Rajesh Kumar Vs State of H.P

jurisdiction of this Court, under Article 226 of the Constitution of India, by way of filing Civil Writ Petition, which was initially registered as CWP No.9221 of 2013, seeking the following relief:-

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“i) That the rejection letter dated 18^th February, 2013 may kindly be quashed and set aside and the respondents may very kindly be directed to grant all service benefits to the petitioners from the date of their initial appointment with all consequential benefits.”

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Thereafter, the State Government had

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established the Himachal Pradesh State Administrative Tribunal (hereinafter referred to as the ‘Tribunal’), under the provisions of the Administrative Tribunals Act, 1985 (hereinafter referred to as the ‘Act’) and the said case was transferred to the Tribunal and registered as T.A. No.3387 of 2015.

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After the abolition of the Tribunal, the said matter was again transferred to this Court and thereafter, registered as CWPOA No.2354 of 2019.

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The abovementioned relief has been sought, by the petitioners, on the ground that the respondentDepartment, on 30.09.2001, had advertised 81 posts of Pharmacists.

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4.1. According to the petitioners, the posts of Pharmacists were earlier governed by the Recruitment and Promotion Rules (hereinafter referred to as the ‘R&P Rules’), framed by the State of Himachal Pradesh, in the year 1973. However, the said R&P Rules were repealed, vide Notification dated 12.09.2001. The posts of Pharmacists are stated to be non-selection Class-III posts and mode of recruitment, as per Rule 10 of R&P Rules, is

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50% by way of direct recruitment, through the concerned recruitment agency, and 50% on batch-wise basis, on Department basis.

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4.2. It is the case of the petitioners that according to Rule 15 of R&P Rules, the posts were to be filled up through selection, either from Public Service Commission or from any Recruitment Board. As per Rule 7 of R&P Rules, following educational qualification is required for the post of Pharmacist:-

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“i. 10+2 in Science or its equivalent from any recognized University/Board.

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ii. Bachelor Degree in Pharmacy/Diploma in Pharmacy or its equivalent from any recognized University or recognized institution by the Central or State Government.

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iii. Candidate should be registered from Pharmacy Council of the concerned Government/Central Government.”

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4.3. It is the further case of the petitioners that State of Himachal Pradesh, while making the recruitment to Class-III posts, has identified the recruitment agency, as, Himachal Pradesh Subordinate Service Selection Board, Hamirpur.

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4.4. It is the further case of the petitioners that in response to the advertisement, dated 30.09.2001, the petitioners, considering them to be qualified, had applied for the posts, in question, and they were called for

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interview on 26.07.2002. Thereafter, they were recommended for appointment to the posts of Pharmacists and were appointed as such. However, the appointment was made on contract basis. The petitioners had raised their grievances to appoint them on regular basis and to grant them other service benefits, but, to their utter dismay, their services were regularized w.e.f. 09.01.2012.

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4.5. It is the further case of the petitioners that thereafter, they made the representations to the competent authority regarding granting them consequential benefits, from the date of their initial appointment, by treating them as on regular basis, from the date, when they joined. However, their representations were rejected. In this regard, the petitioners have relied upon the communication dated 18.02.2013. The act/omission of the respondents to appoint them on regular basis, from the date of their initial appointment, is stated to be violative of Articles 14 and 16 of the Constitution of India.

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4.6. In addition to this, it is their further case that the act/omission of the respondents is also violative of the executive instructions (Annexure P-10).

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On the basis of above facts, a prayer has been made to allow the petition, by granting the relief, as prayed for.

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When put to notice, the petition has been contested/controverted, by the respondents, by way of filing reply.

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6.1. In the reply, the respondents have taken the preliminary objections that the petitioners have concealed the material facts from the scrutiny of the Court, as, they have earlier filed OAs No.552 of 2005, 1092 of 2005, 2042 of 2005, 1086 of 2005, 1089 of 2005 and 1083 of 2005,

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with a prayer to treat their appointment as regular appointment, from the date of their initial appointment on contract basis. However, the aforementioned OAs were dismissed, by the Tribunal, vide separate orders dated 15.09.2006 and 22.04.2008.

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6.2. The above facts have been highlighted by the respondents to show that the present petition is bad by applying the principle of res judicata .

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6.3. It has also been pleaded that except petitioner No.3, other petitioners have preferred CWP No.4692 of 2013, on 12.06.2013, for granting them the benefits of revised pay scales, after revision of pay scales w.e.f.

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01.01.2006. However, the said petition was disposed of, by this Court, on 12.07.2013, by giving the liberty to the petitioners to file a representation, before the appropriate authority, with further directions to the respondents to consider their requests on merit, in accordance with law.

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6.4. It is the specific case of the respondents that the petitioners have not disclosed material facts in their pleadings. Supporting the policy to appoint on contract basis, the respondents have contested the prayer, as made, in the application.

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6.5. It is the further case of the respondents that the posts, in question, were duly advertised, by the recruitment agency, as per provisions of R&P Rules, prevailing/existing at the relevant time. However, as per policy decision of the State Government, the posts were to be filled up on contract basis and this fact has duly been mentioned in the advertisement.

