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2016 DIGILAW 1430 (ALL)

RAJESH KUMAR SINGH v. STATE OF U. P.

2016-04-19

UMESH CHANDRA SRIVASTAVA, V.K.SHUKLA

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JUDGMENT By the Court.—Rajesh Kumar Singh s/o Chandra Bhushan Singh is before this Court assailing the validity of the order dated 7th April, 2016 in Writ Petition No. 14359 of 2016, wherein learned Single Judge has proceeded to pass an order by mentioning “I do not find any reason for granting any interim relief in the matter”. 2. It is being submitted on behalf of petitioner-appellant that he had applied for consideration of his candidature for the post of Principal pursuant to the advertisement made by U.P. Secondary Education Service Selection Board vide Advertisement No. 1 of 2008 and petitioner-appellant claims that he has been selected in the panel of selected candidates declared, which was declared on 7th December, 2009 by the Secretary of the Board. Petitioner-Appellant submits that in spite of the fact that he has been a selected candidate, his joining in question has not at all been ensured and in order to resist the joining of appellant as Principal, Writ Petition No. 17090 of 2010 has been preferred and interim order was passed on 7th May, 2010 and against the same, Special Appeal No. 1023 of 2010 has been preferred and order dated 7th May, 2010 was quashed by order dated 7th June, 2010 and against the same, SLP bearing (Civil) No. 21783 of 2010 has been preferred before the Apex Court and the same was dismissed on 13th August, 2010. Petitioner-Appellant submits that in spite of these orders in his favour, he was not being permitted to perform his duties as Principal and accordingly, order of Single operation was passed. Petitioner-appellant has contended that all attempt was made to thwart of his joining. Petitioner-appellant has contended that with great difficulty he was permitted to function as Principal but his harassment and victimization continued. Petitioner-appellant submits that thereafter an attempt was made to raise as issue in respect of his educational qualification and specially in reference of the experience. 3. Petitioner-appellant stated that in this direction issue was raised and in the said issue, initially, learned Single Judge submitted that once selection process is over, U.P. Secondary Education Service Selection Board has no right to intervene. 3. Petitioner-appellant stated that in this direction issue was raised and in the said issue, initially, learned Single Judge submitted that once selection process is over, U.P. Secondary Education Service Selection Board has no right to intervene. Petitioner-appellant has contended that in Special Appeal No. 476 of 2014, the authority of Board to take action has been approved and thereafter complaint has been made to the Board and the Board has proceeded to non-suit the claim of appellant on the basis of experience. Petitioner-appellant submits that he has proceeded to raise pertinent issue in writ petition, wherein a prima facie strong case was made out by him to grant interim order in faovur of petitioner-appellant and in view of this, this Court should intervene in the matter as on account of non grant of interim order valuable right of petitioner-appellant are being infringed on totally unfounded grounds mentioned in the order impugned. 4. Shri N.L. Pandey, Advocate appearing with Shri V.P. Shukla, Advocate submitted before this Court that totally incorrect opinion has been formed by U.P. Selection Board whereas the Board itself was not at all validly constituted and the opinion that has been formed on the experience front is totally perverse and unreasonable and learned Single Judge ought to have looked into this aspect of the matter and as such, this Court should come to the rescue and reprieve of the petitioner-appellant as non granting of interim order would tantamount to taking away the livelihood of petitioner-appellant 5. Shri Ashok Khare, Senior Advocate appearing with Shri V.K. Singh, Advocate for the opposite parties submitted that in the present case experience issue has been rightly dealt with and learned Single Judge, in the facts of case has rightly refused to accord interim order and as such, no interference be made. 6. After respective arguments have been advanced, the factual situation that is so emerging, in the present case, that learned Single Judge has proceeded to pass an order for fulfilling the procedural formalities i.e. exchange of pleadings inter-se parties and simultaneously has proceeded to pass an order refusing to grant interim relief in the matter. 7. The issue is as to whether interim order ought to have been passed in the facts of the case instead of proceeding to refuse to pass the interim order in question. 8. 7. The issue is as to whether interim order ought to have been passed in the facts of the case instead of proceeding to refuse to pass the interim order in question. 