# District Basic Education Officer v. Chandra Kant Tripathi & Ors

- **Citation:** (2013) 2 ILRA 886
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-15
- **Case number:** Review Petition Defective No. 96 of 2009
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/district-basic-education-officer-v-chandra-kant-tripathi-ors-42639
- **Pages:** 5

## Headnote

Constitution of India, Art. 226- Review
Application-petition decided with direction
of reinstatement and salary-based upon
concealment of material facts and fraudreview held-maintainable.

Held: Para-18
I have no hesitation to hold that this
Court was persuaded to pass the order
dated
6.2.2009
by
suppression
and
concealment of material facts as noted
above. Though the order dated 6.2.2009
is innocuously worded and in fact it is a
conditional
order,
however,
for
the
reason that the said order is causing
miscarriage of justice on account of the
fact that the departmental authorities
have already held the initial appointment
of respondent no.1 to be forged, in my
considered
view,
the
order
dated
6.2.2009 deserves to be reviewed, albeit
without giving any finding as to the
genuineness
of
the
appointment
of
respondent no. 1.
Case Law discussed:
[2004 (22) LCD 115]

## Text

886 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
as set down for realization of fine under
the Cr P C.

12. The appeal fails and is dismissed
at the admission stage itself.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Review Petition Defective No. 96 of 2009

District Basic Education Officer ...Petitioner
Versus
Chandra Kant Tripathi & Ors...Respondents

Counsel for the Petitioner:
Sri Jyotinjay Verma

Counsel for the Respondents:
Sri K.M. Shukla, Sri P.K. Khare

Constitution of India, Art. 226- Review
Application-petition decided with direction
of reinstatement and salary-based upon
concealment of material facts and fraudreview held-maintainable.

Held: Para-18
I have no hesitation to hold that this
Court was persuaded to pass the order
dated
6.2.2009
by
suppression
and
concealment of material facts as noted
above. Though the order dated 6.2.2009
is innocuously worded and in fact it is a
conditional
order,
however,
for
the
reason that the said order is causing
miscarriage of justice on account of the
fact that the departmental authorities
have already held the initial appointment
of respondent no.1 to be forged, in my
considered
view,
the
order
dated
6.2.2009 deserves to be reviewed, albeit
without giving any finding as to the
genuineness
of
the
appointment
of
respondent no. 1.
Case Law discussed:
[2004 (22) LCD 115]

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Shri Jyotinjay Verma,
learned counsel for review applicant and
Shri K.M. Shukla and Shri P.K. Khare,
learned counsel appearing for respondent
no. 1.

2. By means of the instant review
petition, the final judgment and order
dated 06.02.2009 passed by this Court has
been sought to be reviewed on the ground
inter alia that the order dated 6.2.2009
passed by this Court has resulted in
miscarriage of justice for the reason that
this Court was persuaded to pass the order
on
account
of
suppression
and
concealment of material facts by the
respondent no. 1.

3. Opposing the plea taken by
learned counsel appearing for review
applicant, Shri P.K. Khare, learned
counsel
for
respondent
no.
1
has
vehemently submitted that the order under
review dated 6.2.2009 is an innocuous
order and the same does not suffer from
any legal infirmity so as to call for its
review. He has further stated that the
order under review is a conditional order,
according to which, the respondents in the
writ petition were directed to allow
joining of the petitioner therein and to pay
him salary only in case the petitioner was
reinstated. He has further stated that in
case according to the review applicant,
respondent no. 1 was not reinstated then
the order dated 6.2.2009 ought to have
been interpreted by the review applicant
accordingly. He further states that the
order, being conditional in nature, does
2 All] District Basic Education Officer Vs. Chandra Kant Tripathi & Ors.
887
not suffer from any error apparent on the
face of record and hence the review
petition is misconceived.

4. Shri Khare has further stated that
on one hand in compliance of order dated
6.2.2009, the respondent no. 1 has not
only been allowed his joining but is also
being paid his salary as well and on the
other hand, the same order is being
assailed by the review applicant by filing
the instant petition, which according to
him, is not legally permissible.

5.

I have considered the rival
arguments advanced by learned counsels
for respective parties.

6. Admittedly, the writ petition filed
by
respondent
no.1
(Chandra Kant
Tripathi) bearing Writ Petition No. 918
(SS) of 2008 in which the order under
review dated 6.2.2009 has been passed
was finally disposed of on the date when
it was presented for the first time before
the Court. The order dated 6.2.2009 was
passed after hearing the learned Standing
Counsel
appearing
for
the
State
authorities and also learned counsel
appearing for the Basic Shiksha Adhikari,
who is the applicant in the instant review
petition.

