of Schools, Account Officer/Finance Controller and Committee of Management were made defendants. Since no written statement was filed on behalf of any of the defendants and the matter was not contested, the 1st Additional Civil Judge, Farrukhabad, by means of judgment and decree dated 21/4/1989, decreed the suit filed by the plaintiffs in toto and declared that the plaintiffs had been validly appointed in the institution and they were entitled to salary from the public exchequer. Despite the said decree from the Civil Court, the plaintiffs, including the present petitioner, were not paid salary. As a matter of fact, the order was passed by the educational authorities of the State of U.P. restraining the payment of salary to such teachers and order for single operation of account in the institution was passed. The Committee of Management of the institution is said to have filed Writ Petition No. 16286/1987 which was decided vide judgment and order dated 21/10/1987 with a direction upon the Deputy Director of Education, Allahabad to decide the representation made by the petitioners therein.
3. In the meantime, Section 31-C was added to The Uttar Pradesh Higher Education Services Commission Act, 1980 (hereinafter called the ''Act, 1980'') and the services of the petitioner is said to have been dispensed with in terms of the aforesaid Act.
4. Against the order so passed, the petitioner approached this Court by means of Writ Petition No. 8224/1992 and also succeeded in obtaining an interim order dated 26/11/1992 which required the Committee of Management to make payment of salary to the petitioner from its own resources. The aforesaid writ petition was dismissed by this Court vide judgment and order dated 16/10/2003.
5. It appears that proceedings were initiated against the petitioner for recovery of money which he had obtained in terms of the interim order of this Court and proceedings for recovery as arrears of land revenue had been initiated. It is at this stage of the proceedings that the petitioner has approached this Court for commanding the respondents not to compel the petitioner to deposit any money received by him as salary qua his services in the department of Zoology, R.P. Degree College, Farrukhabad.
6. Counter affidavit has been filed on behalf of the State pointing out that the petitioner and his sister Archana Singh are none other than the son and daughter of the earlier Principal and had been illegally appointed during his tenure. There exist no vacancy against which petitioner could be offered appointment. No procedure for selection known in law had been followed.
7. In absence of complete facts having been disclosed, the Court cannot examine as to whether the appointment claimed is against any available vacancy against a post covered by Chapter XI of the U.P. State Universities Act, 1973 (hereinafter called the ''Act'') or not.
8. The petitioner must repay the benefits which he had drawn under the interim order of this Court in the earlier writ petition which has finally been dismissed.
9. The fact qua filing the Writ Petition No. 8224/1992 by the present petitioner and having obtained interim order therein which remained in operation for more than 11 years as well as ultimate dismissal of the writ petition on 16/10/2003 have been deliberately suppressed by the present petitioner while filing the present petition.
10. It is, therefore, submitted that the writ petition is totally misconceived and is liable to be dismissed on the sole ground of suppression of material facts.
11. We have considered the rival submissions made by learned Counsel for the parties and perused the record.
12. Despite our specific query to the learned Counsel for the petitioner he could not demonstrate as to whether under which provision of the Act, 1973 or under the Act, 1980 petitioner could claim appointment, and what was the exact procedure qua before offering such appointment. From the judgment and decree of the Writ Court (Annex-2) it can neither be deciphered as to whether any advertisement was published before offering appointment to the petitioner nor as to whether the appointment was in respect of duly created post in the institution.
13. From the records it is further apparent that on the relevant date the petitioner was not possessed of the prescribed minimum qualification and was admittedly the son of the then Principal of the Institution. The Civil Court has proceeded to decide the suit ex-parte after papers were forwarded to the Director for approval. Since the Director failed to pass orders thereon further approving or disapproving the appointment within 60 days which has to be determined, that such appointment has deemed to have been approved, therefore, it has been declared that the petitioner''s appointment was legal and the petitioner''s were entitled to salary.
14. Learned Counsel for the petitioner could not refer to any provisions of the Act, 1973 or Act, 1980 wherein such deeming fiction could have been invoked by the Civil Court. Even otherwise, basic material of facts qua the process of selection having been followed in respect of a vacancy having been available have not at all been examined.
