Allahabad High Court
Ved Prakash And 3 Others vs State Of U.P. And 4 Others on 1 August, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 19.05.2022 Delivered on 01.08.2022 Case :- WRIT - A No. - 23131 of 2018 Petitioner :- Ved Prakash And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arpan Srivastava,Neelabh Srivastava Counsel for Respondent :- C.S.C.,Jitendra Kumar Pandey Hon'ble Saral Srivastava,J.
1. Heard Sri Anil Bhushan, learned Senior Counsel, assisted by Sri Amit Kumar Srivastava, learned counsel for the petitioners and Sri Neeraj Tripathi, learned Additional Advocate General, assisted by Sri Shashank Shekhar Singh, Additional Chief Standing Counsel for respondents no. 1 to 4.
2. The petitioners, who are four in numbers, have assailed the order dated 23.08.2018 passed by the Director of Education, (Secondary), Government of U.P., Lucknow and order dated 28.10.2021 passed during the pendency of the writ petition by the Regional Level Committee and have further prayed for a writ of mandamus directing the Joint Director of Education to pay arrears of salary.
3. The facts in brief are that D.A.V. Inter College, Aryapur Khera, Mainpuri (hereinafter referred to as ''the College') is a recognized Institution under the provisions of U.P. Intermediate Education Act, 1921 and Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 is applicable in the present case.
4. According to the petitioners, two posts of L.T. Grade teacher were sanctioned by the Director of Education vide order dated 31.03.1991 and two posts became vacant on account of retirement of Kaptan Singh and Shyam Bihari Dubey (Assistant Teacher) on 30.06.1991. The Committee of Management of the College (respondent no.5) decided to make appointment on the said posts and passed a resolution to this effect on 07.07.1991. The respondent no.5 sent a requisition to the District Inspector of Schools, Mainpuri (respondent no.4) (hereinafter referred to as 'D.I.O.S. Mainpuri') on 20.08.1991 to forward the same to the U.P. Secondary Education Service Selection Board, Allahabad (hereinafter referred to as ''Commission') for filling the aforesaid four posts.
5. Further case of the petitioner's is that after sending the requisition by the respondent no.5 to the Commission, the respondent no.5 advertised the aforesaid posts in the daily newspaper on 03.10.1991 and the same was also pasted on the notice board of the College. Pursuant to the advertisement issued by the College, several candidates had applied, and on the basis of quality point marks, the petitioners were found to be the most suitable candidates, accordingly, they have been selected against the aforesaid four posts of L.T. Grade Teacher. Consequently, the petitioners have been issued appointment letters as L.T. Grade Teacher on 20.10.1991.
6. Pursuant to the appointment letters, the petitioners joined on 01.11.1991. The respondent no.5 forwarded the papers of the petitioners to the respondent no.4 for grant of financial approval, which was rejected by the respondent no.4 by order dated 13.04.1992 on the ground that a ban was imposed by the State Government on ad hoc appointments.
7. The petitioners challenged the order dated 13.04.1992 passed by respondent no.4 rejecting financial approval, by means of Writ Petition No.18381 of 1992, in which this Court on 22.05.1992 passed an interim order directing the respondent no.4 to release the salary of the petitioners. Thereafter, the salary of the petitioners have been paid from 01.11.1991 to July, 1995.
8. It is further stated that respondent no.4 stopped the salary of the petitioners which led the petitioners to file Writ Petition No.28887 of 1995 which was disposed of by this Court vide judgement and order dated 16.10.1995 with liberty to the petitioners to file appropriate amendment application in the pending writ petition.
9. By amendment, Section 33-C has been added in U.P. Act No.5 of 1982 relating to regularization of ad hoc Teachers. Section 33-C came into force on 20.04.1998. According to Section 33-C, teachers appointed between 14.05.1991 to 06.08.1993 are entitled to be regularized under this Section.
10. The petitioners claim that after the insertion of Section 33-C in Act 1982, they submitted an application to the respondent no.4 praying that their claim for regularization as well as for payment of salary be considered. On the said application, the Accounts Officer submitted report that the appointment of the petitioners is as per law and they come within the purview of Section 33-C of the Act, 1982 for regularization, therefore, they may be paid salary. Thereafter, the respondent no.4 by order dated 06.06.1998 directed the Accounts Officer to release the salary of the petitioners after verifying that they have been working in the College.
11. In the meantime, the Writ Petition No.18381 of 1992 was disposed of by this Court vide order dated 04.02.1999, whereby this Court directed the authorities to consider the claim of the petitioners for regularization under Section 33-C of the Act, 1982.
12. Thereafter, pursuant to the judgement and order of this Court dated 04.02.1999, the Joint Director of Education by order dated 28.02.2001 rejected the claim of the petitioners for regularization on the ground that the appointment of the petitioners was not in accordance with law as the advertisement was not published in two daily newspapers having wide circulation in the area.
13. The order dated 28.02.2001 was challenged by the petitioners by filing Writ Petition No.24305 of 2001, which was allowed by this Court vide judgement and order dated 24.02.2005 on the ground that the rejection of the petitioners' claim by the Regional Level Committee on the ground that the advertisement was not made in two daily newspapers does not sustain in view of Division Bench judgement of this Court in the case of Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722, since the advertisement was made in the year 1991, i.e., prior to the date of the judgement of Full Bench in the case of Radha Raizada's case. Accordingly, this Court allowed the writ petition by judgement and order dated 24.02.2005, quashed the order dated 28.02.2001 and directed the Joint Director of Education to constitute a Committee for consideration of regularization of petitioners under Section 33-C of the Act, 1982.
14. Pursuant to the judgement of this Court dated 24.02.2005 passed in Writ Petition No.24305 of 2001, the Regional Level Committee again by order dated 17.08.2006 rejected the claim of the petitioners, which came to be challenged by the petitioners in Writ Petition No.53709 of 2006, which was allowed by this Court by judgement and order dated 02.07.2009 and the matter was again referred to the Regional Level Committee to consider the claim of the petitioners for regularization in the light of judgement and order dated 24.02.2005 passed in Writ Petition No.24305 of 2001.
15. Thereafter, in compliance of the judgement and order dated 02.07.2009 passed in Writ Petition No.53709 of 2006, the Regional Level Committee considered the claim of the petitioners and again rejected their claim by order dated 24.07.2010 on the ground that the advertisement in respect of selection of the petitioners was not published in two leading newspapers; secondly, under Section 18 of the Act, 1982, the selection process for appointment on ad hoc basis can be initiated only after expiry of 60 days from the date the posts have been notified to the Commission, whereas in the instant case the posts were not notified to the Commission, hence no appointment could be made by the Commission on the aforesaid posts in view of non-compliance of Section 18 of the Act, 1982, therefore, the appointment of the petitioners was per-se illegal and they are not eligible for regularization under Section 33-C of the Act,1982.
16. The order dated 24.07.2010 was again assailed by the petitioners by means of Writ Petition No.69975 of 2010 which was allowed by this Court vide judgement and order dated 09.04.2013 holding that the grounds on which the claim of the petitioners have been rejected by order dated 24.07.2010 are not sustainable in law. Accordingly, this Court remitted the matter to the Screening Committee/Selection Committee again to comply with the directions issued by this Court vide order dated 24.02.2005 in Writ Petition No. 24305 of 2001 and the order dated 02.07.2009 passed in Writ Petition No.53709 of 2006.
17. Again, the Regional Level Committee by order dated 04.10.2013 rejected the claim of the petitioners which came to be challenged by the petitioners in separate writ petitions. However, this Court decided the writ petition filed by the petitioners treating Writ-A No.62780 of 2013 (Surya Kant Mishra & Another Vs. State of U.P. and Others ) as the leading writ petition on 12.08.2015 holding the grounds of rejection are untenable in law.
18. After five round of litigation, the claim of the petitioners' was considered by the Regional Level Committee pursuant to the judgement and order of this Court dated 12.08.2015 passed in Writ-A No.62728 of 2013; the Regional Level Committee by order dated 30.12.2015 regularized the services of the petitioners w.e.f. 01.11.1991.
19. After the regularization order was passed, the petitioners claimed their salary, but instead of granting salary to the petitioners, respondent no.2 by order dated 23.08.2018 rejected the claim of petitioners for arrears of salary, which is impugned in the present writ petition.
20. When the objection was taken by the petitioners that once the Regional Level Committee has passed order regularizing the services of the petitioners, therefore, respondent no.2, has no jurisdiction to sit in appeal over the order passed by the Regional Level Committee and deny the salary of the petitioners.
21. To overcome the aforesaid objection, the respondents constituted a Regional Level Committee who passed an order on 28.10.2021 rejecting the claim of the petitioners, which also came to be challenged by the petitioners in the writ petition by means of amendment application which was allowed by this Court.
