Allahabad High Court
Vijai Pratap Ojha Son Of Shri Suresh ... vs State Of U.P. Through Its Secretary ... on 27 April, 2006
Author: Shishir Kumar
Bench: Shishir Kumar
JUDGMENT Shishir Kumar, J.
1. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 25.9.2002 passed by District Basic Education Officer, Ballia and in consequence thereof communication Letter dated 26.9.2002 issued by the Manager of the Committee of Management of the institution concerned (Annexures-7 and 8 respectively) to the writ petition.
2. The facts arising out of the writ petition are that there is a recognized Junior High School known as Rashtriya Balika Vidyalaya Dubhar, district-Ballia. The institution is engaged in imparting education up to Junior High School level and the duly elected Committee of Management is managing the same In order to make selection and appointment on the post of Assistant Teacher, a vacancy in question was advertised by the Manager of the Committee of Management of the institution on 22.8.1985 and 24.8.1985 respectively in two newspapers "Janwarta" and 'Bhrigukshetra'. In pursuance of the aforesaid advertisement, the petitioner applied for consideration of his candidature and the petitioner was selected by the Selection Committee where the nominee of the District Basic Education Officer was present and on the basis of merit, the petitioner was declared selected and the appointment letter was issued in favour of the petitioner on 15.10.1985 and the said appointment of the petitioner was duly approved by the Additional District Basic Education Officer, Ballia on 15.10.1985. On 15.6.1988 (he petitioner was confirmed and the competent authority approved the said order. Subsequently, the petitioner was accorded selection grade vide letter dated 19.2.1996 and since then the petitioner is performing and discharging his duties as a substantively appointed employee in the institution.
3. It appears that one Usha Rani respondent No. 4 whose services were terminated by the Committee of Management by order dated 22.10.1983, she filed Suit No. 4 of 1986 but it is relevant to mention here that the petitioner at no point of time was ever impleaded in the writ petition as one of the defendant-respondents in the aforesaid suit. The order of termination of respondent No. 7 was approved by the District Basic Education Officer. On the basis of the aforesaid vacancy on account of termination of respondent No. 7 the petitioner was appointed and as stated above from the date of initial appointment of the petitioner, the petitioner is working on the said post.
4. The suit filed by respondent No. 7 was dismissed on 14.9.1987. But it appears that on an application filed by respondent No. 7 the order of dismissal was revived vide order dated 10.4.1991 and by order dated 30.5.1991, the Civil Judge, Ballia decreed the suit of respondent No. 7. On the basis of the aforesaid decree in favour of respondent No. 7 the District basic Education Officer passed the impugned order dated 25.9.2002 directing the Committee of Management to delete the name of the petitioner from the salary bill. The same has been filed as Annexure-7 to the writ petition Aggrieved by the aforesaid order, the petitioner has approached this Court. It has been submitted on behalf of the petitioner that the decree passed by the Civil Judge dated 30.5.1991 is not binding upon the State-respondent namely Basic Shiksha Adhikari, Ballia and State of I.J.I'. During the course of proceedings before the Civil Judge various issues have been framed and Issue No. 7 was specifically decided by the Civil Judge that the applicant (Smt. Usha Rani) is not entitled for any relief against respondents No. 3 and 4 i.e. District Basic Education Officer and State of U.P. It is well settled now that a decree only binds the parties to the proceedings and in the present case admittedly the Civil Judge while passing the order dated 30.5.1991 has clearly specified that the respondents cannot claim any relief against respondents No. 3 and 4. Therefore, the order dated 25.9.2002 and the consequential order passed on the basis of the decree in favour of respondent No. 7, respondents No. 3 and 5 have got no jurisdiction to pass the aforesaid order against the petitioner.
