# Smt. Sarita Singh v. State of U.P

- **Citation:** (2022) 3 ILRA 9
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-10
- **Case number:** Writ A No. 5186 of 2001
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sarita-singh-v-state-of-u-p-48259
- **Pages:** 16

## Headnote

A. Service Law - UP Basic Education Act,
1972 - UP Recognised Basic Schools (Junior
High Schools) (Recruitment and Conditions
of Service of Teachers) Rules, 1978 - No
sanctioned post - Appointment claimed -
Neither any permission to open additional
class was granted nor additional posts were
created by the competent Authority - Held,
the petitioners were appointed by the
management of the Institution while there
being
no
sanctioned
post
and,
their
appointments were totally illegal, against
the statutory prescription as provided under
the Act, 1972 and the Rules, 1978 - Held
further, petitioner's claim is based on
untenable grounds, on allegedly forged and
fabricated documents. (Para 14 and 37)
B. Constitution of India - Article 226 -
Writ
jurisdiction
-
Scope
-
Not
approaching the Court with clean hand -
Effect - Cost, when can be imposed -
Held, when a person approaches the High
Court under Article 226, either against
State
or
other
on
allegations
of
infringement of his rights, such a person's
conduct has to be unblamedworthy - One
who comes to the Court, he must come
with clean hands - Held further, the
petitioners have approached this Court
with unclean hands and, have made every
effort to drag the litigation for the last
long 21 years. They have wasted very
precious and valuable time of the Court -
While dismissing writ petition, the High
Court imposed the cost of Rs.50,000/- to
be deposited by the petitioners jointly in
the Army Causalities Welfare Fund. (Para
38 and 39)
C. Constitution of India - Article 226 -
Doctrine of restitution - Unjust benefit -
Principle of 'actus curiae' - Application -
Salary paid on the strength of interim
order - Consequence of dismissal of writ
petition - Merger of interim order in final
order - Effect - Held 'actus curiae'
principle is founded upon justice and good
sense and, is a guide for administration of
law - Held further, the doctrine of
restitution is also applicable to interim
orders and a litigant would not be allowed
to
gain
by
swallowing
the
benefits
yielding out of the interim order. If the
petition is dismissed, the injury, if any,
caused by the act of the Court is required
to be undone - High Court directed the
petitioner to refund the amount of salary
with interest @ 6% per annum. (Para 41,
43 and 44)
D. Interpretation of statute - Maxim
'actus curiae neminem gravabit' - Scope
and meaning - It means that 'act of Court
shall prejudice no one' - This doctrine is
basically founded on the idea that when a
decree is reversed, law imposes an
obligation on the party who received an
unjust benefit of the erroneous decree to
restitute the other party for what the
other party has lost during the period, the
erroneous decree was in operation. (Para
40 and 41)
Writ petition dism

## Text

_Characters 0–39,920 of 54,850. This is a partial read: ask again with offset=39920 for what follows._

3 All. Smt. Sarita Singh Vs. State of U.P.
9
"alternative" remedies when these remedies
are referred to in the context of exercising
the discretionary jurisdiction under Article
226 of the Constitution of India by the
High Court. Every "statutory remedy" may
be an alternative remedy and similarly
every "non-statutory" or "executive" or
"administrative" remedy can also be an
alternative remedy, that is to say a remedy
which is alternate to the remedy under
Article 226 of the Constitution of India.

11. Learned Single Judge appears to
have ignored the binding precedents. In the
case of Sumit Gupta (supra), a Division
Bench of this Court considered the
provisions of Article 33 of Schedule I-B of
the Act vis-a-vis Section 47-A and has held
that Section 47-A comes into play only
where the market value of the property in
the instrument or the document is disclosed
to be lessor than that determined in
accordance with the Rules. It is in this
background that submission on behalf of
appellant-petitioner was made that the
order under challenge in the writ petition
was without jurisdiction and hence the
dictum of Whirlpool Corporation (supra)
will apply and as such availability of
remedy under Section 56 of the Act will not
bar jurisdiction of this Court to entertain
the petition under Article 226 of the
Constitution of India.

12. We may also refer to another
Division Bench judgment of this Court in
the case of Smt. Vijaya Jain Vs. State of
U.P. and others; 2016 (3) ALJ 278. In this
case writ petition was held to be
maintainable against an order of Collector
(Stamp) notwithstanding availability of
"statutory remedy", under Section 56 of the
Act. We also note that in this case as well,
learned Single Judge had refused to
entertain the writ petition on the ground of
availability of remedy under Section 56 of
the Act, however the Division Bench
upturned the judgment of learned Single
Judge and held the writ petition to be
maintainable.

13. It is needless to say that Division
Bench judgment was binding upon learned
Single Judge in the instant case as well.