22. The respondents have not chosen to file any counter affidavit, however, have filed various affidavits and personal affidavits which shall be dealt with at the appropriate place in the judgement.
23. Challenging the order dated 23.08.2018 passed by respondent no.2, Sri Anil Bhushan, learned Senior Counsel has contended that the order of respondent no.2 dated 23.08.2018, is illegal and without jurisdiction. It is contended that once the Regional Level Committee has passed an order on 30.12.2015 holding the appointment of the petitioners in accordance with law and regularizing the service of the petitioners, the respondent no.2 cannot sit in appeal over the order passed by the Regional Level Committee and deny the salary to the petitioners holding that the appointment of the petitioners is illegal, and not in accordance with law.
24. It is further submitted that the order dated 28.10.2021 passed by the Regional Level Committee during the pendency of writ petition also smacks of malafide, inasmuch as when this Court has taken serious note of the conduct of the respondents in rejecting the claim of the petitioners for salary in order dated 29.10.2018 in the present writ petition, the respondent no.2 in order to cure the lacuna in order dated 29.10.2018, referred the matter to the Regional Level Committee who passed the order dated 28.10.2021 denying the salary to petitioners, which cannot be permitted in law.
25. It is further contended that, even otherwise, the order dated 28.10.2021 passed by the Regional Level Committee is illegal and without jurisdiction inasmuch as it is settled in law that the power of review is the creation of statute, and in the instant case as there is no power of review vested with the Regional Level Committee, therefore, the order dated 28.10.2021 is not sustainable in law.
26. It is further contended that it is also settled in law that the power of review can be exercised only in cases where the order has been obtained by fraud or misrepresentation, whereas in the instant case the order dated 28.10.2021 does not state that the order dated 30.12.2015 regularizing the services of the petitioners was obtained by fraud or misrepresentation, therefore, the order dated 28.10.2021 passed by Regional Level Committee is illegal and without jurisdiction. It is submitted that the order dated 28.10.2021 has been passed without affording any opportunity of hearing and therefore is not sustainable in law.
27. It is further urged by learned counsel for the petitioners that the issue in respect to the validity of appointment of the petitioners has been decided by this Court in various writ petitions, i.e., Writ Petition No.24305 of 2001 decided on 24.02.2005; Writ Petition No.53709 of 2006 decided on 02.07.2009; Writ Petition No.69975 of 2010 decided on 09.04.2013 and leading Writ Writ Petition No.62780 of 2013 decided on 12.08.2015, accordingly, it is contended that that as the judgements passed by this Court in the aforesaid writ petitions have attained finality, the respondents cannot reject the claim of the petitioners on the ground that the appointment of the petitioners was not as per law.
28. It is submitted that principle of res-judicata applies in the present case as the issue with regard to validity of appointment of petitioners has been settled by this Court in aforesaid writ petitions which have attained finality. In this respect learned counsel for the petitioners has placed reliance upon the judgement of the Apex Court reported in AIR 1965 SC 1153, Gulabchand Chhotalal Parikh v. State of Bombay ; (1978) 3 SCC 119, Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust & Ors; AIR 1993 SC 2592, Smt. Naseem Bano Vs. State of U.P. and Ors. & AIR 2021 SC 3884, Neelima Srivastava v. State of U.P & Ors..
29. Rebutting the aforesaid submissions, learned Additional Advocate General submits that Section 18 of Act 1982 provides that ad hoc appointment can only be made when the requisition has been sent to the Commission notifying the posts, and two months have lapsed from the date posts have been notified to the Commission and the Commission has failed to make appointment on the said post, accordingly, it is submitted that in the instant case the respondent no.5 has started the process of appointment before 60 days period expired from the date posts were notified to the Commission which amounts to non-adherence of mandatory requirement of Section 18 of Act, 1982, hence, all appointments being in contravention to Section 18 of Act, 1982 are perse illegal and no benefit can be claimed on the basis of such appointment. It is further contended that the procedure to make any appointment on substantive posts under Section 18 of the Act 1982 is contemplated under Para 5 (2) of U.P. First Removal of Difficulties Order 1981 (hereinafter referred to as 'Order, 1981'). Under the Order, 1981, respondent no.4 is vested with the power to initiate appointment and in case the appointment is made by the Committee of Management, the approval by D.I.O.S. is necessary, but in the instant case, no approval has been granted by the D.I.O.S. to the appointment of the petitioners, therefore, the petitioners' appointment is void and as such the order impunged has been passed in accordance with law.
30. In support of the said argument, he has placed reliance upon the judgements of this Court reported in (1991) 2 UPLBEC 1097, Suresh Chandra vs. District Inspector of Schools, Saharanpur and others; (2003) 3 UPLBEC 2519, Anilesh Pratap Singh vs. State of U.P. & Others; (1994) 3 UPLBEC 1551, Radha Raizada and other vs. Committee of Management, Vidhawati Darbari Girls Inter College and Others; (1996) 10 SCC 62, Prabhat kumar Sharma & others vs. State of U.P. & others & (2015) 10 ADJ 403 DB, Mahesh Kumar Gupta & Others Vs. State of U.P. & others.
31. He further contends that it is also settled in law that law will prevail over equity, and as in the instant case the appointment of the petitioners were dehors the procedure contemplated for making adhoc appointment, therefore, the petitioners are not entitled to any benefit on the principle of equity. In this respect he has placed reliance upon the judgement of the Apex Court of 2007 (2) SCC 230, Raghunath Rai Bareja & another Vs. Punjab National Bank & others.
32. Lastly, he contends that the pure legal question can be raised at any time and in this respect he has placed reliance upon the judgement of AIR 2010 SC 3817, Greater Mohali Area Developement Authority & others Vs. Manju Jain & Ors..
33. I have heard learned counsel for the parties and perused the material brought on record.
34. Before proceeding to deal with the respective contentions of the counsel, this Court expresses its anguish and pain about the resilient approach of the respondent authorities in scuttling the orders passed by this Court which led to filing of 5 writ petitions by the petitioners before this writ petition, this is the 6th round of litigation between the parties on the same cause of action.
35. Proceedings in the instant case are detailed below to demonstrate that due to stubborn and reckless approach of the respondent authorities, not only the valuable time of the Court has been wasted but also valuable time and resources of the State machinery has been wasted resulting in unnecessarily financial burden upon the State due to mulish and irresponsible behaviour of State Officers. When the writ petition was filed and heard on admission, this Court passed the following order on 29.10.2018:-
"Petitioners, who are four in number, have approached this Court challenging an order of the Director of Education (Secondary), U.P., Lucknow dated 23.08.2018; whereby, petitioners' representation, made in pursuance of the direction issued by this Court in Writ A No. 6001 of 2018 dated 27.02.2018, has been rejected.
