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Judgment
Shri Anurag Yadav, holding brief of Shri Mahendra Pratap states that as the Petitioner has retired, the writ petition has become infructuous. He prays that the writ petition be dismissed as infructuous.
In this writ petition, the Petitioner has challenged the orders of his repatriation to his parent department. On 23.10.2000, following order was passed by this Court:
Sri Shankar Singh, Standing Counsel, representing the Respondents, prays for and is granted four weeks'' time to file counter affidavit. List after six weeks Rejoinder affidavit may be filed by the next date of listing.
In the meantime, having regard to the submission that the order impugned herein regarding change of cadre, it is provided, as an interim measure that the effect and operation of the impugned orders dated 4.7.2000 and 4.9.2000 shall remain stayed till the next hearing of the case and the Petitioner shall be allowed to work in case no one else has been posted in his place.
A counter affidavit of Shri Sheo Janam Chaudhary, Under Secretary in the Department of Medical Education, U.P., Civil Secretariat, Lucknow, was filed on 16.1.2001. Thereafter the counter affidavit of Shri Preetam Singh, Principal Secretary, Medical Education, UP Civil Secretariat, Lucknow, was filed on 22.8.2001 to the application under Article 215 of the Constitution of India for punishing him for contempt. Rejoinder affidavits were not filed.
On 19.7.2002, the Court passed the following order. The order is quoted as below:
Heard learned counsel for the Petitioner and perused the C. Misc. Application No. 45700 of 2001.
The Respondents are directed to pay salary admissible to the Petitioner in the scale of Rs. 16400-20000 or show cause by filing counter affidavit within a period of four weeks.
Hon. S.R. Singh, J.
Hon. D.R. Chaudhary, J.
After the aforesaid order dated 19.7.2002, the case went out of the list. On 13.2.2004 it was directed to be connected with Writ Petition No. 9700 of 2000 and on 31.3.2004 it was passed over on the illness of Shri Mahendra Pratap. Thereafter the case was not listed for last seven years.
In the counter affidavit, serious allegations have been made against the Petitioner for misrepresenting the facts. He had earlier filed a Writ Petition No. 525 (SB) of 1996, in which he had made a prayer commanding the Respondents to treat the Petitioner in Medical Education & Training Directorate, as Additional Director, with all consequential benefits. He had disclosed the filing of this writ petition in paragraph-15 in which there was an interim order dated 26.6.1996, staying the operations of the orders dated 13.11.1995 and 3.5.1996 and also directed the Respondents to permit the Petitioner to continue as Additional Director in Medical Education and Training Directorate.
The Petitioner was placed under suspension on 10.9.1996. He had challenged the order of suspension in Writ Petition No. 1210 (SB) of 1996. Both the writ petitions were heard together. While quashing the suspension order, the Court directed that the Petitioner may be permitted to join on the post on which he was transferred vide order dated 31.5.1996. The writ petitions were finally disposed of on 4.12.1996. The judgment, however, was not annexed to the writ petition. It is annexed with the counter affidavit. The relevant extract of the judgment is quoted as below:
...The contention of the Petitioner is that while terminating his attachment from the Directorate of Medical Education and Training, vide order dated 13th November, 1995, his services were not re-transferred back to the parent department and, therefore, his services continued to remain at the disposal of the Directorate of Medical Education and Training. According to this contention he could not be transferred back to his parent department. The suspension order has been challenged on the ground that since the Government was not empowered to post him in the parent department, as his services continued to remain with the Directorate of Medical Education and Training, his suspension order is bad in law and during the pendency of the writ petition such an action could not have been taken.
Affidavits have been exchanged in these writ petitions. We have heard both the parties, including Sri D.P. Singh, appearing for the State in Writ Petition No. 525 (S/B) of 1996. Considering the facts and circumstances of these cases, we do not consider it appropriate to dwell upon the merits of the respective contentions of the parties because the State Government due to a mistake attached the Petitioner and transferred his services to another department, namely, the Directorate of medical Education and Training, which gave rise to subsequent developments. In the interest of justice, we see no reason and justification to continue with the disciplinary proceedings and suspension order passed against the Petitioner. We would like that the matter should not proceed further and the Petitioner should be permitted to serve his parent department.
In these circumstances the order of suspension dated 10th September, 1996 passed against the Petitioner is hereby quashed. The Petitioner shall report on 09th December, 1996 at 11.00 A.M. to join the post, on which he has been transferred vide order dated 31st May, 1996 and he shall be permitted to join the said post. The period of suspension or absence from the duty shall be treated as spent on duty for the purposes of pension etc. and the period of absence shall be regularized by sanctioning leave, which is due to the Petitioner, for which the Petitioner shall move appropriate application. The disciplinary proceedings initiated by means of the order dated 10th September, 1996 are also quashed. Both the writ petitions are disposed of finally in the terms indicated above.
Hon''ble A.N. Gupta, J.
Hon''ble A.S. Gill, J.
Concealing the aforesaid reasons and directions the Petitioner filed this writ petition challenging the consequential orders by which he was repatriated to the parent department.
It appears that the Petitioner had filed an application u/s 215 of the Constitution of India in which the Principal Secretary, Medical and Health was summoned. His presence was noted and exempted on 17.1.2001. The contempt application was directed to be listed in ordinary course.
From the counter affidavits filed by the department, we find that the Petitioner not only misrepresented the facts but acted in deceit in obtaining the interim orders from this Court without giving full facts and thereafter succeeded in not allowing the writ petition to be listed for almost ten years, to be heard. In the counter affidavit, it is clearly stated that the Petitioner was required to serve in the parent department, and that he was attached to the Department of Medical Education and Training, only as a stop gap arrangement.
The Petitioner has taken advantage of the interim orders passed by this Court by withholding and misrepresenting the facts. He did not allow the writ petition to be heard for almost ten years after getting the interim order and that inspite of the fact, that the interim order was passed, a counter affidavit was filed in the year 2001. No Government counsel took care to get the matter listed and to get the stay vacated.
The writ petition is consequently dismissed on the ground of placing wrong facts and misleading the court. The entire benefits drawn by the Petitioner must, therefore, be recovered.
We also vacate the interim orders dated 23.10.2000 and 19.7.2002, and direct that the pay scale given to the Petitioner in the scale of Rs. 16,400-20,000 by the order of the Court will be withdrawn, with all the consequential benefits. A copy of this order will be given free of cost to Chief Standing Counsel for compliance. Since the matter involves consequential orders to be passed by the Principal Secretary, Medical and Health, Government of U.P. and the Principal Secretary, Medical Education and Training, Government of UP Lucknow, let the matter be placed before the Chief Secretary, Government of UP to pass consequential order within one months, and report compliance to the Registrar General of the Court.