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Allahabad High Court · body

2015 DIGILAW 3381 (ALL)

Bhagwan Das Pandey v. State of U. P.

2015-10-28

RAJAN ROY

body2015
JUDGMENT Rajan Roy, J. – Rejoinder affidavit filed on behalf of opposite party no.2 in W.P.No. 2438(SS) of 1997. 2. Heard Sri Awadhesh Kumar Tiwari and Sri Ramesh Pandey, learned counsel for the petitioners in Writ Petition No. 2438(SS) of 1997, Bhagwan Das Pandey v. State of U.P. & ors.; as also Sri Mayankar Singh, learned counsel for the petitioner appearing in Writ Petition No. 4432 (SS) of 2015, Bhagwan Das Pandey v. State of U.P. & ors.; Sri Nagendra Bahadur Singh, learned counsel for the Committee of Management; Sri Vinidhyawasini Kumar, learned counsel for the opposite party nos. 2 and 3 and Sri Rajeev Srivastava, learned counsel for the State. 3. The original records as ordered have been produced. 4. As both the writ petitions have been filed by the same petitioner and the issues are related, therefore, they have been heard together and are being disposed of by a common judgment. 5. As far as writ petition No. 2438(SS) of 1997 is concerned, Sri Mayankar Singh, learned counsel for the petitioner appearing therein has stated that the said writ petition be dismissed as not pressed. 6. The Committee of Management has not chosen to file any counter affidavit in this writ petition. However, it has filed a counter affidavit in the subsequent/connected writ petition no. 4432(SS) of 2015. 7. The matter has been heard on the application for recall of order dated 14.1.2000 passed in W.P.No. 2438 (SS) of 1997 as also merits of writ petition as pleadings have been exchanged in the meantime and the parties were also informed on the earlier dates that the matter will be so heard. 8. W.P. No.2438(SS) of 1997 was filed on 4.4.1997 seeking a writ, direction or order in the nature of mandamus commanding the opposite parties and directing them to pay the arrear and regular salary to the petitioners. 9. As per the stand of the petitioners, an advertisement was issued on 1.3.1992, a copy of which is annexed as Annexure-1 to the writ petition, inviting applications for appointment of two Assistant Teachers preferably belonging to the O.B.C. and S.C./S.T. Category. In pursuance to the same, the petitioner applied. It is stated that on 12.3.1992 the then Committee of Management requisitioned an observer from the Basic Education Officer, Gonda for the purposes of selection to the aforesaid posts which was scheduled to be held on 25.3.1992. 10. In pursuance to the same, the petitioner applied. It is stated that on 12.3.1992 the then Committee of Management requisitioned an observer from the Basic Education Officer, Gonda for the purposes of selection to the aforesaid posts which was scheduled to be held on 25.3.1992. 10. Case of the petitioner is that the observer Smt. Kamla Singh was provided and she participated in the selection wherein the petitioners were selected. Consequently, the papers were sent to the District Basic Education Officer for prior approval as is envisaged under Rule 10 of the U.P. Recognised Basic Schools (Junior High School) (Recruitment of Teachers & Service Conditions) Rules 1978 (hereinafter referred as "Rules of 1978"). That the Basic Education Officer granted approval vide his order dated 30.3.1992, a copy of which is annexed as Annexure- 6 to the writ petition. This is a fact which is disputed by the opposite parties. 11. According to the petitioners, they joined service on 7.4.1992, however, they were not paid salary. Ultimately they filed W.P.No. 2438 (SS) of 1997 for the relief already mentioned herein above. 12. On 6.8.1999 an interim order was passed in the said writ petition directing the opposite parties to pay salary to the petitioners in case they are working or to show cause as to why the petitioners are not being paid their salary. A counter affidavit was also called. In response thereto, the Basic Education Officer filed his counter affidavit sworn on 9.1.2000 in the Registry of the Court on 13.1.2000 and the matter was taken up before the court on the very next date i.e. on 14.1.2000. On 14.1.2000 the court observed that "the petitioners have filed C.M. Application No. 89(W) of 2000 for dismissal of the writ petition. The application is supported with an affidavit of the petitioners. The application is allowed. The writ petition is accordingly dismissed. Interim order, if any, is discharged". 13. The case of the petitioner is that the dismissal of the writ petition was not known either to the petitioner or the opposite parties. Consequently, in compliance of the interim order dated 6.8.1999, though it also stood vacated and merged in the final order of dismissal passed on 14.1.2000, the matter pertaining to payment of salary to the petitioners was processed and an order was passed on 1.7.2000 by the Basic Education Officer for payment of salary to them. Consequently, in compliance of the interim order dated 6.8.1999, though it also stood vacated and merged in the final order of dismissal passed on 14.1.2000, the matter pertaining to payment of salary to the petitioners was processed and an order was passed on 1.7.2000 by the Basic Education Officer for payment of salary to them. This order has been annexed as Annexure No.RA-1 with the rejoinder affidavit which has been filed by the petitioner herein before this court on 26.10.2015. 