Anil Kumar Verma vs U.P. State Industrial ...

Hon'ble Arvind Kumar Mishra-I, J.

(Delivered by Hon. Arun Tandon, J.) This is a petition under Article 226 of the Constitution of India for the issuance of a writ in the nature of quo warranto against Arun Kumar Mishra, respondent no. 3, at present holding the office of Chief Engineer (Project) in the U.P. State Industrial Development Corporation (hereinafter referred to as UPSIDC). There are other prayers also i.e. for issuance of directions in the nature of prohibition restraining the respondent no. 3 from continuing on the post of Chief Engineer and Architect-cum-Town Planner, in the nature of a writ of mandamus commanding the respondents to recover the entire salary and perks received by the respondent no. 3 since the date of his appointment and finally a writ of certiorari calling for the records and quashing the appointment of respondent no. 3 on the post of Assistant Engineer (Civil) and other promotional and consequential appointments in UPSIDC.

The petition has been filed by one Anil Kumar Verma who claims to be a qualified graduate Architect from I.I.T., Roorkee having a diploma in Town Planning from the University of Szczecin (Poland) and a member of the Council for the Architecture which is a statutory body under the Architects Act, 1972. The petitioner claims to be working with UPSIDC, since 1986. He has been given his due promotion from time to time and at present is a Class-I officer in UPSIDC.

The petition was presented before the Court on 27.01.2014 and came up before the Bench on 29.01.2014. The progress of the writ petition before the Court has a checkered history. It is necessary for this Court to reproduce the relevant facts in that regard, before adverting to the merits of the petition.

The manner in which the petition has progressed has necessarily to be stated because of the recluse application and the transfer petition as filed on behalf of respondent no. 3 and for appropriately examining as to whether this Bench is justified in hearing this petition or not.

How right the Apex Court was when it recorded in para 147 of its judgment dated 06.05.2014 made in Writ Petition (Criminal) No. 57 of 2014 (Subrata Roy Sahara vs. Union of India and others), as below :

"The number of similar litigants, as the parties in this group of cases, is on the increase. They derive their strength from the abuse of legal process. Counsels are available, if the litigant is willing to pay their fee."

How accurate the Apex Court was in para 145 (1) of the same judgment in deprecating the practice of seeking recluse from the hearing of the case by calculated psychological offensives and mind games adopted by Senior Advocates and thereafter to command as follows :

"We deprecate such tactics and commend a similar approach to other Courts, when they experience such behaviour."

A Division Bench of this Court after considering the averments made in the writ petition qua the High School mark-sheet and certificate and other academic documents of Respondent no.3 being not genuine vide order dated 29.01.2014 required their production from the Standing Counsel after summoning the same from the U. P. Board for High School and Intermediate (hereinafter referred as the 'U.P. Board'). Records from the Awadh University, Faizabad (hereinafter referred to as 'University') qua respondent no. 3 were also called for.

After examining the original records of the U.P. Board as produced, the Bench on 05.02.2014 directed that notice of the petition be issued to respondent no. 3 with a further direction upon UPSIDC to produce the entire service records of respondent no.3. Personal affidavit from the Secretary of the U. P. Board was also called for.

Arun Kumar Mishra (respondent no. 3) made an application no. 87731 of 2014 supported by his affidavit, tendering his apology for filing of the application dated 12.02.2014. In paragraph 2 and 3 of the affidavit it has been stated that the application, which was filed before the Hon'ble The Chief Justice on 12.02.2012 for nomination of the present petition to some other Bench, was an ill advised application and that the defendant tenders an unqualified and unconditional apology for having filed the above mentioned application.

This application was placed before the Court after Shri Shanti Bhushan, Senior Advocate had been engaged as counsel by Respondent no. 3.

On the next date i.e. 03.03.2014 this Court considered the affidavit filed by the Registrar of the University and the original records produced by him. The Court also noticed the presence of Shri Shanti Bhushan who after examining the records stated that the same is the position with regards to all other candidates whose applications for enrolment have been recorded in the register. The Court also considered the application of Arun Kumar Mishra for summoning of the records. The Court required the Registrar of the University to file an affidavit. The Court fixed 10.03.2014 as the date for examining the records in the presence of the counsel for the parties.

On 10.03.2014, Shri Shanti Bhushan, Senior Advocate stated that he wanted to make certain oral statement of facts and would request that one of us (Arun Tandon, J.) may recluse from the case. He also filed an application to that effect and stated that an affidavit in support thereof shall be filed by tomorrow. This application was directed to be considered on 13.03.2014.

In order to keep the record straight, it may be recorded that a personal affidavit was filed by Shri Shanti Bhushan in support of recluse application on 11.03.2014.

On 13.03.2014 the Court was informed that against the order of the High Court dated 03.03.2014, Special Leave to Appeal No. 7299 of 2014 was filed by the respondent no.3 before the Apex Court, which was decided vide order dated 10.03.2014. The Apex Court in the last paragraph of its order dated 10.03.2014 directed as follows :

"We make it clear that even the High Court shall be free and indeed justified in preventing any unnecessary delay or dilatory tactics by curbing any such attempt suitably, should it be of the view that any one of the parties is trying to delay the proceedings unnecessarily."

The Bench after noticing the above directions of the Apex Court rejected the request made by Shri Shanti Bhushan for the matter being listed after 25.03.2014 and further recorded that the recluse application would be considered at the time of hearing. The matter was directed to be put up on 20.03.2014.

On 20.03.2014 a copy of the order of the Apex Court dated 14.03.2014 made in Special Leave to Appeal (Civil) CC 5162 of 2014 was produced before the Bench. This Special Leave to Appeal was filed against the order of this Court dated 13.03.2014. The Special Leave to Appeal was dismissed with an observation that the petitioner before the Apex Court i.e. Arun Kumar Mishra, if so advised, may move the Hon'ble The Chief Justice on administrative side and for the purpose 10 days time was granted.

This Court accordingly adjourned the case to 24.03.2014 when the period of 10 days from the date of the order of the Apex Court would expire.

An application was made before the Hon'ble The Chief Justice signed and presented by Shri Shanti Bhushan, Senior Advocate on behalf of Arun Kumar Mishra, Respondent No. 3 for transfer of the writ proceedings to another Bench. This application came to be rejected by a detailed order dated 27.03.2014 by the Hon'ble The Chief Justice. It would be appropriate to reproduce the entire order passed on Application No. 111257 of 2014 filed by Shri Shanti Bhushan which is quoted herein below :

"A request has been made in the application signed and presented by Shri Shanti Bhushan, learned Senior Counsel, appearing on behalf of the third respondent in the above noted petition, for transfer of the writ petition which is being heard by a Division Bench of this Court consisting of Hon'ble Mr. Justice Arun Tandon and Hon'ble Mr. Justice Arvind Kumar Mishra-I to another Bench. The application has been presented on the administrative side. In terms of the request which was made by the learned Senior Counsel that the application may be set down for hearing, an opportunity has been granted to the learned Senior Counsel for being heard in support of the application as well as to all other learned counsel appearing on behalf of the parties to the proceedings.

2. In the writ proceedings which are pending before the Division Bench, the appointment of the third respondent to the Uttar Pradesh State Industrial Development Corporation Ltd. (UPSIDC) has been called into question. On 29 January 2014, the Division Bench noted that the High School mark sheet together with a copy of the High School examination certificate was produced. Learned Standing Counsel was directed to produce the original cross list of the High School examination of 1976 with reference to the roll number, while the counsel for Awadh University was directed to ensure the production of the cross list of the B. Tech examination for 1983. The hearing was posted to 5 February 2014.

3. The proceedings came up before the Division Bench on 5 February 2014 when the Court noted certain discrepancies between the cross list of the High School examination and the mark sheet. The petitioner was permitted to serve the third respondent by 7 February 2014 and the hearing was directed to stand over to 10 February 2014. On 13 February 2014, appearance was entered on behalf of the third respondent by Mr. Shishir Prakash, Advocate who was to appear with Mr. R.B. Singhal, Senior Advocate. On 12 February 2014, an application for transfer of the proceedings filed on behalf of the third respondent on the administrative side was placed before me. The following order of rejection was passed on 12 February 2014:

"The application is thoroughly improper and lacking in substance. Such uncalled for aspersions against the Bench must be deprecated.

Rejected.

Sd/-

(Chief Justice) 12.2.2014"

4. It is not in dispute that the third respondent then engaged a second set of Advocates. The Advocates withdrew their Vakalatnama when the present set of Advocates was engaged. The third respondent filed a short counter affidavit upon being served and specifically requested the Division Bench to summon certain additional records. The relevant part of the short counter affidavit of the third respondent reads as follows:

"That in the facts and circumstances of the case in the interest of justice Hon'ble Court may be pleased to direct High School and Intermediate Board to produce order directing for enquiry relating to examinee bearing roll number 511719 of High School examination 1976, copy of the letter-patrank : go-3-rkc/932 dated 30.07.1976, enquiry report submitted by the enquiry committee and order of the correction dated 25.8.1976 by letter go (2)1128 before this Hon'ble Court and the District Inspector of Schools, Kanpur Nagar may also be directed to seize relevant record such as class 9th examination result of 1975 of Sri Gandhi Vidya Peeth Inter College, Ghatampur, Kanpur, the relevant scholar register, transfer certificate form book and the register maintained for relevant information relating to the students from Sri Gandhi Vidya Peeth Inter College, Ghatampur, Kanpur and produce the same in sealed cover before this Hon'ble Court."

5. This request of the third respondent assumes significance because the grievance of the third respondent, on basis of which a transfer application is sought to be pressed, is that the Division Bench has undertaken what the third respondent regards is an intrusive scrutiny in regard to his educational qualifications and service records. The application filed by the third respondent was allowed in part by the Division Bench by an order dated 3 March 2014 with the following observations:

"Two applications have been filed on behalf of Arun Kumar Mishra. One along with short counter affidavit and the other seeking impleadment. So far as the application filed along with short counter affidavit is concerned, we at this stage deem it appropriate to direct the Board of High School and Intermediate through its Secretary to ensure production of letter Patrank: go-030rkc/932 dated 30.07.1976, enquiry report submitted by the enquiry committee and the order of correction dated 25.08.1976 by letter go-030 (3) 1128 qua the candidate with Roll No.511719 of High School Examination 1976.

So far as the impleadment application is concerned, we at this stage do not find it necessary to implead either Kamla Nehru Institute of Technology, Sultanpur or Gandhi Vidhyapeeth Inter College. However since Kamla Nehru Institute of Technology, Sultanpur as on date is an autonomous college of the U.P. Technical University, Lucknow and was earlier an autonomous college to Dr. Ram Manohar Lohia Awadh University, Faizabad, we direct the Vice Chancellors of both Universities to ensure that all original records pertaining to admission of Arun Kumar Mishra in B. Tech. degree course at Kamla Nehru Institute of Technology, Sultanpur, tabulation sheet of each year of examination along with other certificates which may have been issued by the college are produced before this Court on 10.03.2014 in original."

6. Against the order of the Division Bench dated 3 March 2014, a Special Leave Petition was filed before the Supreme Court. While disposing of the Special Leave Petition, the Supreme Court, in its order dated 10 March 2014, specifically held that the summoning of the additional record which was considered relevant was wholly innocuous and as harmless as was the summoning of the record of the two Universities. The Supreme Court observed as follows:

"The High Court has no doubt noticed the application filed by the petitioner but given no reasons why the record sought to be summoned thereby, is not relevant to the question that falls for determination before it. Be that as it may summoning of some additional record considered relevant is wholly innocuous and as harmless as summoning of the record from the two Universities. We therefore see no reason why the entire record, referred to in the prayer made in the application, mentioned above, should not also be summoned from those in custody thereof, for perusal by the High Court. We accordingly direct summoning of the said record also, no matter without issuing any notice to the respondents in this petition, for we are of the opinion that any such notice will result in the unnecessary delay and procrastination."

The Supreme Court also observed that the High Court was justified in curbing dilatory tactics that may be adopted by any party to the proceedings and in preventing unnecessary delay:

"We make it clear that even the High Court shall be free and indeed justified in preventing any unnecessary delay or dilatory tactics by curbing any such attempt suitably, should it be of the view that any one of the parties is trying to delay the proceedings unnecessarily."

7. On 10 March 2014, the third respondent through learned Senior Counsel made a request that the presiding Judge of the Division Bench should recuse himself from the case and stated that an affidavit in support would be filed by the next day. An affidavit was filed in support of the application for recusal of the presiding Judge of the Division Bench which, the Division Bench directed, would be considered on the date of hearing which was posted to 20 March 2014. On 10 March 2014, the tabulation registers produced by the University were examined by the Court in the presence of counsel for the third respondent. On 13 March 2014, a Special Leave Petition was filed before the Supreme Court to challenge the order of the Division Bench dated 10 March 2014. In the order of the Division Bench a further direction was issued by the Court for the production of records. On 14 March 2014, when the Special Leave Petition against the order of the Division Bench dated 13 March 2014 came up, the Supreme Court held that there was no reason to interfere and the Special Leave Petition was accordingly dismissed. The Supreme Court declined to accede to the request of the third respondent and issue a direction for the transfer of the matter from the Bench which was currently hearing the proceedings before this Court. However, the third respondent was permitted to move an application on the administrative side before the Chief Justice of this Court for appropriate orders on the subject. The Supreme Court observed thus:

"...The petitioner may if so advised move the Hon''ble Chief Justice of the High Court of Judicature at Allahabad on the administrative side for appropriate orders on the subject in which event the Hon'ble Chief Justice shall be free to examine whether there is any real apprehension of miscarriage of justice or the grievance is only an attempt at forum shopping."

8. The Supreme Court observed that if an application is moved before the Chief Justice of the High Court and the fact of the filing of such an application is brought to the notice of the Division Bench currently hearing the case, the learned Judges may stay their hands pending final disposal of the application on the administrative side. The Special Leave Petition was, accordingly, disposed of. The order passed by the Supreme Court was duly taken note of by the Division Bench on 20 March 2014 and the proceedings were directed to be listed for 25 March 2014. Meantime, the Registrar General was directed to place the application, if any, made by the third respondent before the Chief Justice by 24 March 2014.

9. Learned Senior Counsel appearing on behalf of the third respondent submits that he has a reasonable apprehension on the basis of the orders which have been passed and hence proceedings should be transferred from the Division Bench which is currently hearing the case to any other Bench of this Court. Learned Senior Counsel submitted that the counsel appearing on behalf of the petitioner may make it clear as to whether he is opposing the application for transfer and if he is opposing the application, that in itself is a circumstance which would cast doubt on the fairness of the proceedings before the Division Bench. Learned Senior Counsel further submitted that the orders which have been passed by the Division Bench create a reasonable apprehension in regard to the fairness of the proceedings since the Judges have taken upon themselves the role of an investigating agency, calling for the records pertaining to the third respondent from the Board of High School and Intermediate Education, the University and the service records. Learned Senior Counsel submitted that there was no reason or justification for the Division Bench to (i) entertain a writ petition seeking a writ of quo warranto against the appointment of the third respondent in the UPSIDC which has been made in 1986; (ii) make a reference to the cross list of the Board of High School and Intermediate Education in the order dated 29 January 2014; (iii) overlook in the order dated 5 February 2014 that the overwriting in the name of the third respondent is on the letter "jk" and not "uk"; (iv) directing that the application for recusal would be considered on 13 March 2014 when the writ petition was to come up for hearing; (v) directing the personal presence of the Vice Chancellor in the event the records were not produced before the Court.

10. In assessing whether a case for transfer of the proceedings has been made out, it would, at the outset, be appropriate to advert to the locus classicus on the subject which is a judgment of Hon'ble Mr. Justice M. Hidayatullah (as the learned Chief Justice then was) in Gurcharan Das Chadha Vs. State of Rajasthan:

"The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension."

11.The true test to be applied is whether the litigant entertains an apprehension that can be regarded by the Court as being reasonable. The state of mind of the litigant who entertains the apprehension is relevant but that is not dispositive. The apprehension above all must appear to the Court to be a reasonable apprehension. This, in my view, is of the utmost importance and is of the essence. Whether a case should be transferred from a Bench which is hearing it is not a matter of the subjective assessment of a litigant. If it were to be so, it would be all too easy for a litigant to escape from justice by merely casting an aspersion on a Judge hearing the case. The test can never be : 'why should the case not be transferred when there are so many other judges of the Court to whom the case can be assigned'. Justice undoubtedly has to be done and must be seen to be done. But equally, a litigant cannot have the choice of the judge who should hear a case, or avoid a court which is conducting a searching analysis. Judges who hear cases may follow various paths in the conduct of the proceedings but all of them ultimately are designed to ensure that the truth emerges before the Court. A litigant cannot be heard to say that a Judge who is pursuing a line of enquiry to unravel the truth should recuse herself. The pursuit of justice cannot be made a ground for avoiding a Court. If this were to be permitted, justice and the institutional credibility of Courts of justice would be in grave peril.

12.These sentiments have been placed, in no uncertain terms, in the judgment of the Supreme Court in Jawant Singh Vs. Virender Singh thus:

"It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders...."

In a subsequent decision in Chetak Construction Ltd. Vs. Om Prakash & Ors., the Supreme Court while adverting to these observations held thus:

"Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to "terrorize" or "intimidate" Judges with a view to "secure" orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go "forum-shopping". A litigant cannot be permitted "choice" of the "forum" and every attempt at "forum-shopping" must be crushed with a heavy hand."

In R.K. Anand Vs. Registrar, Delhi High Court, the Supreme Court made certain observations which, though in the context of a recusal, are of significance:

"In the order the Judge concerned further observed:

"The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the Constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office.

The above passage, in our view, correctly sums up what should be the court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an "inconvenient" Judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.

We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a Judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the Judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the Judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences."

13. The third respondent had filed an application on the administrative side, seeking transfer of the proceedings from the Division Bench which is hearing the case, on an earlier occasion, as noted above. That application was rejected by me on the administrative side by an order dated 12 February 2014. Mr. Shanti Bhushan, learned Senior Counsel has, in fact, fairly stated that the order of rejection of that application was correctly passed. I find no reason or justification to allow the present application for transfer. The orders passed by the Division Bench would indicate that proceedings have been conducted in a transparent manner. Significantly, it was the Third Respondent who in his counter affidavit sought that certain records including of the Board of High School & Intermediate Education should be summoned. This was allowed in part on 3 March 2014. The Supreme Court allowed the summoning of the entire record on 10 March 2014. The Third Respondent cannot have a reasonable apprehension on the summoning and examination of records by the Division Bench. Moreover, the Supreme Court in the order dated 10 March 2014 has also emphasised that the High Court would be justified in preventing unnecessary delay or dilatory tactics by curbing any such attempt suitably. Much of the effort of Learned Senior Counsel is on the correctness of the orders. This is not an appeal. The ambit of the application is whether there is a reasonable apprehension on the basis of which a transfer is sought. There is none. In my view, Judges of the Court are entitled to follow a line of enquiry dispassionately and objectively with a view to reaching the truth of a matter. That may not suit a litigant but that is no ground for transferring the proceedings. The third respondent is making an effort to avoid a Court which is hearing the case. Interim orders of the Court may pose uncomfortable questions to litigants but that is no ground for the Chief Justice to exercise the administrative power to transfer the proceedings. The apprehension which has been expressed in the present case is clearly not reasonable, as explained in the law laid down by the Supreme Court.

14.For these reasons, there is no merit in the application moved on the administrative side for transfer of the above petition to another Bench. The application shall, accordingly, stand rejected.

15.A copy of the order shall be supplied to the parties and be uploaded on the website of the Court.

CHIEF JUSTICE 27.03.2014"

The hearing of the petition, therefore, continued before this Bench.

On 02.04.2014 itself the Court indicated as to how it shall proceed in the matter. It was specifically recorded that after examination of the records is over, the Court shall proceed to hear the recluse application first.

There was a change of roster under orders of the Hon'ble The Chief Justice w.e.f. 07.04.2014. We vide order dated 02.04.2014 directed the Registry to place the records of this petition before the Hon'ble The Chief Justice so as to examine as to whether this Bench should continue with the hearing of the matter or not. The Hon'ble The Chief Justice passed an order on 09.04.2014 to the effect that the petition shall be continued to be heard by the same Bench. Order of the Hon'ble The Chief reads as follows :

"Since the matter was partly heard by the Bench of Hon'ble Justice Arun Tandon and Hon'ble Justice A.K.Mishra-I, lay this matter before him."

On 07.04.2014 an application for withdrawal of the recluse application was filed on behalf of respondent no. 3 but after passing of the order dated 09.04.2014 by the Hon'ble The Chief Justice, Shri Shanti Bhushan, Senior Advocate during the hearing of this matter informed the Court that he shall not press his withdrawal application.

Respondent no. 3 approached the Apex Court against various orders passed from time to time by us as is detailed herein below.

(a) Against the order passed by the Division Bench dated 20.03.2014, Arun Kumar Mishra filed Special Leave to Appeal No. 8188 of 2014 which was dismissed as withdrawn.

(b) Against the order of the Division Bench dated 31.03.2014, Special Leave to Appeal (Civil) CC No. 5756 of 2014 was filed before the Apex Court which was also dismissed as withdrawn on 01.04.2014.

(c) S.L.P. No. 11363-11366 of 2014 was filed against the order of the Division Bench dated 15.04.2014, dated 16.04.2014 and dated 17.04.2014 as also against the order of the Hon'ble The Chief Justice dated 09.04.2014. In this Special Leave Petition it was further mentioned that Arun Kumar Mishra had filed Writ Petition No. 351 of 2014 before the Apex Court against the order of the Hon'ble The Chief Justice of the Allahabad High Court dated 09.04.2014. S.L.P. No.11363-11366 of 2014 as well as Civil Misc. Writ Petition No. 351 of 2014 were got dismissed as withdrawn on 07.05.2014.

A Transfer Petition (Civil) No. 792 of 2014 was filed by Arun Kumar Mishra before the Apex Court for transfer of the present petition from Allahabad High Court to some other High Court. This petition was also got dismissed as not pressed on 23.06.2014.

S.L.Ps. No. 13494-95 of 2014 were filed by Arun Kumar Mishra against the order dated 08.05.2014 and dated 14.05.2014 passed by the Division Bench. This Special Leave Petition was dismissed on merits by the Apex Court vide order dated 01.07.2014.

It may be recorded that on 27.04.2014 another set of lawyers put in appearance on behalf of Arun Kumar Mishra namely Shri Rahul Agrawal, Advocate with Shri H.N.Singh and Shri Shashi Nandan as Senior Advocates.

On 30.04.2014, after the examination of the records was over in the presence of the counsel for the parties, the Court requested Shri Shashi Nandan, Senior Advocate, Shri H.N.Singh, Senior Advocate and Shri Rahul Agrawal, Advocate who alone were present on behalf respondent no. 3 to address the Court on the recluse application.

All the three counsels specifically refused to press the recuse application and it was stated that none of them will make any submission in support of the recluse application. They informed that Arun Kumar Mishra has already filed an affidavit dated 24.04.2014 for the recusal application being dismissed as withdrawn. In paragraph 3 and 4 of the said affidavit it has been stated as follows :

"3. That the deponent (respondent no. 3) does not wish to press the aforesaid application. It may be dismissed/rejected as withdrawn/not pressed.

4.That the deponent further submits that the deponent (respondent no. 3) had no intention or desire to lower the majesty of this Hon'ble Court or otherwise cast aspersions on the conduct of its proceedings. In case, any such impression on the part of the deponent has been inadvertently conveyed, the deponent expresses his regret and prays that this Hon'ble Court may be pleased to accept the unconditional apology being tendered by the deponent (respondent no. 3). The deponent has always had the highest regard for this Hon'ble Court and would seek and strive to uphold the dignity and majesty of this Hon'ble Court."

