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2009 DIGILAW 1313 (ALL)

USHA SHARMA v. STATE OF U P

2009-04-10

RAJ MANI CHAUHAN, SUNIL AMBWANI

body2009
RAJ MANI CHAUHAN, J. By this review petition Dr. Usha Sharma-the petitioner in the Writ Petition has sought review of our judgment and order dated 8. 8. 2008, by which we had dismissed the writ petition both on the grounds that after dismissal of her Writ Petitions and the Special Leave Petitions on 06. 3. 1998 nothing had survived to be considered and decided by the Chancellor in her representation. The Chancellor had observed that in the matter of termination of petitioners services the High Court and thereafter the Supreme Court had considered the matter and had passed final orders and that nothing survives to be decided, however, if something survives after the order of the Supreme Court and some proceedings are pending or are still require to be taken at this stage, the same may be immediately followed and concluded as the matter is pending since a long period of time. We found that the petitioner had approached the Court in the second round of litigation after four years without giving good and sufficient explanation for the laches. 2. Dr. Usha Sharma requested and was heard in person at length on 13. 2. 2009 and thereafter on 20. 3. 2009. She has also filed written arguments in support of her review petition. 3. In order to appreciate the grounds taken in the review petition, it is necessary to briefly state the facts as follows:- Dr. Usha Sharma the review petitioner was initially appointed as Lecturer in Zoology in the year 1971 in the Department of Zoology in Janta Mahavidyalaya Ajitmal Etawah-a college affiliated to Chhatrapati Sahuji Maharaj University, Kanpur. The petitioner is Ph. D in Zoology and was qualified and eligible for teaching in post graduate college. In the year 1988, the University Grants Commission, after approval taken from the management of the College, sanctioned her field work project relating to water pollution. The Principal of the College had approved the project of the University Grants Commission on 11. 4. 1988. The petitioner worked on the project under the directions of the Director, National Environmental Research Institute vide his letter dated 26. 4. 1988. When the petitioner was working on the project the College appointed one Shri Yogesh Babu on the post held by the petitioner in the College without taking sanction from the State Government. 4. 1988. The petitioner worked on the project under the directions of the Director, National Environmental Research Institute vide his letter dated 26. 4. 1988. When the petitioner was working on the project the College appointed one Shri Yogesh Babu on the post held by the petitioner in the College without taking sanction from the State Government. The Principal of the College had illegally held that she was absent; withheld her salary and terminated her services behind her back, without giving her any opportunity of hearing and without following the provisions of Section 35 (2) of the U. P. State Universities Act, 1973, which provides for approval of the Vice Chancellor for terminating the services of a teacher. 4. In paragraph-4 of the writ petition, it is stated that the petitioners services were illegally terminated, by the management of the College on 2. 5. 1990, and the order was wholly illegally approved by the Vice Chancellor of the University. Against the order of termination the petitioner filed a Writ Petition No. 13817 of 1991. The Writ Petition was dismissed on 5. 12. 1994. A Review Petition was also filed which was also dismissed. The petitioner challenged both the orders of the High Court in Special Leave Petition Nos. 16758/1996 and 14974 of 1996. On 28. 11. 1997 the Supreme Court passed an order as follows:- "learned counsel for the petitioner on instructions from the petitioner who is present in the court states that in order to settle the dispute the petitioner would be willing to give up her claim of back wages subject to the following conditions:- i. She will be reinstated in service with continuity of service; ii. During the disputed period of alleged unauthorised absence she would not claim any back wages; and iii. For the period from the date of removal till the actual reinstatement she is prepared to receive 50% of the back wages payable to her in the running time scale. To this proposal, learned counsel for the respondent nos. 2 and 3 submitted that he is agreeable but his only request was that he may be given some time to find out that if anyone is appointed against the petitioner during this period. Dr. To this proposal, learned counsel for the respondent nos. 2 and 3 submitted that he is agreeable but his only request was that he may be given some time to find out that if anyone is appointed against the petitioner during this period. Dr. Ghatote, learned senior counsel appearing for the respondent-state also sought some time to take instructions from the State Government about the liability of the State to pay the requisite amount for releasing the arrears of salary of the petitioner. To be placed in the last week of January, 1998. " The Supreme Court thereafter on 6. 3. 