# Rajesh Kumar v. State of U.P. & Ors - **Citation:** (2021) 9 ILRA 1307 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-09-02 - **Case number:** Writ C No. 11113 of 2021 - **Bench:** Ajay Bhanot - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-state-of-u-p-ors-47384 - **Pages:** 2 ## 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 9 All Rajesh Kumar Vs. State of U.P. & Ors. 1307 ---------- (2021)09ILR A1307 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 02.09.2021 BEFORE THE HON'BLE AJAY BHANOT, J. Writ C No. 11113 of 2021 Rajesh Kumar ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Sandeep Srivastava Counsel for the Respondents: C.S.C., Sri Azad Rai, Priyadarshi Tripathi, Sri Shrawan Kumar Pandey Civil Law - Civil Procedure Code,1908 - Order XLI Rule 27 - Additional evidence at the appellate stage - Proceedings under Order XLI Rule 27 CPC are not intended to enable the parties to supply evidentiary defects at the appellate stage as an after thought - Allowance for time to tutor or incentivise a reluctant witness is not a good reason for failure to introduce the witness at the trial stage (Para 5, 6) Petitioner wants to introduce attesting witness of Will - Petitioner had full liberty to produce witness and get him examined before trial court but petitioner failed to do so - as the said witness was unwilling to depose during trial Court proceedings - However petitioner over a period of time been able to persuade said witness to appear in proceedings - Held - prerequisites for exercise of power in favour of the petitioner not satisfied in the case- Rejection of application, proper (Para 3, 4, 5) Dismissed. (E-5) (Delivered by Hon'ble Ajay Bhanot, J.) 1. Heard Sri Sandeep Srivastava, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. By the impugned order dated 19.02.2021 the application under Order XLI Rule 27 tendered by the petitioner for adducing additional evidence at the appellate stage has been declined. 3. The petitioner by means of the aforesaid application wants to introduce an attesting witness of the Will. The petitioner had full liberty to produce the witness and get him examined before the trial court. The petitioner failed to do so. 4. It is contended by Sri Sandeep Srivastava, learned counsel for the petitioner that the aforesaid witness one Jang Bahadur was unwilling to depose during the trial court proceedings. However he has over a period of time been able to persuade the said Jang Bahadur to appear as witness. 5. Proceedings under Order XLI Rule 27 CPC are not intended to enable the parties to supply evidentiary defects at the appellate stage as an after thought. The prerequisites for exercise of power in favour of the petitioner are not satisfied in the case. In this case it is evident that the petitioner had been working on the witness over a long period at times to depose in his favour. 6. Allowance for time to tutor or incentivise a reluctant witnesses is not a good reason for failure to introduce the witness at the trial stage. Attempts to invoke Order XLI Rule 27 CPC for such purpose have to be thwarted. 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