On 03.07.2014 when hearing in the matter was nearing its end, Shri Manish Goyal, counsel for the petitioner informed the Court that Arun Kumar Mishra in his affidavit filed before the Apex Court in Transfer Petition No. 792 of 2014 had stated that he had to not press his recusal application as his counsels at Allahabad were not ready to press the same.

In all fairness the Court again required all the three counsels who were present on behalf of Arun Kumar Mishra, Respondent No. 3 namely Shri Shashi Nandan, Senior Advocate, Shri H.N.Singh, Senior Advocate and Shri Rahul Agrawal, Advocate to inform the Court as to whether any of them would like to address the Court on the recusal application. All the three counsels firmly refused to make submissions on the recusal application and stated that their client has already filed an affidavit before the Court tendering his apology for making of the recusal application.

This Court after taking note of the fact that Shri Shanti Bhushan was not present in the court and that other counsels present on behalf of Arun Kumar Mishra have refused to address the Court on the recusal application, had no other option but to close the hearing of the recusal application.

From what has been recorded above, it is apparent that respondent no. 3 through his counsels who were always willing to act, made five attempts, two before the Hon'ble The Chief Justice and three before the Apex Court, for the matter being not heard by this Bench. The first attempt was the application dated 12.02.2014 which was rejected by the Hon'ble The Chief Justice vide order dated 12.02.2014. The second attempt was the application made by Shri Shanti Bhushan, Senior Advocate before the Hon'ble the Chief Justice being Application No. 111257 of 2014 which was rejected by means of a reasoned order dated 27.03.2014. The third and fourth being the Writ Petition No. 351 of 2014 and the Special Leave Petition No. 11363-11366 of 2014 filed against the order of the Hon'ble The Chief Justice dated 09.04.2014 which were got dismissed as withdrawn as per the order of the Apex Court dated 07.05.2014 and last fifth being the Transfer Petition (Civil) No. 792 of 2014 filed by Arun Kumar Mishra which has also got dismissed as withdrawn as per the order of the Apex Court dated 07.05.2014.

What is worst is that the Senior Advocate who had taken the personal responsibility of filing an affidavit in support of recusal application did not even appear before the Court when the recusal application came up for hearing.

The recusal application as filed by the Senior Advocate mentioned two grounds, for one of us (Arun Tandon, J.) to not to hear the petition, namely :

(a) rumours in the corridors.

(b) the manner in which the Court is proceeding to hear the matter.

But in the personal affidavit which was filed by the Senior Advocate in support of the reclusal application, he practically withdrew ground no. 1 by stating in para 3 as follows :

"That some of the reasons for the undersigned coming to this conclusion are mentioned in the following paragraphs, even disregarding the corridor rumours, which though pretty serious have not been substantiated to the satisfaction of the undersigned."

He tried to justify the recusal application only with reference to the second ground namely the manner in which the Court was proceeding in the matter.

He did not have the courage to press the application before the Court and conveniently avoided attending the Court proceedings after sometime.

So far as the merits of the 2nd ground stated by the Senior Advocate in his affidavit namely, the Bench has undertaken an inclusive scrutiny in regard to educational qualification and service records of respondent no. 3 is concerned, suffice is to record that the same has been dealt with by the Hon'ble The Chief Justice in detail in his order dated 27.03.2014. It has been held that the proceedings by the Division Bench have been conducted in a transparent manner, there could be no reasonable apprehension in the minds of respondent no. 3. The Hon'ble The Chief Justice has specifically recorded that the third respondent is making an effort to avoid the court and the apprehension which has been expressed was not reasonable.

This order of the Hon'ble The Chief Justice dated 27.03.2014 has become final and had not been subjected to any further challenge by Arun Kumar Mishra even though he filed two Special Leave Petitions, a Writ Petition and a Transfer Petition before the Apex Court after 27.03.2014.

We adopt all the reasons recorded in the order of the Hon'ble The Chief Justice dated 27.034.2014 for holding that the recusal application is only an attempt to avoid the court.

The Apex Court in the case of Subrata Roy (Supra) had commanded all the Courts to ensure that such practices are curbed. In the present scenario the Apex Court has stated that the attempts by the litigants to abuse the legal process are increasing. Counsels are available, if the litigant is willing to pay their fees.

Such attempts by the litigants and his counsel which tantamount to forum shopping have to be crushed with heavy hand. It is interference in the course of justice leading to penal consequences. The legal position in that regard has been explained by the Apex Court in the case of Chetak Constructions Ltd. vs. Om Prakash (1998) 4 SCC, 577 and in the case of Anand vs. Registrar, Delhi High Court; (2009) 8 SCC, 106.

An advocate is a prior and perpetual retainer on behalf of truth and justice.

A senior seasoned advocate should not reflect uncertainty in his accomplishments by adopting a sharp practice like deliberately intimidating a judge to recuse himself through a theatrical performance encouraged only by the purse of his client as against his true obligations towards the Court and the Society at large, where he keeps preaching all the time about the maladies of a corrupt mind. He should not appear hypocritical by pretending to go to heroic lengths in the devilish interests of his clients. He should not allow his rationality and objectivity to be overtaken with the aid of aggression and intolerance.

We are not personally interested in hearing of any particular case but the oath of the office commands as to do justice without fear or favour. It casts a duty upon the High Court Judges to repel all attempts to bulldoze the Court even if made with the help of lawyers who have experience of 60 years at Bar. The real intent in the mind of such litigations and their counsel in forum shopping only.

The litigant (respondent no. 3) himself has filed affidavits tendering unconditional apology for filing of the transfer application dated 12.02.2004 and for filing or the present recusal application and expressing full faith in this Bench.

We hold that this recusal application is motivated with a purpose to avoid this Court with an intent of forum shopping. It is, hereby, rejected.

The issue with regard to making of such applications for avoiding a Court has also been examined by a Division Bench of the Patna High Court in the case of The State of Bihar vs. In the matter of Suo Motu Contempt against Dr. Suman Lal, 83, Krishna Apartment, Boring Road, P.S. S.K. Puri, District Patna (Or. Cr. Misc. (DB) No. 4 of 2009). The Court has deprecated such practice of forum hunting and the attempts which are made to avoid courts which are inconvenient because of wrongful apprehension in the mind of a litigant.

"Silence is not the option when things are ill done."

Our Dharma Shastras and Smritis with one voice laid down that dispensation of justice is the highest Dharma of Judges. Manu Smriti cautions the Judges as follows:

'In a case where Dharma (Justice) has been injured or made to suffer at the hands of Adharma and still the Judges fail to remove the injustice, such Judges are sure to suffer for their act or omission which is Adharma.' It is only because of the age of the Senior Advocate, who had made the recluse application along with his personal affidavit that we are closing the matter without any further directions.

We only remind all those who indulge in such practice that if the authority of the Court is attempted to be diluted then it would be the responsibility of the Court to respond and respond suitably. This Court will not succumb to such pressures. The Court will not hesitate to do whatever is within its lawful powers to protect the independence of judicial system of this country failing which the entire legal system would be brought to its knees.

We have no doubt that better sense shall prevail and the counsels shall keep in mind that, for a democracy to work, independence of judiciary is utmost and any attempt to brow beat the Court can never be in the larger interest of a democracy.

On 24.04.2014 this Court specifically recorded that the learned counsel for the parties were asked to inform that whether they require any other document to be produced before this Court, the answer given was in negative, meaning thereby that they were satisfied with the records which were produced except for the records which were pointed out by respondent no. 3 in the application dated 27.03.2014.

On Merits :--

Facts as pleaded on behalf of the petitioner :--

It is the case of the petitioner that the student who had passed the High School Examination in the year 1976 conducted by the U.P. Board with Roll No. 511719 was Arugya Kumar Mishra and not Arun Kumar Mishra, Respondent No. 3, although the name of father of both the aforesaid persons is Sri Prakash Mishra. In support of his plea, he has referred to the letter of the Manager of the institution at Ghatampur dated 27.12.2011, information received by Atin Jain, Advocate under the Right to Information Act from the Secretary of the U.P. Board, Allahabad as per letter dated 01.04.2010. Copy of the mark-sheet issued on 03.02.2010 in favour of Arugya Kumar Mishra with roll no. 511719 is enclosed at page 55 of the paper book. It is then stated that at no point of time respondent no. 3 got his educational qualifications verified by production of original documents before the respondent Corporation where he was appointed as Assistant Engineer. For the purpose reference is made to the letter written by the Chief Manager (Administration), UPSIDC dated 04.10.1995 calling upon the Executive Engineer to obtain the original educational certificates from Arun Kumar Mishra for being placed in the official records of the Head Office. Arun Kumar Mishra is stated to have taken time for the purpose under his letter dated 10.11.1995. A reminder was forwarded by the Administrative Officer of the UPSIDC on 26.03.1997 which categorically mentions that the educational certificates have not been made available for the records of the Head Office by Arun Kumar Mishra.

Arun Kumar Mishra vide letter dated 09.04.1997 only forwarded photo copies of few of his education certificates namely High School certificate and B.Tech. mark-sheet. It was written that necessity of other documents may be informed so that they may be supplied. Arun Kumar Mishra was asked vide letter dated 21.04.1997 to forward the Degree of his B.Tech. Course and to inform as to whether other documents have been forwarded or not. A reminder in that regard was sent by the officer of the UPSIDC on 17.05.1997.

UPSIDC is stated to have written a letter to the Registrar, Awadh University dated 27.10.1997 calling upon the Registrar to inform as to whether any Degree of B.Tech. had been issued in favour of Arun Kumar Mishra with Roll No. 5254/52511 and further to verify the mark-sheet dated 25.07.1997, photocopy whereof was enclosed.

The Manager, UPSIDC vide letter dated 27.08.1998 informed Arun Kumar Mishra that under orders of the Managing Director, UPSIDC he is required to appear before the Head Quarters at Kanpur with all original document pertaining to his educational qualification on 31.08.1998. Arun Kumar Mishra vide reply dated 31.08.1998 informed the Manager (Karmik) that all his original documents right from High School to B.Tech. Degree including certificates and mark-sheet have been lost. Applications for duplicate copies have been made and original documents shall be produced at the Head Quarters on 05.09.1998. A copy of the letter written by Arun kumar Mishra dated 31.08.1998 is enclosed as Annexure-13 to the present petition.

That on 05.09.1998 Arun Kumar Mishra did not produce the original documents, what he produced were the attested copies of the High School certificate/Intermediate Certificate and B.Tech. Degree. Copy of the letter of Arun Kumar Mishra is enclosed as Annexure-14 to the present petition. The Manager (Karmik) forwarded a letter dated 10.09.1998 again to the Awadh University to verify the B.Tech. Degree and mark-sheet of Arun Kumar Mishra. Photocopies of the Degree and Mark-Sheet were enclosed. Thereafter a letter is stated to have been written to the Registrar of KNIT, Sultanpur The petitioner made repeated representations along with affidavits categorically pointing out that the High School mark-sheet with roll no. 511719 in the name of Arun Kumar Mishra is a forged document and further that the B.Tech. mark-sheet submitted by him is in his own hand writing, therefore, appropriate action may be taken.

In paragraph 18 of the writ petition it has been stated that the original file containing the testimonials of respondent no. 3 submitted at the time of selection/appointment in UPSIDC had been lost mysteriously. It is also stated that the B.Tech. mark-sheet which was self-attested by Arun Kumar Mishra did not contain any enrollment number and the column in that regard was blank.

It is stated that despite specific complaints made by the petitioner he did not receive any response from the authorities. The petitioner disclosed that interpolation has been done in the letter of the Board dated 25.08.1976 by over-writing in the name of the student so as to read as Arun Kumar Mishra by the Principal of the institution. It was also stated that respondent no. 3 had produced a forged High School certificate in the name of Arun Kumar Mishra, duplicate copy whereof is stated to have been issued on 24.01.2011, photocopy whereof is enclosed as Annexure-22 to the present petition.

In paragraph 35 it has been stated that the petitioner was admitted to M.E./M.Tech. Course at I.I.T., Roorkie in the year 1983-84 on the basis of forged score of Graduate Aptitude Test in Engineering (GATE). On complaint the respondent no. 3 was found guilty and his admission to M.E. Course was canceled.

A supplementary affidavit has been filed on behalf of the petitioner. By means of the said affidavit he has brought on record a copy of the advertisement, which was published by the UPSIDC on 28.05.1986 for appointment on the post of Assistant Engineer (Civil). Under the advertisement the essential qualifications for the post have been disclosed as a Degree in Civil Engineering in first division plus work experience of two years in reputed establishment. Photocopy of the advertisement has been enclosed as Annexure-1. The advertisement specifically mentions that the vacancies were temporary and for a period of two years only.

It is stated that neither respondent no. 3 had any valid Degree of Civil Engineering in first division nor he had work experience of two years in a reputed firm. He was completely disqualified to be appointed as Assistant Engineer. Reference has also been made to the fact that the Respondent No. 3 claimed to have taken admission in the B. Tech Degree Course in February, 1980, therefore, he could not have passed the B. Tech first year examination of Four Year Degree Course in the year 1979-80, as by no stretch of imagination he could achieve the required attendance of 75% before the end of the academic session 1979-80. In support of the said assertion reference is made to B. Tech first year examination mark-sheet bearing the date as 23.06.1981. Ordinances framed by the U.P. Technical University have also been enclosed for the purpose.

It is stated that at the time of filing of the petition these documents were not available with the petitioner and therefore are being brought on record by means of the supplementary affidavit.

A second supplementary affidavit was filed on behalf of the petitioner in the month of April, 2014 and it has been stated that three first information reports have been lodged against Arun Kumar Mishra by the Special Investigation Team. The first is dated 07.09.2007, the second is dated 10.09.2007 and third is dated 03.05.2011. In respect of first two first information reports final report was submitted but had not been accepted by the Court, while in respect of third first information report the investigation is still going on.

It is then stated that Directorate of Enforcement had filed Enforcement Case Information Report (ECIR) dated 24.02.2011 in respect of several bank accounts opened with fictitious names but which were actually operated by Arun Kumar Mishra. Large number of properties had also been attached. The Adjudicating Authority of Directorate of Enforcement vide order dated 21.03.2013 has confirmed the attachment of the properties, the details whereof are mentioned in the order itself. Description has also been given of several shell companies having been floated by respondent no. 3 and Non-Government Organizations (N.G.Os.) formed at his behest, through which the ill gotten wealth of respondent no. 3 is said to be to the tune of Rs. 200.00 Crores. Copy of the orders referred to above have been brought on record along with the supplementary affidavit.

The orders disclose that 67 bank accounts were fraudulently opened and operated by respondent no. 3. Reference has also been made to the bungalow situate in a prime location at Delhi, which has been seized by the Directorate of Enforcement on 18.04.2014 as per the news item. The value of this property has been disclosed as Rs. 300.00 Crores.

Reference has also been made to the two charge-sheets filed by the Central Bureaue of Investigation against Arun Kumar Mishra, the trial whereof is pending before the C.B.I. Court, Dehradun.

The report of the Comptroller and Accountant General of India for the year ending 31.03.2013 discloses large scale scam amounting to multi crores at the behest of the Chief Engineer, UPSIDC Reference is also made to the departmental proceedings, which were taken against respondent no. 3. in paragraph 5 to 10.

In paragraph 11 it is stated that respondent no. 3 was promoted as Executive Engineer on 26.08.1988 contrary to the provisions of the U.P. Government Servants (Criterion for Promotion) Rules, 1994, as amended in the year 1998, which have been uniformly applied to all Public Corporation in the State of U.P.

Reference is also made to the service rules framed by the UPSIDC itself, which according to the petitioner provide for promotion on the criteria of seniority subject to rejection to unfit and not promotion on the basis of merit. Reference is made to the decision taken in the 224th Board meeting of the UPSIDC with regard to the creation of an additional hierarchy between the position of Executive Engineer and Chief Engineer.

A third supplementary affidavit has been filed on behalf of the petitioner and it has been stated in paragraph 3 that in the date chart as disclosed in Special Leave to Appeal No. 11363-11366 of 2014 it had been stated that written submissions were filed on behalf of respondent no. 3 dated 15.04.2014 before this Court, which is a false statement. No such written submissions had been filed before this Court. Similarly, it is stated that it has wrongly been stated in the said S.L.P. that the senior counsel for respondent no. 3 placed on record the reply to the queries raised by the High Court in appropriate sequence dated 17.04.2014. No such reply to the queries was ever supplied to the petitioner nor it had been filed before the Hon'ble Court. The statement made in that regard in the S.L.P. is false. Other incorrect statement of fact made before the Apex Court in respect recusal application have been highlighted by means of this third supplementary affidavit.

Reply on behalf of Respondent No. 3-

On behalf of respondent no. 3 a short counter affidavit was filed with an application bearing the date as 20.02.2014. Besides raising the preliminary objection qua the writ petition being not maintainable as the allegations made do not fall within the parameter for issuance of a writ of quo warranto, it is also stated that the High Court cannot enter into the disputed issues of facts in exercise of writ jurisdiction. The correctness or otherwise of qualifications of respondent no. 3 needs to be ascertained by proper enquiry by some competent authority. It is stated that the educational certificates of the answering respondent have been found genuine and therefore also the writ petition is liable to be dismissed. Allegations of mala fide have been made against the petitioner in support of the preliminary objection.

In paragraph 14 it has been stated that a typographical error in the name of the student is sought to be blown out of proportion for the purposes of the present writ petition by the petitioner.

It is the case of respondent no. 3 that he was admitted in class-IX in Gandhi Vidhya Peeth Inter College, Ghatampur, Kanpur in the year 1975. He could not take admission in Class-XI in the year 1977, as he was awaiting the result of his re-evaluation of Class-X examination. After declaration of his High School result, he took admission in XI standard in Sri Asteek Muni Inter College, Korian, Kanpur in the year 1978 and that he qualified the Intermediate examination in the year 1979. Reference paragraph 21 and 22 of the short counter affidavit.

It is then stated that he took admission in Kamla Nehru Institute of Technology in the academic session 1979-80. Reference is made to the letter issued by the Director of the institute dated 18.01.1980 qua the admission of the petitioner. Certificates issued in respect of B. Tech Course have been enclosed along with the supplementary affidavit as SCA-4. Respondent no. 3 has referred to the certificate issued by the Assistant Registrar of K.N.I.T. qua the petitioner having passed B. Tech Four Years Degree Course in Civil Engineering and his date of birth. Reference-Annexure SCA-5 to the short counter affidavit.

Respondent no. 3, with reference to the post held by the petitioner and the order passed in Public Interest Litigation No. 35628 of 2013 as well as on the recall application as well as with reference to the order passed by the Managing Director, UPSIDC dated 09th July, 2013 and the Writ Petition No. 64425 of 2013 filed by the petitioner, contends that the petitioner is a subordinate officer and in order to fulfill his evil desire he has manipulated in the records of Board of High School and Intermediate to question specifically the High School mark-sheet and the certificate of respondent no. 3.

It has been stated that the petitioner is trying to take benefit of a misprint in the tabulation records of High School Examination of 1976, wherein the name of the student bearing Roll No. 511719 has been spelt as Arugya Kumar Mishra in place of Arun Kumar Mishra. Reference has also been made to the name of other students which have been similarly mis-spelt. Details of the malpractices adopted by the invigilators of Janta Audhyogic Vidhyalaya Inter College Ghatampur during the High School Examination of 1976 while examinations in the subjects of English and Science were being undertaken by respondent no. 3 from the said centre have been disclosed.

It is stated that Respondent No. 3 had wrongly been awarded 20 marks in English First Paper and 07 marks in English Second Paper and similarly 44 marks in Science paper when in all other subjects he had secured first division marks. It is his case that he submitted an application to the Principal of his institution i.e. his father on 20th June, 1976 for enquiry and inspection of his answer-sheet in the said two subjects. The Principal of the college, namely his father independently made a complaint to the Secretary of the Board. A letter No. Patrank-go-3/rkc 932 dated 30th July, 1976 was issued under the signature of Additional Secretary of the U.P. Board informing the Principal of the institution that an enquiry shall be conducted on 11.08.1976 at 11.00 a.m. in Janta Audyogik Vidyalaya Inter College, Ghatampur by a committee constituted for the purpose and Arun Kumar Mishra with Roll No. 511719 may be asked to remain present at the time of enquiry.

In paragraph 45 it is stated that during enquiry respondent no. 3 was shown his answer-sheet of English and Science subjects bearing Roll Number 511719 with the name of respondent no. 3. It was found that some of the answers given by respondent no. 3 were crossed, though the answers were correct. The enquiry committee is stated to have submitted its report. On the report of the enquiry committee the Assistant Secretary on behalf of the Secretary of the Board passed an order on 25.08.1976 correcting the marks obtained by the student in the subject of Science and English and the petitioner was declared to have passed High School Examination in first division. The decision of the Secretary of the Board dated 25.08.1976 is stated to have been communicated to the Principal of the college vide letter No. Patrank-go-3(3)-1128 dated 25.08.1976.

According to the petitioner the Principal of the college had forwarded a copy of the letter dated 25.08.1976, after attestation to UPSIDC through speed post. It is stated that the name of respondent no. 3 i.e. Arun Kumar Mishra is specifically mentioned against Roll No. 511719 in the letter of the Additional Secretary dated 30.07.1976.

Respondent No. 3 has prayed by means of the application filed along with the short counter affidavit that the Board may be directed to produce the enquiry report, the letter No. Patrank-go-3/rkc 932 dated 30th July, 1976 and the order dated 25.08.1976, being letter No. Patrank-go-(3)-1128.

In paragraph 52 of the short counter affidavit it has been stated that with the issuance of the order dated 25.08.1976 in the name of Arun Kumar Mishra against Roll No. 511719 and the mark-sheet issued in pursuance thereof by the Principal as well as the High School Certificate issued in his name, there was no occasion for the respondent no. 3 to have applied for any correction in the records of the U.P. Board. It has been mentioned that High School Certificate was issued on 01.09.1998 with correct name of Arun Kumar Mishra. A copy of the Certificate issued on 01.09.1998 has been enclosed as Annexure-SCA-15.

It is also submitted that in the counter foil, qua the High School Certificate issued in favour of respondent no. 3, there is no overwriting in the last word 'Æ' in the name of the student concerned and the overwriting is in the middle word 'j' only.

In paragraph 55 of the counter affidavit it is stated that respondent no. 3 was promoted on the post of Executive Engineer superseding 14 officers because of bright and outstanding career in the year 1998.

In paragraph 58 it is stated that there was no other student with the name of Arugya Kumar Mishra in institution at Ghatampur in Class-IX and X during the academic sessions 1974-75 and 1975-76 respectively, and no transfer certificate in the name of Arugya Kumar Mishra had been issued by the said college after passing of the High School Examination in the year 1976. Reference has been made to the scholar register, admission form and other documents.

Paragraph 77 makes mention of the application made with the recommendation of the Principal of the college for correction of the name of the student in tabulation record of the Board. Mala fide are also alleged against the petitioner.

Counter affidavit has been filed on behalf of Respondent No. 3 through Shri Rahul Agrawal, Advocate and para-wise reply to the contents of the writ petition has been given. It has been stated that there was no student in the name of Arugya Kumar Mishra in the Ghatampur College at the relevant point of time. The Manager of the institution has acted irresponsibly in forwarding the letter dated 27.12.2011. Reference has been made to the report of the Principal dated 10.05.2011 which mentions that there is an error in the record of the Board qua the name of the student against roll no. 511719 and the same be corrected as Arun Kumar Mishra. Reference has also been made to the affidavit filed by the Principal of the College before this Court dated 20.03.2014 in support of the aforesaid plea.

