Pradeep Kumar Arora and anr. Vs. State of U.P. and ors.

1. This case is an eye-opener as to what extent a litigantcan have the audacity to misuse and abuse the process of the Court. One of thepetitioners, whose appointment itself stood cancelled by operation of law isnot only in service but had succeeded In joining a college of his choice,though the vacancy of his subject had never occurred therein, only by playingfraud upon the Court.

2. Petitioners stood selected for appointment as Lecturer in EducationDepartment by the U.P. Higher Education Services Commission (hereinafterreferred to as the 'Commission') pursuant to advertisement No. 29. Petition hasbeen filed for a direction upon the respondents to consider their claim forinter changing the Colleges where their names have been recommended by theDirector of Education (Higher Education) (hereinafter referred to as the'Director').

3. Consequent to the selections made by the Commission on the basis ofAdvertisement No. 29 issued by it for filling up the posts of Lecturers in theColleges in various subjects, a list dated 7.7.2001 was sent by the Commissionto the Director recommending the names of 121 candidates found most suitablefor the post of Lecturer in B.Ed. The Director intimated the managements of therespective Colleges the names of the candidates for. being appointed. Amongstothers, the name of Pradeep Kumar Arora, petitioner No. 1, was intimated to themanagement of Vardhman College, Bijnor whereas the name of Dr, Kailash NathGupta, petitioner No. 2, was intimated to the management of Nanakchand AngloSanskrit College, Meerut (hereinafter referred to as 'NAS College' Meerut).Instead of joining at their respective Colleges, both the petitioners movedapplications before the Director for inter changing their placement. TheDirector, however, did not accede to the request and proceeded to place anothercandidate Harendra Kumar at the NAS College, Meerut. It is In thesecircumstances that the present petition was filed in the Court for the reliefmentioned above and when the matter was taken up on 24.4.2002 time was grantedto the respondents to file a counter-affidavit and notices were issued torespondent Nos. 3 and 4 which are the Committee of Managements of the aforesaidtwo Colleges; The Court further Ordered that in the meantime petitioners mayinter change their postings i.e. petitioner No. 1 was permitted to join asLecturer in B.Ed. In NAS College, Meerut while petitioner No. 2 to join asLecturer in Vardhman College, Bijnor.

4. The records reveal that on the basis, of the aforesaid interim Orderpetitioner No. 1 joined the NAS College, Meerut but petitioner No. 2 did notjoin the Vardhman College, Bijnor till date.

5. On 22.5.2002, one Ompal Singh filed an application for impleadment as arespondent in the writ petition and for recalling the Order dated 24.4.2002.The said application was allowed impleading him as respondent No. 5. In theaffidavit filed in support of the impleadment application, It was stated thatthe petitioner No. 2 Dr. Kailash Nath Gupta had not joined the intimated placeof posting at NAS College, Meerut and, therefore, his placement Order wascancelled and thereafter the communication dated 24.1.2002 was sent by theDirector to the NAS College, Meerut intimating the name of one Harendra Kumarfor appointment. The applicant (Ompal Singh) had earlier filed a Writ PetitionNo. 14938 of 2002 in, this Court for quashing the aforesaid placement Order ofHarendra Kumar and for a direction to place the applicant at the said NASCollege, Meerut. On 12.4.2002 the Court passed the following Order on theapplication for interim relief:

'It has been averred in writ petition that petitioner is M.A. inMathematics and M.Ed, as also Gold Medallist in M. Phil.

The advertisement was made for Nanak Chand Anglo Sanskrit College Meerut forthe post of Lecturer having qualification B.Ed./Mathematics. The petitioner isspecialised in Mathematics whereas Harendra Kumar respondent No. 5 is M.A. inHistory and prima facie is not eligible.

Considering the averments in the writ petition particularly the fact thatrespondent No. 5 is allegedly not qualified for appointment on the said post westay the impugned Order dated 24.1.2002 (Annexure-1 to the SupplementaryAffidavit).

However it is clarified that if respondent No. 5 has a degree in M.A.Mathematics then this interim Order will be inoperative.'

6. It was also stated that Dr. Kailash Nath Gupta had earlier been selectedby the Commission pursuant to advertisement No. 28 and consequent to theintimation sent by the Director he had been appointed as a Lecturer in B.Ed. InMaltari College, Azamgarh. However, Dr. Gupta had concealed material facts fromthis Court and obtained an interim Order dated '24.4.2002.

7. A counter affidavit was filed on behalf of the petitioners to theaforesaid impleadment application wherein it was admitted that petitioner No. 2Dr. Kailash Nath Gupta was working at Maltari College, Azamgarh in view of hisselection on the basis of Advertisement No. 28 and on the basis of the interimOrder dated 24.4.2002, he could not join the Vardhman College, Bijnor as he didnot receive any information about his placement. However, petitioner No. 1,Pradeep . Kumar Arora joined at the NAS College, Meerut pursuant to the interimOrder dated 24.4.2002 and was teaching there. In the rejoinder affidavit to theaforesaid impleadment application Ompal Singh has brought on record the communicationdated 31.1.2002 sent by the NAS College, Meerut to the Director wherein reasonshave been given as to why Harendra Kumar was not permitted to join in spite ofthe intimation dated 24.1.2002 sent by the Director to the said College. It hasfurther been stated that an appointment letter had been issued to Dr. KailashNath Gupta by the NAS College, Meerut but since he did not join the College,the Director intimated the name of Harendra Kumar to the said College forappointment as a Lecturer.

8. A detailed counter affidavit has also been filed on behalf of theDirector. It has been stated that regular selection and appointment for thepost of Lecturer in aided non-Government Degree and Post Graduate Colleges aregoverned by the provisions of the U.P, Higher Education Services CommissionAct, 1980 (hereinafter referred to as the 'Act'); under the second proviso toSection 12(4) of the Act, the candidates are required to Indicate their Orderof preference for various Colleges in respect of which the vacancies had beenadvertised and under Section 13(3) of the Act, the Director having due regardto the Order of preference indicated by the candidates, Intimates to theManagement the name of a candidate from the list sent by the Commission forbeing appointed; that many candidates indicate their preference for the sameCollege and, therefore, the placement Order is issued by the Director lookingto the merit and the roster while taking care that only female selectedcandidates are placed in Girls' Colleges as a result of which the claim of malecandidates higher in Order of merit has to be ignored; the Director also has tolook into the specific demands made by the Colleges in respect of specialisedfield and it was on a consideration of the relevant factors that the Directorhad made the placement Order of Pradeep Kumar Arora, petitioner No. 1 atVardhman College, Bijnor since the requirement of this College was for aLecturer in B.Ed, specialising In Commerce and of Dr. Kailash Nath Gupta,petitioner No. 2 at NAS College, Meerut where the demand was for a Lecturer inB.Ed, specialising in Mathematics. It was, therefore, submitted that if suchexchanges are permitted then it would not only be against the requirements ofthe College but would also ignore the claims of other successful candidates. Ithas further been stated that the name of petitioner No. 2, Dr. Kailash NathGupta was wrongly included in the list of general category candidates sent bythe Commission on 7.7.2001 and subsequently the Commission informed theDirector that the petitioner No. 2, Dr. Kailash Nath Gupta had been placed atSerial No. 2 in the list of OBC category candidates.

9. On 13.5.2003, when the matter was taken up by the Court, the followingOrder was passed:

'The petitioner No. 2 has sworn affidavit on personal knowledge andmade false averments in para 32 of the writ petition. He is directed to remainpresent before this Court on 22.5.2003 at 2.00 p.m. to explain under whatcircumstances he has made factual averments in para 32 that the vacancy ofcommerce has ever been advertised in NAS College Meerut and how he has verifiedthis fact on personal knowledge in his affidavit. He is directed to fileaffidavit explaining his conduct why he should not be dealt with criminalcontempt. List this petition for further hearing on 22.5.2003 at 2.00p.m.'