14. Accordingly, the judgment and
order dated 25.02.2022, passed by learned
Single Judge in Writ-C No.1132 of 2022 is
set aside and the appeal is allowed. Writ
petition shall thus stand restored and shall
be decided afresh.

15. We request the learned Single
Judge to expedite the proceedings of the
writ petition and decide the same as early
as possible. If any application for interim
relief is moved/has been moved in the writ
petition, it shall also be decided with
expedition.

16. There shall be no order as to cost.
----------
(2022)03ILR A9
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 5186 of 2001

Smt. Sarita Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
S.K.
Mehrotra,
Abdul
Shahid,
Girish
Chandra Verma, Jagroopan Nishad, Lalit
Shukla, Mahendra Singh Rathore, Onkar
Singh Kushwaha, Rakesh Kumar Yadav
10 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
C.S.C., Ghaus Beg, Jyotinjay Verma

A. Service Law - UP Basic Education Act,
1972 - UP Recognised Basic Schools (Junior
High Schools) (Recruitment and Conditions
of Service of Teachers) Rules, 1978 - No
sanctioned post - Appointment claimed -
Neither any permission to open additional
class was granted nor additional posts were
created by the competent Authority - Held,
the petitioners were appointed by the
management of the Institution while there
being
no
sanctioned
post
and,
their
appointments were totally illegal, against
the statutory prescription as provided under
the Act, 1972 and the Rules, 1978 - Held
further, petitioner's claim is based on
untenable grounds, on allegedly forged and
fabricated documents. (Para 14 and 37)
B. Constitution of India - Article 226 -
Writ
jurisdiction
-
Scope
-
Not
approaching the Court with clean hand -
Effect - Cost, when can be imposed -
Held, when a person approaches the High
Court under Article 226, either against
State
or
other
on
allegations
of
infringement of his rights, such a person's
conduct has to be unblamedworthy - One
who comes to the Court, he must come
with clean hands - Held further, the
petitioners have approached this Court
with unclean hands and, have made every
effort to drag the litigation for the last
long 21 years. They have wasted very
precious and valuable time of the Court -
While dismissing writ petition, the High
Court imposed the cost of Rs.50,000/- to
be deposited by the petitioners jointly in
the Army Causalities Welfare Fund. (Para
38 and 39)
C. Constitution of India - Article 226 -
Doctrine of restitution - Unjust benefit -
Principle of 'actus curiae' - Application -
Salary paid on the strength of interim
order - Consequence of dismissal of writ
petition - Merger of interim order in final
order - Effect - Held 'actus curiae'
principle is founded upon justice and good
sense and, is a guide for administration of
law - Held further, the doctrine of
restitution is also applicable to interim
orders and a litigant would not be allowed
to
gain
by
swallowing
the
benefits
yielding out of the interim order. If the
petition is dismissed, the injury, if any,
caused by the act of the Court is required
to be undone - High Court directed the
petitioner to refund the amount of salary
with interest @ 6% per annum. (Para 41,
43 and 44)
D. Interpretation of statute - Maxim
'actus curiae neminem gravabit' - Scope
and meaning - It means that 'act of Court
shall prejudice no one' - This doctrine is
basically founded on the idea that when a
decree is reversed, law imposes an
obligation on the party who received an
unjust benefit of the erroneous decree to
restitute the other party for what the
other party has lost during the period, the
erroneous decree was in operation. (Para
40 and 41)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. St. of Guj.& ors. Vs Essar Oil Limited & anr.;
(2012) 3 SCC 522
2. Amarjeet Singh & ors. Vs Devi Ratan & ors.;
(2010) 1 SCC 417
(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. This writ petition, under Article
226 of the Constitution of India, has been
filed by the petitioners, seeking issuance of
a
writ
of
Mandamus
commanding
respondents to pay salaries to them on the
basis of regular time-scale fixed by the
State Government for primary teachers, as
has been fixed for other teachers, out of the
State Fund.

The
petitioners
have
further
prayed for issuance of a direction to the
respondents to pay arrears of their salary
3 All. Smt. Sarita Singh Vs. State of U.P.
11
since the date, 'Kamla Nehru Balika
Vidyalaya, Bachhuapar, Raje Sultanpur,
District Ambedkarnagar started receiving
grants-in-aid from the State Government.

2.
 That
Kamla
Nehru
Balika
Vidyalaya, Bachhuapar, Raje Sultanpur,
District
Ambedkarnagar
(herein
after
referred to as "the Institution") was
established for teaching students for ClassVI to VIII in the year 1984; the Institution
is run and managed by a registered society,
registered under the Societies Registration
Act; the Institution was granted temporary
recognition on 25.08.1986 and, thereafter
permanent recognition was granted on
04.07.1987 by the Assistant Director
(Basic) Faizabad (now Ayodhya).