It is stated that Shri Antim Jaiswal, Advocate has no concern with respondent no. 3 and it is the petitioner who is manipulating the reports to suit his case. Reference has been made to the mark-sheet issued in favour of respondent no. 3 on 26.08.1976 by the Principal of the Ghatampur College. It is explained that the High School mark-sheet was verified by the Principal of the Ghatampur College and the B.Tech. Mark-Sheets/Degree were verified by the Director the KNIT, Sultanpur. In paragraph 16 of the said affidavit it is stated that the petitioner was allotted Enrollment No. F-85316 which fact is admitted to the University as per short counter affidavit dated 03.03.2014. In paragraph 19 of the said affidavit it has been disclosed that over writing in the original document, copy whereof is enclosed as Annexure-21 of the writ petition has been done by the petitioner in collusion with the Principal of the institution. The word Arun has been over-written to read Arugya. It is contended that by over writing Þ.kß has been changed to ÞKß. Reference has been made to the documents brought on record by the Board. It has also been contended that the writ petition is defamatory in nature, for which the petitioner is liable to be punished.

A supplementary counter affidavit was filed through Anamika Singh, Advocate by respondent no. 3 in reply to the contents of the supplementary affidavit filed on behalf of the petitioner. It has been stated that the respondent no. 3 has to his credit a B. Tech Degree in first division and that he had two years working experience. It is stated that he joined as Assistant Engineer on 12.11.1986 thereafter he was promoted on the post of Executive Engineer and at present he is working as Chief Engineer. It is further stated that if the University had conducted the first year of B. Tech Examination at a belated stage, respondent no. 3 cannot be made to suffer for the same. (It may be noted that along with the affidavit no details have been given nor any document has been filed by the petitioner in support of his work experience.).

Another supplementary counter affidavit has been filed through Sri Rahul Agrawal, Advocate on 28.04.2014 in response to the second supplementary affidavit filed by the petitioner. The details of three first information report lodged by SIT and the orders passed by the Directorate of Enforcement stand admitted in paragraphs 6, 7 of the second supplementary counter affidavit with the rider that an appeal has been filed under Section 25 of the Prevention of Money Laundering Act, 2002 before the Appellate Tribunal, being Appeal No. 484 of 2013, which is said to be pending.

With regard to the criminal prosecution initiated by the C.B.I., it has been stated that respondent no. 3 has been released on bail and that trial is pending.

With regard to the report of CAG dated 31.03.2013 it is stated that the report of the CAG is in respect of working at UPSIDC and has no reflection personally upon respondent no. 3. The status of the departmental proceedings taken against him have been admitted with the rider that the Managing Director has dropped the enquiry proceedings under the order dated 04.12.2013.

In paragraph 14 it is stated that as per UPSIDC Employees Service Rules (Rule 18), as amended up to date, 50% of Group 'A' posts are required to be filled by promotion against which respondent no. 3 was promoted. It is disclosed that earlier the post of Chief Project Engineer was required to be filled by deputation from the employees of P.W.D. or other departments. The State Government vide order dated 21.12.2002 decided to fill the post of Chief Project Engineer in UPSIDC by promotion from amongst the departmental employees. The selection committee has recommended the promotion of respondent no. 3 for the post of Chief Project Engineer. The said decision was communicated by the Special Secretary, U.P. Government to the Managing Director vide office order dated 20.10.2003. Consequential promotion order has been issued in favour of respondent no. 3 on 20.10.2003. It is explained that the post of Chief Project Engineer has been re-designated as Chief Engineer Project under the order of the Government dated 27.05.2004.

Respondent no. 3 has referred to the large number of irregularities committed by the petitioner himself while working with the UPSIDC A short counter affidavit has been filed on behalf of respondent no. 3 dated 04.05.2014 for establishing that petitioner is a subordinate officer to respondent no. 3. Various facts and documents have been brought on record in support thereof.

Another short counter affidavit has been filed on behalf of respondent no. 3 with the allegations that certain other material has become available which may be brought to the notice of the Court.

In support of his plea that there was no student with the name of Arugya Kumar Mishra in the Ghatampur College in the year 1974-75 and 1975-76 in Class IX and X respectively, affidavits of certain teachers and students who were classmates of Arun Kumar Mishra have been brought on record.

By means of the short counter affidavit dated 12.05.2014 the respondent no. 3 has referred to the report dated 29.04.2014 prepared by one Deepak Jain, hand writing expert. He has also brought on record the affidavit of Deepak Jain verifying the contents of the report. By means of the supplementary counter affidavit dated 12.05.2014 certain additional facts have been introduced with help of affidavit of some more teachers of Ghatampur College and Class IV employees of the college.

By means of the supplementary counter affidavit filed on 18.05.2014, respondent no. 3 has clarified that in paragraph nos. 20 and 21 of the short counter affidavit dated 20.02.2014 the year has wrongly been mentioned. The year 1977 as mentioned in para 20 of the short counter affidavit be read as 1976 and the year mentioned in paragraph 21 as 1978 be read as year 1977.

In paragraph 5 of the supplementary counter affidavit it is stated that the respondent no. 3 could not take admission in the year 1976 in Class XI. He was admitted in the year 1977 in the institution namely Asteek Muni Inter College, Korian, Kanpur and that the respondent no. 3 appeared in the Intermediate Examination of the Board held in the year 1979. It has been stated that the father of the respondent no. 3 was transferred and appointed as Principal of Asteek Muni Inter College, Korian, Kanpur sometime in the month of April/May, 1979.

Another supplementary counter affidavit has been filed on behalf of respondent no. 3 dated 01.07.2014 through Shri Rahul Agrawal, Advocate detailing the service rules applicable in respect of the employees of UPSIDC, the powers of the authorities of UPSIDC, the appointment of respondent no. 3 on the post of Assistant Engineer, his regularization and the procedure adopted qua promotion on the post of Executive Engineer and thereafter to the post of Chief Project Engineer.

In paragraph 3 of the aforesaid affidavit it is stated that the scope of enquiry has been enlarged by the High Court relating to promotion of respondent no. 3, although the same is not the issue in the writ petition. However, since the Court is proceeding to examine all these aspects, the respondent no. 3 is placing the rules etc. which are available with him by way of supplementary counter affidavit. It has been disclosed that the respondent no. 3 was appointed on 08.05.1986 as Assistant Engineer in pursuance to the Advertisement in Hindi newspaper Dainik Jagran against 16 advertised temporary post for a period of two years. Copy of the appointment letter dated 04.11.1986 has been enclosed as Annexure-SCA-3. All the original testimonials were produced by respondent no. 3 before the Selection Committee which found him eligible. The recommendation of the Selection Committee has been annexed as Annexure-SCA-4 to this affidavit.

In paragraph 11 it is stated that his initial appointment was for a period of two years only. This appointment was offered after verification of the original certificates and degree etc. The petitioner was continued in employment even after expiry of two years under various orders issued by UPSIDC from time to time. The Board of Director, UPSIDC in 204th meeting dated 22.02.1994 made a resolution to regularize the services of Assistant Engineers and Junior Engineers who were working under the 'No Industry Districts Scheme'. The date of regularization was fixed as the date on which the vacancy came into existence in the cadre concerned. Details of the vacancies which were available in the year 1985, 1991 and 1992 have also been mentioned. It is claimed that respondent no. 3 had been regularized w.e.f. 16.12.1986 and that there is no challenge to the regularization of services of respondent no. 3.

In paragraph 17 of the said affidavit it has been disclosed that the respondent no. 3 was promoted on the recommendation of the Selection Committee which met on 26.08.1998 as Executive Engineer (Civil). The proceeding in that regard have been enclosed as Annexure-SCA-8. According to respondent no. 3 the next higher post was that of Chief Project Engineer which has now been re-designated as Chief Engineer (Project). This post was vacant since 19.07.1977. With reference to the order passed by the Apex Court in SLP No. 2445-46 of 1995 (Ajeet Singh vs. Managing Director, UPSIDC and others), it is contended that the Corporation was first to assess the suitability of its own officers before an outsider could be appointed on deputation i.e. only if no person already employed with the Corporation was found suitable for such selection, the Corporation could take steps to appoint on deputation an officer from the other departments of the State. Copy of the order of the Apex Court has been enclosed as Annexure-SCA-9. It is then stated that in compliance to the order of the Apex Court the post of Executive Engineer was filled from amongst the employees of the UPSIDC. It is further stated that under order dated 15.01.2002, one post of Chief Project Engineer was created and the method prescribed for filling up the post was deputation. The UPSIDC requested the State Government under letter dated 25.10.2002 to permit the filling up of the post of Chief Project Engineer from the available employees of the Corporation. The State Government gave its No Objection vide letter dated 21.12.2002. It is stated that the Board of Director in its meeting dated 23.09.2002 had authorized the Managing Director to take decision regarding pay-scale, mode of selection and eligibility for selection to the post of Chief Project Engineer as per the service rules of the Corporation.

It is stated in paragraph 25 that in 244th meeting of the Board of UPSIDC, amendments in the Service Rules, 1978 were approved, subject to approval of the Bureau. The Service Rules as amended vide Item No. 23 of the Board meeting have been incorporated in the Service Rules. Under this amendment the Corporation is free to fill the post of Chief Project Engineer as per the provisions of the Rules, in case the State Government had no objection. It is then stated that no objection had already been granted by the State Government vide order dated 21.12.2002. It is stated in paragraph 28 that the amendment made in the Rules in the meeting dated 23.03.2003 were sent for approval and the same have been approved by the bureau as per the no objection granted by the State Government. A copy of the letter of the Secretary, Industrial Development Department in support thereof is enclosed as Annexure-SCA-14.

The UPSIDC had sent a letter to the State Government containing the names of eligible candidates for the post of Chief Project Engineer including that of respondent no. 3. The Selection Committee under the Chairmanship of Anil Kumar Gupta met on 16.10.2003 and recommended the respondent no. 3 for promotion on the post of Chief Project Engineer subject to decision of writ petition no. 30409 of 1998 (Neeraj Khare and others vs. UPSIDC and others) and Special Leave Petition No. 13203 of 2003 (UPSIDC and others vs. Diploma Engineering Association U.P. and others). In pursuance thereof respondent no. 3 was promoted on the post of Chief Project Engineer. The post of Chief Project Engineer was re-designated as Chief Engineer (Project).

It is stated that the UPSIDC is a government company duly registered under the Companies Act. The power of the Board to lay down the rules for its employees flows from the Memorandum and Articles of Association. The Board of Directors have framed rules known as Uttar Pradesh State Industrial Development Corporation Employees Service Rules which have been approved by the State Government vide order dated 30.05.1978. Reference has been made to the rules applicable in the matter of promotion.

It is explained that the UPSIDC had adopted the method of regularization as a mode of recruitment under its resolution dated 22.02.1994. It is pointed out that under provision to Rule 18, power has been conferred upon the Appointing Authority to decide any other mode of selection for filling up the posts and the decision of appointing authority shall be final which will include regularization. It is also explained that under Rule 21 of the Service Rules an employee has to be placed on probation at the first instance for a period of one year or such period as is decided by the appointing authority but not exceeding two years. In case of regularization, the probation period of Assistant Engineer will be treated to have already been completed like in the case of the respondent no. 3. It is, therefore, submitted that the regularization of the service of respondent no. 3 as Assistant Engineer is in accordance with Rule 18 read with Rule 19 of the Corporation. The promotion of respondent no. 3 on the post of Executive Engineer and thereafter as Chief Project Engineer has attained finality and it is not open to question the same in a writ of quo warranto as the decision of the selection committee is not open to judicial review by the Hon'ble Court.

In the affidavit filed on behalf of Arun Kumar Mishra dated 22.05.2004 it has been contended that right side of the tabulation register pertaining to High School Examination of 1976 contained the name of the student against Roll No. 511719 as Arun Kumar Mishra. The High Court may issue a direction to the U.P. High School and Intermediate Board to produce the right side portion of the tabulation register prepared in the year 1976. Similarly, a request has been made that the Board may be asked to produce the report of the enquiry committee, which had examined the complaint of respondent no. 3, failing which a positive inference may be drawn in favour of the answering respondent or else the High Court may direct a high level enquiry by C.B.I. in respect of non-availability of these documents.

An impleadment application was filed on behalf of the father of respondent no. 3 with a prayer for his impleadment through Shri Tarun Agrawal, Advocate. It is stated that he has exclusive knowledge of certain facts relevant for fair decision of the present petition.

The application for impleadment was rejected by us vide order dated 08.05.2014, but he was granted liberty to intervene in the matter.

In the affidavit of the father of respondent no. 3 it has been stated that there was no student in the name of Arugya Kumar Mishra at the relevant time in Ghatampur College and it was only Arun Kumar Mishra, the son of the deponent of the affidavit who was the student. It is Arun Kumar Mishra who has passed the High School examination with Roll No. 511719. Details of the complaint made in respect of marks awarded to Arun Kumar Mishra in the High School Examination, 1976, the letter of the Additional Secretary informing about the enquiry and the ultimate order of the Assistant Secretary on behalf of the Secretary of the Board dated 25.08.1976 have been referred to. It has also been stated that the deponent is a privy to the aforesaid proceedings. Allegations have also been made against the Manager, Mahesh Shukla of the Ghatampur institution qua fudging of the tabulation chart sent on 25.08.1976.

Stand of U.P. Board-

On behalf of the U.P. Board of High School and Intermediate, affidavit has been filed by the Secretary of the Board stating therein that in the tabulation register pertaining to High School Examination, 1976 against Roll No. 511719, the name of the student is recorded as Arugya Kumar Mishra. Photocopy of the original tabulation register has been enclosed along with the affidavit. The mark-sheet of the High School Examination of 1976 with the name of Arun Kumar Mishra had been issued by the Principle of College i.e. father of Respondent no. 3, Sri Prakash Mishra. Letter of the District Inspector of Schools dated 07.02.2014 which records that at the relevant time Sri Prakash Mishra was the Principal of the institution has also been enclosed.

Another affidavit has been filed by the Secretary of the Board on 10.03.2014 and it has been stated that no document pertaining to the dispute in question are available in the Confidential Section of the Board. By means of the affidavit dated 21.03.2014 the Secretary has stated that a four member committee had been constituted which in turn constituted a two member committee for search of the documents. It is further stated that no documents as referred to in the order of the Court dated 13.03.2014 of the High School examination are available with the Board.

By means of an affidavit dated 18.04.2014 it has been stated that after detail search a document purporting to be minutes of the meeting of the Examination Committee held on 23/24.09.1976 wherein the case of Roll No. 511719 was considered has been found in the Parishad Anubhag.

In paragraph 5 of the said affidavit it has been stated that as a result of the order of the Secretary dated 28.07.1976, enquiry committee submitted its recommendations on 12.08.1976. The questions which had been cancelled in the answer-sheet of the student were got evaluated. These facts were written on the tabulation register on 25.08.1976.

The entire matter was reported in the Examination Committee Meeting dated 23.09.1976. The examination committee recommended action against the persons involved. A decision was taken to get the answer-sheets of the student with Roll No. 511719 re-evaluated by the Deputy Head Examiner. It has also been stated that after 1973 results of the U.P. Board Examinations had not been published in the Government Gazette.

On 24.04.2014 another affidavit was filed by the Secretary enclosing a photostat copy of the letter through which High School certificates pertaining to the examination of 1976 were sent to the Ghatampur institution in the year 1978. A copy of the covering letter with other details has been enclosed as Annexure-1 and 2 respectively. The original despatch register through which the certificates were sent has also been referred to.

The covering letter dated 29.11.1978, referred to above, specifically mentions that the Principal of the institution must verify the details of the candidates as recorded in certificate with reference to the cross list, Chattra Panjika of the institution and the result published in the government gazette. If any discrepancy is noticed, then the certificate with complete details and attending documents be returned by registered post to the Deputy Secretary (Samadesh).

The Secretary filed another affidavit on 29.04.2014 stating therein that no document pertaining to Roll No. 511719 of the year 1976 was available with the U.P. Board. The letters received from various sections of the Board by the Secretary have been enclosed as Annexure 2 and 3 to this affidavit. These letters specifically mention that absolutely no document/records/despatch register pertaining to Roll No. 511719 of High School examination, 1976 are available in any section. In the last letter dated 26.04.2014, it has been mentioned that except for the despatch register pertaining to High School certificate of the year 1976, no other document is available.

In paragraph 5 of the affidavit reply has been given to the application made by the respondent no. 3 dated 27.03.2014. In paragraph 5(b) of the affidavit it has specifically been stated that if the respondent no. 3 had applied for correction in the tabulation register within time, there is no reason as to why the correction would not have been made. In paragraph 5(c) of the affidavit, it has been stated that neither the copy of the letter under reference dated 30.07.1976 nor the despatch register of 1976 could be traced. The enquiry report, the order dated 25.08.1976 as noted on the tabulation register are also not available with the Board. In paragraph 5(d) of the affidavit it is stated that the tabulation register was prepared in the year 1976 and there is no over-writing in the name of the student in the tabulation register.

It has further been stated that respondent no. 3 had made an application dated 30.01.2014 for correction in the name of student against Roll No. 511719 i.e. Arugya Kumar Mishra to read as Arun Kumar Mishra. This application was delivered in the office of the Board by hand. The Deputy Secretary has rejected the application on the ground that it has not been sent by registered post and, therefore, cannot be considered.

On 30.04.2014 the Secretary has filed another affidavit explaining that after the answer-sheets of students are evaluated, the marks awarded to the students in each paper are entered in the Award Blank. Two tabulation registers are prepared in the two different districts on the basis of the Award Blank. The tabulation register of the relevant time contained the roll number, name of the student, date of birth, name of his/her father and the subjects in which he has appeared. It is a printed register. The Tabulator is required to fill the marks received by the student against each subject in his hand writing on the basis of the Award Blank. Both the tabulation registers after being completed are sent to the Board where they are rechecked with the help of the Award Blank.

It has been specifically stated that under the Regulations of the Board, no certificate is to be issued to a student who has not passed the examination. In paragraph 6 it is stated that there is no provision for re-evaluation of the answer-sheets. It cannot be so directed by the Secretary or by the Examination Committee. Chapter XII, Regulation 21(E) deals with the scrutiny but there is no provision for re-evaluation. It is further stated that in the facts of the case the answers which had been scored out qua student with Roll No. 511719 on a complaint being received were evaluated under the order of the Secretary. It is not a case of re-evaluation rather it is a case of evaluation at the first instance of the answers. It is further stated that it is the responsibility of the Secretary to make all arrangements for conduct of the Board examinations and the Secretary directed evaluation of the answers which had been scored out qua the student with roll no. 511719.

In the affidavit filed by the Secretary dated 02.05.2014 it has been stated that the tabulation register contains the name of the student, his date of birth, father's name and roll number, both on left side as well as on the right hand side. In paragraph 2 of the same affidavit it is stated that no High School certificate can be issued contrary to the tabulation register. It has been explained that the High School certificate cannot be issued in a name which is different to what has been disclosed in the tabulation register.

In the affidavit dated 27.05.2014 details of the statutory regulations framed under the Intermediate Education Act, 1921 which regulate the mode and manner of filing of applications for obtaining duplicate copies of the mark-sheet and the High School certificate has been given. Reference has also been made to the original resolution of the Examination Committee dated 23/24 September, 1976, the minutes of the meeting as recorded by hand and these minutes contain the signature of Convener of the Examination Committee. Dr. Hari Krishna Awasthi, who was the Head of the Department in the Lucknow University. It is stated that after preparation of the note, copy of the minutes were prepared by pasting the topic of agenda and writing the decision of the Examination committee by hand. These minutes have been signed by the dealing Assistant and subsequently cyclo-styled.

In the last affidavit filed on behalf of the Board dated 26.05.2014, copy of the application along with documents on which the duplicate copy of High School mark-sheet was issued in the month of February, 2010, along with photocopy of the treasury challan has been enclosed as Annexure-1. It is further stated that an application was made for obtaining duplicate copy of the certificate. The details received from the Treasury mention the name of the student as Arugya Kumar Mishra while the application made on 21st January, 2011 (page 10 of the affidavit) mentions the name of the student as Arun Kumar Mishra. Similar is the position with regard to the Treasury Challan deposited on 11.07.20111.

The present Principal of Ghatampur College has also filed an affidavit stating therein that from the records of the institution it is clear that the name of the student who had appeared in the High School Examination in the year 1976, is Arun Kumar Mishra s/o. Sri Prakash Mishra and there was no student by the name of Arugya Kumar Mishra.

Case of UPSIDC-

On behalf of the UPSIDC a counter affidavit has been filed by Mr. R.K. Shukla, Assistant Grade-I dated 17th February, 2014. It has been stated that respondent no.3 was regularized as Assistant Engineer (Civil) w.e.f. 12th November, 1986. He was promoted on the post of Executive Engineer (Civil) on 26th August, 1998. On being promoted, objection was raised against his B.Tech. Degree. The UPSIDC got the degree of B.Tech. Of Arun Kumar Mishra verified through KNIT, Sultanpur. A copy of the verification report dated 9th November, 1998 has been sent to the State Government. No objection was raised and the verification report was accepted. It is stated that in the year 2005 Arun Kumar Mishra was posted as Chief Engineer (Civil) on which post he is working. In 2010, an objection was raised qua high school qualification and B.Tech. Degree of respondent no.3. These documents pertaining to the qualifications of respondent no.3 were again sent to the concerned institute and Secondary Education Board for verification. Report dated 10th November, 2011 was received in respect of High School mark-sheet, report dated 13th May, 2011 was received in respect of B.Tech. Degree. Copies of these reports have been enclosed as Annexure-4 to this affidavit. It is then stated that in the verification report, a remark was made by the college that even though the mark-sheet has been issued in the name of Arun Kumar Mishra, the cross-list showed the name of the student as Arogya Kumar Mishra. Necessary corrections should have been made as Arun Kumar Mishra was the same student. These verification reports were sent to the State Government on 17th June, 2011. No objection has been received. It is stated that name of Arugya Kumar Mishra has wrongly been mentioned due to typographical error in the tabulation register, as no student by that name studied at the Gandhi Vidyapeeth Intermediate College, Ghatampur, Kanpur. It is stated that the UPSIDC had verified the testimonial of respondent no.3, whenever objections were raised and on all occasion, all the documents were reported to be correct. In paragraph-20 of the said affidavit it has been stated that conduct and performance of respondent no.3 at the UPSIDC has been exemplary and it is apprehended that as respondent no.3 has a bright career, frivolous complaints/objections are being raised against him. The UPSIDC has referred to the order of the High Court dated 4th July, 2013 as well as the order of the Managing Director, UPSIDC dated 18th July, 2013, qua reversion of the petitioner to his original post of Senior Manager (Housing) and respondent no.3 being given charge of Architecture and Town Planning Section. Reference has also been made to the enquires said to be pending against the petitioner including those under the orders of the High Court.

In paragraph-39 of the affidavit, it has been admitted that part one of the service records of respondent no.3 Arun Kumar Mishra has been misplaced for which concerned officers were reprimanded. It is stated that other records shall be produced, at the relevant time before the High Court. Reference has also been made to the order of the Managing Director, UPSIDC dated 22nd July, 2013, whereby the Chief Engineer has been entrusted with administrative and technical control of Architecture and Town Planning Section. It is the case of the Corporation that the petitioner is only making attempts to malign the image of the officer concerned of UPSIDC.