1998 dismissed both the Special Leave Petitions by an order which reads as follows:- "we heard on these special leave petitions at length. We are unable to find any case for interference. The special leave petitions are dismissed. I. A. No. 3/98 for intervention In view of dismissal of the special leave petitions, no orders are necessary on this I. A. " 5. It is contended in paragraph-8 of the writ petition and has been reiterated in the grounds taken in the review petition that the Director of Higher Education had passed an order on 6. 9. 1990, which was not placed before the Apex Court. Since the order was by way of internal correspondence between the State and the College, the petitioner was not able to obtain a copy at any point of time during the pendency of the writ petition before the High Court or the Apex Court. The petitioner, however, managed to get a copy of the order through some clerk in the office of the College in the month of September/october, 2003 and gave a legal notice on 6. 9. 1990 to the Chief Secretary, U. P. Government through her counsel. It is contended that in this order dated 6. 9. 1990 of the Director of Higher Education, a copy of which has been annexed as Annexure-2 to the writ petition, sanction was given to the appointments of three lecturers including the petitioner. A note appended to the order stated that if the vacancy is being caused on the termination of services of any teacher, it may be made clear in the appointment order that if termination of the said appointee is set aside by the Chancellor or the High Court, the services of the new appointee shall be terminated automatically. 6. A note appended to the order stated that if the vacancy is being caused on the termination of services of any teacher, it may be made clear in the appointment order that if termination of the said appointee is set aside by the Chancellor or the High Court, the services of the new appointee shall be terminated automatically. 6. It is stated that the State Government, in response to the legal notice, issued directions on 20. 11. 2003 to the Director, Higher Education, U. P. Lucknow, to take necessary steps for payment of the arrears of the petitioner and to inform the State Government. By another letter dated 16. 12. 2003 similar directions were issued to the Director of Higher Education, with a copy to the counsel for the petitioner. 7. The petitioner thereafter approached the Chancellor of the University. By an order dated November 29, 2004 the Chancellor, after narrating the facts of the case and referring to the comments of the University in which it was stated that the petitioners services were terminated by the management on 20. 7. 1988 and that her writ petitions and special leave petitions have been dismissed, it was observed referring to the order of the Supreme Court dated 28. 11. 1997 and the letters of the State Government dated 16. 12. 2003 and 20. 11. 2003 that since the matter has received consideration of the High Court and the Supreme Court, no orders or directions are required to be passed at the level of the Chancellor. It was thereafter observed that according to her representation the matter is pending with the State Government and that the Government has given some directions to the Director of Higher Education and it appears that the Director of Higher Education has not taken any steps on these letters at his level. The Chancellor thereafter observed that under the orders of the Supreme Court dated 28. 11. 1997 steps were required to be taken by the State Government and if thereafter the Supreme Court or High Court has passed any order, further action should be taken accordingly. The Chancellor thereafter observed that the State Government may examine the orders of Honble Supreme Court and disposed of the matter pending for a long time expeditiously. 8. 11. 1997 steps were required to be taken by the State Government and if thereafter the Supreme Court or High Court has passed any order, further action should be taken accordingly. The Chancellor thereafter observed that the State Government may examine the orders of Honble Supreme Court and disposed of the matter pending for a long time expeditiously. 8. In this back ground the petitioner had challenged the order of the Chancellor and made a prayer in the writ petition to issue a writ of mandamus to the Director of Higher Education, U. P. Allahabad to pass appropriate orders in view of various directions given by higher authorities, Annexures 4, 5, 6, 8, 10 and 11, preferably within a period of three weeks. 9. We find that the matter has been concluded in the earlier round of litigation in which the writ petition, review petition and thereafter special leave petitions were dismissed and that nothing had survived in the matter to be considered by the Court. We also find that the petitioner had waited for four years after the order of Chancellor, for which she had not given sufficient explanation. 10. In the grounds of the review petition and her written submission the petitioner appearing in person has stated that the Chancellor did not dismiss her representation; he had directed the Secretary, Higher Education to implement the order of the Supreme Court dated 28. 11. 1997 and that the delay is on the part of the State Government. She has again relied upon a sanction letter of Director of Higher Education dated 6. 9. 1990, which according to her clearly indicates that the post was available to her when Honble Supreme Court proposed her reinstatement on 28. 11. 