While restoring a writ appeal pertaining to an employment matter to a Single Bench, the Allahabad High Court has reiterated that a judicial finding cannot be permitted to stand once the factual foundation on which it rests is shown to be incorrect, particularly where that foundation was never independently verified in the first place.

The High Court was considering an appeal preferred by the appellant under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952, interdicting the order passed by the Single Judge of the High Court.

The Bench comprising Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary held, “We need not mention the long list of precedents, wherein it is a settled proposition that a judicial finding cannot be permitted to stand once the factual foundation on which it rests is shown to be incorrect, particularly where that foundation was never independently verified in the first place. The Hon’ble Supreme Court has consistently held that an adjudication induced by an incorrect or unverified representation cannot be equated with one rendered on tested material, and that the sanctity of judicial findings depends upon their being anchored to the record rather than to assertions taken on trust. In the aforesaid compelling facts, we are of the considered view, that a finding resting on a foundation now shown to be erroneous cannot be allowed to conclude the rights of the parties, and the least that fairness demands is that the matter be re-examined on verified material.”

Advocate Abhineet Jaiswal represented the Petitioner while Chief Standing Counsel represented the Respondent.

Factual Background

The appellant, Ashok Kumar, was initially appointed to the post of ‘Assistant Engineer’ in the Department of Town and Country Planning, Government of Uttar Pradesh. Subsequently, vide an order issued by the Additional Chief Secretary/Principal Secretary, Department of Housing and Urban Planning, Government of Uttar Pradesh (second respondent), the appellant was promoted to the post of ‘Executive Engineer’. Consequently, by an Office Memorandum issued by the Secretary, Department of Housing and Urban Planning, Government of Uttar Pradesh (third respondent), the appellant was reverted to the post of Assistant Engineer. Thereafter, the appellant was again considered and was promoted to the post of ‘Executive Engineer’ in the normal course (without any claim of reservation benefit).

The appellant claimed to have completed the Associateship Examination conducted by the Town Planning Examination Board of the Institute of Town Planners, India. In the combined seniority list prepared for the promotion to the post of Senior Planner, the name of the appellant appeared at Serial No. 3. The officers at Serial Nos. 1 and 2 had superannuated, and the name of one Krishna Mohan (fourth respondent), appeared at Serial No. 10 of the said list. A Departmental Promotion Committee (DPC) was convened for considering eligible candidates for promotion to the post of Senior Planner (earmarked for a reserved category candidate). The appellant’s candidature was not recommended on the ground that he did not possess the academic qualification prescribed under the 1987 Rules.

By an order issued by the Special Secretary, Department of Housing and Urban Planning, Government of Uttar Pradesh, officiating charge of the post of Chief Town and Country Planner was entrusted to the fourth respondent (who was substantively holding the post of Architect Planner). Aggrieved by this order, the appellant preferred an appeal before the High Court, seeking quashing of the said order, along with a direction to consider the appellant for officiating charge of the post of Chief Town and Country Planner strictly on the basis of merit and seniority. This appeal came to be dismissed.

Reasoning

The Bench, at the outset, explained that a writ petition may, in an appropriate case, be decided without calling for a counter-affidavit where the questions involved are purely legal and the facts necessary for their determination are either admitted or apparent from the record. “However, where the resolution of the controversy turns upon disputed or unverified facts, particularly facts going to the eligibility of a third party whose interest is directly affected by the decision, the Court ought ordinarily to have the benefit of a counter-affidavit before recording a finding of fact adverse to a party who has had no opportunity to place his version on record”, it added.

The Bench noted that the entitlement of the fourth Respondent to hold officiating charge of the post of Chief Town and Country Planner was made to turn, in the impugned judgment, upon a finding that he possessed the qualification prescribed in Appendix 'B' of the 1987 Rules. This finding was recorded on the basis of a submission made across the Bar and not upon any affidavit or document placed on record.

The Bench also noticed that the aspect pertaining to the ineligibility of the fourth Respondent on the same parameters on which the appellant was found to be ineligible was neither argued nor was the same considered by the Single Judge, wherein neither any counter was called for, nor an opportunity was granted to the appellant to repel the said submission of the Additional Advocate General. “This according to our view, offends the elementary requirement that no person (nor a party's substantive case) should be condemned or defeated on a factual finding without being heard on the material said to support it. In the aforesaid circumstances, where such a breach has occasioned real prejudice, as it manifestly has here, given that the very fact finding is now shown to be wrong, the resultant order cannot be sustained and the matter must be sent back for the material to be properly placed, tested and adjudicated in accordance with law”, it added.

Thus, allowing the Special Appeal in part, the Bench restored the Writ Appeal to its original number, to the limited extent of the prayers challenging the order issued by the Special Secretary and seeking consideration of the appellant for officiating charge on the file of the Single Judge for fresh consideration.

Cause Title: Ashok Kumar v. State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Housing And Urban Planing Lko. (Neutral Citation: 2026:AHC-LKO:77650-DB)

Appearance

Appellant: Advocates Abhineet Jaiswal, Harsh Vardhan Mehrotra

Respondent: Chief Standing Counsel, Advocates Aditya Kumar Tiwari, Akriti Agarwal, Anoop Kumar, Apoorva Tewari, Sangini Jha, Shobhit Mohan Shukla, Vijai Kumar Shukla

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