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2010 DIGILAW 3375 (ALL)

FAHEEM HAIDER v. STATE OF U. P.

2010-10-29

SUDHIR AGARWAL

body2010
JUDGMENT Hon’ble Sudhir Agarwal, J.—Both these writ petitions are against the same order and, therefore, as agreed by learned counsel for the parties the same are being heard and decided finally under the Rules of this Court at this stage. 2. Heard Sri Prabhakar Awasthi, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 to 3, Sri J.H. Khan, Advocate for respondent No. 5, Sri M.A. Qadir, learned Senior Advocate for respondent No. 6 and perused the record. 3. In Writ Petition No. 19505 of 2008, the petitioner is aggrieved by the order dated 11.3.2008 passed by the District Inspector of Schools, J.P. Nagar holding that the direct appointment of petitioner on the post of Lecturer (Civics) in I.M. Inter College, Amroha, J.P. Nagar is not valid since that post ought to have been filled in by promotion of respondent No. 5, hence it has revoked its approval dated 19.9.2005 whereby the petitioner’s appointment on the post of Lecturer (Civics) was made and has directed for promotion of respondent No. 5 on the post of Lecturer (Civics) which shall be effective from the date of his taking over charge. 4. Sri Awasthi, learned counsel for the petitioner submitted that firstly the District Inspector of Schools has no jurisdiction at all to decide as to in what manner the vacancy in a minority institution could have been filled in and that choice vests in management, hence the order of District Inspector of Schools is wholly without jurisdiction and placed reliance on a decision of this Court in Committee of Management, Sri Kund Kund Jain Inter College, Muzaffar Nagar v. State of U.P. and others, 2006(3) ESC 1528 . Secondly, he submits that earlier this Court has considered the matter in Civil Misc. Writ Petition No. 59082 of 2005, (Shane Raza v. State of U.P. and others), decided on 23.10.2007 and directed the District Inspector of Schools to consider the question as to whether the post of Lecturer (Civics) is liable to be filled in by promotion or by direct recruitment but instead of deciding this issue independently the District Inspector of Schools has proceeded to pass the impugned order by observing that the High Court itself has observed that the post of Lecturer (Civics) ought to have been filled in by promotion and hence there is no independent application of mind by the District Inspector of Schools. Thirdly, he submits that there was an inquiry pending against the respondent No. 5 in respect to the allegation that he passed B.Ed. examination while in service and for this reason management chose not to promote him but ignoring this, the District Inspector of Schools has passed the impugned order which is contrary to the choice of the management and, therefore, is illegal and wholly without jurisdiction. He lastly submits that the repsondent No. 5 is going to attain the age of superannuation on 30.6.2011 and, therefore, also the petitioner should not be disturbed. 5. Having considered the above submission, however, I find no force in any of the aforesaid submissions. 6. The question whether the post in question, i.e., Lecturer (Civics), fell vacant on 1.7.2003 alongwith two other in the subjects, i.e., English and Hindi, could have been filled in by promotion or direct recruitment itself came to be considered before this Court in the case of Shane Raza (supra) which was filed by the respondent No. 5. In that writ petition the present petitioner, i.e., Faheem Haider was impleaded as respondent No. 5 and the committee of management was impleaded as respondent No. 4. The respondent No. 5 in that writ petition was represented by Sri P.S. Baghel, Advocate and Sri Sanjeev Singh, Advocate holding brief on behalf of Sri P.S. Baghel has actually appeared before this Court. So far as the respondent No. 4 is concerned, despite the case taken in revised list, none appeared on his behalf. 7. After considering the matter this Court observed: “In fact, in para 6 of the counter affidavit filed on behalf of Management, it is clearly mentioned that the aforesaid three posts were vacant on 1.7.2003 which supports the averments made in para 11 of the writ petition. Moreover, the respondent No. 6 who has been appointed as Lecturer (English) by promotion vide management resolution dated 10.10.2004 also shows that he was subsequently granted promotion on the said post though he was junior to the petitioner. In these circumstances it is evident that the post of Lecturer (Civics) ought to have been filled in by promotion instead of the post of Lecturer (English) and Lecturer (Hindi) in respect whereto the candidates who were promoted, were junior to the petitioner.” 