14. The Manager of the Committee of Management of the institution wrote a letter dated 11.7.2015 addressed to the petitioners stating that the writ petition of the petitioner had already been dismissed on 14.1.2000 and calling an explanation from them as regards their illegal continuance and payment of salary. Indisputably, no explanation was submitted by the petitioners. Instead, they filed an application for recall of the order dated 14.1.2000 in W.P.No. 2438 (SS) of 1997 on 20.7.2014. Another reminder was given by the Manager to the petitioners on 20.7.2015, but no explanation was submitted by the petitioners. On 27.7.2015 the petitioners were placed under suspension. This order was challenged by them by filing a subsequent writ petition No. 4432(SS) of 2015. In the meantime, the charge sheet was issued to the petitioners on 22.9.2015. 15. On the question of recall of order dated 14.1.2000, Sri Tiwari, Advocate and Sri Ramesh Pandey, Advocate appearing for the petitioner applicants submitted that the aforesaid order was passed without hearing the petitioners. It was an ex-parte order which appears to have been passed under some misconception that the application for dismissal had been filed by the petitioners, whereas, in fact, it was filed by the Basic Education Officer along with his counter affidavit. The least that was required to be done was to give time to the petitioners for filing rejoinder affidavit, but there was no occasion to dismiss the writ petition in the manner in which it was done. The order is apparently erroneous and is liable to be recalled. 16. On the other hand, learned counsel for the opposite parties submitted that the conduct of the petitioners is such that order dated 14.1.2000 is not liable to be recalled. The order is apparently erroneous and is liable to be recalled. 16. On the other hand, learned counsel for the opposite parties submitted that the conduct of the petitioners is such that order dated 14.1.2000 is not liable to be recalled. They submitted that even after dismissal of the writ petition on 14.1.2000 the Basic Education Officer vide order dated 1.7.2000 ordered for payment of salary to them in compliance of the interim order, though the same had ceased to operate. Not only this, the arrears of salary, selection-grade etc. have also been paid. The petitioners did not disclose the factum of dismissal of the writ petition and derived undue advantage in the form of salary and other monetary benefits from the State Exchequer. It is only in the year 2015 when this fact came to light that they were confronted. 17. As far as the question of recall of the order dated 14.1.2000 is concerned, there is merit in the contention of learned counsel for the petitioners. The application which was listed before the court was filed by the Basic Education Officer for dismissal of the writ petition along with his counter affidavit, therefore, the writ petition could not have been dismissed on the very next date without even giving an opportunity to the petitioners to file rejoinder affidavit, certainly not without hearing them. The order of dismissal of the writ petition does not refer to any fact nor is there any consideration of the merits of the case. In these circumstances, the order does appear to be erroneous. However, having said so, this court cannot be unmindful of the conduct of the petitioners and others subsequent to dismissal of the writ petition, but the same would be considered in the latter part of this judgment while considering the writ petitions on merits. The order dated 14.1.2000 is accordingly recalled and the application for recall is disposed of on the following conditions: (I) Interim order dated 6.8.1999 shall be treated as inoperative with effect from 14.1.2000, subject to the decision in the writ petition on merits which is to follow. (II) The recall of order dated 14.1.2000 shall have no bearing on the consideration of merits of the controversy involved and the conduct of parties in the matter. 18. (II) The recall of order dated 14.1.2000 shall have no bearing on the consideration of merits of the controversy involved and the conduct of parties in the matter. 