8. Against an order refusing to accord injunction as to whether it will fall within the realm of the judgement has already been answered by Full Bench of this Court in the case of Ashutosh Shrotiya and others v. Vice... Dr. B.R. Ambedkar University and others, 2015(8) ADJ 248 (FB). Relevant extract of the said judgement is being quoted below: “We, accordingly, are of the view that a direction issued by the learned Single Judge in the course of the hearing of a writ petition, calling for the filing of a counter and a rejoinder or, in other words, for the completion of pleadings is a direction of a procedural nature, in aid of the ultimate progression of the case. The object and purpose of such a direction is to enable the Single Judge to have the considered benefit of a response to the petition so as to enable the Court to deal with an application of an interlocutory nature upon a fair consideration of the rival perspectives and eventually for the purpose of the disposal of the case at the final stage. A purely procedural direction of this nature would ordinarily not be amenable to the remedy of a special appeal even if the consequence of the issuance of such a direction is to cause some inconvenience or prejudice to one or other party. The Court, in order to decide a lis, either at the interlocutory or at a final stage, would generally require the benefit of a response filed by a party which would be affected by the order which is sought and the reliefs which are claimed. Compliance with the principles of natural justice is as much a safeguard for the parties as it is for the Court of having considered the matter in all its perspectives before rendering a final decision. If a party to the proceeding seeks to press an application for ad interim relief even before a reply is filed on grounds of extreme urgency or on the ground that the situation would be irreversibly altered or that irretrievable injustice would result unless a protective order is passed, such a submission must be urged before the Single Judge. If a party to the proceeding seeks to press an application for ad interim relief even before a reply is filed on grounds of extreme urgency or on the ground that the situation would be irreversibly altered or that irretrievable injustice would result unless a protective order is passed, such a submission must be urged before the Single Judge. If such a submission is urged, it must be recorded and dealt with however briefly to obviate a grievance that an application for ad interim relief was pressed but not dealt with. A purely procedural direction of calling for a counter-affidavit and rejoinder would not be amenable to a special appeal since it decides no rights and does not affect the vital and substantive rights of parties. However, the appellate Court has the unquestioned jurisdiction to decide whether the direction is of a procedural nature against which a special appeal is not maintainable or whether the interlocutory order decides matters of moment or affects vital and valuable rights of parties and works serious injustice to the party concerned. Where the Division Bench in a special appeal is of the view that the order of the learned Single Judge is not just a procedural direction but would result in a grave detriment to substantive rights of an irreversible nature, the jurisdiction of the Court is wide enough to intervene at the behest of an aggrieved litigant. The Rules of Court are in aid of justice. We, therefore, affirm the principle that a purely processual order of the nature upon which the reference is made would not be amenable to a special appeal not being a judgement. The Division Bench will have to decide in the facts of each case, the nature of the order passed by a Single Judge while determining whether the appeal is maintainable. In view of the aforesaid discussions, we answer the question of law referred to the Full Bench by holding that, an order of a learned Single Judge upon a petition under Articles 226 or 227 of the Constitution only calling for counter and rejoinder-affidavits is merely a procedural order in aid of the progression of the case. In view of the aforesaid discussions, we answer the question of law referred to the Full Bench by holding that, an order of a learned Single Judge upon a petition under Articles 226 or 227 of the Constitution only calling for counter and rejoinder-affidavits is merely a procedural order in aid of the progression of the case. An order of this nature which is purely of a procedural nature in aid of the progression of the case and to enable the Court to form a considered view after a counter-affidavit and a rejoinder are filed would not be amenable to a special appeal under Chapter VIII Rule 5. Such an order does not decide anything nor does it have the trappings of finality. If a party to the proceedings seeks to press an application for ad interim relief of a protective nature even before a counter-affidavit is filed, on the ground that a situation of irretrievable injustice may result or that its substantive rights would be adversely affected in the meantime, such an argument must be addressed before the Single Judge. If such an argument is urged, it should be dealt with however briefly, consistent with the stage of the case, by the Single Judge. It is for the Division Bench hearing the special appeal to consider whether the order decides mattes of moment or is of such a nature that would affect the vital and valuable rights of the parties and causes serious injustice to the concerned party.” 