# Malti Devi v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-31
- **Case number:** Writ C No. 4812 of 2021
- **Bench:** Surya Prakash Kesarwani, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/malti-devi-v-state-of-u-p-ors-47385
- **Pages:** 12

## Headnote

Constitution of India - Public employment
on the basis of forged certificate -
Recovery of salary - recovery of salary can
be made where the order of appointment
is cancelled on the ground that the
appointment itself was obtained by forged
eligibility
educational
certificate
-
retention of public money received by
such employee as salary is against the
fundamental principles of justice, equity
and good conscience - It is an unjust
retention
of
public
money
by
the
petitioner
which
amounts
to
unjust
enrichment - recovery notice cannot be
interfered
under
Article
226
of
the
Constitution of India (Para 25)

Petitioner obtained appointment as Assistant
Teacher on the basis of a forged TET marksheet
- Petitioner obtained public employment by
misrepresentation
and
fraud
and
thus
unauthorisedly
and
fraudulently
received
payment of public money - No material placed
to indicate extreme hardship on recovery of the
amount - Equitable and discretionary jurisdiction
under Article 226 of the Constitution of India
cannot be invoked by the petitioner - Recovery
Notice neither iniquitous nor arbitrary (Para 24)

Dismissed .(E-5)

List of Cases cited :

1 . United India Insurance Company Ltd. Vs B.
Rajendra Singh & ors. JT 2000 (3) SC 151

## Text

1308 INDIAN LAW REPORTS ALLAHABAD SERIES

7. There is no infirmity in the
impugned order dated 19.02.2021.

8. The writ petition is dismissed.
----------
(2021)09ILR A1308
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 4812 of 2021

Malti Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Babloo Pant

Counsel for the Respondents:
C.S.C.

Constitution of India - Public employment
on the basis of forged certificate -
Recovery of salary - recovery of salary can
be made where the order of appointment
is cancelled on the ground that the
appointment itself was obtained by forged
eligibility
educational
certificate
-
retention of public money received by
such employee as salary is against the
fundamental principles of justice, equity
and good conscience - It is an unjust
retention
of
public
money
by
the
petitioner
which
amounts
to
unjust
enrichment - recovery notice cannot be
interfered
under
Article
226
of
the
Constitution of India (Para 25)

Petitioner obtained appointment as Assistant
Teacher on the basis of a forged TET marksheet
- Petitioner obtained public employment by
misrepresentation
and
fraud
and
thus
unauthorisedly
and
fraudulently
received
payment of public money - No material placed
to indicate extreme hardship on recovery of the
amount - Equitable and discretionary jurisdiction
under Article 226 of the Constitution of India
cannot be invoked by the petitioner - Recovery
Notice neither iniquitous nor arbitrary (Para 24)

Dismissed .(E-5)

List of Cases cited :

1 . United India Insurance Company Ltd. Vs B.
Rajendra Singh & ors. JT 2000 (3) SC 151

2. Vice Chairman, Kendriya Vidyalaya Sangathan
& anr. Vs. Girdhari Lal Yadav, 2004 (6) SCC 325

3. Ram Chandra Singh Vs Savitri Devi & ors.
2003(8) SCC 319

4. S.P. Chengal Varaya Naidu (dead) by L.Rs Vs
Jagannath (dead) by L.Rs & ors. AIR 1994 SC
853

5. Jainendra Singh Vs St. of U.P., 2012 (8) SCC
748

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Babloo Pant, learned
counsel for the petitioner and Sri Alok
Singh, learned Standing Counsel for the
State-Respondents.

2. This writ petition has been filed
praying for the following reliefs :-

"i) issue a writ, order or direction
in the nature of certiorari quashing the
impugned order titled as "Recovery Notice"
dated 10.07.20020 issued by the District
Basic Education Officer, Kaushambi (i.e.
Respondent No.3) to the writ petition.

ii) issue a writ, order or direction
in the nature of mandamus directing the
District
Basic
Education
Officer,
Kaushambi (i.e. respondent No.3) to
forthwith, release the salary of the
9 All Malti Devi Vs. State of U.P. & Ors.
1309
petitioner with effect from April, 2017 till
today as and when it falls due and not to
cause any interference in the working of the
petitioner on the post of Assistant Teacher
in Mehewaghat Sarsawan Primary School,
Kaushambi."

