Court No. - 7
Case :- WRIT - A No. - 5245 of 2004 Petitioner :- Tribhuwan Dubey Respondent :- State Of U.P. And Others Counsel for Petitioner :- Rakesh Pande,A.K.Rai,Abhishek Kumar,P.Padia,R.K. Rai,S. Mishra,S.N.Mishra,Sri Narayan Mishra Counsel for Respondent :- C.S.C.,A.K.Yadav,Gyanendra Prasad Mishra,M.K. Singh,M.K. Srivastava,Manish Srivastava,Pankaj Srivastava,Ranjan Srivastava,S.C. Srivastava
Hon'ble Surya Prakash Kesarwani,J.
1- Heard Sri Ashok Kumar, learned counsel for the petitioner, learned standing counsel for respondent nos. 1 and 4, Sri Ranjan Srivastava, learned counsel for respondent no. 3. No one appears on behalf of respondent no.2 even in the revised call.
2- On 23.4.2018, this Court passed the following order:
"A Supplementary Affidavit on behalf of respondent no.3 has been filed today, which is taken on record.
Heard learned counsel for the petitioner, learned standing counsel for respondent nos. 1 and 4, Sri Ranjan Srivastava, learned counsel for respondent nos. 2 and 3 and Sri A.K. Yadav, learned counsel for respondent no.5.
Briefly stated facts of the present case are that the petitioner was allegedly appointed as Lecturer in the respondent no.2 institution in the year 1969. According to him he met with an accident on 11.7.1987. It appears that soon after his recovery he was discharged from Sir Sunder Lal Hospital, Kashi Hindu Vishwavidyalaya, Varanasi. Thereafter, the petitioner had not joined in the respondent no.2 institution. After about 16 years, on 10.11.2003, he moved an application dated 7.11.2003 before the respondent no.3, that he is now fit to join duty. The aforesaid application dated 7.11.2003 filed by the petitioner before the respondent no.3, is reproduced below:
^^lsok esa] izca/kd] Jhdeykdj pkScs vkn'kZ lsok fo|ky; b.Vj dkyst okjk.klhA fo"k;%& izkFkhZ dks vius in ij dk;ZHkkj xzg.k djkus ds lEcU/k esaA egksn;] fuosnu gS fd eS f=Hkqou nwcs izoDrk jlk;u 'kkL= Jh deykdj pkScs vkn'kZ lsok fo| ky; b.Vj dkyst okjk.klh esa 8 tqykbZ 1969 dks fu;qDr gqvkA ml frfFk ls fujarj 30 twu 87 rd dk;Z djrs gq, osru izkIr djrk jgk gwWA tSlk fd vki voxr gSa fd tqykbZ 87 esa Hkh"k.k lM+d nq?kZVuk es cqjh rjg ls ?kk;y gksdj ej.kklUu fLFkfr esa igaqp x;k FkkA cgqr fnu rd csgks'kh dh fLFkfr esa Jh lj lqUnj yky vLirky okjk.klh esa HkrhZ jgk vkSj bykt gqvkA efLr"d ihM+k ds dkj.k eS fnekxh fodykaxrk dks izkIr gks x;k FkkA bldk bykt yEch vof/k rd vLirky ds fpfdRldksa ds funsZ'k esa pyrk jgk gSA vc vki lcds vkf'kZokn ,oa Hkxoku dh egrh d`ik ls viuh 87 dh iwoZ dh fLFkfr esa vius dks ik jgk gwWA MkDVjks dk Hkh ;g er gS fd vki viuh iqjkuh lsok dks tkjh j[krs gq, i<+u ikBu dk dk;Z lEikfnr dj ldrs gSA bl lEcU/k esa vki dks voxr djkuk gS fd yxHkx 16 o"kksZ dh vof/k esa vU; dksbZ Hkh vkfFkZd Jksr u gksus ds dkj.k foiUurk dh fLFkfr esa igqWp x;k gwWA viuh bl O;Fkk dks vkids le{k Lo;a mifLFkr gksdj O;Dr dj pqdk gwWA vr% vki ls fouez fuosnu gS fd esjh ifjfLFkfr;ksa dks /;ku esa j[kdj izkFkhZ dks jlk;u 'kkL= izoDrk ds vius ewy in ij dk;ZHkkj xzg.k djkus dh d`ik djsxsA eS lnk gh vkidk vkHkkjh jgwWxkA fnukad 7 uoEcj 2003 izkIr fd;k g0v0 10-11-03 ¼ewgj½ izkFkhZ f=Hkqou nwcs izoDrk jlk;u 'kkL= Jh deyk dj pkScs vkn'kZ lsok fo|k;y b.Vj dkyst] okjk.klhA^^ In his afore-quoted application he has stated that he was unconscious for several days and was admitted in Sir Sunder Lal Hospital, Kashi Hindu Vishwavidyalaya, Varanasi and his treatment was going on for a long time under the supervision of the doctor of the hospital. But he neither filed any prescription of the doctor nor certificate of any doctor along with his aforesaid application. Perusal of the photostat copy of the OPD Parchi of the aforesaid hospital filed as Annexure-1 to this petition, shows that he remained unconscious only for five hours and his blood pressure was quite normal.