3. The petitioners have claimed that
when the Institution was started in the year
1984, the total staff was consist of one
Principal, five assistant teachers, one clerk
and three peons. The Institution was
granted permission to start one section for
each class from Class-VI to VIII. It was
stated that in due course, the Institution
received wide popularity and there was
considerable
increase
in
number
of
students,
seeking
admission
in
the
Institution
and,
therefore,
three
new
sections were opened for Classes-VI to
VIII.

4. This writ petition was filed in the
year 2001, however, after exchange of
pleadings, an amendment application was
filed, which was allowed by this Court vide
order dated 16.03.2010. By way of
amendment, some new facts and grounds
got incorporated in the writ petition to the
effect that the committee of management of
the Institution had requested the District
Basic Education Officer, Ambedkarnagar
(hereinafter referred to as "the BSA") to
permit the Institution for opening new
sections as strength of the students was
increasing.

5. It is said that the BSA considered
the request of the management of the
Institution and, permitted the Institution to
open new sections for each classes i.e.
Class-VI, VII and VIII through Letter
No.3019/90-91 dated 15.12.1990.

6. By way of amendment, the
petitioners claimed that their appointment
was made for new sections, approved by
the respondent no. 4 after following due
process as prescribed under the U.P.
Primary Education Act, 1971 and rules
made thereunder. It was said that the
appointments were approved by the BSA.
By way of amendment, it had also been
claimed that the petitioners have been
working
after
their
appointment
got
approved by the BSA, but they were not
paid salary illegally and arbitrarily.

7. It is submitted that petitioner nos.
1, 2 and 3, namely, Smt. Sarita Singh, Smt.
Suman Tripathi and Smt. Manju Singh
were having M.A. B. Ed. degree to their
credit
and,
they
were
selected
and
appointed by the management of the
Institution. They were issued appointment
letter dated 25.06.1991 and, were directed
to join their posts with effect from
01.07.1991. The petitioner nos. 1 to 3 had
joined the Institution on the date fixed i.e.
01.07.1991 and, since then they have been
continuously working in the Institution to
the entire satisfaction of the management
and all concerned.

8. It was stated that the papers relating
to appointment of petitioner nos. 1 to 3
were submitted by the management of the
Institution to the BSA, but no response
12 INDIAN LAW REPORTS ALLAHABAD SERIES
came. However, by way of amendment, as
was incorporated on 16.03.2010, it has
been said that the BSA granted approval to
the appointments of petitioner nos. 1 to 3
through
letter
no.
5231/91-92
dated
05.02.1992. The said letter of approval
allegedly issued by the BSA has been
placed on record as Annexure 3-A to the
amendment application.

9. In respect of petitioner no. 4, Smt.
Noor Jahan, it has been said that she was
having qualification of B.A. and, the
Institution required a Teacher for teaching
Urdu subject. The petitioner no. 4 was
selected by the management and, was given
temporary appointment as assistant teacher
vide letter dated 05.07.1996. She joined the
Institution on 10.07.1996 and since then
she had been performing the duties and
work of assistant teacher (Urdu) to the
entire satisfaction of the management of the
Institution.

10. It is said that the papers relating to
appointment of petitioner no. 4, Smt. Noor
Jahan, were sent by the management of the
Institution to the BSA. However, no
response came to the appointment of the
petitioner no. 4.

11. By way of amendment dated
16.03.2010, the Institution has taken a plea
that appointment of the petitioner no. 4 was
deemed to have been approved by the BSA
under
rule-10
of
the
Uttar
Pradesh
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service of Teachers) Rules, 1978 (hereinafter
referred to "the Rules, 1978") inasmuch as
the respondent no. 4 failed to communicate
his decision within one month from the date
when the relevant papers were sent for
approval to him regarding appointment of the
petitioner no. 4.

12. It is said that the committee of
management
had
been
paying
the
consolidated salary of Rs. 850/- per month to
each of the petitioners, while regular scale of
assistant teachers, as paid to teachers of the
aided schools from the State Fund, was Rs.
4250-6400 per month. It is further said that
the Institution was given grants-in-aid with
effect from December, 1998. The petitioners
were also working in the Institution as
assistant teachers when the Institution started
receiving Government Aid.

13. Though the writ petition was filed in
the year 2001, however, this Court only on
21.02.2005, as an interim measure, directed
that the petitioners must be paid respectable
wages/salary in the minimum of the time
scale fixed by the State Government for the
assistant teachers with effect from 01.01.2005
along with other benefits. The interim order
dated 21.02.2005 reads as under:-

"Heard Sri I.D. Shukla learned
counsel for the petitioners, learned Chief
Standing Counsel for opposite parties no. 1
to 3 and Sri Gaus Beg who has put in
appearance on behalf of opposite party no.
4.