Facts

3. Briefly stated facts of the present
case are that the petitioner obtained
appointment as Assistant Teacher in an
institution run by U.P. Basic Education
Board, vide order of appointment issued by
the District Basic Education Officer,
Kaushambi. By order dated 14.08.2018, the
appointment of the petitioner was cancelled
on the ground that the petitioner had
obtained public employment on the post of
Assistant Teacher on the basis of forged
T.E.T.
Certificate/marksheet
2011.
It
appears that against the aforesaid order of
cancellation
of
appointment
dated
14.08.2018, the petitioner filed Writ A No.
5185 of 2019 (Malti Devi and another Vs.
State of U.P. and others) in which an
interim order dated 08.07.2019 was passed
staying the effect and operation of the order
dated 14.08.2018.

4. It appears that the petitioner has
obtained salary from the State-exchequer.
Consequently,
the
impugned
recovery
notice dated 10.07.2020 was issued by the
respondent no.3 to the petitioner, which is
reproduced below :-

"िायाालय
कजला
बेकसि
कशक्षा
अकधिारी- िौशाम्बी

पत्राांि : अनु0-01/1717-22 /202021 कदनाांि- 10.07.2020

ररिवरी नोकिस

श्रीमती मालती देवी पुत्री श्री हरर
शांिर वमाा

(सेवा
से
कनष्काकसत)
सहायि
अध्यापि,

प्राथकमि
कवद्यालय-
बहादुरपुर,
मांझनपुर

कनवासी-ग्राम
पुरखीपुर
पोस्टखरगापुर

थाना-सोराांव जनपद-प्रयागराज।

िायाालय आदेश सांख्या-519/201819 कदनाांि- 14.08.2018 िे द्वारा आपिो
कशक्षि पात्रता परीक्षा 2011 िा फजी प्रमाण पत्र
प्रस्तुत किये जाने िे िारण सेवा से पृथि िरते
हुए आपिे कवरुद्ध स्थानीय थाना में प्रथम सूचना
ररपोिा दजा िरा दी गयी है। कवत्त एवां
लेखाकधिारी बेकसि कशक्षा िौशाम्बी िे पत्र
सांख्या-ले0सां0/348-53/2020-21
कदनाांि-
07.07.2020 िे अनुसार कवभाग में िी गयी सेवा
िे सापेक्ष आप द्वारा वेतनाकद मद में प्राप्त किये
गये वेतन िी ररिवरी िा आगणन तैयार िर
अधोहस्ताक्षरी िायाालय िो प्रेकित किया गया
है।

उक्तानुसार
प्राप्त
आगणन
िे
अनुसार सम्पूणा सेवा अवकध में आपने सभी
पररलब्धियोां िे सापेक्ष रु0, 2185920.00 (रुपया
इक्कीस लाख पचासी हजार नौ सौ बीस मात्र)
िा भुगतान वेतन िे रुप में प्राप्त किया गया है,
चुांकि आपिे द्वारा िूिरकचत/फजी अकभलेख िे
आधार पर कनयुब्धक्त प्राप्त िर वेतन स्वरुप रु0,
2185920.00 (रुपया इक्कीस लाख पचासी
हजार नौ सौ बीस मात्र) िा भुगतान प्राप्त किया
गया है। अस्तु आपिो कनदेकशत किया जाता है
कि आप द्वारा प्राप्त किये गये वेतन िो
कनयमानुसार राजिोि में 07 कदवसोां िे अन्दर
जमा किये गये धन से सम्बांकधत अकभलेख
अधोहस्ताक्षरी िायाालय में उपबल्ध िराना
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
सुकनकश्चत िरें। अन्यथा िी ब्धस्थत में आप द्वारा
वेतन एवां अन्य भत्तोां िे साथ में िी गयी िुल
धनराकश रु0, 2185920.00 (इक्कीस लाख
पचासी हजार नौ सौ बीस मात्र) िी वसूली भू-
राजस्व िी भाांकत िी जायेगी, कजसिा सम्पूणा
दाकयत्व आपिा होगा।

ह0 अपठनीय

(राजिुमार पांकित)

कजला बेकसि कशक्षा अकधिारी

िौशाम्बी

पृ0सां0
:
अनु0-01/
/2020-21
तकद्दनाांि

प्रकतकलकप-कनम्नकलब्धखत िो सूचनाथा
एवां आवश्यि िायावाही हेतु प्रेकित-

1-
कजलाकधिारी
महोदय,
िौशाम्बी।

2- कशक्षा कनदेशि (बेकसि) उ0प्र0
लखनऊ।

3- सकचव, उ0प्र0 बेकसि कशक्षा
पररिद् प्रयागराज।

4- कवत्त एवां लेखाकधिारी (बेकसि
कशक्षा) िौशाम्बी।

5- सम्बांकधत खण्ड कशक्षा अकधिारी
जनपद-िौशाम्बी िो इस कनदेश िे साथ िे
उक्त अध्यापि िे पते िा कमलान सेवा
पांकजिा से िरते हुए सही पते पर पत्र िी प्रकत
रकजस्टिा िाि से प्रेकित िरते हुए रकजस्टरी िी
छाया प्रकत आधोहस्ताक्षरी िो उपलि िराना
सुकनकश्चत िरें।