10. Pursuant to the aforesaid directions, an application duly supported byan affidavit of Dr. Kailash Nath Gupta. An attempt was made to explain thefacts mentioned in paragraph 32 of the petition by stating that the avermentshad been made on the basis of the report of the Committee of Management of the NAS College, Meerut rather than on the basis of the advertisement and anunconditional apology was submitted.

11. The matter was heard by us at length on 19.1.2005 and the followingOrder was passed :

'Judgment reserved. Sri Kailash Nath Gupta, petitioner No. 2 isdirected to file his affidavit as under what circumstances he had madeaverments in paragraph 32 of the petition regarding placement of HarendraKumar, and as to whether he was aware of the cancellation of his placement inN.A.S. College, Meerut. Affidavit be filed within ten days from today.

Director of Higher Education is directed to transmit the original record ofthe appointment/ placement of Lecturer in Education Department in N.A.S. College,Meerut as well as Vardhman College, Bijnor along with the Order cancelling theplacement of Shri Kailash Nath Gupta in N.A.S. College, Meerut and theapplication sent by the Committee of Management of that College for thecancellation of his placement for not joining within time.

The record may be transmitted forthwith and in any case not later than oneweek from today.

Copy of this Order may be given to the learned Chief Standing Counsel S.M.A.Kazmi by tomorrow.'

12. Pursuant to the aforesaid directions issued by us, a supplementaryaffidavit has been filed by the petitioners and the records have also beenproduced by Director of Education. In the supplementary affidavit it has beenstated that petitioner No. 2 was never communicated any Order of cancellationof his placement at the NAS College, Meerut by the State-respondent. Thesupplementary affidavit has however very conveniently omitted to explain as toon what basis the petitioners had made the averment in paragraph 32 of thepetition regarding the placement of Harendra Kumar at the NAS College, Meerut,if they were not aware of the letter dated 24.1.2002.

13. We have heard Sri T.P. Singh, learned Senior Counsel for thepetitioners, assisted by Sri Shailendra and the learned Standing Counsel appearingon behalf of the respondent Nos. 1 and 2, Sri W.H. Khan, learned Counselappearing for the Committee of Management of the NAS College, Meerut and SriUpendra Singh, learned Counsel appearing for the newly impleaded respondentOmpal Singh.

14. Sri T.P. Singh, learned Senior Counsel for the petitioners submittedthat it was obligatory on the part of the Director to have considered theapplications submitted by the petitioners for inter changing their place ofpostings since there were so many cases in which the Director permitted suchmutual exchange of placement; the Director was not justified in adjustingHarendra Kumar who belongs to the Other Backward Category and who was at SerialNo. 1 in the said category and had been placed at Vardhman College, Bijnor; andthat Harendra Kumar belongs to History subject whereas no such post wasavailable at NAS College, Meerut.

15. On the other hand, learned Standing Counsel and Sri Upendra Singh,learned Counsel appearing for the newly impleaded respondent No. 5 opposed thegrant of any relief since that would not only be against the provisions of theAct and the Rules framed thereunder but the petitioners had also concealedmaterial facts from this Court and in support of their contentions the learnedCounsel relied upon the averments made in the affidavits filed by them.

16. In Order to appreciate the controversy involved in the present petition,it would be necessary to refer to the provisions of the Act and the provisionsof the Uttar Pradesh Higher Education Services Commission Rules, 1981(hereinafter referred to as the 'Rules') and the provisions of the UttarPradesh Higher Education Services Commission (Procedure for Selection ofTeachers) Regulations, 1983 (hereinafter referred to as the 'Regulations').Prior to the commencement of the Act, the appointment to the post of teachersin the Non-Governmental Colleges affiliated to the various Universities in theState was made by the Selection Committee of the Management of the Collegeconcerned. For various reasons the said process was not found to be congenialand so the aforesaid Act, was enacted. Sections 12, 13, 14 and 15 of the Actwhich are relevant for the purposes of the controversy involved in the petitionare quoted below :

'12. Procedure for appointment of teachers. -- (1) Every appointment asa teacher of any College shall be made by the management in accordance with theprovisions of this Act and every appointment made in contravention thereofshall be void.

(2) The management shall intimate the existing vacancies and the vacancies,likely to be caused during the course of the ensuing academic year, to theDirector at such time and in such manner, as may be prescribed.

(3) The Director shall notify to the Commission at such time and in suchmanner as may be prescribed a subject-wise consolidated list of vacanciesintimated to him from all Colleges.

(4) The manner of selection of persons for appointment to the posts ofteachers of a College shall . be such, as may be determined by regulations :Provided further that the candidates shall be required to indicate their Orderof preference for the various Colleges, vacancies wherein have been advertised.

13. Recommendation of Commission. --(1) The Commission, shall as soon aspossible, after the notification of vacancies to it under sub-Section (3) ofSection 12, hold interview (with or without written examination) of thecandidates and send to the Director a list recommending such number of names ofcandidates found most suitable in each subject as may be, so far aspracticable, twenty five per cent more than the number of vacancies in thatsubject. Such names shall be arranged in Order of merit shown in the interview,or in the examination and interview if an examination is held.

(2) The list sent by the Commission shall be valid till the receipt of a new list from the Commission.

(3) The Director shall having due regard in the prescribed manner, to the Order of preference if any indicated bythe candidates under the second proviso to Sub-section (4) of Section 12, intimate to the management the nameof a candidate from the list referred to in Sub-section (2) of Section 12.

(6) The Director shall send a copy of the intimation made under Sub-section (3) or Sub-section (4) or Sub-section (5) to the candidate concerned.

14. Duty of Management--(I) The management shall within a period of one month from the date of receipt of intimation under Sub-section (3) or Sub-section (4) or Sub-section (5) of Section 13, issue appointment letter to the person whose name has been intimated.

(2) Where the person referred to in Sub-section (1) Jails to join the post within the time allowed in theappointment letter or within such extended time as the management may allow in this behalf, or where such person is otherwise not available for appointment,the Director, shall on the request of the management intimate fresh name from the list sent by the Commission under Sub-section (1) of Section 13 in themanner prescribed.

15. Inquiry by Director.--(1) Where any person is entitled to be appointedas a teacher in any College in accordance with Sections 12 to 14, but he is notso appointed by the management within the time provided therefore, he may applyto the Director for a direction under Sub-section (2).

(2) On receipt of an applicationunder Sub-section (1), the Director may hold an Inquiry, and if he is satisfiedthat the management has failed to appoint the applicant as a teacher incontravention of the provisions of this Act. he may by Order, require--

(a) the management to appoint theapplicant as a teacher, and to pay him salary from the date specified in theOrder; and

(b) the Principal of the College concerned to take work from him as a teacher.

(3) The amount of salary, if any,due to such teacher shall, on a certificate issued by the Director, berecoverable by the Collector as arrears of land revenue.'