No counter affidavit has been
filed by the opposite parties despite the
petition being entertained on 6.11.2001.

The grievance of the petitioners is
that they have been continuing as Assistant
Teachers since 1.7.1991 except Smt. Noor
Jahan, petitioner no. 4, who was appointed
on 10.7.1996 in Kamla Nehru Balika
Vidyalaya,
Bachhupur-Raje
Sultanpur,
District Ambedkar Nagar. The school was
placed
on
aided
list
of
the
State
Government but still the petitioners are
being given Rs.850/- per month. The
grievance of the petitioners is that they are
being deprived of their regular salary in the
pay scale of Rs.4250-6400 which is being
3 All. Smt. Sarita Singh Vs. State of U.P.
13
allowed to similarly placed teachers
performing the same duties.

Sri Gaus Beg has resisted the
petition saying that the teachers of Junior
Highschool are entitled for regular scale
and only this, the institution has come
under the Grant-in-aid scheme. Sri Shukla
learned counsel for the petitioners has
stated that they are imparting education to
Junior
HIghschool
also.
He
further
submitted that the school was raised to
Junior Highschool and they were required
to impart education to Junior Highschool
classes also. The petitioners are Graduate
and some are having Post Graduate
qualifications also.

In view of above, it is provided
that
the
petitioners
must
be
paid
respectable wages/salary in the minimum of
the
time
scale
fixed
by
the
State
Government for the Assistant Teachers of
the institution in dispute from 1.1.2005. The
petitioners shall be allowed the benefits of
the pay scale admissible to the similarly
placed Assistant Teachers performing the
same duties and functions."

14. In the counter counter affidavit,
filed on behalf of the BSA on 07.12.2005, it
was said that there was only one sanctioned
section in each of classes from Class-VI to
VIII in the Institution. Under the grants-inaid scheme, one post of head-master and
four posts of assistant teacher were
sanctioned and, the salary of the headmaster and four teachers was being paid
from the State Exchequer after the
Institution was taken under the grants-inaid scheme. It was specifically stated that
neither any permission to open additional
class was granted nor additional posts were
created by the competent Authority. If the
petitioners claim to have been appointed by
the committee of management of the
Institution then their appointment would be
in violation of rules 4, 5, 7, 9, 10 and 11 of
the Rules, 1978. It was said that the papers
relating to selection and appointment of the
petitioners were not available in the office
of the BSA and, their appointments were
never approved by the BSA and, therefore,
the payment of salary to the petitioners
from the State Exchequer was not possible.

15. In the counter affidavit, stands of
the respondents is that at the time of
obtaining recognition of the Institution, the
management of the Institution did not
mention names of the petitioners as
assistant teachers working in the Institution
nor their names were included when the
grants-in-aid
was
sanctioned
by
the
Government. Therefore, the claim of the
petitioners for regular salary from the State
Exchequer is totally untanable.

16. The writ petition got dismissed for
non-prosecution
vide
order
dated
25.01.2006 and, the interim order dated
21.02.2005 was vacated. However, the writ
petition was restored on 03.03.2006, but the
interim order was not extended. After the
specific stand was taken by the BSA that
neither any paper relating to appointment
of the petitioners were available in the
office of the BSA nor appointment of the
petitioners was ever approved and, their
names did not include in the strength of the
teachers when recognition was granted or
grants-in-aid was given, an amendment
application, as mentioned above, came to
be filed on 19.11.2009 and, the said
amendment application was allowed vide
order dated 16.03.2010.

17. An application for interim relief
was again filed on 12.05.2010 on behalf
of the petitioners. However, no order has
been passed on the said application till
date.
14 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In the counter affidavit filed to the
amended parts of the writ petition, it was
reiterated that the appointment of the
petitioners
had
been
made
without
following due procedure prescribed under
the law and, it was in violation of the rules
4, 5, 7, 9, 10 and 11 of the Rules, 1978 and,
therefore, no salary could be paid to the
petitioners from the State Exchequer and, it
was only the management of the Institution,
which would be responsible for payment of
salary, if any, to the petitioners. It was
further said that the BSA had written letter
dated 27.04.2005 to the manager of the
Institution in which the BSA had said that
the appointment of the petitioners was
made in violation of the Rules, 1978,
without any permission/creation of the post
by
the
Government
and
without
permission/approval, appointment of the
petitioners had allegedly been made. It was
further said that when the Institution sent
the papers for receiving grants-in-aid, the
names
of
the
petitioners
were
not
mentioned in the list of teachers working in
the Institution and, therefore, there was no
question of making any payment of salary
to the petitioners and, it was for the
management of the Institution to make
payment
to
the
petitioners,
as
the
management
of
the
Institution
had
allegedly appointed them. A specific stand
was also taken that the alleged letters of the
BSA, regarding permission to open new
sections and approval of appointment of the
petitioners, were forged document.