ह0 अपठनीय

कजला बेकसि कशक्षा अकधिारी

िौशाम्बी "

5. Aggrieved with the aforequoted
recovery notice, the petitioner has filed the
present writ petition.

Submissions of the Petitioner

6. Learned counsel for the petitioner
submits as under :-

i)
Against
the
order
of
cancellation
of
her
appointment
as
Assistant Teacher, the petitioner has filed
Writ A No. 5185 of 2019 (Malti Devi and
another Vs. State of U.P. and others) in
which an interim order dated 08.07.2019,
staying the effect and operation of the
order dated 14.08.2018, was passed.
Therefore, no salary can be recovered
from the petitioner.

ii) Similar writ petitions were
decided by the Hon'ble Single Judge
against which a Special Appeal Defective
240 of 2020 (Kiran Lata Singh Vs. State
Of U.P. Through Secretary, Department
of Basic Education And 5 others) was
filed in which an interim order dated
31.07.2020 has been passed, therefore,
salary cannot be recovered from the
petitioner.

Submissions on behalf of the
State

7. Learned standing counsel submits
as under:-

i) The Special Appeal Defective
No.240 of 2020 has been finally decided by
the Division Bench and the said Special
Appeal alongwith all connected Special
Appeals have been dismissed. Therefore,
the submission of the petitioner on the basis
of interim order in Special Appeal
Defective
240
of
2020
is
wholly
misconceived.

ii) The dispute involved in
Special Appeal Defective No. 240 of 2020
was with regard to forged B.Ed. Degree
9 All Malti Devi Vs. State of U.P. & Ors.
1311
and not the forged T.E.T. Certificate.
Therefore, in any circumstances, the case
of the petitioner being different on the
facts, the petitioner is not entitled for any
relief.

iii) When salary to the petitioner
was
not
paid
after
cancellation
of
appointment, the petitioner filed Writ A
No.1148 of 2020 (Malti Devi and another
Vs. State of U.P. And 2 others) which was
disposed of by order dated 23.01.2020,
directing authority concerned to decide
claim of the petitioner in regard to payment
of salary and the representation was
disposed of by order dated 24.04.2020.

iv) The petitioner is not entitled to
any relief inasmuch as a direction issued by
this Court by order dated 18.03.2021 to
obtain verification report of T.E.T. Certificate
of the petitioner, the same was verified and it
was found that alleged T.E.T. Certificate year
2011 in favour of the petitioner bearing Roll
No.15054567 was never issued by the office
of the Board of High School and Intermediate
Education, Uttar Pradesh, Prayagraj.

v) Referring to paragraphs 3 & 4 of
the short counter affidavit dated 24.03.2021,
it is submitted that the alleged T.E.T.
Certificate is forged and manufactured and it
has not been issued by the Board of High
School and Intermediate Education and in
support, a copy of verification report has been
filed as an Annexure S.C.A.-1. The
verification report filed alongwith the
short counter affidavit has not been
disputed by the petitioner. Therefore, the
petitioner is not entitled for any relief
inasmuch as, after undisputed facts have been
brought on record by means of the
verification report of the Secretary, Board of
High School and Intermediate Education,
Uttar Pradesh, Prayagraj, dated 23.03.2021,
the fact of obtaining public employment by
the petitioner on the basis of forged T.E.T.
Certificate 2011, is undisputed and, therefore,
the petitioner cannot take advantage of her
own fraud.

Questions

8 . With the consent of learned counsel
for the parties following questions were
framed for determination in this writ petition
by order dated 24.03.2021 :-

(i) Whether under the facts and
circumstances of the case the impugned
recovery notice dated 10.7.2020 is valid?

(ii) Whether recovery of salary
can
be
made
where
the
order
of
appointment is cancelled on the ground that
the appointment itself was obtained by
forged eligibility educational certificate?

Discussion and Findings

9. Since both the questions are
interlinked
and,
therefore,
both
the
aforementioned questions are taken up
together for decision.