18. As far as merits of the matter is concerned, learned counsel for the petitioners submitted that petitioners were bona fide applicants in pursuance to the advertisement dated 1.3.1992. They were duly considered by a selection committee in which the observer Smt. Kamla singh provided by the Basic Education Officer had participated, a fact, which, according to them, is not in dispute. Learned counsel further submitted that the said selection and appointment was duly approved under the Rules of 1978 by the Basic Education Officer vide his order dated 30.3.1992. Therefore, as far as their eligibility and qualification for the post in question is concerned, the approval order is itself sufficient testimony to the said fact and it cannot be said that the petitioners are not qualified. The petitioners possessed the qualification which was prescribed in the advertisement dated 1.3.1992, though it is admitted that the qualification as mentioned in the Rules was not possessed by them. 19. The contention is that the petitioners did not come to know about the dismissal of the writ petition. Even authorities did not know about the same, that is why they passed the order dated 1.7.2000 for payment of salary and thereafter further passed an order dated 4.12.2002 for payment of arrears of salary. Selection grade and other benefits have already been provided to the petitioners who have been working for the past 23 years and are due to retire in the next couple of years. They claim their actions to be bona fide and alleged that action of the Committee of Management is mala fide. The Committee of Management should be asked to file counter affidavit to justify the selection and appointment made by it. The petitioners cannot be made to suffer for the fault of the Committee of Management, if any. It is nobody's case that the petitioners have manipulated or fabricated the documents in question. 20. Learned counsel for the Basic Education Officer, on the other hand, submitted that the alleged selection and appointment was never approved by the Basic Education Officer as is mandatory under Rule 10 of the Rules of 1978. It is nobody's case that the petitioners have manipulated or fabricated the documents in question. 20. Learned counsel for the Basic Education Officer, on the other hand, submitted that the alleged selection and appointment was never approved by the Basic Education Officer as is mandatory under Rule 10 of the Rules of 1978. There is nothing on record of Basic Education Officer to support the claim of the petitioners that the same were approved. No such order dated 30.3.1992 is available in the records of the office of the Basic Education Officer nor is there any other document supporting the claim of the petitioner available. The dakregister/dispatch register do not reveal that letter no.7483 was sent on 30.3.1992 to the Deputy Inspector of Schools, Gonda and the said serial number is not mentioned in seriatum after serial nos. 7481 and 7482, however, at some stage an interpolation has been made by mentioning the same letter number prior to serial no. 7481, which is incongruous with the seriatum mentioned on the said page. The writing and figures mentioned also do not match the writing and figures on the rest of the page. He contended that the counter affidavit had been filed before the court on 13.1.2000 and in paragraphs 9 and 10 thereof it has been specifically stated that there was no such approval of the selection and appointment of the petitioner and that the documents contained in Annexure nos.5 and 6 including the alleged approval order dated 30.3.1992 were fabricated and forged. The letter number and page of endorsement in the diary of the Basic Education Officer are different and do not relate to the matter of the petitioners. 21. He also invited the attention of the court to the counter affidavit of the Basic Education Officer to say that the post of Assistant Teacher (Agriculture) was a post of the Government and was abolished and nonexistent in the institution in question. Therefore, there was no question of advertisement for appointment on the said post. No prior permission was taken from the Basic Education Officer before advertising the vacancy. Neither the letter dated 27.2.1992 was written to the Basic Education Officer for nominating a member of the Selection Committee nor the same was nominated by the then District Basic Education Officer. Therefore, there was no question of advertisement for appointment on the said post. No prior permission was taken from the Basic Education Officer before advertising the vacancy. Neither the letter dated 27.2.1992 was written to the Basic Education Officer for nominating a member of the Selection Committee nor the same was nominated by the then District Basic Education Officer. No document is available in the office of the Basic Education Officer to show that Smt. Smt. Kamla Singh was ever appointed as supervisor of the selection to be held on 25.3.1992. Since no post was vacant, there was no question of making appointment. There was no provision of nominating a supervisor for selection. As a matter of fact, the member of the Selection Committee is to be nominated by the Basic Education Officer as per Rule 10. Annexure-4 to the writ petition is a forged one. The Finance and Accounts Officer, Basic Education, had no authority to make appointment on the post in question. Petitioners did not possess the requisite qualification for the post, as they were not trained, therefore, there was no question of giving approval. Petitioners have not been appointed in accordance with Rules of 1978. 22. Learned counsel for the Committee of Management has supported the stand of the Basic Education Officer and has also stated that the petitioners continued to receive salary fraudulently even after dismissal of the writ petition. The documents annexed are forged and their appointment is not valid. 