Allahabad High Court
C/M Field Marshal General Manekshaw ... vs State Of U.P. Through Addl. Chief ... on 4 February, 2020
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SPECIAL APPEAL No. - 60 of 2020 Appellant :- C/M Field Marshal General Manekshaw U.M. Vidyalaya & Anr. Respondent :- State Of U.P. Through Addl. Chief Secy.Prin.Secy. & Others Counsel for Appellant :- Gaurav Mehrotra,Harsh Vardhan Mehrotra,Santosh Kumar Tripathi Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Karunesh Singh Pawar,J.
(1) Heard Sri Gaurav Mehrotra, learned counsel for the appellants/writ petitioners and Sri Gopal Kumar Srivastava, learned Standing Counsel for the respondents State.
(2) This intra court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules has been filed against the judgment and order dated 07.01.2020 passed in Writ Petition No. 240 (S/S) of 2020, by which, learned Writ Court, on considering the fact that report dated 22.08.2017, which is impugned in the writ petition, has already been scrutinized by the Division Bench of this Court in PIL No. 35090 of 2015 : Rajesh Rai Vs. State of U.P. and others, decided on 19.12.2017 and further review petition filed against the aforesaid order 19.12.2017 was dismissed, which was affirmed by the Apex Court not once but twice, dismissed the writ petition.
(3) Learned counsel for the appellants has submitted that issue in question was decided in civil misc. writ petition No. 20320 of 1991 : Committee of Management Vs. Director of Education and others connected with Civil Misc. Writ Petition No. 9955 of 1992 vide judgment and order dated 4.10.1993 and a direction was issued to the respondents to make the payment of salary to all the teachers, and staff of the Institution whose names are recommended by the District Inspector of Schools, Deoria vide his final recommendation letter dated 24.1.1992 within a period of three months along with arrears. The judgment and order dated 4.10.1993 (Supra) was assailed by the respondents before the Apex Court by filing Special Leave to Appeal (Civil) No. 582-582A/94 and the Apex Court, vide judgment and order dated 21.4.1994, dismissed the SLP as withdrawn. Thereafter, the Deputy Director Secondary Education, Allahabad issued a letter dated 07.06.1994, directing to pay salary of teachers and other employees of the appellant institution. Thereafter, vide order dated 2.8.1994, the State Government has sanctioned the grant of all 76 teachers and other staff of the appellants institution of Junior High School and Secondary Education and not for the teachers working in primary section.
(4) Learned counsel for the appellants has submitted that the Division Bench of this Court vide order dated 4.10.1993 (Supra) has categorically held that there are 76 teachers working in the institution. Subsequent thereto, report dated 22.08.2017 has been drawn up by the respondents whereby it has been indicated that there are only 29 sanctioned posts in the Institution. His contention is that once the Division Bench in the aforesaid judgment of Committee of Management (supra) has already held that there are 76 posts consequently there was no occasion for the respondents to have again drawn up the report dated 22.08.2017 and, thus, the said report runs contrary to the earlier judgment of this Court which has attained finality with the dismissal of the SLP and review petition.
(5) Considering the aforesaid so also the relying upon the order dated 19.12.2017 (Supra), which was affirmed by the Apex Court while dismissing SLP and review petition, learned Writ Court has observed that the report dated 22.08.2017 cannot be challenged by the writ petitioners institution. The relevant part of the reasoning assigned by the learned Writ Court while dismissing the writ petition vide impugned order dated 7.1.2020 reads as under :-
"Learned counsel for the petitioners further contends that subsequent thereto the impugned report has been drawn up by the respondents whereby it has been indicated that there are only 29 sanctioned posts in the Institution. It is contended that once this Court in the aforesaid judgment of Committee of Management (supra) had already held that there are 76 posts consequently there was no occasion for the respondents to have again drawn up the impugned report dated 22.08.2017 and thus the said report runs contrary to the earlier judgment of this Court which has attained finality with the dismissal of the SLP and review petition and hence the present petition.