5. In support of his contention the counsel for the petitioner has placed reliance upon a judgment of Apex Court reported in JT 2001 (9) SC 584 Shiv Kumar Tiwari (dead) by L.Rs. v. Jagat Narain Rai and Ors. and submitted that it has clearly held that the judgment and decree could not be pressed into service to the detriment of right of parties and it requires no serious exercise to place on record the position of law that the judgment/decree/order of Courts or any other authority binds only the parties to it or their privies when it concern the rights of parties and such proceedings purport to be adjudicated, also the rights of contesting parties by means of an adversarial process. Even assuming that the communication of the Basic Education Officer proceed to accept its binding nature legitimately made detriment and prejudice of the parties. Relevant paras 6 and 7 of the aforesaid case are quoted below:
6. There is no controversy that the institution had only one sanctioned post of lecturer in mathematics as on date and if the work load and sanctioned strength really required more than one, they should have moved the competent authorities in accordance with law and obtained proper sanction for more than one. The learned single judge in the High Court has adverted to certain facts, stated to be on the basis of records, that the competent authority has not only been according approval of the appellant on temporary basis, academic year wise, but the management had been calling for applications and the appellant had been applying every time and it is only in 1973 when his period was about to expire, the appellant moved the civil court for relief taking altogether a different stand. Though the appellant should have known there could not have been any appointment for any period or duration without the approval of the competent authority and the relief sought for involved a decision on the exercise of powers already made and to be made thereafter by such authorities, the appellant did not care to implead the department in the suit or even the first respondent in the pending suit when he came to be appointed, as admitted in para 2 of the written submission of the management, "In the meanwhile, the respondent No. 1, Shri Jagat Narain Rai, had been appointed by a regular selection process by an order dated 6.9.1973 after obtaining the approval of the department, he was appointed regularly" and also as conceded in para III of written submissions on behalf of the appellant "...At the same time, it cannot also he disputed that the respondent Shri Jagat Narain Rai has also worked as a mathematics lecturer with effect from 6th September, 1973 it is also undisputed that there is only one sanctioned post of mathematics lecturer against which two persons have been working with full work-load." The least said about the manner of consideration and disposal given in the judgment of the civil court in Suit No. 108 of 1973 is better. Such a judgment could not be pressed into service to the detriment of the rights of the first respondent and it requires no serious exercise to place on record the position of law that the judgment decree order of courts or any other authority hinds only the parties to it, or their privies when it concern the rights of parties and such proceedings purport to he adjudicated, also the rights of contesting parties by means of an adversarial process. Even assuming that the communication of the deputy director proceed to accept its binding nature- it could not have been legitimately made to the detriment and prejudice of the first respondent and it is futile for the appellant or the management to base any right on that alone. The plea that the department or the first respondent should have filed an appeal, though not parties to the suit, at any rate, does not lie in the mouth of either the appellant or the management to be taken. Though it would have been open to them to file an appeal with the leave of the court, there is no duty or obligation cast on them to do on pain of distress when in law they could also legitimately ignore, as not affecting them. The judgment of the Civil court in suit No. 108 of 1973 has no value or merit for asserting any claim or right against the first respondent or the officers of the education department.