17. A perusal of the aforesaid provisions of the Act Indicates that every appointment of a teacherin a College has to be made by the Management in accordance with the provisions ofthe Act and every appointment made in contravention thereof shall be void. TheManagement has to intimate the existing vacancies and the vacancies likely tobe caused during the course of the ensuing academic year to the Director in theprescribed manner who shall. then notify to the Commission a subject wiseconsolidated list of vacancies intimated to him from all Colleges. Thereafterthe Commission shall give wide publication In the State to the vacancies andthe candidates shall be required to indicate their Order of preference for thevarious Colleges. Under Section 13 (1) of the Act, the Commission shall holdinterview of the candidates and send to the Director a list recommending suchnumber of names of candidates found most suitable in subject and such namesshall be arranged in Order of merit. This list sent by the Commission shall bevalid till the receipt of a new list from the Commission. Under Section 13 (3)of the Act the Director shall, having due regard to the Order of preferenceindicated by the candidates, intimate to the Management the name of a candidatefrom the list sent by the Director for being appointed. Under Section 13 (6) ofthe Act, the Director shall also send a copy of the Intimation to the candidateconcerned. Section 14 of the Act prescribes that it is the duty of themanagement to issue appointment letter to the person whose name has beenintimated within a period of one month but where the person fails to join thepost within the time allowed in the appointment letter, the Director shallintimate a fresh name from the list sent by the Commission. Under Section 15 ofthe Act, if the person is not appointed by the management then he may apply tothe Director for directions and under Section 15 (2) of the Act, the Director,after holding an enquiry, may require the management to appoint the person andthe Principal concerned to take work from him. Rule 7 of the Rules providesthat the management of the College has to intimate the number of vacancies tobe filled in by recruitment during the course of the year by 31st May in Form Iand under Rule 11 the candidate recommended by the Commission for appointmentmay intimate to the Director his non-appointment by the management in Form II.The Regulations provide that the minimum qualification for appointment of ateacher shall be as given in the Statutes of the Universities and they alsoprovide for a detailed procedure regarding the termination and intimation ofvacancies, notification of vacancies, submission of application and indicationof preference and the procedure for selection and recommendation forappointment and the notification of names of selected candidates.

18. Now coming to the facts of the instant case, we find that both the petitioners had submitted applicationsbefore the Commission for being considered for appointment as Lecturers inB.Ed, pursuant to the Advertisement No. 29. The Commission had sent a listdated 7.7.2001 containing the names of the Lecturers in B.Ed, for the Graduateand Post Graduate Colleges in respect of the vacancies advertised for 121 postswhich included 61 general category posts, 33 OBC category, 25 Scheduled Castecategory and 2 Scheduled Tribe category. The name of petitioner No. 1, PradeepKumar Arora was indicated at Serial No. 42 In the list of general categorycandidates while- the name of Dr. Kailash Nath Gupta, petitioner No. 2 wasindicated at Serial No. 55 in the list of general category candidates. However,against the name of petitioner No. 2 OBC was mentioned. In paragraph 18 of thecounter affidavit filed on behalf of the Director, it has also been stated thatsubsequently the Commission Informed the Director that petitioner No. 2,namely, Dr. Kailash Nath Gupta should be placed at Serial No. 2 in the list of OBC category candidates. In the aforesaid list dated 7.7.2001 the name ofHarendra Kumar has been placed at Serial No. 1 in the list of OBC categorycandidates while the name of Ompal Singh is at Serial No. 2 in the saidcategory. Under Section 13 (3) of the Act, the Director by means of thecommunication dated 22.12.2001 intimated the management of Vardhman College,Bijnor the name of petitioner No. 1, Pradeep Kumar Arora for appointment as aLecturer in B.Ed, and the management was directed to issue the appointmentletter giving 21 days time to the candidate to join. A copy of the letter wasalso endorsed to the Principal of the College and to the candidate concernednamely Sri Pradeep Kumar Arora with the remark that he should contact themanagement and join the post at the earliest and intimate the said fact to theDirector. It was also specifically mentioned that if he failed to join the poston the basis of the letter issued by the management of the College then it willbe presumed that he was not desirous of Joining the College. and in suchcircumstances his name will not be considered in any other College and theappointment shall automatically stand cancelled. Likewise, the Director alsosent a communication dated 23.10.2001 to the management of NAS College, Meerutintimating the name of petitioner No. 2, Dr. Kailash Nath Gupta for appointmentas a Lecturer in B.Ed, in the College. A copy of the letter also endorsed topetitioner No. 2 with the same remark. Both the petitioners did not desire tojoin the place of postings indicated in the aforesaid communications sent bythe Director and, therefore, moved applications for Inter changing their placeof postings.

19. What, therefore, emerges isthat in the communications dated 22nd December, 2001 and 23rd October, 2001sent to the petitioner Nos. 1 and 2 respectively for their placements at theColleges it was clearly mentioned that they should immediately intimate theDirector about their joining at the respective Colleges and should they fail tojoin within the time stipulated by the management of the Colleges it will bepresumed that they were not interested in joining so that their appointmentsshall automatically stand cancelled and they will also not be considered forplacement in any other College. The petitioners have not brought on record theletters issued by the management of the two Colleges and it is also not theircase that such letters were not issued. However, In the letter issued by theDirector, the managements were required to give not more than 21 days time tothe candidates to join the College. There Is nothing on the record to show thatthe petitioners had ever sought extension of time either from the Director orthe management of the Colleges, The petitioners had admittedly not joined theColleges. and therefore their appointments stood cancelled and they could notbe considered for appointment in any other College in view of the specificstipulation to this effect contained in the aforesaid letters. There was norequirement at all for the Director or the management of the College tointimate the candidates about cancellation of their appointments since itautomatically stood cancelled on the failure to Join the College within thestipulated time. Thus, the appointments of the petitioners stood automaticallycancelled much prior to the filing of this petition on 22nd April, 2002.

20. Equally disturbing is thefact that In the entire petition it has not been stated that petitioner No. 2Dr. Kailash Nath Gupta was already working as a Lecturer in B.Ed, in MaltariCollege, Azamgarh pursuant to the selection made by the Commission earlier onthe basis of Advertisement No. 28 and the fact that since petitioner No. 2 hadnot joined the College within the time stipulated in the letter, the Directorhad sent the communication dated 24.1.2002 to the NAS College, MeerutIntimating the name of Harendra Kumar for being given an appointment as aLecturer in B.Ed. In the petition, which was filed on 24.4.2002, it was merelymentioned that the Director was 'making' an effort to issue the placementOrder in favour of one Harendra Kumar OBC candidate' and that HarendraKumar should not be sent to NAS College, Meerut since he was specialising inHistory whereas there was no requirement for History in the College. HarendraKumar has, however, not been impleaded as a respondent in the writ petitioneven though his placement In NAS College, Meerut was sought to be challenged.

21. From the facts stated aboveit transpires that as petitioner No. 2 Dr. Kailash Nath Gupta was alreadyworking as a Lecturer in B.Ed, in Maltari College, Azamgarh, he was not interestedat all in joining the NAS College, Meerut but since petitioner No. 1 PradeepKumar Arora was desirous of joining the NAS College, Meerut he prevailed uponDr. Kailash Nath Gupta to join as a petitioner in the present petition so as tomake out a case of simple inter change of place of postings. We are persuadedto form such an opinion because of the fact that even after the passing of theinterim Order dated 24.4.2002 petitioner No. 2 Dr. Kailash Nath Gupta did notJoin the Vardhman College, Bijnor though petitioner No. 1 Pradeep Kumar Aroraimmediately joined the NAS College, Meerut. The contention of Dr. Kailash NathGupta that he was not issued a letter by the Vardhman College, Bijnor cannot beaccepted because there was an interim Order granted in his favour by this Courtand nothing has been brought on record to show that he moved anyapplication/representation before the said College for appointment or that hecomplained to this Court that the interim Order was not complied with by theVardhman College, Bijnor. Thus, it is amply clear that he had no intention ofjoining the said College. It was by this oblique method that Dr. Kailash NathGupta wanted to help petitioner No. 1 in seeking appointment in the NASCollege, Meerut and in doing so material facts were deliberately concealed fromthis Court. We are not inclined to accept the contention of the petitionersthat they had no knowledge of the letter dated 24.1.2002 sent by the Directorto the NAS College, Meerut because they have clearly stated about HarendraKumar being sent to the NAS College, Meerut and they could have gatheredinformation of this fact only through the letter dated 24.1.2002. Even in thesupplementary affidavit filed by the petitioner pursuant to the directionsissued by us on 19.1.2005 the petitioners have not explained as to on whatbasis they had stated in the petition that the Director was making an effortfor placement of Harendra Kumar at the NAS College, Meerut. Thus neither thecommunication dated 24.1,2002 sent by the Director to the NAS College, Meerutwas placed on record or sought to be quashed and nor was Harendra Kumarimpleaded as a respondent in the petition.

