Allahabad High Court
Satya Deo Pandey And Others vs State Of U.P. Thru' Secy. Education, ... on 10 March, 2015
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- WRIT - A No. - 32509 of 2005 Petitioner :- Satya Deo Pandey And Others Respondent :- State Of U.P. Thru' Secy. Education, Lucknow And Others Counsel for Petitioner :- L.P. Singh,P.I. Anshari Counsel for Respondent :- C.S.C.,Y. Dwivedi Hon'ble Manoj Kumar Gupta,J.
1.Adarsh Uchchatar Madhyamik Vidyalaya (for short referred to as 'the institution') is a recognised institution under the Uttar Pradesh Intermediate Education Act, 1921. It is receiving grant-in-aid from the State Government and the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 are applicable to it. The petitioners herein claim to be duly appointed Assistant Teachers in L.T. grade on adhoc basis against sanctioned posts in the institution in pursuance of the approval granted by District Inspector of Schools on 1.10.1981. Later on the approval was cancelled by District Inspector of Schools vide order dated 26.3.1982 and the Management was directed to dispense with the services of the petitioners. Aggrieved thereby, Original Suit No.302 of 1982 was instituted by the petitioners in the court of Munsif East, Ballia for declaration of order dated 26.3.1982 passed by the District Inspector of Schools, Ballia as null and void and for permanent prohibitory injunction. The suit was contested by the District Inspector of Schools and the Committee of Management by filing separate written statements. The trial court initially granted temporary injunction in favour of the plaintiffs keeping the order dated 26.3.1982 in abeyance and ultimately, the suit was decreed in part by judgment dated 5.5.1983 and the order of District Inspector of Schools dated 26.3.1982 was declared null and void. The judgment of the trial court was not challenged by the State of U.P., which was defendant no.3, nor by District Inspector of Schools, Ballia, defendant no.2. The Committee of Management, defendant no.1, however, challenged the judgment of the trial court by filing Civil Appeal No.256 of 1983. The petitioners herein filed cross objections in so far as the relief for permanent injunction was declined. The appellate court, by judgment dated 25.7.1986, dismissed the appeal filed by the Management, while allowed the cross objections filed by the petitioners and decreed the suit in toto, further restraining the defendants from dispensing with the services of the petitioners or from withholding their salary on basis of order dated 26.3.1982 passed by the District Inspector of Schools. The Committee of Management carried the matter in second appeal before this Court being Second Appeal No.2814 of 1986. It applied for stay of the decree impugned, but the stay application was rejected by this Court vide order dated 22.9.1988. The case of the petitioners is that as a result of the same, they continuously worked as Assistant Teachers in the institution since the date of their initial appointment on 1.10.1981 and on completion of 10 years of satisfactory service, selection grade was granted to them since 1.1.1992.
2. It is alleged that in May, 1993 Sri S.P. Mishra, the then District Inspector of Schools was severely beaten and was hospitalized. The charge of his office was given to the City Magistrate Sri Ram Ganesh. During his tenure, several fake and fictitious adhoc appointment of teachers were made in various institutions in district Ballia and salary of most of them was released by his orders. After some time, the regular District Inspector of Schools Smt. Anarpati Verma took charge and in exercise of power under Section 4 (1) of the Payment of Salaries Act, 1971, she stopped the payment of salaries and called for report from Principal/ Manager of various institutions regarding the manner in which appointments have been made; strength of sanctioned posts; details regarding financial approval etc. of the newly appointed adhoc teachers. In respect of the petitioners' institution, order dated 28.9.1995 was passed by District Inspector of Schools, in which name of the petitioners was also mentioned. In compliance thereof, the Principal of the institution submitted his report and requested for release/payment of salary to the petitioners.
3.The State Government vide order dated 3.2.1996 constituted Seven Member Committee consisting of Sri Vinod Kumar Additional Director of Education, Madhyamik, Directorate of U.P. Allahabad as its Chairman; Shyam Narain Rai Deputy Director of Education, Madhyamik; Senior Finance and Accounts Officer and four Auditors to be nominated by the Chief Account Officer for examining the documents relating to each adhoc appointment of teachers. The Committee called for relevant documents and reports, in pursuance whereof the District Inspector of Schools forwarded the original documents relating to the appointment of the petitioners alongwith his report dated 1.8.1996.
