Civil Writ Jurisdiction Case Nos. 267 and 472 of 2010. Case: 1. Ram Sevak Yadav W/o Late Shri Shivlal Yadav R/o Vill-Mahadeva, P.O. Jageshwar Asthan, P.S. Phulparas, Distt. Madhubani, 2. Umesh Ram S/o Late Asharfi Ram R/o Village, Post office And Police Station Ghoghardiha, Distt. Madhubani Vs 1. The State of Bihar through The Chief Secretary Govt. of Bihar, Old Secretariate, Patna and Ors., 2. The State of Bihar Through The Principal Secretary Department of Health, Government of Bihar, Patna and Ors.. High Court of Patna (India)
| Case Number | Civil Writ Jurisdiction Case Nos. 267 and 472 of 2010 |
| Counsel | For Appellant: Mr. L. K. Yadav and Mr. Prabhu Narayan Prabhakar and Mr. Binod Kumar Yadav, Advs. |
| Judges | Navin Sinha, Samarendra Pratap Singh and V. Nath, JJ. |
| Issue | Constitution of India - Articles 12, 14, 16, 162, 226, 309 |
| Judgement Date | February 01, 2013 |
| Court | High Court of Patna (India) |
Judgment:
Navin Sinha, J.
1. The seminal reference to be answered is, if (2010) 9 SCC 247 (The State of Karnataka v. M.L. Kesari) makes a departure from the distinction between an illegal and irregular appointment as held in (2006) 4 SCC 1 (State of Karnataka v. Uma Devi) for purposes of regularisation. If it does, shall it constitute a precedent? The petitioners in both applications were appointed on class IV posts by the Civil Surgeon cum Chief Medical officer on the 30.12.1989 and 30.10.2001 respectively. The appointment letter of the former stated that on sympathetic consideration of his application he was being appointed in temporary capacity. That of the latter stated consequent to the letters of the In-Charge Medical officer, he was being appointed in special circumstances and permitted to work as Sweeper (because he belonged to the same caste) but would have to face the selection committee at a subsequent date. They were terminated on 14.6.2001 and 30.10.2001 respectively on the ground that their appointments were illegal.
2. CWJC No. 11713 of 2003 was filed by the former. CWJC No. 11651 of 2002 by the latter was allowed on 8.9.2003 holding that termination after over a decade of service was unjustified. L.P.A. No 242 of 2004 preferred by the State, and the former writ application was heard together and disposed on 26.6.2006 with a batch of analogous applications led by L.P.A. no. 946 of 2003. The applications were not tested on individual merits. They were disposed by a common order. The respondents were directed to reconsider after ascertainment of necessary facts, regularisation of the eligible under the directions contained in paragraph 53 of (Uma Devi) (supra). The authorities after reconsideration on 31.12.2008 declined regularisation holding that the appointments were forged. Thus the present writ applications.
3. Learned counsel for the petitioners contended that they had been appointed on sanctioned posts, and continued in service for over 11 years before termination. They were entitled to regularisation under the directions in paragraph 53 of (Uma Devi) (supra), and also on principles of sympathy and equity. Termination after 11 years of service preceded by a simple show cause notice was unjustified and insufficient. Their service book had been opened along with enhancement of salary. They were thus regular employees for all intents and purposes. Even if the respondents opined the appointment to be forged, they were required to hold a regular departmental proceeding and arrive at a determinate finding with opportunity of defence. In the inquiry held pursuant to the order of the Court, the petitioners were not associated or furnished opportunity to defend. The finding was ex parte and in violation of natural justice. The petitioners had originally questioned their termination and had not sought regularisation. If the latter writ petition was allowed, unless the order was set aside, he could not be denied the benefit by referring them to be considered for regularisation. The reference by the Court to consider them for regularisation in the facts of the case was itself improper and bad. Reliance was placed on 2008 (1) PLJR 841, 2009 (2) PLJR 869, 2011 (4) PLJR 1 and (2010) 9 SCC 247 [State of Karnataka v. M.L. Kesari).
4. The Additional Advocate General 1, opposing the writ application submitted that show cause notice was issued to the petitioners before termination. They did not reply the same. The petitioners have not placed correct facts before the Court either in the earlier writ application or the present. A truncated and distorted letter of termination has been placed by them to obtain advantage in Court proceedings by urging that no show cause notice was issued before termination. Their hands are soiled and unclean disentitling them to any relief. The appointment was illegal on the face of it. The issue of forgery as opined by the Committee subsequently loses its significance. The validity of the termination was not scrutinized on merits earlier. Relief came to be granted on the ground that the order was ex-parte, and they had continued for more than a decade and service books had been opened.
5. The reference by the Court to the authorities on the earlier occasion was accepted by the petitioners. They allowed the concerned committee to scrutinise their cases. After the fresh decision has gone against them, they cannot be permitted to resile from their earlier stand and challenge the reference to the Committee itself.
6. There was no conflict between (Uma Devi) (supra) and (M.L. Kesari) (supra). The ratio decidendi in the former with regard to the distinction between an illegal and irregular appointment for purposes of regularisation had not been diluted or reinterpreted rather reaffirmed in the latter. The latter related to a claim for regularisation by daily wages. The petitioners were not appointed on daily wage. Exigency of circumstances may justify a daily wage appointment but for appointment of the present nature regular procedures in consonance with Article 14 of the Constitution had to be followed. If there was any conflict between the two judgments, the Constitution Bench judgment shall prevail. To avail the benefit of any observation at paragraph 7 of M.L. Kesari (supra) it had to be demonstrated that the initial appointment was in accordance with Article 14 of the Constitution and on a sanctioned post.
7. Reliance in support of submissions was placed on A.I.R. 1976 SC 2547 and (2009) 7 SCC 751. (2008) 10 SCC 1, (2010) 4 SCC 179, 2011 (4) PLJR (SC) 83, 2011 (4) PLJR (SC) 90, 2011 (3) PLJR 913, 2012 (1) PLJR 366 and (2012) 6 SCC 502.
8. A litigant approaching the Court for relief has the foremost duty to honestly and faithfully present the correct facts. He cannot be permitted to distort and misrepresent essential facts. The stream of justice has to be kept clean and unpolluted. Any laxity can lead to complete subverting of judicial procedure with an unscrupulous litigant obtaining orders contrary to law, as observed in (2010) 4 SCC 728 (Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division):
20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.
9. The observations in (2012) 6 SCC 430 (A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam) are also apposite holding:
43.1. It is the bounden duty of the court to uphold the truth and do justice.
43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process.
10. The petitioners, in the earlier application as also the present, have filed typed copies of their termination orders. Any error in either of them only could have been considered inadvertent. But if the same error has persisted in both applications, it loses the quality of inadvertence. Reading the impugned orders, finding inconsistency of language, the Court requested Counsel for the petitioners to place the original letter of termination for perusal. The typed copy states that show cause notice was issued on 21.5.2001 which was replied by them. Both the writ applications nonetheless contended that the termination was ex parte in violation of the principles of natural...
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