19. After the interim order was
obtained and the BSA wrote a letter dated
27.04.2005 to the management of the
Institution, denying the payment of salary
from State Exchequer, as mentioned above,
contempt
petition,
bearing
Contempt
No.1515 (C) of 2005 came to be filed
before this Court for alleged violation/noncompliance of the interim order dated
21.05.2005.

20. This Court, vide order dated
23.04.2013, directed the BSA as well as
Finance
and
Accounts
Officer,
Ambedkanagar to remain present in the
Court to show-cause as to why contempt
proceedings be not initiated against them
for not complying the interim order dated
21.02.2005. On 08.05.2013, as directed by
this Court vide order dated 23.04.2013,
BSA as well as Finance and Accounts
Officer, Ambedkarnagar were present in
person. It appears that sometime was asked
by them regarding compliance of the order
dated 21.02.2005. However, this Court
again directed the BSA and the Finance and
Accounts Officer to remain present on the
next date of listing of the contempt petition
on 22.05.2013.

21. On 22.05.2013, the BSA and the
Finance and Accounts Officer remained
present before this Court. On the said date,
it appears that they assured the Court that
the interim order dated 21.02.2005 would
be complied with within a period of one
month. Affidavits filed by the BSA and
Finance and Accounts Officer were taken
on record and, on the basis of the said
assurance, framing of the charges against
them was deferred and, it was observed that
in case the interim order was not complied
with, both the officers would appear in
person again for framing of charges. The
case was directed to be listed on
09.07.2013.

22. On 09.07.2013, the contempt
Court noted contention of counsel that as
per the interim order dated 21.02.2005
minimum of pay-scale was not being paid
to the petitioners nor arrears of salary were
paid to them. This Court again directed the
3 All. Smt. Sarita Singh Vs. State of U.P.
15
BSA and the Finance and Accounts Officer,
Ambedkanagar to remain present in the
Court on the next date of listing of the
matter on 09.09.2013 and a cost of
Rs.10,000/- was imposed. The Court
directed the authorities to release arrears of
salary to the petitioners. The Court also
directed for filing affidavit of compliance.

23. Under the pain of contempt
proceedings, the interim order
dated
21.02.2005 was complied with despite
filing of the counter affidavit in which a
specific stand was taken that the petitioners
had approached this Court by filing forged
documents regarding their approval of
appointment etc and, the writ petition got
dismissed
on
25.01.2006
for
nonprosecution and, the same was restored on
03.03.2006, but no order for extending the
interim order dated 21.02.2005 was passed,
while restoring the petition. The arrears of
salary were also paid to the petitioners and
the contempt Court, in its order dated
09.09.2013, recorded that the interim order
dated 21.02.2005 was complied with in
letter & spirit and the cost of Rs.10,000/-
was directed to be deposited with the Oudh
Bar Association and in view of the
aforesaid fact, the contempt petition was
disposed of vide order dated 09.09.2003,
which reads as under:-

"This petition seeks initiation of
proceedings under the Contempt of Courts'
Act
1971
against
the
respondentcontemners for willful disobedience of
judgment dated 21.2.2005 rendered in Writ
Petition No.5186 (SS) of 2001.

In deference to order dated
22.5.2013 Sri D.S. Yadav, Basic Shiksha
Adhikari,
Ambedkar
Nagar,
and
Sri
Krishna Kumar Yadav, Finance & Accounts
Officer, Ambedkar Nagar, are present in
court alongwith cost amount.

Affidavits filed by the contemners
are taken on record.

This Court has taken note of the
fact that the contempt petition was filed in
the year 2005. Compliance of the order has
been made in August 2013.

Let
Rs.10,000/-(Ten
thousand
only)
be
deposited
with
Oudh
Bar
Association.

The
two
contemners,
named
above, state that the order at issue has been
complied with in its letter and spirit.
Arrears have been paid.

Learned counsel for the petitioner
states that indeed the order has been
complied with in its letter and spirit.

Considering the fact that the
order at issue has been complied with,
which fact has been admitted by learned
counsel for the petitioner, this petition is
disposed of."

24. This Court finds it strange and
intrigue that despite the fact that the interim
order dated 21.02.2005 was not extended
vide the order dated 03.03.2006, which was
passed on the application for recalling the
order dated 25.01.2006 whereby the writ
petition was dismissed for non-prosecution,
the contempt proceedings continued and
orders were passed for compliance of the
non-existent
interim
order
dated
21.02.2005. Not only current salary, but
arrears of salary were also directed to be
paid to the petitioners, which was not the
scope
of
the
interim
order
dated
21.02.2005. The order dated 03.03.2006,
restoring the writ petition, reads as under:-

"This is application for recalling
the order dated 25.01.2006.