4.The case of the petitioners is that Seven Member Committee after examining the records pertaining to the appointment of the petitioners and being satisfied that they were validly appointed, directed for release of their salary. The Deputy Director of Education, Madhyamik on behalf of Director of Education, Uttar Pradesh vide communication dated 27.12.1996 to District Inspector of Schools, Ballia informed him that the Seven Member Committee constituted by the State Government had taken decision in favour of the petitioners for release of their salary. Accordingly, he was directed to ensure payment of salary to the petitioners. In compliance of the said order, the District Inspector of Schools vide letter dated 30.5.1997 informed the Principal of the institution about the decision of the Committee constituted at the Directorate level and directed him to submit the salary bills of the petitioners within three days, in default whereof, the salary would be paid to the petitioners by single operation of the accounts. It is the case of the petitioners that in pursuance thereof, payment of salary was resumed since April, 1997. However, arrears from July, 1995 to March, 1997 were not paid, for which the petitioners made representations. The District Inspector of Schools by letter dated 20.8.1998 requested the Directorate to release the arrears of salary of the petitioners. The Joint Director of Education (Accounts), U.P. Allahabad, by a communication dated 15.3.1999 required the District Inspector of Schools to forward original file relating to the petitioners by special messenger within a week to ensure expeditious release of the arrears of salary. However, the petitioners were still not paid the arrears compelling them to approach this Court by way of Writ Petition No.47108 of 1999, which was disposed of with direction to the Director of Education, Madhyamik Allahabad to take decision on the representation of the petitioners dated 19.8.1999 for release of arrears of salary. It was further observed that in case the petitioners were held entitled for payment of arrears of salary, the authorities shall also take decision on the claim of the petitioners for payment of interest.
5.In pursuance of such direction, Assistant Deputy Director of Education (Accounts) acting on behalf of Director of Education, Madhyamik, Allahabad after examining the records, vide order dated 14.6.2000 directed Chief Account Officer, Directorate of Education U.P., Allahabad to release arrears of salary to the petitioners from July, 1995 to March, 1997. In compliance of the said direction, the District Inspector of Schools passed the consequential order dated 27.2.2001 and in pursuance thereof, the petitioners were paid arrears of salary. The petitioners continued to work and were paid their salary regularly from the State exchequer. Ultimately, by order dated 9.10.2002, the adhoc services of the petitioners were regularised in view the provisions of Section 33-A of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982.
6.Again, the District Inspector of Schools, Ballia received orders from the Directorate for stopping payment of salary of various teachers and employees working in various institutions in district Ballia and in pursuance thereof, the District Inspector of Schools, Ballia vide its letter dated 28.1.2003 directed the Finance and Accounts Officer to stop payment of salary and make available the records relating to the appointment so that necessary report could be furnished to the Directorate and the State Government. Thereafter, by order dated 29.3.2003 Secretary (Education) Government of Uttar Pradesh authorised Joint Director of Education, Azamgarh Region, Azamgarh to examine the cases of 104 teachers, who are receiving payment in pursuance of orders of this Hon'ble Court and thereafter, take appropriate decision. While the inquiry remained pending, the petitioners represented for early decision being taken so that their salary, which was withheld, is released forthwith. Still, when no action was taken, the petitioners filed Writ Petition No.55910 of 2003 before this Court complaining non payment of salary to them. The respondents filed a counter affidavit in the writ petition and justified their action regarding non payment of salary on the ground of pendency of the inquiry. It appears from the record that U.P. Madhyamik Shikshak Sangh acting on behalf of various teachers and employees, whose salaries were withheld also filed writ petition no. 25885 of 2003for release of the salary of such employees. This Court disposed of the said writ petition vide order dated 25.2.2004 noticing that on receipt of complaints with regard to the several illegal and fraudulent appointments in educational institutions in Ballia, the matter was handed over to C.B.C.I.D., in which it found large scale fraud and illegalities. The Court, therefore, permitted each individual case to be examined at the level of Director of Education and whereafter, in case the appointment was found to be valid, the salary shall be released. Relying on the directions so given in the judgment aforesaid, the writ petition filed by the petitioners, was also disposed of by order dated 12.4.2004 permitting the Director of Education, Madhyamik, U.P. Allahabad to examine the case of the petitioners herein having regard to the civil litigation and the inquiry report of Seven Member Committee, within a period of eight weeks.
7.The petitioners, thereafter, made repeated representations but when no decision was taken, they filed Contempt Petition No.3507 of 2004, wherein, a short counter affidavit was submitted annexing therewith a chart, in which the name of the petitioners is placed at serial nos.25, 26 and 27 and the main reason given for non payment of their salary is that the appointment of the petitioners was in violation of Chapter II, Regulation 20, which provides that in case the vacancy is not advertised within three months, the posts will be deemed to have been surrendered unless its creation is sanctioned afresh by the Director. Certain other objections regarding non issuance of advertisement and approval order being without the signatures of the approving authority were also taken. On coming to know of such stand of the respondents, the petitioner approached this Court by way of instant writ petition for quashing the entries recorded against their name in the chart Annexure-27 to the writ petition and for mandamus commanding the respondents to pay their salary w.e.f. February, 2003 and for payment of interest on the salary, which was paid with considerable delay for the period July, 1995 to March, 1997. During the pendency of the writ petition, the Director of Education, Madhyamik, U.P. Allahabad in purported compliance of the directions given by this Court in Writ Petition No.55910 of 2003 passed a formal order dated 7.7.2005 rejecting their representations on self same grounds as contained in the chart filed in the contempt proceedings. The petitioners have challenged the said order by amending the writ petition.