Another supplementary counter affidavit dated 13th April, 2014 has been filed on behalf of the UPSIDC. Reference is made to the Minutes of the Proceedings of the committee appointed to recommend candidates for selection to the post of Assistant Engineer (Civil) in UPSIDC dated 19th October, 1986, a copy whereof has been enclosed as SCA-1 to this affidavit. It has also been stated that respondent no.3 was duly selected as he had requisite qualification and experience to be appointed on the post of Assistant Engineer (Civil).

It is stated that respondent no.3 was appointed on a temporary post on 4th November, 1986 as per the Rules of 1978. Temporary appointment was extended from time to time and he was regularized vide order dated 16th May, 1994 as Assistant Engineer (Civil) w.e.f. 12th November, 1986 i.e. on the date he joined the service. It is further stated that respondent no.3 was promoted to the post of Executive Engineer (Civil) on 27th August, 1998 and thereafter to the post of Chief Project Engineer on 20th October, 2003, which post was subsequently converted into the post of Chief Engineer (Project). On that post he was posted on 2nd March, 2005.

An affidavit has also been filed by the Managing Director, UPSIDC dated 1st May, 2014. Along with his affidavit he has brought on record the Rules and Regulations applicable in the matter of promotion from the post of Assistant Engineer to the post of Executive Engineer and thereafter to the post of Chief Engineer in UPSIDC. It has been stated that no post of Superintending Engineer was available on the relevant date when respondent no.3 was promoted as Chief Engineer. In paragraph-6 it is stated that relevant files relating to the procedure adopted in the matter of promotion of respondent no.3 from the post of Assistant Engineer to that of Executive Engineer is lying with the Central Bureau of Investigation in pursuance to the order of the High Court dated 4th July, 2013. With regard to the second level promotion from the post of Executive Engineer to that of Chief Engineer, it is stated that the same was done at the Government level headed by the Industrial Development Commissioner. The original files relating to the procedure adopted are being collected and a letter in that regard has also been written to the Central Bureau of Investigation and to the State of U.P. It is stated that on 29th April, 2014, a first information report has been lodged in respect of loss of first file containing service records of Arun Kumar Mishra which contained the original documents submitted by Arun Kumar Mishra including that of his qualifications at the time of appointment. This first information report has been lodged on 1st May, 2014.

The Principal Secretary, Industrial Development, Government of U.P. at Lucknow made an application along with an affidavit, sworn on 12th May, 2014, for time being granted for production of the records pertaining to the promotion of Arun Kumar Mishra from the post of Assistant Engineer to the post of Executive Engineer and thereafter to the post of Chief Engineer. With reference to the order passed by the Apex Court dated 13th May, 2014 passed in Special Leave to Appeal (Civil) No. 13635 of 2014. On 14th May, 2014 another application was made before this Court for grant of further time for the purpose. On 19th May, 2014, an affidavit has been filed by the Deputy Secretary, Infrastructure and Industrial Development Department, Government of U.P. at Lucknow stating therein that in the concerned file pertaining to the promotion of the respondent no.3 from the post of Executive Engineer to the post of Chief Project Engineer is not available in the section concerned and a circular has been issued to all other sections of the Secretariat to search out the file.

It has been stated that file on the subject is File No. 77-Bha/01 dated 20th October, 2003 and search is being made both in other departments and with the Central Bureau of Investigation, and help has also been sought from Special Investigating Team. Movement of the file, as reflected from the concerned register discloses that the file was received in the department of Mines and Minerals on 17th December, 2007, and thereafter its movement is not known. On these allegations further time for search was prayed for.

The Principal Secretary, Industrial Development, Government of U.P. at Lucknow filed an affidavit dated 22nd May, 2014 pointing out that letters have been written to the Central Bureau of Investigation and Special Investigating Team (SIT) to search out the documents and that a first information report has also been lodged in respect of the loss of the file on 13th May, 2014 with the Police Station Hazrat Ganj, Lucknow.

Thereafter another affidavit has been filed by the Principal Secretary, Industrial Development, Government of U.P. at Lucknow dated 24th May, 2014 explaining his conduct in the matter of assurance given before the Apex Court as well as before the High Court qua production of the relevant files, but subsequently the same being not produced on the plea that the same has gone missing. On record is the letter of the Head of Branch, CBI/SPE/Dehradun dated 13th May, 2014, which records that concerned File No. 77-Bha/01 had not been seized/received by the Central Bureau of Investigation during investigation of case against Arun Kumar Mishra. It has also been stated that education certificates and another service records of Arun Kumar Mishra were also not seized either in original or in photo copy at the time of investigation.

It may be recorded that a chart has been submitted by Sri Kartikeya Saran, Advocate in respect of certain original document qua Arun Kumar Mishra. It has been stated that only attested copy of the minutes of 204th meeting of the Board are available. Fax copy of the promotion order issued by the State Government dated 20th October, 2003 is available. Xerox Copy of the Board meeting dated 21st October, 2011, for reopening of the departmental enquiry, was available. It is disclosed that Arun Kumar Mishra was in jail between 27th April, 2011 to 5th October, 2011 in connection with criminal case initiated by Central Bureau of Investigation.

Case of the Awadh University-

An affidavit has been filed on behalf of the University dated 3rd March, 2014 stating therein that University could find only one record pertaining to respondent no.3 i.e. enrolment book and that respondent no.3 (wrongly mentioned as petitioner in paragraph-4 of the affidavit), had taken admission in B.Tech. first year in 1980, his enrolment number is F85316. It was then stated that all the records received in respect of enrolment of the student had been returned to KNIT prior to year 2000. It has also been explained that subsequent to the year 2000, the institution KNIT, Sultanpur is affiliated to U.P. Technical University, Lucknow.

Another affidavit was filed on behalf of the University dated 12th March, 2014 and in paragraph-5 it has been stated that a student is required to submit an application after obtaining the recommendation from the college with photocopy of all mark-sheets and receipt qua deposit of requisite fee for the purposes of obtaining a degree. The office of the University thereafter compares the same with the marks available in the Confidential Section and it is only thereafter that the degree is issued. "Presently no application and other records of Arun Kumar Mishra for obtaining degree are available in University."

Another affidavit has been filed on behalf of the University dated 23rd April, 2014, in paragraph-7 it has been stated that during the relevant period, examination of the students of B.Tech. Degree Course of KNIT was conducted by the University itself. On enquiry, the Controller of the Examination of the University vide letter dated 22nd April, 2014 has informed that no records are available with regard to enrolment of respondent no.3 and the fee for enrolment may have been deposited by the KNIT along with other students, but no records were available in that regard. In paragraph-10 of the affidavit it has been stated that no records are available pertaining to appearance in examination, evaluation of answer-books and issuance of degree in favour of respondent no.3. It is stated that only tabulation chart is available. In paragraph-12 it has been stated that the Controller of Examination has informed that no records are available which could in fact disclose the dates of 1st year, 2nd year, 3rd year and 4th year of B.Tech. Examination staid to have been undertaken by respondent no.3.

Another short counter affidavit has been filed on behalf of the University dated 1st May, 2014. It has been stated that since the entire records pertaining to the B.Tech. Examination starting from session 1979-1980 till close of four years course in the year 1983 qua respondent no.3 Arun Kumar Mishra have gone missing from the University, a first information report has been directed to be lodged by the Vice-Chancellor of the University with the Station House Officer, Police Station Kotwali, District Faizabad. Photo copy of the first information report dated 30th April, 2014 has been brought as Annexure-SCA-2 to this affidavit.

Another short counter affidavit has been filed on behalf of University dated 12th May, 2014 stating therein that the records of other students of the same batch are also not available and in that regard first information has also been lodged with the concerned Police Station. In paragraph-11 of the said affidavit it has been stated that so far as the genuineness of the degree of B.Tech. produced by Arun Kumar Mishra before the High Court is concerned, since no records pertaining to the issuance of the degree to Arun Kumar Mishra are available with the University, the University is not in a position to verify the genuineness of the degree dated 18th January, 1984 issued in favour of Arun Kumar Mishra. The Vice-Chancellor of the University in the affidavit has made a statement that he is unable to say whether the degree produced by respondent no.3 of B.Tech. course dated 18th January, 1984 is a genuine document or not. The admitted signatures of then Vice-Chancellor Dr. A.P. Mehrotra as available in other documents has been enclosed along with the affidavit.

In the last short counter affidavit filed on behalf of the University dated 25/27th May, 2014, it has been stated that there is no prescribed form provided for obtaining the degree. In paragraph-6 of the affidavit it is stated that in normal course, degrees are awarded in convocation and in case a student does not appear at the time of convocation then the same is sent to the concerned student by registered post.

Case of KNIT-

An affidavit has been filed on behalf of the Director of KNIT, Sultanpur by the Assistant Registrar dated 10th March, 2014 praying for time to search out the documents relating to respondent no.3 Arun Kumar Mishra.

On 13th March, 2014, by means of an affidavit, two weeks further time was prayed for for the purpose and it was stated that only few fee receipts could be searched out. In paragraph-6 of the affidavit, it has been stated that the institution was established in the year 1979-1980, as an independent engineering institution. The records of admission of all students have been kept in the record room and no records have been weeded out. It is lastly stated that at the time of enrolment of a new student, copy of the mark-sheet of qualifying examination and copy of the transfer certificate is sent to the University. From whatever records are available, it appears that respondent no.3 has been issued mark-sheets in respect of 1st year, 2nd year, 3rd year and 4th year examination of B. Tech Course as a regular student of the institution.

Another affidavit has been filed on behalf of the Director, KNIT, Sultanpur dated 25th March, 2014 stating therein that original file of respondent no.3 Arun Kumar Mishra has been traced and shall be placed before the High Court at the time of argument.

But in the subsequent affidavit filed on behalf of the Director, KNIT, Sultanpur dated 16th April, 2014, it has been stated that right from the declaration of date of examination, setting of question papers, correction of answer-sheets, evaluation of the same and declaration of marks including the allotment of roll number was all done by the University. In paragraph-5 of the affidavit it has been stated that averment made on behalf of Dr. Ram Manohar Lohiya University, Faizabad that the records for the purposes of enrolment received from the KNIT, Sultanpur had been returned to the institution in the year 2000, is not correct. However, before making final statement, the deponent of the affidavit shall inspect the records of the institution.

On 28th May, 2014, another affidavit was filed on behalf of the KNIT, Sultanpur relating to mark-sheets which had been issued in favour of respondent no.3 Arun Kumar Mishra. The names of the person, who had prepared the mark-sheet and name of the persons, who had checked the mark-sheet has been disclosed. It has been stated that the same had been signed by the Registrar of the Institute. So far as the degree of B. Tech. is concerned, it has been stated that respondent no.3 had received the degree from KNIT, Sultanpur as per the degree register maintained for the purpose and that at the relevant time Dr. A.P. Mehrotra was the Vice-Chancellor of the University.

Reply in Rejoinder-

Rejoinder affidavit has been filed by the petitioner to the counter affidavit filed on behalf of respondent nos. 1 and 2 (respondent UPSIDC). It has been stated that appointment of respondent no.3 as Assistant Engineer under letter of appointment dated 4th November, 1986 was with a condition that it is subject to the verification of original degree/certificates regarding educational qualification and experience etc. File in that regard has gone missing. It is stated that in absence of original records of respondent no.3, he could not have been promoted on the post of Executive Engineer, even otherwise, his promotion is per se illegal. It is stated that at no point of time, respondent no.3 had produced his original high school and intermediate mark-sheets and his ordinal degree of B.Tech. Contents of paragraph nos. 8 to 17 and 20 of the writ petition have been reiterated and those of paragraph 16 of the counter affidavit have been disputed. It is stated that in fact there has been no verification by the competent authority in respect of the high school mark-sheet or in respect of the degree of B.Tech. It is the Secretary of the U.P. Board and the Registrar/Vice-Chancellor of the Dr. Ram Manohar Lohiya Awadh University, Faizabad, who could verify the said certificate/degree. Reference is also made to the various mark-sheets issued against Roll Number-511719 and to the fact that high-school mark-sheet with the name of respondent no.3 was never verified by the Board of High School and Intermediate Examination. Similarly, the B.Tech. degree issued by the Dr. Ram Manohar Lohiya Awadh University, Faizabad in the name of respondent no.3 has not been verified by the University. The KNIT, Sultanpur or its Director is not competent to verify the same. It is therefore, explained that the report submitted by the Joint Managing Director, UPSIDC to the State Government on 17th June, 2011 qua verification of the educational certificates of respondent no.3 was based on false facts.

It is explained that the only authentic original record produced by the Board of High School and Intermediate examination in respect of High School examination of 1976 is the tabulation register pertaining to Roll Number-511719. In the said tabulation register the name of student is mentioned as "Arugya Kumar Mishra". Correctness of this official records has to be presumed in view of Section 114 Illustration (e) of the Evidence Act, 1872.

It is stated that the documents have been prepared by the father of respondent no.3 only to help his son in his capacity as Principal of the institution at Ghatampur, Kanpur and subsequently as an office bearer of the committee of management.

In paragraph-17, it is stated that the respondent UPSDIC has acted in an illegal and biased manner, while giving a certificate of bright career to a person (respondent no.3) who is facing CBI, ED and SIT-UP enquiries, charge-sheets and first information reports, and who had been arrested and was in jail for more than five months.

Reference has been made to the charge-sheet which was issued by UPSIDC and which was subjected to challenge by respondent no.3 before the High Court in Writ Petition No. 58736 of 2012. Respondent no.3 also challenged the enquiry initiated against him in the said writ petition.

Petitioner has also disclosed the status of the writ petition no. 58736 of 2012 and the recall application filed therein. In paragraph-24 of the rejoinder affidavit, it has been stated that there is no typographical error qua the name of the student nor there can be any assumption in that regard as suggested. It is stated that at no point of time any correction/rectification application had been made in respect of the name of the student with Roll Number 511719. Even from the verification report submitted by the Principal of the college, it is clear that in the tabulation register of the high school examination of 1976, name of the candidate with roll number 511719 is "Arugya Kumar Mishra". Respondent no.3 does not have any high school mark-sheet in his name even today.

Petitioner has also stated that it is incorrect to state that the Managing Director of UPSIDC has entrusted the charge of Architecture and Town Planning Cell (ATP) to respondent no.3, the letter relied for the purpose, is only a self-declaration of respondent no.3 to hold the charge. Other facts have also been stated qua Chief Engineer not being competent to hold charge of the Architecture and Town Planning Cell.

Petitioner has also filed rejoinder affidavit in reply to the short counter affidavit filed by respondent no.3 Arun Kumar Mishra. The averments made in the short counter affidavit have been denied. It has been stated that there are no disputed issues as suggested by respondent no.3. Material on record is sufficient to establish that the Respondent No. 3 is not qualified and he cannot continue to hold the post of Chief Engineer in UPSIDC, which is a public post. It has been stated hat verification of education qualifications of respondent no.3 has not been done by the concerned competent authority. Allegations of mala fide have specifically been denied. Petitioner does not claim any advantage for himself nor he seeks to take charge from respondent no.3 by means of the present writ petition. Respondent no.3 has issued a self-declaratory letter qua his being In-charge of Architect-cum-Town Planning Department. Managing Director of UPSIDC has not issued any such orders.

Petitioner contends that there is no typographical error in the tabulation register/mark-sheet nor any correction application was made within the statutory period prescribed under the Regulations framed under U.P. Intermediate Education Act, 1921. It has also been stated that respondent no.3 had made an application for correction in the name of the student only after the present writ petition had been filed to be precise on 30th January, 2014, which application has also been rejected as detailed above. The averments made in the counter affidavit qua there being no other student in the name of Arugya Kumar Mishra in the institution at Ghatampur have been denied. The correctness of the documents produced by respondent no.3 have also been questioned. Petitioner has also disputed the plea of re-evaluation in respect of English and Science papers, as suggested by respondent no.3. It is stated that respondent no.3 himself admits that he did not take admission in Class XI in the year 1976 or in the year 1977. He claims to have passed his intermediate examination in the year 1979. The correctness of the documents filed by respondent no.3 along with counter affidavit has been disputed. Reference has also been made to the fact that if respondent no.3 was admitted in the month of February, 1980 in B.Tech. First Year Course, he could not achieve the required percentage of attendance in the academic session 1979-80 and therefore, he could not have passed his B.Tech. fourth year examination in the year 1983. The B.Tech. mark-sheets are said to be in hand writing of respondent no.3 himself. Neither the mark-sheets nor the degree bear any enrolment number.

In paragraph-25 of the rejoinder affidavit it is stated that the petitioner has no personal grudge against respondent no.3. Allegation to the contrary are merely figment of imagination and hallucination of respondent no.3. It is claimed that the petitioner is not subordinate to respondent no.3 in any manner. Petitioner never apprehended that Public Interest Litigation No. 35678 of 2013 has been filed at the instance of respondent no.3. However, it is stated that the said Public Interest Litigation is based on forged documents. Allegations of illegal allotment or unaccountable property with the petitioner have been denied.

It has also been stated that till date the father of respondent no.3 has control over the institution at Ghatampur. The other members of the Committee of Management of the institution are also relatives of respondent no.3. It is also stated that Additional Secretary had no authority to issue any letter in the name of Arun Kumar Mishra against Roll No. 511719. The records maintained by the Board of High School and Intermediate Examination even today record the name of student with Roll Number 511719 as Arugya Kumar Mishra, which fact is established beyond doubt from the affidavit filed by the Secretary of U.P. Board of High School and Intermediate Examination.

In paragraph-45 of the rejoinder affidavit, reasons have been disclosed for establishing the documents which have been filed with short counter affidavit being misleading, incorrect and fabricated. It is explained that while in the transfer certificate, the date of admission in Class IX of respondent no.3 has been shown as 26th July, 1974,when from the application made for the purpose, it is clear that the same had been filed on 30th July, 1974. Reference has also been made to the fact that in some places, name of father of respondent no.3 has been shown as Mr. Prakash Mishra while in other places, it has been shown as Mr. Shree Prakash Mishra.

Rejoinder affidavit has also been filed to the main counter affidavit filed on behalf of respondent no.3 dated 1st May, 2014. It has been stated that the petitioner is not a subordinate officer to respondent no.3. It is also stated that a colleague or an officer in the department is competent to institute a petition for quo warranto against his other colleague. This writ petition is maintainable and may be entertained by this Court. The averments made in the main counter affidavit filed on behalf of respondent no.3 have been denied. Contents of the writ petition have been reiterated. It is stated that document dated 30th July, 1976 allegedly sent by the Additional Secretary of the Board to the Principal of the college is suspicious, it has not been verified by the Board. It is stated that at no point of time, any high school examination mark-sheet had been issued in favour of Arun Kumar Mishra by the Board. Similarly the facts qua the B. Tech. degree of respondent no.3 being forged have also been reiterated.

It is stated that petitioner initially approached the authorities concerned in the matter of illegal, appointment and continuance of respondent no.3 in a Public Office but since the authorities did not act as expected from them, petitioner was left with no choice but to approach this Court by means of the present writ petition.

Rejoinder affidavit has also been filed by the petitioner dated 1st May, 2014 in reply to the supplementary counter affidavit filed by respondent no.3. The averments made in the supplementary counter affidavit have been denied. Various facts pertaining to the proceedings taken against Respondent No. 3 as detailed above have been disclosed.

The mode and manner of promotion of respondent no.3 as Executive Engineer and thereafter as Chief Project Engineer has again been stated to be illegal. It has been submitted that respondent no.3 was never promoted in accordance with the Rules applicable. He has jumped the seniority position thereby depriving many eligible persons in the establishment to their rightful position in the establishment with the help of the officers of the respondent UPSIDC.

In the Second Supplementary Rejoinder Affidavit filed in reply to the Second Supplementary Counter Affidavit of respondent nos. 1 and 2 dated 5th May, 2014, it is stated that resolution passed in the 244th meeting of the Board for conversion of the post of Chief Project Engineer to that of Chief Engineer (Project) was only a proposal, which could not be given effect to without the approval of the Bureau of Public Enterprises and the proposal of 244th Meeting of the Board never received approval of the Bureau of Public Enterprises. It is stated that in fact the post of Chief Project Engineer should have been re-designated as Superintending Engineer and not Chief Engineer (Project).

It is further stated that amendment proposed in Rule-18 of the Service Rules in the 244th Meeting of the Board was subject to the approval from the Bureau of Public Enterprises, no such approval has been granted nor has been placed before the Court. No objection, for filling up the vacancy of the post of Chief Engineer (Project) by means of promotion than by deputation, was granted prior to the amendments in the rules. It is stated that the Government Order dated 21.12.2002 was never complied with. The Committee, which is said to have selected respondent no.3 for the post of Chief Engineer (Project) was an incompetent body. The UPSIDC is deliberately not taking any steps to ascertain the current status of the proceedings before the C.B.I. Court, Dehradun. It is also stated that first information report lodged by the Enforcement Director clearly indicates active involvement of respondent no.3 in money laundering. Various properties have been attached. Attachment has been affirmed by the Adjudicating Authority under the Prevention of Money Laundering Act, 2002. The UPSIDC cannot wash its hands of from such incidents, as the money, which has been laundered, is public money. The UPSIDC has also been put to loss.

Supplementary rejoinder affidavit has been filed by the petitioner dated 4th May, 2014 in reply to the supplementary counter affidavit filed by respondent no.3 dated 4th May, 2014. It is stated that petitioner is not subordinate to respondent no.3. Documents enclosed along with the supplementary counter affidavit in fact disclose that for the period between October, 2009 to November, 2009, respondent no. 3 became In-charge of ATP Section only. It is further stated that petitioner has always been reporting to the Managing Director/Joint Managing Director of the UPSIDC and he is the head of ATP Section. It is wrong to allege that the petitioner is subordinate to respondent no.3. Chief Engineer (Project) is not In-charge of the ATP Section. The correctness of the documents filed as Annexures SCA-2 to SCA-8 is challenged and it is stated that such documents have seen the light of the day before this Court for the first time. It is pointed out that the appointment of the petitioner is prior in point of time vis-a-vis appointment of respondent no.3 in the respondent UPSIDC.

Having completed the narration of the pleadings, the Court shall first deal with the preliminary objections which have been raised on behalf of respondent no. 3, Arun Kumar Mishra.

The jurisdiction of the High Court in relation to a writ of quo warranto has been explained by a Constitution Bench of the Apex Court in the case of University of Mysore vs. C.D. Govinda Rao reported in AIR 1965 SC, 491, the relevant paragraph reads as follows :

"In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."

Explaining the scope of enquiry in a writ of quo warranto, the Apex Court in the case of Centre for PIL vs. Union of India reported in 2011 (4) SCC, 01 has explained in paragraph 64 as follows:

"64. Even in R.K.Jain case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. We reiterate that the Government is not accountable to the Courts for the choice made but the Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction."

In its recent judgment the Apex Court in the case Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and others reported in (2014) I SCC, 161 while referring to the principles of law enunciated by the Apex Court in the case of University of Mysore (supra) and in the case of Centre for PIL (supra) in paragraph nos. 21 and 22 has explained the law applicable in the matters pertaining to writ of quo warranto as well as the concept of locus standi and doctrine of principle of laches being not applicable. The relevant paragraphs read as follows :

"21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority.

22. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on the one hand and an interest by a citizen as a relator to the Court on the other. The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the Court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds."

In the case of Retired Armed Forces Medical Association (supra) it has been held that a writ of quo warranto would not be maintainable at the behest of a person against an officer to whom he is subordinate or under whom he is working, if he has any personal grudge to settle.