On the other hand, learned Standing Counsel has raised a preliminary objection regarding maintainability of the writ petition inasmuch as it is contended that the impugned report dated 22.08.2017 has already withstood scrutiny of the Division Bench of this Court in Public Interest Litigation No.35090 of 2015 in re: Rajesh Rai vs. State of U.P. and 10 others, decided on 19.12.2017, a copy of which is Annexure-89 to the writ petition. It is also contended that a review petition was filed by the Institution itself namely Review Petition No.1A/1 of 2018 in which the same ground which is now sought to be taken before this Court was also taken amongst other ground but this Court vide judgment and order dated 06.12.2018, a copy of which is Annexure-93 to the writ petition, dismissed the said review petition. Being unsatisfied, a Special Leave Petition (Civil) Diary No.6789 of 2019 was filed by the Principal of the Institution and certain other teachers against the judgment passed in Review Petition and the said SLP was also dismissed vide judgment and order dated 26.04.2019, a copy of which is Annexure-94 to the writ petition. Still being unsatisfied a review petition was filed before the Apex Court bearing No.1806-1808 of 2019, which was also dismissed vide judgment and order dated 07.08.2019, a copy of which is Annexure-95 to the writ petition. Learned Standing Counsel also contends that a perusal of the Division Bench judgment of this Court dated 19.12.2017 passed in the case of Rajesh Rai (supra) would also indicate that the Division Bench of this Court had categorically recorded that the Secretary has recorded cogent reasons for not accepting the claim of the petitioner Institution regarding number of sanctioned posts and has fixed the same as 29 and it was also held by the Division Bench that there are only 29 sanctioned posts in the Institution in question. It is contended that once a specific finding has been recorded by the Division Bench of this Court and the same has already been withstood scrutiny by way of a review petition, dismissal of SLP and dismissal of review before the Apex Court consequently the said report cannot be challenged before this Court by the petitioner Institution. It is thus contended that the present writ petition be dismissed on the said preliminary objection.
Heard learned counsel for the contesting parties and perused the records. From perusal of records, it comes out that the impugned report dated 22.08.2017 has already been scrutinized by the Division Bench of this Court in the case of Rajesh Rai (supra). The Division Bench, after considering the report dated 22.08.2017, has held as under:-
"The Secretary has recorded cogent reasons for not accepting the said claim. He has held that the letter so heavily relied upon dated 29.09.1990 appears to be a fabricated document. The Secretary has specifically held that there were only 29 sanctioned post of teachers and other staff in the institution. ..... We hold that there were 29 sanctioned posts in Field Marshal General Manik Shah Uchchattar Madhyamik Vidyalay Nautan Hathiagarh, District Deoria as against which only 18 person, who had been approved for payment of salary under the letter of the Deputy Director of Education, would be paid salary from the State Exchequer. However, if any other person claims any right for payment of salary from the State Exchequer, he is granted liberty to approach the Secretary again along with original documents both pertaining to the sanction of the post including the letter dated 17.09.1990 if any available with him and other documents in original, which may establish that his appointment has been made after following due procedure prescribed by law applicable on the date of appointment.
We clarify that the Secretary shall examine as to whether the appointment of the persons claiming salary is within the sanctioned strength of the institution or not. He shall further examine whether the appointment has been made after following the procedure prescribed under law including (a) advertisement of vacancy in the news paper (b) constitution of selection committee (c) selection proceedings having been made in accordance with the procedure applicable and the approval of the competent authority (d) the person so appointed was possessed of the required minimum qualification on the date of selection. If any or all of the aforesaid conditions are found to be lacking, the Secretary shall not issue any order for payment of salary from the State Exchquer for such persons.
We clarify that if any person is appointed beyond the sanctioned strength by the committee of management on its own, the liability for payment of salary to such teachers is upon the management, and the persons so appointed may claim salary from the management only.