9. On the basis of the pronouncement that has been so made and the parameters settled therein, it has to be examined, in the facts of the case, if a party proceeds to press an application for ad interim relief of a protective nature even before a counter-affidavit is filed, on the ground that a situation of irretrievable injustice may result or that its substantive rights would be adversely affected in the meantime, such an argument before the Single Judge has to be considered objectively keeping in view the peculiar characteristics of the case pointed out. Here this much is reflected from the record that interim application has been pressed but the same has been rejected on account of there being no good reason available on record. Here this much is reflected from the record that interim application has been pressed but the same has been rejected on account of there being no good reason available on record. The learned Single Judge, in the present case, has proceeded to take note of the main thrust of the argument of counsel for the petitioner-appellant that appointment of petitioner-appellant has been cancelled on the post of Principal for want of requisite qualification and then the learned Single Judge has proceeded to took note of the fact that said order has been passed on the basis of order passed by the Division Bench of this Court in Special Appeal No. 476 of 2014 vide an order dated 13th May, 2014 and has proceeded to make a mention that the said controversy has already been settled by Division Bench in Special Appeal No. 476 of 2014 holding that all such queries raised by the petitioner, has to be considered by the Board and at no point of time, learned Single Judge has gone into the issue as to whether the opinion that has been formed by the Board, on its face value, is correct or incorrect. 10. The fact of the matter is that petitioner-appellant has been appointed as Principal and has been continuing as Principal and as far as respondents are concerned, they have been opposing the candidature of petitioner-appellant by tooth and nail. 11. It is accepted position that it is the Learned Single Judge, who has to decide at the first instance as to whether opinion of requisite experience, so formed by the Board is rightful experience, or petitioner-appellant is ineligible. 12. Before us, the initial appointment of petitioner-appellant has been shown at page 39 of the paper book wherein he has been shown as Grade-I Vyakhyata (Lecturer) in the subject of Geography and this much is also reflected that the said engagement in question, subsequent to the same, has been absorbed under Government order dated 28th June, 2007 and this much has also come on record that all such incumbents would be absorbed w.e.f. 1st April, 2007 and their tenure as teacher would be computed from 1st April, 2007. 13. 13. Once from the letter dated 21st July, 1998, it was prima facie established that petitioner has been performing and discharging duties as Grade-I Vyakhyata (Lecturer) and subsequent to the same, he has been sought to be absorbed in the teachers cadre, then to ignore the aforementioned experience on the premises that earlier teaching work had not been performed, based on Government order dated 28th June, 2007, prima facie, ought to have been looked into. Such aspect of the matter has not at all been looked into by learned Single Judge, whereas in the body of writ petition full details wre given running in paragraph 14 to 20 clearly specifying that Madhya Pradesh Nagar Palika Shiksha Karmi (Recruitment and condition of Service) Rules, 1978 were applicable and Shiksha Karmi, Varg-I is appointment of Lecturer Teaching Class XIth and XIIth. Once all these facts were there in the pleadings, then same ought to have been looked into, in view of this, as petitioner-appellant has been performing his duties as Principal and on the basis of the order, his claim in question has been sought to be non-suited and the documents in question, prima facie, reflects that he has worked as Grade-I Vyakhyata (Lecturer) and accordingly, in such a situation, prima facie, to throw out the petitioner-appellant and specially when a debatable case is there and procedural front has been addressed by inviting counter-affidavit, then, in our considered opinion, learned Single Judge ought to have proceeded to pass interim order to safeguard the interest of petitioner appellant, as on the strength of impugned order, the Management who has been after him would get a chance to throw him out of employment, and this causing irretrievable injustice, in view of this, we proceed to pass an order staying the effect and operation of the order dated 7th April, 2006. Accordingly, present Special Appeal stands allowed and disposed of with the direction that interim order in question shall continue during the pendency of writ petition and same shall abide by the final orders to be passed in the writ petition after exchange of pleadings. 14. Special Appeal is allowed accordingly.