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6.6. It is the further case of the respondents that as per policy decision, conveyed vide letter dated 20.07.2011, the petitioners, as well as, similar situated persons were regularized, after completing their 8 years of service on contract basis. However, they have admitted that the provision of appointment on contract basis has specifically

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been inserted in the existing R&P Rules, in the year 2008, by issuing the notification dated 14.08.2008.

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On the basis of above facts, a prayer has been made to dismiss the petition.

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In this case, the petitioners have not bothered to file the rejoinder to the reply, filed by the respondents, explaining their position regarding non-mentioning of the material facts, with regard to filing of OAs No.552 of 2005, 1092 of 2005, 2042 of 2005, 1086 of 2005, 1089 of 2005 and 1083 of 2005.

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Learned Deputy Advocate General, appearing for the respondents, has pointed out the pleadings of the petitioners, in para No.12 of the writ petition, which is reproduced, as under:-

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“ 12 . That the petitioners have not filed any other petition on the same and similar grounds in this Hon’ble Court or in any other Court of law in India including Supreme Court of India. However, one Shri Naresh Kumar had filed OA No.2666/03 before the Ld. Administrative Tribunal.”

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Whereas, petitioner No.1-Rajesh Kumar had filed OA No.552 of 2005, petitioner No.2-Naveen Kaushal had filed OA No.1092 of 2005, petitioner No.3-Sanjay Kumar Bhardwaj had filed OA No.2042 of 2005, petitioner No.4-Neelam Nanda had filed OA No.1086 of 2005,

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petitioner No.5-Rachna Indoria had filed OA No.1089 of 2005 and petitioner No.6-Umesh Kumari had filed OA No.1083 of 2005. However, their petitions were dismissed, by the Tribunal. Copies of the final order, passed by the Tribunal, have been placed on record, by the respondents, as Annexure R-2/1. The operative portion of the order, passed by the Tribunal, in OA No.552 of 2005, is reproduced, as under:-

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“In view of this position no vested legal right of the applicant has been shown to have been infringed, the relief as prayed for by the applicant cannot be granted. No instructions, rules, Regulations or Policy have been shown to this Tribunal under which the applicant is claiming her right of regularization. The fact remains that there was a clear cut stipulation in the advertisement that the post being filled up are on contract basis. The applicant was very much in the knowledge of this fact. In the light of above legal position and the factual matrix we find no merit in this Original Application and as such same is liable to be dismissed and is accordingly dismissed with no order as to costs. Original Application stands finally disposed of. However, respondents are directed not to dispense with the service of the applicant except in accordance with law.”

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(emphasis supplied)

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Even otherwise, petitioners No.1, 2, 4 to 6 have

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also not mentioned the material fact with regard to the filing of CWP No.4692 of 2013, which was decided, by this Court, on 12.07.2013.

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In this factual background, the first and

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foremost question, which arises for determination, before this Court, is about the fact whether any relief, that too, under Article 226 of the Constitution of India, can be given to the petitioners, who admittedly have not approached the Court with clean hands. They have made an attempt to pollute the stream of administration of justice. It is expected from a litigant that whenever, he approaches the Court, he should come with clean hands and should not conceal any material fact from the scrutiny of the Court.

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In this case, the petitioners not only pleaded the wrong facts in paragraph 12 of the petition, but, no efforts have been made by them to explain their position, when these facts have specifically been highlighted by the respondents, in their reply.

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The Tribunal has declined the relief to the petitioners, which has been claimed, by them, on the ground that they should have been appointed on regular basis, instead of on contract basis, from the date of their initial appointment. The ground, which has already been availed by the petitioners, before the Tribunal, has again been taken by them, before this Court.

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The concealment of material fact is also held to

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be the abuse of the process of the Court, by the Hon’ble Supreme Court in ‘ K.D. Sharma Vs. Steel Authority of India Limited and Others ’, reported in (2008) 12 SCC 481 . Relevant paragraph 39 of the said judgment is reproduced, as under:-

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“ 39 . If the primary object as highlighted in Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) is kept in mind, an applicant who does not come with candid facts and clean breast' cannot hold a writ of the Court with soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.”

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(self-emphasis supplied)

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16. In case ‘ Moti Lal Songara Vs. Prem Prakash

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@Pappu and Another’ , reported in (2013) 9 SCC 199 , the

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Hon’ble Supreme Court has held that anyone, who takes recourse to method of suppression in a Court of law, is not

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entitled for any relief. Relevant paragraphs 19 and 20 of

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the said judgment are reproduced, as under:-

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“ 19 . The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused- respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused-respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to playpossum.

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20 . The High Court, as we have seen, applied the principle “when infrastructure collapses, the superstructure is bound to collapse”. However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand.”

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(self-emphasis supplied)

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The growing tendency of the litigants to seek

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relief, on the basis of concealment of facts, has heavily

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been dealt with, by the Hon’ble Supreme Court, in ‘ Dalip

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Singh v. State of Uttar Pradesh and Others’ , reported in (2010) 2 SCC 114 . Relevant paragraphs 1 and 2 of the said judgment are reproduced, as under:-

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“ 1 . For many centuries, Indian society cherished two basic values of life i.e., Satya' (truth) and Ahinsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

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2 . In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

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In the present case, the petitioners are not

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laymen, but, working as Pharmacists. Admittedly, the petitioners have not mentioned the material facts in their pleadings, nor any efforts have been made by them to explain their position, when, these facts have been highlighted by the respondents, in their reply.

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