7. The order dated 6.2.2009 is based
on the grievance raised by respondent no.
1 to the effect that since he was reinstated
by the order dated 7.11.2007 as such, he
is entitled to be permitted his joining and
further to be paid the salary. The Court
while passing the order dated 6.2.2009
only observed that if the respondent no. 1
has been reinstated by the order of Basic
Shiksha Adhikari then there cannot be
said to be any authority under which he
can be restrained from functioning as
teacher in the institution in question and
further that there cannot be any legal
provision or legal authority under which
the
petitioner
can
be
denied
his
continuance and salary as teacher unless
any subsequent order has been passed
against him. Based on the aforesaid
observations, the Court only directed the
respondents of the writ petition to allow
the joining of the petitioner therein and to
pay him salary only if the petitioner was
reinstated. The operative portion of the
aforesaid order dated 06.02.2009 is as
follows:-

"In view of the fact, it is directed that
if the petitioner has been reinstated, he
shall be allowed to join on his post within
a period of fifteen days from the date a
certified copy of this order is produced
before the authority concerned and will
also be entitled for salary if permissible
under the law."

8. True, from a perusal of the order
dated 6.2.2009 passed by this Court while
finally disposing of Writ Petition No. 918
(SS) of 2009, it cannot be said that the
said order suffers from any apparent
infirmity. However, this case has very
disturbing facts, which are being narrated
here in after. These facts make it evident
that while passing the order dated
6.2.2009, this Court was persuaded to
pass the said order by concealment of
material facts by the petitioner in the writ
petition.

9. It is alleged by learned counsel
appearing for the review applicant that the
respondent no. 1 was allegedly appointed
in the year 1991 on compassionate
ground. However, he was placed under
suspension on the ground that he claimed
his appointment on compassionate ground
888 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
on the basis of a forged document i.e. his
very appointment letter. In this regard, he
has drawn attention of the Court towards
the letter dated 21.7.2005, written by the
then Basic Shiksha Adhikari (who has
since retired) to the Assistant Director of
Education (Basic) Faizabad Division,
Faizabad stating therein that though
alleged appointment order issued in
favour of respondent no. 1 is dated
20.8.1991, which is allegedly issued
under his signature whereas he had joined
on his posting only on 12.9.1991. The
then
Basic
Shiksha
Adhikari
has
categorically stated in the said letter that
the alleged order of appointment of the
respondent
no.1dated
20.8.1991
is
completely forged and fabricated.

10. It has further been stated by the
learned counsel appearing for review
applicant that an inquiry was conducted
and by means of order dated 30.6.2005
reinstatement of the respondent no. 1
ordered earlier was cancelled. He has
further stated that in the said inquiry, it
was found that the appointment order of
the respondent no.1, allegedly issued on
20.8.1991
appointing
him
on
compassionate ground, was a forged
document. It has also been brought to the
notice of the Court that challenging the
aforesaid order dated 30.6.2005, the
respondent no.1 had earlier filed a Writ
Petition bearing No. 532 (SS) of 2005
wherein no interim order was passed by
the Court and on the date of disposal of
Writ Petition No. 918 (SS) of 2009, the
said writ petition i.e. Writ Petition No.
532 (SS) of 2005 was pending. It has also
been pointed out by learned counsel that
the factum of pendency of Writ Petition
No. 532 (SS) of 2005 was not disclosed
by the respondent no.1 while filing Writ
Petition No. 918 (SS) of 2009. He further
stated that if such an averment was made
in Writ Petition No. 918 (SS) of 2009
bringing to the notice of the Court the
factum of pendency of Writ Petition No.
532 (SS) of 2005, the Court would not
have been persuaded to pass the order
under review dated 6.2.2009.

11. It has also been brought to the
notice of the Court and the said fact has
not been controverted by learned counsel
appearing for respondent no.1 that in
respect of alleged forgery committed by
respondent no.1 in obtaining forged
appointment of compassionate ground as
Assistant
Teacher,
First
Information
Report was lodged in the year 2005 and
after investigation in the said criminal
case a charge sheet was also submitted
before the court concerned. It has also
been stated that non-bailable warrants by
the court concerned have been issued
against him. Learned counsel for review
applicant states that the factum of lodging
of F.I.R., filing of charge sheet and
pendency of the criminal case in respect
of very initial appointment of petitioner
ought to have been brought to the notice
of the Court by respondent no.1 while
filing Writ Petition No. 918 (SS) of 2009
and by not bringing these facts to the
notice of the Court, the respondent no.1
is, in fact, guilty of misrepresentation and
concealment of relevant facts. He further
states that on account of the aforesaid
misrepresentation, the Court appears to
have been persuaded to pass the order
dated 6.2.2009.

12. Shri Verma has further argued
that as far as the earlier Writ Petition No.
532 (SS) of 2005 is concerned, the same
was got dismissed as withdrawn on
19.2.2006 i.e. subsequent to the final
disposal of Writ Petition No. 918 (SS) of
2 All] District Basic Education Officer Vs. Chandra Kant Tripathi & Ors.
889
2009 by means of the order dated
6.2.2009, which is under review. He has
also stated that no notice of the
application seeking withdrawal of Writ
Petition No. 532 (SS) of 2005 was ever
given to the learned counsel appearing for
Basic Shiksha Adhikari in the said case.

13. In the background of the aforesaid
facts, especially the misrepresentation and
concealment of relevant facts and material
made by respondent no.1, it can safely be
observed that order under review may not
apparently appear to suffer from any
infirmity for the reason that it is apparently
very innocuously worded but it has
ultimately resulted in miscarriage of justice,
as such, the instant review petition deserves
to be allowed.