The Court has, therefore, to examine as to whether in the facts of the case, there are allegations which do require a judicial review into the matter of appointment/continuance of respondent no. 3 in the employment of the UPSIDC and/or the petition as filed is liable to be thrown out because of the petitioner being a subordinate officer to respondent no. 3 and that he has a personal grudge to settle.

From the records which have been produced before this Court specifically the original tabulation register pertaining to High School Examination, 1976 qua the candidate bearing Roll No. 511719 it is clear that the name of the candidate as mentioned therein is Arugya Kumar Mishra. It is not in doubt that respondent no. 3, qua whom this petition has been filed, is named as Arun Kumar Mishra. From the material, which is otherwise on record, serious doubts have been raised qua the authenticity of the B.Tech. Degree and the mark-sheets produced by Arun Kumar Mishra in support of his being qualified for the post on which he was appointed in the UPSIDC. Further from the affidavits filed before this Court it is clear that there is a serious challenge to the mode and manner in which Arun Kumar Mishra ahas been confirmed as Junior Engineer and thereafter promoted as Executive Engineer and finally as Chief Engineer in UPSIDC.

We are satisfied that there is a challenge worth consideration both in the matter of Arun Kumar Mishra being qualified for the post on which he was appointed as well as his confirmation and subsequent promotion as Executive Engineer and Chief Engineer in UPSIDC. It is the case of the petitioner that the appointment/promotion of respondent no. 3 is in violation of the rules applicable in the matter of appointment in UPSIDC which is a government Corporation.

We also find substance in the contention raised on behalf of the petitioner that he is not a subordinate officer to Arun Kumar Mishra nor he has any personal grudge to settle. The petitioner has demonstrated before this Court that he is directly answerable to the Managing Director and not to respondent no. 3. The petitioner has rightly explained that the directions issued by the High Court in Civil Misc. Writ Petition No. 35628 of 2013 are only for a preliminary enquiry to be conducted by the C.B.I. Even in respect of such preliminary enquiry, two applications have been made by the C.B.I., one for dropping the proceedings and the other for further time being granted to complete the preliminary enquiry. Both these applications are pending before this Court. It is not in dispute that till date the petitioner has neither been charge-sheeted nor he is an accused with reference to any enquiry conducted by the CBI. The petitioner has specifically stated that he has no grudge against respondent no. 3 and the allegations to the contrary made on behalf of respondent no. 3 are only an imagination and an attempt to somehow or the other object to the scrutiny by this Court qua the appointment and continuance of Arun Kumar Mishra in the employment of UPSIDC. Petitioner is also right in pointing out that representations made by him against the qualifications of Respondent No. 3 before the authorities were justified as he wanted to appraise the authorities of the true facts first and it is only because the authorities had not responded fairly that he has approached this Court.

In view of the aforesaid conclusions, we are satisfied that the first preliminary objection as raised on behalf of respondent no. 3 has no substance.

The second preliminary objection raised on behalf of respondent no. 3 is that a writ of quo warranto be not entertained in the facts of this case inasmuch as his educational certificates of High School, Intermediate and the Degree of B. Tech. have not been cancelled by any of the authorities and that the employer had no objection to the same. He submits that authenticity of the said documents need not be doubted by the petitioner.

It is his case that issue of suitability cannot be a subject matter of examination by this Court and for the purpose reliance has been placed upon the judgement of the Apex Court in the case of Central Electricity Supply Utility of Odisha (supra) (Ref. Paragraph nos. 21, 22 and 27 respectively).

Counsel for the petitioner appears to be correct in submitting that till date there is no document on record issued by any authority of the U.P. Board verifying the mark-sheet with Roll No. 511719 issued in the name of Arun Kumar Mishra as claimed by him. Whatever mark-sheets in the name of Arun Kumar Mishra have been verified have been so done by none other than Principal of the Ghatampur College, who is subordinate to the Committee of Management of which one of the office bearer was Sri Prakash Mishra. We further find that the original High School mark-sheet produced by Arun Kumar Mishra before this Court also bears the signatures of his father Sri Prakash Mishra and employees of his college. On the contrary from the application filed by Arun Kumar Mishra himself for correction in the name of the student in the High School tabulation register against Roll No. 511719 dated 30.01.2014 encloses a mark-sheet which stands in the name of Arugya Kumar Mishra issued on 02.09.1998. This document dated 02.09.1998 has admittedly been filed by Arun Kumar Mishra himself before the Board and has been enclosed along with Civil Misc. Writ Petition No. 35628 of 2013 whereunder Arun Kumar Mishra has challenged the order of the Board dated 26.04.2014 rejecting his application for correction in the name of the student.

It is, therefore, admitted on record that even today in the basic record of the Board i.e. tabulation register of 1976, the name of the student against Roll no. 511719 is mentioned as Arugya Kumar Mishra.

We may notice that if the mark-sheet issued by the father dated 26.08.1976 was available with Arun Kumar Mishra and was a genuine mark-sheet as is claimed by him, there was no occasion for Respondent No. 3 to inform the UPSIDC vide his letter dated 31.08.1998 that all his original certificate from Class X to B.Tech. have gone missing. What make the position worst is that in none of his affidavits, Arun Kumar Mishra has explained that when he had received the mark-sheet dated 02.09.1998 which stood in the name of Arugya Kumar Mishra bearing Roll No. 511719, why he did not make an application for correction for more than 16 years. If the High School qualification of respondent no. 3 falls to ground then the entire subsequent qualifications claimed by Arun Kumar Mishra would also become non est. Similarly, we find that the Degree which has been produced by Arun Kumar Mishra in respect of B.Tech. examination has not been verified by any authority of the University. As a matter of fact the University in its affidavit dated 12.05.2014 in paragraph 11 has stated as follows :

"11. That so far as genuineness of degree is concerned as stated in short counter affidavit-II dated 12.03.2014 and short counter affidavit-III dated 23.04.2014, no record pertaining to issuance of degree of Arun Kumar Mishra is available with the University, therefore, the deponent is not in a position to verify the genuineness of degree dated 18.01.1984 issued to Arun Kumar Mishra. In fact he is unable to say whether degree of B.TEch. Dated 18.01.1984 is a genuine document or not."

The aforesaid observations have only been made for the purposes of considering the preliminary objections. The effect of the document and the merits of the petition shall be dealt with later.

The plea that the educational certificates have not been cancelled or that the employer UPSIDC has no objection to the appointment and continuance of Arun Kumar Mishra is no answer to a petition of quo warranto. The Apex Court in the case of University of Mysore (supra) has explained that the purpose of a writ of quo warranto is to see that no person is allowed to occupy a public office or to continue to hold the same even with the connivance of the executive or with its active help.

The silence on the part of UPSIDC or on the part of the State Government both in the matter of employment of Arun Kumar Mishra and his continuance in the office, despite his having not produced the original High School mark-sheet and the correctness of the B.Tech. Degree being in jeopardy, cannot be the reason for the present writ petition being thrown out.

It is only because the State authorities including the UPSIDC were not acting in a fair manner despite repeated complaints made by the petitioner vide letters as already referred above, he had to approach this Court by means of this petition for a writ of quo warranto.

From the records produced before us this Court has also to examine as to whether the appointment/absorption of Arun Kumar Mishra on the post of Junior Engineer and thereafter his promotion on the post of Executive Engineer/Chief Engineer has been made after following the due procedure applicable in the matter of promotion or not.

We, therefore, reject both the preliminary objections raised on behalf of respondent no. 3 and proceed to decide the petition on merits.

We had passed orders from time to time for the purposes of summoning the original records from the U.P. Board, Awadh University, KNIT, Sultanpur, UPSIDC and the State Government pertaining to Respondent No.3.

We had specifically directed for production of original Patrank No. go-3-rkc/932 dated 30th July, 1976, the order of correction dated 25th August, 1976 bearing Patrank No. go (2) 1128 as well as for production of the enquiry report with reference thereto.

Affidavits have been filed by the Secretary of the Board stating therein that these documents were not available with the Board nor the dispatch register is available. In respect of other documents also affidavits have been filed stating therein that records pertaining to Arun Kumar Mishra have gone missing and first information report has been registered.

Affidavit has been filed on behalf of KNIT, Sultanpur stating therein that no records have been weeded out, except for few fee receipts and the tabulation charts, no other documents pertaining to admission of Arun Kumar Mishra in B.Tech. Degree Course has been produced and the other records are stated to have gone missing.

Affidavits have been filed on behalf of Awadh University stating therein that except for enrolment book, no other records pertaining to Arun Kumar Mishra are available nor the University is in position to give the dates of the B.Tech. Examination said to have been undertaken by Arun Kumar Mishra. Even the original degree handed over by Arun Kumar Mishra to this Court could not be verified by the University for want of original records. First information reports have been registered by the University in respect of loss of records.

From the affidavit filed on behalf of the UPSIDC, it is apparent that first part of the service book of Arun Kumar Mishra, which deals with his initial appointment as Assistant Engineer and the document filed by Respondent No. 3 at that time has gone missing. Similarly, the original records pertaining to the promotion of Arun Kumar Mishra from the post of Assistant Engineer and to that of Executive Engineer and thereafter Chief Engineer (Project), are also not available. First information reports are stated to have been lodged.

The State Government has also lodged first information reports in respect of loss of documents pertaining to Arun Kumar Mishra.

We have narrated the pleadings exchanged between the parties and the details of the original records, which have been examined in the presence of the learned counsel for the parties for the purpose that the parties were made aware and had full notice of the facts and the grounds on which challenge has been made to the appointment and continuance of Arun Kumar Mishra in the employment of the UPSIDC before this Court. Parties were given fullest opportunity to meet the facts and the ground so disclosed.

We may record that we are satisfied that full opportunity has been afforded to all the parties before this Court to not only plead their case but also to respond to whatever has been pleaded or is borne out from the records produced before the Court by the parties.

In view of the judgement of the Apex Court in the case of Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi vs State Of Madras And Another reported in AIR 1965 SC 1578 (V 52 C 209), the facts, which are disclosed by means of an affidavit in addition to what has been stated in the writ petition including the rejoinder affidavit can be taken into consideration subject to full opportunity being afforded to the other side to meet the facts and grounds so stated in the affidavits including the rejoinder affidavit which are not part of the writ petition. It is worthwhile to reproduce paragraph-17 of the said judgement, which reads as follows:

"(17) That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court."

Sri Manish Goyal, learned counsel for the petitioner submitted before us that from the original tabulation register of High School Examination of 1976, it is no more in doubt that the student who had passed high school examination with Roll No. 511719 in the year 1976 was "Arugya Kumar Mishra" and not "Arun Kumar Mishra". He explains that the U.P. Board has specifically admitted that no high school mark-sheet and certificate can be issued in a name different to that which is recorded in the tabulation register. This tabulation register, which is of the year 1976 and has been produced by the Secretary of the Board, in whose custody, Boards' documents are to be lawfully kept, has to be presumed as correct in view of Section 114 Illustration (e) of the Evidence Act. Therefore, it has to be held that Arun Kumar Mishra has not passed High School Examination with Roll No. 511719. He further explains that it is not the case of respondent no.3 that he had passed High School Examination with any other roll number or in any other year.

Documents, namely, letter dated 30th July, 1976, enquiry report and the letter dated 25th August, 1976 are all non-existent and are not available in the records of U.P. Board. These are all manufactured documents even the dispatch register could not be produced to substantiate the issuance of these letters by the U.P. Board. Therefore, these letters cannot be relied upon. He further submitted that even if the entire case set up by respondent no.3 is accepted for the sake of argument that the letter dated 30th July, 1976 had been issued, then there is still a lacuna, in the facts pleaded by him, namely, there is no order by the Secretary of the Board for evaluation of the scored out answers after the alleged enquiry report was submitted. Neither respondent no.3 nor the Board could furnish any information as to who evaluated the scored out answers and as to under which authority and on which date.

The documents, which have been produced by Arun Kumar Mishra in respect of the institution at Ghatampur including the affidavits of teachers, students and Class IV employees of the institution at Ghatampur have all been manufactured with the help of his father, who was the Principal and is still controlling the said institution.

He explained that along with his application dated 30th January, 2014, for correction in the name of the student in the tabulation register of High School Examination of 1976, Respondent no.3 had admittedly enclosed a copy of the High School Examination Mark-sheet of 1976 with Roll No. 511719 with the name of Arugya Kumar Mishra dated 2nd September, 1998. If this mark-sheet was available with Respondent No. 3, why did he not make an application for correction within reasonable time and why it took 16 years for the Respondent No. 3 to realize that corrections are required. The only plausible reason is that Respondent No.3 was only waiting for the relevant records being removed from the U.P. Boards office before making the correction application.

Sri Manish Goyal, learned counsel for the petitioner submitted before this Court that once the High School mark-sheet and certificate of Arun Kumar Mishra fall to ground, all subsequent qualifications would also be rendered non est because of the foundation having been corrupted. He submitted that even in respect of Intermediate Examinations having been passed by Arun Kumar Mishra, there are serious doubts. In his affidavit, Respondent No.3 stated that he had taken admission in Class XI in the year 1978 and therefore, he could have passed Intermediate Examination in the year 1980 only and not in 1979.

With regard to B.Tech. Degree of Arun Kumar Mishra, Sri Manish Goyal, learned counsel for the petitioner explains that no student can appear in B.Tech. Examination without enrolment, as is established from the Statutes produced by the University, which are statutory in nature. The application made by Arun Kumar Mishra for enrolment bears the date as 29th November, 1980, therefore, he could at best appear in the University Examinations for the first year of the B.Tech. Course of the academic session 1980-1981 and not in respect of any earlier academic session. Thus, he could pass fourth year examination of B.Tech. in the year 1983-1984 only. It is submitted that it is because of this that neither the University nor the KNIT, Sultanpur have disclosed the dates on which first year, second year, third year and fourth year examinations were undertaken by Arun Kumar Mishra in respect of B.Tech. Degree Course. He further explains that the mark-sheet and the Degree produced by Arun Kumar Mishra in respect of B.Tech. examinations are all fabricated documents. Relevant columns pertaining to enrolment number are blank. The degree has not been verified by the University.

Turning to the service career of Arun Kumar Mishra, it is pointed out that under the Advertisement published for the post of Assistant Engineer in the UPSIDC, two qualifications were prescribed (a) a Degree of Civil Engineering and (b) work experience of two years. Respondent no. 3 did not have any work experience as required under the Advertisement and further since his B.Tech. Degree for the reasons recorded above was non est, therefore, it has to be held that respondent no. 3 was not possessed of the prescribed qualification in terms of the Advertisement. Reference is made to the various letters written to Arun Kumar Mishra by the UPSIDC and its officers in the matter of production of original qualification certificates as well as the letter written by Arun Kumar Mishra in reply thereto dated 31.08.1998 to the effect that he has lost all his testimonials from High School to B.Tech. Degree, duplicate copies have been applied and shall be produced as soon as available.

It is stated that contrary to the stand so taken by Arun Kumar Mishra in his letter dated 31.08.1998 he has produced a High School mark-sheet issued by his father claiming to be the original mark-sheet dated 26.08.1976 (whatever worth it may be) and similarly he has produced the original B.Tech. Degree before this Court. Why these document were not produced before the UPSIDC, if those were available to Arun Kumar Mishra in the year 1998. Counsel for the petitioner submits the said fact also lead to the inference that these documents have been subsequently prepared by Arun Kumar Mishra with the help of his father for the purposes of this litigation. According to the counsel for the petitioner the stand taken in the letter dated 31.08.1998 by Arun Kumar Mishra qua loss of all his testimonials does not reconcile in any manner with the mark-sheet issued by his father in the 1976 and the original B.Tech. Degree of the year 1984 produced before this Court.

It is stated that neither his High School mark-sheet has been verified by the Board nor his B.Tech. Degree has been verified at any point of time by the Awadh University. The letters by the UPSIDC to the State Government dated 17.06.2011 to the contrary are, therefore, an attempt to protect the respondent no. 3 by supplying wrong information to the State Government.

It is stated that Arun Kumar Mishra was regularized under a resolution dated 22.02.1994 w.e.f. 12.11.1986 when his initial appointment was for two years only in terms of the Advertisement published. Such regularization, according to the petitioner, is patently illegal being contrary to Rules, 1978 and violative of Article 14 of the Constitution of India.

With regard to the promotion of Arun Kumar Mishra from the post of Assistant Engineer to the post of Executive Engineer, it is stated that from the records it is clear that he was granted promotion on the basis of 'better merit' and not on the basis of criteria of 'seniority subject to the rejection of unfit' as is contemplated by the Rules, 1978, specifically Rule 18. As a matter of fact in the short counter affidavit, Arun Kumar Mishra in paragraph 55 has admitted that he superseded 14 persons while being promoted as Executive Engineer. Further promotion of Arun Kumar Mishra from the post of Executive Engineer to that of Chief Engineer is objected to on the ground that under the rules, the post could be filled by deputation only at the relevant time. The Government Order dated 26.12.2002 granted permission to fill the post by promotion but in the meantime amendments had been made in the Rules, 1978. These amendments in the service rules were to take effect with the approval of bureau, no approval of bureau had been obtained at any point of time. Even otherwise it is stated that vide order dated 20.10.2003, Arun Kumar Mishra had been promoted on the post of Chief Project Engineer on the basis of merit when under the Rules, 1978 the criteria could be scrutiny subject to rejection of unfit only. Even these proceedings pertaining to promotion are stated to have gone missing and have not been produced before the Court, despite specific orders. He explains that alleged selection of Respondent No. 3 for the post of Chief Project Engineer by a Selection Committee constituted by the State Government is per se illegal and contrary to Rules, 1978. This post of Chief Project Engineer was converted into that of Chief Engineer (Project). It is, therefore, submitted that promotion of Arun Kumar Mishra both as Executive Engineer as well as Chief Engineer is unfair and contrary to the Rules applicable.

It is stated that Respondent No. 3 was placed under suspension pending enquiry in the year 2007 and in the year 2009 he was punished with stoppage of two annual increments. These departmental proceedings were re-opened on a letter of one Deepak Gidwani, a correspondent who had nothing to do in the matter of employment of Arun Kumar Mishra. The Board passed a resolution for de novo enquiry with the appointment of a new enquiry officer as the earlier enquiry officer Devi Shankar Shukla had been transferred. The then Managing Director himself decided to drop the proceedings under order dated 14.02.2013 after setting up himself as the Enquiry Officer, which is per se unauthorized and contrary to the decision of the Board of the UPSIDC for de novo enquiry.

Arun Kumar Mishra has been charge-sheeted by the C.B.I. in the criminal case pending before the C.B.I. Court at Dehradun. He was arrested in the said case and after being confined to prison between 27.04.2011 to 05.10.2011 i.e. for 162 days, he has been granted bail and is on bail at present.

Sri Manish Goyal pointed out that the proceedings have also been taken by the Enforcement Directorate against Arun Kumar Mishra (which had already been dealt with herein above). Three first information reports have been lodged by the Special Investigation Team against Respondent No. 3. The report of CAG also reflects upon the conduct of Respondent No. 3 adversely.

Shri Ramesh Upadhyaya, Chief Standing Counsel on behalf of U.P. Board responded to the case of the petitioner. He stated that on the same page of the tabulation register, two other corrections have been made as is apparent from the original. The correctness of the corrections so made in the tabulation sheet is not disputed. These corrections have been made by the competent authority. He has explained to the Court the manner in which the Award Blanks are prepared and thereafter the tabulation registers are prepared. It is stated that the tabulation register contains the name of the students, father's name, date of birth and roll number besides the marks awarded. It is his case that the High School certificate can only be issued to a candidate who is successful in the High School examination and in the name as mentioned in the tabulation register against the roll number. The High School certificates are not issued in favour of the candidates who fail in the High School examinations. Affidavits filed by the Secretary of the Board have been referred to for the purpose. It is also stated that having regard to the name of the candidate mentioned in the tabulation register against roll no. 511719, High School certificate could have been issued in the same name only i.e. in the name of Arugya Kumar Mishra. If it is the case of respondent no. 3 that there was an spelling mistake in the name of the candidate with roll no. 511719 then the minimum expected was that he should have made an application for correction therein, as per the statutory provisions and within the time provided there for. With reference to the letter of the U.P. Board forwarding the High School certificate to the institution in the year 1978, it is submitted that if there was an error in the name recorded in the High School certificate vis-a-vis the name recorded in the tabulation register which is the basic document, the Principal of the College was obliged to return the certificate along with his report by registered post to the Board for necessary corrections. It has specifically been stated that no such registered letter was ever received from the Principal of the Ghatampur institution.

Shri Ramesh Upadhyaya could not explain as to how the High School certificate could be issued on 01.09.1998 in the name of Arun Kumar Mishra with the roll number 511719 when the U.P. Board had issued the High School mark-sheet with Roll No. 511719 in favour of Arugya Kumar Mishra on 02.09.1998. . With reference to the various regulations framed under the Intermediate Education Act, 1921 he explained the detail procedure which is contemplated for corrections, issuance of duplicate copies of mark-sheet and certificates to the candidates. It is explained to the Court by the Chief Standing Counsel that in fact no application was received from the student with roll no. 511719 at any point of time for re-evaluation/scrutiny in accordance with the procedure prescribed under the regulations framed under the Act, 1921. It is only on the letter of the Principal of the College who was the father of respondent no. 3 that the Additional Secretary on instructions from the Secretary held an enquiry on 12.08.1976 and thereafter directed for evaluation of the scored out answers of two English papers and one of science paper of the student concerned. After such evaluation a letter was sent in respect of revision of the marks of the candidates under letter dated 25.08.1976 but he fairly admitted that neither the letter of the additional Secretary dated 30.07.1976 nor the enquiry report dated 12.08.1976 nor the original letter dated 25.08.1976 are available with the Board nor there is any record qua re-evaluation of the answer sheets. He specifically admitted that there is no order for weeding out the said documents.

He explained that the extreme right of the tabulation register also contains the name of the student, his father's name, date of birth and his roll number and is perforated. After the tabulation register are prepared the extreme right of the register is torn and sent for preparation of the High School Certificates. He admitted that in no case a certificate can be issued in the name not mentioned in the tabulation register against the roll number concerned. It is also admitted by him that the tabulation register is the basic document for the purposes of preparation of the High School mark-sheet as well as the High School certificate.

According to him the U.P. Board had acted upon the letter of the Principal of the College dated 25.06.1976 for the purposes of evaluation/re-evaluation of the answer-sheets of roll no. 511719 and that this letter of Principal dated 25.06.1976 did not contain the name of the student who had appeared in the High School examination with roll no. 511719. From where the Additional Secretary could gather the name of the student with Roll No. 511719 was Arun Kumar Mishra could not be explained by him. He stated that there is no order of the Secretary of the U.P. Board available on record accepting the alleged report dated 12.08.1976.

Shri Ramesh Upadhyaya with reference to the agenda of the meeting dated 23/24.09.1976 and the minutes of the meeting held on the same date suggested that the name of the student with roll no. 511719 was Arun Kumar Mishra. It is stated that original records have gone missing and an F.I.R. has already been lodged.

On behalf of the Awadh University it has been stated by Shri Neeraj Tewari, Advocate that in accordance with the Ordinances of the Kanpur University which were adopted by the Awadh University at the relevant time, no student was entitled to appear in the University examination unless he had been enrolled as a student of the University (Ref. Chapter III, Paragraph 1). It is then stated that the process for enrollment as a student of the University had to be completed by Ist of October of the academic session in the first year of the course (Ref. Paragraph 4 of Chapter III). He further stated that the application made by Arun Kumar Mishra for enrollment in the B.Tech. Course is dated 29.11.1980. There are no details available with University qua deposit of enrollment fee by him nor the University has any record to disclose the dates on which B.Tech. Part I to Part IV examinations had taken place in the respective years which respondent no. 3 claims to have undertaken. He further stated that in the original mark-sheet issued to Arun Kumar Mishra, the column against the enrolment number is blank.