8. In these circumstances it is evident that the post of Lecturer (Civics) ought to have been filled in by promotion instead of the post of Lecturer (English) and Lecturer (Hindi) in respect whereto the candidates who were promoted, were junior to the petitioner.” 8. Thereafter, this Court referred the matter to the District Inspector of Schools to look into this aspect while quashing his order dated 31.12.2004 whereby he had directed that the post of Lecturer (Geography), which fell vacant on 1.7.2001, would be filled in by promotion and not the post of Lecturer (Civics) which according to him was to be filled in by direct recruitment. It was this order which was under challenge in the earlier writ petition and was set aside by this Court. It is not disputed that the judgment dated 23.10.2007 has attained finality and was not taken in appeal by any of the parties. It is pursuant to this judgment the District Inspector of Schools has passed the impugned order which is strictly in accordance with the observations and directions contained in the aforesaid judgment. 9. Learned counsel for the petitioner could not dispute that having not challenged the judgment dated 23.10.2007, it would not be open to him to rake up, an issue, contrary to what has been observed by this Court earlier. 10. Moreover, so far as the question of choice of management is concerned, the matter do not arise in these cases. The District Inspector of Schools’ order deciding the matter in one or the other way earlier was challenged. But the management never disputed that the District Inspector of Schools ought to have or could not have taken such a decision. Presently also the committee of management has not felt aggrieved by the order of District Inspector of Schools whereby it has held that the post in question ought to be filled in by promotion. The right to administer a minority institution according to the choice of management is not absolute and the management in the garb of choice cannot deprive its teaching staff of their right of consideration for promotion. This is what has been considered and decided by this Court in its judgment dated 23.10.2007 which is also reflected in the impugned order. The right to administer a minority institution according to the choice of management is not absolute and the management in the garb of choice cannot deprive its teaching staff of their right of consideration for promotion. This is what has been considered and decided by this Court in its judgment dated 23.10.2007 which is also reflected in the impugned order. The right of respondent No. 5 to claim promotion particularly when his junior had already been promoted, and the post on which the respondent No. 5 could have promoted though was available even before, yet he was ignored, is apparently arbitrary and discriminatory. The decision, therefore, in Sri Kund Kund Jain Inter College (supra) has no application in the case in hand inasmuch as there the committee of management had challenged the issue as to whether the District Inspector of Schools can impose his choice with respect to a decision whether a particular post can be filled in by promotion or by direct recruitment but that is not the case in hand. Here the management has not felt aggrieved and it is the decision of the District Inspector of Schools which was earlier under challenge and presently also. The judgment, therefore, relied by learned counsel for the petitioner has no application in the case in hand. 11. The Writ Petition No. 24090 of 2008 has been filed by Shane Raza to challenge that part of the order of District Inspector of Schools which provides that his promotion shall be effective only from the date of his taking charge and has not directed for reversion of respondent Nos. 6 and 7. The impugned order it is said that, shall result in making the petitioner junior to the respondent Nos. 6 and 7. 12. Sri J.H. Khan, learned counsel for the petitioner in this writ petition did not dispute that in the judgment dated 23.10.2007 there is no direction that in case the District Inspector of Schools find that Shane Raza was liable to be promoted, such promotion would be given retrospectively and from the date when his juniors were promoted although such a relief could have been considered and granted in the earlier writ petition. 13. 13. In my view such issue cannot be raised by the petitioner now in a fresh writ petition which he could have raised in the earlier case also but did not raise and, therefore, has not been granted. This aspect, in my view, is clearly barred by Section 11, Explanation IV and VI of CPC, i.e., principle of res judicata. The impugned order, therefore, warrants no interference. 14. In view of above both the writ petitions are dismissed. No costs. —————