15. It is settled legal proposition of law that unless that statute provides for a deeming clause, the Court should be very slow in accepting such a contention, as laid down by a Constitution Bench of the Allahabad High Court in Rana Pratap Singh v. State of U.P. 1995 (1) CRC 732 . The Court held that had the intention fiction/deeming sanction/refusal, specific in the Act or the Rules. In absence of any statutory provision/rule, it should not be construed as to provide for a fiction in such an eventuality.
16. More so, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature. (Vide
17. In Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96, the Hon''ble Apex Court observed as under:
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe that legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Court.
18. Even if the statute provides for a legal fiction/deeming provision, it must be limited to the purposes indicated by the context and cannot be given a larger effect. (Vide
19. Similar view has been taken by the Hon''ble Apex Court in
20. However, we leave the issue at this stage inasmuch as the legality or otherwise of the judgment and decree passed by the Civil Court is not being questioned before us.
21. In view of the above, what has been noticed above, two things are admitted on record, which are as under:
1.Concealment of material facts namely filing of earlier Writ Petition, i.e. Petition No. 8224/1992 and its dismissal, and
2.That the petitioner had drawn the benefits from the interim order which ultimately merged into final orders.
22. We may clarify that in the rejoinder affidavit filed by the petitioner, the fact of filing Writ Petition No. 8224/1992 has not been disputed and no explanation has been furnished for suppression of such a material information. Since none of the counsel for the parties has placed the judgment and order dated 16/10/2003, passed in the said writ petition before the Court, we are not in a position to know as what was the exact order.
23. So far as concealment of material facts of filing the writ petition is concerned suffice it to mention that 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
24. Similarly, judicial process should not become an instrument of oppression or abuse of a means in the process of the Court to subvert justice for the reason that the interest of justice and public interest coalesce. The Courts have to weigh the public interest vis-�-vis private interest while exercising their discretionary powers. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (Vide
25. In
26. In
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....
27. In
28. Legal maxim "Juri Ex Injuria Non Oritur" means that a right cannot arise out of wrong doing, and it becomes applicable in case like this.
29. The facts stated above also amply depict that the manner in which the petition has been drafted exposes the petitioners to be prosecuted for criminal Contempt. It is a settled proposition of law that a false statement made in the Court or in the pleadings, intentionally to mislead the Court and obtain a favourable order, amounts to criminal contempt, as it tends to impede the administration of justice. A Constitution Bench of the Hon''ble Supreme Court in
Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding, and thus, amount to contempt of court.
30. In
The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice, and so, it is entrusted with the power to commit for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression ''contempt of Court'' may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with.
31. In
32. Similar view has been reiterated by the Apex Court in
33. In
34. In the facts and circumstances of the case, admittedly the petitioner has suppressed the material fact to gain the benefits and he succeeded in his attempt as interim order has been granted in his favour restraining the respondents to make the recovery in pursuance of the recovery certificate issued by the District Collector till further order. We are of the considered opinion that no discretionary jurisdiction can be exercised in favour of such a litigant.
35. 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 his own wrongs by getting 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 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 institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide
36. In
It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the Court.
37. The same view has been taken by the Hon''ble Supreme Court in the case of
38. In
...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. Whenever called upon to adjudicate, the court would act in conjunction with what is real and substantial justice. 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. 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....
39. Similar view has been reiterated in
...When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which 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, then 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 in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost.
40. Thus, it is evident that a litigant cannot take benefit of his own mistake of getting the interim order in a case having no merit.
41. In the instant case, admittedly, the petitioner did not disclose the factum of filing the earlier writ petition and its dismissal and nor the fact that he has derived benefits of the interim order continuously for 11 long years. Dismissal of the writ petition amounts as if it had never been filed, thus petitioner is liable to refund the amount which he has received under the interim order of the Court. As no explanation could be furnished by the learned Counsel for the petitioner as under what circumstances such a material fact has not been disclosed, and what was the occasion for the petitioner to obtain the interim relief in this very petition by misleading the Court, we are of the considered opinion that the conduct of the petitioner has been reprehensible. It is a fit case for initiating contempt criminal proceedings against him. However, considering the fact that this Court is overburdened already, we are not inclined to initiate such proceedings.
42. However, we refuse to exercise our discretionary jurisdiction in favour of such a crafty litigant deprecating and censuring his attempt to get a favourable order by misleading the Court.
43. The writ petition is accordingly dismissed.