8.The respondents have filed counter affidavit to the writ petition and the amendment application. They have not disputed the proceedings before the civil court, nor the fact that the judgment passed by the civil court has attained finality, as against the State respondents. However, it was tried to be suggested in the counter affidavit that the Management and the Department did not contest the case properly, as a result whereof, the suit was decreed. Apart from it, the main contention in the counter affidavit is that the posts, against which the petitioners were appointed, shall be deemed to have been surrendered as per provisions of Chapter II Regulation 20 and thus, the appointment of the petitioners against these posts was illegal.
9.Separate counter affidavits were filed on behalf of the respondents no.6 and 7, in which it is admitted that the petitioners have continuously worked in the institution and were granted selection grade. It is pointed out that the petitioners no.1 and 2 have retired on 30.6.2013, while petitioner no.3 is still in service. It is further admitted that the services of the petitioners were regularised under Section 33-A of the U.P. Secondary Education Services Selection Boards Act, 1982.
10.The petitioners have filed rejoinder affidavit alongwith which they brought on record letter dated 5.10.1995 by the Principal Secretary, Education, U.P. Government, Lucknow addressed to the Principal Secretary, Home, pointing out that in various institutions the Management in collusion with the employees of the Department, have succeeded in making certain fake and fraudulent appointments during the period 21.5.1994 to 30.1.1995 when Sri Ram Ganesh, City Magistrate, Ballia worked as officiating District Inspector of Schools and the Government had decided to get such appointments investigated by C.B.C.I.D. and necessary steps may be taken in this regard. It is contended that the inquiry was thus confined to fake and fraudulent appointments made during the tenure of Sri Ram Ganesh officiating District Inspector of Schools, Ballia, but the name of the petitioners was wrongly roped in the inquiry.
11.Learned counsel for the petitioners vehemently contended that the action of the authorities in withholding their salary was wholly illegal, arbitrary and a result of colourable exercise of power. The State, which was defendant no.3 and the District Inspector of Schools defendant no.2 in Original Suit No.302 of 1982, are bound by the decisions of the civil court, which have attained finality. It is further contended that in fact the inquiry was supposedly aimed against fake and fraudulent appointments made during the period 21.5.1994 to 30.1.1995 when Sri Ram Ganesh, City Magistrate, Ballia acted as officiating District Inspector of Schools. The name of the petitioners was wrongly included in the inquiry. Still on detailed inquiry being held by the Seven Member Committee constituted at the Directorate level by the Government, the appointments of the petitioners were found to be valid and specific direction was issued to release their salary by order dated 27.12.1996. In the aforesaid background, it was not open to the respondents to once again reopen the entire controversy and withhold salary on the ground that the posts were deemed to have been surrendered in view of Chapter II Regulation 20 or on any other ground. It is pointed out that the Seven Member Committee took the decision after examining the entire original records. The report of the District Inspector of Schools submitted on 1.8.1996 alongwith original records before Seven Member Committee specifically discloses the date and manner in which the vacancies have come into existence as also the date of appointment of the petitioners i.e. 1.10.1981; the fact that on 30.1.1982 the Removal of Difficulties (third) Order 1982 was enforced and services of the adhoc appointees were continued till the joining of the candidate selected by the Selection Commission; the existence of stay order dated 23.7.1982 in civil suit and the judgment dated 5.5.1983 decreeing the suit declaring the order of District Inspector of Schools dated 26.3.1982 as null and void. As such, the entire facts were in the knowledge of the Seven Member Committee, which included the Additional Director, Madhyamik, as its Chairman. The said Committee having found no illegality in the appointment of the petitioners and having directed payment of salary to them, it was not open to the Director of Education, Madhyamik, Allahabad who passed the impugned order dated 7.7.2005 to reopen the issue regarding the validity of the appointments of the petitioners.
12.It is further urged that indisputably the Director is empowered to sanction the posts deemed to have lapsed under Chapter II Regulation 20 and since the Additional Director of Education was Chairman of the Seven Member Committee, which decided in favour of the petitioners and as such, the alleged defect, if any, stands cured. It is submitted that the District Inspector of Schools having accorded approval to the appointments of the petitioners on 1.10.1981 and subsequently, the services of the petitioners having been regularised under Section 33-A of the U.P. Secondary Education Services Selection Boards Act, 1982 and the petitioners indisputably being paid their salary from the State exchequer, objection regarding the posts having lapsed under Chapter II Regulation 20 is even otherwise wholly frivolous and cannot be accepted.
13.It is further urged that the observation in the impugned order that the approval order does not bear the signatures of the approving authority and appears to be a fake document, is wholly perverse, inasmuch as the District Inspector of Schools even in the written statement filed in the civil suit never disputed the authenticity of the approval granted on 1.10.1981, rather his stand was that the approval was wrongly granted, as the vacancies against which the petitioners were appointed, were substantive and the Management lacked the power to make appointment against such vacancies. It is pointed out that the original records were examined by the Seven Member Committee and thereafter, no illegality was found in the appointments. On the other hand, when the impugned decision was taken, the original records were not examined, as they were purportedly in the custody of the C.B.C.I.D. and the impugned decision was taken on basis of certain photo copies made available by the office of District Inspector of Schools and thus, the finding regarding approval order being a fake document is unsustainable in law. Consequently, the impugned decision is ex-facie illegal, perverse, arbitrary and deserves to be quashed.
