# State of U.P. & Ors v. Nitin Agnihotri & Ors

- **Citation:** (2022) 9 ILRA 649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Special Appeal Defective No. 362 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-nitin-agnihotri-ors-49094
- **Pages:** 4

## Headnote

A. Service Law - Payment of Salary -
Concealment of material facts - U.P.
Secondary Education Services Selection
Board
Act,
1982:
Section
21;
Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 - A litigant who conceals
material facts from the Court, has to be
dealt with, has been gone through by
Hon'ble the Supreme Court time and again
and the consistent opinion is that he is not
entitled even to be heard on merits. (Para
6)

Appellants suppressed the material fact that the
order
dated
15.02.2021
passed
by
the
650 INDIAN LAW REPORTS ALLAHABAD SERIES
management recommending termination of the
petitioner's services has been stayed by this
Court. As there is material concealment of facts
in the present appeal, the same deserves to be
dismissed. (Para 4 to 6)

B. A writ petition filed on a subsequent
cause of action cannot be dubbed as a
second petition. It is also noteworthy that
Writ - A No. 12492 of 2021 is by no means a
second petition filed by respondent No. 1, which
the appellants say into criticism of the impugned
judgment passed by the learned Single Judge.
Writ - A No. 12492 of 2021 has been filed
against a supervening order dated 15.02.2021,
which was not in existence until time when the
writ petition giving rise to the present appeal,
challenging the order dated 31.12.2020 was
filed. (Para 8)

Till date, no order determining the employment
of respondent No. 1 has been passed by the
respondents i.e., enforceable under the law. The
respondents, therefore, cannot stop payment of
the petitioner's salary and orally ask him not to
work or permit him to work but not pay his
salary. The impugned order is, therefore,
flawless and must be upheld. (Para 9)

Since the appellants have suppressed material
facts from this Court, they must be saddled with
adequate costs, which we quantify as Rs.
50,000/-. (Para 10)

Special appeal dismissed. (E-4)

Precedent followed:

## Text

9 All. State of U.P. & Ors. Vs. Nitin Agnihotri & Ors.
649
of judicial mind. Learned counsel for the
applicant further submits that in view of
several judgements passed by Hon'ble Apex
Court as well as High Court, while passing
the order impugned, the Court concerned
should have considered the charge sheet as
well as supplementary charge sheet. In
support of his submission he has relied
upon the judgement of Hon'ble Apex Court
passed in Luckose Zachariah @ Zak
Nedumchira Luke and Others Vs.
Joseph Joseph and Others reported in
2022 LiveLaw (SC) 230, where in, it has
been held that it is necessary for the
Magistrate, to have due regard to both the
reports, the initial report which was
submitted under Section 173(2) as well as
the supplementary report which was
submitted after further investigation, in
terms of Section 173(8) while passing the
cognizance order.

13. Learned A.G.A. could not dispute
the correctness of the submissions made by
the learned counsel for the applicant and he
has no objection if the order dated
28.09.2021 is set aside.

14. This Court feels that Court
concerned while passing the order dated
28.09.2021 has not applied its mind and has
not considered the aforesaid supplementary
charge sheet.

15. In view of the facts and
circumstances of the case, the order dated
28.09.2021 passed by Additional District
Judge-5th, Bareilly cannot be legally
sustained and is set aside and the same is
remitted back to him for decision afresh.
While deciding the matter afresh, the
concerned Court shall pass a reasoned and
speaking
order,
after
taking
into
consideration the charge sheet as well as
supplementary charge sheet, in accordance
with law, preferably within a period of one
month from the date of production of a
certified copy of this order.

16. With the aforesaid directions/
observations,
this
application
stands
allowed.

17. Office is directed to communicate
this order to the Court concerned forthwith.
----------
(2022) 9 ILRA 649
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal Defective No. 362 of 2022

State of U.P. & Ors. ...Appellants
Versus
Nitin Agnihotri & Ors. ...Respondents

Counsel for the Appellants:
Sri Ramanand Pandey (Addl. C.S.C.)