23. The terms and conditions of service of the post of Assistant Teachers in the Basic Schools are governed by the Rules of 1978. As per Rule 5 of the Rules of 1978 no person shall be appointed as Head Master or Assistant Teacher in substantive capacity in any recognised school unless he possesses the minimum qualification prescribed for such post; he is recommended for such appointment by the selection committee. Rule 7 provides that no vacancy shall be filled, except after its advertisement in at least two newspapers, one of whom must have adequate circulation all over the State and the other in a locality where the school is situated. In every advertisement, the Management shall give particulars as to the name of the post, minimum qualification and age limit, if any, prescribed for such post and the last date for receipt of applications in pursuance to such advertisement. In every advertisement, the Management shall give particulars as to the name of the post, minimum qualification and age limit, if any, prescribed for such post and the last date for receipt of applications in pursuance to such advertisement. Rule 9 refers to the constitution of the Committee of Management which in this case was to comprise of the Manager, Head Master of the Recognised Schools in which the appointment is to be made, a nominee of the District Basic Education Officer. Rule 10 prescribes the procedure for selection. Under Rule 10 after the selection is held, the Manager is required to send a copy of the list of candidates to the District Basic Education Officer and the latter if satisfied that the candidates recommended by the selection committee possessed the minimum qualification prescribed for the post, procedure laid down in the Rules for selection of Head Master and Assistant Teacher, as the case may be, has been followed, he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the Management within two weeks from the date of receipt of the papers under Clause (IV). If the District Basic Education Officer is not satisfied, as aforesaid, he shall return the papers to the Management with the direction that the matter shall be reconsidered by the selection committee. 24. If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of papers under Clause (IV), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee. Rule 11 relates to appointment and provides that on receipt of communication of approval or as the case may be on the expiry of the period of one month referred herein above the Management shall offer appointment to the candidates as per scheme mentioned therein. 25. Rule 4 of the Rules 1978 prescribes minimum qualifications for the post of Assistant Teacher of recognised school which shall be Intermediate of the Board of High School and Intermediate Education U.P. or equivalent examination (with Hindi) and Teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Training Certificate, Basic Teaching Certificate or Certificate of Training. This is the rule existing at the relevant time. 26. This is the rule existing at the relevant time. 26. The legal position is very well settled that in order to be entitled to payment of salary, specially from the State Exchequer, the first and foremost condition is that the appointment has to be in accordance with Rules. An appointment de hors the Rules or de hors the law would not entitle the claimant to salary, certainly not from the State Exchequer. Reference may be made in this regard to the decision of the Supreme Court in 2004 (2) SCC 105 , R. Vishwanatha Pillai v. State of Kerala (paras 17 & 18). As the petitioner has filed this writ petition seeking a writ of mandamus for payment of salary, therefore, first of all it is to be seen as to whether he has any substantive right to the post and has been appointed thereon in accordance with law or not. If he has, then the question of payment of salary will arise. If not, then he would not be entitled to any relief. 27. The document contained in Annexure-1 is an advertisement alleged to have been issued by the Committee of Management, though the said document does not mention the name of the newspaper wherein it is said to have been published, learned counsel for the petitioner informed during hearing that the said advertisement was published in Trigut Dainik, Gonda. 28. Rule 7 of the Rules of 1978 requires the vacancy to be advertised in at least two news papers, one of whom must have adequate circulation all over the State and the other in a locality where the school is situated. Rule 7(2) also requires that such advertisement shall mention, inter alia, the minimum qualifications prescribed for such post. The writ petition does not disclose the publication of advertisements as per Rule 7 except the alleged publication in one newspaper which appears to be a local newspaper having circulation all over the State. 