Counsel for opposite party is
present.

He has no objection for recalling
the order on personal grounds.
16 INDIAN LAW REPORTS ALLAHABAD SERIES

Order dt. 25.1.06 is recalled.

List for hearing on 27the March,
2006"

25. After the interim order dated
21.02.2005 was obtained, the petitioners
made no stone unturned to see that hearing
of the case does not take place. The ordersheet is full of adjournment sought by the
counsel for the petitioners on one pretext or
the other.

26. On 23.09.2013, this Court,
noticing the conduct of the petitioners,
granted only one week's time to file
rejoinder affidavit to the counter affidavit
filed by the respondents and, made it clear
that no further time shall be allowed to the
counsel for the petitioners on the next date.
It was also observed that in case the
counsel for the petitioners again ask for
adjournment, the interim order granted
earlier would stand automatically vacated.
The order dated 23.09.2013 reads as
under:-

"Learned
counsel
for
the
petitioner prays for and is granted one
week and no more time to file rejoinder
affidavit.

List thereafter.

It is made clear that no further
time shall be granted to the learned counsel
for the petitioner on the next date. In case
he seeks further time, the interim order
granted earlier shall stand automatically
vacated."

27. On 23.10.2013, when the case was
listed before the Court, learned counsel for
the petitioners again sought adjournment on
the ground that he was not prepared with
the case. Looking to the fact that the writ
petition had remained pending since 2001
and the interim order dated 21.02.2005
amounted to allowing the final relief sought
in the writ petition regarding the payment
of salary to the petitioners, this Court
passed the order and, kept the interim order
dated 21.02.2005 in abeyance till the next
date of listing. The order dated 23.10.2013
reads as under:-

"This writ petition is pending
since 2001 wherein an interim order has
been passed by this Court on 21.02.2005
allowing the relief which has been sought i
the main petition regarding payment of the
salary to the petitioner in terms of the
interim order.

Thereafter, on one pretext or the
other the writ petition was adjourned. A
contempt petition has already been filed.

The contention of the opposite
party that some forged paper has been
placed on record regarding the approval of
the appointment of petitioner.

Today also the counsel for the
petitioner wants adjournment on the
ground that he has not prepared the case.

The case is adjourned.

Interim order dated 21.02.2005
shall remain in abeyance till next date of
listening.

28. On 17.12.2015, it appears that due
to some inadvertent mistake, the interim
order, which was kept in abeyance, was
extended till further orders. However, this
Court on the next date of listing i.e. on
27.01.2016, noticed the said order dated
17.12.2015, granted life to the interim order
dated 21.02.2005, which was kept in
abeyance vide order dated 23.10.2013. The
Court noticed that the counsel for the
respondents had prayed for extension of
time, however, due to an inadvertent
mistake, the interim order dated 21.02.2005
got extended. This Court also noticed that
the counsel for the petitioners did not take
3 All. Smt. Sarita Singh Vs. State of U.P.
17
any proceeding against the order dated
23.10.2013 whereby the interim order dated
21.02.2005 was put in abeyance. In view
thereof, vide order dated 23.10.2013,
whereby
the
interim
order
dated
21.02.2005, was kept in abeyance, was
extended till next date of listing of the
petition. The order dated 27.01.2016 reads
as under:-

"The previous interim order
passed by this Court on 21.2.2005
continued to operate till 23.10.2013.
After hearing the matter at some length,
this Court passed the following order on
23.10.2013:

"This writ petition is pending
since 2001 wherein an interim order has
been passed by this Court on 21.02.2005
allowing the relief which has been
sought i the main petition regarding
payment of the salary to the petitioner in
terms of the interim order.

Thereafter, on one pretext or
the
other
the
writ
petition
was
adjourned. A contempt petition has
already been filed.

The contention of the opposite
party that some forged paper has been
placed on record regarding the approval of
the appointment of petitioner.

Today also the counsel for the
petitioner wants adjournment on the
ground that he has not prepared the case.

The case is adjourned.

Interim order dated 21.02.2005
shall remain in abeyance till next date of
listening.

Later on, this Court passed the
following order on

17.12.2015:

On the request of Mr. Jyotinjay
Verma, learned Counsel for the opposite
parties, interim order dated 21.02.2005 is
extended, till further orders of the Court.

List the petition in the second
week of January, 2016.

Sri Jyotinjay Verma, learned
counsel for the respondent has submitted
that the order passed on 17.12.2015 grants
life to the earlier order passed by this
Court
on
21.2.2015
which
was
subsequently modified by an order dated
23.10.2013 conditionally. Learned counsel
states that it was the order dated
23.10.2013 which was prayed to be
extended. It appears that at an inadvertent
error has crept in while passing the order
dated 17.12.2015. It is also pointed out by
Sri Verma, learned counsel, the petitioner
has not taken up any proceedings against
the order dated 23.10.2013 and the said
order remains unaltered.