It appears that the petitioner has procured the alleged medical certificate dated 20.9.2003 of which only a typed copy has been filed as Annexure-2 and in which it is alleged that he was under treatment of Incharge Physician of Rajkiya Ayurvedic Chikitsalaya, Narag, Bhadohi from 1.8.1987 to 31.12.1993. Thus, neither copy of the alleged certificate has been filed nor it has been explained that why for the alleged Neuro problem, the petitioner took treatment in a village area Ayurvedic Hospital situate in district Bhadohi, whereas he was residing at Azamgarh. It has also not been explained in the writ petition that how and under what circumstances he procured the alleged medical certificate dated 20.9.2003 for the period from 1.8.1987 to 31.12.1993 and on which basis the alleged medical certificate was issued. Neither any prescription of doctor or OPD parchi of the aforesaid alleged hospital has been produced before this Court nor copy thereof has been filed along with writ petition. A photostat copy of an alleged certificate of 'Seema Hospital, Atraulia, Azamgarh' has been filed as Annexure-3 to the writ petition which contains the name of some doctors and none of them is Neuro physician. By this alleged medical certificate, it has been allegedly certified that the petitioner was under treatment from 1.1.1994 to 2.5.2003. Neither the prescription of the alleged doctor for treatment for such a long period of about ten years has been produced before the Court nor copy thereof has been filed along with the writ petition.
It appears that merely for injust gain the petitioner has procured or manipulated the alleged medical certificates filed as Annexures-2 and 3 to the writ petition, so as to explain his absence from the job for about 16 years. It is mentioned at the cost of repetition that there is not a whisper of these two certificates or any disclosure of the name of the doctor of the hospital regarding treatment, by the petitioner in his application 7.11.2003.
In view of the aforesaid, the petitioner is directed to file a Supplementary Affidavit on 25.4.2018 annexing therewith copies of all prescriptions and OPD Parchi in support of his alleged medical certificates dated 20.9.2003 and 5.10.2003 filed as Annexures-2 and 3 to the writ petition and also to produce the original before the Court. He shall also file a copy of the alleged medical certificates dated 20.9.2003 and 5.102003.
Put up on 25.4.2018".
3- Pursuant to the afore-quoted order, the petitioner has filed today, a Supplementary Affidavit dated 26.4.2018 stating that the original copy of the medical certificate dated 29.9.2003 is not available.He has not filed any document in compliance to the afore-quoted order dated 23.4.2018.
4- Learned counsel for the petitioner submits that the petitioner was suffering from "Manic Depressive Psychosis". and when he recovered then he appeared to join on his post, but the joining was illegally denied by the respondent no.3. He submits that he was not terminated and as such the respondents committed illegality in not permitting the petitioner to join his service.
5- Learned counsel for respondent no.3 and the learned standing counsel representing the respondent nos. 1 and 4 jointly submit that the entire case of the petitioner is based on manipulation and fraud and, therefore, no relief can be granted to him in writ jurisdiction.
6- I have carefully considered the submissions of the learned counsels for the parties and I find substance in the submissions of the learned standing counsel and the learned counsel for respondent no.3.