7. That apart, on coming to know of the orders of the deputy director dated 9. It. 1979, the first respondent filed CMWV No. 9255 of 1979 and obtained interim orders of stay on 16.11.1979 and the same was said to have been confirmed also on 23.2.1981. In the teeth of the one only of sanctioned post, there was no justification whatsoever either in law or otherwise for the college management to have allowed the appellant to continue in serviced or availed of his services, as they claim and the appellant could not also after the said orders of the high Court legitimately claim to continue in office and worked as he claimed without receiving payment of any kind, as alleged, for such a long period. It is not known with what hopes or aim such things have been allowed to take place by them. There is no rhyme or reasons for them now to plead for or claim any equities or throw blame upon others and use it as a cover to make such claims as cannot be countenanced in a court of law. While that he the position, the management could not take any exception to the order of the learned single judge holding that the decree of the civil court being only against the society, its president and manager by name and if they have permitted him to function, they are liable to pay the salary personally, leaving at the same time liberty with the appellant, if so advised, to proceed against them. It could, therefore, be seen that the said observation became inevitably necessary in the light of the rights declared in favour of first respondent while allowing his writ petition and for rejecting as a consequence the writ petition filed by the appellant, without granting, at the same time, any relief against the management. The plea of estoppel sought to he pressed into service by the appellant as well as the college management against the department is not only misconceived hut has no merit of acceptance when the very order of the deputy director choosing to accept the judgment to the detriment of the rights of the first respondent, came to be set aside in the writ proceedings instituted by the first respondent. Such a plea also fails to take into account the vital fact that the authorities of the education department, the deputy director, could not have legitimately chosen to accept a judgment to which he was not a party when such acceptance has the impact of directly and seriously prejudicing the rights of the first respondent, who was also not made a party to the suit before the civil court.
6. In view of the aforesaid fact it has been submitted on behalf of the petitioner that the order impugned passed by the Basic Education Officer is clearly misconceived as the judgment of the civil court will not bind as there was a specific direction in the said judgment that respondent No. 7 cannot claim any relief against the State, therefore, the Basic Education Officer could not have legitimately chosen to accept the judgment to which he was not a party to the proceeding because acceptance is the impact of directly and seriously prejudicing the rights of the parties which was not a party to the suit before the civil court. Respondent No. 7 can claim right from the Committee of Management and not from the State Exchequer, as a teacher can be appointed only with the prior approval of the District Basic Education Officer and it cannot be said that it is only Committee of Management who can appoint or dispense with the services of an employee on their own accord. In view of the aforesaid submission, the counsel for the petitioner has submitted that the order passed by the respondent is liable to be quashed and the salary which is due to the petitioner to be paid and an order to this effect be passed restraining the respondents from interfering in the peaceful working of the petitioner.
7. The writ petition was entertained and by order dated 16.12.2002 the respondents were directed to file a counter affidavit. A counter affidavit has also been filed on behalf of contesting respondent no 7 the counter affidavit filed on behalf of the State states that in the institution the post sanctioned by the authorities is 1 Head Master, 5 Assistant Teachers, 1 Clerk and 3 Class-IV employees. Respondent No. 7 was appointed on a sanctioned post and on the basis of various irregularities and serious charges her services were terminated and the termination order against respondent No. 7 was approved by the competent authority. On the basis of the vacancy caused due to the termination of respondent No. 7 the petitioner was given appointment after proper procedure followed and Ins appointment was also approved by the Competent Authority and he is still working. It appears that after a lapse of two years, respondent No. 7 field suit No. 4 of 1986 before Civil Judge, Ballia. Though the said suit was dismissed on 14.9.1997 and respondent No. 7 aggrieved by the aforesaid order filed an appeal/revision, then by order date 10.4.1991 the matter was remanded to the Civil Judge, Ballia and subsequently, the suit has been decreed. An application for execution No. 17 of 1997 was filed for execution of the said decree that as in the execution proceedings the executing court has directed to make the payment to respondent No. 7 and in the event of non payment there was an apprehension for attachment of the property of the respondent as such an order against the petitioner has been passed. Though the petitioner is working from about 17 years as permanent teacher but the responsibility of the payment of salary by the State is only to the sanctioned posts of the institution, therefore, it has been directed to delete the name of the petitioner from the salary bill. In para 13 it has clearly been stated by the respondents that in the appointment letter or in the approval letter there is no whisper or mention that the appointment of the petitioner is being made on the basis of the vacancy caused by respondent No. 7 Further averment has been made in the counter affidavit that against the order impugned the petitioner has got an remedy by way of filing an appeal, as such the writ petition is liable to be dismissed.
