# Smt. Kiran Devi v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 1626
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-16
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-devi-v-state-of-u-p-ors-43796
- **Pages:** 6

## Text

1626 INDIAN LAW REPORTS ALLAHABAD SERIES
terms thereof (see Taylar Vs. Taylar, (1875) LR (1) CH-D-426; Nazir Ahmed Vs. King Emperor,
(1935-36) L.R. 63 I.A. 372; Deep Chand Vs. State of Rajasthan, AIR 1961 SC 1527; & J.
Jayalalithaa Vs State of Karnataka, (2014) 2 SCC 401). The circular since has not been issued in
exercise of any provision or authority under the statute, the obtaining of approval by the Deputy
Registrar was wholly uncalled for. Any error in exercise of grant of approval, therefore, would not
render the writ petition maintainable, when the writ petition does not lie otherwise. For the reasons
disclosed above, this Court is of the opinion that the writ petition is not liable to be entertained, for
the reason that approval has been granted to the order of punishment by the Deputy Registrar.

18. For the reasons aforesaid, the present writ petition is held not to be maintainable before
this Court, and is consequently dismissed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Writ A No.- 22310 Of 2016

Smt. Kiran Devi ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Vijay Kumar Ojha, Munne Lal

Counsel for Respondents:
C.S.C.

Head Notes:
Service Law-Appointment on post of Aanganwari Worker-Domicile requirement-Cancellation
of appointment on ground of forged and fabricated domicile certificate-Enquiry by SubDivisional Magistrate-Finding that petitioner not resident of concerned village-Cancellation of
domicile certificate-Finality-Effect-Certificate issued by Village Pradhan-Evidentiary valueHeld, certificate by Pradhan cannot override findings of competent authority-Fresh domicile
certificate obtained subsequently-Not produced before appointing authority-No pleadingCannot be relied upon in writ jurisdiction-Earlier writ petitions-Suppression and concealment
of material facts-Abuse of process of Court-Clean hands doctrine-Art. 226-Scope-Court not
appellate authority-Findings of fact after enquiry-No interference-Writ petition dismissed
with warning.

Facts:
Petitioner was appointed as Aanganwari Worker in June, 2005.

Complaint was made alleging submission of forged domicile certificate showing her residence of village
5 All. Smt. Kiran Devi Vs State Of U.P. & Ors.

1627
 Workimai.
S.D.M., Jalalabad, after giving full opportunity of hearing, conducted enquiry and found that:

petitioner was resident of village Baharia, not Workimai;

domicile certificate dated 04.08.2007 was forged.

Domicile certificate was cancelled on 09.08.2013, which order was never challenged.

Petitioner's representation was rejected by District Magistrate on 19.01.2015.

Said order was concealed in subsequent writ petition, on basis of which District Programme Officer passed
order dated 11.02.2016 cancelling appointment.

Aggrieved, petitioner filed present writ petition.

Issues:

Whether appointment obtained on basis of forged domicile certificate can be protected under Article 226.

Whether certificate issued by Village Pradhan has any sanctity after cancellation of domicile certificate by
competent authority.

Effect of suppression of material facts and earlier litigation in writ jurisdiction.

Scope of judicial review under Article 226 in matters involving findings of fact.

Held:
Finality of enquiry findings:

Detailed enquiry by S.D.M. established that petitioner was not resident of the concerned village; cancellation
of domicile certificate attained finality.

Village Pradhan's certificate not conclusive:
Certificate issued by Village Pradhan does not override findings recorded by competent revenue authority.

Fresh certificate irrelevant:
Subsequent domicile certificate dated 03.10.2015, not produced before the authority nor pleaded in
representation, cannot be relied upon in writ proceedings.

Suppression of facts fatal:
Petitioner deliberately concealed:

rejection order dated 19.01.2015 by District Magistrate;

filing and dismissal of earlier writ petitions. Such conduct amounts to abuse of process of law.

Clean hands doctrine:
Person invoking extraordinary jurisdiction under Article 226 must disclose all material facts; suppression
disentitles relief.
1628 INDIAN LAW REPORTS ALLAHABAD SERIES
Limited scope of Article 226:
High Court does not act as appellate authority to re-appreciate findings of fact recorded after enquiry.

Cases Relied Upon
Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 746 (FB)

Amar Singh v. Union of India, (2011) 7 SCC 69

Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470

CONCLUSION:
The writ petition is dismissed.

Considering petitioner's socio-economic background, costs are waived, with a warning to avoid misuse of
judicial process in future.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

1. 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
5 All. Smt. Kiran Devi Vs State Of U.P. & Ors.

1629
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. 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. 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
1630 INDIAN LAW REPORTS ALLAHABAD SERIES
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. It is well settled that this Court under Art. 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 Art. 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. 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
5 All. Pradeshik Chikitsa Avam Samudayik Sewa Sangh Vs State Of U.P. & Ors.

1631
 village Bahariya and based on the same, her domicile certificate has been cancelled, then the Court
refuses to interfere under Art. 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 in Amar Singh Vs. Union of India, (2011) 7 SCC
69, has strongly deprecated the practice 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.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Writ A No.- 29360 Of 2011

Pradeshik Chikitsa Avam Samudayik Sewa Sangh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Head Notes-
Service Law-Ayurvedic Medical Officers-Ad-hoc appointment-Regularization-Promotional pay scaleAssured
Career
Progression
Scheme
(ACP)-Committee
constituted
under
Government
OrderRecommendations implemented-Subsequent withdrawal without notice-Violation of principles of natural
justice-Withdrawal order quashed.

Service Law-Ad-hoc service-Counting for promotional benefits-Government Orders dated 05.02.1998 and
18.06.2010-Ad-hoc
period
countable
after
regularization-Subsequent
Government
Order
dated