29. A perusal of the advertisement contained in Annexure-1 shows that it does not mention the minimum qualification for the post of Assistant Teacher as prescribed under Rule 4 of the Rules of 1978, instead, it states that for the post at Serial No.1 i.e. Assistant Teacher (General) the qualification is "Trained Graduate", whereas for the post at Serial No.2 i.e Assistant Teacher (Agriculture) the qualification is "Graduation in Agriculture". The petitioner no.1 claims to have been appointed against the post at Serial No.1 for which the qualification was mentioned in the advertisement as "Trained Graduate". In Rule 4 the requirement is of "trained person having Intermediate qualification at the relevant time, and not "Graduation". The petitioner no.2 claims to have been appointed on the post of Assistant Teacher (Agriculture) for which the qualification was mentioned as "Graduation in Agriculture". Petitioner no.1 possessed the qualification of "B.A./B.Ed." at the relevant time. It is not in dispute, rather it is evident from the judgment of the Full Bench dated 19.12.2013 passed in Special Appeal No.1234 of 2013 that prior to 12 June, 2008 the qualification of B.Ed. was not treated as a qualification for the training required under Rule 4 of the Rules 1978. Selection and appointment in question pertains to the period prior to 12.6.2008, therefore, B.Ed. qualification did not entitle the petitioner no.1 to be treated as a "Trained Person". As far as petitioner no.2 is concerned, his qualification was B.Sc. (Agriculture), whereas requirement was of a "Trained Teacher" as mentioned in Rule 4, which was not the case with him. Thus, not only the advertisement, which is available on record, was not in terms of Rule 7 read with Rule 4, but the petitioners did not possess the requisite qualifications under Rule 4. The advertisement itself was not in terms of Rules of 1978 under which it is purported to have been issued. 30. A perusal of the alleged approval order dated 30.3.1992 shows that a conditional approval was given by the then Basic Education Officer Sri Brijendra Nath Mishra with the stipulation, inter alia, that if Sri Rajkumar Mishra, petitioner no.2 herein, does not become trained with a period of one year, then his approval would be cancelled and a trained teacher would be appointed in his place. It is said that the petitioner no. 2 acquired the eligibility condition of training within the stipulated period. 31. On perusal of relevant Rule of 1978 this court does not find any such provision under which the Basic Education Officer could have relaxed the terms and conditions of recruitment/appointment in the manner he did so vide his order dated 30.3.1992. It is said that the petitioner no. 2 acquired the eligibility condition of training within the stipulated period. 31. On perusal of relevant Rule of 1978 this court does not find any such provision under which the Basic Education Officer could have relaxed the terms and conditions of recruitment/appointment in the manner he did so vide his order dated 30.3.1992. Be that as it may, the issuance and existence of the document contained in Annexure-6 dated 30.3.1992 i.e. the above mentioned approval letter is itself denied by the Basic Education Officer and it has been stated that no such letter was ever issued. 32. The petitioners are stated to have joined service on 7.4.1992. They waited for five years till 1997 before filing writ petition no. 2438 (SS) of 1997 claiming salary. Normally if a person was validly appointed and was working but salary was not being paid, he would have immediately rush to the court and not wait for five years. 33. Moreover, it is apparent from the discussion made herein above that on the date of applying for the alleged selection, assuming that any such selection was held as per Rules, none of the petitioners possessed the requisite qualification prescribed under Rule 4. 34. Furthermore, counter affidavit of the Basic Education Officer reveals that the post of Assistant Teacher (Agriculture) was of the Government which had been abolished and that there was no such post in the institution, therefore, in the absence of any sanctioned post of Assistant Teacher (Agriculture) there was no question of appointment. In fact, the counter affidavit reveals that there was no vacancy at all. 35. The original diary/register produced before the court today reveals that the document which is entered therein with letter no. 7483 is said to have been issued on 30.3.1992 to the Deputy Inspector of Schools, Gonda and the said serial number is mentioned at the proper seriatum after serial nos. 7481 and 7782, whereas there is another entry towards the top after serial no. 7480 and this is an entry mentioning letter no.7483 relating to approval of Assistant Teachers of the institution in question. 7481 and 7782, whereas there is another entry towards the top after serial no. 7480 and this is an entry mentioning letter no.7483 relating to approval of Assistant Teachers of the institution in question. On a bare perusal from naked eyes this entry and the figure "7483", apart from the fact that it is not mentioned at the appropriate place and there is no reason as to why it should be mentioned after 7480 and before 7481, is apparently in different hand-writing and style, as compared to the other entries on the same page. This is evident from naked eye. No expert opinion is required on this issue. 