In view of above, the interim
order dated 23.10.2013 is hereby extended
till the next date of listing, subject to the
statement recorded hereinabove.

List in the next cause list.

On the next date of listing, the
writ petition itself may be disposed of
finally."

29. The Director, Education (Basic),
Government of Uttar Pradesh vide letter
dated
30.10.2013
directed
the
Joint
Director,
Education
(Basic),
Ayodhya
Division, Ayodhya to hold an inquiry for
making payment of more than 50 Lakhs to
the three petitioners in pursuance of the
interim order dated 21.02.2005. In the
inquiry report, the Joint Director of
Education said that the BSA vide his order
dated
17.06.2013
directed
the
Manager/Principal of the Institution to
ensure compliance of the interim order
dated 21.02.2005 and, the copy of the said
letter was also given to the petitioners. The
BSA made an inspection of school on
04.05.2013 and inspected the attendance
register of the school and obtained
18 INDIAN LAW REPORTS ALLAHABAD SERIES
photocopy thereof. It was found that
besides
the
persons
working
against
sanctioned posts, in another register Smt.
Sarita Singh and Smt. Suman Tripahti made
signatures. However, petitioner, Smt. Noor
Jahan was not found to have even signed
the register and, she was not working in the
school at all. Despite this, she was also
made payment by the Finance and
Accounts
Officer
(Basic
Education)
Ambedkarnagar and, he had written a letter
seeking permission for making further
payments to all the petitioners. The Joint
Director said that release of payment in
favour of Smt. Sarita Singh and Smt.
Suman Tripathi, without there being any
sanctioned post, would come within the
purview
of
financial
irregularities
committed by the officials. The BSA was
directed to ensure appropriate legal action
in the matter.

30. After the departmental inquiry, a
first information report came to be
registered on 17.01.2005 on a written
complaint of the BSA, Ambedkarnagar
against Mr. K.K. Pandey, the then Finance
and Accounts Officer in the office of BSA,
Ambedkarnagar under Section 409 IPC at
Police
Station
Akbarpur,
District
Ambedkarnagar. The Finance and Accounts
Officer, Mr. K.K. Pandey was instrumental
in making payment against the forged
documents and, he had also made payment
of more than 25 Lakhs to one Mr. Ram
Roop Yadav, assistant teacher of Adarsh
Janata Junior High School, Rasoolpur,
Ambedkarnagar and, in the inquiry it was
found that no appointment was approved of
the said persons by the BSA and, the bills
regarding payment were found to be forged
and for the said offence, the case was
pending against him. These documents
have been brought on record by way of an
affidavit dated 23.08.2016 filed by the
BSA,
Ambedkanagar.
However,
no
response to the said affidavit has been filed
on behalf of the petitioners.

31. The documents, which were never
brought on record along with the writ
petition, were subsequently brought on
record by way of amendment and,
supplementary affidavit, which have been
found to be forged. Supplementary affidavit
dated
15.09.2016
was
filed
by
the
petitioners to bring on record an alleged
letter dated 18.02.1990 sent by the
management of the Institution to the BSA,
stating therein that at that time, the strength
of the students was 288 and, therefore,
request was made to create four more posts
of assistant teacher. It is further said that
the management of the Institution had
written to the BSA a letter dated
09.04.2005, stating therein that vide Letter
No.3019 dated 15.12.1990 the permission
for starting new sections and, its approval
was granted vide order dated 05.02.1992,
however, nothing was done and, therefore,
request was made for creation of the post. It
is strange that after 15.12.1990 when the
alleged
persmission
was
granted
for
opening new sections, more than 13-15
years thereafter the request was made for
creation of four posts of assistant teachers.
It was further said that a similar request
was
made
again
vide
letter
dated
09.05.2005.

32. If the permission for opening new
sections was granted on 15.12.1990 and the
said sections were approved, this Court
does not find any justification for writing
the letter for creation of posts on
09.04.2005 i.e. after 13-15 years. These
documents, which at no point of time were
placed along with record of the writ
petition, are shrouded in mystery and under
deep clouds of suspicion. If the petitioners
3 All. Smt. Sarita Singh Vs. State of U.P.
19
had all these documents when the writ
petition was filed, they would have
certainly placed them on record in support
of their claim.

33. It appears that the police filed a
closure report in respect of the FIR against
the Finance and Accounts Officer, which
was submitted in the trial Court on
26.04.2016. However, the trial Court had
rejected the said final report vide order
dated 22.12.2016 and, directed the Station
House Officer to make further investigation
under Section 173(8) CrPC.