It appears that petitioners had earlier approached this Court by filing Writ A No. 62780 of 2013, along with Writ A Nos. 62782 of 2013 and 70291 of 2013, which came to be disposed of with a direction upon the authority concerned to consider petitioners' claim for regularization in accordance with section 33-C of the U.P. Secondary Education Services Selection Board Act, 1982(hereinafter referred to as, 'the Act of 1982'). The observation made by this Court reads as under:-
"So far as the facts are concerned, almost they are all admitted by the respondent counsel. In the present matter for the selection of teachers on substantive vacancy in the institution, the same is required to be moved before the commission under Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 and when such eventuality happens in institution and regular Assistant Teacher is not made available by the board, the Committee of Management after due advertisement may appoint assistant teacher in L.T. Grade. In pursuance to the advertisement they have applied for the post and selected for the post of Assistant Teacher vide appointment letter dated 20.10.1991 and on the basis of interim order granted by this Court on 22.05.1992 they have been paid salary. After Section 33-C of the Act 1982 came into existence, the petitioners demanded for their regularisation of their services which was eventually rejected by the Regional Committee vide an order dated 28.02.2001 precisely on the ground that the procedure prescribed under Section 18 of the Act was not followed by the Committee namely advertisement had not taken place in two leading newspapers which have wide circulation in the region. Hon'ble Court while deciding the writ petition No. 24305 of 2001 had categorically came into conclusion that no such procedure has been provided under Section 18 of the Act but this direction for making an advertisement in two leading newspapers was given by the Full Bench of this Court in Radha Raizada's case reported in 1994 (3) UPLBEC 1551 and subsequently in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722, a Division Bench of this court held that the direction issued by the Raizada's case (supra) was with prospective in nature and would be applicable in case where the person is appointed subsequent to the decision of this Full Bench and as such the same would not be applicable in the case of the petitioners. Therefore, the first objection initially taken by the regularisation committee does not have any ground to stand and consequently the earlier impugned order dated 28.02.2001 was quashed by this Court with direction to the Joint Director of Education to constitute a committee for regularisation of the petitioners under Section 33-C. Therefore, it is apparent that whatever the objection taken by the respondents had been rejected by this Court while allowing the Writ Petition No. 24305 of 2001. But unfortunately again the respondents have taken a plea while rejecting their claim for regularisation on the ground that the petitioners were not paid salary since 1995, therefore, their claim do not fall under Section 33-C of the Act. The records clearly give an impression that the D.I.O.S. while forwarding the papers on 06th June, 2000 had clearly held that the the appointments of the petitioners were made in between 14.05.1991 to 06.08.1993 and they were working continuously in the institution and subsequently it had also brought on record that the salary of the petitioners were paid on the basis of interim order passed by this Court in the year 1991. Therefore, subsequently, the objection raised by the Regularisation Committee that the petitioners were not paid since 1995 is not sustainable in accordance with the provisions of Section 33-C. It is suffice to say that it is not disputed that initial appointment of the petitioner in the institution was in accordance with law. The Accounts Officer submitted a detailed report dated 23.05.2001 stating therein that the petitioners were entitled for the salary as well as for regularisation but unfortunately the records would lead to the conclusion that the claims of the petitioners were rejected on the basis on non-existence grounds and at no point of time the department had taken any decision strictly in accordance with the law but time to time they have changed the ground for rejecting the claim of the petitioners. The statue clearly provides that working of a teacher is essential ingredients for consideration of regularisation and the petitioners' cases also fall under the cut off date but the aforesaid consideration had not been made by the regularisation committee. It is evident from the record that the petitioners were working in the institution and if it is admitted situation that the petitioners were working on the date when regularisation rules came into existence they are entitled to be considered for regularisation. Unfortunately the petitioners inspite of their best effort, their services had not been regularized till date, even though their rights accrued 1992. Inspite of various directions issued by this court their future is still at stake. In view of the aforesaid facts and circumstances, the order impugned dated 04.10.2013 passed by the Regularisation Committee headed by the Joint Director of Education cannot be sustained and is hereby set aside. The writ petitions are allowed. The matter is remitted to the Regularisation Committee headed by the Joint Director of Education to consider and decide it within two months, in view of the observations made hereinabove."
Pursuant to the directions of this Court dated 12.08.2015, the matter, relating to regularization of the petitioners' claim, was considered by the Committee constituted under the Act. The Committee proceeded to pass specific order on 30.12.2015 regularizing the services of the petitioners with effect from 01.11.1991. This order has been passed by a Committee chaired by the Joint Director of Education, Agra, which had the District Inspector of Schools as Member, apart from two other members. This order has attained finality. It appears that in respect of petitioners' claim for release of arrears of salary, claim has been forwarded to the authorities for release of payment, but no decision was taken upon it. It was in that context that a writ petition came to be filed before this Court being Writ A No. 6001 of 2018, which has been disposed of by the following orders on 27.02.2018:-
"The writ is disposed of directing the respondent No.2, Director of Education Secondary, Government of U.P., Lucknow to pass final orders on the recommendations of the DIOS dated 28.2.2017 annexed as Annexure No. 14 to the writ petition, within a period of six weeks from the date of production of certified copy of this order."
Even thereafter, the order was not complied with and consequently, a contempt petition had to be filed, in which notices were issued on 24.07.2018. It is thereafter that the impugned order has been passed by the Director of Education. After noticing the relevant facts, the authority has proceeded to observe, in his order, that petitioners' claim for regularization has not been examined by the appropriate regional Committee constituted in terms of section 33-C of the Act of 1982 and therefore, their services cannot be treated to have been regularized in law and they would not be entitled to benefit of such order.
Observation, contained in the order, clearly omits to consider the specific decision taken by the Committee on 30.12.2015. It is pursuant to this decision of the Committee regularizing the petitioners' service that petitioners' claim for release of salary has been forwarded. The order of the Director appears to be based upon complete non-application of mind; in as much as, relevant orders passed by the Committee have been completely ignored.
It is unfortunate that despite a specific direction as well as orders passed in contempt petition, the authority has not cared to look into the records and the order impugned has been passed in routine and mechanical manner.
In the facts and circumstances, the Director of Education (Secondary) is directed to file his personal affidavit, within a period of two weeks from today, justifying his order in light of the decision taken by the Committee on 30.12.2015. The personal affidavit of the Director shall be filed by the next date fixed.
List on 15.11.2018 at the top of the list. Liberty stands reserved to the petitioners to make a mention for the case to be taken upon on that date."
36. Perusal of the order dated 29.10.2018 discloses that the Court expressed displeasure about the manner in which the order impugned in the writ petition has been passed and directed the respondent no.2 to justify his order dated 23.08.2018 in the light of the decision taken by the Regional Level Committee on 30.12.2015 regularizing the services of the petitioners.
37. The respondent no.2 Sri Vinay Kumar Pandey filed a personal affidavit dated 11.12.2018 stating therein that he had joined as Director of Education on 27.08.2018 and impugned order was passed by the then Director of Education (Secondary). He further stated that he immediately after joining, had issued notice to the petitioners, therefore, six weeks' time was prayed for passing a detailed order after hearing the parties.
38. The matter was taken up subsequently on few dates but the case was adjourned. This Court on 29.07.2021 directed the Director of Education (Secondary), U.P. Lucknow to file a personal affidavit indicating further compliance of orders in furtherance of averments made by him in personal affidavit dated 11.12.2018 within a period of two weeks, failing which he was directed to appear in the Court personally.
39. The order dated 27.09.2021 was not complied with, which led the Court to issue bailable warrant on 18.10.2021 and directed the matter to be posted on 08.11.2021.
40. On the said date, a supplementary counter affidavit dated 08.11.2021 was filed by the respondents enclosing therewith an order dated 28.10.2021 passed by the Regional Level Committee cancelling the order dated 30.12.2015, by which the services of the petitioners have been regularized.The judgement and order dated 19.12.2017 passed in PIL No.35090 of 2015 referred to in paragraph no.24 of Supplementary Counter Affidavit was the basis of order dated 28.10.2021. It is further stated that on the basis of the said order, the authority before granting salary has to ensure four conditions referred as A, B, C & D in paragraph no.24 of the supplementary counter affidavit which has been provided in the judgement and order dated 19.12.2007 passed in PIL No.35090 of 2015. In para-25 of the affidavit it is stated that the Government Order dated 18.04.2019 was also issued in the light of the order dated 19.12.2017 passed in PIL No.35090 of 2015. Paras-24 & 25 of the supplementary counter affidavit dated 08.11.2021 are reproduced herein-below:-
"24.That the matter of the petitioners was examined and the regularization was not found in consonance with Section 33-C of the Act, 1982 and the mandatory conditions, which were to be considered by the Regional Level Committee, were not in fact duly considered in the regularization order. In this respect in Civil Misc. Writ Petition (PIL) No.35090 of 2015 (Rjesh Rai Vs. State of U.P. and others), this Hon'ble Court vide order dated 19.12.2017 issued certain directions, which were to be taken into account while considering the claim of salary by the employees. It has been directed to the Secretary that he shall examine as to whether the appointment of persons claiming salary is within the sanctioned strength of the institution or not, whether the appointment had been made after following the procedure under Law including (a) advertisement of vacancy in the newspaper (b) constitution of selection of committee (c) selection proceedings having been made in accordance with the procedure applicable and the approval of the competent authority (d) the persons, who appointed, were possessed of the required minimum qualification on the date of selection. It has also been directed that 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 Exchequer for such persons. After examining the matter of the present petitioners, it transpires that there were no specific finding recorded on these points while regularizing the services of the petitioners. Moreover, the advertisement in the newspapers and consitution of selection committee as per Section of 16-E and 16-F of the Act, 1921 was not done and therefore, the whole selection process was found doubtful.
25. That it is not out of place to mention here that om the basis of judgement and order dated 19.12.2017 passed in the PIL, a government order dated 18.04.2019 was also issued, which ratifies the decision taken by the answering respondents on 23.08.2018."
41. Denying the averments made in supplementary counter affidavit, it has been stated in the supplementary rejoinder affidavit that this Court in judgement dated 16.07.2009 in Writ Petition No.53709 of 2006 has held that the appointment of the petitioners are valid .
42. When the matter was taken up on 08.11.2021, the case was adjourned for 09.11.2021. Learned Additional Advocate General Sri Neeraj Tripathi on 09.11.2021 made a statement that as the objection raised by the respondents have already been rejected by this Court by the judgements passed in various writ petitions and they have attained finality, therefore, the arrears of salary of the petitioners shall be released, but as the sanction is to be obtained from the State Government, some time may be granted. He further placed on record an order dated 09.11.2021 passed by respondent no.2. The order dated 09.11.2021 passed by this Court reads as under:-
"Pursuant to the order of this Court dated 08.11.2021, Director of Education (Secondary), U.P. Lucknow is present before the Court.