Whether TET Certificate Filed
by the Petitioner is Forged

10. The sole point of dispute between
the parties is as to whether the T.E.T.
Certificate 2011 bearing Roll No.15054567,
is forged or genuine. Therefore, by order
dated 18.03.2021, this Court directed the
learned
standing
counsel
to
obtain
instructions and verification report of the
alleged
T.E.T.
Certificate
from
the
respondent no.2 i.e. the Board of High School
and Intermediate Education Uttar Pradesh,
Prayagraj,
which
allegedly
issued
the
aforesaid T.E.T. Certificate. Pursuant to the
aforesaid direction, Sri Divyakant Shukla,
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
Secretary, Board of High School and
Intermediate
Education,
Uttar
Pradesh,
Prayagraj, has filed a short counter affidavit
dated 24.03.2021. In paragraphs 3, 4 & 5 of
his short counter affidavit he (respondent
no.2) stated as under :-

"3. That it is submitted before this
Hon'ble Court that TET Certificate-year
2011 in favour of the petitioner namely Malti
Devi Roll No.15054567 never issued by the
office of the answering respondent.

4. That it appears the aforesaid
TET Certificate is forged and manufactured
because of it has not been issued by the office
of the answering respondent.

5. That in this regard the enquiry
has been conducted and record has been
verified to assist this Hon'ble Court. For the
kind perusal of this Hon'ble Court copy of the
verification report is being filed herewith
and marked as Annexure No.S.C.A.1 to this
affidavit."

11. The verification report dated
23.03.2021, filed alongwith the aforesaid
short counter affidavit is reproduced below:

"पररिदीय अकभलेखानुसार कशक्षि
पात्रता परीक्षा विा-2011 अनुक्रमाांि-15054567
िी सत्यापन आख्या

TET /EXAM-2011 (प्राथकमि स्तर)

ROLL NUMBER- 15054567

NAME- MALTI DEVI

FATHER'S
NAME-HARI
SHANKAR PATEL

CATEGORY-OBC

RESULTS-024/150 FAIL

अनुत्तीणा परीक्षाकथायोां िे प्रमाण पत्र
कनगात नहीां किया जाता है। याचिका के साथ
संलग्नक 1 ए (पृष्ठ-28 पर) के रुप में संलग्न
प्रमाण पत्र सह अंकपत्र पररषद कायाालय
द्वारा जारी नहीं चकया गया है।

ह0 अपठनीय

23.03.2021

उप सकचव अकभलेख

माध्यकमि कशक्षा पररिद

उ0प्र0, प्रयागराज

ह0अपठनीय"

12. Thus, it is proved on record that
the alleged T.E.T. Certificate 2011 bearing
Roll No.15054567 in the name of the
petitioner and allegedly issued by the
Board of High School and Intermediate
Education, Uttar Pradesh, Prayagraj, is
forged and manufactured. The Board of
High School and Intermediate Education
has, after due inquiry and verification
stated in the short counter affidavit that the
aforesaid alleged T.E.T. Certificate is
forged and manufactured and it was not
issued by the office of the Board. The
verification report and relevant paragraphs
of the short counter affidavit have been
quoted
above.
Thus,
the
facts
as
aforenoted, leave no manner of doubt
that
the
aforesaid
alleged
T.E.T.
Certificate 2011 on the basis of which the
petitioner obtained public employment
on the post of Assistant Teacher, is
forged and manufactured.

Fraud and its consequences

13. Since the public employment was
obtained by the petitioner on the basis of
forged
and
manufactured
T.E.T.
Certificate, therefore, the appointment so
obtained was void ab initio. Faced with
this
situation,
this
Court
cannot
consciously follow a wrong path by
interfering with the impugned recovery
9 All Malti Devi Vs. State of U.P. & Ors.
1313
notice and protect the petitioner from
the consequences of fraud committed by
her or to enable her to take advantage of
her own fraud. It is well settled that fraud
and justice never dwell together and no one
can take advantage of his/her own fraud.

14. In the case of United India
Insurance
Company
Ltd.
Vs.
B.
Rajendra Singh and others, JT 2000 (3)
SC 151, considering the fact of fraud,
Hon'ble Supreme Court held in paragraph 3
as under:

"Fraud and justice never dwell
together."
(Frans
et
jus
nunquam
cohabitant) is a pristine maxim which has
never
lost
its
temper
overall
these
centuries. Lord Denning observed in a
language without equivocation that" no
judgement of a Court, no order of a
Minister can be allowed to stand if it has
been obrtained by fraud, for fraud unravels
everythin " (Lazarus Estate Ltd. V. Beasley
1956 (1) QB 702).

