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Allahabad High Court · body

2016 DIGILAW 1900 (ALL)

Kiran Devi v. State of U. P.

2016-05-16

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel, J. – The petitioner is aggrieved by order dated 11.2.2016 passed by the District Programme Officer, Shahjahanpur, whereby her claim for appointment on the post of Aaganwari worker has been cancelled on the ground that she secured her appointment on basis of fabricated and forged document. 2. Initially the petitioner was appointed as Aaganwari worker in June 2005. A complaint was made against her that she has submitted a forged domicile certificate of village Workimai. On the said complaint, case no. 2076 was registered against her and S.D.M., Jalalabad was directed to hold enquiry in the matter. The enquiry was conducted by the S.D.M. after giving sufficient opportunity to the petitioner to prove that she is a resident of village Workimai but a finding has been recorded that he has failed to file any document to prove that she is resident of village Workimai. In the enquiry, it was found that the petitioner is a resident of village Baharia. On the basis of aforesaid findings recorded by the S.D.M., domicile certificate of the petitioner dated 4.8.2007 was cancelled by order dated 9.8.2013. Copy of the said order was also communicated to the petitioner. 3. It is contended by the counsel for petitioner that in the Govt. Order dated 16.12.2003 it is provided that domicile certificate can be issued by the Village Pradhan or Tehsildar. Learned counsel has drawn attention of the Court to the domicile certificate issued to her by village Pradhan on 26.6.2007. It is further submitted that this certificate has not been cancelled. He has further drawn attention of the Court to the order of District Programme Officer dated 13.12.2013 wherein it is mentioned that domicile certificate can be issued by village Pradhan or Tehsildar. In that order, there is reference to the Govt. Order dated 16.12.2003. 4. Lastly, it is urged by the counsel for petitioner that S.D.M. has issued a fresh domicile certificate on 3.10.2015 wherein the petitioner has been shown to be a resident of village Workimai. Copy of the said certificate is annexure -17 to the writ petition. No other submission has been made. 5. Learned standing counsel submits that order dated 19.1.2015 of the District Magistrate whereby claim of the petitioner was rejected, was communicated to her but she has concealed this fact in her previous writ petition no. Copy of the said certificate is annexure -17 to the writ petition. No other submission has been made. 5. Learned standing counsel submits that order dated 19.1.2015 of the District Magistrate whereby claim of the petitioner was rejected, was communicated to her but she has concealed this fact in her previous writ petition no. 13284 of 2015 and obtained the order by concealment of fact for deciding her representation by another authority i.e. District Programme Officer. He has further submitted that domicile certificate dated 3.10.2015 was not filed/produced by the petitioner before the authority concerned, therefore, there is no error in the impugned order. 6. I have heard counsel for the parties and perused the record. 7. The petitioner while engaged as Aanganwari worker, had filed a domicile certificate that she was a resident of village Workimai. Later on when complaint was made that her domicile certificate is based on fabricated documents, a detailed enquiry was conducted by the S.D.M.. From the record, it appears that in the enquiry, the petitioner was given sufficient opportunity of hearing and it was found that she was not a resident of village Workimai but a resident of village Baharia and accordingly, the domicile certificate dated 4.8.2007 issued to her by the authority concerned i.e. Up Ziladhikari was cancelled. The said order has not been challenged by the petitioner. 8. In view of the fact that petitioner was not found to be a resident of village Workimai and the order cancelling her domicile certificate was not challenged, in my opinion, the certificate issued by the village Pradhan does not give any credence to the fact that he is a permanent resident of village Workimai. 9. There is another aspect of the matter that previously the petitioner preferred writ petition no. 67436 of 2013 and this Court vide order dated 10.12.2013 directed the District Magistrate to decide her representation. Accordingly, the District Magistrate vide order dated 19.1.2015 has rejected her representation recording a finding that she is not a resident of village Workimai. This order has been concealed by the petitioner in her subsequent writ petition no. 13284 of 2015 without disclosing the fact that District Magistrate has already rejected her claim and obtained an order from this Court on 11.3.2015 to decide her claim by District Programme Officer, Shahjahanpur. The petitioner in paragraph no. This order has been concealed by the petitioner in her subsequent writ petition no. 13284 of 2015 without disclosing the fact that District Magistrate has already rejected her claim and obtained an order from this Court on 11.3.2015 to decide her claim by District Programme Officer, Shahjahanpur. The petitioner in paragraph no. 25 of the