Sri Neeraj Tripathi, learned Additional Advocate General on instruction states that matter has been revisited by the Director pursuant to the order of this Court dated 29.10.2018. He submits that whatever objections, which are being raised by the State against the grant of arrears of salary to petitioners, have already been rejected by this Court by orders in various writ petitions, and those orders have become final as they have not been assailed by the respondent-state in special appeal. Accordingly, he submits that whatever arrears of salary is due to the petitioners, is to be sanctioned at the level of State Government for which some breathing time may be granted to the respondent-state to get the amount sanctioned for payment of the same. The decision in this respect has been taken by the Director on 09.11.2021, copy of which is taken on record.
In view of the aforesaid statement advanced by Sri Neeraj Tripathi, two weeks time is granted to do the needful in the matter.
Put up on 24.11.2021.
The presence of Director of Education (Secondary), U.P. Lucknow is exempted till further orders of this Court."
43. It is pertinent to state that the respondent no.2 in paragraph no.25 of order dated 09.11.2021 stated that the objections which have been raised with regard to the appointment of the petitioners have been rejected by this Court and has sought sanction from the State Government. When the matter was taken up on 24.11.2021, the learned Additional Advocate General informed the Court that the State Government has decided to prefer Special Appeal against the order of this Court dated 09.11.2021 which was passed on the statement of learned Additional Advocate General which he made on the basis of order dated 09.11.2021 passed by the respondent no.2.
44. In such circumstances, this Court on 24.11.2021 passed an order recording its displeasure in the manner aspersion has been cast upon the Court by making a false statement in the letter dated 18.11.2021 of respondent no.2 that this Court while passing the orders on 08.11.2021 and 09.11.2021 has not considered the order dated 28.10.2021 passed by the Regional Level Committee. The order dated 24.11.2021 runs into several pages, however, relevant paragraph of the order are being reproduced herein-below:-
"7. Alongwith instructions, a letter dated 18.11.2021 addressed to the Special Secretary, Secondary Education, State of U.P, Lucknow is enclosed whereby sanction is sought for payment of salary to the petitioners subject to decision of Special Appeal preferred by the department. Relevant extract of the letter dated 18.11.2021 of the Director of Education (Secondary) U.P. Lucknow is reproduced herein below.
"प्रश्नगत प्रकरण में दिनांक 08.11.2021 एवं 09.11.2021 को पारित मा० उच्च न्यायालय इलाहाबाद के आदेश जिसमें मण्डलीय समिति द्वारा पारित विनियमितीकरण निरस्तीकरण आदेश दिनांक 28.10.2021 को संज्ञान में नहीं लिया गया है, के अनुक्रम में याचीगणों के अवशेष देयक (श्री उमाशंकर मिश्र से०नि० स०अ० का दिनांक 01.08.1995 दिनांक से 30 जून 2013 तक का रू० 35,78511=00 शब्दों में (पैतीस लाख अठहत्तर हजार पाँच सौ ग्यारह मात्र) श्री वेदप्रकाश स०अ० का दिनांक 01.08.1995 से 31.12.2015 तक रू० 50,58,828 =00 (पचास लाख अट्ठावन हजार आठ सौ अट्ठाइस मात्र) श्री मुन्ना लाल तिवारी स०अ० का दिनांक 01.08.1995 से 31.03.2016 रू० 44,22,241=00 ( चौवालिस लाख बाइस हजार दो सौ इक्तालिस मात्र) श्री सूर्यकान्त मिश्र, स०अ० का दिनांक 01.08.1995 से 31.03.2016 रू० 44,22,241=00 (चौवालिस लाख बाइस हजार दो सौ इक्तालिस मात्र) के भुगतान की विधिक बाध्यता हो रही है जिसके भुगतान की संस्तुति प्रकरण में विभाग द्वारा योजित हो रही विशेष अपील में पारित होने वाले निर्णय के अधीन की जा रही है।"
8. This Court expresses its distress and anguish about the conduct of Director of Education (Secondary) U.P. Lucknow inasmuch as false fact "प्रश्नगत प्रकरण में दिनांक 08.11.2021 एवं 09.11.2021 को पारित मा० उच्च न्यायालय इलाहाबाद के आदेश जिसमें मण्डलीय समिति द्वारा पारित विनियमितीकरण निरस्तीकरण आदेश दिनांक 28.10.2021 को संज्ञान में नहीं लिया गया है" has been stated in the letter dated 18.11.2021 of the Director of Education (Secondary), UP, Lucknow.
9. It is pertinent to mention that neither on 08.11.2021 nor 09.11.2021 any argument was advanced by learned Additional Advocate General inviting attention of the Court to consider the order dated 28.10.2021. A false statement has been made in the letter only with an intention to cast aspersion upon the Court in not considering the order dated 28.10.2021 cancelling the regularization of the petitioners. This conduct of the Director of Education (Secondary) U.P. Lucknow amounts to casting aspersion upon the Court which is not expected from an Officer of the rank of the Director of Education (Secondary) U.P. Lucknow and is contemptuous.
10. Perusal of the instructions extracted above shows that instructions are completely vague. However, Sri Neeraj Tripathi, Additional Advocate General states that what he could comprehend from the instructions and letter dated 18.11.2021 of the Director of Education (Secondary) U.P., Lucknow is that it seems that the department has decided to prefer special appeal against the order of this Court dated 09.11.2021, which order is already extracted above.
11. Perusal of instructions extracted above shows that instructions are completely vague.
12. The order of this Court dated 09.11.2021 reveals that same has been passed on the basis of statement made by Sri Neeraj Tripathi, Additional Advocate General based upon the order dated 09.11.2021 of the Director of Education (Secondary), UP, Lucknow which was placed on record. Paragraphs 25 to 27 of the order dated 09.11.2021 of the Director of Education (Secondary), UP, Lucknow are reproduced as under:-
"25- इस प्रकार विभाग द्वारा विनियमितिकरण एवं नियुक्ति के संबंध में जो आधार एवं साक्ष्य मा० न्यायालय के समक्ष प्रस्तुत किए गए उनको मा० उच्च न्यायालय द्वारा अमान्य कर दिया गया, जिस कारण याचीगणों के अवशेष देयक के भुगतान की विधिक बाध्यता उत्पन्न हो रही है। जिला विद्यालय निरीक्षक-मैनपुरी द्वारा याचीगणों के अवशेष अवधि में कार्यरत रहने की पुष्टि हेतु कोई साक्ष्य अद्यतन प्रस्तुत नहीं किया गया है।
26- अशासकीय सहायता प्राप्त माध्यमिक विद्यालय में कार्यरत शिक्षक एवं शिक्षणेत्तर कर्मचारियों के अवशेष देयक भुगतान के संबंध में शासनादेश दिनांक 20.2.2020 में यह उल्लिखित है कि "क्रमांक-13- माननीय न्यायालय द्वारा पारित आदेशों के प्रकरण-
(उपरोक्त क्रमांक 13 में उल्लिखित अवशेषों का भुगतान शासन की पूर्वानुमति से ही किया जाएगा।) 27- इस प्रकार तत्कालीन शिक्षा निदेशक(मा०) के निर्णय दिनांक 23.8.2018 एवं पूर्व में समय-समय पर मण्डलीय समिति द्वारा लिये गये निर्णय/निस्तारण आदेशों को मा० उच्च न्यायालय द्वारा अमान्य करने तथा जिला विद्यालय निरीक्षक-मैनपुरी द्वारा याचीगणों का उपलब्ध कराये गये अवशेष देयकों (श्री उमाशंकर मिश्र से०नि० का दिनांक 01.08.1995, दिनांक से 30 जून 2013 तक का रू०35,78,511=00 शब्दों में (पैतीस लाख अठहत्तर हजार पॉच सौ इग्यारह मात्र) श्री वेदप्रकाश स०अ० का दिनांक 01.8.1995 से 31.12.2015 तक रू०50,58,828=00 (पचास लाख अट्ठावन हजार आठ सौ अट्ठाइस मात्र) श्री मुन्नालाल तिवारी स०अ० का दिनांक 01.08.1995से 31.03.2016 रू०44,22,241=00 (चौवालिस लाख बाइस हजार दो सौ इक्तालिस मात्र) श्री सूर्यकान्त मिश्र, स०अ० का दिनांक 01.08.1995 से 31.03.2016 रू०44,22,241=00 (चौवालिस लाख बाइस हजार दो सौ इक्तालिस मात्र) को शासन को इस अनुरोध के साथ संदर्भित किया जाता है कि कृपया मा० उच्च न्यायालय के उक्त आदेशों के अनुपालन के दृष्टिगत निर्णय लेते हुए अग्रिम कार्यवाही हेतु यथोचित आदेश प्रदान करने का कष्ट करें।
संलग्नकःउक्तवत्।
भवदीय (विनय कुमार पाण्डेय) शिक्षा निदेशक(मा०) उत्तर प्रदेश।
13. The aforesaid conduct clearly reflects how the State authorities are taking the Court so lightly and giving lame excuses at their will not to abide by even the order dated 09.11.2021 of the Director of Education (Secondary), UP, Lucknow and statement given by learned Additional Advocate General on the basis of order dated 09.11.2021 to release the salary due to the petitioners.