With reference to the affidavit filed by the Vice Chancellor of the University he stated that the original Degree which had been produced by Arun Kumar Mishra before the High Court cannot be verified by the University as no records in that regard are available. The University has also lodged an F.I.R. in respect of the loss of the documents.

Shri Ramesh Upadhaya, Advocate has also appeared as counsel on behalf of the KNIT, Sultanpur. It is stated that the B.Tech. Degree was issued by the College in favour of the student in the year 1998. However, no records are available with the College including the original application made for admission to B.Tech. Course, Transfer Certificate, deposit of fee towards enrollment with the University or in the matter of issuance of the enrollment number.

The mark-sheets which have been issued to Arun Kumar Mishra have been issued by the institute and the name of persons who have signed the same has been disclosed.

On behalf of the employers UPSIDC, we have heard Shri V.K. Singh, Senior Advocate assisted by Shri Kartikey Saran, Advocate. It may be recorded at the very outset that the counsel for the UPSIDC fairly stated that the original records including the application and the document submitted by Arun Kumar Mishra at the time of entry into service with UPSIDC as well as the documents pertaining to the promotion of Arun Kumar Mishra from the post of Executive Engineer to that of Chief Engineer (Project) have gone missing. It has been stated that an F.I.R. has been lodged in that regard. Therefore, the original documents cannot be produced.

It is explained that the UPSIDC is a government company. Article 90-A of the Memorandum of Association give the power to make appointments including creation of post to the Board of Directors with the approval of the State Government. Article 86 provides that the Board may confers such powers upon the Director as it may deem fit. It is specifically stated that at the time respondent no. 3 was appointed as Assistant Engineer and thereafter promoted to the post of Executive Engineer, the rules known as U.P. Industrial Development Corporation Employees Service Rules,1978 (herein after referred to as 'Rules, 1978') as framed by the Board of Directors on 04.11.1976, (the date of commencement whereof was 01.01.1979) were applicable. Rule 18 of Rules, 1978 lays down the procedure and manner of appointment through different sources. The different sources as contemplated under the Rules, 1978 are (a) direct recruitment, (b) promotion, (c) deputation and (d) any other mode as the appointing authority may decide.

It is stated that these Rules are binding upon the Board authorities and appointment/promotion has to be made in accordance with these rules only. Respondent no. 3 had been promoted from the post of Assistant Engineer to that of Executive Engineer on 26.08.1998 in exercise of powers under Rule 18 on the criteria of 'merit' and not on the criteria of seniority subject to the rejection of unfit. Similarly, it is stated that Respondent No. 3 was promoted on the post of Chief Project Engineer under orders dated 20.10.2003 with reference to the no objection granted by the State Government under letter dated 21.12.2002. Subsequently amendments were made in Rule 18. It is admitted that no records of Selection Committee or the select panel prepared for the post of Chief Project Engineer are available with the UPSIDC.

With reference to the scope of writ of quo warranto, it is submitted on behalf of the UPSIDC that this Court may not enter into the issue of suitability of a candidate. For the purpose reference has been made to the judgments reported in 2010 (9) SCC, 655 (Hari Bansh Lal vs. Sahodar Prasad Mahto and others) and in the case of Dhobei Sahoo and others (supra).

It is admitted by him that the proceedings before the C.B.I. Court, Dehradun are still pending and the respondent no. 3 is on bail. Reference has also been made to the various letters written by the UPSIDC to the U.P. Board and the University for verification of the education certificates of respondent no. 3 and it is suggested that the UPSIDC has done its best to verify the same.

Shri Ravi Kant, Senior Advocate was heard on behalf of the Intervenor, Shri S.P.Mishra, the father of respondent no. 3. With reference to the Evidence Act, he suggested that the documents which have been produced by the father of respondent no. 3 must be deemed to be true by this Court. It is the duty of the petitioner to establish the identity of the candidate who passed the High School examination with roll no. 511719 as suggested i.e Arugya Kumar Mishra. Since no such person could be identified by the petitioner his petition must fail. He also suggested that this Court may draw a presumption that the tabulation register produced by the Board is not correct.

Shri Shashi Nandan, Senior Advocate and Sri H.N. Singh, Senior Advocate have been heard on behalf of respondent no. 3 in great detail. At the outset it was stated that having regard to the averments made in the writ petition the onus of establishing that there existed a candidate with the name of Arugya Kumar Mishra who undertook the Board Examination of 1976 is upon the the petitioner. Since the petitioner has failed to discharge this burden, his petition is liable to be thrown out. With reference to the document brought on record and which have been referred to herein above, with regard to Arun Kumar Mishra namely the scholar register, affidavits of teachers and Class IV employees and co-students, it is submitted that the candidate who had undertaken the High School examination in the year 1976 as a regular student of the institution at Ghatampur was Arun Kumar Mishra. There was no student with the name of Arugya Kumar Mishra. He submits that the scholar register is the sole document which establishes the identity of the student who has appeared as a regular candidate in the Board examinations. The fact in issue is as to whether Arugya Kumar Mishra was the student who had appeared in the High School examination of the U.P. Board in the year 1976 with roll no. 511719 or not. Since the fact in issue had not been proved by the petitioner as contended by him, his petition must be dismissed.

Shri Shashi Nandan stated that any prudent man on receipt of the High School mark-sheet if he finds that his name has not been correctly spelled would make an application for necessary correction with the Board. He tried to suggest that respondent no. 3 could come to know that his name has wrongly been spelled in the tabulation register of the High School examination of the year 1976 only when the records thereof were examined before this Court in this writ petition. On coming to know of the said typing mistake, he did make an application for correction in the tabulation register on 30.01.2014 with the U.P. Board which application has wrongly been rejected. Against the order of the Board, the respondent no. 3 has filed writ petition no. 26438 of 2014 before the High Court which is pending. He further explained that there is no application by Arugya Kumar Mishra seeking any correction in the High School certificate which stands in the name of Arun Kumar Mishra, therefore, also the challenge to High School qualifications of respondent no. 3 be repelled. In support of the said plea, he also contended that if the candidate had failed in the High School examination as admitted on record and the candidate was Arugya Kumar Mishra, why he did not make an application for re-evaluation of his answer-sheets, and how could he make an application for High School Certificate when High School Certificate is only issued to candidate who has passed the High School Examination.

Applications are said to have been made by the petitioner with fictitious address and fictitious signatures for issuance of duplicate copies of High School mark-sheet and certificate of Roll No. 511719 repeatedly. He then contended that the issue as to who had appeared in the High School examination of the year 1976 with Roll No. 511719 must be decided by the U.P. Board at the first instance and not by the High Court. The High Court must await the decision of the U.P. Board, instead of entering into the said issue itself.

Shri Shashi Nandan submitted that none of the statutory authorities namely the U.P. Board and the Awadh University had taken any responsibility in the matter of non-production of the original records. It is the respondent no. 3 who is being made to suffer.

So far as the discrepancy in the date of making of the application for admission by respondent no. 3 in the institution as per the application dated 30.07.1974 and the date of admission as mentioned in the scholar register i.e. 26.07.1974 is concerned, he fairly stated that he cannot explain the same and according to him it appears to be a mistake.

He submitted that the Court may direct special investigation in the facts of the case for verification of the letter of Addl. Secretary, U.P. Government dated 25.08.1976 enclosed at page 119 of the writ petition and for ascertaining as to whether the original name recorded therein is Arun or Arugya. He further submits that the mistake, if any, in recording of the name of the student with roll no. 511719 in the tabulation register is that of the U.P. Board for High School and Intermediate, the respondent no. 3 may not be made to suffer for their lapse.

With reference to the applications made for issuance of duplicate copy of the mark-sheet and certificates and the signatures appended therein, he tried to suggest that an attempt was being made at the behest of the petitioner to somehow or the other search out something against respondent no. 3 so as to jeopardize his career. He also submitted that there is no challenge to the Intermediate examination which had been cleared by the respondent no. 3 and the issuance of mark-sheet and certificate in that regard.

With regard to the B. Tech. qualifications he reiterated that if the University has failed to mention the enrollment number in the mark-sheet and in the Degree, then it is no fault of respondent no. 3 nor the Degree granted in his favour can be disputed on that ground.

He points out that in the writ petition, there was no challenge to the appointment of the petitioner in the UPSIDC and it is only through the supplementary affidavit that such challenge is sought to be introduced and by means of second supplementary affidavit doubts have been raised with regard to the promotion of respondent no. 3.

He adopted all the submissions made by Shri V.K.Singh, Senior Advocate on behalf of UPSIDC in the matter of regularization and promotion of respondent no. 3 to the post of Executive Engineer and thereafter to the post of Chief Engineer.

Shri Shashi Nandan submitted that his appointment, regularization as Assistant Engineer, promotion as Executive Engineer and as Chief Engineer is strictly in accordance with the provisions applicable and the challenge has no merits.

With reference to Rule 18 of the Service Rules, it is explained that group 'A' post is a selection post and criteria is merit, while for group 'B' and group 'C' posts the criteria is seniority subject to rejection on unfit. Reference is also made to the power of the appointing authority to modify the source of recruitment or stipulated percentage for direct recruitment and promotion.

It is stated that the Board of Director's has adopted regularization as the other mode for appointment on the post of Assistant Engineers. This, decision is final.

It is further his case that under the resolution of the Board dated 22.02.1994 seven temporary Assistant Engineers were regularized and therefore if the Court finds that such regularization is illegal then all other similarly appointed Assistant Engineers must be dealt with similarly. He has referred to the proceedings of the selection committee dated 26.08.1998, with reference to which he was promoted on the post of Executive Engineer.

It is explained that Chief Engineer Project is a higher post in the Engineering Department above the Executive Engineer and that no person was available to fill the vacancy after 19.07.1997. Reference is also made to the order dated 28.04.1995 of the Apex Court passed in Special Leave to Appeal No. 2445 of 1995; Ajit Singh vs. Managing Director, UPSIDC The Apex Court had required the UPSIDC to look into the suitability of its own officers before extending the deputation of employees of other departments.

He explains that in compliance with the order of the Apex Court the post of Executive Engineer, which is group 'A' post, was filled by promotion from amongst its employees by U.P.S.I.T.C. on the criteria of 'merit'.

It is submitted that the method of appointment on the post of Chief Project Engineer in 2002 was by way of deputation. However, the State Government vide order dated 21.02.2002 granted no objection for filling up of the post of Chief Engineer from amongst departmental employees by way of promotion. Reference is also made to the resolution of the Board of Directors passed in its meeting no. 243 dated 28th December, 2002 whereunder the Managing Director was authorized to take a decision in the matter of appointment on the post of Chief Project Engineer as per service rules of Corporation in consultation with the Chairman.

It is then stated that in 244th meeting dated 28.03.2003 it was resolved that any amendment in the service rules will be subject to the approval from Bureau. Amendments had been made in the service rules which provided for filling up of the post of head of department and one post below by promotion. It is stated that since no objection had been granted earlier by the State Government vide order dated 21.12.2002, the promotion of respondent no. 3, which has since been approved by the State Government, has to be held to be in accordance with law. Reference has been made to the condition incorporated in the said letter of the State Government, which provided that for the post of Project Engineer the selection committee shall be as per the Government Orders of Department of Public Enterprises.

Details of all eligible candidates sent to the State Government, and the recommendation of the selection committee under the Chairmanship of the Secretary, Food and Civil Supply which met on 16.10.2003 and recommended respondent no. 3 for promotion, and also the order of Joint Director, UPSIDC dated 20.10.2003 for the promotion of respondent no. 3 have been given. It is stated that the post of Chief Project Engineer has been re-designated as Chief Engineer Project.

With regard to the pendency of the criminal proceedings and the departmental proceedings it is submitted that they are separate proceedings and are not subject matter of this petition.

Shri Manish Goyal, counsel for the petitioner in rejoinder affidavit, submits that it is admitted to the Board of High School and Intermediate that in the mark-sheet issued on 02.09.1998, the name of the student is mentioned as Arugya Kumar Mishra. The Board has not issued any mark-sheet with the name of Arun Kumar Mishra against roll no. 511719. The mark-sheet produced by Arun Kumar Mishra issued under the signatures of his father has been prepared only after the present writ petition was filed by ante dating the same. He further explains that the document dated 30.07.1976 and dated 25.08.1976 issued by the Additional Secretary in the name of Arun Kumar Mishra are fabricated documents, the original whereof do not exist.

Issuance of mark-sheet dated 02.09.1998 in the name of Arugya Kumar Mishra with roll no. 511719 and the same being in possession of Arun Kumar Mishra is established from the record beyond doubt in view of the correction application made by Arun Kumar Mishra dated 30.01.2014 with the Board. Therefore, it does not lie in the mouth of respondent no. 3 to assert that he was not aware that the name of the student who had passed the High School examination of 1976 with Roll No. 511719 was Arugya Kumar Mishra. The plea that it was only during the proceedings of this petition that the respondent no. 3 could ascertain that the name of the student, who had passed the High School Examination of 1976 with Roll No. 511719, was Arugya Kumar Mishra, is clearly a misstatement of fact contrary to the own admission of respondent no. 3 as per the application, referred to above.

He submits that the 'fact in issue' is as to whether Arun Kumar Mishra had passed the High School examination with roll no. 511719 or not. The material facts on record as well as the document produced before this Court lead to only one conclusive inference that Arun Kumar Mishra had not passed the High School with Roll No. 511719 and he has also not passed the High School examination with any other roll number at any other point of time. All subsequent qualification obtained by him would fall automatically. He also disputed the correctness of the affidavits which have been produced in support of respondent no. 3 said to be that of teachers, staff of the college and the co-students of the Ghatampur institute. He submits that these documents have all been prepared for the purposes of this petition during its pendency. From the reading of the said documents, it is clear that none of the affidavits state that there was no candidate with the name of Arun Kumar Mishra in Class X in any other section of the institution. The facts stated on behalf of respondent no. 3 in support of his B.Tech. qualifications have also been challenged with reference to material on record.

Shri Manish Goyal further submitted that it is admitted to respondent no. 3 that he has been promoted as Executive Engineer on the criteria of 'merit' and not on the criteria of 'seniority subject to the rejection of unfit'. The criteria so adopted for promotion is illegal. The post of Executive Engineer is a Group 'A' post and as per the Rules, 1978, as were applicable on the relevant date, appointments at the first instance could be made through open market selection only. If the appointing authority took a decision to fill the same by promotion from amongst the working employees, as is alleged to have been done in the facts of the case, then the principle of seniority subject to rejection of unfit had to be applied. He further submits that so far as the promotion on the post of Chief Engineer is concerned, it is alleged to have been made in accordance with the rules as enforced on 20.08.2003 but these rules were subject to the approval of the Bureau (Reference : Minutes of 244th meeting of the Board), no such approval from the Bureau had been obtained before acting upon the amended rules. Therefore, on the said ground also the promotion of respondent no. 3 as Chief Project Engineer must fall. Even otherwise once the promotion on the post of Executive Engineer is held to be illegal, his subsequent promotion on the post of Chief Engineer from the post of Executive Engineer would be rendered void.

Lastly he submits that two years work experience certificate as sought to be introduced in the present proceedings by means of the supplementary affidavit filed on 01st July, 2014 had not been filed before the UPSIDC at the time of appointment nor there is any averment in that regard before this Court.

He prays that this Court may grant the reliefs prayed for and may issue a writ of quo warranto against respondent no. 3.

We have heard learned counsel for the parties and have examined the records of the present petition.

The scope of a writ petition in the nature of quo warranto has already been noticed by us herein above in detail. We only reiterate that on a writ of quo warranto being filed it is the responsibility of the Court to ensure that a person, who is not qualified for the post as per the provisions applicable, is not permitted to continue to hold the public post even if he has the support/connivance of the executive authority.

We have followed a path in the conduct of these proceedings with the ultimate design and desire to ensure that the truth emerges and no litigant is permitted to take shelter behind clouds for avoiding truth being brought out before this Court.

The Apex Court in its judgment reported in (2012) 3 SCC 387 Sudevanand vs. State through C.B.I. has laid down that the law casts a duty upon the Court to arrive at truth by all lawful means.

We, after hearing the counsel for the parties, find that the parties are at variance as to what is the 'fact in issue' in this petition.

According to the counsel for the petitioner the fact in issue is (a) as to whether Arun Kumar Mishra (respondent no. 3) has passed the High School examination in the year 1976 with Roll No. 511719 as is claimed by him. (b) whether he has actually obtained a B. Tech Degree from any recognized University in accordance with the statutory provisions applicable. (c) whether his confirmation as an Assistant Engineer in the employment of UPSIDC under order dated 12th November, 1986 is in conformity with law or not. (d) whether respondent no. 3 had been promoted on the post of Executive Engineer in accordance with the service rules applicable to the employees of UPSIDC and (e) as to whether respondent no. 3 had been promoted on the post of Chief Engineer in accordance with the service rules applicable.

On behalf of respondent no. 3 it is submitted that the fact in issue is as to whether there was any candidate in the name of Arugya Kumar Mishra who had undertaken the High School Examination in the year 1976 with Roll Number 511719 and if the petitioner is not able to establish the said fact then the petition must fail.

We may at the very outset record that in our opinion in the instant writ petition for a writ of quo warranto against respondent no. 3 the facts in issue are as to whether Respondent No. 3 has valid qualification for the post on which he was initially appointed and as to whether his regularization as Assistant Engineer, promotion as Executive Engineer and thereafter as Chief Engineer Project is in accordance with the rules applicable or not. These are the issues which are to be decided by the Court.

Arun Kumar Mishra is not an ordinary officer. The facts on record before this Court establish that the following original documents qua Arun Kumar Mishra are either non existent or are alleged to have gone missing from the respective institutions/bodies and have not been produced before this Court despite specific orders:

(a) All documents pertaining to High School Examination, 1976 qua Roll No. 511719 except tabulation register.

(b) Original letter no. Patrank-go-3/rkc 932 dated 30th July, 1976.

(c) Enquiry report dated 12th August, 1976.

(d) Order of the Secretary of the U.P. Board dated 25.08.1976.

(e) Letter of the Additional Secretary No. Patrank-G.O-030(3) 1128 dated 25.08.1976 .

(In respect of loss of documents a first information report is stated to have been lodged by the Board).

(f) No records pertaining to the submission of the application for admission, deposit of fee for enrollment in respect of B. Tech Course are available with the K.N.I.T., except for few fee receipts no other documents are available.

(g) Awadh University has disclosed that except for tabulation register and the enrollment book no other records pertaining to Arun Kumar Mishra are available with the University. The University has not disclosed as to on what dates the examinations of the Ist year, 2nd Year, 3rd Year and 4th Year of B. Tech, said to have been undertaken by Arun Kumar Mishra, were held.

(h) The degree produced by Arun Kumar Mishra in respect of B. Tech Examination had not been verified by the University for want of relevant records.

(In respect of loss of original records, first information reports have been lodged by the University).

(i) UPSIDC the employers of Arun Kumar Mishra have stated that Volume-I of his service records, which contained the testimonials submitted at the time of entry into service of UPSIDC, have gone missing.

(A first information report has been registered by the UPSIDC in respect of loss of documents).

(j) All records pertaining to the selection of Arun Kumar Mishra qua his promotion on the post of Chief Engineer are stated to be missing by the State Government.

(A first information report has been lodged by the State Government).

Loss of the original records in all of the four institutions, which have something or the other to do with the qualification and service career of Arun Kumar Mishra, appears to be a too big a co-incident to be accepted by a reasonable man.

The documents, which are being produced by these bodies/institution, are only suggestive in nature and shall be dealt with at the appropriate stage.

So far as work and performance of Arun Kumar Mishra while in the employment of UPSIDC is concerned, suffice is to record that he is facing trial before the C.B.I. Court, Dehradun. He was arrested and was confined to jail for 163 days between 27.04.2011 to 05.10.2011. He is admittedly on bail in the aforesaid criminal case.

Before the C.B.I. Court charge-sheet has been filed by C.B.I. wherein serious charges of fraud and huge loss caused to UPSIDC are alleged against Arun Kumar Mishra.

Three first information reports have been lodged by the Special Investigation Team (SIT) against Arun Kumar Mishra dated 07.09.2007, dated 10.09.2007 and dated 30.05.2011.

The Directorate of Enforcement has filed Enforcement Case Information Report (ECIR) dated 24.02.2011 in respect of several bank accounts opened with fictitious names but which were actually operated by Arun Kumar Mishra. Various properties have been attached. The attachment order whereof has been confirmed by the Adjudicating Authority of Directorate of Enforcement vide order dated 21.03.2013. Against said confirmation order, appeal is stated to have been filed.

The proceedings initiated by the Directorate of Enforcement reflect ill gotten wealth by respondent no. 3 to the tune of about Rs. 200.00 Crores. It discloses 67 bank accounts fraudulently opened and operated by respondent no. 3.

The report of CAG also adversely reflects upon the working of Respondent No. 3 in UPSIDC as Chief Engineer.

The latest incident brought on record before this Court pertaining to Arun Kumar Mishra is the seizure by the Directorate of Enforcement on 18.04.2014 of a property (bungalow) at New Delhi, the worth whereof has been disclosed as Rs. 300.00 Crores.

Now turning to the most contentious issue between the parties qua Arun Kumar Mishra having passed High School Examination at any point of time or not. The Court finds from the original tabulation register which has been produced by the U.P. Board before this Court that the name of the student who had passed High School Examination in the year, 1976 as a regular student of the institution at Ghatampur with Roll No. 511719 is recorded as Arugya Kumar Mishra. The tabulation register further reflects that on declaration of result of the High School Examination the student with Roll No. 511719 had failed in the subject of English and was given an option to appear in the supplementary examination in the said subject. He was awarded 7 and 14 marks respectively in English-I and English-II paper. Similarly, he had secured only 44 marks in the subject of Science.

This tabulation register further reflects that there is an endorsement dated 25.08.1976, which reads as follows:

Þvuqdzekad 511719& lfpo ds vkns'k fnukad 28-7-1976 rFkk tkap lfefr dh laLrqfr fnukad 12-8-1976 ds vuqlkj mijksDr vuqdzekad ds ifj{kkFkhZ dh fyf[kr mRrj iqfLrdkvksa esa dVs gq, iz'uksa dk ewY;kadu djkdj ijh{kkQy la'kksf/kr fd;k x;kA ifj{kkQy ikl u fd QsyA ,l0Mh0 vfr0 lfpo la;qDr lfpoß The Secretary of the Board in the affidavit filed on 18th April, 2014 in paragraph 3, 4 and 5 has referred to the order of the Secretary dated 28.07.1976, the recommendation submitted by the enquiry committee dated 12.08.1976 and to the fact that the cancelled answers of the student with Roll No. 511719 were evaluated and result declared thereafter as per the letter dated 25.08.1976 (enclosed at page 119 of the writ petition and page 75 of short counter affidavit of respondent no. 3.

From a simple reading of the order dated 25.08.1976 on the basis whereof the respondent no. 3 and his father claim that a revised tabulation sheet was forwarded qua the student with Roll No. 511719 after re-evaluation of the answer-sheets of English and Science, we find that it specifically records that results of such candidates which were incomplete have now been completed by the Board. The relevant tabulation records may be completed and mark-sheets may be issued to the student concerned. This letter does not refer to any re-evaluation of the answer-sheets of Roll No. 511719 on the contrary suggest that the incomplete result has now been completed, which was not the case of Respondent No. 3.