We further clarify that the State shall proceed against the management of the institution and the persons responsible in the matter of payment and receiving of salary from the State Exchequer without legal authority both for the civil wrong done as well as on the criminal side.
We disposed of this public interest litigation. The modification application is confined to record."
The petitioner Institution being aggrieved with the said judgment initially filed a review in which one of the grounds that had been taken for filing of the said review was that the report of the Additional Chief Secretary dated 22.08.2017 is in the teeth of the judgment rendered by this Court in the earlier round of litigation and could not have been relied upon by this Court in the judgment under review i.e. the Division Bench judgment of Rajesh Rai (supra). The Court considering the said ground apart from various other grounds dismissed the review petition which has already been affirmed by the Apex Court not once but twice i.e. with the dismissal of the review petition also which was filed against the dismissal of the SLP filed by the petitioner Institution.
Taking this into consideration, there would not be any occasion for this Court to entertain a challenge to the report dated 22.08.2017 of the respondents. Accordingly, the preliminary objection as raised by learned Standing Counsel is upheld. The writ petition is dismissed.
It is provided that the dismissal of the writ petition will not preclude the petitioners from pursuing other remedies that may be available to them."
(6) It is not in dispute that in Civil Misc. Review Application No. 62050 of 2012 in re: Writ-C No. 20320 of 1991, the learned Writ Court has considered the order dated 4.10.1993 passed in writ petition No. 20320 of 1991. In Public Interest Litigation (PIL) No. 35090 of 2015 : Rajesh Rai Vs. State of U.P. and 10 others, a Co-ordinate Bench of this Court has considered the report dated 22.08.2017 and disposed of public interest litigation vide judgment and order dated 19.12.2017. The relevant part of the judgment and order dated 19.12.2017 (supra) reads as under :
"In response to the order so passed the Additional Chief Secretary, Secondary Education, Government of U.P., Lucknow has filed an affidavit. A detail report dated 22.08.2017 has been submitted in the matter of sanction of post of teachers and other staff in the Institution. The report refers to the orders which had been passed by the High Court from time to time, non-availability of the original records pertaining to the letter dated 27.09.1990, said to have been issued by the District Inspector of Schools, Deoria, and that such letter does not exist on the record of the District Inspector of Schools himself and other documents and orders issued by competent authority from time to time.
It has been noticed that under the said letter dated 27.09.1990 21 posts of C.T. Grade were alleged to have been declared as dying cadre and upgraded into L.T. Grade. It is with reference to these 21 posts that a claim had been set up that the sanctioned number of posts was 29 posts plus 21 posts of C.T. Grade i.e. 50 in all.
The Secretary has recorded cogent reasons for not accepting the said claim. He has held that the letter so heavily relied upon dated 29.09.1990 appears to be a fabricated document. The Secretary has specifically held that there were only 29 sanctioned post of teachers and other staff in the institution.
As against these 29 posts, 18 persons were held entitled for salary by the Deputy Director of Education, Gorakhpur as per his letter dated 13.10.1992. Names of these persons have also been mentioned in the report of the Secretary. Except for these 18 persons, who have been validly appointed within the strength of sanctioned 29 posts, no other persons were entitled for payment of salary from the State Exchequer. Payments made to other persons beyond the 18 teachers and staff was an outcome of collusion between the management and educational authorities, for which appropriate action is required to be taken and the excess money so paid is liable to be recovered.
We may record that this report has been submitted after affording opportunity to the educational authorities of district Gorakhpur, management of the institution, teachers and other staff, who were claiming salary.
We may further record that even before us none of the parties could produce the original letter dated 27.09.1990. What has been referred to before us are only the orders passed by the High Court from time to time, based on the letter dated 27.09.1990 which itself has been found to be non existent by the Secretary of the department, as original whereof was not traceable even in the office of the authority who is stated to have issued the same.
