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2022 DIGILAW 1361 (ALL)

State of U. P. v. Nitin Agnihotri

2022-08-29

J.J.MUNIR, RAJESH BINDAL

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ORDER : 1. The order dated May 5, 2022 passed by the learned Single Judge has been impugned by filing the present intra-court appeal. 2. Challenge before the learned Single Judge was to the communication dated December 21, 2022 from the Management of Shri Mardan Singh Inter College, Tal Behat, Lalitpur, vide which in view of letter dated November 5, 2020 from the District Inspector of Schools, payment of salary to respondent No. 1 was directed to be stopped with effect from November, 2020. Learned Single Judge allowed the writ petition, quashed the order dated December 31, 2020 passed by the Committee of Management and directed for payment of salary along with interest thereon to respondent No. 1. 3. The stand taken by the learned counsel for the appellants is that the appointment of Respondent No. 1 on compassionate basis was wrong as he had concealed material facts. However, it is not in dispute that no final decision has yet been taken about the appointment of respondent No. 1 as to whether the same is legal or illegal. The proceedings therefor are in process. The effect of passing of order stopping payment of salary to respondent No. 1 is either that he shall not be allowed to work and that too without passing any order or that he shall not be paid salary despite working in the college. Under both the eventualities, the order passed cannot be sustained as there is no direction that respondent No. 1 will not be allowed to work in the college and stoppage of payment of salary is not by way of punishment. 4. What makes matters worse for the appellants is that in the counter affidavit filed before the learned Single Judge, an order dated February 15, 2021 passed by the Manager/Secretary, Shri Mardan Singh Inter College was brought on record as Annexure No. 9 to show that the management had taken a decision to terminate the petitioner's services with information thereof to the Board in terms of Section 21 of the U.P. Secondary Education Services Selection Board Act, 1982 (forshort“theActof1982”)but the appellants have not disclosed in the counter affidavit the fact that the order passed by the management on February 15, 2021 resolving to terminate the services of respondent no. 1 is already under challenge before this Court in Writ A No. 12492 of 2021, tiled as ‘Nitin Agnihotri v. State of U.P. and others’ wherein this Court has issued notice and stayed the operation of the order dated February 15, 2021 passed by the College management. This fact has also not been disclosed in the affidavit filed in this appeal. In the affidavit filed in support of this appeal, there is an averment to be found in Paragraph No. 14 to the effect that the learned Single Judge, while allowing the writ petition, did not consider the fact that respondent no. 1 has filed a second writ petition, being Writ -A No. 12492 of 2021 against the order dated February 15, 2021 passed by the Committee of Management, where the appellants have filed a counter affidavit, and that petition is pending. It has also been averred in the paragraph under reference that the Appointing Authority has already recommended dismissal of the petitioner on account of illegal appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. In this affidavit also, it has not been stated that the operation of the order dated February 15, 2021 has been stayed by this Court. The averment in Paragraph No. 14 of the affidavit filed in support of the appeal hides more than it says. It suppresses the material fact that the order dated February 15, 2021 passed by the management recommending termination of the petitioner's services has been stayed by this Court. 5. At the hearing of this appeal, the interim stay order dated September 21, 2021 passed by this Court in Writ -A No. 12492 of 2021 was produced by learned Counsel for respondent No. 1. When the learned Standing Counsel appearing for the State was confronted by the said order, he could not deny the fact that the said order had been passed in the writ petition under reference, staying the operation of the order dated February 15, 2021. It is not expected of the State or their Authorities that such a vital fact would be suppressed. 6. As there is material concealment of facts in the present appeal, the same deserves to be dismissed. It is not expected of the State or their Authorities that such a vital fact would be suppressed. 6. As there is material concealment of facts in the present appeal, the same deserves to be dismissed. As to how a litigant who conceals material facts from the Court, has to be dealt with, has been gone through by Hon’ble the Supreme Court time and again and the consistent opinion is that he is not entitled even to be heard on merits. 7. This Court has considered this issue in Virendra Kumar v. Union of India and others, 2022 (2) ADJ 1 and after going through various judgments of Hon’ble Supreme Court, had dismissed the petition on the ground of concealment of material facts by the petitioner. 8. It is also noteworthy that Writ -A No. 12492 of 2021 is by no means a second petition filed by respondent No. 1, which the appellants say into criticism of the impugned judgment passed by the learned Single Judge. Writ -A No. 12492 of 2021 has been filed against a supervening order dated February 15, 2021, which was not in existence until time when the writ petition giving rise to the present appeal, challenging the order dated December 31, 2020, was filed. A writ petition filed on a subsequent cause of action cannot be dubbed as a second petition. 9. To sum up, in substance, till date, no order determining the employment of respondent No. 1 has been passed by the respondents that is enforceable under the law. The respondents, therefore, cannot stop payment of the petitioner's salary and orally ask him not to work or permit him to work but not pay his salary. The impugned order is, therefore, flawless and must be upheld. 10. Since the appellants have suppressed material facts from this Court, which are already indicated hereinabove, they must be saddled with adequate costs, which we quantify as Rs.50,000/-. 11. As a result, the appeal fails and stands dismissed. The costs of Rs.50,000/- shall be deposited by the appellants with the Allahabad High Court Mediation and Conciliation Center within one month from the date of receipt of copy of the order and receipt thereof shall be produced before the Registrar General, which shall be retained on record.