22. We are doubtful whether theCourt could have entertained the writ petition, much less granted interim relief,if these material facts had been brought to its notice. No interim relief atthe initial stage can be granted in the instant case, as the Hon'ble Apex Courthas consistently and persistently held that the Court of law should not pass aninterim Order which amounts to a final relief. [Vide A.P. Christians MedicalEducational Society v. Gout, of A.P. and Anr., AIR 1986 SC 1490; State of Jammuand Kashmir v. Mohd. Yakoob Khan and Ors., 1992 (4) SCC 167; U.P. JuniorDoctors' Action Committee and Ors. v. Dr. B. Shital Nandwani and Ors., 1992 Suppl (1) SCC 680; Guru Nanak Dev University v. Parminder Kr. Bansal and Anr.,AIR 1993 SC 2412; St. John's Teachers Training Institute (For Women), Madurafand Ors. v. State of Tamil Nadit and Ors., 1993 (3) SCC 595; Dr. BharatbhushanSonaji Kshirsagar v. Abdul Khalik Mohd. Musa and Ors., 1995 Suppl (2) SCC 593; Bank ofMaharashtra v. Race Shipping and Transport Co. Put. Ltd. and Anr., AIR 1995 SC1368; Commissioner/ Secretary to Government Health and Medical EducationDepartment, Civil Secretariat, Jammu v. Dr, Ashok Kumar Kohli, 1995 Suppl (4)SCC 214; Union of India v. Shree Ganesh Steel Rolling Mills Ltd. and Anr., 1996(8) SCC 347; State of Madhya Pradesh and Ors. v. M.V. Vyavsaya and Co., AIR1997 SC 993; and Central Board of Secondary Education v. P. Sunil Kumar, (1998)5 SCC 377J.

23. The logic behind this remainsthat the ill-conceived sympathy masquerades as interlocutory justice exposingthe judicial discretion to the criticism of private benevolence and the Courtshould not be guided by misplaced sympathy, but should pass interim Ordersmaking accurate assessment of even the prima facie legal position. The Courtshould not embarrass the authorities under the Statute by taking over thefunctions to be performed by them.

24. In Union of India v. Era Educational Trust and Anr., (2000) 5 SCC 57, the Hon'ble Supreme Court afterconsidering its large number of Judgments held that while passing interim Orderin exercise of writ Jurisdiction under Article 226 of the Constitution,principles laid down for granting Interim relief under Order XXXIX of Code ofCivil Procedure, 1908 should be kept in mind. It can neither be issued as amatter of right nor it should be in the form which can be granted only as finalrelief.

25. In Morgan Stanley Mutual Fundv. Kartick Das, (1994) 4 SCC 225, the Hon'ble Apex Court held that ex-parteInjunction could be granted only under exceptional circumstances. The factorswhich should weigh for grant of injunction are - (a) whether irreparable orserious mischief will ensue to the plaintiff; (b) whether the refusal ofex-parte injunction would involve greater injustice than grant of it wouldinvolve; (c) even if ex-parte injunction should be granted, it should only befor limited period of time; and (d) general principles like prima facie case,balance of convenience and irreparable loss would also be considered by theCourt.

26. In Burn Standard Co. Ltd. andOrs. v. Dinabandhu Majumdar and Anr., AIR 1995 SC 1499, the Hon'ble SupremeCourt deprecated the practice of grant of interim relief which amounts to finalrelief, observing that High Court should exercise its discretion, whilegranting interim relief, reasonably and judiciously and, if loss can berepairable or the loss can be satisfied by giving back wages etc., no interimOrder should be granted. Hon'ble Apex Court further observed as under :

'It should be granted onlyin exceptional circumstances where the damage cannot be repaired, for thereason that if no relief for continuance in service is granted and ultimatelyhis claim....is found to be acceptable, the damage can be repaired by grantinghim all those monetary benefits which he would have received and he continuedin service. We are, therefore, of the opinion that in such cases it would beimprudent to grant interim relief.'

27. Similar view has beenreiterated in Council for Indian School Certificate Examination v. Isha Mittaland Anr., (200O) 7 SCC 521.

28. In State of U.P. and Ors. v.Modem Transport Company, Ludhiana and Anr., JT (2OO2) 1 SC 425, the Hon'bleSupreme Court deprecated the practice of granting interim relief wherein theparty could be compensated at the time of disposal of the writ petition. TheHon'ble Apex Court observed as under :

'It is unfortunate that theHigh Court has given no reason whatsoever in support of its Order. It isexpected that when interim Orders are passed which, in effect, results in thewrit petition itself being allowed, the High Court must give reasons in supportthereof.'

29. In Union of India and Ors. v.Modiluft Ltd., AIR 2003 SC 2218, the Hon'ble Supreme Court while making thesimilar observations held that an interim Order passed in equity must be onewhich Is equitable to all the parties concerned and it must meet ingredients ofOrder XXXIX, Rule 1 of Code of Civil Procedure.

30. Similar view has beenreiterated in State of Haryana v. Suman Dutta, (2000) 10 SCC 311; and RegionalOfficer, CBSE v. Ku. Sheena Peethambaran and Ors., (2003) 7 SCC 719.

31. Thus, in view of theaforesaid decisions, no interim relief, which amounts to a final relief, shouldbe granted at the initial stage.

32. There can be no quarrel tothe legal proposition that no party can suffer by the action of the Court andwhen the High Court in exercising of its powers under Article 226 of theConstitution of India grants interim relief; the interest of justice requiresthat any undeserved or unfair advantage gained by a party invoking thejurisdiction of the Court must be neutralised. The institution of litigation bya party should not be permitted to confer an unfair advantage on the partyresponsible for it. [Vide Grindlays Bank Ltd. v. Income-tax Officer, Calcuttaand Ors., AIR 1980 SC '656; Ram Krishna Verma and Ors. v. State of U.P. andOrs., AIR 1992 SC 1888; State of Madhya Pradesh and Ors. v. M/s. M.V, Vyavsayaand Co., AIR 1997 SC 993; and Smt. Rampati Jaiswal and Ors. v. State of U.P.and Ors., AIR 1997 All 170].

33. No litigant can derive anybenefit from mere pendency of case in a Court of Law, as the interim Orderalways merges in the final Order to be passed in the case and if the writpetition is ultimately dismissed, the interim Order stands nullifiedautomatically. A party cannot be allowed to take any benefit of his own wrongsby getting interim Order and thereafter blame the Court. The fact that the writis found, ultimately, devoid of any merit, shows that a frivolous writ petitionhad been filed. The maxim 'Actus curiae neminem gravabit', whichmeans that the act of the Court shall prejudice no-one, becomes applicable insuch a case. In such a situation the Court is under an obligation to undo thewrong done to a party by the act of the Court. Thus, any undeserved or unfairadvantage gained by a party invoking the jurisdiction of the Court must beneutralised, as institution of litigation cannot be permitted to confer anyadvantage on a suitor from delayed action by the act of the Court. [Vide Dr.A.R. Sircar v. State of Uttar Pradesh and Ors., 1993 Suppl. (2) SCC 734; ShivShankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr., 1995 Suppl (2)SCC 726; Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpurand Ors. v. Sree Kumar Tiwary and Anr., AIR 1997 SC 3071; and GTC industriesLtd. v. Union of India and Ors., (1998) 4 SCC 376].