We are of the opinion that the relief as prayed for in the present writ petition stands satisfied with the submission of the report by the Additional Chief Secretary dated 22.08.2017.
We hold that there were 29 sanctioned posts in Field Marshal General Manik Shah Uchchattar Madhyamik Vidyalay Nautan Hathiagarh, District Deoria as against which only 18 person, who had been approved for payment of salary under the letter of the Deputy Director of Education, would be paid salary from the State Exchequer. However, if any other person claims any right for payment of salary from the State Exchequer, he is granted liberty to approach the Secretary again along with original documents both pertaining to the sanction of the post including the letter dated 17.09.1990 if any available with him and other documents in original, which may establish that his appointment has been made after following due procedure prescribed by law applicable on the date of appointment.
We clarify that the Secretary shall examine as to whether the appointment of the persons claiming salary is within the sanctioned strength of the institution or not. He shall further examine whether the appointment has been made after following the procedure prescribed under law including (a) advertisement of vacancy in the news paper (b) constitution of selection committee (c) selection proceedings having been made in accordance with the procedure applicable and the approval of the competent authority (d) the person so appointed was possessed of the required minimum qualification on the date of selection. If any or all of the aforesaid conditions are found to be lacking, the Secretary shall not issue any order for payment of salary from the State Exchquer for such persons.
We clarify that if any person is appointed beyond the sanctioned strength by the committee of management on its own, the liability for payment of salary to such teachers is upon the management, and the persons so appointed may claim salary from the management only.
We further clarify that the State shall proceed against the management of the institution and the persons responsible in the matter of payment and receiving of salary from the State Exchequer without legal authority both for the civil wrong done as well as on the criminal side.
We disposed of this public interest litigation. The modification application is confined to record."
(7) Against the aforesaid order dated 19.12.2017, review petition, bearing No. 1 A/1 of 2018 has been filed, which was dismissed vide order dated 6.12.2018. The relevant part of the order dated 6.12.2018 reads as under :
"33. This Court has heard at length the learned Senior Counsel and during the course of the hearing specific queries were put by the Court as to the applicability of U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978 and whether any approval was given for teachers and other employees working in Junior High School by the Director of Basic Education. It has been admitted fairly by the learned Senior Counsel for review applicants that there was no sanction of posts or grant of approval, as when the Junior High School was given recognition, it was not under the grant-in-aid. No Maintenance Grant was given to the Junior High School at any point of time. There were no sanctioned posts therefore created for teaching and non teaching staff at Junior High School level.
34. This Court also made a query to the learned Senior Counsel as to whether the review applicant denies the application filed in 1978 for grant of recognition as High School. A copy of the application filed by the Committee of Management in 1978 is on record of the Writ Petition. It clearly states that there were only 152 students in three Sections, one each for Classes - VI, VII and VIII in the Institution. There were eight teachers including the Headmaster. Application dated 31.08.1978 is filed at page Nos. 55 to 72 of the Public Interest Litigation. The Headmaster Shri Rajneti Upadhyay is shown in L.T. Grade; whereas, all other eight teachers are shown in C.T. Grade. Four teachers have been shown at internal page Nos. 7 and 8 of the application along with its annexure as trained and permanent, and four as untrained and temporary. There is a specific mention that no Maintenance Grant is available to the school.
35. This fact having come on record, and also the order granting such recognition as High School on 08.03.1982, the learned Senior Counsel has fairly conceded that the facts on record cannot be denied. It has also not been denied by the review applicant that grant-in-aid was given up to High School level only w.e.f. 01.04.1991.
36. It has also been fairly conceded by the learned Senior Counsel that the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 (hereinafter to referred as "the Payment of Salary Act, 1971") became applicable only w.e.f. 01.04.1991. The posts of teachers in the Secondary Section are created under Section 9 of the Payment of Salary Act, 1971 only.
