Allahabad High Court
Ram Swaroop Sharma vs State Of U.P. And Others on 2 March, 2000
Equivalent citations: 2000(2)AWC1536
Author: Ratnakar Dash
Bench: Ratnakar Dash
JUDGMENT D.S. Sinha, J.
1. Heard Sri S. K. Chaturvedi, the learned counsel appearing for the appellant. Sri Rajendra Rai, the learned counsel appearing for the respondent No. 4 and Sri Vinay Malviya, the learned standing counsel of the State of U. P., representing the respondent Nos. 1, 2 and 3, at length and in detail.
2. The appellant filed Civil Misc. Writ Petition No. 35414 of 1996. Rom Swarup Sharma v. State of U. P. and others, urging the Court to direct the respondents not to interfere with his functioning on the post of Principal of Uchattar Madhyamik Vidyalaya, Kargawan, district Jhansi. He also prayed in the writ petition that the selection and appointment of Sri Kamlesh Kumar Niranjan, the respondent No. 4, on the post of Principal of the institution be quashed.
3. The appellant was functioning on the post of Principal on ad hoc basis pending regular selection. Sri Kamlesh Kumar Niranjan is duly selected candidate for appointment on the post of Principal of the institution which had fallen vacant consequent upon the retirement of the permanent incumbent on June 30, 1992.
4. While entertaining the petition, a learned single Judge passed an ad interim order dated November 5, 1996 which runs as under:
"Learned counsel for the respondent Nos. 1 to 3 may file counter-affidavit within three weeks. Petitioner is directed to serve respondent Nos. 4 and 5 personally and they may file their counter-affidavit within two weeks thereafter. List in the week commencing December 9, 1996.
Since the validity of U. P. Secondary Education Service Commission Act and vires of Rule 12 (3) has been referred by me to a larger Bench, I direct that the petitioner shall be permitted to continue as ad hoc Principal of the institution in question provided the person selected by the Commission has not joined."
5. On the strength of the aforesaid ad interim order of the Court, the petitioner continued to function as Principal of the Institution and Sri Kamlesh Kumar Niranjan, the respondent No. 4, was prevented from joining the post of Principal notwithstanding his selection made in accordance with law.
6. On February 11, 1999, the Joint Director of Education, Jhansi Division, Jhansi, passed an order No. 478/98-99 dated February 11, 1999, a copy whereof is Annexure-2 to the affidavit of Sri Ram Swarup Sharma, the petitioner-appellant, filed in support of the stay application moved in this appeal, regularizing the ad hoc appointment of the petitioner on the post of Principal.
7. Armed with the above order dated February 11. 1999, the petitioner, through his counsel, intimated the Court that he did not want to prosecute the writ petition and the same might be dismissed. Thus, the other learned single Judge who was seized of the case dismissed the petition vide order dated February 8, 2000.
8. While dismissing the petition, the learned single Judge gave the following directions :
"It is further directed that the petitioner will not be entitled to any benefit of his having worked under ad interim order dated 5.11.1996 and consequently, respondents are directed to ensure that respondent No. 4 joins the post of Principal forthwith. Respondent No. 4 shall be entitled, while computing seniority on the post in question, to count for the period during the which period this petition was pending in this Court and shall be treated to have deemed continued in service on the post in question. It will be deemed that he had held the post. Respondent No. 4 shall, however, not be entitled to any financial advantage under this order for deeming period."
9. Feeling aggrieved by the above directions given by the learned single Judge, the appellant has preferred instant intra-court appeal under Chapter VIII. Rule 5 of the Rules of the Court. 1952.
10. From perusal of the order dated February 8, 2000, wherein are contained the impugned directions. It appears that the learned counsel of the petitioner was "unable to point out any fact or circumstance, which" rendered the petition infructuous. No reason for not prosecuting the petition or getting it dismissed was or is assigned by the appellant.
11. It is true that the appellant had liberty of not prosecuting his petition and getting the same dismissed. But the liberty was not unbridled. The enjoyment of the said liberty was subject to justice and equity between the contesting parties to the writ petition.
12. With the dismissal of the writ petition, the interlocutory orders, including the ad interim order dated November 5. 1996 lapsed. With the lapse of the ad interim order dated November 5, 1996 Sri Kamlesh Kumar Niranjan, the respondent No. 4, became entitled to Join on the post of Principal of the Institution for which he was duly selected and had not been able to Join on account of the interim order dated November 5. 1996. Further effect of the lapse of the ad interim order dated November 5, 1996 was that the legitimacy of the benefits enjoyed by the petitioner by virtue of the ad interim order was forfeited.
13. Under the circumstances noted above, the directions given by the learned single Judge in his order dated February 8, 2000, were absolutely Justified. Indeed, it was the duty of the learned single Judge to restitute and adjust equities between the contesting parties to the writ petition, and to remedy the disadvantage suffered by Sri Kamlesh Kumar Niranjan, the respondent No. 4, on account of the interim order dated November 5, 1996. Similarly, it was the duty of the learned single Judge to clarify, that with the lapse of the interim order dated November 5. 1996, the petitioner became disentitled to the benefits enjoyed by him on account of the interim order.