34.. In Kanoria Chemicals andIndustries Ltd. and Ors. v. V.P. State Electricity Board and Ors., (1997) 5 SCC772, the Hon'ble Apex Court approved and followed its earlier judgment in ShreeChamundi Mopeds Ltd. v. Church of South India Trust Association C.S.I. CinodSecretariat, Madras, (1992) 3 SCC 1, and observed as under :

'It is equally well settledthat an Order of stay granted pending disposal of a writ petition/suit or otherproceeding, comes to an end with the dismissal of the substantive proceeding andthat it is the duty of the Court in such a case to put the parties in the sameposition they would have been but for the interim Orders of the Court.'

35. The same view has been takenby the Hon'ble Supreme Court in the case of N. Mohanan v. State of Kerala andOrs., AIR 1997 SC 1896; and Blleshiuar Khan Uduog Khedut Sahkari Mandalf Ltd.and Ors. v. Union of India and Anr., AIR 1999 SC 1198, wherein it has been heldthat the appointment/continuation in service by interim Order, does not createany legal right in favour of the appointee. In State of U.P. and Ors. v. RajKaran Singh, (1998) 8 SCC 529, the Hon'ble Apex Court has categorically heldthat interim Order cannot disturb the position in law and if a person is inservice by virtue of the interim Order of the Court, he cannot agitate theissue that his continuation in service in such a condition has improved hisclaim to regularisation.

36. Similar view has been reiterated in South Eastern Coalfields Ltd. v. State of M.P. and Ors., (2003) 8SCC 648; and Karnataka Rare Earth and Anr. v. Senior Geologist, Department ofMines and Geology and Anr., (20O4) 2 SCC 783.

37. This petition is also liableto be dismissed on the ground of non-impleadment of the necessary party,namely, Harendra Kumar in view of the decisions of the Supreme Court [VidePrabodh Verma and Ors. v. State of V.P. and Ors., AIR 1985 SC 167; IshujarSingh Ajay Kumar and Ors. v. Kuldip Singh and Ors., 1995 (Suppl) 1 SCC 179;Bhagujanti and Ors. v. Subordinate Seruices Selection Board, Haryana and Anr.,1995 (Suppl) 2 SCC 663; Central Bank of India v. S. Satyam and Ors., (1996) 5SCC 419 ; J. Jose Dhanapaul v. S. Thomas and Ors., (1996) 3 SCC 587; ArunTiwari and Ors. v. Zila Mansavi Shikshak Sangh and Ors., AIR 1998 SC 331; AzharHasan and Ors. v. District Judge, Saharanpur and Ors., (1998) 3 SCC 246 ; RamSwamp and Ors. v. S.N. Matra and Ors., (1999) 1 SCC 738; L. ChandrakishoreSingh v. State of Manipur and Ors., (1999) 8 SCC 287; Mohd. Riazul Usman Ganiand Ors. v. District and Sessions Judge, Nagpur and Ors., (2000) 2 SCC 606 ;Nirmala Anand v. Advent Corporation (P) Ltd. and Ors., (2002) 5 SCC 481 ; M.P.Rajya Sahkari Bank Mary adit v. Indian Coffee Workers' Co-operative SocietyLtd. and Ors., (2OO2) 9 SCC 2O4; and Ramrao and Ors. v. All India BackwardClass Bank Employees' Welfare Association and Ors., (2004) 2 SCC 76).

38. This apart, what has also tobe examined in this petition is whether in law it permissible for two suchcandidates whose names have been recommended by the Director for appointment intwo different Colleges to move an application for inter changing theirplacement of postings. This issue has to be examined in the light of theprovisions contained in the Act, the Rules and the Regulations.

39. As stated above, under Section13 (3) of the Act, the Director having due regard to the manner prescribed inthe Rules and the Regulations and the Order of preference Indicated by thecandidates has to intimate the management the name of a candidate for beingappointed. It Is in keeping with the said provision that the Director hadIntimated the Committee of Managements of the two Colleges the names of PradeepKumar Arora and Dr. Kallash Nath Gupta for being appointed as Lecturers inB.Ed. The requirements of the Colleges and the merit of the candidates havenecessarily to be taken into consideration. In the counter affidavit filed bythe Director it has clearly been stated that whereas the requirement in NASCollege, Meerut was for a Lecturer in B.Ed, specialising in Mathematics the requirementat Vardhman College, Bijnor was for a Lecturer in B.Ed, specialising inCommerce. Petitioner No. 1 Pradeep Kumar Arora had to his credit specialisationin Commerce while Dr. Kailash Nath Gupta had to his credit specialisation inMathematics. Thus these two petitioners on their own could not have agreed forinter changing their place of postings. It is for the Director under Section 13(3) of the Act to place a particular person to a particular College looking tothe preference indicated by the person concerned, his merit determined by theCommission and the requirement of the particular College. This being theposition, we are of the considered opinion that the petitioners could not havebeen permitted to inter change their place of postings merely because they hadno objection or the respective Colleges had no objection.

40. In the case of Km. RaginiSrivastava v. State of UP., 1997 (1) ESC 649 a Division Bench of this Courtconsisting of one of us (Dr. B.S. Chauhan, J.) considered the question whethera candidate, whose name had been intimated by the Director to the management ofa College and who was consequently issued a letter of appointment by themanagement could prefer not to join the College and then claim appointment tosome other College. The Court held that such a course cannot be adopted by thecandidate. The relevant portions of paragraphs 6 and 7 of the aforesaidjudgment are quoted below :

'6. The list sent by himCommission remains valid till the receipt of a new list from the Commission,under Sub-section (2) of Section 13. This is intended to meet the situationwhere a selected candidate does not Join the post for any reason and also tomeet a contingency specified in Sub-section (4) of Section 13. The process ofselection and appointment comes to an end after a candidate has been selectedin accordance with the provisions of the Act, and his name has been intimatedto the management of a College by the Director, and he has been issuedappointment letter, pursuant to such intimation. This process also getsexhausted if after a candidate is selected and his name is intimated by theDirector having due regard to the Order of preference intimated by himfore-stalls his appointment by the management by pleading that it is notpossible for him to join the College. Once the appointment process is complete,there remains no occasion for him to say that on account of his personalproblems he should be appointed to a vacancy for which selection processcontemplated under the Act was not gone through.

7. We are further of the viewthat where Sub-section (4) of Section 13 applies to any vacancy, nomination isto be made by the Director of Education from amongst the candidates whose nameshave not already been intimated to the management of any College and not fromamongst those whose names have already been intimated to the management of anyCollege having due regard to preference indicated by them. The reason is thatthe appointment process comes to a close after selection process contemplatedin the Act has been gone through and appointment letter has been issued by theconcerned College pursuant to the recommendation of the Director of Educationor whereafter the intimation has been sent by the Director under Section 13 (3)the candidate frustrates the issue of appointment letter by saying that it isnot possible for him to join the College. Any other view would cause the wholescheme unworkable throwing the cause of higher education is disarry. If acandidate who having been selected and appointed is to be allowed not to jointhe post to which he was appointed in accordance with the provisions of the Actto permit him to wait for a vacancy in the College of his choice to arise, thatwould amount to total disregard to the interest of the College and the studentsand the cause of higher education to serve only personal interest of anindividual.'