37. A Full Bench of this Court in Gopal Dubey Vs. District Inspector of Schools, Maharajganj and others, (1999) 1 UPLBEC 1 after considering Section 9 of the Payment of Salary Act, 1971, and the provisions of the Intermediate Education Act and Regulations, has held that salary can be paid only on a sanctioned post of teacher. No institution shall create a new post of teacher or other employee except with previous approval of Director or such other officer as may be empowered in this behalf. There can be no presumption of sanction of post of a teacher even if the subject concerned has been given sanction and even if the total number of students is taken in to account by the District Inspector of Schools in giving permission to run additional Sections in a particular subject in the School. Granting recognition for teaching additional Sections would not amount to grant of sanction for creation of posts.
38. It could not be explained by the learned Senior Counsel as to the reasons for issuance of the orders by the Deputy Director of Education on 03.09.1990 creating 21 posts of teaching and non teaching staff, and on 02.02.1991 creating eight posts of teaching and non teaching staff, before the Institution was taken under the grant-in-aid by the Government Order dated 15.11.1991. The name of the Institution has been mentioned at Serial No. 153 of the list appended to the Government Order dated 15.11.1991.
39. It has been submitted by the learned Senior Counsel that since the application was filed by the School for grant-in-aid in 1990 itself and papers submitted regarding the running of Classes - IX and Xth, the Education Authorities may have therefore issued the orders dated 03.09.1990 and 02.02.1991, creating 29 posts of teaching and non teaching staff in the institution.
40. However, despite making such submission by the learned Senior Counsel there was an insistence during the course of argument that this Court cannot reopen the matters already settled in earlier rounds of litigation.
41. This Court therefore has carefully perused all the judgments referred to by the learned Senior Counsel and it finds from a perusal of the same, and also the uncontroverted averments made in the Public Interest Litigation and the reports of the Secretary of Secondary Education filed along with various affidavits of the State Government, that there is no finding recorded in any of the orders passed by the Division Benches in various PILs and Special Appeals regarding the applicability of Junior High School Payment of Salary Act, 1978, or the applicability of Payment of Salary Act, 1971, to the teaching and non teaching staff of the Institution.
42. The learned Senior Counsel during the course of argument, on a query made by us, has filed copies of various Government Orders issued from time to time regarding the declaration of C.T. Grade as a dying cadre. The first Government Order dated 20.06.1989 only says that w.e.f. 13th of May, 1989 in pursuance of the recommendation made by the Pay Revision Committee, the C.T. Grade was to be converted into L.T. Grade and teachers had to be appointed in L.T. Grade alone for teaching classes -VI to X in aided Higher Secondary Schools. No posts were to be created in C.T. Grade after June, 1989 and no appointments were to be made in C.T. Grade for teaching students for Classes - VI to X. Only one Grade for teachers was admissible and that was L.T. Grade.
43. The Government Order issued on 20th of June,1989 by the Director of Secondary Education was given ex-post facto approval by His Excellency the Governor of U.P. and this fact has been recorded in the Government Order dated 11th August, 1989. It refers to C.T. Grade being declared a dying cadre and that no post was to be created and no appointments to be made in C.T. Grade thereafter.
44. The Government Order dated 04.09.1990 which has been referred to in the judgment and order dated 04.10.1993 of the Hon'ble Single Judge, has also been brought on record by the learned Senior Counsel for the review applicant. It is in the nature of clarification of doubts expressed from various quarters regarding the application of Government Orders dated 20.06.1989 and 11.08.1989. It says that on declaration of C.T. Grade as dying cadre the post created in C.T. Grade shall automatically stand converted into a post of L.T. Grade. However, teachers teaching in such C.T. Grade could be granted salary of L.T. Grade only after completion of 10 years of continuous regular service in C.T. Grade, and they had to be graduates and trained for this purpose. No ad hoc C.T. Grade teacher however could be granted salary in L.T. Grade.