14.Per contra, learned standing counsel relying on the counter affidavit contended that large number of fake and fraudulent appointments were made in district Ballia and consequently, the State Government decided to entrust the inquiry to C.B.C.I.D. It is further contended that the Departmental authorities also held an inquiry and in case of the petitioners, their appointments being in breach of Chapter II Regulation 20, have been rightly held to be illegal. It is further submitted by learned standing counsel that the Director of Education was authorised by this Court while passing order dated 12.4.2004 in Writ Petition No.55910 of 2003 filed by the petitioners themselves to hold an inquiry in relation to the validity of their appointments and as such, the petitioners cannot now complain of the controversy being reopened by the respondents.
15.I have considered the rival submissions and perused the material on record.
16.The main question which arises for consideration is whether the findings recorded by the civil court were binding on the respondents or not and if the answer is in affirmative, to what extent; whether in the facts of the instant case, the respondents were justified in going into the question of the validity of the appointments ?
17.The specific case of the petitioners before the civil court was that they were appointed as adhoc C.T. grade teachers on basis of approval granted by District Inspector of Schools, Ballia vide its order dated 1.10.1981. The District Inspector of Schools, without giving any notice or opportunity of hearing, vide order dated 26.3.1982 revoked the approval and directed the Management to terminate the services of the petitioners. In the civil suit, the District Inspector of Schools, Ballia filed written statement contending that the appointment of the petitioners, though adhoc, was against substantive vacancies, which the Management was not empowered to fill and on correct fact coming to his knowledge, he had rightly passed the order dated 26.3.1982. The Management filed separate written statement contending that the appointment of the petitioners were adhoc appointments for six months only and automatically came to an end on 31.3.1982, whereafter the petitioners cannot claim right to continue.
18.On the pleadings of the parties, the trial court, inter alia, framed the following issues:-
1- D;k oknh dh fu;qfDr crkSj v/;kid fof/kd :i ls ekSfyd in ij gqbZ gS \ ;fn gkW rks mldk izHkko \ 2- D;k izfroknh ua0 dk vkns'k fnukad 26-3-82 'kwU; o voS/kkfud gS \ (Evident from record of Second Appeal No.2814 of 1986)
19.These, issues were decided by the trial court in favour of the plaintiff-petitioners placing reliance on a Division Bench judgment of this Court in the case of Radhey Shyam Chaubey Vs. District Inspector of Schools, Jaunpur 1978 AWC 40, wherein, it was held that after the District Inspector of Schools had granted approval to the appointments, such order cannot be revoked without opportunity of hearing to the incumbents unless a case of fraud or misrepresentation is made out. Consequently, the order dated 26.3.1982 was declared a nullity and the suit was decreed in part. The relief for permanent injunction was refused giving liberty to the District Inspector of Schools to pass fresh orders, after opportunity of hearing to the petitioners. The judgment and decree of the civil court dated 5.5.1983 though challenged by the Committee of Management by filing appeal, but was not challenged by the State Government-defendant no.3 or the District Inspector of Schools-defendant no.2. In the appeal filed by the Management, the petitioners filed cross objections and after hearing the parties, the appellate court vide judgment dated 25.7.1986 dismissed the appeal filed by the Management, but allowed the cross objections filed by the petitioners; while affirming the judgment of the trial court declaring the order dated 26.3.1982 as null and void, decree for permanent injunction was also granted restraining the respondents from interfering in the services of the petitioners and to pay them salary on month to month basis. A categorical finding was recorded to the effect that on 15.10.1981 when the petitioners were appointed against substantive vacancies, the Management was competent to make such appointments in view of the power conferred on it by the provisions of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 dated 31.7.1981, as the establishment of the Commission was likely to take some time and delay in filling the existing vacancies was considered prejudicial to the interest of students. It was further held that the Removal of Difficulties Third Order, 1982 entitled such adhoc appointees to continue until a candidate recommended by the Commission joins the post and thereunder, the petitioners became entitled to continue even beyond the period of six months. Accordingly, it was held that order of the District Inspector of Schools dated 26.3.1982 passed on the assumption that the Management was not empowered to make appointments against substantive vacancies is erroneous, null and void and consequently, the suit was decreed in toto.
20.The District Inspector of Schools and the State Government again did not challenge the decree passed by the first appellate court, while the Committee of Management challenged it by filing Second Appeal No.2814 of 1986 before this Court. Therein, a stay application was filed by the Management for staying the operation of the judgment appealed against, but the same was rejected by order dated 22.9.1988. Ultimately, the appeal was dismissed for want of prosecution on 17.2.2014. The record of the said appeal was tagged alongwith instant petition in view of the order dated 25.8.2005 passed in the instant writ petition. Perusal of the record of the Second Appeal No.2814 of 1986 revealed that no application for restoration was filed therein by any of the parties. In fact, it further transpired that while dismissing the second appeal, this Court by order dated 17.2.2014 de-linked the instant writ petition and directed it to be listed before appropriate Bench and this is how, the instant writ petition was listed before this Court.