14. At this stage, it is pertinent to mention that the Director of Education (Secondary) U.P. Lucknow in its letter dated 18.11.2021 has noted a false statement which has been quoted in paragraph no.7 of this order so as to mislead the State Government to seek permission to prefer the special appeal against the order dated 09.11.2021.
15. In such view of the fact, this Court is compelled to take a very serious note of the situation inasmuch as the manner in which the State authorities are acting and misleading the Court as is evident from various orders extracted above. Accordingly, the Court summons the Additional Chief Secretary (Secondary), UP, Lucknow, the Director of Education (Secondary), UP, Lucknow to appear in person and explain as to how, once the order dated 09.11.2021 has been issued by the Director of Education (Secondary), UP, Lucknow acknowledging the fact that stand of the respondents in refusing to pay salary to petitioners is not sustainable as all objections which are being raised by the respondents has been adjudicated upon by this Court in previous writ petition and have attained finality, and based upon the order dated 09.11.2021 issued by the Director of Education (Secondary), UP, Lucknow; the learned Advocate General got the matter adjourned to complete formalities to process the payment of petitioners, then how the State Government can resile from its stand and decides to prefer special appeal against the order dated 09.11.2021 which was solely based upon the order dated 09.11.2021 of Director of Education (Secondary), UP, Lucknow and on the statement made by Sri Neeraj Tripathi, Additional Advocate General to release payment to petitioners on the basis of said order."
45. The orders passed by this Court, extracted above, reflects unwarranted and obstinate conduct of the respondents in not complying the orders passed by this Court in earlier writ petitions despite the fact the Director of Education in order dated 09.11.2021 admitted in para-25 that the objections with regard to appointment of petitioners being raised in the instant case have been rejected by this Court.
46. The aforesaid facts further reflects that the respondents are hell bent to scuttle the orders passed by this Court in various writ petitions on the same cause of action between the same party and have invited unnecessary litigation which resulted in harassment of petitioners as for one cause of action, the petitioners had to approach this Court by filing at least five writ petitions before the present writ petition, and despite the finding recorded in all those writ petitions by this Court that the appointment of the petitioners are valid, yet they continued to raise same objections again and again in each orders passed by them which have been assailed by the petitioners in various writ petitions, referred above, and they have succeeded in all the writ petitions
47. Now, coming to the merits of the case, the question as to whether the principle of res-judicata are attracted in the instant case in the light of the orders passed by this Court in Writ Petition No.24305 of 2001 decided on 24.02.2005, Writ Petition No.53709 of 2006 decided on 02.07.2009, Writ Petition No.69975 of 2010 decided on 09.04.2013 and the judgement of this Court dated 12.08.2015 deciding the bunch of writ petitions, leading of which was Writ-A No.62780 of 2013.
48. Now, to appreciate the aforesaid issue, it would be apt to reproduce the orders passed by this Court in the aforesaid writ petitions.
49. The Writ Petition No.24305 of 2001 was filed by the petitioners challenging the order dated 28.02.2001 rejecting the claim of regularization of the petitioners on the ground that the selection was not made as per procedure contemplated in law as the posts were not advertised in two leading newspapers. This Court by order dated 24.02.2005 quashed the order dated 28.02.2001 holding that the objection taken by the Regional Level Committee that advertisement was not made in two leading newspapers, is not sustainable. Relevant extract of the order dated 24.02.2005 is reproduced herein-below:-
"In view of the aforesaid Division Bench judgement, the rejection of petitioner's claim by the Regional Committee on the ground that advertisement was not made in two leading newspaper does not survive, as the advertisement was made in the year 1991, i.e., prior to the date of judgement of the Full Bench in Radha Raizada's case.
Consequently, the impugned order dated 28.02.2021 is not sustainable and is quashed. The writ petition is allowed and a mandamus is issued to the Joint Director of Education to constitute a Committee which will pass appropriate orders for the regularization of the petitioners under Section 33-C of the Act, 1982 within three months from the date a certified copy of this judgement is produced before the respondent no.1."
50. Thereafter, the claim of the petitioner was again considered by the Regional Level Committee who rejected the claim of the petitioners by order dated 17.08.2006 holding that the petitioners' appointment could not have been made as there was a ban imposed by the State Government in respect to the ad hoc appointment.
51. The order dated 17.08.2006 was challenged by the petitioners in Writ Petition No.53709 of 2006 wherein this Court relying upon the judgement of this Court dated 24.02.2005 in Writ Petition No.24305 of 2001 recorded a specific finding that the spirit of the order dated 24.02.2005 is that this Court has found direct recruitment process in the order. This Court further recorded that the appointment of the petitioners were in order. Relevant extract of the order dated 02.07.2009 passed by this Court is reproduced herein-below:-
"..............The following conclusions were recorded by the court in its judgement dated 24.2.2005 in above writ petition No.24305 of 2001 (Surya Kant Mishra and others Vs. Joint Director of Education Agra Region Agra and others).
In view of the aforesaid Division Bench judgement, the rejection of petitioner's claim by the Regional Committee on the ground that the advertisement was not made in two leading newspaper does not survive, as the advertisement was made in the year 1991,i.e. prior to the date of judgement of the Full Bench in Radha Raizada's case.
Consequently, the impugned order dated 28.02.2001 is not sustainable and is quashed. The writ petition is allowed and a mandamus is issued to the joint director of Education to constitute. 1. Committee which pass appropriate orders for the regularization of the petitioners under section 33-C of the Act, 1982 within three months from the date a certified copy of this judgement is produced before respondent no.1 .
The spirit of the order passed by this court is that it has found the direct recruitment process in order. Thus, appointments of the petitioners were in order. The case was not applicable the judgement of the Full Bench in Radha Raizadha's case.
It appears that Regional Committee Agra in its impunged decision dated 17.08.2006 has excluded from consideration the above observations recorded by this Court.
In view of the above, the matter requires consideration by the Regional level Committee. The Regional Level Committee shall call for the record. The petitioner shall place on record the status of the writ petitions which have been mentiond in the order dated 17.8.2006. He shall also place on record the judgement rendered by this court on 24.2.2005 highlighting the observations made by this Court regarding status of initial appointment of the petitioner. The Regional Level Committee shall look into the matter and pass appropriate order within six weeks frim the date of production of a certified copy of this order passed by this court.
Accordingly the writ petition is allowed with above directions. The impugned order dated 17.8.2006 passed by Regional Committee a copy of which is contained as Annexure 1 to the writ petition, is quashed."
52. Again the order dated 24.07.2010 was passed by the Regional Level Committee pursuant to the judgement of this Court dated 02.07.2009 mainly on the ground that the posts in question were not notified to the Commission by the Management, whereas under Section 18 of the Act, 1982, the appointment can only be made if the Commission has failed to make appointment on the post within 60 days from the date posts have been notified to the Commission. Accordingly, it held that the appointment of the petitioners was not as per law, hence, they are not entitled to regularization, which order was again challenged by the petitioners in Writ-A No. 69975 of 2010, which was allowed by this Court on 09.04.2013. In the judgement dated 09.04.2013, the Court expressed its anguish by recording a finding that the official of the high rank i.e., Joint Director of Education, District Inspector of Schools and Principal of the College are unable to comprehend and appreciate the true import of the judgement. The relevant paras of the judgement is reproduced here-in-below:-
"From the aforesaid finding it is manifestly clear that this Court found that appointment of the petitioners was prior to the judgement of Radha Raizada's case (supra) and since the order of Radha Raizada's case (supra) was made prospective therefore, that ground was not in existence.
The Court is at loss to understand that inspite of clear finding recorded by this Court in Writ Petition No. 24305 of 2001 vide order dated 24.2.2005 when the matter was remitted to the Screening Committee/Selection Committee it rejected on the same ground and petitioners were forced to file another Writ Petition No. 53709 of 2006. Again this Court recorded a finding with reference to the finding of the earlier order of this Court that the spirit of the order passed by this Court is that it has found the direct recruitment process in order. The finding recorded in subsequent judgement of this Court reads as under :-
"The spirit of the order passed by this Court is that it has found the direct recruitment process in order. Thus, appointments of the petitioners were in order. The case was not applicable the judgement of the Full Bench in Radha Raizada's case. It appears that Regional Committee Agra in its impugned decision dated 17.8.2006 has excluded from consideration the above observations recorded by this Court."