45. From a perusal of the clarification issued by the government by its order dated 4th of September, 1990, it is apparent that it is applicable only to such institutions where posts in C.T. Grade had been created already and teachers were working therein and salary was being paid by the public exchequer. The said Government Order does not at all refer to any unaided Secondary School where no sanctioned post of C.T. Grade teacher existed. It is only with respect to sanctioned posts of C.T. Grade, that they stood converted into L.T. Grade.
46. The Hon'ble Full Bench of this Court has clarified in Gopal Dubey (supra) that mere permission to run classes in a particular subject or permission to open additional sections in a particular class would not amount to creation of posts. Creation of posts has to be done under Section 9 of the Payment of Salary Act, 1971 for Higher Secondary Schools. Similarly, under Junior High School (Payment of Salary) Act, 1978 an institution first has to be given Maintenance Grant and salary of teachers has to be reimbursed from the Maintenance Grant by the Government after financial approval is given by the authorities concerned under Section 9 of the said Act.
47. Till 15th of November, 1991 when the Government Order was issued taking the Institution in question under the grant-in-aid w.e.f. 01.04.1991, there was no question of creation of any post or grant of financial approval in C.T. Grade. Therefore, the question that was considered by the Hon'ble Single Judge in his judgement and order dated 04.10.1993 regarding the conversion of C.T. Grade post into L.T. Grade could only be considered to have been answered with reference to the teachers already working in C.T. Grade, being absorbed in L.T. Grade, after such posts were created by orders of Deputy Director of Education, Secondary Education on 03.09.1990 and 02.02.1991. The declared policy of the government was that only one Grade of teacher i.e. L.T. Grade was to be sanctioned and created for teaching in Classes - VI to Xth. Salary to all trained and regular C.T. Grade teachers already working in the institution was to be allowed in L.T. Grade till such time that they continued teaching in the institution and then superannuated. After such persons superannuated, no fresh appointments were to be made as the C.T. Grade stood converted into L.T. Grade.
48. This Court is not considering the number of teachers employed by the institution before it came under grant-in-aid for teaching 152 students in three Sections in Classes - VI, VII and VIII with one Section each. The Institution may have employed 30 teachers for teaching 152 students, but as per the norms, financial approval could be given only by the Director for creation of post according to the strength of students of the Junior High School had been given Maintenance Grant at any point of time, which admittedly it was not getting.
49. When the institution filed its application on 31st of August, 1978 for grant of recognition for High School, the students' strength was considered as also the number of Sections, and 16 L.T. Grade posts of Assistant Teachers and one post of Headmaster was sanctioned by the Director of Secondary Education by his orders dated 03.09.1990 and 02.02.1991, besides three clerical/ministerial posts and nine posts of peon. Against these 29 sanctioned posts, when the Institution was taken under the grant-in-aid, the Management submitted salary bill for payment to additional 58 members of teaching and non teaching staff. This payment was refused and financial approval was given by the Deputy Director of Education, Gorakhpur Region to only 18 posts of teaching and non teaching staff by his order No. 14727-32/92-93 dated 13.10.1992. This order dated 13.10.1992 was never challenged by the Committee of Management.
50. In response to a specific query made by this Court as to whether in writ petitions No. 20320 of 1991 and 9955 of 1992 the Committee of Management had prayed for a writ in the nature of Certiorari for quashing of the order of Dy Director of Education dated 13.10.1992. The learned Senior Counsel has referred to the first page of the judgment dated 04.10.1993. It refers to a Mandamus being prayed for only by the Committee of Management, to treat C.T. Grade teachers as L.T. Grade teachers, and to pay salary to them along with arrears, taking into account the recommendation of the District Inspector of Schools, Deoria dated 24.01.1992.
51. This Court has also carefully perused the judgment dated 04.10.1993. It finds that the Hon'ble Single Judge was only concerned with the fate of teachers who were already working in the C.T. Grade and payment of salary to them after declaration of C.T. Grade as dying cadre. He held that under Regulation - 4 of the Regulations attached to the Intermediate Education Act a teacher possessing training qualifications and teaching in Junior High School shall be deemed fit to be appointed in Higher Secondary School after its upgradation.