36. Be that as it may, assuming for a moment that any advertisement was issued and a selection was also held, the fact is that none of the petitioners were qualified. The approval order having been denied by the opposite parties as forged and fabricated and the said fact having not been rebutted by the petitioners satisfactorily, the conclusion is irresistible that the selection and appointment as also the alleged approval are absolutely illegal. No such approval could have been given in the terms in which it was given and the Basic Education Officer could not have done so. 37. The legal position is very well settled that in the absence of a sanctioned post and appointment being de hors the rules no direction for payment of salary can be given. Reference may be made in this regard to the Full Bench decisions dated 19.12.2013 in Special Appeal No. 1234 of 2013 and 19.12.2014 in Special Appeal (Defective) No. 701 of 2014. 38. Now, to consider the conduct of the petitioners herein. Their writ petition No. 2438(SS) of 1997 was dismissed on 14.1.2000. The interim order stood vacated. There was no way the petitioners could have been paid salary in compliance of the interim orders. It is not possible for this court to accept that for 15 long years the petitioners were not aware as regards the fate of their writ petition as concluded by Sri Pandey. Any prudent person would have tried to know the fate of the proceedings initiated by him, specially when he is deriving benefit from the order passed therein. It is also not possible for this court to accept that the Basic Education Officer or other authorities did not know about the dismissal of the writ petition. Any prudent person would have tried to know the fate of the proceedings initiated by him, specially when he is deriving benefit from the order passed therein. It is also not possible for this court to accept that the Basic Education Officer or other authorities did not know about the dismissal of the writ petition. Even assuming it was so, fact of the matter is that the interim order was either to pay salary or to show cause as to why they are not being paid salary. The cause was shown by the Basic Education Officer by filing a counter affidavit on 13.1.2000 denying not only the averments made in the writ petition, but also the validity of the selection and appointment of the petitioners and their entitlement to salary from the State Exchequer, the very existence of the documents annexures annexed by the petitioners in support of their claim as also the existence of the vacancies was also denied. The petitioners eligibility for such appointment itself was denied. In this view of the matter it is inexplicable as to how the Basic Education Officer could have passed an order on 1.7.2000 for payment of salary to the petitioner, that too, in purported compliance of the interim order dated 6.8.1999, which, firstly did not direct for payment unless they were entitled and asked in the alternative, to show cause; and secondly, it was an order which did not even exist as on 1.7.2000. 39. It is indeed surprising as to how even after dismissal of the writ petition the petitioners continued to get salary from the State Exchequer contrary to the stand of the Basic Education Officer himself in the counter affidavit filed before the High Court in the said writ petition on 13.1.2000. This is a matter of inquiry. 40. Considering the facts and circumstances of the case, this court does not find the appointment of the petitioners to be an appointment as per the Rules 1978, consequently, the relief claimed by them in W.P. No. 2438 (SS) of 1997 for issuance of a writ in the nature of mandamus for payment of salary cannot be granted. Same is accordingly declined. 41. Same is accordingly declined. 41. The Principal Secretary (Basic) is directed to look into the matter and institute a high level inquiry into the circumstances in which the salary was released in favour of the petitioners in spite of the stand of the official opposite parties before the High Court in W.P. No. 2438(SS) of 1997 as expressed in the counter affidavit filed on 13.1.2000 and in spite of dismissal of the writ petition on 14.1.2000 and vacation of the interim order. The inquiry shall encompass the role of all the concerned including the Basic Education Officer and other concerned authorities of the said department, the Managing Committee of the Institution, petitioners herein and any other person who may be involved. Based thereon, appropriate action shall be taken by the competent authority as per Rules/law against erring person(s) whether they be the official person(s) or otherwise. 42. As far as writ petition no. 4432(SS) of 2015 is concerned, considering the statement made by the learned counsel for the petitioner, same is dismissed as not pressed. Writ Petition No. 2438 (SS) of 1997 is also dismissed. 43. Let this judgment be communicated to the Principal Secretary/Secretary, Basic Education, Civil Secretariat, U.P. Lucknow by the Addl. Chief Standing Counsel appearing in this case.