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2014 DIGILAW 3717 (ALL)

Ram Kishore Trivedi v. State of U. P.

2014-12-11

A.P.SAHI, ADITYA NATH MITTAL

body2014
JUDGMENT The appellant has come up in appeal against the judgment and order dated 18.9.2013 of the learned single Judge and the rejection of the recall application vide order dated 17.5.2014, contending that the learned single Judge has, against fact and law, non-suited the appellant that has resulted in injustice. 2. The appellant filed the writ petition in 1991 contending that he has been validly appointed as an Assistant Teacher against a vacant post in CT grade and he possesses all the educational qualifications as required under the U.P. Intermediate Education Act, 1921 and the Regulations framed therein. He claimed that he has been working and teaching since 28.1.1991. The District Inspector of Schools, however, did not grant payment of salary on the ground that according to the Government Order dated 4.9.1990, it was not possible to grant approval in the CT grade, as appointments against such posts have now to be made in LT grade, as CT grade posts have been declared a dying cadre. 3. The Committee of Management in response thereto wrote a letter to the District Inspector of Schools that the post may be treated to have been converted into LT grade and the proposal in favour of the appellant may be read accordingly. The appointment was on ad hoc basis and since salary was not being paid, the writ petition was filed for a writ of mandamus. 4. An interim order was passed on 30.5.1991 and the appellant urges that he continued to get salary. The writ petition was dismissed where after the appellant filed Special Appeal No.689 of 2009 in which the following interim order was passed on 27.1.2010: - "Hon'ble Devi Prasad Singh,J. Hon'ble Devendra Kumar Arora,J. Let notice be issued to the respondent no. 3. As prayed by Sri S. K. Srivastava, learned Addl. Chief Standing Counsel, three weeks' time is granted for filing counter affidavit. Rejoinder Affidavit, if any, may be filed within two weeks thereafter. List immediately after expiry of the aforesaid period. Office shall send the record of the writ petition on the next date of listing. Keeping in view the fact that the appellant is discharging his duties since 1991, the respondents are directed to make payment of salary to the appellant with effect from January, 2010 which shall be subject to further orders of this Court. Order Date : - 27.1.2010 " 5. Keeping in view the fact that the appellant is discharging his duties since 1991, the respondents are directed to make payment of salary to the appellant with effect from January, 2010 which shall be subject to further orders of this Court. Order Date : - 27.1.2010 " 5. The said appeal was ultimately allowed vide judgment dated 5.4.2013 and the matter was remitted back to the learned single Judge. The judgment dated 5.4.2013 is extracted hereunder: - "Hon'ble Devi Prasad Singh,J. Hon'ble Arvind Kumar Tripathi (II),J. 1. After hearing learned counsel for the parties' we proceed to decide the present appeal. 2. Present appeal has been preferred under Chapter VIII Rule 5 of the Rules of the Court against the impugned order passed by Hon'ble Single Judge of this Court. 3. Admittedly, appellant was appointed as teacher against the regular vacancy in stop gap arrangements. When salary was not paid to them, they have approached this Court under Article 226 of the Constitution of India. An interim order was passed for payment of salary but while finally adjudicating the controversy Hon'ble Single Judge had dismissed the petitions on the ground that appointments were done 25.1.1991 in a situation when CT Grade was declared dying cadre. 4. Attention has been invited towards two government orders which reveal that CT Grade was declared dying cadre as on 19.2.1991. The other government order dated 4.9.1990 provides that while making appointment in CT Grade the candidate possessing qualification of LT grade shall be recruited. The Government order dated 4.9.1990 has been filed as Annexure -5 to the connected writ petition no. 5414 of 2012(SS). According to petitioner's counsel in the impugned judgement and order it has been incorrectly mentioned that CT grade was declared dying cadre w.e.f. 1.1.1986 rather it was declared as dying cadre w.e.f. 19.2.1991. 5. According to appellants counsel, government order dated 1.1.1986 referred in the impugned judgement does not provide that CT grade shall be declare dying carder from the said date. Only a circular was issued showing intention of government to declare dying cadre. 6. The submission is, CT Grade was declared as dying cadre on 19.2.1991. Petitioner was appointed on 25.1.1991 before CT grade declared as dying cadre. Otherwise also the government order dated 4.9.1990 (supra) reveals that in place of CT Grade a candidate possessing qualification of LT Grade shall be appointed. 6. The submission is, CT Grade was declared as dying cadre on 19.2.1991. Petitioner was appointed on 25.1.1991 before CT grade declared as dying cadre. Otherwise also the government order dated 4.9.1990 (supra) reveals that in place of CT Grade a candidate possessing qualification of LT Grade shall be appointed. According to appellants counsel, appellants possessed requisite qualification of LT Grade. 7. It appears that attention of Hon'ble Single Judge was not invited to the aforesaid facts and circumstances as well as government order dated 4.9.1990. 8. Since, while dismissing the writ petition Hon'ble Single Judge had not considered the government order dated 4.9.1990 and the fact that CT Grade was declared dying cadre w.e.f. 19.2.1991, judgement seems to be not sustainable and suffers from substantial illegality. 9. In view of above, we allow the appeal and remit the matter back to Hon'ble Single Judge to re-decide the controversy afresh on the basis of pleadings on record expeditiously. Registrar shall list the writ petition for peremptory hearing before Hon'ble Single Judge in the first week of May, 2013. 