52. This Court in its judgment and order dated 04.10.1993 did not hold at any stage that the Junior High School was receiving Maintenance Grant under the Junior High School Payment of Salaries Act, 1978. There is a reference to Basic Shiksha Adhikari creating 26 posts and 4 posts being created by the District Inspector of Schools. However, neither the Basic Shiksha Adhikari nor the District Inspector of Schools had any power under 1978 Act or the 1971 Act respectively, to create any post. It is only the Director, Basic Education who grants financial approval for creation of posts in Junior High School which is already under Maintenance Grant, and it is only the Director of Secondary Education who grants sanction for creation of posts and financial approval in respect to Higher Secondary Schools under Section - 9 of the 1971 Act.
53. With regard to the argument of finality being attached to the judgment and order dated 04.10.1993, after dismissal of the Special Leave Petition as withdrawn; it has not been denied by the learned Senior Counsel for review applicants that Shri Bramha Shanker Tripathi the then Cabinet Minister in Ruling Samajwadi Government was the founder of the Institution and decision was taken at the highest level in Government on 06.04.1994 for withdrawing the Special Leave Petition from the Supreme Court. The Advocate on record in response to the letter issued to him, submitted before the Hon'ble Supreme Court that he had instructions to withdraw the Special Leave Petition. The SLP was therefore dismissed as withdrawn on 21.04.1994 despite an interim order having been granted earlier therein in favour of the State appellants.
54. The effect of an SLP being dismissed as withdrawn or being dismissed in limine has been considered by a Full Bench of this Court in Paresh Kumar Yadav Vs. State of U.P. and others reported in AIR 2015 (Alld.) 10. The Full Bench of this Court after considering all the law on the subject has held that dismissal of Special Leave Petition as withdrawn or disposal of the same by making observations regarding the waiver of costs etc. would not amount to the judgment under appeal having merged with the judgment of the Supreme Court. Such judgment cannot be said to have attained finality, or that it was affirmed by the Supreme Court to become a binding precedent, preventing the reconsideration of the issue on merits by a competent Court."
(8) Against the aforesaid judgments dated 19.12.2017 and 06.12.2018, Special Leave Petition (Civil) Diary No(s) 6789 of 2019 has been filed before the Apex Court and the Apex Court, vide judgment and order dated 26.04.2019, dismissed the petition. Thereafter, review petition, bearing Nos. 1806-1808/2019 and 1809-1810/2019, has been filed, which too was dismissed by the Apex Court vide judgment and order dated 07.08.2019.
(9) Considering the aforesaid, all the grounds, which the appellants/writ petitioners have taken in the writ petition before the learned Writ Court, was considered by the Division Bench of this Court on 19.12.2017 in Rajesh Rai Vs. State of U.P. and 10 others (Supra). Further, Therefore, we are in full agreement with the reasoning assigned by the learned Writ Court while dismissing the writ petition by the impugned order dated 7.1.2020.
(10) Before parting, it would be relevant to mention that the appellants have knowledge that the report dated 22.08.2017, which is impugned in the writ petition, was considered by the Division Bench of this Court in earlier round of litigation, which was affirmed by the Apex Court not once but twice but even then, the appellants have challenged the order of the learned Writ Court by filing the present special appeal without showing any cogent material.
(11) Considering the aforesaid, we are of considered view that the multiplicity of litigation has always been discouraged by this Court as well as by the Apex Court. It is a settled law that the multiple litigation in respect of the same subject matter is an abuse of process of the Court.
(12) For the reasons aforesaid, the special appeal lacks merit and is dismissed, accordingly.
.
(Karunesh Singh Pawar, J.) (Pankaj Kumar Jaiswal, J.)
Order Date :- 4.2.2020
Ajit/-