Counsel for the Respondents:
Sri Arvind Srivastava

A. Service Law - Payment of Salary -
Concealment of material facts - U.P.
Secondary Education Services Selection
Board
Act,
1982:
Section
21;
Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 - A litigant who conceals
material facts from the Court, has to be
dealt with, has been gone through by
Hon'ble the Supreme Court time and again
and the consistent opinion is that he is not
entitled even to be heard on merits. (Para
6)

Appellants suppressed the material fact that the
order
dated
15.02.2021
passed
by
the
650 INDIAN LAW REPORTS ALLAHABAD SERIES
management recommending termination of the
petitioner's services has been stayed by this
Court. As there is material concealment of facts
in the present appeal, the same deserves to be
dismissed. (Para 4 to 6)

B. A writ petition filed on a subsequent
cause of action cannot be dubbed as a
second petition. It is also noteworthy that
Writ - A No. 12492 of 2021 is by no means a
second petition filed by respondent No. 1, which
the appellants say into criticism of the impugned
judgment passed by the learned Single Judge.
Writ - A No. 12492 of 2021 has been filed
against a supervening order dated 15.02.2021,
which was not in existence until time when the
writ petition giving rise to the present appeal,
challenging the order dated 31.12.2020 was
filed. (Para 8)

Till date, no order determining the employment
of respondent No. 1 has been passed by the
respondents i.e., enforceable under the law. The
respondents, therefore, cannot stop payment of
the petitioner's salary and orally ask him not to
work or permit him to work but not pay his
salary. The impugned order is, therefore,
flawless and must be upheld. (Para 9)

Since the appellants have suppressed material
facts from this Court, they must be saddled with
adequate costs, which we quantify as Rs.
50,000/-. (Para 10)

Special appeal dismissed. (E-4)

Precedent followed:

1. Virendra Kumar Vs U.O.I. & ors., 2022 (2)
ADJ 1 (Para 7)

Present special appeal assails judgment
and order dated 05.05.2022, passed by
learned Single Judge.

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. The order dated May 5, 2022
passed by the learned Single Judge has
been impugned by filing the present intracourt appeal.

2. Challenge before the learned Single
Judge was to the communication dated
December 21, 2022 from the Management
of Shri Mardan Singh Inter College, Tal
Behat, Lalitpur, vide which in view of letter
dated November 5, 2020 from the District
Inspector of Schools, payment of salary to
respondent No. 1 was directed to be
stopped with effect from November, 2020.
Learned Single Judge allowed the writ
petition, quashed the order dated December
31, 2020 passed by the Committee of
Management and directed for payment of
salary along with interest thereon to
respondent No. 1.

3. The stand taken by the learned
counsel for the appellants is that the
appointment of Respondent No. 1 on
compassionate basis was wrong as he had
concealed material facts. However, it is not
in dispute that no final decision has yet
been taken about the appointment of
respondent No. 1 as to whether the same is
legal or illegal. The proceedings therefor
are in process. The effect of passing of
order stopping payment of salary to
respondent No. 1 is either that he shall not
be allowed to work and that too without
passing any order or that he shall not be
paid salary despite working in the college.
Under both the eventualities, the order
passed cannot be sustained as there is no
direction that respondent No. 1 will not be
allowed to work in the college and
stoppage of payment of salary is not by
way of punishment.

4. What makes matters worse for the
appellants is that in the counter affidavit
filed before the learned Single Judge, an
order dated February 15, 2021 passed by
9 All. State of U.P. & Ors. Vs. Nitin Agnihotri & Ors.
651
the Manager/Secretary, Shri Mardan Singh
Inter College was brought on record as
Annexure No. 9 to show that the
management had taken a decision to
terminate the petitioner's services with
information thereof to the Board in terms of
Section 21 of the U.P. Secondary Education
Services Selection Board Act, 1982 (for
short "the Act of 1982") but the appellants
have not disclosed in the counter affidavit
the fact that the order passed by the
management
on
February
15,
2021
resolving to terminate the services of
respondent no. 1 is already under challenge
before this Court in Writ - A No. 12492 of
2021, tiled as ''Nitin Agnihotri v. State of
U.P. and others' wherein this Court has
issued notice and stayed the operation of
the order dated February 15, 2021 passed
by the College management. This fact has
also not been disclosed in the affidavit filed
in this appeal. In the affidavit filed in
support of this appeal, there is an averment
to be found in Paragraph No. 14 to the
effect that the learned Single Judge, while
allowing the writ petition, did not consider
the fact that respondent no. 1 has filed a
second writ petition, being Writ - A No.
12492 of 2021 against the order dated
February
15,
2021
passed
by
the
Committee of Management, where the
appellants have filed a counter affidavit,
and that petition is pending. It has also been
averred in the paragraph under reference
that the Appointing Authority has already
recommended dismissal of the petitioner on
account of illegal appointment under the
Uttar Pradesh Recruitment of Dependents
of Government Servants Dying in Harness
Rules, 1974. In this affidavit also, it has not
been stated that the operation of the order
dated February 15, 2021 has been stayed by
this Court. The averment in Paragraph No.
14 of the affidavit filed in support of the
appeal hides more than it says. It
suppresses the material fact that the order
dated February 15, 2021 passed by the
management recommending termination of
the petitioner's services has been stayed by
this Court.

