IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 08 of 2010. Reserved on 14.09.2010. Decided on: 27.09.2010. _____________________________________________________ Anand Vardhan Sharma. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. K.D. Shreedhar, Advocate. For respondent No. 1. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No. 3. : Mr. M.R. Verma, Advocate. None for respondent No. 2. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: The petitioner was appointed as Overseer (re- designated as Junior Engineer), Mechanical, on 20.09.1968. He was promoted to the post of Assistant Engineer (Mechanical) on adhoc basis vide notification dated 24.11.1972 w.e.f. 15.09.1970. He was regularly promoted as Assistant Engineer (Mechanical) on 30.01.1975. The final seniority list of Assistant Engineers (Mechanical) was issued vide office order dated 23.12.1978. Petitioner was ranked at Sr. No. 8 in the seniority list. The respondents No. 2 and 3 were ranked at Sr. Nos. 4 and 6, respectively. Petitioner approached this Court by filing C.W.P. No. 37 of 1979. The Division Bench of this Court dismissed the same 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. on 23.04.1979. In the meantime, the respondent No. 2 was promoted to the post of Executive Engineer on 26.07.1979. One Shri Karam Singh Verma approached this Court by way of C.W.P. No. 264 of 1979, however, the same was transferred to the erstwhile learned Himachal Pradesh Administrative Tribunal and was assigned T.A. No. 328 of 1986. The same was allowed on 28th December, 1989. Two S.L.Ps.(C) bearing S.L.P. ( C) No. 1201 of 1990 and S.L.P. (C ) No. 5728 of 1990 were preferred against the judgment of the Tribunal in T.A. No. 328 of 1986. The appeals were partly allowed. The petitioner made a representation after the judgment of the Tribunal in T.A. No. 328 of 1986 on 15.11.1990. The same was rejected on 06.11.1991. The petitioner approached the erstwhile Himachal Pradesh Administrative Tribunal by way of present petition. He has sought the quashing of Annexure A-3, dated 23.12.1978 with a further direction to re-draw the seniority list and to give the benefit of ad hoc service to him from 15.09.1970 to 31.01.1975. This O.A. was allowed by the learned Tribunal on 16.04.1999. Thereafter, a review petition bearing C. Review (T) No. 04 of 2008 was filed seeking review of judgment dated 16.04.1999. The same was allowed by a Division Bench of this Court on 05.08.2010. The judgment dated 16.04.1999, rendered in O.A. No. 50 of 1991 was recalled. The respondent No. 3 has filed C.M.P. (T) No. 416 of 2010 for placing on record the copy of judgment dated 23rd April, 1979, rendered in C.W.P. No. 37 of 1979 and the copy of the judgment dated 12.05.1992, rendered in O.A. No. 39 of 1991, filed by one Shri Teja Singh. 2. Mr. K.D. Shreedhar, learned counsel for the petitioner has strenuously argued that his client is entitled for counting of adhoc period followed by regularization w.e.f. 15.09.1970 to 31.01.1975 for all intents and purposes. He then contended that the seniority list issued by the respondent-department on 23.12.1978 is liable to be quashed and set aside, with a further direction to the respondent-State to rank the petitioner senior to respondents No. 2 and 3. 3. Mr. P.M. Negi, learned Deputy Advocate General and Mr. M.R. Verma, Advocate have vehemently argued that the petitioner has concealed the material facts from this Court by not disclosing that he had earlier approached this Court by filing C.W.P. No. 37 of 1979, which stood dismissed on 23.04.1979. They also contended that the present petition is barred by delay and laches since the impugned seniority list was issued on 23.12.1978 and at this belated stage, the same can not be quashed and set aside affecting the established rights of respondents No. 2 and 3 towards seniority. They lastly contended that the judgment rendered in the case of Karam Singh Verma on 28.12.1989 was in personam and not in rem. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner has been promoted to the post of Assistant Engineer (Mechanical) on adhoc basis w.e.f. 15.09.1970 vide notification dated 24.11.1972. He had approached this Court by way of C.W.P. 37 of 1979 for counting of adhoc service rendered by him w.e.f. 15.09.1970 to 31.01.1975. A Division Bench of this Court has dismissed the same on 23.04.1979. The operative portion of the judgment reads thus: “If such ad hoc appointments are made, it would mean that technically the post in question is still vacant for the person who is found eligible to occupy the quota post. An ad hocist has got no right either of seniority or otherwise on the post on which his ad hoc appointment is made and his right to that post begins or comes into existence only from the date on which his services are regularized. Under the circumstances, it is not open to him to claim the benefit of the services on the post on which he has served merely as an ad hocist. Under the circumstances, the decision by the Supreme Court in N.K. Chauhan’s case has no application to the facts of the present case. For this reason, we see no point in this writ application which is dismissed without any order as to costs.” 6. Similarly situate person, Shri Teja Singh has also filed an O.A. No. 39 of 1991 before the erstwhile learned Himachal Pradesh Administrative Tribunal. The same was dismissed by the learned Tribunal on 12.05.1992 by observing that settled things cannot be unsettled and moreover, this Court in C.W.P. No. 37 of 1979 has not accepted the plea of counting the adhoc service towards seniority. Now, as far as the petitioner is concerned, the issue has been finally decided by a Division Bench of this Court in C.W.P. No. 37 of 1979. He has not assailed the judgment before the Hon’ble Supreme Court. This Court has categorically held that the petitioner was not entitled to get his adhoc period counted for the purpose of seniority w.e.f. 15.09.1970 to 31.01.1975. The petitioner has concealed the material facts from this Court by not disclosing that he had earlier filed C.W.P. No. 37 of 1979 in this Court based on same and similar facts, which was dismissed on 23.04.1979. Petitioner cannot be permitted to choose his facts. A person must approach the Court with clean hands. It is only when the C.M.P.