Nissar Ahmed Parry vs State and Others

Petitioner seeks a direction to the respondent to allow the petitioner to discharge his duties against the post of Junior Librarian in terms of his

valid appointment order and also to draw and disburse to his withheld salary from November, 1997 alongwith increments.

Petitioner has averred in the petition that on the instructions of the Education Minister vide his letter no. EduMin/Appt265 dated 1.7.1988 the

petitioner was appointed by the Director School Education for a period of 89 days which term was again extended on the instructions of the

Education Minister vide his letter no. 390 dated 29.8.1999 communicated to the Director Education, vide his letter no. 2641216 dated

31.10.1988 with usual break of 89 days. The services of the petitioner there after came to be regularised vide order dated 5.8.1989 by the

Director School Education.

It is also averred in the petition that in the year 1996, a scandal of alleged fake appointments came to limelight. The Director School Education

sought for the record of the various appointees including the petitioner from the Principal Government Higher Secondary School IDH Pora, where

petitioner after his initial appointment was posted. Record was sent for by the respondent no. 2 from the Principal of the said school. The Principal

sent the record to the respondent no. 2 through his clerk namely Mohd. Yousuf Beigh and peon Mohd. Yousuf Malik on 5.2.1996. While they

were in the way travelling by bus, they were intercepted by some unknown gunmen. The whole record alongwith an amount of Rs. 22000/ was

snatched away from them. FIR No. 336/1996 has been registered in police station Kulgam. The appointment of the petitioner is valid and not

fake. Respondents have stopped the salary of the petitioner from November, 1997 on the ground that the appointment of the petitioner has been

found fake.

Respondent have filed reply affidavit stating therein, that the letters mentioned in para no. 2 of the writ petition written by the Minister and the

appointment order issued by the Director, pursuant thereto, are not traceable in the record of the respondents. The petitioner was asked to

produce said letter and his initial and subsequent appointment orders including order of regular appointment. Petitioner failed to produce the same,

therefore his appointment has been termed as fake and forged. In District Anantnag many other fake appointment came to light including the

appointments of the petitioner. An FIR has been registered in the Vigilance Organisation which is under investigation. Petitioner cannot claim

benefit of a nonexistant, fake and forged appointment order. It is further stated that so far as contents of annexure A, which is a photostat copy of

the service book is concerned, the signatures on the first page of the photostate copy of the service book has not been authenticated by the

concerned officer. Besides this, the signatures of the DDO the same officer, varies from that of the signatures put on other service books of the

teachers of the said school. Therefore, no reliance can be placed on such disputed, forged and fake documents.

Heard learned counsel for the parties.

Mr. Javid Iqbal, learned counsel for the petitioner has submitted at the bar that according to the petitioner the petitioner handed over his

appointment order to the clerk named above. In para 7 of the petition, he has pleaded that the respondent no. 2 Director School Education

summoned the record of the petitioner from the Principal, Higher Secondary School DH Pora and the Principal handed over the record to the

clerk namely Mohammad Yousuf Beigh to deliver the same to respondent no. which was snatched on gun point. It is not averred in the petition that

the petitioner has handed over the record to the clerk. The original appointment orders should be in the possession of the petitioner also which he

failed to produce. Unless it is established on the basis of the record or other relevant evidence that the appointment orders of the petitioner are

genuine and brought in existence after following the procedure prescribed by law, the petitioner is neither entitled to the appointment nor salary.

The petitioner under such circumstances is therefore, not entitled to the benefit of his appointment and should not be permitted to enjoy the fruits of

dishonesty. Supreme Court while dealing with such forged appointment coupled with dishonest has in case Krishan Yadav Versus State of

Haryana reported in AIR 1994 SC 2166 (para 22) holding that :

The effect of setting aside the selection would mean the appointments held by these 96 candidates (including the respondents) will have no right to

go to the office. Normally speaking, we should require them to disgorge the benefit of these illgotten gains. That means they will have to repay the

entire salary and perks which they have received from the said office. But here we show a streak of sympathy. For more than 4 years they were

enjoying the benefit of office. The proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could

never pay"".

Mr. Kawoosa learned AAG has also submitted that the petitioner for the same cause approached the court by means of SWP No. 1832/1998

which has been disposed of by an order dated 5101998. He filed another writ petition (SWP No. 413/1998) for the same cause which has been

dismissed as withdrawn. He preferred LPA No. 292/1998 against the order dated 5101998 which also has been withdrawn in terms of

application (CMP No. 115/1999). His submission is that the petitioner for the same cause of action has filed this petition which is not maintainable

in view of the law laid down by the Supreme Court in M/s Upadhyaya and Co, vs. State of U.P. reported in AIR 1999 SC 509, holding that :

... We made recapitulation of the events as above for the purpose of chosing that the petitioner has absolutely no case in the present SLPs. He

cannot at any rate, now challenge the order of the High Court dated 351996 over again having withdrawn the SLP which he filed in challenge of

the same order. It is not a permissible practice to challenge the same order over again after withdrawing the Special Leave Petition without

obtaining permission of the Court for withdrawing it with liberty to move for special leave again subsequently.

The above principle has been incorporated as a rule in the realm of suits. Order 23, Rule 1 of the Code of Civil Procedure deals with withdrawal

of suit or abandonment of part of the claim. SubRule (3) says that the Court in certain contingencies grant permission to withdraw from suit with

liberty to institute a fresh suit in respect of the subject matter of such suit.

The aforesaid ban for filing a fresh suit is based on public policy. This court has made the said rule of public policy applicable to jurisdiction under

Article 226 of the Constitution (Sarguja Transport Service vs. State Transport Appellate Tribunal Gwalior 1987) 1 SCC 5 (ADR 1987 SC 88).

The reasoning for adopting it in writ jurisdiction is that very often it happens when the petitioner or his counsel finds that the court is not likely to

pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to

withdraw it without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant

liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is

withdrawn by the party concerned he is precluded from filing an appeal against the order passed in the writ petition because he cannot be

considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The

following observations of E.S. Venkataramiah J. (as the learned Chief Justice then was) are to be quoted here.

We are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to

cases of withdrawal of writ petition also, not on the ground of resjudicata but on the ground of public policy as explained above. It would also

discourage the litigant from indulging in bench hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to

invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition

filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the

Constitution since such withdrawal does not amount to resjudicata, the remedy under Article 226 of the Constitution should be deemed to have

been abandoned by the petitioner in respect of the cause of action relief on in the writ petition when he withdraws it without such permission"". 8.

This writ petition being third in the series is not maintainable on this count also in view of the aforesaid mandate of law. 9. For the foregoing

reasons, no case for admission of the writ petition is made out. Writ petition is accordingly dismissed.