15. In the case of Vice Chairman,
Kendriya Vidyalaya Sangathan and
Another Vs. Girdhari Lal Yadav, 2004
(6) SCC 325, Hon'ble Supreme Court
considered the applicability of principles of
natural justice in cases involving fraud and
held in paragraph 12 as under :

"12. Furthermore, the respondent
herein has been found guilty of an act of
fraud. In opinion, no further opportunity of
hearing is necessary to be afforded to him.
It is not necessary to dwell into the matter
any further as recently in the case of Ram
chandra Singh v. Savitri devi this Court has
noticed :

"15. Commission of fraud on court
and suppression of material facts are the core
issues involved in these matters. Fraud as is
well-known vitiates every solemn act. Fraud
and justice never dwells together.

16. Fraud is a conduct either by
letter or words, which induces the other
person, or authority to take a definite
determinative stand as a response to the
conduct of former either by word or letter.

It
is
also
well
settled
that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may also
give reason to claim relief against fraud.

18.A
fraudulent
misrepresentation is called deceit and
consists in leading a man into damage by
willfully or recklessly causing him to
believe and act on falsehood. It is a fraud
in law if a party makes representations
which he knows to be false, and injury
ensues therefrom although the motive from
which the representations proceeded may
not have been bad."

19. In Derry V. Peek (1889) 14
AC 337 it was held: "In an action of deceit
the plaintiff must prove actual fraud. Fraud
is proved when it is shown that a false
representation has been made knowingly,
or without belief in its truth, or recklessly,
without caring whether it be true or false.

A false statement, made through
carelessness
and
without
reasonable
ground for believing it to be true, may be
evidence of fraud but does not necessarily
amount to fraud. Such a statement, if made
in the honest belief that it is true, is not
fraudulent and does not render the person
make it liable to an action of deceit."

16. In the case of Ram Chandra
Singh Vs. Savitri Devi and others,
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
2003(8) SCC 319, Hon'ble Supreme Court
held in paragraphs 15, 16, 17, 18, 25 and 37
as under :

"15. Commission of fraud on
court and suppression of material facts are
the core issues involved in these matters.
Fraud as is well-known vitiates every
solemn act. Fraud and justice never dwells
together.

16. Fraud is a conduct either by
letter or words, which induces the other
person, or authority to take a definite
determinative stand as a response to the
conduct of former either by word or letter.

17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.

18.
A
fraudulent
misrepresentation is called deceit and
consists in leading a man into damage by
willfully or recklessly causing him to
believe and act on falsehood. It is a fraud
in law if a party makes representations
which he knows to be false, and injury
ensues therefrom although the motive from
which the representations proceeded may
not have been bad.

25. Although in a given case a
deception may not amount to fraud, fraud
is anathema to all equitable principles and
any affair tainted with fraud cannot be
perpetuated or saved by the application of
any equitable doctrine including resjudicata.

37. It will bear repetition to state
that any order obtained by practising fraud
on court is also non-est in the eyes of law."

17.

In
the
case
of
S.P.
ChengalVaraya Naidu (dead) by L.Rs
Vs. Jagannath (dead) by L.Rs and
others, AIR 1994 SC 853, the Hon'ble
Supreme Court held in para 7 as under :

"7. The High Court, in our view,
fell into patent error. The short question
before the High Court was whether in the
facts and circumstances of this case,
Jagannath obtained the preliminary decree
by playing fraud on the court. The High
Court, however, went haywire and made
observations which are wholly perverse.
We do not agree with the High Court that
"there is no legal duty cast upon the
plaintiff to come to court with a true case
and prove it by true evidence". The
principle of "finality of litigation" cannot
be pressed to the extent of such an
absurdity that it becomes an engine of
fraud in the hands of dishonest litigants.
The courts of law are meant for imparting
justice between the parties. One who comes
to the court, must come with clean hands.
We are constrained to say that more often
than not, process of the court is being
abused. Property-grabbers, tax-evaders,
bank-loan-dodgers and other unscrupulous
persons from all walks of life find the
court-process a convenient lever to retain
the illegal-gains indefinitely. We have no
hesitation to say that a person, who's case
is based on falsehood, has no right to
approach the court. He can be summarily
thrown out at any stage of the litigation."

18. In the case of Jainendra Singh
Vs. State of U.P., 2012 (8) SCC 748,
Hon'ble Supreme Court considered the fact
of appointment obtained by fraud and held
in para 29.1 to 29.10 as under :

"29.1
Fraudulently
obtained
orders
of
appointment
could
be
9 All Malti Devi Vs. State of U.P. & Ors.
1315
legitimately treated as voidable at the
option of the employer or could be
recalled by the employer and in such cases
merely because the respondent employee
has continued in service for a number of
years, on the basis of such fraudulently
obtained employment, cannot get any
equity in his favour or any estoppel
against the employer.

