Allahabad High Court
Vineet Kumar Pandey vs State Of U.P. And 6 Ors. on 7 January, 2016
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- SPECIAL APPEAL No. - 957 of 2015 Appellant :- Vineet Kumar Pandey Respondent :- State Of U.P. And 6 Ors. Counsel for Appellant :- Vinod Kumar Pandey,Shashi Bhushan Srivastava Counsel for Respondent :- C.S.C.,Devendra Kumar Upadhyay,Ram Ashish Pandey Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Yashwant Varma,J.
(Per : Dr D Y Chandrachud, CJ) This special appeal has arisen from a judgment and order of the learned Single Judge dated 20 November 2015 by which two writ petitions filed by the appellant respectively in 2008 and 2011 have been dismissed.
The dispute in the present case relates to the appointment of a Head Master in a recognized and aided Junior High School by the name of Maharshi Mukti Vidya Mandir Junior High School, Lal Gopalganj, Allahabad. In pursuance of an advertisement which was issued on 25 January 1992 in a newspaper, the seventh respondent, Ram Shanker Shukla was selected to the post. An approval was granted on 18 May 1992 by the District Basic Education Officer. An objection was raised by an Assistant Teacher by the name of Uma Shanker Tripathi upon which the District Basic Education Officer stayed his earlier order dated 18 May 1992 on 23 December 1992.
Several writ petitions were filed before this Court - Writ Petition No. 26608 of 1992 by Uma Shanker Tripathi for quashing the order of approval to the selection of the seventh respondent; Writ Petition No. 8520 of 1993 by the seventh respondent for the payment of his salary and another Writ Petition No. 45148 of 1993. The third writ petition was dismissed on 10 February 1993. The first two writ petitions were the subject matter of a common order dated 29 March 1995. The order of this Court held that the order granting approval passed by the District Basic Education Officer could be recalled only if it was obtained by fraud, misrepresentation or on a misconception of fact or law. Consequently it was left open to the objector to submit his contentions to the appointment of the seventh respondent to the District Basic Education Officer for expeditious consideration. If the order of approval was to be maintained, a direction was issued that the seventh respondent would be entitled to salary. The order of the learned Single Judge dated 29 March 1995 was sustained in a Special Appeal on 19 May 1995.
In pursuance of the order of the learned Single Judge, the District Basic Education Officer passed orders on 4 September 1995 holding that the procedure which had been followed in regard to the appointment of the seventh respondent was valid and in consonance with law. However, a technical flaw was found in the order inasmuch as the order in favour of the seventh respondent appointing him to the post of Head Master was issued on 18 May 1992 whereas the Manager who issued the order had continued to function only until the previous day, namely 17 May 1992. This part of the order was again called into question by the seventh respondent in a writ petition1. The District Basic Education Officer had directed the new Manager to issue a letter of appointment letter and it was this part of the order which was questioned by the seventh respondent. The order of 4 September 1995 was also called into question by Uma Shanker Tripathi in a writ petition2 and in another writ petition3. Incidentally, it may be noted that the seventh respondent also filed a writ petition4 for the payment of his salary from 18 May 1992. The entire batch of writ petitions was disposed of by a learned Single Judge of this Court on 20 April 1998. The learned Single Judge observed as follows:
"The District Basic Education Officer had approved the selection on 18.5.1992. He had stayed his own order on 23.12.1992. In case in pursuance of the order of approval Sri Ram Shankar Shukla joined the institution and is in fact working there since then, there does not seem any justifiable reason that he should not be paid salary for such period unless his approval is held to be illegal. This Court while disposing of the Writ Petition No.26603 of 1992 clearly held that the order of approval having been granted it is liable to be cancelled only when it has been obtained by fraud and misrepresentation."
In the view of the learned Single Judge, whether the seventh respondent had actually functioned was a question of fact. Hence, it was left open to the seventh respondent to submit a representation to the District Basic Education Officer who was directed to determine as to whether the seventh respondent had actually been working as Head Master, and in that event, an order would be passed for the payment of salary.