41. The proposition of law laiddown in the aforesaid decision would apply with equal force in the instant caseeven though petitioners have claimed appointments in Colleges to the postswhich have been advertised. In the instant case the petitioners have not comeout with the case that the Committee of Managements of the respective Collegesdid not issue them letters of appointment but what they contend is that theplaces of posting should be inter changed. Thus also no relief can be grantedto the petitioners.

42. The matter can be examinedfrom another angle namely, whether it is permissible for teachers to seekmutual transfer once they had been appointed in particular Colleges. There isno provision in the Act, which permits mutual transfers, and this question wasalso specifically considered by a Full Bench of this Court in Ajay Kumar v,Director of Higher Education of U.P., Allahabad and Ors., (1997) 1 UPLBEC 337.The Full Bench after an elaborate discussion of the provisions of the Actdisagreed with the view earlier taken by the Division Bench of this Court inthe case of Dr. Suman Agarwal v. U.P. Higher Education Service Commission,Allahabad and Ors., 1995 (3) ESC 298, and held that neither the Commission northe Director has any power to transfer a teacher from one Degree College toanother. Relevant paragraph Nos. 8 and 10 of the Full Bench decision are quotedbelow :

'8. Analysis of theprovisions of the Act, clearly indicates that power of the Commission is merelyto select the most suitable candidates for appointment in vacancies intimatedto it under Section 12 and to send to the Director a list containing the namesof the selected candidates arranged in Order of merit. After the Commission hassent the list containing the names .of the selected candidates, its function isover. It does not have any power express or implied to appoint a teacher in aCollege or to transfer him from one College to another. Even Section 11, whichhas defined the powers and duties of the Commission does not contain any suchpower. The incidental power referred to In Section 11 (h) is the power which isincidental or conducive to the powers/functions mentioned in other clauses ofthe said Section. It neither expressly nor by necessary implication confers anypower on the Commission to appoint a teacher in a College or to transfer himfrom one College to another. After the selected candidate is appointed in aCollege by its management he becomes employee of the College. The law does notgive any power to the Commission or even to the director to Interfere with theworking of the teacher so appointed.

10. Even the Director does nothave any power to transfer a teacher from one College to another. The Directorhas very limited powers, functions under . the Commission Act. Sub-Section (3)of Section 12 requires the Director to notify to the Commission subjectwiseconsolidated list of vacancies intimated to him under Sub-section (2) ofSection 12. After the Director receives the list containing the names of theselected candidates from the Commission he has to intimate the names theselected candidates to the management of the Colleges for appointment in thevacancies intimated under Sub-section (2) of Section 12, It is the management,which appoints the teacher, whose name is intimated by the Director. TheDirector himself cannot appoint a teacher. If a candidate, whose name isintimated by the Director to the management is not appointed, the Director cantake appropriate action against such management under Section 15.'

43. In this connection it mayalso be noticed that there are a large number of Intermediate Colleges in theState which are governed by the provisions of the U.P. Intermediate EducationAct, 1921 and the Regulations framed thereunder and the U.P. SecondaryEducation Service Commission and Selection Boards Act, 1982. This Act of 1982also contains provisions regarding intimation of the vacancies by the Collegefor selection of suitable candidates, sending of the name of the selectedcandidates by the Commission to the appropriate authority and the appointmentsof the selected candidates by the management of the College. The Supreme Courtin the case of Om Prakash Rana v. Swamp Singh Tomar and Ors.. AIR 1986 SC 1672,held that after the enactment of the Secondary Service Commission Act, 1982 ateacher of an Intermediate College cannot be transferred from one College toanother in spite of the specific provision of transfer contained in theIntermediate Education Act and the Regulations framed thereunder and therelevant portion of the judgment is quoted below :

'The scheme under theEducation Act envisages the appointment of a Principal In relation to aspecific College. The appointment is in relation to that College and to noother. Moreover, different Colleges may be owned by different bodies ororganisations so that each Principal serves a different employer. Therefore, onfilling the office of a Principal to a College a new contract of employmentwith a particular employer comes into existence. There is no State-levelservice to which the Principals are appointed. Had that been so, it would havebeen possible to say that when a Principal is transferred from one College to anotherno fresh appointment is involved. But when a Principal is appointed in respectof a particular College and is thereafter transferred as a Principal of anotherCollege it can hardly be doubted that a new appointment comes into existence.Although the process of transfer may be governed by considerations and movethrough a machinery different from the considerations governing the appointmentof a person ab initio as Principal, the nature of the transaction is the same,namely, that of appointment, and that is so whether the appointment be throughdirect recruitment through promotion from the teaching staff of the sameinstitution or by transfer from another institution.'

44. The Act involved in thepresent petition contains identical provisions and, therefore, the decision ofthe Supreme Court in the case of Om Prakash Rana (supra), applies to teachersof Degree Colleges also. The U.P. Secondary Education Service Commission andSelection Boards Act, has since been amended and under the proviso to Section 16a teacher can now be transferred from one institution to another in accordancewith the provisions of Section 16-G. of the U.P. Intermediate Education Act,1921.

45. The most disquieting featureof this case is still to be dealt with. When a person approaches a Court ofEquity in exercise of its extraordinary jurisdiction under Article 226/227 ofthe Constitution, he should approach the Court not only with clean hands butalso with clean mind, clean heart and clean objective. [Vide Ramjas Foundationand Ors. v. Union of India and Ors., AIR 1993 SC 852; K.P. Srinivas v. R.M.Premchand and Ors., (1994) 6 SCC 620], Thus, who seeks equity must do equity.The legal maxim 'Jure Naturae Aequum Est Neminem cum Alterius DetrimentoEt Injuria Fieri Locupletiorem,' means that it is a law of nature that oneshould not be enriched by the loss or injury to another.

46. In Nooruddin v. Dr. K.L.Anand, (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under :

'.........Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court tosubvert justice.'

47. Similarly, in Ramniklal N.Bhutta and Anr. v. State of Maharashtra and Ors., AIR 1997 SC 1236, the Hon'bleApex Court observed as under :

'The power under Article 226 isdiscretionary. It will be exercised only in furtherance of justice and notmerely on the making out of a legal point....the interest of justice and publicinterest coalesce. They are very often one and the same....The Courts have toweight the public interest vis-a-vis the private interest while exercising thepower under Article 226....Indeed any of their discretionary powers.'

48. In Dr. Buddhi Kota Subbaraov. K. Parasaran and Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court hasobserved as under :

'No litigant has a right tounlimited drought on the Court time and public money in Order to get hisaffairs settled in the manner he wishes. Easy, access to justice should not bemisused as a licence to file misconceived and frivolous petitions.'

49. Similar view has beenreiterated by the Supreme Court in K.K. Modi v. K.N. Modi and Ors., (1998) 3SCC 573.

50. In Trilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898; State of Haryana v. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan and Ors. v. State of U.P. and Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amountsto abuse of the process of the Court and such litigant is not required to bedealt with lightly, as petition containing misleading and inaccurate statement,if filed, to achieve an ulterior purpose amounts to abuse of the process of theCourt.

51. In Agriculture and ProcessFood Products v. Oswal Agro Furane, AIR 1996 SC 1947, the Apex Court had takena serious objection In a case filed by suppressing the material facts and heldthat if a petitioner is guilty of suppression of very important fact and hiscase cannot be considered on merits. Thus, a litigant is bound to make'full and true disclosure of facts'. While deciding the said case,the Hon'ble Supreme Court had placed reliance upon the judgment in King v.General Commissioner, (1917) 1 KB 486, wherein It has been observed as under :

'Where an ex parte application has been made to this Court for a Rule nisior other process, if the Court comes to the conclusion that the affidavit insupport of the application was not candid and did not fairly state the facts,but stated them in such a way as to mislead the Court as to the true facts, theCourt ought, for its own protection and to prevent abuse of its process, torefuse to proceed any further with the examination of its merits....'