(T) No. 416 of 2010 was filed by respondent No. 3, as noticed above, the Court came to know that earlier C.W.P. No. 37 of 1979 stood rejected on 23.04.1979. Similarly situate person’s petition bearing O.A. No. 39 of 1991 also stood dismissed on 12.05.1992. The petitioner was not a party in T.A. No. 328 of 1986. The judgment rendered by the learned Tribunal in T.A. No. 328 of 1986 on 28th December, 1989 was in personam. The respondent-State has only altered the seniority position of Shri Karam Singh Verma. The judgment rendered in K.S. Verma’s case, against which the S.L.P. was also preferred, was not applicable to petitioner. The respondent-department has also issued the final seniority list of Assistant Engineers (Mechanical) on 23rd December, 1978. Petitioner ranks below respondents No. 2 and 3 in this seniority list also. The appointment of the petitioner on regular promotion has been made on 30.01.1975 and respondents No. 2 and 3 were appointed as Assistant Engineer by way of direct recruitment on 19.01.1971 and 14.01.1971, respectively. The learned Tribunal has allowed the present petition on 16.04.1999, as noticed above, however, the same was reviewed by this Court on 05.08.2010. Petitioner has assailed the seniority list dated 23.12.1978 by way of present petition on 07.01.1991. The petition is barred by delay and laches. It is settled law by now that the seniority and promotion orders should be challenged within a reasonable period of six months to one year. However, in the instant case, the petitioner has already filed a writ petition which was dismissed by this Court on 28.12.1989. Thereafter, the petitioner has again tried to rake up the issue, which has been given quietus by this Court on 23rd April, 1979. 7. In the instant case, the petitioner has concealed the material facts. He ought to have disclosed that he had earlier approached this Court asking for similar relief based on same and similar facts, which has been denied. In these circumstances, the present petition is not maintainable. 8. Their lordships of the Hon’ble Supreme Court in Prestige Lights Ltd. Versus State Bank of India (2007) 8 Supreme Court Cases 449 have held that it is of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation and if there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. Their lordships have held as under: “29. There is still one more reason why the appellant-Company should be denied equitable relief under Article 136 of the Constitution. According the respondent-Bank, the appellant has not come with clean hands before the Bank. It has suppressed and concealed material facts from the Court. 33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: "(I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts-facts, not law. He must not misstate the law if he can help it-the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement". (emphasis supplied) 35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 36. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent-Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third party's interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third party's right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our judgment, the submission of the respondent-Bank is well-founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant- Company.” 9. In Udyami Evam Khadi Gramodyog Welfare Sanstha and another Versus State of Uttar Pradesh and others (2008) 1 Supreme Court Cases 560 their lordships of the Hon’ble Supreme Court have deprecated the practice of filing repeated writ petitions and have termed this practice as abuse of process. Their Lordships have further held that a person approaching a superior court must come with a pair of clean hands. He should not suppress the material facts and should also not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. Their lordships have gone to the extent of holding that repeated filing of writ petitions amounts to criminal contempt. Their lordships have held as under: 10. Although the prayers made in the four writ applications are apparently different, having gone through the writ applications, it became evident that the core issue in each of the matter centers round recovery of the amount advanced to the appellants by the bank. Evidently, orders passed in different stages of the proceedings as also new proceedings based upon fresh calculation on interest on the principal sum had been in question from time to time. As indicated hereinbefore, even a public interest litigation was filed wherein also Appellant No. 2 was a party. Maybe that validity of Section 35A of the U.P. Khadi and Village Industries Board Act, 1960 was one of the issues raised therein but even the recovery proceeding was the subject matter thereof. 16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M/s. Madhya Pradesh Khair Industries and Another [(1980) 3 SCC 311], this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt. 10. The issues raised in this petition are directly and substantially the same which had earlier been heard and finally decided by this Court in C.W.P. No. 37 of 1979. Consequently, this petition is barred by res judicata. 11. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge September 27, 2010. (bhupender)