21.The facts aforesaid goes to show that the judgment passed by the civil court in the suit instituted by the petitioners had attained finality against the State respondents as well as the Committee of Management. In the said suit, issue no.1 was specifically with regard to the validity of the appointment of the petitioners. It stands answered in favour of the petitioners. The question thus arises for consideration is regarding the effect of the findings recorded in these judgments on the departmental authorities and the State Government and whether or not they were empowered to reopen the controversy regarding the validity of the appointments of the petitioners.
22. Rule of law, issue estoppel and res-judicata are some of the principles of law which require to be considered for answering the question posed before this Court.
23. The concept of rule of law is that the State is governed not by the nominative representatives of the people but by the law. Every man, including State is subject to ordinary law of the land and amenable to the jurisdiction of ordinary tribunals. The necessary corollary thereof is the binding character of the judgments pronounced by courts of competent jurisdiction. In Daryao Vs. State of U.P. A.I.R. 1961 SC 1457, a Constitution Bench of the Apex Court summed up the law in the following words:-
"9. ....It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.
11....The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis."
24. The concept of issue estoppel and res-judicata has been succinctly explained by their Lordships of the Supreme Court in the case of Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and another (1999) 5 SCC 590. After examining a number of earlier decisions, it was held that these doctrines will equally apply to proceedings before the administrative authorities. It was observed as under:-
"26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even he demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice." (emphasis supplied)
25. The Apex Court applied these doctrines in holding that the question decided earlier by it relating to exemption of certain land as "rested tea area" and "fuel area" under the provisions of Kerala Land Reforms Act, 1963 having attained finality, cannot be reopened by the Taluk Land Board, while dealing with the controversy consequent to remand order. It was held that principle of issue estoppel and res-judicata also applies to administrative authorities and they are bound by the determination made earlier.
26. In a very recent judgment of the Apex Court in the case of R. Unikrishnan and another Vs. V.K. Mahanudevan and others and connected matters (2014) 4 SCC 434, the respondent therein contending that the he is "Thandan" which is notified scheduled caste, applied for grant of scheduled caste certificate. The Tehsildar refused to grant the certificate. He approached the High Court, which allowed the writ petition and consequently, he was granted the scheduled caste certificate. The order of the High Court attained finality. The respondent therein got a Government job on basis of such certificate. Long after the certificate was issued, a Full Bench of the Kerala High Court in some other matter observed that large number of applications for change of caste name from "Ezhuva/Thiyya" to "Thundan" are being received soon after "Thundan" was notified as scheduled caste and directed for enquiry being held into validity of all certificates granted after the issuance of the notification. Pursuant to the said direction, the certificate granted to the respondent also came under scrutiny. In course of the scrutiny, it was fond that the reports submitted before the High Court on which reliance was placed, while allowing the writ petition of the respondent, was erroneous and that respondent actually belonged to Ezhua community, which fell under O.B.C. category. The authorities issued notice to the respondent, which was challenged by him before the High Court. The writ petition was allowed by the Single Judge but in appeal before the Division Bench, fresh enquiry into caste status of the respondent was permitted. Accordingly, a fresh enquiry was held by Kerla Institute for Research, Training and Development Studies of scheduled castes and scheduled tribes into the caste status of the respondent, which was adverse to the respondent. Based on such enquiry report, notice was issued to the respondent to show cause why caste certificate be not cancelled. Again, the notice was challenged before the High Court and the writ petition was disposed of with the direction that enquiry report be placed before the State Government for appropriate orders. The State Government directed for cancellation of caste certificate and for termination of service of the respondent. The order of the State Government was challenged before the High Court. It allowed the writ petition primarily on the ground that the controversy regarding the social status of the respondent stands concluded by the earlier judgment and such determination cannot be reopened.
27. The Apex Court affirmed the view taken by the High Court, while noticing in detail the law relating to binding nature of judicial decisions in reference to the doctrine of res-judicata. Some of the paragraphs of the said judgment, whereby, law in this regard has been considered, are as under:-
"19. It is trite that law favours finality to binding judicial decisions pronounced by Courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of judgments pronounced by the Courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country.....
20. That even erroneous decisions can operate as res-judicata is also fairly well settled by a long line of decisions rendered by this Court. In Mohanlal Goenka Vs. Benoy Kishna Mukherjee AIR 1953 SC 65, this Court observed:
"There is ample authority for the proposition that even an erroneous decision on a question of law operates as ''res judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as ''res judicata'."