The minutes of the meeting of the Examination Committee dated 23/24th September, 1976, enclosed as Annexure-1 to the affidavit dated 18.04.2014, are not verbatim copies of the alleged original resolution as produced before us in respect of item no. 15 relevant for our purposes. At note-3, it has specifically been mentioned that answer-sheets be got re-evaluated through concerned '2' Deputy Head Examiner. Figure-2 is missing in the document enclosed along with the affidavit, vis-a-vis the alleged original produced before the Court.

It is also worthwhile to mention that the agenda dated 20th September, 1976, which was circulated for the meeting of the Examination Committee (a copy whereof has been produced before the Court) was in respect of the meeting to be held on 23rd September, 1976. No meeting was scheduled for 24th September, 1976. This agenda which bears the signatures of the Secretary contains 20 topics and the issue pertaining to the candidate with Roll No. 511719 is mentioned at Item No. 16. While in the meeting held under the agenda, total 22 issues have been considered. The topic pertaining to student with Roll No. 511719 is mentioned as Item No. 15. These are only some of the discrepancies, besides other i.e. large number of over writing in the original records, which have not been signed by any member at any place except for the last page which bears 24-10.1976 as the date.

The relevant item no. 15 of the minutes of the Examination Committee reads as follows:

Þ15& lfefr us turk vkSn~;ksfxd fon~;ky; b.Vj dkyst] ?kkVeiqj] dkuiqj dzsUnz ls lfEefyr gkbZLdwy ijh{kk] 1976 ds ijh{kkFkhZ v:.k dqekj feJ vuqdzekad 511719 ds lEcU/k esa dh xbZ vfu;ferrkvksa ij lfpo n~okjk fu;qDr tkap lfefr dh vk[;k ,oa laLrqfr ij fopkj fd;kA uksV %& ¼lfefr dks voxr djk;k x;k fd tkap lfefr ds laLrqfr ds vuqlkj ijh{kkFkhZ dk ijh{kkQy la'kksf/kr dj ?kksf"kr dj fn;k x;k gSA½ ijh{kk lfefr dk fu'p;%& lfefr us fu'p; fd;k gS fd turk vkSn~;ksfxd fon~;ky; b.Vj dkyst] ?kkVeiqj] dkuiqj ds dzsUnz O;oLFkkid rFkk dsUnz O;oLFkkid dks ifj"kn~ ds fdlh Hkh ikfjJfed dk;Z gsrq ¼dsUnz O;oLFkkidRo lfgr½ Hkfo"; esa dHkh Hkh vkefU=r fd;k tk;A 2& bl "k.k;U= ls lEcfU/kr d{k fujh{kdksa ¼lwph layXu ifjf'k"V&t½] voekspdksa] lg d{k fujh{kdksa] lhfyax iSfdax ds v/;kidksa rFkk Jh f'ko dqekj lpku dks d{k fujh{kd dk;Z lfgr ifj"kn~ ds leLr ikfjJfed dk;Z gsrq Hkfo"; esa dHkh Hkh vkefU=r u fd;k tk;A 3& ijh{kkFkhZ vuq0 511719 dh ftu m0iq0 esa mRrj uyh L;kgh ls dkVdj lgh fd; x;s gSa mudk ewY;kadu iqu% lEcfU/kr m0iq0 ijh{kd ls djk;k tk;A 4& lfpo n~okjk d`r dk;Zokgh dk vuqeksnu fd;k tk;A 5& tkap vk[;k ds dze 3] 4] 5] 6] 7 rFkk 8 ;Fkkor Lohd`r fd;k tk;A 6& fo"k; ls f'k{kk funs'kd] m0iz0 dks voxr djkrs gq, muls vuqjks/k fd;k tk; fd lEcfU/kr O;fDr;ksa ds fo:+} ftruh Hkh gks lds dMh ls dMh dk;Zokgh djsaA fon~;ky; ds izcU/kkf/kdj.k dks Hkh fy[kk tk; fd os nks"kh O;fDr;ksa ds fo:} iz'kklfud dk;Zokgh djsaA d`r dk;Zokgh ls f'k{kk funs'kd rFkk ifj"kn~ dks Hkh voxr djkosaAß From a simple reading of the aforesaid endorsement made on the tabulation register and the minutes of the Examination Committee dated 23/24th September, 1976 quoted above, what emerges is that under the alleged order of the Secretary of the Board dated 28th July, 1976 an enquiry was directed to be conducted in respect of the complaint received qua the High School Examination answer sheets of the student with Roll No. 511719. The enquiry committee submitted its report after enquiry dated 12.08.1976. Thereafter, an endorsement has been made on the tabulation register on 25.08.1976 by the Additional Secretary and the Joint Secretary, as quoted above.

There is absolutely no mention in the tabulation register, or in the affidavit of the Secretary, or in the affidavit of respondent no. 3 or in the affidavit of the father of Respondent No. 3 in respect of the following facts:

(a) Who directed, after acceptance of the enquiry report, that the scoured out answer be got evaluated afresh and by whom.

(b) When were the answer sheets evaluated and by whom.

From the reading of the resolution of the Examination Committee dated 23/24th September, 1976 it is apparent that the report of the enquiry committee dated 12.08.1976 had been accepted for the first time in the meeting of the Examination Committee held on the said date. Therefore, by no stretch of imagination there could have been a direction for evaluation of the answer sheets in respect of the scored out answers even without acceptance of the report of the enquiry committee. It is for this reason that there is no order on record of the Secretary accepting the enquiry report or for directing evaluation of the scored out answers.

What is important to note is that in the first part of the minutes of the meeting a note has been added qua information of the declaration of the result to the candidate but so far as the decision taken in the meeting is concerned, the note has not been approved. On the contrary the decision as per the resolution is that the answer-sheet of Roll No. 511719 be got re-evaluated through Deputy Head Examiner. Whether the Deputy Head Examiner re-evaluated the scoured out answers of the answer sheet of the candidate with Roll No. 511719, and if so what was the result, has not been disclosed in any of the affidavits.

What is worst is that from the affidavit filed by the Secretary of the Board it is an admitted position that neither the order of the Secretary dated 28th July, 1976 nor the enquiry report dated 12.08.1976 are available on record.

It is further clear that the resolution records that the said decision may be approved by the Secretary of the Board, inasmuch as on the relevant date the resolution was passed i.e. 24 September, 1976, as per the information disclosed to the Court, the Secretary of the Board, Raghu Nandan Singh was not present in the meeting, as is reflected from the attendance of the members noticed at page-7 of the said Annexure-7.

What we further find is that there is no reference to any order of the Secretary dated 25.08.1976 in any of the affidavit of the Board or of respondent no. 3. The document enclosed as Anenxure-11 to the short counter affidavit filed by respondent no. 3, which bears the date as 25.08.1976 is only a letter sent by the Assistant Secretary on behalf of the Secretary.

Even in this letter dated 25.08.1976, enclosed at page 45 of the affidavit filed on 18.05.2014 by the father of respondent no. 3 there is an admitted overwriting in the name of the student. According to the father of Respondent No. 3 the fudging has been done by the Manager of the college (Ref. Para 44 of his affidavit).

On behalf of the Board it has been specifically stated that no order of the Secretary dated 25.08.1976 or for evaluation of the answer-sheet of Roll No. 511719 or for declaration of result after such evaluation is on record of the U.P. Board.

It is admitted to the Board as well as to respondent no. 3 that under the regulations framed under the Intermediate Education Act there is no power for re-evaluation of the answer-sheets. Regulation 2 (2) of Chapter VI-A of Part 2-B read with Rule 21 of Chapter XII of Part-2-B of the Regulations framed under the Intermediate Education Act permit scrutiny only.

Therefore, what follows from the aforesaid is that there had been no order for re-evaluation or evaluation of the answers, which have been scored out in the answer sheet of the student with Roll No. 511719, by any competent authority whatsoever. Even otherwise there exists no original records which could suggest that any such order for re-evaluation/evaluation was made by any authority including the Secretary of the Board.

The Chief Standing Counsel could not explain before this Court as to how the endorsement noted above could be made in the tabulation sheet without there being any order of the Secretary to that effect nor he could demonstrate that as to under which provision any authority, including the Secretary, could direct evaluation or re-evaluation of the answers even prior to acceptance of the enquiry report by the Examination Committee and by whom evaluation had been done and when. The endorsement only refer to an order of Secretary for enquiry.

Even for the sake of argument, it is accepted that such re-evaluation had taken place and the student was declared passed, the next issue arise for consideration is as to whether the name of the candidate, who had passed the High School Examination with Roll No. 511719, is Arugya Kumar Mishra or Arun Kumar Mishra.

From the affidavits filed by the Board, which have been specifically referred to by this Court herein above in detail, it is an admitted position that the tabulation register prepared by the Board of High School is the basic document for the purposes of issuance of mark-sheet to the student concerned as well as in the matter of issuance of High School Certificate to the student who has passed the High School Examination. It is the categorical case of the Board of High School and Intermediate that no High School Certificate can be issued to a student, whose name does not find mention in the tabulation register.

It has been explained to the Court that while the tabulation register is prepared immediately after the examinations are over and answer sheets of the students are evaluated, High School Certificates are prepared two years thereafter with reference to the details contained in the extreme right hand column of the tabulation register, which is perforated and which is torn out and transferred to the section concerned for preparation of High School Certificate. The tabulation register contains the name of the students, his father's name, date of birth and roll number, which is printed both on extreme left hand side and extreme right hand side.

From the affidavit filed by the Secretary of U.P. Board dated 10th February, 2014 (paragraph-4) as also from the affidavit dated 30th April, 2014 (paragraph-4), it is an admitted position that two tabulation registers are prepared in two different districts in respect of students, who appear in the High School examination conducted by the Board. Name of the student, his father's name, roll number and the subjects in which he had appeared in the examination are printed. Only marks received by the student in particular subjects are entered in hand writing with the help of Award Blank. One of these tabulation register is forwarded to the institution for issuance of mark-sheet to the student concerned and the other is retained by the Board.

It is further admitted on record that in the tabulation register of the High School examination of the year 1976, against Roll Number-511719, name of the student in both the tabulation registers is printed as "Arugya Kumar Mishra". The tabulation register produced by the Board has been examined by the Court. So far as the tabulation register available with the institution at Ghatampur is concerned, name of the student is mentioned as "Arugya Kumar Mishra" against Roll Number-511719, stands admitted from the verification report referred to in paragraph-11 of the affidavit of the UPSIDC dated 17th February, 2014.

It is further admitted on record that in the original tabulation register as forwarded to the institution, the student with Roll Number-511719 had failed in the subject of English and had been awarded only 44 marks in the subject of Science.

It does not stand to reason that respondent no.3, the son and Shree Prakash Mishra, the father, who was also the principal of the institution at Ghatampur could see that the student has failed in the subject of English and has been awarded only 44 marks in the subject of Science, which was not according to their assessment of the performance, but they could not see that in in the same column of the register, the name of the student was mentioned as "Arugya Kumar Mishra". The son and the father made complaints in respect of marks awarded in English and Science papers in writing vide their respective letters dated 20th June, 1976 and dated 22nd June, 1976, but both of them did not find it appropriate to make any complaint with regard to the name of the student printed against Roll Number-511719 in the same column of the same page of the same tabulation register.

Shree Prakash Mishra had the courage to file an affidavit contending that it was his son, who had appeared in the High School examination of 1976 but he did not have the courage to state that High School certificate, which was forwarded to the institution under the letter of the Board dated 2nd August, 1978, recorded the name of the student as "Arun Kumar Mishra". The father has produced the records pertaining to enrolment, scholarship register etc. of the students of the institution since 1974-1975 but he could not produce any document issued by the Board, which could establish that the right hand extreme of the tabulation register or the Certificate of the High School Examination of 1976 issued and forwarded under letter dated 25th August, 1976 by the Board contained the name of the student against Roll Number-511719 as that of respondent no.3.

There cannot have been an order by any authority of the Board including the Additional Secretary and the Secretary on 25.08.1976 that respondent no.3 had been awarded revised marks in English 1st and 2nd papers and in Science subject and he had passed high school examination in first division a month prior to the resolution of the Examination Committee dated 23/24.09.1976.

So long as the name of student with Roll No. 511719 in the tabulation register stands as Arugya Kumar Mishra, no mark sheet can be issued with the name of any other candidate with the said roll number including respondent no. 3 and, similarly, no High School Certificate can be issued in the name of respondent no. 3 against the said Roll No. 511719.

In paragraph 55 of his supplementary counter affidavit, Arun Kumar Mishra has stated that he could not trace his original certificates, he applied after completing all necessary formalities for issuance of duplicate copies of the certificates before the Awadh University and the U.P. Board. High School certificate was issued in his correct name on 01.09.1998. The relevant portion of the paragraph reads as follows :

"The High School certificate was issued on 01.09.1998 with his correct name, Arun Kumar Mishra."

It is, therefore, clear that prior to 01.09.1998 either the High School certificate had not been issued in favour of Arun Kumar Mishra or it contained the name of some other candidate.

The contention so vehemently pressed on behalf of respondent no. 3 and his father S.P. Mishra is that since there was no candidate with the name of Arugya Kumar Mishra in the institution, therefore, it is to be presumed that Arun Kumar Mishra has passed the High School Examination with the said roll number. This plea is supported by documents prepared by Sri S.P. Mishra, who at the relevant time was the Principal of Ghatampur institution and has personal interest in his son. These documents cannot be read in a manner so as to lead us to accept that what has been recorded in the official tabulation register is not correct.

The affidavit of the teachers, students and class-IV employees of Ghatampur institution, which have been filed before this Court by respondent no. 3, have all been prepared during the pendency of the present writ petition and these affidavits cannot in any manner suggest something contrary to what is recorded in the official records produced from the custody of the person responsible for safe keeping of the same. Such affidavits appear to have been prepared only for the purposes of litigation at the behest of respondent no. 3 and his father.

Sri Shashi Nandan, Senior Advocate was absolutely correct in stating before this Court that any common man, on receiving his High School mark sheet and finding that the spelling of his name is not correctly mentioned therein, would immediately make an application for correction, but how wrong the counsel is when he suggested that respondent no. 3 could come to know that the name of student who had passed the High School Examination with Roll No. 511719 in 1976 was recorded as Arugya Kumar Mishra only when he saw the records in the present writ proceedings, inasmuch as from the application made my Arun Kumar Mishra himself dated 30.01.2014 for correction in the tabulation register qua name of the student with Roll No. 511719, he had enclosed a High School mark sheet issued in the name of Arugya Kumar Mishra dated 02nd September, 1998. This mark sheet was in the possession of Arun Kumar Mishra. For the reasons best known to him, in none of the affidavits and in none of his nearly 25 applications, filed before this Court, he has disclosed as to when he received this mark-sheet dated 02.09.1998 and why he did not respond to the same for seeking correction for nearly 16 years. Why it took 16 years for respondent no. 3 to make the correction application even after having received the duplicate copy of the mark-sheet on 02.09.1998 in the name of Arugya Kumar Mishra has gone unexplained.

The Court may record that under the provisions of Regulation 7 of Chapter-III, Part-2 B of the regulation framed under the Act, 1921 correction in the High School mark-sheet and certificates can be made within a period of two years and that too by making of an application by registered post in the manner prescribed. Sri Arun Kumar Mishra has hopelessly failed to establish that any such application was ever made by him. It is only when he was faced with the challenge in the present petition then he was advised to make the correction application on 30.01.2014.

What is also worthwhile to notice by this Court is that in the application made before the UPSIDC, in response to the letter asking for original testimonials, Arun Kumar Mishra vide letter dated 31.08.1998 had informed that all his original testimonials right from High School to B. Tech have gone missing and he has applied for duplicate copy of the same and shall supply the same as soon as they become available.

If the statement so made by Arun Kumar Mishra is correct, it necessarily means that he did not have the High School mark-sheet issued by his father in his capacity as Principal of the college dated 25.08.1976. It leads to the possible conclusion that this mark-sheet dated 25.08.1976 has now been prepared with the help of his father by respondent no. 3.

There is any other reason for the said conclusion i.e. if the Respondent No. 3 had a valid mark-sheet issued by the Principal of the institution on 25.08.1976 on the basis of the tabulation sheet forwarded to the institution under letter dated 25.08.1976, then there was no reason for a duplicate copy of the mark-sheet being asked for in 1998 by Arun Kumar Mishra.

Non production of the mark-sheet dated 25.08.1976 issued by father of respondent no. 3 as Principal of Ghatampur institution before the UPSIDC despite repeated letters further leads to the presumption that such mark-sheet is a document prepared subsequently for the purposes of the present writ petition only.

A great emphasis has been laid by Shri Shashi Nandan, Senior Advocate on the scholar register of Ghatampur institution produced before the Court. This according to Shri Shashi Nandan is inconformity with Regulation 12 of Chapter I, Part II-B of the regulations framed under the Act, 1921 and is the only document to ascertain as to who was the student who had actually appeared in the High School examination of 1976.

In our opinion the scholar register does not inspire confidence for the following reasons (a) it has the signatures of the father of respondent no. 3 only (b) it is on record that the date on which the application for admission in the Ghatampur institution was made by Arun Kumar Mishra, respondent no. 3, is 30.06.1974 (Ref. Page 90 of the short counter affidavit filed by Arun Kumar Mishra dated 20.02.2014) while the date of admission as recorded in the scholar register is 26.06.1974 i.e. even prior to the making of the application. On a pointed query being made by the Court to the counsel for the respondent no. 3 to explain the said discrepancy, the answer given is that it cannot be explained and that it appears to be a mistake in recording of the date and (c) we find that the scholar's number as originally recorded in the application form has been scored out and new number has been written. What was the reason for scoring out the original number has not been explained to the Court.

The affidavits of the teachers, staff and the students have all been sworn in the year 2014 and have been prepared during the pendency of the writ proceedings.

So far as the verification which has been obtained by the UPSIDC qua the academic qualifications of respondent no. 3 are concerned, we find from the records that a letter was sent by the UPSIDC to the Board of High School and Intermediate seeking verification of the High School mark-sheet of respondent no. 3 but the verification report which has been accepted by the UPSIDC enclosed as Annexure-CA-4 has been forwarded by the Principal of the Ghatampur College to the UPSIDC who has delivered this letter and how, is not known. How could the Principal of the College verify the mark-sheet when the request for verification had been made to the U.P. Board. What reply was received from the U.P. Board to the verification letter has not been disclosed. Similarly, his degree and mark-sheet of B. Tech was never verified by the Awadh University, the Examining Body.

We, therefore, have no hesitation to record that the tabulation register of High School Examination of 1976, which is the authentic document, produced from the custody of the officer of the Board responsible for the safe keeping of the same has necessarily to be accepted as correct. The said tabulation register mentions the name of the student who appeared in the High School Examinations of 1976 with Roll No. 511719 as Arugya Kumar Mishra.

Respondent no. 3 has hopelessly failed to produce any mark-sheet issued by the Board which could establish that he is the person who had passed the High School examination with Roll No. 511719 in 1976 or with any other roll number or in any other year.

So far as the Intermediate Examination said to be undertaken by the Respondent No. 3 is concerned, we find that Respondent No. 3 has adopted a shifting stand. In para 20 of the short counter affidavit Respondent No. 3 has stated that he could not take admission in Class XI in the year 1977 and was admitted to Class XI in the year 1978, while in his affidavit dated 18.05.2014 he claims to have been admitted in Class XI in the year 1977 and to have passed Intermediate Examination in the year 1979. It is also worthwhile to record that in the said year the father of Respondent no. 3 became the Principal of Asteek Muni Inter College from where respondent no. 3 claims to have appeared in the Intermediate Examinations.

We may now examine the issue with regard to the B.Tech. Degree of Arun Kumar Mishra.

From the First Statutes as applicable to the Awadh University in the relevant year, it is established that for a student to appear in the University examination, it was mandatory that he was enrolled as a student of the University by 1st October of the academic year. From the record i.e. Enrollment Book produced before us by the University (of whatever worth it may be) and which has been relied upon by the Respondent no. 3, it is apparent that Arun Kumar Mishra made an application for enrollment dated 29.10.1980. Even in this application relevant details are completely missing. The column in respect of date of deposit of enrollment fee etc. are blank. Neither Arun Kumar Mishra nor the counsel for the University nor the counsel for the KNIT could lead any evidence worth consideration to establish as to when Arun Kumar Mishra deposited the prescribed fee for enrollment i.e. Rs.23/- with the University. The relevant column pertaining to the mark-sheet of qualifying examinations in the enrollment application of Respondent No. 3 are also blank.

Even if the stand taken by the respondents is accepted for the sake of argument that Arun Kumar Mishra was enrolled as student and was allotted enrollment number on his application dated 29.10.1980, then such enrollment could only be in respect of the academic year 1980-81 having regard to the date of the application, and not for any previous academic year. Counted on that basis the four academic sessions pertaining to four year B.Tech. Degree course would be 1980-81, 1981-82, 1982-83 and 1983-84 respectively. Therefore, by no stretch of imagination, Arun Kumar Mishra could have completed his four years B. Tech. Degree Course on 23.07.1983 as is claimed on his behalf and is sought to be established with the help of the tabulation sheet and the mark-sheet issued in his favour.

Another reason for not accepting the documents produced by the respondent no. 3 in respect of B.Tech. Degree is that in all the mark-sheet issued in his favour by the University, the column pertaining to enrollment number is blank. It is also worthwhile to mention that the UPSIDC while forwarding the Degree of Arun Kumar Mishra for verification under its letter dated 27.10.1997 to the Registrar, Awadh University, Faizabad had made mention of two roll numbers i.e. no. 5254 and no. 52511. Copy of the letter is enclosed as Annexure-11 to the writ petition. How could a student have two roll numbers has not be explained.

It is further important to notice that respondent no. 3 Arun Kumar Mishra who claims to have appeared in four year course of B.Tech., KNIT, the College as well as the Awadh University, which had conducted the said examinations, have all failed to respond to the query of the Court, as to on what dates the examinations of the Ist year, IInd year, IIIrd year and IVth year of the relevant B.Tech. Course had been conducted.

As a matter of fact the University had made a categorical statement on oath that no records are available qua respondent no. 3 i.e. Arun Kumar Mishra and in respect of the examinations of the relevant years. It is for these reasons that the Degree which has been produced by the respondent no. 3 had not been verified by the University at any point of time and even before this Court the Vice Chancellor had filed an affidavit indicating that there are no records available with the University on the basis whereof the Degree of Arun Kumar Mishra can be verified.

We, therefore, record that the B. Tech. Degree produced before us by Arun Kumar Mishra for the first time and the mark-sheets of B. Tech. course do not inspire confidence. Whatever has been produced before us appears to have been manufactured to suggest that the Arun Kumar Mishra had in fact passed the B.Tech. examinations.

Now coming to the service career of Arun Kumar Mishra, Respondent No. 3.

It is not in dispute that under the Advertisement published by the UPSIDC for the post of Assistant Engineer dated 28.05.1986 (Annexure SA-1 to the supplementary affidavit filed on 15.04.2014). The minimum qualifications prescribed was a Degree of Assistant Engineer (Civil) in first division and work experience of two years in a reputed establishment. The appointment was against a temporary post for a period of two years only.

It is the case of the petitioner that the respondent no. 3 did not have any work experience in a reputed establishment nor he had any valid Degree.