29.2 Verification of the character
and antecedents is one of the important
criteria to test whether the selected
candidate is suitable to the post under the
State and on account of his antecedents the
appointing authority if find not desirable to
appoint a person to a disciplined force can
it be said to be unwarranted.

29.3 When appointment was
procured by a person on the basis of
forged documents, it would amount to
misrepresentation and fraud on the
employer and, therefore, it would create
no equity in his favour or any estoppel
against the employer while resorting to
termination without holding any inquiry.

29.4
A
candidate
having
suppressed material information and/or
giving false information cannot claim
right to continue in service and the
employer, having regard to the nature of
employment as well as other aspects, has
the discretion to terminate his services.

29.5 Purpose of calling for
information regarding involvement in any
criminal case or detention or conviction
is for the purpose of verification of the
character/antecedents at the time of
recruitment and suppression of such
material information will have clear
bearing on the character and antecedents
of the candidate in relation to his
continuity in service.

29.6
The
person
who
suppressed the material information
and/or gives false information cannot
claim any right for appointment or
continuity in service.

29.7 The standard expected of a
person intended to serve in uniformed
service is quite distinct from other
services and, therefore, any deliberate
statement or omission regarding a vital
information can be seriously viewed and
the ultimate decision of the appointing
authority cannot be faulted.

29.8 An employee on probation
can be discharged from service or may be
refused employment on the ground of
suppression of material information or
making false statement relating to his
involvement
in
the
criminal
case,
conviction or detention, even if ultimately
he was acquitted of the said case, inasmuch
as such a situation would make a person
undesirable or unsuitable for the post.

29.9
An
employee
in
the
uniformed service pre-supposes a higher
level of integrity as such a person is
expected to uphold the law and on the
contrary such a service born in deceit and
subterfuge cannot be tolerated.

29.10 The authorities entrusted
with the responsibility of appointing
Constables, are under duty to verify the
antecedents of a candidate to find out
whether he is suitable for the post of a
Constable and so long as the candidate has
not been acquitted in the criminal case, he
cannot be held to be suitable for
appointment to the post of Constable."
(Emphasis supplied by us)

Equitable Jurisdiction

19. Public employment has been
procured by the petitioner on the basis of a
forged TET Certificate. This amounts to
misrepresentation
and
fraud
on
the
employer. Fraud vitiates every solemn act.
Therefore, it would not create equity in
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of the petitioner so as to get
protection from recovery of the amount
under the impugned recovery certificate.

20. The writ jurisdiction under Article
226 of the Constitution of India is an
equitable jurisdiction. Facts of the present
case reveal that petitioner has no equity in
his favour. Therefore, the equitable and
discretionary jurisdiction under Article 226
of the Constitution of India can not be
exercised in favour of the petitioner on the
facts of the present case

Recovery

21. Since public employment on the
post of Assistant Teacher was obtained by
the petitioner on the basis of a forged and
manufactured
T.E.T.
marksheet
2011
which resulted in cancellation of her
appointment,
therefore,
the
amount
received by the petitioner as salary and
other
benefits
relating
to
her
employment is a fraudulently received
amount
from
the
State-exchequer.
Therefore, the salary so drawn by the
petitioner is liable to be recovered from
her. Recovery of excess payment from an
employee is refused only where the excess
payment is made by the employer by
applying a wrong method or principle for
calculating the pay/allowance or on a
particular interpretation of the applicable
rules, which is subsequently found to be
erroneous. But where the payment from
State-exchequer is made as a result of
any
misrepresentation,
fraud
or
collusion, courts will not use their
discretion to deny the right to recover
the excess payment. The view being taken
by us is fortified by the law laid down by
Hon'ble Supreme Court in Registrar,
Cooperative Societies, Haryana and
others Vs. Israil Khan and others (2010)
1 SCC 440 (para 9). In Chandi Prasad
Uniyal Vs. State of Uttarkhand and Ors
(2012) 8 SCC 417 (paras 13 & 14) Hon'ble
Supreme Court held that any amount
paid/received without authority of law
can always be recovered barring few
exceptions of extreme hardships but not
as a matter of right, in such situations
law implies an obligation on the payee to
repay the money, otherwise it would
amount to unjust enrichment.

22. In the case of State of Punjab
and others Vs. Rafiq Masih (White
washer) 2015 4 SCC 334 (para 15)
Hon'ble Supreme Court held as under :

"................the right to recover
would be sustainable so long as the same
was not iniquitous or arbitrary."