1997. This letter was never produced before the Apex Court and was deliberately concealed from the petitioner, and also according to her, the final verdict of the Supreme Court was obtained by fraud and has relied upon from the observations of the Court in AIR 1994 SC 853 that if a litigant withholds a vital document in order to gain advantage, then he would be guilty of playing fraud on the Court. She submits that the High Court had misread the Chancellors detailed order dated November, 29, 2004 and had misconstrued the petition, the central facts of which were the concealment of the vital documents dated 6. 9. She submits that the High Court had misread the Chancellors detailed order dated November, 29, 2004 and had misconstrued the petition, the central facts of which were the concealment of the vital documents dated 6. 9. 1990 both by the Chief Secretary and the Chancellor. The respondents suppressed the fact from the Supreme Court that the posts were available, on her reinstatement on 28. 11. 1997, and that she has a fundamental right to public employment. Shri Yogesh Babu was not a party to the writ petition but his name was mentioned in the judgment of the High Court. She submits that she has been a victim of fraud as vital documents was concealed from the Court and that the courts were misled in dismissing the writ petition. 11. The petitioners services were terminated by the management of the College after the approval of the Vice Chancellor on 2. 5. 1990. Her Writ Petition, and thereafter Special Leave Petitions were dismissed. There was nothing surviving in the matter to be considered by the Chancellor. The directions issued by the State Government in response to the legal notice referred only to some dues payable to the petitioner. The letters of the State Government do not show that the State Government had appreciated the facts that the petitioners services were terminated on 2. 5. 1990 and that the High Court and Supreme Court had dismissed her petitions and Special Leave Petitions. The Chancellor rightly observed that after the decisions of the High Court and Supreme Court, it was not appropriate to pass any orders or directions. The Chancellor, however, on the request of the petitioner that some matters are still pending consideration at the level of the State Government, directed the State Government to examine the judgments and if anything is required to be done in pursuance of the directions of the Supreme Court dated 28. 11. 1997, the orders may be passed expeditiously. 12. It appears that on 28. 11. 1997 the counsel for the petitioner on the instructions received from the petitioner had stated that in order to settle the dispute the petitioner would be willing to give up her claim of back wages subject to certain conditions. 11. 1997, the orders may be passed expeditiously. 12. It appears that on 28. 11. 1997 the counsel for the petitioner on the instructions received from the petitioner had stated that in order to settle the dispute the petitioner would be willing to give up her claim of back wages subject to certain conditions. The counsel for the respondents were agreeable but sought some times to find out, if any one was appointed against the petitioner during this period and to seek instructions from the State Government regarding the liability of the State to pay the requisite amount for releasing the arrears of salary to the petitioner. Thereafter the Supreme Court after hearing the special leave petitions at length, did not find any case for interference and dismissed the Special Leave Petitions. The issues raised by the petitioner regarding question of validity of order of termination was thus concluded on 6. 3. 1998 and that nothing had survived to be considered and decided by the Chancellor or the High Court. 13. With regard to the grounds taken on the concealment of the letter dated 6. 9. 1990 by the Director of Education to the College, it appears that the letter was issued approving her services on some post on which services of previous incumbent were terminated and that sanction was given for the petitioners appointment w. e. f. 1. 9. 1990. The note appended to the order was by way of caution, that if a person, whose services were terminated causing vacancy, succeeded before the Chancellor or the High Court, the services of the new incumbents would come to an end. This letter of approval of petitioners services and the note does not give her any right, which she may enforce after termination of her services on 2. 5. 1990. The source and the manner in which the petitioner obtained this letter has not been disclosed. This letter or the contents thereof were never disclosed to the courts before her representation was given to the Chancellor. The High Court therefore could not have taken the letter in evidence and to consider its validity and the effect on the termination of petitioners services on 2. 5. 1990 which was approved by the Vice Chancellor of the University. 14. The Court has appreciated the petitioners concern with which she has pressed the review petition. The High Court therefore could not have taken the letter in evidence and to consider its validity and the effect on the termination of petitioners services on 2. 5. 1990 which was approved by the Vice Chancellor of the University. 14. The Court has appreciated the petitioners concern with which she has pressed the review petition. The principles of constructive of res judicata and the laches, however, do not permit the Court to reconsider the matter. 15. On the discussions made above we do not find that there is any error apparent on the face of our judgment and order dated 8. 8. 2008. The review petition is dismissed. .