In paragraph 6 of the supplementary affidavit filed on behalf of the petitioner dated 15.04.2014 it has been stated that no material was placed before the UPSIDC at the time of appointment by respondent no. 3 qua his work experience of two years in a reputed firm. Reply has been given to the said averment in paragraph 4 of the supplementary counter affidavit filed on 18.04.2014 to the effect that the respondent no. 3 had submitted his experience certificate at the time of appointment and the Selection Committee after being satisfied with the same had offered appointment, but no document in support of the work experience nor the details of the establishment where the respondent no. 3 had worked nor the period of working had been disclosed. However, in the third counter affidavit filed on 01.07.2014, respondent no. 3 has stated that he had worked w.e.f July, 1983 to 04.08.1986 with Opal Engineering Company Ltd., Builder Engineers Architects under indirect employer namely Central Warehousing Corporation. A certificate issued by the Chairman of Central Warehousing Corporation had been brought on record as Annexure-1. This affidavit no where records that the said certificate had been produced at the time of appointment or that the original certificate had been submitted by Respondent No. 3 with the UPSIDC at the time of selection/appointment or at any other point of time.

From the appointment letter which had been issued in favour of Arun Kumar Mishra, it is apparent that he was offered time bound appointment as Assistant Engineer for two years which according to him had been extended from time to time.

U.P. State Industrial Development Corporation vide order dated 16th May, 1994, had regularized Respondent No. 3 on the post of Assistant Engineer w.e.f. 12th November, 1986 i.e. the date on which he joined the services of UPSIDC. Reference has been made to Rule 18 of the Rules of 1978 which discloses the sources of recruitment as (a) direct recruitment (b) promotion, (c) deputation and (d) through any other sources approved by the Board. The last clause of the Rule provides that notwithstanding anything contained in the said Rule, the appointing authority will have full power to modify the source of recruitment or the stipulated percentages for direct recruitment/promotion and the decision of the Appointing Authority shall be final.

UPSIDC under the non-obstante clause, claims to have opted for regulrization as a mode of appointment.

It is worthwhile to reproduce Rule 18 of Rules, 1978, as it stood at the the relevant time, it reads as follows:

"18. Sources of recruitment :

Appointments may be made either:

(a) by direct recruitment;

(b) by promotions of the Corporation employees through a departmental test or an interview or selection or by any other manner prescribed by the Board from time to time;

(c) by deputation or employment on contract basis;

(d) from any other source as approved by the Board.

All Groups A posts in the corporation shall be selection posts and will be filled by selection. Such of those Corporation employees who are eligible in terms of qualification, age and experience may also compete for selection.

Seventy five per cent of the Group B posts will be filled in by open market selection and the rest will be filled from the employees of the Corporation.

Fifty per cent of the Group C posts at the lowest level will be filled in by open market selection and the rest will be filled from the employees of the Corporation.

Seventy five per cent of the Group C posts at the lowest level will be filled in by open market selection and the rest will be filled up by the promotion from Group D staff of the Corporation.

The recruitment from amongst the employees of the Corporation by promotion will be made only if suitable candidates with requisite qualifications are available. In case the sufficient Number of employees are not available for filling in the quota by promotion, these posts may also be filled in by open market selection and there be no accumulation or carry over to subsequent years. In recruitment by promotion, the criteria of seniority subject to the rejection of 'unfit for holding the higher post' shall apply.

Notwithstanding anything contained in the above Rules regarding sources of recruitment, the Appointing Authority will have full powers to modify the source of recruitment or the stipulated percentages for direct recruitment/promotion and the decision of the Appointing Authority shall, in each such case, be final."

Reference may be had to the judgement of the Apex Court in the case of R. N. Nanjundappa vs. T. Thimmaiah & Another reported in AIR 1972 SC 1767, wherein in paragraph-26 it has been held as follows:

"The contention on behalf of the State that a rule under Article 309 for regularization of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable.

............Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

In the facts of the case admittedly, respondent no.3 Arun Kumar Mishra was appointed in response to an advertisement, which specifically stated that the vacancy was for a limited duration i.e. two years only at the maximum. Same is the term mentioned in his appointment letter. Such appointment firstly could not have been extended after expiry of the prescribed term of 2 years and even if it had been extended, the same could not have been regularized, specifically in the circumstance that Rule 18 of Rules, 1978 does not provide for regularization of time bound appointees. The respondents are not correct in suggesting that the Appointing Authority, while taking a decision to regularize the services of respondent no.3 Arun Kumar Mishra, had only chosen another mode of recruitment, as regularisation is not a mode of recruitment, as laid down by the Apex Court in the case of R.N. Nanjundappa (Supra). We, therefore, hold that the regularisation of respondent no.3 Arun Kumar Mishra on the post of Assistant Engineer in the facts of the case is illegal and contrary to Rule-18 of Rules, 1978.

From a simple reading of the Rule 18, it is apparent that so far as the criteria for appointment on Group A posts in the UPSIDC is concerned, all posts shall be selection posts and the same could be filled by open market selection. Such of those Corporation employees, who are eligible in terms of qualification, age and experience may also compete for selection.

So far as the criteria for promotion is concerned, it has been provided that in the matter of recruitment by promotion, the criteria of seniority subject to the rejection of 'unfit for holding higher post' shall apply.

Non-obstante clause of the Rule confers a power upon the Appointing Authority to modify the source of recruitment or the stipulated percentages for direct recruitment/promotion and the decision of the Appointing Authority, in each such case, shall be final.

It is admitted to the parties that the post of Executive Engineer is a Group "A" post.

On reading of the clause dealing with the Group 'A' Posts with specific reference to the words "may also compete for selection", in our opinion, leads to one conclusion only that appointment on Group 'A' posts has to be made by open market selection. All such employees of the Corporation, who possess the minimum qualifications, age and experience prescribed for the Group 'A' post, may also compete in such open market selection. This clause is, however, subject to the non-obstante clause, which confers a power upon the Appointing Authority to modify the source of recruitment or the stipulated percentage for direct recruitment and promotion.

It is neither the case of respondent no.3 Arun Kumar Mishra nor of the respondent U.P. State Industrial Development Corporation that any decision was taken by the Appointing Authority to modify the mode of direct recruitment for the post of Executive Engineer, which is a Group A post at any point of time, nor any document has been brought on record to suggest that the Appointing Authority decided to opt for the method of promotion instead of open market selection for the said post of Executive Engineer.

We may record that if such decision had not been taken by the Appointing Authority, then consideration of respondent no.3 Arun Kumar Mishra for promotion along with other candidates working as Assistant Engineers only in the UPSIDC to the exclusion of the candidates from open market and qualified employees of other category working with UPSIDC would be contrary to Rule 18 of Rules, 1978.

If it is presumed for the sake of argument that the Appointing Authority had taken a decision to fill the post of Executive Engineer by way of promotion, then in accordance with Rule 18 of Rules, 1978 criteria to be applied in the matter of such promotion had to be 'seniority subject to rejection of the unfit' and not 'merit', as has been admittedly resorted to in the facts of the present case.

We may reiterate that either appointment on Group A post of Executive Engineer could be made by way of selection through open market with a right upon all the eligible candidates already working in the UPSIDC to compete in the selection or else the UPSIDC could have resorted to the method of promotion for appointment on the post of Executive Engineer on the criteria of seniority subject to the rejection of unfit and that too after the UPSIDC had determined the feeding cadre and the minimum qualifications/experience of working in the feeding cadre post.

It may be recorded that the Board of Directors of the Corporation had prescribed the criteria of seniority subject to rejection of unfit in the matter of promotion as is clear from Clause 18 quoted above. No other criteria was prescribed in respect of promotion at any point of time nor it is the case of the respondent that any other criteria was prescribed by the Board for making promotions on the post of Executive Engineer in the year 1998. It may be recorded that the Board of UPSIDC can prescribe criteria only through a resolution and by no other means. Neither Respondent no. 3 nor UPSIDC have stated in any of their affidavits that the Board prescribed any other criteria for promotion, for the post of Executive Engineer. Therefore, the criteria of seniority subject to rejection of unfit as contained in Rule 18 would be applicable.

It is admitted to the respondent UPSIDC and respondent no.3 Arun Kumar Mishra that he had been promoted as Executive Engineer on the criteria of merit after superseding nearly 14 Assistant Engineers senior to him (reference paragraph-55 of the Short Counter Affidavit filed by respondent no.3 dated 20th February, 2014). It is not his case that at any point of time UPSIDC decided the feeding cadre for the post of Executive Engineer as that of Assistant Engineer nor the minimum qualifications for such promotion were fixed.

Judged in both the said circumstances, it will be seen that appointment by promotion of respondent no.3 as Executive Engineer is per se illegal and contrary to Rule 18 of Rules, 1978, which admittedly held the field on the relevant date.

It is therefore, to be held that promotion granted to respondent no.3 Arun Kumar Mishra as Executive Engineer under order dated 26th August, 1998, in the facts of this case, is contrary to the service rules of 1978 framed by the Corporation and therefore, unfair and illegal.

Once we find that promotion of respondent no.3 Arun Kumar Mishra as Executive Engineer is illegal, his further promotion on the post of Chief Project Engineer on 20th October, 2003 would be rendered illegal, inasmuch as his entry/existence in the feeding cadre i.e. Executive Engineer itself is illegal. There can be no further consideration for promotion of such an employee for the post of Chief Project Engineer.

From the letter of the Managing Director of the UPSIDC dated 23.10.2003 enclosed as Annexure-15 to the 2nd Supplementary Counter Affidavit dated 29.04.2014, it is apparent that the minimum qualifications prescribed for the post of Chief Engineer Project in the 244th Meeting of the Board dated 28.03.2003 were as follows :

"15 years working experience as Assistant Engineer (Civil) which must include four years working experience as Executive Engineer (Civil)."

As already noticed above, respondent no. 3 was granted promotion as Executive Engineer illegally, it has necessarily to be held that he did not belong to the main stream and had, therefore, no valid experience of four years as Executive Engineer so as to he is eligible to be considered for the post of Chief Engineer Project.

Even otherwise, respondent no.3 was promoted as Chief Engineer as per the Rules of 1978 as amended in the 244th Meeting of the Board dated 28th March, 2003, a copy whereof has been enclosed at 119 of the 2nd Supplementary Counter Affidavit dated 29th April, 2014 filed on behalf of the UPSIDC. Resolution made by the Board in the 244th Meeting reads as follows:

"AMENDMENT IN CLAUSE 18 OF THE SERVICE RULES OF THE CORPORATION & PROMOTION ON THE POST OF CHIEF PROJECT ENGINEER AND OTHER RELATED ISSUES.

The Board discussed the matter in detail and approved the proposals as contained in the agenda note. The Board further decided that any amendment in the Service Rules of the Corporation shall be subject to approval from Bureau."

No approval of the Bureau has been brought on record by the UPSIDC. Although in paragraph-28 of the supplementary counter affidavit, an averment has been made that amendments made in Rules, 1978 in the 244th meeting of the Board dated 23rd March, 2003 were sent for approval to the Bureau and the same had been approved by the Bureau but in fact what has been referred to in support whereof is the letter of the Secretary of Industrial Department Department dated 17th September, 2003, which only records that the State Government has no objection to the amendments proposed (Annexure-SCA-14 and 14-A to the affidavit). The 'no objection' of the Secretary of the Industrial Development Department cannot be treated to be an approval of the Bureau, which is an independent body comprising of large number of persons other than the Secretary.

We may also record that for the purposes of justifying the promotion of respondent no.3 on the post of Chief Project Engineer, the UPSIDC and respondent no.3 rely upon the letter of the State Government dated 21st December, 2002, whereby the State Government is stated to have recorded that since it is not possible to fill up the vacancy of the post of Chief Project Engineer by way of deputation, the Corporation may fill the post by promotion in accordance with Rules as applicable.

On 21.12.2002, the criteria for promotion under Rules, 1978 was seniority subject to the rejection of unfit. UPSIDC has pleaded that a Selection Committee was constituted by the Industrial Development Department of the State of U.P. under the Chairmanship of Sri Anil Kumar Gupta, Secretary Food and Civil Supply Department, U.P. Government on 16th October, 2003. This Selection Committee has found respondent no.3 Arun Kumar Mishra as most suitable candidate for promotion as Chief Project Engineer on the criteria of merit. This promotion of respondent no.3 is sought to be justified under the Service Rules, 1978 as amended in the 244th Meeting of the Board dated 28th March, 2003 (reference may be had to the averments made by respondent no. 3 in paragraphs nos. 24, 25, 26, 27, 28 and 32 of the Supplementary Counter Affidavit dated 1st July, 2014). Recommendation of the Selection Committee is stated to be accepted and vide order dated 20th October, 2003 respondent no.3 had been promoted.

In paragraph six of the affidavit filed by the Managing Director, UPSIDC dated 02.05.2014 it has been stated as follows :

"The record relating to procedure adopted and prescribed for the promotion of O.P. No. 3 (Arun Kumar Mishra) from the post of Assistant Engineer to Executive Engineer is lying with the Central Bureau of Investigation in compliance to the order dated 04.07.2013 passed by the High Court, Allahabad in Writ Petition No. 35682 (PIL) of 2013 (Krishna Pratap vs. State of U.P. and others). With regard to the 2nd level of promotion i.e. from Executive Engineer to Chief Project Engineer, it has been stated that the said exercise has been done at the government level headed by the Industries Commissioner and necessary records qua the procedure followed are being collected. These records were never produced before the High Court and ultimately an F.I.R. has been lodged by UPSIDC qua loss of said documents."

Even if the Rules, 1978 as amended under 244th meeting of the Board are accepted, then it has not been disclosed as to under which clause of the amended Rules the Selection Committee for the post of Chief Project Engineer could be constituted by the State Government.

On the date no objection was granted by the State Government for the post of Chief Project Engineer being filled by promotion i.e. 21st February, 2002, the criteria for promotion, as per Rules of 1978, was seniority subject to the rejection of unfit.

Rule 18 of Rules, 1978, quoted herein above, and the letter of the State Government, granting no objection for the post being filled by promotion instead of deputation, issued in the year 2002 necessarily contemplated that promotion on the post of Chief Project Engineer shall be made in accordance with the Rules of 1978 as then applicable i.e. on the criteria of seniority subject to rejection of unfit.

Respondent-Corporation could not have promoted respondent no.3 on the criteria of 'merit' by relying upon the proposed amendments of the year 2003, which had never been approved by the Bureau, even otherwise, could not have been applied having regard to the date and the language of the letter granting permission for promotion by the State Government.

The said finding is besides the basic illegality in the promotion of respondent no.3, namely he not being a valid appointee in the cadre of Executive Engineer. Respondent No. 3 could not have been further promoted as Chief Project Engineer, so as to perpetuate his illegal promotion as Executive Engineer.

Original service book of Arun Kumar Mishra, which has been produced before the Court, is with effect from 19th January, 1999 as per the endorsement at page no.1 i.e. from a date when respondent no.3 had already been promoted as Executive Engineer, but it contains entries from the year 1994, meaning thereby that the entries have been ante dated, for the reasons best known to the respondents.

There is also an undertaking in writing of Arun Kumar Mishra bearing the date 16th March, 2000 to the effect that he is aware that his original personal file has been lost and that his earned leave, medical leave etc. may be treated to be zero on the date he was promoted as Executive Engineer and thereafter service book may be prepared.

In our opinion, such a service book is not safe to be relied upon nor it furnishes any information relevant for the dispute in hand.

We may now deal with Applications, which were not decided under order dated 1st July, 2014 and were directed to be considered at the time of disposal of the present writ petition, are decided by us as under:

Civil Misc. Application No. 117914 of 2014 dated 27th March, 2014, has been filed by the applicant-respondent no.3 praying for an enquiry by the Special Investigating Agency in the matter of non-production or production of requisite documents by the U.P. Board of High School and Intermediate Examination, suffice is to record that first information report has already been lodged by he Secretary of the Board in the matter of loss of documents, no special investigation is warranted at this stage. The investigation shall be done by the Police with all diligence and the guilty, if any, shall be brought to book.

This application stands disposed of with observations made above.

Civil Misc. Application No. 178342 of 2014 dated 30th April, 2014 has been filed by the applicant-respondent no.3 for a Forensic Expert Report being called for in the matter of over-writing in the tabulation register, it appears to be an attempt on the part of respondent no.3 to prolong the proceedings, on one pretext or other. This application has no substance and is accordingly rejected.

Report of the Hand Writing Expert dated 29th April, 2014 submitted along with Civil Misc. Application No. 178383 of 2014 dated 4th May, 2014 does not help the applicant-respondent no.4, for the reasons recorded above. Opinion of the Hand Writing Expert does not lead us to take any other view except one taken. This application is rejected.

Civil Misc. Application No. 178359 of 2014 dated 12th May, 2014 filed by the applicant-respondent no.3 for impleadment of Mahesh Shukla, Manager, Shri Gandhi Vidyapeeth Intermediate College, Ghatampur, Kanpur is totally uncalled for. He is neither necessary nor a proper party to the present proceedings. It is, therefore, rejected.

Civil Misc. Application dated 12th May, 2014 filed by the applicant-respondent no.3 need not detain the Court for long inasmuch as Dr. Ram Manohar Lohiya Awadh University, Faizabad has already informed the Court that records of other students of the same batch have also gone missing and a first information report has been lodged in that regard.

Civil Misc. Application No. 178326 of 2014 dated 14th May, 2014 has been filed by the applicant-respondent no.3 for Forensic Verification of the B.Tech. Degree, which in our opinion, is totally uncalled for. We have arrived at a different conclusion on the basis of the material available on record. This application is, therefore, rejected.

Prayer made by the applicant-respondent no.3 in Civil Misc. Application No. 178332 of 2014 dated 14th May, 2014 appears to be misconceived, inasmuch as First Information Report has already been lodged by the Board as well as by the Awadh University. We have no doubt that proper investigation shall be done and guilty, if any, shall be brought to book.

Civil Misc. Application No. 184292 of 2014 dated 18th May, 2014 has been made by the applicant-respondent no.3 for dismissal of the present writ petition, as the petitioner has not approached this Court with clean hands. We find no substance in this application. There has been no material concealment of facts in the present writ petition. It cannot be said that petitioner has approached this Court with unclean hands. This application is, therefore, rejected.

Civil Misc. Application dated 18th May, 2014 has been filed by the applicant-respondent no.3 for verification of the conversations said to have been taken place between the petitioner and respondent no.3.

We are of the opinion that the issue raised by means of this application is totally outside the scope of the writ proceedings. This application is therefore, rejected.

Civil. Misc. Application No. 184289 of 2014 dated 18th May, 2014 filed by the applicant-respondent no.3 is wholly misconceived, the issue of promotion of respondent no.3 at various posts is directly involved in the present writ petition, as has been detailed herein above. This application stands rejected.

Civil Misc. Application No. 184287 of 2014 dated 18th May, 2014 has been filed by the applicant-respondent no.3 for proceedings being initiated against the then Manager of Shri Gandhi Vidya Peeth Intermediate College, Ghatampur, Kanpur. We find no good ground to pass any order for proceedings being initiated against the then Manager of the College at Ghatampur in the facts of the case. This application is rejected.

Civil Misc. Application No. 187061 of 2014 dated 22nd May, 2014 has been filed by respondent no.3 for production of the right side of the tabulation register of High School examination of 1976 is clearly an after thought and an attempt on the part of respondent no.3 to delay the proceedings. At no point of time he or his father claimed that in the right side portion of the tabulation register, name of the student against Roll No. 511719 was mentioned as Arugya Kumar Mishra. Now when respondent no.3 has come to know that records from the office of the U.P. Board have gone missing and in that regard first information report has already been lodged. He wants to production of documents, which do not exist on record. This application is, therefore, rejected.

By means of Civil Misc. Application No. 189599 of 2014 dated 23rd May, 2014, the applicant-respondent no.3 has required for production of the records from Shri Gandhi Vidya Peeth Intermediate College, Ghatampur, Kanpur. The father of respondent no.3 who was the principle of the college at the relevant time, has brought on record the material documents. Respondent no.3 has also brought on record same material documents. We had directed the record of the institution to be ceased and be produced before us. No specific document has been pointed out by respondent no.3 which has material bearing on the issue and which has not been produced. The relevant documents are already on record. Therefore, no further directions are required to be issued for summoning of the records. This application is, therefore, rejected.

Civil Misc. Application No. 189591 of 2014 dated 23rd May, 2014 filed by the applicant-respondent no.3 appears to be misconceived. No case for deletion of any part of the order dated 19th May, 2014 is made out.

Civil Misc. Application No. 190104 of 2014 dated 25/26th May, 2014 made by respondent no.3 for impleadment of Arugya Kumar Mishra and B.K. Tiwari appears to be wholly misconceived. Respondent no.3 only wants to prolong the proceedings inasmuch as according to him there had never been a student in the name of Arugya Kumar Mishra in the institution. Even otherwise the issue of identification of Arugya Kumar Mishra is not required to be gone into in the present writ petition.

Before we close the matter, we must record our displeasure in the manner in which assistance has been provided by the State Instrumentalities, namely, U.P. Board, Awadh University as well as KNIT, Sultanpur in the matter of non-production of the relevant records as well as in the matter of filing of conflicting affidavits with regard to the availability of records from time to time.

We also record our displeasure in the manner in which the Chief Standing Counsel Ramesh Upadhyay, while representing the State-authorities, U.P. Board and the KNIT, had conducted himself in this petition. Assurance were given for production of records during the Court proceedings, as borne out from the order-sheet, but every time there was some excuse or the other for non-production of the entire records. Contrary to the assurance given to the Court he did not file counter affidavit to the Application No. 187061 of 2014. (Reference- order dated 01.07.2014 and dated 03.07.2014). It appears to us that there has been selective pleadings at the hands of the State-authorities for the reasons best known to them.

We are of the opinion that in the facts of the case it is established that respondent no.3 has no valid high school mark-sheet issued by the U.P. Board of High School and Intermediate nor respondent no.3 has any valid B.Tech. Degree in his favour.

We further find that his regularization as Assistant Engineer, his promotion on the post of Executive Engineer and ultimately to the post of Chief Project Engineer, which has subsequently been re-designated as Chief Engineer (Project) in UPSIDC is contrary to the Rules of 1978 applicable in the matter, therefore, illegal and unfair.

Petitioner has made out a case for a writ of quo warranto being issued against respondent no.3 Arun Kumar Mishra. We hold that he has no authority under law to hold any post including that of Chief Engineer (Project) in UPSIDC. Respondent No. 3, Arun Kumar Mishra must be removed from the public office immediately. His appointment and promotion on the public posts in UPSIDC are hereby quashed.

Let the respondent UPSIDC take all consequential action forthwith in compliance to what has been held herein above.

The present writ petition is allowed. There shall be no order as to costs.

Dt/29.08.2014 Pkb/Sushil/VR.

Order on Order-sheet Court No. - 10 Case :- WRIT - A No. - 5822 of 2014 Petitioner :- Anil Kumar Verma Respondent :- U.P. State Industrial Development Corporation Ltd. & 4 Ors.

Counsel for Petitioner :- Manish Goyal Counsel for Respondent :- C.S.C., Kartik Seth, Kartikey Saran, Neeraj Tiwari, Pankaj Kumar Shukla, Rahul Agarwal, Shashi Nandan, Shishir Prakash Hon'ble Arun Tandon, J.

Hon'ble Arvind Kumar Mishra-I, J.

This petition is allowed.

For orders, see our order of date passed on the separate sheets.

After the judgment was delivered, Sri H.N. Singh, learned Senior Advocate on behalf of respondent no.3 Arun Kumar Mishra made a request that implementation of this judgment may be kept in abeyance for 15 days, so that respondent no.3 may approach the Apex Court.

We find no good ground to grant the prayer. It is rejected.

All the original records received from the institutions at Kanpur, UPSIDC, KNIT, Awadh University, U.P. Board and State Government may be returned to the learned counsels for the parties concerned.

Dt/29.08.2014 Sushil.