The Screening Committee/Selection Committee was again asked to reconsider the matter. However, the Screening Committee/Selection Committee without looking the findings recorded by this Court again third time reiterated the same stand that the advertisement were not made in two newspapers.
As regards the submission of learned Standing Counsel that petitioners were not working at the time of the commencement of the amendment of Section 33-A of the Act, 1982 no such finding has been recorded by the Screening Committee/Selection Committee. The said averment has been made in the counter affidavit. The Supreme Court in a long line of decision has settled the law that the reasons cannot be supplemented by affidavits. Reference may be made to judgement of Supreme Court in M.S.Gill and Another v. The Chief Election Commissioner, New Delhi and others reported (1978) 1 SCC 405 and Laxmi Kant Bajpai v. Haji Yaqub and others reported (2010) 4 SCC 81. The said reason is not mentioned in the impugned order.
The Court is constrained to note that an official of high rank i.e. a Joint Director of Education; District Inspector of Schools and Principal of the College are unable to comprehend and appreciate the true import of the judgements of this Court. In all the earlier judgements specific direction was made to the Screening Committee/Selection Committee to consider the regularization of the petitioners in terms of Section 33-C of the Act, 1982 ignoring the specific directions the Screening Committee/Selection Committee is harping on the same issues which have already been decided by the Court in its earlier orders.
After careful consideration and perusal of the record as well as submission made by respective learned counsel for the parties, I am of the view that the impugned order dated 24.7.2010 (Annexure -1 to the writ petition) is vitiated for the aforesaid reasons. It needs to be set aside. Accordingly, it is set aside.
The matter is remitted to the Screening Committee/Selection Committee again to comply the directions of this Court issued in the order 24.2.2005 passed in Writ Petition No. 24305 of 2001 and order dated 2.7.2009 passed in Writ Petition No. 53709 of 2006 and pass appropriate order within three months from the date of communication of this order strictly in the light of observation made herein above.
Writ petition is allowed."
53. Thereafter, again the claim of the petitioners was rejected by the Regional Level Committee by order dated 04.10.2013, which came to be challenged by the petitioners in separate writ petitions which were clubbed together and decided by a common order dated 12.08.2015, treating Writ-A No.62730 of 2013 as leading petition. Relevant extract of the said order is reproduced herein below:-
"........Hon'ble Court while deciding the writ petition No. 24305 of 2001 had categorically came into conclusion that no such procedure has been provided under Section 18 of the Act but this direction for making an advertisement in two leading newspapers was given by the Full Bench of this Court in Radha Raizada's case reported in 1994 (3) UPLBEC 1551 and subsequently in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722, a Division Bench of this court held that the direction issued by the Raizada's case (supra) was with prospective in nature and would be applicable in case where the person is appointed subsequent to the decision of this Full Bench and as such the same would not be applicable in the case of the petitioners.Therefore, the first objection initially taken by the regularisation committee does not have any ground to stand and consequently the earlier impugned order dated 28.02.2001 was quashed by this Court with direction to the Joint Director of Education to constitute a committee for regularisation of the petitioners under Section 33-C. Therefore, it is apparent that whatever the objection taken by the respondents had been rejected by this Court while allowing the Writ Petition No. 24305 of 2001. But unfortunately again the respondents have taken a plea while rejecting their claim for regularisation on the ground that the petitioners were not paid salary since 1995, therefore, their claim do not fall under Section 33-C of the Act. The records clearly give an impression that the D.I.O.S. while forwarding the papers on 06th June, 2000 had clearly held that the the appointments of the petitioners were made in between 14.05.1991 to 06.08.1993 and they were working continuously in the institution and subsequently it had also brought on record that the salary of the petitioners were paid on the basis of interim order passed by this Court in the year 1991. Therefore, subsequently, the objection raised by the Regularisation Committee that the petitioners were not paid since 1995 is not sustainable in accordance with the provisions of Section 33-C. It is suffice to say that it is not disputed that initial appointment of the petitioner in the institution was in accordance with law. The Accounts Officer submitted a detailed report dated 23.05.2001 stating therein that the petitioners were entitled for the salary as well as for regularisation but unfortunately the records would lead to the conclusion that the claims of the petitioners were rejected on the basis on non-existence grounds and at no point of time the department had taken any decision strictly in accordance with the law but time to time they have changed the ground for rejecting the claim of the petitioners. The statue clearly provides that working of a teacher is essential ingredients for consideration of regularisation and the petitioners' cases also fall under the cut off date but the aforesaid consideration had not been made by the regularisation committee. It is evident from the record that the petitioners were working in the institution and if it is admitted situation that the petitioners were working on the date when regularisation rules came into existence they are entitled to be considered for regularisation. Unfortunately the petitioners inspite of their best effort, their services had not been regularized till date, even though their rights accrued 1992. Inspite of various directions issued by this court their future is still at stake. In view of the aforesaid facts and circumstances, the order impugned dated 04.10.2013 passed by the Regularisation Committee headed by the Joint Director of Education cannot be sustained and is hereby set aside. The writ petitions are allowed. The matter is remitted to the Regularisation Committee headed by the Joint Director of Education to consider and decide it within two months, in view of the observations made hereinabove."
54. Now, after the order passed by this Court on 12.08.2015, the services of the petitioners were regularized by order dated 30.12.2015.
55. Now in the light of the orders passed in several writ petitions, referred above, whether it is open to the respondents to take objection in respect to legality of appointment of petitioners in the instant writ petition to deny the claim of salary of the petitioners, moreso, when this Court repeatedly in all the aforesaid judgements arising out of the same cause of action has recorded a finding that the appointment of the petitioners are as per law and those judgements have attained finality in the absence of any challenge to them by the respondents.
56. At this stage, it would be apt to refer to the judgement of the Apex Court elucidating the principle of res-judicata. The first judgement on the said point placed by Sri Anil Bhushan is AIR 1965 SCC 1153 (Gulabchand Chhotalal Parikh Vs. State of Bombay). In the said case, the question which came up for consideration before the Apex Court was whether the decision of the High Court on merits on certain matter after contest in a writ petition under Article 226 of the Constitution operates as res-judicata in regular suit with respect to the same matter between the parties. The Apex Court considered the principle of res-judicata enunciated by the Apex Court in the case of Daryao's's case, (1962) 1 SCR 574. Relevant paras - 53, 54, 60, 61 are reproduced herein below:
"53. In Daryao's Case 1962-1 SCR 574: (AIR 1961 SC 1457) this Court had again dealt with the question of the applicability of the principle of res judicata in writ proceedings. The matter was gone through very exhaustively and the final conclusions are to be found at p. 592. (of SCR): (at pp. 1465-1466 of AIR). We may summarise them thus :
1. If a petition under Art. 226 is considered on the merits as a contested matter and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution.
2. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.
3. If the petition under Art. 226 in a High Court is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32.
4. Such a dismissal may, however, constitute a bar to a subsequent application under Art. 32 where and if the facts thus found by the High Court be themselves relevant even under Art. 32.
5. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend on the nature of the order. If the order is on the merits, it would be a bar.
6. If the petition is dismissed in limine without a speaking order, such dismissal cannot be treated as creating a bar of res judicata.
7. If the petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under Art. 32 because, in such a case, there had been no decision on the merits by the Court.
54. It can be said with equal force that a regular suit for the determination of the matter which had been decided on merits by the High Court or this Court on a writ petition cannot be given the status of a de facto appeal against the order of the High Court or of this Court. A solemn declaration and order by the Court in its extra-ordinary jurisdiction is not to be set at nought by a Court of ordinary jurisdiction whose decisions are subject to the appellate or revisional jurisdiction of that Court.
60. As a result of the above discussion, we are of opinion that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial.
61. We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Arts. 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We therefore, hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter."
57. In the case of Workmen Coachin Port Trust AIR 1978 SC 1283, the Apex Court in para-7 has detailed the principle of res-judicata, however, in the facts of that case res-judicata was not attracted, para-7 of the judgement is reproduced herein-below:
"7. It is well known that the doctrine of res judicata is codified in section 11 of the Code of Civil Procedure but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of section 11 of the Code of Civil Procedure and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicity decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided."