52. In Abdul Rahman v. PrasonyBai and Anr., 2003 AIR SCW 14; and S.J.S. Business Enterprises (P) Ltd. v.State of Bihar and Ors., (2004) 7 SCC 166, the Hon'ble Supreme Court held thatwhenever the Court comes to the conclusion that the process of the Court isbeing abused, the Court would be justified in refusing to proceed further andrefuse relief to the party. This Rule has been evolved out of need of theCourts to deter a litigant from abusing the process of the Court by deceivingit. However, the suppressed fact must be material one in the sense that, had itnot been suppressed, it would have led any fact on the merit of the case.

53. Principle enshrined inSection 35A of the Code of Civil Procedure should- be applied in such a caseas the said provisions provide for compensatory costs in respect of fake orvexatious claim or defence in addition to criminal liability in respect of sucha false claim or defence. This principle can also be made applicable in case ofsuppression of facts. In T. Arivandandam v. T.V. Satyapal and Anr., AIR 1977 SC2421, the Apex Court held that the Court should remind itself of the provisionsof Section 35A, C.P.C. and take deterrent action if it is satisfied that thelitigation was inspired by vexation motives. In such a case the lawyer alsoowes a duty not to present such a case observing as under :

'We regret the infliction ofthe ordeal upon the learned Judge of the High Court by a callous party. We morethan regret the circumstance that the party concerned has been able to prevailupon one lawyer or the other to present to the Court a case which wasdisingenuous or worse. It may be a valuable contribution to the cause ofjustice if counsel screen wholly fraudulent and frivolous litigation refusingto beguiled by dubious clients. And remembering that an advocate is an officerof justice he owes it to society hot to collaborate in shady actions.......Ajudge who succumbs to ex parte pressure in unmerited cases helps devalue thejudicial process........'

54. Not only the litigants butalso the counsel for them failed to appreciate as what duties he had towardsthe Court in filing a petition. The petition has been filed by the counselwithout, any sense of responsibility.

55. Legal maxim 'Juri ExInjuria Non Oritur' means that a right cannot arise out of wrong doing,and it becomes applicable in case like this.

56. The facts stated above alsoamply depict that the manner in which the petition has been drafted exposes thepetitioners to be prosecuted for criminal Contempt. It is a settled propositionof law that a false statement made in the Court or in the pleadings,intentionally to mislead the Court and obtain a favourable Order, amounts tocriminal contempt, as it tends to impede the administration of justice. AConstitution Bench of the Hon'ble Supreme Court in Naraindas v. Government ofMadhya Pradesh and Ors., AIR 1974 SC 1252, has held as under :

'Now there can be no doubtthat if a wrong or misleading statement is deliberately and wilfully made by aparty to a litigation with a view to obtain a favourable Order, it wouldprejudice or interfere with the due course of the judicial proceeding, and thus,amount to contempt of Court.'

57. In Advocate General, State ofBihar v. M/s. Madhya Pradesh Khair Industries and Anr., AIR 1980 SC 946, theApex Court held that every abuse of the process of the Court does notnecessarily amount to contempt of Court, but a calculated attempt to hamper thedue course of the judicial proceeding or administration of justice shalldefinitely amount to contempt of the Court, and in such a case, punishment tothe contemnor is necessary to prevent the abuse and making a mockery of thejudicial process, as it adversely affects the interest of the public in theadministration of justice. The Court further held as under :

'The public have aninterest, an abiding and a real Interest, and a vital stake in the effectiveand ordely administration of justice, because, unless justice is soadministered, there is the peril of all rights and liberties perishing. TheCourt has the duty of protecting the interest of the public in the dueadministration of justice, and so, it is entrusted with the power to commit forcontempt of Court, not in Order to protect the dignity of the Court againstinsult or injury as the expression 'contempt of Court' may seem to suggest,but, to protect and to vindicate the right of the public that the administrationof justice shall not be prevented, prejudiced, obstructed or interferedwith.'

58. In Secretary, Hailakandi BarAssociation v. State of Assam and Anr., AIR 1996 SC 1925, the Apex Court heldthat filing inaccurate documents deliberately, with a view to mislead theCourt, amounts to interference with the due course of justice by attempting toobstruct the Court from reaching a correct conclusion, and thus, amounts tocontempt of Court.

59. Similar view has beenreiterated by the Apex Court in Dhananjay Sharma v. State of Haryana and Ors.,(1995) 3 SCC 757; and Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC 14,observing that deliberate attempt to Impede the administration of justice orinterference or tending to interfere with or obstruct, or tend to obstruct theadministration of justice, in any manner, amounts to criminal contempt.

60. In Afzal and Anr. v. State ofHaryana and Ors., (1996) 7 SCC 397; and Mohan Singh v. Late Amar Singh, (1998)6 SCC 686, the Apex Court held that a false and a misleading statementdeliberately and wilfully made by a party to the proceedings to obtain afavourable Order, amounts to prejudice or interference with the due course ofjudicial proceedings, and it will amount to criminal contempt. The Courtfurther held that every party is under a legal obligation to make the truthfulstatement before the Court, for the reason that causing obstruction in the duecourse of justice 'undermines and obstructs the very flow of the unsoiledstream of justice, which has to be kept clear and pure, and no one can bepermitted to take liberties with it by soiling its purity.'

61. Similar view has beenreiterated in Delhi Development Authority v. Skipper Construction and Anr.,(1995) 3 SCC 507; and Superintendent of Central Excise and Ors. v. SomabhaiRanchhodbhai Patel, (2001) 5 SCC 65.

62. The Hon'ble Apex Court in Re:Sanjiv Datta, (1995) 3 SCC 619, observed as under :

''Some members ofthe profession have been adopting perceptibly casual approach to the practiceof the profession, as is evident from their absence when the matters are calledout, the filing of incomplete and inaccurate pleadings, many times evenillegible and without personal check and verification, the nonpayment of Courtfees and process fees, the failure to remove office objections, the failure totake steps to serve the parties, yet al. They do not realise the seriousness ofthese acts and omissions. They not only amount to the contempt of the Court butdo positive dis-service to the litigants and create embarrassing situation inthe Court leading to avoidable unpleasantness and delay in the disposal ofmatters. This augurs ill for the health of our judicial system,'

63. In view of the above, we areof the view that the petition has been filed with very vague/inaccuratepleadings, and the petitioners not only filed it to mislead the Court but theyalso succeeded in their mission and obtained the desired relief, though it didnot even warrant. Moreso, the petitioner No. 2 even did not join Vardhman College,Bijnor in pursuance of the interim Order, obviously, playing fraud upon theCourt.

64. The present petition is, therefore, liable to be dismissed on theground of deliberate concealment of material facts.

65. We are also not inclined toaccept the submissions made on behalf of the learned Senior Counsel appearingfor the petitioners that since in the past the Director had permitted thecandidates to inter change the place of posting, the Director should havepassed the Order in their case also. In the first instance, the petitionershave failed to point out any specific instance when the Director permitted suchinter change and secondly this contention was also considered and repelled bythis Court in the case of Km. Ragini Srivastava (supra) and it was held asfollows :

'The fact that in the pastrecommendations were made by the Director for the vacancies which were notnotified and for which stipulated selection process had not been gone throughwould not form the ground for our holding that the others who did not get thebenefit of illegal Orders should be extended similar benefits: Article 14 ofthe Constitution cannot be extended to legalise the illegal Orders thoughothers had wrongly got the benefit of such Order. In this view we find supportfrom Harped Kaur Chahal v. Director, Punjab Instructions, 199S Supp. (4) SCC706. So, neither petitioner is entitled to relief.'