7- In paragraph-7 of the counter affidavit of Sri Udai Prakash Mishra, Associate District Inspector of Schools, Varanasi, dated 25.5.2010 filed on behalf of respondent no.4, it has been stated as under :
“7. That in reply to the contents of paragraph nos. 12,13,14,15,16,17,18 and 19 of the writ petition, it is submitted that since the petitioner was absented from the year 1987 without any information, as such the Committee of Management of the institution after affording opportunity of hearing passed a proposal/resolution no.7 in the meeting dated 3.4.1994 dismissing the services of the petitioner and information regarding the same has already been published in two newspapers namely 'Dainik Jagran' on 19th May 1994 and 'Gandeev' on 20th May 1994. It is relevant to mention here that against the vacant post of Lecturer Chemistry, one eligible Assistant Teacher, Shri Sabhajeet Maurya has been promoted under 50% adhoc promotion quota by the college authorities and the relevant documents have been referred to the department on which the then District Inspector of Schools, Varanasi passed an order on 11.11.1993 giving approval of adhoc promotion on the post of Lecturer in Chemistry to Shri Sabhajeet Maurya and for payment of salary till regular selected candidate from the Commission joins the post. At present the services of the petitioner ha already been terminated and Sri Sabhajeet Maurya is working on the post of Lecturer, Chemistry and is drawing his salary. The petitioner is not entitled for any payment of salary. For kind consideration of this Hon'ble Court, true copy of the order dated 11.11.1993 of the then District Inspector of Shools, Varanari , is being filed herewith and marked as Annexure No. CA-3 to this counter affidavit. The petitioner is not entitled for any relief as claimed by him in the preset writ petition. The grounds taken by the petitioner are not tenable in the eyes of law and the present writ petition as framed and filed by the petitioner is liable to be dismissed with cost”.
8- From the counter affidavit filed on behalf of respondent no.3, it is evident that the respondent no.3 sent various letters to the petitioner by registered post since the year 1987, but the petitioner has not responded. It further appears that one Sri Sabhajeet Maurya, Assistant Teacher was promoted due to vacancy occurred on account of long absence of the petitioner. The approval to the adhoc promotion of the aforesaid Sri Sabhajeet Maurya was granted by the District Inspector of Schools, Varanasi vide letter dated 11.11.1993. Even thereafter, several letters by registered post were sent to the petitioner and even notices were published in largely circulated newspaper “Dainik Jagran” dated 19.5.1994 and the newspaper “Gandeev” dated 20.5.1994 to the effect that response by him intimating termination of his service and acceptance thereof. The Committee of Management, respondent no.3, has also passed a resolution dated 3.4.1994 terminating the services of the petitioner, which was published in the newspapers, as aforementioned. A letter dated 12.4.1994 was also sent by the respondent no.3 to the respondent no.4 intimating the termination of the services of the petitioner which was followed by letter dated 1.7.1994 and 6.12.2003.
9- Perusal of the order dated 23.4.2018, as afore-quoted and the Supplementary Affidavit filed today by the petitioner leaves no manner of doubt that the alleged medical certificates dated 20.9.2003 and 5.10.2003 are forged piece of papers.
10- Despite direction of this Court, the petitioner has not produced even a single prescription of the alleged doctors from whom he allegedly received treatment and, who allegedly issued the aforesaid two medical certificates. Thus, the petitioner has approached this Court with unclean hands, unclean mind and unclean heart. On this ground alone, the writ petition deserves to be dismissed.
11- In the case of S.P. Chengal Varaya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853 (Paragraph-7), Hon'ble Supreme Court held in para 7 as under:
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers,tax-evaders, bank-loan-dodgersand other unscrupulous persons from all walks of life find the court- process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
(Emphasis supplied by me)
12- In view of the above discussions, I do not find any good reason to exercise the equitable and discretionary jurisdiction under Article 226 of the Constitution of India. Therefore, the writ petition deserves to be dismissed.
13- In view of the aforesaid, the writ petition fails and is, hereby dismissed.
Order Date :- 26.4.2018 Ak/