28. The Apex Court, thereafter, held that the only exception to the doctrine are cases where fraud has been played, as the same vitiates the decision and renders it a nullity. The Apex Court held that in the case under consideration, there was no fraud, as the previous judgment of the High Court was based on submissions made before it by the parties and the material on record. It further held that the directions given by the Full Bench of the Kerala High Court would not unsettle the earlier adjudication by the High Court qua the petitioner. Relevant observations in this regard are as under:-
"25. In the case at hand we see no element of fraud in the Order passed by the High Court in O.P.No.9216 of 1986. The order it is evident from a plain reading of the same, relies more upon the submissions made before it by the Government Counsel than those urged on behalf of the writ- petitioners (respondents herein). That there was an enquiry by KIRTADS into the caste status of the writ petitioners ( the respondents herein) which found his claim of being a Thandan justified hence entitled to a scheduled caste certificate has not been disputed. That the report of KIRTADS was accepted by the Director of Harijan Welfare, Trivandrum is also not denied. That apart, the State Government at no stage either before or after the Order passed by the Single Judge of the High Court questioned the conclusions recorded therein till the full bench in Pattika Jathi's case (supra) expressed doubts about the corrections being made in the records and certificates for the grant of scheduled caste status. That being the case, the High Court could not be said to have been misled or fraudulently misguided into passing an order, leave alone, misled by the writ- petitioners (the respondents herein).
26. It is only because the full bench of the Kerala High Court held that anthropological study conducted by KIRTADS may not provide a sound basis for holding Thandan's, like the respondent, as those belonging to the scheduled caste category that the issue regarding the correctness of the certificate and a fresh investigation into the matter surfaced for consideration. Even if one were to assume that the conclusion drawn by KIRTADS was not for any reason completely accurate and reliable, the same would not have in the absence of any other material to show that such conclusion and enquiry was a complete farce based on wholly irrelevant or inadmissible material and motivated by extraneous considerations by itself provided a basis for unsettling what stood settled by the order passed by the High Court. Suffice it to say that the contention urged on behalf of the appellants that the order passed by the High Court in O.P. No. 9216 of 1986 was a nullity on the ground of fraud has not impressed us in the facts and circumstances of the case.
27. The upshot of the above discussion, therefore, is that the order passed by the High Court in O.P.No.9216 of 1986 which had attained finality did not permit a fresh enquiry into the caste status of writ-petitioner. Inasmuch as the High Court quashed the said proceedings and the order passed by the State Government pursuant thereto, it committed no error to warrant interference. "
29. Yet another recent judgment of the Apex Court in the case of Dr. Subramanian Swamy Vs. State of Tamil Nadu and others and connected matters 2014 (5) SCC 75, holds that the judgment of the High Court settling issue regarding right of Smarthi Brahmins to administer the properties of the Temple dedicated to Lord Natraja, cannot be reopened by the State authorities consequent to repeal of the earlier Act and enforcement of new Act in its place, as there was nothing in the new Act which had the effect of denuding such community of its rights to manage the Temple as a religious denomination. The Court took notice of the law regarding res-judicata and explained it as under:-
"39. The scope of application of doctrine of res judicata is in question. The literal meaning of "res" is "everything that may form an object of rights and includes an object, subject-matter or status" and "res judicata" literally means "a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgments". Res judicata pro veritate accipitur is the full maxim which has, over the years, shrunk to mere "res judicata", which means that res judicata is accepted for truth. The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence interest reipublicae ut sit finis litium (it concerns the State that there be an end to law suits) and partly on the maxim nemo debet bis vexari pro una et eadem causa (no man should be vexed twice over for the same cause).
40. Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee)."
30. Their Lordships of the Supreme Court noticed the doctrine of constructive res-judicata placing reliance on the judgment in the case of State of Gujarat Vs. R.A. Mehta 2013 (3) SCC 1 as under:-
"51. There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding,.....It is also correct to state that, even if a particular issue has not been agitated earlier or a particular argument was advanced but was not considered, the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced has actually been decided. The decision therefore, would not lose its authority 'merely because it was badly argued, inadequately considered or fallaciously reasoned.'....(Emphasis supplied)
31. Ultimately, the Apex Court concluded as under:-
"53. In view of the fact that the rights of the respondent 6 to administer the Temple had already been finally determined by the High Court in 1951 and attained finality as the State of Madras (as it then was) had withdrawn the notification in the appeal before this Court, we are of the considered opinion that the State authorities under the 1959 Act could not pass any order denying those rights. Admittedly, the 1959 Act had been enacted after pronouncement of the said judgment but there is nothing in the Act taking away the rights of the respondent 6, declared by the court, in the Temple or in the administration thereof."
32. Applying these principles to the case at hand, it is clear beyond any pale of doubt that the issue regarding validity of the appointment of the petitioners, was directly and substantially in issue in the civil suit, which stands decided in their favour. Such adjudication cannot be ignored by the State respondents unless a case of fraud is made out.
33. Before examining whether the appointment of the petitioners can be said to be vitiated by fraud, I first proceed to consider the contention of the respondents that the enquiry having been held in pursuance of liberty granted by this Court, while deciding writ petition filed by U.P. Madhyamik Shiksha Sangh and that filed by the petitioner being Writ Petition No.55910 of 2003 and thus, the Director was justified in deciding the validity of the appointments of the petitioners.