23. It is settled principle of law that
no one can take advantage of his own
wrong
or
fraud.
The
amount
fraudulently obtained by a person, if
allowed to be retained, shall result in
unjust enrichment. In the case of Indian
Council for Enviro-legal Action Vs.
Union of India 2011 8 SCC 161 (para
151, 152, 153, 154, 159, 160, 161 and
197), Hon'ble Supreme Court explained
meaning of the word "unjust enrichment"
as under :-

"151. Unjust enrichment has
been defined as:

"A benefit obtained from another,
not intended as a gift and not legally
justifiable, for which the beneficiary must
make restitution or recompense."

See Black's Law Dictionary,
Eighth Edition (Bryan A. Garner) at page
1573. A claim for unjust enrichment arises
9 All Malti Devi Vs. State of U.P. & Ors.
1317
where there has been an "unjust retention
of a benefit to the loss of another, or the
retention of money or property of another
against the fundamental principles of
justice or equity and good conscience."

152. ''Unjust enrichment' has
been defined by the court as the unjust
retention of a benefit to the loss of
another, or the retention of money or
property
of
another
against
the
fundamental principles of justice or equity
and good conscience. A person is enriched
if he has received a benefit, and he is
unjustly enriched if retention of the
benefit
would
be
unjust.
Unjust
enrichment of a person occurs when he
has and retains money or benefits which
in justice and equity belong to another.

153. Unjust enrichment is "the
unjust retention of a benefit to the loss of
another, or the retention of money or
property
of
another
against
the
fundamental principles of justice or equity
and good conscience." A defendant may be
liable "even when the defendant retaining
the benefit is not a wrongdoer" and "even
though he may have received [it] honestly
in the first instance." (Schock v. Nash, 732
A.2d 217, 232-33 (Delaware.1999). USA)

154. Unjust enrichment occurs
when the defendant wrongfully secures a
benefit or passively receives a benefit
which would be unconscionable to retain.
In the leading case of Fibrosa v. Fairbairn,
[1942] 2 All ER 122, Lord Wright stated
the principle thus :

"....(A)ny civilized system of law
is bound to provide remedies for cases of
what has been called unjust enrichment or
unjust benefit, that is, to prevent a man
from retaining the money of, or some
benefit derived from another which it is
against conscience that he should keep.
Such
remedies
in
English
law
are
generically different from remedies in
contract or in tort, and are now recognized
to fall within a third category of the
common law which has been called quasicontract or restitution."

159. Unjust enrichment is basic
to the subject of restitution, and is indeed
approached as a fundamental principle
thereof. They are usually linked together,
and restitution is frequently based upon the
theory of unjust enrichment. However,
although
unjust
enrichment
is
often
referred to or regarded as a ground for
restitution, it is perhaps more accurate to
regard it as a prerequisite, for usually
there can be no restitution without unjust
enrichment. It is defined as the unjust
retention of a benefit to the loss of another
or the retention of money or property of
another against the fundamental principles
of justice or equity and good conscience. A
person is enriched if he has received a
benefit, and he is unjustly enriched if
retention of the benefit would be unjust.
Unjust enrichment of a person occurs when
he has and retains money or benefits which
in justice and equity belong to another.

160. While the term ''restitution'
was considered by the Supreme Court in
South-Eastern Coalfields 2003 (8) SCC 648
and other cases excerpted later, the term
''unjust

enrichment'
came
to
be
considered in Sahakari Khand Udyog
Mandal Ltd vs Commissioner of Central
Excise & Customs ((2005) 3 SCC 738).
This Court said: (Sahakari Khand case
SCC p.748, para 31)

"31.....'Unjust enrichment' means
retention of a benefit by a person that is
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
unjust or inequitable. ''Unjust enrichment'
occurs when a person retains money or
benefits which in justice, equity and good
conscience, belong to someone else."

161.
The
terms
''unjust
enrichment' and ''restitution' are like the
two shades of green - one leaning towards
yellow and the other towards blue. With
restitution, so long as the

deprivation of the other has not
been fully compensated for, injustice to that
extent remains. Which label is appropriate
under which circumstances would depend
on the facts of the particular case before
the court. The courts have wide powers to
grant restitution, and more so where it
relates to misuse or non-compliance with
court orders.

197. The other aspect which has
been dealt with in great details is to
neutralize any unjust enrichment and
undeserved gain made by the litigants.
While adjudicating, the courts must keep
the following principles in view.

1. It is the bounden duty and
obligation of the court to neutralize any
unjust enrichment and undeserved gain
made by any party by invoking the
jurisdiction of the court.