8. A counter affidavit has also been filed on behalf of respondent No. 7. It has been stated that respondent No. 7 was appointed on the post of Assistant Teacher in the institution on 8.10.1977. As the services were terminated on 22.10 1983 and the approval was also granted by order dated 6.4.1984, aggrieved by the aforesaid order, a suit was filed and the suit was decreed against the Committee of Management and the order of termination dated 22.10.1983 has been declared as null and void. The appeal filed by the Committee of Management has already been dismissed and the Second Appeal No. 506 of 1992 filed by the Committee of management is still pending for consideration. It has also been stated that the Committee of Management has filed Writ Petition No. 39029 of 1999 before this Court which is still pending. Respondent No. 7 has been reinstated in service and is teaching in the institution and is getting the salary. It appears that on the basis of the dismissal of respondent No. 7, the Committee of Management had advertised the post and appointed the petitioner without prior approval of the District Basic Education Officer and the petitioner is not having the essential qualification for the purpose of appointment
9. A submission has been made on behalf of the contesting private respondent that the services of respondent and the petitioner are governed under the U.P. Recognized Basic Schools (Junior High Schools) Condition of Service of Teachers) Rules 1978 (in short Rule 1978). Rule 3 of Rule 1978 empowers the Committee of Management to fill up the vacancy and Rule 11 empowers the Committee of Management to appoint teachers and Rule 15 empowers the Committee of Management to terminate the services of a teacher with prior approval in writing from the District Basic Education Officer, The U.P. Junior High School (Payment of Salary) of Teachers and other employees Section 2(ii) of which defines the teacher and Section 10 of Salary Act 1978 cast a statutory obligation upon the State to pay salary to the teachers of the institution. As the Committee of Management without obtaining the prior approval in writing terminated the services of respondent No. 7, as such the order of termination was contrary to Rule 15 of Rule 1978 and the same is void and cannot be validated by subsequent approval dated 6.4.1984. In support of the aforesaid contention the respondents have placed reliance upon a judgment of this Court reported in 1981 UPLBEC 127 Ram Narain Shukla v. District Inspector of schools and reliance have been placed upon paras 20 and 21 of the said judgment which are reproduced below:
20. We have already said earlier that the petitioner was lastly appointed for the session 1977-78 ending on 30'1' June, 1978. By a resolution passed on 13.7.1978 the petitioner's services were terminated w.e.f. 31.5.197H. A copy of the decision was even sent to the petitioner. No approval of the respondent No. I was obtained before doing so. The termination having taken place subsequent to the date on which 1978 Rules were enforced, it could not be made without prior approval of the District Basic education Officer.
21. it was urged before us that since the petitioner had been appointed on a temporary basis and without approval of the District Basic Education Officer for the session 1977-78, the approval of the DIM net Basic Education Officer was not necessary for terminating his services. We don not find it possible to accept this argument. Rule 15 does not make any distinction between a temporary- and permanent teacher. It puts a blanket ban on the termination of service of any teacher without prior approval in writing of the District Basic Education Officer. The rule appears to have been framed for the protection of the teachers and should be strictly interpreted. We, accordingly, rejected the contention made on behalf of the petitioner that the approval of the District Basic Education Officer wax not necessary in the instant case.
10. It has been further argued on behalf of the respondents that the order dated 22.10.1983 was no order of termination in the eye of law and therefore, there was no vacancy against the post of respondent No. 7. The alleged selection and appointment of the petitioner by the Committee of Management was without any authority of law. The decree passed in the civil suit in favour of respondent No. 7 is operative and binding upon the Committee of Management of the institution who is employer of the contesting respondent. It has further been submitted that as there was no vacancy the Committee of Management has got no power or jurisdiction to fill up the said vacancy and to make any appointment of the petitioner who did not have essential training and qualification and that too without obtaining the prior approval form the Basic Education Officer which is an essential and mandatory requirement under the rules.