14. As regards the submission made
by Shri P.K. Khare, regarding the
maintainability of the review petition,
regard may be had to the judgment of the
Division Bench of this Court in the case
of Vijay Pratap Singh Vs. Union of
India and seven others reported in
[2004 (22) LCD 115] wherein it has
categorically been held that the orders
obtained by concealment of fact deserves
to be set aside and further that the order of
the Court should not be prejudicial in any
manner and if the Court finds that the
order was passed under a mistake or in a
situation where it would not have
exercised the jurisdiction, but forits
erroneous assumption, which in fact did
not exist, it can rectify the error. In other
words, if an order has been passed by
mistake or by suppression of material
facts and further if the order is causing
miscarriage of justice, it can be reviewed.

15. Paragraph no. 8 of the aforesaid
judgment in the case of Vijay Pratap
Singh (supra) is relevant to be quoted
here which runs as under:-

"8. It appears to be a settled legal
position
that
orders
obtained
by
concealment of facts, deserves to be set
aside. In this connection, reference may
be made to Welcom Hotel & others V.
State of Andhra Pradesh & others
(1983) 4 SCC page 575, the Chancellor
& another v. Dr. Vijaynanda Kar &
others, (1994) 1 SCC, 169, wherein it
has clearly been held that suppression
of
material
facts
disentitles
the
petitioner to any relief at the hands of
the Court. The Apex Court has also
ruled in S.Nagraj & others v. State of
Karnataka & others, (1993) Supp. (4)
SCC 595 that the order of the court
should not be prejudicial to any one
and if the court finds that the order was
passed under a mistake and it would
not have exercised the jurisdiction but
for the erroneous assumption which in
fact did not exit, it an rectify the error.
In other words, if an order has been
passed
either
by mistake
or
by
suppression of material facts and if the
order is causing miscarriage of justice,
it has to be reviewed. Similar was the
view of this Court in Dr. Sushma
Misra, Vs. U.P. Higher Education
Service Commission, (1982) 2 UPLBEC
1502. it was said that if an order was
passed on misapprehension of facts,
then there was no rule which prevented
it from reviewing the same."

16. It does not require any
discussion to observe that forgery vitiates
all judicial acts and since in the instant
case, the very initial appointment of
respondent no.1 is allegedly based on
forged and fabricated appointment order,
hence, respondent no.1 was not entitled to
890 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
any kind of relief howsoever innocuously
worded the order under review may be.
The submission of learned counsel
appearing for the respondent No.1 that the
order dated 6.2.2009, which is under
review in the instant review petition is a
very innocuous order and further it is a
conditional order and hence instead of
filing
the
review
petition,
it
was
incumbent on the part of review applicant
to have appropriately interpreted the said
order does not impress the Court.

17. As noticed above, the allegation of
the review applicant is that the very initial
appointment order of respondent no.1
appointing him as Assistant Teacher on
compassionate ground is forged. Further
noticeable feature in this case is that on an
inquiry, the department has found the order
dated 21.6.2004, on the strength of which the
respondent
no.1
had
claimed
his
reinstatement, has also been found to be
forged. This report is embodied in the order
dated 30.6.2005. The said order dated
30.6.2005 was challenged by respondent
no.1 by way of filing Writ Petition No. 532
(SS) of 2005. Further, while filing the
subsequent Writ Petition No. 918 (SS) of
2009 even the factum of pendency of the
earlier
writ
petition
was
deliberately
suppressed by the respondent no.1. Another
material suppression, which is apparent in
the instant case, which the respondent no.1
indulged into, is that while filing Writ
Petition No. 918 (SS) of 2009, pendency of
criminal case in respect of allegations of
forgery in the appointment order dated
20.8.1991 was not disclosed. It is also
noteworthy that the order dated 7.11.2007 is
also being termed to be a forged document
allegedly fabricated by respondent no.1.

18. From a close scrutiny and analysis
of the aforesaid facts and circumstances of
the case as also the competing arguments
raised by learned counsels appearing for the
parties, I have no hesitation to hold that this
Court was persuaded to pass the order dated
6.2.2009 by suppression and concealment
of material facts as noted above. Though the
order dated 6.2.2009 is innocuously worded
and in fact it is a conditional order,
however, for the reason that the said order is
causing miscarriage of justice on account of
the fact that the departmental authorities
have already held the initial appointment of
respondent no.1 to be forged, in my
considered view, the order dated 6.2.2009
deserves to be reviewed, albeit without
giving any finding as to thegenuineness of
the appointment of respondent no. 1.

19. In view of the discussions made
and reasons given above, in the result, the
instant review petition is allowed and the
order dated 6.2.2009 is hereby set aside. It is
expected that pleadings in the Writ Petition
No. 918 (SS) of 2009 shall be completed
within the shortest possible span of time and
the same shall be decided expeditiously.

20. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2013

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE PANKAJ NAQVI, J.

Criminal Misc.Application (Leave toAppeal)
No. 105 of 2013(u/s 372)

Madan Pal Sharma

...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri
H.C.
Mishra,
Sri
V.
Singh