5. At the hearing of this appeal, the
interim stay order dated September 21,
2021 passed by this Court in Writ - A No.
12492 of 2021 was produced by learned
Counsel for respondent No. 1. When the
learned Standing Counsel appearing for the
State was confronted by the said order, he
could not deny the fact that the said order
had been passed in the writ petition under
reference, staying the operation of the order
dated February 15, 2021. It is not expected
of the State or their Authorities that such a
vital fact would be suppressed.

6. As there is material concealment of
facts in the present appeal, the same
deserves to be dismissed. As to how a
litigant who conceals material facts from
the Court, has to be dealt with, has been
gone through by Hon'ble the Supreme
Court time and again and the consistent
opinion is that he is not entitled even to be
heard on merits.

7. This Court has considered this
issue in Virendra Kumar v. Union of
India and others, 2022 (2) ADJ 1 and
after going through various judgments of
Hon'ble Supreme Court, had dismissed the
petition on the ground of concealment of
material facts by the petitioner.

8. It is also noteworthy that Writ - A
No. 12492 of 2021 is by no means a second
petition filed by respondent No. 1, which
the appellants say into criticism of the
impugned judgment passed by the learned
Single Judge. Writ - A No. 12492 of 2021
has been filed against a supervening order
652 INDIAN LAW REPORTS ALLAHABAD SERIES
dated February 15, 2021, which was not in
existence until time when the writ petition
giving
rise
to
the
present
appeal,
challenging the order dated December 31,
2020, was filed. A writ petition filed on a
subsequent cause of action cannot be
dubbed as a second petition.

9. To sum up, in substance, till date,
no order determining the employment of
respondent No. 1 has been passed by the
respondents that is enforceable under the
law. The respondents, therefore, cannot
stop payment of the petitioner's salary and
orally ask him not to work or permit him to
work but not pay his salary. The impugned
order is, therefore, flawless and must be
upheld.

10. Since the appellants have
suppressed material facts from this Court,
which are already indicated hereinabove,
they must be saddled with adequate costs,
which we quantify as ₹50,000/-.

11. As a result, the appeal fails and
stands dismissed. The costs of ₹50,000/-
shall be deposited by the appellants with
the Allahabad High Court Mediation and
Conciliation Center within one month from
the date of receipt of copy of the order and
receipt thereof shall be produced before the
Registrar General, which shall be retained
on record.
----------

(2022) 9 ILRA 652
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ A No. 427 of 2022
Noorul Huda ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yakub Ali, Ms. Chhaya Gupta, Ms. Sarita
Mishra

Counsel for the Respondents:
C.S.C.,
Sri
Durga
Singh,
Sri
Sanjay
Chaturvedi

A.
Service
Law
-
Repatriation
-
Opportunity of hearing - A deputationist
indisputably has no right to be absorbed
in the post to which he is deputed.
However, there is no bar thereto as well. It
may be true that when deputation does not
result in absorption in the service to which an
officer is deputed, no recruitment in its true
import and significance takes place as he is
continued to be a member of the parent service.
When
the
tenure
of
deputation
is
specified, despite a deputationist not
having an indefeasible right to hold the
said
post,
ordinarily
the
term
of
deputation should not be curtailed except
on such just grounds as, for example,
unsuitability
or
unsatisfactory
performance. But, even where the tenure
is not specified, an order of reversion can
be questioned when the same is mala fide.
An action taken in a post-haste manner
also indicates malice. (Para 15)

Record
reflects
that
the
petitioner
was
appointed as District Co-ordinator (Community
Mobilization) in the office of District Basic
Education Officer, Ballia and joined the said post
on deputation on 20.11.2019. The impugned
order has been passed by respondent-2
repatriating him to parent department i.e. on
the post of Assistant Teacher (Urdu) in
Government Inter College, Ballia. Ordinarily a
deputationist has no right to continue on the
said post but the impugned action of the
respondents by passing the impugned order
casts stigma to him as the same was passed on
the basis of some complaint lodged by the
political worker and without affording any
opportunity of hearing to the petitioner, even