34. After the interim order dated
21.02.2005 was kept in abeyance vide
order dated 23.10.2013, the petitioners
have not been paid salary from the State
Exchequer.
The
order-sheet
from
11.07.2006 would show that the case was
got adjourned on one pretext or the other
by the counsel for the petitioners every
time and, every effort was made to see that
the case was not heard and decided finally.

35. This Court is not extracting the
orders
passed
in
the
writ
petition,
adjourning the case on the request of
learned counsel for the petitioners. Suffice
it to mention that every time, the matter got
adjourned on request of learned counsel for
the petitioners. On 17.02.2022 when the
case was listed before this Court, again
request was made for adjourning the case,
however, hearing the counsel for the
respondents for sometime, the Court
directed the case to be listed on next day
i.e. 18.02.2022 for further hearing and,
thus, the hearing could get concluded.

36. From the facts, as stated above,
the petitioners' names were not included in
the list of the teachers working when the
request for taking the Institution under
grants-in-aid was sent to the BSA. Under
the grants-in-aid scheme, one post of headmaster and four posts of assistant teachers
were sanctioned in the year 1997, which
did not include names of the petitioners.
The letters for permission for opening new
sections and, approval are stated to be
forged for which the FIR has been
registered. The claim of the petitioners by
way of amendment and supplementary
affidavit that there appointments were
approved by the BSA has been found to be
untenable inasmuch as no papers regarding
their selection and appointment is available
in the office of BSA and, the alleged
approval letter is said to be completely
forged document. This allegation of forgery
gets cemented from the fact that if the
appointments of the petitioners were
approved in 1992 then there was no
occasion for the management to write to
BSA in 2005 for creation of posts.

37. For several years, in the State of
Uttar Pradesh, the game of appointing
teachers by the management of the
educational
institutions
without
prior
permission for creation of posts and then
coming to the Court for payment of salary
has been going on and, several thousands
crores of rupees of tax-payers money has
been paid to such appointees on the basis of
the interim/final orders passed by this
Court. Therefore, it is not only committee
of management and such appointees, who
are culprits, but the officials in the
Education Department have equal share in
the culpability. There is nothing on record
except
the
alleged
letters
regarding
approval for opening new sections or
sanctioning the additional posts, which
were not part of the grants-in-aid scheme.
This Court is of the view that the
petitioners
were
appointed
by
the
management of the Institution while there
20 INDIAN LAW REPORTS ALLAHABAD SERIES
being no sanctioned post and, their
appointments were totally illegal, against
the statutory prescription as provided under
the U.P. Basic Education Act, 1972
(hereinafter referred to "the Act, 1972") and
the Rules, 1978. This Court, therefore,
finding no merit and substance in the writ
petition in directing the payment of salary
to the petitioners whose claim is based on
untenable grounds, on allegedly forged and
fabricated documents, dismiss the writ
petition.

38. If a person approaches the Court
with unclean hands, basing his claim on
forged and fabricated documents, such a
person is not entitled for any relief. The
power of the High Court to be exercised
under Article 226 of the Constitution of
India is a discretionary power. When a
person approaches the High Court under
Article 226 of the Constitution of India,
either against State or other on allegations
of infringement of his rights, such a
person's conduct has to be unblamedworthy. In the present case, the petitioners
have approached this Court with unclean
hands and their conduct is blamed-worthy,
therefore, this Court would refuse to
exercise the discretion under Article 226 of
the Constitution of India. The Supreme
Court in the case of State of Maharashtra
Vs. Digamber in paragraph-19 has held as
under:-

"19. Power of the High Court to
be exercised under Article 226 of the
Constitution, if is discretionary, its
exercise
must
be
judicious
and
reasonable, admits of no controversy. It is
for that reason, a person's entitlement for
relief from a High Court under Article
226 of the Constitution, be it against the
State or anybody else, even if is founded
on the allegation of infringement of his
legal right, has to necessarily depend
upon unblameworthy conduct of the
person seeking relief, and the court
refuses to grant the discretionary relief to
such person in exercise of such power,
when he approaches it with unclean
hands or blameworthy conduct."

39. It is well settled that one who
comes to the Court, he must come with
clean hands. In the present case, the
petitioners have approached this Court
with unclean hands and, have made every
effort to drag the litigation for the last
long 21 years. They have wasted very
precious and valuable time of the Court.
The order-sheet of the case bears the
testimony of this fact, which is full of
adjournments sought by the counsel for
the petitioners. Thus, this Court feels that
the petitioners need to be saddled with
some costs and, thus, the writ petition is
dismissed with cost of Rs.50,000/-
(Rupees fifty thousand) to be deposited
by the petitioners jointly in the Army
Causalities Welfare Fund.

40. Another aspect, which needs
deliberation, is that the petitioners have
been paid salary and arrears of salary in
compliance of the interim order dated
21.02.2005 and, the order passed in the
contempt petition.