58. In almost identical facts as in the instant case, the Apex Court in the case of Neelima Srivatava Vs. State of U.P & Ors., AIR 2021 SC 3884, has held that once an issue between the parties has been settled by a judgement and it has attained finality interse between the parties, the judgement which has attained finality crystallized the rights of the party, therefore, the decision rendered by the competent court cannot be challenged in co-lateral proceedings, inasmuch as if it is allowed to do so, that would lead to confusion and chaos, and finality of the proceedings would seize to have any meaning. Relevant Paras 32 to 38 are reproduced herein-below:-
"32. The Division Bench of the High Court proceeded as if it was hearing an appeal against the judgment dated 23.01.2006 of the learned Single Judge which had already attained finality. Appeal filed under the Rules of the Court was filed against the judgment dated 15.05.2014 rendered in Writ Petition No. 8597 of 2010. It is a well settled principle of law that a Letters Patent Appeal which is in continuation of a Writ Petition cannot be filed collaterally to set aside the judgment of the same High Court rendered in an earlier round of litigation ignoring the principles of res-judicata and doctrine of finality.
33. By a majority decision in Naresh Shridhar Mirajkar & Ors. Vs. State of Maharashtra & Anr. has laid down the law in this regard as under:-
"When a Judge deals with matters brought before him for his adjudication, he first decides questions, of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court."
34. In Rupa Ashok Hurra Vs. Ashok Hurra & Anr., while dealing with an identical issue this Court held that reconsideration of the judgment of this Court which has attained finality is not normally permissible. The decision upon a question of law rendered by this Court was conclusive and would bind the Court in subsequent cases. The Court cannot sit in appeal against its own judgment.
35. In Union of India & Ors. Vs. Major S.P. Sharma & Ors., a three-judge bench of this Court has held as under:-
"A decision rendered by a competent court cannot be challenged in collateral proceedings for the reason that if it is permitted to do so there would be "confusion and chaos and the finality of proceedings would cease to have any meaning."
36. Thus, it is very well settled that it is not permissible for the parties to re-open the concluded judgments of the Court as the same may not only tantamount to an abuse of the process of the Court but would have far reaching adverse effect on the administration of justice.
37. It is undisputed that in compliance of the judgment of the learned Single Judge dated 15.05.2014 vide order dated 31.10.2015 respondents regularized the services of appellant subject to the outcome of the proceedings in the LPA and the appellant now stand superannuated having attained the age of superannuation after about 33 years of continuous service.
38. In the end, a feeble attempt was made by the learned counsel for the State- respondent to persuade us not to interfere in the matter on the ground that the services of the appellant were terminated vide letter dated 19.05.1986 which was never challenged as such her services stood terminated. We are not ready to accept the proposition canvased by learned counsel for the respondent at this stage for the simple reason that it was open for the State to have advanced this contention before the learned Single Judge in the two Writ Petitions decided vide judgment and order dated 23.01.2006. Once this argument was never made before the learned Single Judge in the proceedings which has attained finality, the respondent cannot be permitted to raise this argument in this appeal."
59. From the reading of the aforesaid judgements, it is clear that the doctrine of res-judicata as embodied in Section 11 of Code of Civil Procedure is based on the high public policy to bring about an end to litigation by giving finality to judgements interse parties and save the litigant from harassment second time. In other words, Rule of res-judicata gives finality to a decision arrived at after due contest and after hearing the parties interested in the controversy. The said principle has not only been made applicable to suit but also in other proceedings like writ petitions under Article 226 of the Constitution of India.
60. The Rule of res-judicata as engrafted in Section 11 of the Code of Civil Procedure is that if by any judgement and order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of identical issue in a subsequent proceedings between the same parties. The principle of res-judicata also come into play when by the judgement and order a decision of a particular issue is implicit in it, i.e., it must be deemed to have been necessarily decided by implication; on existence of such condition, the principle of res-judicata on that issue is directly applicable.
61. In view of the doctrine of res-judicata as has been elucidated by the Apex Court. Now, this Court proceeds to consider whether in the instant case the principle of res-judicata is attracted and bars the respondents from raising any objection with regard to the legality of the appointments of the petitioners.
62. In the instant case, it is not in dispute that four permanent substantive posts came into existence on which the Committee of Management resolved to make appointment, accordingly, the posts were advertised in two newspapers and the petitioners were selected on the basis of quality point marks. The petitioners preferred a writ petition No.18381 of 1992 praying for a writ of mandamus to pay salary of the petitioner in which an interim order was passed on 22.05.1992 and the petitioners were paid salary from 01.11.1991 to July, 1995, whereafter, salary of the petitioners were stopped by the D.I.O.S., which again was challenged by the petitioners in a writ petition which was dismissed by the Court granting liberty to the petitioners to assail the order of stopping salary in Writ Petition No.18318 of 1992. The petitioners challenged the said order stopping salary in Writ Petition 18381 of 1992 which was disposed of by this Court directing the respondents to consider the claim of the petitioners for salary as well as regularization by judgement and order dated 04.02.1999.
63. The respondents, thereafter, considered the claim of the petitioners for regularization, and rejected it by order dated 28.02.2001 on three grounds, namely, posts were not advertised in two newspapers having wide circulation in the area; requisition was not sent by the Committee of Management to the Commission for making appointment; and reservation criteria have not been followed by the Committee of Management in making appointment.
64. The petitioners preferred a Writ Petition No.24305 of 2001 challenging the order dated 28.02.2001. This Court did not find ground of rejection sustainable in law and quashed the order dated 28.02.2001 by judgement dated 24.02.2005. The judgement of this Court dated 24.02.2005 has attained finality as the same has not been assailed by the respondents in appeal.
65. The respondents in compliance of the order dated 24.02.2005 passed another order rejecting the regularization of the petitioners by order dated 17.08.2006 almost on the same ground on which the order dated 28.02.2001 was passed. This Court by order dated 02.07.2009 again quashed the order dated 17.08.2006 and recorded a finding by placing reliance upon the judgement dated 24.02.2005 that the spirit of the judgement dated 24.02.2005 clearly indicates that this Court finds that the appointment of the petitioners are legal, consequently, this Court recorded a finding that the appointment of the petitioners were in order which is evident from the extract of the judgement dated 02.07.2009 quoted above, which judgement has also attained finality as the same has not been challenged by the respondents in appeal.
66. Thereafter, again the respondents passed an order on 24.07.2010 rejecting the regularization of the petitioners almost on the same ground on which previous orders were passed. In para-5 of the said order, the Regional Level Committee deliberated one of the reason besides other reasons for rejecting the claim of the petitioners that the posts in question was not notified to the Commission. The said ground was found not sustainable by this Court. This Court by the order dated 09.04.2013 quashed the order dated 24.07.2010. The order dated 09.04.2013 extracted above, reveals that this Court expressed anguish about the manner in which the officers of the rank of Joint Director failed to comprehend and appreciate true import of the earlier judgements of this Court.
67. The respondents after the judgement and order dated 09.04.2013 passed a fresh order dated 04.10.2013 rejecting the claim of regularization of petitioners which came to be challenged by the petitioners by separate writ petitions and all the writ petitions were connected and decided by leading Writ-A No.62780 of 2013. The order dated 04.10.2013 was also passed on the same ground on which earlier orders have been passed. This Court quashed the order dated 04.10.2013 by the judgement and order dated 12.08.2015 extracted above.
68. The finding returned by this Court in judgement and order dated 12.08.2015 discloses that whatever objections were taken by the respondents in respect of appointment of petitioners, had been rejected by this Court while allowing the Writ Petition No.24305 of 2001, yet the respondents continued to take same objection and passed the order rejecting the claim of the petitioners on the same ground which have been rejected by this Court in all the writ petitions challenging the rejection of claim of the petitioners. This fact has also been admitted by the Director of Education in para-25 of the order dated 09.11.2021.
69. Thus, from the finding returned in various writ petitions, referred above, it is manifest that the objections which have been taken in the orders impugned in the instant writ petition in rejecting the claim of the petitioners that the appointment of the petitioners were perse illegal on account of the fact that the posts were not advertised in two newspapers having wide circulation; that the mandatory requirement of Section 18 of Act 1982 that ad hoc appointment could be made by Committee of Management after 60 days period has expired from the date the posts were notified to the Commission; that no financial approval has been granted to the appointment of the petitioners by D.I.O.S., have been rejected by this Court. Therefore, now it is not open to the respondents to raise the same objections in denying the claim of the petitioners which have already been rejected by this Court in previous judgements and orders. It is manifest from the records that all the objections or grounds which have been taken by the respondents in rejecting the claim of the petitioners are the issues directly and expressly involved in the previous writ petitions, therefore, principle of res-judicata bars the respondents in taking same grounds in rejecting the claim of the petitioners.