10. A perusal of the government order dated 24.5.2004 reveals that CT grade was declared dying cadre w.e.f. 19.2.1991. It shall be open to the appellant's counsel to file an affidavit to bring on record all the related government orders. Present appeal is allowed accordingly. Order Date : - 5.4.2013 " 6. After remand and during the pendency of the said writ petition, the appellant filed another Writ Petition No.5414 of 2012 for regularisation and fixation of pensionary benefits as in the meantime he had superannuated. 7. It is, thus, clear that during the pendency of this litigation, the appellant had been continuing either on the basis of the order passed by the learned single Judge and getting salary or on the strength of the order passed by the Division Bench in Special Appeal. 8. The matter after remand when came up before the learned single Judge finally, the learned single Judge has in the impugned order dated 18.9.2013 held that the appellant appears to have retired from service and has been paid salary up to the date of his retirement. Accordingly, the writ petition was declared as infructuous and dismissed. An observation was, however, made that the dismissal of the said writ petition will not be an impediment to grant of relief in the subsequent Writ Petition No.5414 of 2012. 9. Accordingly, the writ petition was declared as infructuous and dismissed. An observation was, however, made that the dismissal of the said writ petition will not be an impediment to grant of relief in the subsequent Writ Petition No.5414 of 2012. 9. A recall application was filed praying that this would be a incongruous order, which application has also been dismissed on 17.5.2014. The learned single Judge has observed on merits that there was no approval of the appointment of the petitioner and, therefore, keeping in view the fact of the filing of the subsequent writ petition, no ground for recall was made out. It was further suggested that it is open to the appellant to file a necessary amendment application in Writ Petition No.5414 of 2012. 10. We have examined the records and we find that in Writ Petition No.5414 of 2012, the following order was passed on 12.12.2013: - "Hon'ble Devendra Kumar Arora,J. Submission of learned counsel for the petitioner is that as petitioner's earlier writ petition has been dismissed having become infructuous on account of the fact that the petitioner has retired from service and he has been paid entire salary till the date of his retirement but in the said writ petition there was another prayer with respect to grant of approval to the petitioner's appointment by the District Inspector of Schools and this may come in his way in present writ petition while considering the issue with respect to payment of retiral dues including pension. Therefore, he intends to move an application for review of order dated 18.9.2013, passed in Writ Petition No. 3110 (SS) of 1991. Accordingly, this case is adjourned on the request of learned counsel for the petitioner. Order Date : - 12.12.2013 " 11. It is thereafter that the recall application was filed in Writ Petition No.3110 of 1991 that was rejected on 17.5.2014. This order is also impugned in this appeal. 12. In our considered opinion, both the petitions ought to have been heard and taken up together and on account of filing of the subsequent writ petition, the first writ petition which has given rise to the present Appeal namely Writ Petition No.3110 of 2001 would not become infructuous for the simple reason that the entitlement of the petitioner in service was to be decided in this first writ petition. This also stands reenforced in view of the order of remand by the Division Bench dated 5.4.2013 extracted herein above whereby the matter had been remitted to the learned single Judge for decision in accordance with law. 13. The judgment of the Division Bench has unfortunately escaped the notice of the learned single Judge while proceeding to treat the writ petition to have become infructuous. In our opinion, writ petition No.3110 of 1991 was not at all infructuous and could not have been dismissed merely because a subsequent writ petition for regularisation and other pensionary benefits has been filed. 14. However, while dealing with the recall application, the learned single Judge has also commented upon the fact that since there was no approval, the appellant was not entitled for payment of salary. It is here that the issue relating to approval or otherwise had to be considered because of the fact that no final order had been passed by the District Inspector of Schools rejecting the claim of the petitioner. It is correct that the District Inspector of Schools vide letter dated 19.3.1991 had expressed his inability to make payment of salary but that was taken care of by passing of the interim order dated 30.5.1991 by this Court before the learned single, Judge and then the interim order by the Division Bench on 27.1.2010 coupled with the final decision dated 5.4.2013. The District Inspector of Schools was under an obligation to pass orders as per the direction dated 30.5.1991 which does not appear to have been done. 15. The issue of approval or otherwise was, therefore, to be decided that was clearly dependent upon the Government Orders that have been referred to by the Division Bench in the judgment dated 5.4.2013. 16. The aforesaid judgment and the impact thereof appears to have been overlooked and not considered while dismissing the writ petition on 18.9.2013. The subsequent writ petition No. 5414 of 2012, which has been filed, would be a supplement and would not be a substitute for cause of the action that was disclosed in the earlier writ petition No.3110 of 1991. this position was rightly observed in the order dated 12.12.2013 in Writ Petition No.5414 and the review deserved to be allowed. 17. The appeal, therefore, deserves to be allowed and is hereby allowed. this position was rightly observed in the order dated 12.12.2013 in Writ Petition No.5414 and the review deserved to be allowed. 17. The appeal, therefore, deserves to be allowed and is hereby allowed. The judgment and order dated 18.9.2013 and the order on the review application dated 17.5.2014 are set aside. The matter is remitted back to the learned single Judge to decide the matter afresh as per the order dated 4.5.2013 and the observations made herein above with a request to decide the matter expeditiously as the matter is of the year 1991 alongwith Writ Petition No.5414 of 2012.