34. For examining the import of the aforesaid orders of this Court, it becomes necessary to look into the background in which the enquiry was instituted. On the record of the writ petition is a letter dated 5.10.1995 by Principal Secretary, Education Department addressed to the Principal Secretary, Home, whereby, he was informed of the decision of the Chief Minister to hold a C.B.C.I.D. enquiry into fake appointments made in district Ballia. It was noted in the said communication that in the said context Sri Ram Gopal, Additional City Magistrate, Ballia, who worked as officiating District Inspector of Schools during the period 21.5.1994 to 30.1.1995, has been placed under suspension and disciplinary proceedings are pending. This Court, while disposing of the writ petition filed by U.P. Madhyamik Shiksha Sangh being Writ Petition No.25885 of 2003 took notice of the direction of the State Government to hold enquiry by C.B.C.I.D. into the fake and fraudulent appointments in educational institutions in district Ballia and disposed of the writ petition with the following directions:-
"In the aforesaid facts and circumstances, I find that the department must give due expediency to the matter and each case must be examined individually. The enquiry officer much record findings about each and every appointment separately. Where the appointments are found valid, immediate action must be taken for restoration of the payment of the salary. The department must not wait for the entire matter to be considered. The decision may be taken at the level of Director of Education. In case he finds that the appointment was valid, he must issued the directions for payment of the salary at his level. In any case, the entire enquiry must be concluded as expeditiously as possible and not later than 3 months from today. The Director of Education shall appoint a Special Officer not below the rank of Deputy Director for this purpose.
The writ petition is disposed of with the aforesaid directions."
35. It seems that Writ Petition No.55910 of 2003 filed by the petitioners challenging the order dated 28.1.2003 passed by District Inspector of Schools, whereby, their salary was withheld pending fresh inquiry, the Court taking notice of its previous order in the case of U.P. Madhyamik Shiksha Sangh (supra), disposed of the writ petition with the following directions:-
"Having regard to the facts and circumstances of the case, the writ petition is disposed of with the direction to the Director of Education (Secondary) Directorate, U.P., Allahabad to examine the case of the petitioners having to the civil litigation and the enquiry report of seven members Committee for purpose of deciding the validity of their appointment and for release of their salary as expeditiously as possible within a period of eight weeks from the date of production of a certified copy of this order before him." (Emphasis supplied)
36. Evidently, when the Court granted liberty to the respondents to examine the validity of their appointments, it was conscious of the enquiry instituted by the State Government for examining fake and fraudulent appointments. It is in that context that liberty was granted for examining the validity of the appointments, as in case of any fraud, such enquiry was permissible. However, this Court, by giving such liberty, never meant that the findings of the civil court on issues settled earlier, would not be binding on the State respondents. In fact, the Court itself required the authorities to decide the controversy qua the petitioners taking into consideration previous decisions in the civil litigation and the enquiry report of Seven Member Committee.
37. It is trite that judgments are not statutes and have to be interpreted in the context and background facts in which the same are rendered. In a comprehension of the entire matter, I am of the considered opinion that the directions given by this Court in the case of U.P. Madhyamik Shiksha Sangh (supra) nor in Writ Petition No.55910 of 2003 could be construed as permitting the State respondents to ignore the findings of the civil court rendered in the previous litigation between them, except in case of fraud.
38. This brings the Court to the next question as to whether any case of fraud is made out or not. The findings recorded in the impugned order can be dichotomized into two; first the findings that the approval order does not bear the signatures of the approving authority and appears to be a fake document, which is in the realm of fraud and second, regarding the posts having been filled without proper advertisement and in violation of Chapter II Regulation 20. I proceed to examine these issues ad seriatim.
39. It is noticeable that the categorical stand taken by the District Inspector of Schools, Ballia in the written statement filed in the civil suit was that the order of approval dated 1.10.1981 was revoked on 26.3.1982, as the posts against which the petitioners were appointed, were substantive posts, which after coming into force of the U.P. Secondary Education Service Selection Board Act, 1982 could not have been filled by the Management. It had never been the case of the District Inspector of Schools, Ballia that approval order dated 1.10.1981 does not bear his signatures or it is a fake or fictitious document. On the contrary, the very fact that by order dated 26.3.1982 the earlier order was sought to be revoked, proves beyond any iota of doubt that approval to the appointments of the petitioners was granted on 1.10.1981. It is not open to the educational authorities, at this distance of time, to doubt the existence of the approval order dated 1.10.1981 on the ground that it does not bear the signatures of the approving authority.
40. Further, it is admitted in the impugned order itself that the original records were not placed before the Director, but he passed the impugned order on the basis of certain photo copies made available to him. The specific case of the petitioners is that in the year 1996, when Seven Member Committee under the chairmanship of Sri Vinod Kumar, Additional Director of Education (Madhyamik) examined the issue, the original records were placed before him. This stands fortified from a bare perusal of office order dated 3.2.1996, by which Seven Member Committee was constituted and the Joint Director of Education, Azamgarh/District Inspector of Schools, Ballia were directed to forward the original records to the Committee and the communication letter dated 27.12.1996, whereby, the decision of the Seven Member Committee to resume payment of salary to the petitioners was communicated to the District Inspector of Schools and the original records running into 60 pages were returned to him. Had there been any such discrepancy, the Seven Member Committee whose Chairman was a person of the rank of Additional Director, would have noted the same. However, it is not in dispute that the Seven Member Committee found no illegality in the appointments of the petitioners and directed for release of their salary and in pursuance whereof, the petitioners continued to be paid their salary till fresh enquiry was got conducted in the year 2003. This being the factual position, the finding recorded in the impugned order that the approval order appears to be a fake document, is wholly unwarranted, apart from being illegal and perverse.