70. Learned Additional Advocate General has tried to demonstrate from the pleadings of the writ petition that even as per the case of the petitioners, the mandatory requirement of expiry of 60 days period from the date the posts had been notified to the Commission before making ad hoc appointment, had not been complied with by the Committee of Management. He submits that the requisition was sent to the Commission on 22.08.1991 and advertisement was issued on 03.10.1991 and petitioners joined on 20.10.1991. Thus, it is evident that the period of 60 days had not expired between the requisition notifying the posts to the Commission and posts were advertised for appointment.
71. In this regard, it would be apt to refer to the order dated 24.07.2010 passed by the Regional Level Committee, in which in para-5 specific objection was taken by the Regional Level Committee that the posts were not notified to the Commission, and mandatory condition as provided under Section 18 of the Act, 1982 that ad hoc appointment can be made by the Committee of Management after the expiry of 60 days period from the date the posts in question have been notified to the Commission and Commission has failed to make appointment has not been followed by the Committee of Management in making ad hoc appointment, therefore, the appointment of the petitioners were invalid and they cannot be regularized. The said objection was repelled by this Court in Writ Petition No.69975 of 2010 by the judgement and order dated 09.04.2013. The relevant extract of the order dated 09.04.2013 is already quoted above. The Apex Court in the case reported in (1977) 3 SCR 428, Uttar Pradesh Vs. Nawab Hussain has explained the principle of constructive res-judicata. Relevant extract of the judgement is reproduced herein below:-
"Shinghal J., delivering the judgment on behalf of the Court applied the principles of constructive res judicata and held that a suit to challenge the order of dismissal from service after dismissal of the writ petition on merits was not maintainable although a new ground of attack was made out in the suit which had not been taken in the writ petition. This was so on the application of the principle of constructive res judicata. It will be useful to quote a passage from page 431 (of SCR) : (at p. 1683 of AIR) which runs as follows :-
"Reference in this connection may be made to Ex Parte Thompson, (1985) 6 QB 720. There A. J. Stephens moved for a rule calling upon the authorities concerned to show cause why a mandamus should not issue. He obtained a rule nisi, but it was discharged as it did not appear that there had been a demand and a refusal. He applied again saying that there had been a demand and a refusal since then. Lord Denman C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, he could not have "the same application repeated from time to time" as they had "often refused rules" on that ground. The same view has been taken in England in respect of renewed petition for certiorari, quo warranto and prohibition, and, as we shall show, that is also the position in this country."
72. In view of the judgement of the Apex Court in the case of Nawab Hussain (supra) and the principle of constructive res-judicata, this ground is not open to the respondents to raise it after five round of litigation which had been contested between the parties on the same cause of action. Therefore, this Court is not inclined to test the legality of the arguments raised by the learned Additional Advocate General. Accordingly, this Court finds that the objections which have been taken by the respondents in denying the claim of the petitioners are barred by principle of res-judicata and constructive resjudicata, hence, are not sustainable in law.
73. So far as the judgements relied upon by the learned counsel for the respondents are concerned on the point that the procedure contemplated under Section 18 of the Act 1982 has to be scrupulously followed while making ad-hoc appointment. It is no doubt true that the Courts have been consistent in holding that the conditions enumerated under Section 18 of the Act, 1982 has to be followed scrupulously in making ad-hoc appointment, and the procedure for making appointment under Section 18 of the Act, 1982 as contemplated under the First Removal of Difficulties Order 1981 has to be adhered to, but in the instant case these judgements have no application, inasmuch as objections which have been taken in respect to appointment of petitioners have already been rejected by this Court in five writ petitions prior to the present writ petition and this Court has already held the appointment of the petitioners as per law and finding recorded therein are binding upon the parties and have attained finality interse parties, therefore, it is not open to challenge the appointment of the petitioners, therefore, in such view of the fact this Court is not proceeding to discuss each case relied upon by the learned counsel for the respondents as it would unnecessarily burden the judgement.
74. In regard to the argument of learned Additional Advocate General based upon the judgement of the Apex Court in the case reported in (2007) 2 SCC 230 Raghunath Rai Bareja & another Vs. Punjab National Bank & others, law will prevail over equity, it would be apt to mention that the controversy interse party has been settled by five judgements of this Court prior to the present writ petition which have been detailed above, therefore, the question of equity is not involved in the instant case. Thus, for this reason, the arguments of learned Additional Advocate General is misconceived and is not sustainable.
75. Further submission that pure question of law can be raised by AIR 2010 SC 3817, Greater Mohali Area Development Authority & Others Vs. Manju Jain Others, it is pertinent to mention that the said principle has also no application in the instant case as this Court has held that the objections which have been taken by the respondents have already been decided by this Court in previous five writ petitions, therefore, the said principle has no application in the instant case.
76. The order dated 28.10.2021 passed by the respondents reviewing its earlier order dated 30.12.2015 passed by Regional Level Committee is not sustainable for one more reason that the Regional Level Committee has no power to review its order as it is settled in law that the review is the creation of statute and authority can exercise the power of review if it is conferred by the statute. In this respect it would be apt to refer to para 11 of the judgement of the Apex Court reported in AIR 1987 SC 2186, Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) and others. Relevant extract of the said judgement is reproduced here-in-below:-
"It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice- Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity."
77. Further, the order dated 23.08.2018 is not sustainable in law for want of principle of natural justice, inasmuch as the order impugned do not reflect that any notice or opportunity of hearing was afforded to the petitioners before passing the impugned orders.
78. Now, the question arises as to whether this Court can issue a writ of mandamus to pay the entire arrears of salary to the petitioners since the date of regularization including consequential benefits, it would be appropriate to refer to the judgement of Apex Court in the case of Hari Krishna Mandir Trust Vs. State of Maharashtra & Ors., (2020) 9 SCC 356, wherein the Apex Court has held that in appropriate cases the Court may itself pass an order or give direction to the public authorities or Government which ought to have exercised by the authorities properly and lawfully. Relevant paragraph nos. 100 to 102 of the judgment are reproduced here-in-below:
"100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.
101. In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.
102. In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Directors of Settlements, A.P. v. M.R. Apparao. Pattanaik J. observed: (SCC p.659, para 17) "17.....One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, "Mandamus" means a command. It differs form the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (See Kalyan Singh v. State of U.P.). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law." (emphasis in original)"
79. In the instant case, six round of litigation have taken place and the claim of the petitioners have been rejected on frivolous grounds, therefore, this Court instead of relegating the matter to the authorities issues a writ of mandamus directing the respondents to release the salary of the petitioners.
80. Before parting with the judgement, this Court may record that the conduct of the State Officers are malicious, unconscionable, arrogant and lack sense of humanity. The said observation is recorded in the light of facts detailed above that in five writ petitions prior to the present writ petition the issues raised herein were directly and expressly involved and have been settled by this Court, yet the authorities without adopting a lawful approach were hellbent to scuttle the orders passed by this Court.
81. The approach of the respondent Officers are abnoxious and conceited which is fortified from the fact that the Director of Education in its order dated 09.10.2021 have admitted that the objections which have been raised by the Department in the orders impugned, have already been rejected by this Court in various writ petitions and on the basis of the said order, the learned Additional Advocate General made a statement that the Director of Education revisited the matter and found that the claim of the petitioners for salary is genuine and sought time to seek sanction from the State Government for releasing the salary, which has been recorded by this Court in its order dated 09.11.2021 and got the matter adjourned, but despite the statement given by the learned Additional Advocate General seeking time to get sanction from the State Government to release salary of petitioners, the State Government took a somersault and refused to pay the salary of the petitioners. The matter has not ended here only, a false aspersion had been cast upon the Court by the Director of Education in letter dated 18.11.2021, wherein he has made a false statement that the Court has not considered the order dated 28.10.2021 in passing the orders dated 08.11.2021 and 09.11.2021 which fact was a false statement, and this Court passed an order on 24.11.2021 reprimanding the conduct of the Officer in casting aspersion upon the Court. This approach of the State Officers is highly condemanble and has resulted not only wasting precious time of the Court but has resulted in wasting the time of State machinery and putting the heavy financial burden upon State machinery in making unnecessary expenditure in the litigation.
82. In view of the fact stated above, moreso, when the authorities have not even spared this Court in casting aspersion upon it, this Court finds it to be fit case to impose a cost of Rs.5,00,000 (Rs. Five Lacs) upon the State which shall be released to all the petitioners equally within two months. The cost so paid shall be recovered from the erring Officials after enquiry.
83. For the reasons given above, the impugned orders dated 23.08.2018 passed by the Director of Education (Secondary), State of U.P., Lucknow and order dated 28.10.2021 passed during the pendency of the writ petition by the Regional Level Committee are hereby quashed. The respondents are directed to pay the salary and arrears of salary including all the consequential benefits to the petitioners within a period of two months from the date of production of a certified copy of this order.
84. Accordingly, the writ petition is allowed with costs quantified above.
Order Date :- 1.8.2022 NS