11. It is well settled in law as laid down in the case reported in A.I.R. 1975 Page 915 Ramchandra Keshav v. Govind Joti Chavare that if the statutory provision of law provides to act in a particular manner and that prohibits to act in any manner and if the said provisions are violated, the action of the authorities vitiates in law and cannot be taken into consideration. In view of the aforesaid submission the respondents submit that the writ petition is liable to be dismissed. In view of the submissions made above and in view of A.I.R. 1975 SC 915, Ramchandra Keshav v. Govind Joti Chavare (Supra) it has been submitted that where a power is given to do certain things in a certain way, the things must be done in that way or not at all and other matters of performance are necessarily forbidden. This rule squarely applied where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner. The relevant para is 25, the same is reproduced below:
25. A century ago, in Taylor v. Taylor (1875) 1 CH D 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must he done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind App 372 (AIR 1936 PC 253 (2)) and later by this Court in several cases, Shiv Bahadur Singh v. State of V.P. ; Deep Chand v. State of Rajasthan to a Magistrate making a reecord under Sections 164 and 364 of the code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn,. Pp. 362-363. " The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions, failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3)(b).
12. I have heard Sri G.K. Singh for the petitioner, Standing Counsel who appears for the respondent and Sri Indra Raj Singh who has appeared on behalf of respondent No. 7 and have also perused the record. It is clear from the record that on the basis of the termination of respondent No. 7, the vacancy had taken place and after due advertisement as required, the petitioner was considered by a validly constituted Selection Committee and one of the representatives of the Basic Education Officer was also present and then the petitioner was selected and on that basis the appointment was given and from the date of initial appointment, the petitioner is working and his appointment has been approved and the petitioner has also been accorded selection grade by order dated 19.2.1996. It is also clear from the record that the suit filed by respondent No. 7 has been decreed and the appeal filed by the Committee of Management is still pending before this Court. It has been brought to the notice of the Court that the judgment passed in Suit No. 4 of 1986. Issue No. 7 was relating to the relief against the State as well as the Basic Education Officer. The trial Court has considered regarding the validity of notice under Section 80 C.P.C. While considering the issue No. 7 a finding has been recorded that as there is no proper notice under Section 80 C.P.C., as such respondent No. 7 will not get any relief against defendants No. 3 and 4. Defendants No. 3 and 4 in the said suit were Basic Education Officer, Ballia and State of U.P. and the said issue was decided against respondent No. 7 i.e. Smt. Usha Rani. The finding on issue No. 7 is reproduced below.