66. Even if in the past, such aninter-change had been permitted by the Director of Higher Education, it wouldnot create a right in favour of the petitioners as Article 14 of theConstitution does not envisage a negative equality.

67. Article 14 is not meant toperpetuate an illegality. Therefore, we are not bound to repeat the wrongaction done by us earlier. This view stands fortified by the judgments of theHon'ble Apex Court e.g., Snehprabha v. State of U.P. and'; others, AIR 1996SC 540; Secretary, Jaipur Development Authority, Jaipur v. Dautot Mal Jain andOrs., (1997) 1 SCC 35; State of Haryana and Ors. v. Ram Kumar Mann, (1997) 3SCC 321; and Faridabad C.T. Scan Centre v. D.G. Health Services and Ors.,(1997) 7 SCC 752.

68. In Finance Commissioner(Revenue) v. Gulab Chandra and Anr., 2001 AIR SCW 4774, the Hon'ble Apex Courtrejected the contention that as other similarly situated persons had beenretained in . service, the petitioner could not have been discharged during theperiod of probation observing that if no action has been taken in a similarsituation against similarly situated persons, it did not confer any legal rightupon the petitioner therein.

69. In Jalandhar improvementTrust v. Sampuran Singh, AIR 1999 SC 1347; and Union of India and Ors. v.Rakesh Kumar, 2001 AIR SCW 1458, the Hon'ble Supreme Court held that Courtscannot issue a direction that the same mistake be perpetuated on the ground ofdiscrimination or hardship.

70. Any action/Order contrary tolaw does not confer any right upon any person for similar treatment. [VideState of Punjab and Ors. v. Dr. Rajeev Sarwal. (1999) 9 SCC 240; Yogesh Kumarand Ors. v . Government of NCT Delhi and Ors.. (2O03) 3 SCC 548; and Union ofIndia and Anr. v. International Trading Company and Anr., (2OO3) 5 SCC 437;M/s. Anand Button Ltd, v. State of Haryana and Ors., 2O05 AIR SCW 67].

71. Even otherwise, Article 14provides only for positive equality and not negative equality. Article 14 doesnot provide for passing wrong Order, if it had been committed by an authority.Moreso, this doctrine does not apply to the Court. Even if, we have passed awrong Order, we have a right to rectify our mistake, but no litigant has aright to blackmail the Court and therefore, the Court is not bound to passwrong Order again and again.

72. In view of the aforesaiddiscussion, we reach the following inescapable conclusions :

(I) The petitioners haddeliberately concealed material facts from this Court inasmuch as they did notbring on record the letters issued by the Managements of the two Colleges forappointment pursuant to the intimation sent by the Director under Section 13(3) of the Act and the fact that Dr. Kailash Nath Gupta was already working asa Lecturer in the Maltari College, Azamgarh. In terms of the letter sent by theDirector, since the petitioners had failed to join the respective colleges,their appointments stood automatically cancelled and thus there could be nooccasion for them to claim any relief whatsoever. The fact of cancellation oftheir placement was concealed.

(II) Petitioner No. 2 who wasalready working at Maltari College, Azamgarh had no intention of joining theVardhman College, Bijnor since even after obtaining the interim Order from thisCourt, which permitted him to join the said College, he made no efforts to Joinand, therefore, it is clear that the petitioners had played fraud upon thisCourt by making out a simple case of inter change of the Colleges whereas infact it was not so and petitioner No. 2 by this oblique method wanted to helppetitioner No. 1, as he Is still working in Azamgarh College.

(III) Petitioners purposely andknowingly did not disclose that by virtue of their posting, the purpose offilling up the vacancy in a particular subject would stand frustrated, and thisway where there was a requirement of a Maths Teacher, a Commerce Teacher hasbeen appointed.

(IV) The petitioners have notimpleaded Harendra Kumar who was a necessary party since his appointment wassought to be quashed- Neither the letter dated 24.1.2002 sent by the Directorwas annexed to the writ petition nor any relief was claimed to quash the same.

(V) Even otherwise such an inter change is not possible under the provisions of the Act.

(IV) The contention of thepetitioners that such an inter change should be permitted since the Director inthe past had granted permission cannot be accepted since the petitioners havenot pointed out a single instance when the Director granted permission. Such acontention cannot be accepted for want of any provision in the Statutepermitting such a interchange.

73. There is, therefore, no meritin any of the contentions raised by the learned Senior Counsel for thepetitioners and the petition is liable to be dismissed. As the appointment ofthe petitioner No. 1 stood cancelled by operation of law, he cannot claim theplacement in any other College. We also consider it appropriate to impose thecost upon each of the petitioners to the extent of Rs. 10,000/- (Rupees ten.thousand only). The said amount shall be realised by the Collectors of therespective Districts as arrears of land revenue within a period of four weeksfrom the date of filing a certified copy of this Order before him. The costrealised shall be transmitted to the Legal Services Committee, Allahabad HighCourt, Allahabad.

74. The copies of the Judgmentmay be sent to respective District Collectors of District Meerut as well asAzamgarh, to make the recovery from the petitioners of the aforesaid amount,

75. The writ petition isaccordingly dismissed and the interim Order dated 24th April, 2002 is vacated.

76. The petitioners haddeliberately concealed material facts from the Court and succeeded in gettingthe interim relief. We are of the opinion that if correct facts had beenbrought to the notice of the Court, the petition itself could not have beenentertained, much less the grant of any interim Order in their favour. It is,therefore, a fit case, where the fact-situation demands initiation ofproceedings for criminal contempt.

77. The criminal contempt can bedealt with only by the Bench presided over by the Hon'ble Chief Justice or aBench nominated by His Lordship [Vide Prof. Y.C. Simhadri and Ors. v. DeenBandhu Pathak. (2001) 4 ESC 1515]. Today, this Bench has the jurisdiction todeal with the criminal contempt and contempt appeal. We initiate theproceedings for committing criminal contempt of this Court and for thatpurpose, we frame the following charges:

That you, Pradeep Kumar Arora andDr. Kailash Nath Gupta filed the writ petition giving an impression that therewas no requirement of any specialisation in a particular subject while makingthe appointment in Education Department; you concealed, knowingly andpurposely, the fact that none of you had joined in the College of yourplacement by the Director of Higher Education nor you have stated that you hadapproached the Committee of Management of the respective institutions where youhad been given the placement by the Director of Higher Education and theCommittee of Management did not issue the appointment letters; you did notdisclose that your appointment itself came to an end by operation of law aswell as in terms of your placement Order as you failed to join the respectiveCollege of your placement within the stipulated period; and by suppressingthese facts, you succeeded in obtaining interim Order; though petitioner No, 1joined but petitioner No. 2 did not join at the College in Bijnor in view ofthe interim Order of this Court dated 24.4.2002, thus, played fraud upon theCourt in Order to get the placement of petitioner No. 1 in NAS College, Meerutas the petitioner No. 2 is still working in Azamgarh.

78. We are of the view that your conduct amounts to criminal contempt. Thus, you are directed to show cause asto why you should not be punished for committing the criminal contempt in viewof the provisions of Article 215 of the Constitution of India read with theprovisions of Section 15 of the Contempt of Courts Act, 1971, within a periodof three weeks from today.

List the matter on 25th February, 2005 and on that date, both petitioners are directed to remain present in theCourt.