41. In view of the foregoing discussion, it is evident that appointments of the petitioners cannot be said to be vitiated on the ground of any fraud and thus, I am of the firm opinion that the findings of the civil court regarding the validity of their appointment are binding on the State respondents and could not have been reopened in the year 2003 onwards i.e. almost after three decades of their appointment.
42. Although, the aforesaid finding itself is sufficient to quash the impugned order, but in order to do complete justice to the parties, I proceed to examine the other submission regarding the effect of the enquiry held by the Seven Member Committee and whether in the facts and circumstances of the case, the respondents were justified in holding that the appointments were in breach of Chapter II Regulation 20.
43. It has not been disputed by the respondents that on directions of the State Government, a Seven Member Committee at the Directorate level was constituted with Additional Director as its Chairman. He examined the original records and did not find any illegality in the appointments and based on its report, a specific order dated 27.12.1996 was passed directing the District Inspector of Schools, Ballia to resume payment of salary to the petitioners. In pursuance thereof, the petitioners started getting their current salary. Subsequently, when they represented for payment of arrears, the matter was again examined at the Directorate level and thereafter, the Assistant Deputy Director of Education (Accounts) acting on behalf of Director of Education (Madhyamik) Allahabad, vide order dated 14.6.2000, directed Chief Accounts Officer, Allahabad to release arrears of salary to the petitioners. In compliance of the said order, the petitioners were also paid arrears of salary. Ultimately, by order dated 9.10.2002, the adhoc services of the petitioners were regularised keeping in view the provisions of Section 33-A of the U.P. Secondary Education Service Selection Board Act, 1982.
44. It is further noticeable that when the Seven Member Committee decided in favour of the petitioners, it was conscious of the manner in which the vacancies have come into existence, as is evident from the letter of the District Inspector of Schools dated 1.8.1996, wherein, he disclosed the details of the posts; how these posts fell vacant; the manner of appointment of the petitioners; about passing of order dated 26.3.1982 and the decision of the civil court. Thus, it was not a case where any new fact had emerged before the respondents. In my view, the Director was not justified in revisiting the issue at this distance of time.
45. It is further noticeable that one of the posts against which petitioner no.3 was appointed, was sanctioned for the first time on 21.7.1980. It has been held by this Court in the case of Sudarshan Prasad Sharma Vs. State of U.P. and others 1997 A.W.C. (Supp.) 698 that the prohibition contained under Chapter II Regulation 20 would not be applicable to the posts sanctioned for the first time. The relevant portion of the said judgment is as under:-
"6. The only ground for not according the financial approval to the appointment of the petitioner is to be tested with reference to the provisions of Regulation 20 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921. This Regulation states that where the Committee of Management has failed to advertise any sanctioned post, which has fallen vacant, in accordance with the Regulation within a period of three months from the date of occurrence of the vacancy, such posts shall be deemed to have been surrendered and shall not be filled-up, unless its creation is sanctioned afresh by the Director. The learned counsel for the petitioner urged that the provisions of Regulation 20 would come into play only when a post has "fallen vacant" on account of death, retirement or resignation of the incumbent who was occupying that particular post and that it would not apply to a case of a newly created post. In substance, the submission of the learned counsel was that in a case where the new post is created in an institution it can be filled up initially at any time as it would "fall vacant" only ater an incumbent has ceased to occupy it. The submission of the learned counsel is not without force. Provisions of Regulation 20 would be attracted only when a post has fallen vacant and not otherwise."
46. As regards there being no advertisement on record, as held above, the impugned decision has been taken without looking into the original records on basis of some photo copies submitted before the Director and thus, it was not possible to hold that the advertisement was not duly made. Even otherwise, such plea cannot be permitted to be taken after more than three decades of the appointment of an incumbent.
47. The upshot of the above discussion is that this Court does not find the appointments of the petitioners to be fake or fraudulent and consequently, the judgments of the civil court inter parties were binding on them. Accordingly, the impugned decision of the Director dated 7.7.2005 cannot be sustained and is hereby quashed. The writ petition is allowed and the State respondents are commanded to forthwith pay the entire arrears of salary to the petitioners alongwith 8% simple interest from the date it fell due till the date of actual payment. As regards those petitioners, who have retired in the meantime, apart from payment of their arrears of salary as directed above, the respondents shall also ensure payment of terminal dues to them, if there be any, with same rate of interest.
48. Writ petition is allowed with cost of Rs.10,000/- to each of the petitioners i.e. total cost of Rs.30,000/-, which shall be paid to them along with arrears and interest, as directed above, within a period of four weeks from the date of production of certified copy of this order before respondent no.2.
(Manoj Kumar Gupta, J.) Order Date :-10.03.2015 SL