Okn foUnq la0-&7 Ih0Mcyw0&1 m"kkjkuh okfnuh us izn'kZ&1 uksfVl vUrxZr /kkjk 80 O;ogkj izfdz;k lafgrk izekf.kr dh gS rFkk vius c;ku esa bl uksfVl izn'kZ&1 ds ckjs esa okfnuh dgh gS fd ml uksfVl ds vk/kkj ij mlus ;g okn izLrqr fd;k gSA uksfVl izn'kZ&1 ¼vfHkys[k 66 xa½ ds voyksdu ls Kkr gksrk gS fd ;g uksfVl okfnuh ds vf/koDrk us okfnuh ds rjQ ls izfroknh la0&1] 3 og 4 dks nh Fkh ftlesa mlus uksfVl dk dkj.k v[kckj nSfud Hk`xq{ks= esa fnukad&1-6-83 ds laLdj.k esa izdkf'kr og uksfVl dh ftlds }kjk izfroknh la0&1 us okfnuh dks fuyfEcr djus dk vkns'k tfj, izdk'ku okfnuh ij rkehy djok;k Fkk A vr% ;g lohd`r rF; fd izn'kZ&1 uksfvl izfroknhx.k ds mDr vkns'k fnukad 22-10-83 vFkok fnukad 11-12-83 vFkok fnukad 6-4-83 dks pqukSrh nsrs gq, ugha Fkk ftlds vk/kkj ij ;g okn izLrqr fd;k x;k gS vkSj bl uksfVl dk bl okn ls lacaf/kr okn dkj.k ls dksbZ lEcU/k ugha gSA vr% eSa bl fu"d"kZ ij igqaprk gwW fd bl izLrqr okn ds laca/k esa okfnuh us oS/kfud :i ls /kkjk 80 O;ogkj izfdz;k lafgrk dh uksfVl ugha nh Fkh A ,slh ifjLFkfr esa okfnuh dksbZ Hkh vuqrks"k vUrxZr /kkjk 50 O;ogkj izfdz;k lafgrk ds vHkko esa izfroknh la0&3] 4 ds fo:) ikus dh vf/kdjh ugha gSa okfnuh us Lohd`r :i ls izLrqr okn ds laca/k esa izfroknh la0&1 o 2 dks /kkjk 80 o;ogkj izfdz;k lafgrk ds uksfVl ugha nh A pwafd og fo?kky; dh izcu/k lfefr ,oa izca/kd ¼izfroknh la0&1 o 2½ /kkjk 80 O;ogkj izfdz;k lafgrk esa of.kZr ljdkj vFkok yksd vf/kdjh dh Jsa.kh esa ugha vkrs gSa vr% /kkjk 80 O;ogkj izfdz;k lafgrk ds uksfVl ds vHkko esa izfroknh la0&1 o 2 ds fo:) okfnuh dk okn ckf/kr ugha gSa A MijksDr foospuk ds vk/kkj ij esa bl fu"d"kZ ij igqaprk gWw fd okfnuh /kkjk 80 O;ogkj izfdz;k lafgrk dh uksfVl us nsus ds dkj.k dsoy izfroknh la0&3 o 4 ds fo:) dksbZ vuqrks"k ikus dh vf/kdjh ugha gSa A okn foUnq la0&7 rnuqlkj fuf.kZr fd;k tkrk gSA**
13. From the perusal of the aforesaid finding recorded by the trial court, it is clear that the suit was dismissed against the Basic Shiksha Adhikari and the State of U.P. From the Apex Court judgment it is clear that the decree is binding upon a person who is party to a suit. If the suit has been dismissed or relief" has been denied, the person in whose favour the decree has been passed can enforce the decree and execute the decree against the person who is a party to the proceeding. Admittedly from the record it is clear that the issue No. 7 was decided against respondent No. 7 and, therefore, Basic Education Officer and the State of U.P. have got no obligation to act upon and follow the decree and it cannot be said to be binding upon them and the Apex Court in the judgment of Shiv Kumar Tiwari (Supra) has clearly held "the Deputy Director could not have legitimately chosen to accept the judgment to which he was not a party without such acceptance has the impact of directly and seriously prejudicing the rights of the first respondent, who has also not made a party to the suit before the civil court". It is clear from the record that respondents No. 1 and 4 were not a party and no relief was granted against them, therefore, respondents No. 1 and 4 have no obligation to accept the judgment and decree passed in Suit No. 4 of 1986. In view of the aforesaid fact, I am opinion that the order was passed by respondent dated 25.9.2002 and 26:9.2002, Annexures 7 and 8 to the writ petition cannot sustain and is liable to be quashed. As the petitioner is working on the said post continuously and there is no decree against respondents No. 1 and 4, as such misinterpreting the said judgment, the aforesaid order against the petitioner has been passed.
14. In view of the aforesaid fact, the writ petition is allowed. The orders dated 25.9.2002 and 26.9.2002 are hereby quashed. Respondent No. 4 is directed to pay the salary to the petitioner including arrears of salary as well as the current salary month to month for which he is entitled. It is also made clear that the responsibility of payment of salary or keeping in service of respondent No. 7 is the total responsibility of the Committee of Management. The decree passed in the suit in favour of respondent No. 7 is only binding upon the Committee of Management and it does not bind the petitioner as well as the respondents No. 1 and 4. No order as to costs.