writ petition has stated that order of the District Magistrate was not duly served upon her. The said paragraph has been sworn on the basis of personal knowledge. The statement made in paragraph no. 25 is not believable on the ground that if the District Magistrate had not passed any order, then she could have made inquiry as to what happened in compliance of the order of the Court and she could have taken appropriate legal remedy against the District Magistrate if he was not deciding her matter in compliance of the order of the Court. The petitioner has maintained stony silence in regard to the fact that as to why she did not enquire about compliance of the earlier order of the Court from the office of the District Magistrate, whereby the District Magistrate was directed to decide her representation. Therefore, I reject the statement made in paragraph no. 25 of the writ petition that the said order was not duly served upon her. Besides the said fact, in the impugned order, it is clearly mentioned that order of the District Magistrate was duly served upon the petitioner. 10. In so far as the last submission of the counsel for petitioner that another domicile certificate has been issued by the competent authority on 3.10.2015 to the effect that she is resident of village Workimai is concerned, learned counsel for the petitioner has failed to satisfy this Court that this document was filed before the appropriate authority- District Programme Officer. In the writ petition also, there is no pleading that this document was filed before the authority concerned. Copy of the representation is also on record as annexure no. 16. I have carefully perused the said representation and find that there is no pleading that the said certificate has been filed before the authority concerned. 11. In view of the above, I do not find any error in the impugned order passed by the District Programme Officer, Shahjahanpur. 12. 16. I have carefully perused the said representation and find that there is no pleading that the said certificate has been filed before the authority concerned. 11. In view of the above, I do not find any error in the impugned order passed by the District Programme Officer, Shahjahanpur. 12. It is well settled that this Court under Article 226 does not sit as an appellate authority. In the present case, there is clear finding of fact with regard to fabrication of the document which has been recorded after enquiry by the S.D.M.. Moreover, the District Magistrate has already rejected petitioner's claim vide order dated 19.1.2015 which fact was concealed by the petitioner in her subsequent writ petition. 13. I have also summoned record of Writ Petition No. 13284 of 2015 earlier filed by the petitioner. Perusal of the pleadings therein indicates that petitioner has not disclosed therein that she has earlier filed a writ petition. Thus, the petitioner has suppressed a material fact that she had earlier filed a writ petition. 14. A Full Bench of this Court in Asiatic Engineering Co. v. Achhru Ram and others ( AIR 1951 All 746 ), has in paragraph no. 51 held thus : "51. In our opinion, the salutary principle laid down in the cases quoted above should appropriately be applied by Courts in our country when parties seek the aid of the extraordinary powers granted to the Court under Article 226 of the Constitution. A person obtaining an ex parte order or a rule nishi by means of a petition for exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts." 15. From the perusal of the record, it is further evident that writ petition no. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts." 15. From the perusal of the record, it is further evident that writ petition no. 67436 of 2013 filed by the petitioner challenging the order dated 9.8.2013, was dismissed on merit and the Division Bench has held that once such findings of fact have been returned that she is resident of village Bahariya and based on the same, her domicile certificate has been cancelled, then the Court refuses to interfere under Article 226 of the Constitution. 16. As a sequel to the above, I find that petitioner has not only concealed material fact but she has abused the process of law. She did not disclose that she earlier filed a writ petition and in compliance thereof District Magistrate had rejected her claim. Without challenging the same she preferred this writ petition. The Supreme Court inAmar Singh v. Union of India, (2011) 7 SCC 69 , has strongly deprecated the practise to file writ petition by suppression of fact that earlier writ petition was filed and held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case. 17. Recently, the Supreme Court in the case of Subrata Roy Sahara v. Union of India and others, (2014) 8 SCC 470 , has taken note of the fact that a large number of frivolous petitions are filed in the High Court and the Court has laid down that such tendency should be curbed by imposing heavy costs upon the petitioner. 18. In fact the petitioner is not entitled to be heard on merit. 19. The writ petition is dismissed accordingly. The petitioner is liable to be imposed heavy cost but having regard to the fact that she comes from marginalised section of the society, Court defers the cost with a warning to her that she must be careful in future.