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2001 DIGILAW 272 (PAT)

Anii Kumar Jha v. Subhash Chandra Jha

2001-03-23

RAVI S.DHAVAN, SHASHANK KR.SINGH

body2001
Judgment 1. The circumstances as surround the record between the Letters Patent Appeal No. 446/99 (Anil Kumar Jha and others V/s. Subhash Chandra Jha and others), resting on the record of C.W.J.C. No. 793/98 (Subhash Chandra V/s. Kameshwar Singh Sanskrit University, Darbhanga and others), present unfortunate circumstances for a superior court of record in its prerogative writ jurisdiction. No one can deny that it is settled principle that the writ jurisdiction of a High Court, examines issues only on affidavits. Thus, there is a heavy obligation and a solemn one, that what is stated before the High Court be the truth and nothing but the truth, and if any aspect refers to the record then the copy of the record be placed faithfully. Filing an affidavit is only a matter of convenience before the writ court in theory. When a writ of certiorari issues to whomsoever he may be, the record normally ought to be coming before the High Court. It is only to eliminate the record before a court of record that the party to whom the writ issues as an indulgence is permitted to plead the state of the record on an affidavit. 2. Subhash Chandra Jha filed a petition before the High Court claiming reliefs that 27 persons having been given out of turn promotion and regularised as class-Ill employees, they ought not to have been regularised as class-Ill employees. Consequently, the petitioner claimed that he was entitled to be promoted on a class-Ill post as a Routine Clerk and/or Assistant at the University. The petitioner was working in the position of Adesh Pal, in other words, a peon. Whatever his claim to promotion may have been, time bound or otherwise, what is relevant is the defence of the University on the petitioner. 3. The University filed a counter affidavit after 10 years, precisely on 3rd April, 1998. In paragraphs 3 and 4 of the counter-affidavit the University stated: "The petitioner was not eligible to be considered because he was an accused in criminal case with regard to theft of valuable materials of the University prior to his service in the University on daily wages he was serving the Central Consumer Co-operative Stores since 2.1.1978, which is not under the University, as such, cannot be treated under the University Service". Then it was stated "in paragraph 10 : "since the petitioner was junior in seniority list, as such 4th grade employees (eight in number) senior to the petitioner got promotion to higher grade." In paragraph 14 it was stated: "As such he does not remain eligible for being considered for promotion on sanctioned or un-sanctioned post within three years of such benefit of selection grade scale." 4. The counter-affidavit had been sworn by one Sripati Tripathi, describing himself in the position as "Reader-cum- Law Officer (Legal), Kameshwar Singh Darbhanga Sanskrit University and, as such, he was well acquainted with the facts and circumstances of the case". In paragraph 2 of the counter- affidavit, he asserted that he was "authorised by the Vice Chancellor to swear the counter-affidavit." 5. Clearly the notices as they went from the High Court on the writ petition to the University through the Vice Chancellor, respondent no. 1 and the Registrar of the University as respondent no. 2, both chose not to reply to the petition by their affidavits and deputed someone else. 6. In normal circumstances, in a matter relating to the University, a statutory body, the High Court expects that the affidavit would be filed by the Registrar. 7. The defence of the University then on the writ petition was that the petitioner cannot receive the relief and, in effect, the petition ought to be dismissed. What be this the relief that it was stated on oath in the counter-affidavit that it should not be granted? The counter-affidavit submits: "So far the prayer of the petitioner for a direction to the respondents- authorities to consider his case for promotion to class-III post is concerned, from perusal of the counter-affidavit it appears that no person junior to the petitioner has been granted promotion to class-III post. It is also stated that the cases of class-III employees for promotion can be considered only on availability of the sanctioned post. In view of the aforesaid statement made in the counter-affidavit if the vacancy in sanctioned class-III post falls in future then the case of the petitioner has to be considered according to law." 8. It is also stated that the cases of class-III employees for promotion can be considered only on availability of the sanctioned post. In view of the aforesaid statement made in the counter-affidavit if the vacancy in sanctioned class-III post falls in future then the case of the petitioner has to be considered according to law." 8. Consequently what happended was that the petitioner had been told that as no person junior to him has been granted promotion to a class-Ill post, thus, he could not receive any promotion and it will be available only when a sanctioned post is available in future. 9. In so far as the first set or the second set respondents were concerned, on the basis of what the University stated, that nothing was available to affect promotion, the observation of the Court was: "There can be no occasion to regularise them or give them valid confirmation. The so-called exercise of confirming such employees, therefore, remained a futility." Thereafter the court observed as follows: "As admittedly in this case the post has not been sanctioned and the University has no power to create a post without sanction of the State Government. As such, the regularisation of the respondents second set is nullity in the eye of law and on this ground alone the impugned order is not sustainable in law." 10. The observation rested on the submission of the University, regard being had to the circumstances, that such of those employees, who are III and IV grade, as they were continuing for more than 5 years, the sanction of the Government was awaited. Thus, the University regularised the services of the employees in anticipation. The plea of the University notwithstanding, on the observation of the court, the respondents second set, after the judgment stood relieved. 11. After the petition had been decided, another record emerged by which there is total contradiction to the statement, which has been made by the University in reference to the petitioner. The plea of the University notwithstanding, on the observation of the court, the respondents second set, after the judgment stood relieved. 11. After the petition had been decided, another record emerged by which there is total contradiction to the statement, which has been made by the University in reference to the petitioner. Having intimated the court in the counter- affidavit, an affirmation on oath, that the petitioner had not been granted promotion nor was entitled to get promotion, it is on record that 8 years before the affirmation and filing of the counter-affidavit, there was an office order No. 49 to 53/90 Darbhanga dated 9.1.1990, endorsed to three persons, named in the office order itself, by which the petitioner, Subhash Chandra Jha, had already been granted promotion to a class III post with effect from 1.12.1987 and the monetary benefit being payable from 1.12.1989. The statements as have been given in the counter- affidavit now need to be seen with the office order, which lay on the record of the University and was not brought to the notice of the court deciding the writ petition. Thus, below on the left hand side, this court has produced the statements in the counter- affidavit and right hand side the office order. 12. There is a contradiction between the record and the affidavit. It is prima facie revealing that an incorrect declaration has been made on oath. These facts, were available to the University from its own records and were not placed faithfully in the counter-affidavit which, if they had been, perhaps the decision on the writ petition would have been different. The contradiction between the record and the counter-affidavit having been affirmed on oath, has changed the entire picture of the case. 13. At present the court is not going into the aspect of unsuiting those who made these incorrect declarations on oath. The contradiction between the record and the counter-affidavit having been affirmed on oath, has changed the entire picture of the case. 13. At present the court is not going into the aspect of unsuiting those who made these incorrect declarations on oath. But the question does arise that the court having been satisfied that a false declaration has been made on oath, then before taking any further action for perjury or otherwise, criminal contempt not excluded, it would only be fair that the University through its Vice Chancellor as well as the Registrar and the person, who affirmed the affidavit, all three be given an opportunity to show cause as to why the court ought not consider taking appropriate action which warrants an occasion when false declarations are made to violate the sanctity of the public justice system within the meaning of Chapter XI of the Indian Penal Code, i.e. OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE. 14. As the University is represented through counsel, let notice of this order be delivered to counsel and a show cause be filed by the three persons individually within a period of one month from today. Put up after one month.