The judgment of the learned Single Judge dated 20 April 1998 was challenged in a Special Appeal5 by the Committee of Management. The Special Appeal was admitted on 2 September 1998 and by way of an interim direction, the direction contained in the judgment of the learned Single Judge for disposal of the representation was stayed until further orders. As a result of the admission of the appeal and grant of stay, the order of approval which was issued in favour of the seventh respondent on 18 May 1992 could not be implemented until the Special Appeal was itself dismissed for want of prosecution on 11 May 2007. Thereafter, it appears that the District Basic Education Officer addressed a communication on 28 November 2008 in regard to the implementation of the approval granted to the appointment of the seventh respondent. On 25 September 2010, the Joint Director of Education, Allahabad Division while adverting to the earlier letter was constrained to appoint an Authorized Controller in respect of the institution.
In 2008, the appellant filed a writ petition claiming to have been appointed on the post of Head Master by the Management on 9 February 2005 and sought a mandamus for the payment of arrears of his salary. In 2011, an order was passed by the Authorized Controller implementing the appointment of the seventh respondent which was called into question in a second writ petition instituted by the appellant for challenging the order dated 13 April 2011. During the pendency of the writ petition, the order dated 13 April 2011, it is common ground, was stayed. Ultimately, it was only when the learned Single Judge dismissed both the writ petitions filed by the appellant that the cloud of uncertainty on the appointment of the seventh respondent was lifted.
The only ground which has been urged in support of the Special Appeal is that though the seventh respondent had been selected as a Head Master in 1992 and his appointment had been approved by the District Basic Education Officer on 18 May 1992, there was no justification for the Authorized Controller to issue a direction on 13 April 2011 after a lapse of considerable time in the intervening period allowing the seventh respondent to take charge of the post. In other words, delay is the only ground which is pressed in service of the challenge to the judgment rendered by the learned Single Judge.
A close analysis of the facts to which we have adverted would reveal that there was no substance in the contention that the seventh respondent had been guilty of an unexplained delay in pursuing his rights. On the contrary, it appears from the record that though the seventh respondent was a duly selected candidate, his appointment was repeatedly questioned and as a result of the pendency of litigation, the appointment though approved by the District Basic Education Officer could not be implemented for reasons beyond the control of the seventh respondent. The approval of the seventh respondent was called into question. In 1993 itself, the seventh respondent had also espoused his own remedy seeking disbursement of his salary. In pursuance of the order of the learned Single Judge dated 29 March 1995, the District Basic Education Officer held by an order dated 4 September 1995 that the appointment of the seventh respondent had been made following a proper selection procedure known to law. However, finding that the actual letter of appointment had been issued by the Manager one day after his term had ended, the new Manager was directed to issue a letter of appointment. This was called into question by the seventh respondent. Again a batch of writ petitions was filed in order to challenge the basic finding in favour of the seventh respondent that his appointment was made in accordance with law. Those writ petitions were ultimately disposed of on 20 April 1998 by the learned Single Judge. The learned Single Judge observed in line with what had been observed in the earlier decision of a learned Single Judge dated 29 March 1995 that unless the approval granted to the seventh respondent was vitiated by fraud, misrepresentation or by misconception of law or fact, it could not be abrogated.
The order of the learned Single Judge dated 20 April 1998 directing the District Basic Education Officer to determine whether the seventh respondent had actually worked, to facilitate the disbursement of his salary could not be implemented as a result of the Special Appeal which was filed in which the direction of the learned Single Judge was stayed. This stay continued till 2007 when the Special Appeal was dismissed for want of prosecution on 11 May 2007. Even thereafter, the District Basic Education Officer addressed a communication on 28 November 2008 and eventually on 25 September 2010, an Authorized Controller was appointed. While the Authorized Controller issued directions on 13 April 2011, they were challenged by the appellant and the order was stayed.
The narration of facts would indicate that the seventh respondent has not been indolent in pursuing his rights and remedies and has been a victim of litigation. The approval which had been granted as far back as in 1992 has never been disturbed. So long as the approval which was granted to the seventh respondent continues to hold the field, the appellant who has staked his claim in 2005 cannot claim any higher right.
In this view of the matter, and for the reasons aforesaid, we find that the learned Single Judge was not in error in dismissing the writ petition.
The special appeal shall accordingly stand dismissed. There shall be no order as to costs.
Order Date :- 7.1.2016 RK (Yashwant Varma, J) (Dr. D.Y. Chandrachud, CJ)