2. When a party applies and gets
a stay or injunction from the court, it is
always at the risk and responsibility of the
party applying. An order of stay cannot be
presumed to be conferment of additional
right upon the litigating party.

3. Unscrupulous litigants be
prevented from taking undue advantage
by invoking jurisdiction of the Court.

4.
A
person
in
wrongful
possession should not only be removed
from that place as early as possible but be
compelled to pay for wrongful use of that
premises fine, penalty and costs. Any
leniency
would
seriously
affect
the
credibility of the judicial system.

5. No litigant can derive benefit
from the mere pendency of a case in a court
of law.

6. A party cannot be allowed to
take any benefit of his own wrongs.

7. Litigation should not be
permitted to turn into a fruitful industry so
that
the
unscrupulous
litigants
are
encouraged to invoke the jurisdiction of the
court.

8. The institution of litigation
cannot
be
permitted
to
confer
any
advantage on a party by delayed action of
courts."

24. The petitioner has obtained
employment by misrepresentation and
fraud
and
thus
unauthorisedly
and
fraudulently received payment of public
money.
Neither
extreme
hardship
in
recovery has been argued before us nor any
material has been placed to indicate
extreme hardship on recovery of the
amount. That apart, the equitable and
discretionary jurisdiction under Article 226
of the Constitution of India can not be
invoked by the petitioner under the facts
and circumstances of the present case. The
principle laid down in the case of Chandi
Prasad Uniyal (supra) have been reiterated
by Hon'ble Supreme Court in the case of
State of Punjab and others Vs. Rafiq Masih
(White washer) (2014) 8 SCC 883. In the
case of Chandi Prasad Uniyal (supra) vide
para 16, Hon'ble Supreme Court held that
"in such circumstances, we find no reason
9 All Kanhaiya Lal Vs. State of U.P. & Ors.
1319
to interfere with the judgment of the High
Court. However, we order the excess
payment made be recovered from the
appellant's salary in twelve equal monthly
installments."

25. Under the facts and circumstances
of the present case, the recovery under the
impugned order/Recovery Notice is neither
iniquitous nor arbitrary. The petitioner has
received
public
money
by
obtaining
appointment on the basis of a forged TET
marksheet. Therefore, retention of the
public money received by the petitioner as
salary is against the fundamental principles
of justice, equity and good conscience. It is
an unjust retention of public money by the
petitioner
which
amounts
to
unjust
enrichment.
Therefore,
the
impugned
recovery notice can not be interfered under
Article 226 of the Constitution of India.

26. Thus, for all the reasons
aforestated, we do not find any good reason
to invoke on the facts of the present case,
the
extraordinary,
discretionary
and
equitable jurisdiction under Article 226 of
the Constitution of India.

27. For all the reasons aforestated, the
writ petition is dismissed. However, there
shall be no order as to costs.
----------
(2021)09ILR A1319
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 6180 of 2021

Kanhaiya Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Vinod Kumar, Sri Kapil Kumar Soni

Counsel for the Respondents:
C.S.C., Sri Deepak Gaur

Civil Law - Uttar Pradesh Revenue Code,
2006 - Appeal u/s 67 (5) - Limitation
Act, S.5 - Condonation of delay - Delay
in filing appeal -Held- in matters before
revenue courts, litigants are mostly poor
uneducated agriculturists, rarely alerted
to their rights & technicalities of law,
therefore courts and authorities should
adopt a liberal, pragmatic and a justice
oriented
approach
in
matters
of
condonation of delay & a pedantic view
should be avoided - unless want of bona
fides of such inaction or negligence is
proved, delay cannot be refused to be
condoned - courts have to be mindful of
the consequences of refusal to condone
the delay leading to miscarriage of
justice - it should be the constant
endeavour of the courts and authorities
to adjudicate issues on merits and
dispense
justice
on
a
substantive
basis(Para 10, 14, 15, 19 )

Delay condonation application dismissed in a
cryptic manner with a simplicitor finding that
delay was not explained on a day to day basis -
Held - Delay occasioned as petitioner was not
informed about the order passed by the court
by his counsel - petitioner otherwise also have
knowledge of the same - Conduct of petitioner
was bonafide as after getting knowledge of
award, appeal was filed with promptitude -
delay liable to be condoned - substantive rights
of the petitioner engaged in the controversy
which need adjudication on merits in the
interest of justice (Para 22)

Allowed. (E-5)

List of Cases cited :

1. Collector, Land Acquisition Vs Mst. Kati Ji &
ors. 1987(13) ALR 306 (SC)

2. N. Balakrishnan Vs M. Krishnamurthy 1998(7)
SCC 123