14. Relying upon the provisions of sub-section (1) of Section 33C of the U. P. Secondary Education (Services Selection Boards) Act. 1982 (as amended by U. P. Act No. 25 of 1998), (hereinafter called the 'Act'), Sri S. K. Chaturvedi, the learned counsel of the appellant, contends that the appointment of the petitioner having been made on September 25, 1992, i.e., after July 31, 1988 and not later than August 6, 1993 on ad hoc basis against the substantive vacancy in the post of Principal of the Institution and having continuously served the Institution from the date of his appointment upto the date of commencement of the U. P. Act No. 25 of 1998, he stood regularized by operation of law. According to Sri Chaturvedi, the impugned directions given by the learned single Judge are illegal in as much as they have the effect of nullifying the regularization of the appointment of the petitioner by operation of law, namely, the provisions of Section 33C of the Act.
15. For proper appreciation of the contention of Sri Chaturvedi, it is apposite to extract and reproduce below Section 33C of the Act, as introduced by U. P. Act No. 25 of 1998, which came into force on April 20, 1998:
"33C. Regularization of certain more appointments.--(1) Any teacher who-
(i) was appointed by promotion or by direct recruitment on or after May 14. 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade;
(ii) was appointed by promotion on or after July 31, 1988, but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of Principal or Headmaster in accordance with Section 18 ;
(a) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act. 1921 ;
(b) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act. 1998 :
(c) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under subsection (2) ;
shall be given substantive appointment by the Management.
(2) (a) For each region, there shall be a Selection Committee comprising :
(i) Regional Joint Director of Education of that region, who shall be the Chairman ;
(ii) Regional Deputy Director of Education (Secondary) who shall be member ;
(iii) Regional Assistant Director of Education (Basic) who shall be member ;
In addition to above members the District Inspector of Schools of the concerned district shall be co-opted as member while considering the cases for regularization of that district.
(b) The procedure of selection for substantive appointment under sub-section (1) shall be such as may be prescribed.
(3) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment ;
(b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first.
(4) Every teacher appointed in a substantive capacity under subsection (1) shall be deemed to be on probation from the date of such substantive appointment.
(5) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.
(6) Nothing in this Section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of sub-section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act."
16. The contention of Sri Chaturvedi, the learned counsel of the petitioner, that the ad hoc appoint-ment of the petitioner against the substantive vacancy in the post of Principal of the Institution stood regularised by operation of law, in the opinion of the Court, betrays utter ignorance of the provisions contained in sub-section (6) of the Act. It is to be noticed that sub-section 16) of Section 33C of the Act provides that nothing in the section shall be construed to entitle any teacher to a substantive appointment if on the date of the commencement of the Ordinance, which is admittedly April 20, 1998, such vacancy had already been filled or selection for such vacancy had already been made in accordance with the Act. This provision clearly saves and protects the action of filling of vacancy prior to the commencement of the U. P. Act No. 25 of 1998. It also saves and protects the selection for such vacancy already made in accordance with the provision of the Act.
17. It is not disputed that the selection of Sri Kamlesh Kumar Niranjan, the respondent No. 4, for the vacancy in the post of Principal of the Institution in accordance with the provisions of the Act had already been completed on the date of commencement of U. P. Act No. 25 of 1998. Therefore, the selection of Sri Kamlesh Kumar Niranjan, the respondent No. 4, acquired statutory finality and ceased to be open to challenge. It cannot be gainsaid that consequent upon his due selection for filling the substantive vacancy in the post of Principal of the Institution Sri Kamlesh Kumar Ntranjan, the respondent No. 4, acquired statutory right to be appointed against the substantive vacancy in the post of Principal of the Institution, caused upon retirement of the permanent incumbent. Sri Kamlesh Kumar Niranjan, the respondent No. 4, was deprived of the benefit of the statutory right of being appointed as Principal of the Institution on account of interim order of the Court dated November 5. 1996, passed at the behest of the petitioner. But for the interim order Sri Kamlesh Kumar Niranjan, the respondent No. 4, would have been appointed and would not have lost the attending benefits of the appointment during the period between the passing of the interim order dated November 5, 1996 and the impugned directions given by the learned single Judge contained in the order dated February 8. 2000.
18. By giving the impugned directions while dismissing the writ petition on February 8, 2000, the learned single Judge only adjusted equities between the contesting parties to the petition. The directions are aimed at redressing the injury caused to Sri Kamlesh Kumar Niranjan, the respondent No. 4, by the interim order of the Court dated November 5, 1996. It is well-settled that an act of the Court shall prejudice no man (Actus curiae neminem gravabit). This maxim, which is founded on Justice and good sense, has to be the Pole Star for administration of law by the Court in exercise of special and extraordinary Jurisdiction under Article 226 of the Constitution of India, the main objective of which is promotion of justice and prevention of injustice.
19. From what has been said above, the irresistible conclusion is that the learned single Judge was perfectly Justified in giving the impugned directions ex debito Justiciae, not ex gratia, and in doing so, he committed no error warranting interference in this intra-court appeal.
20. The special appeal lacks merit. It is rather frivolous and vexatious. It is, therefore, dismissed with costs, payable by the petitioner-appellant to Sri Kamlesh Kumar Niranjan, the respondent No. 4, which is quantified at Rs. 10.000. The costs shall be paid within a period of three months to be computed from today.