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2018 DIGILAW 795 (ALL)

Ram Prasad v. D. I. O. S.

2018-04-03

SURYA PRAKASH KESARWANI

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ORDER : SURYA PRAKASH KESARWANI, J. 1. Heard Sri Arun Kumar Singh, learned counsel for the petitioner and Sri Surbhan Singh, learned standing counsel for the respondent. 2. This writ petition has been filed for the following relief: “(i) Issue a writ in the nature of certiorari quashing the impugned order dated 16.1.1990 passed by respondent no.1. (ii) To issue a writ in the nature of mandamus directing the respondent no.1 to pay months to months salary to the petitioner regularly along with his arrears of salary treating him in service and not to pay salary to respondent no.2. (iii) To issue any other suitable writ order or direction which this Hon’ble court may think just and proper in the circumstances of the case. (iv) To award the cost of the petition to the petitioner. (v) To issue a writ order or direction in the nature of mandamus commanding the respondents No. 3 to 5 to refund the amount illegally paid to Vinod Ram respondent no.2. (vi) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents authorities to appoint the petitioner no.1/3 as peon in place of his father Ram Prasad Decree holder.” 3. Briefly stated facts of the present case are that there is an institution known as Mahrajganj Inter College, Mahrajganj, in which the respondent no.2 Vinod Ram was validly appointed as Class IV employee on 1.12.1973. In his service book the Principal of the Institution has also made entries with respect to his work and behaviour during the year 1975-76. On 4.8.1977, he was dismissed from service by the Principal of the institution on the ground of indiscipline. Against the order of dismissal, the respondent no.2 preferred an appeal before the Committee of Management which was allowed by resolution No.2 dated 12.2.1979 and the services of the respondent no.2 were restored. He was reinstated in service by letter dated 19.2.1979. The Principal of the institution filed an appeal against 2 the aforesaid order of the Committee of Management which was dismissed by the District Inspector of Schools by order dated 20.6.1979. Against the aforesaid order the Principal filed a writ petition which was dismissed by order dated 4.7.1979. Despite these facts the Principal of the institution was not allowing the respondent no.2 to take charge. Against the aforesaid order the Principal filed a writ petition which was dismissed by order dated 4.7.1979. Despite these facts the Principal of the institution was not allowing the respondent no.2 to take charge. Therefore, the District Inspector of Schools issued letter No.920 dated 30.6.1979, letter No.4937, dated 13.7.1982 and letter No.17007/84-85, dated 7.1.1984 to the Principal of the institution directing him to allow the respondent no.2 to work and give him charge. Instead of complying with the orders, the Principal of the institution allegedly issued an order dated 4.2.1981 again dismissing the respondent no.2 from service. He also allegedly appointed the petitioner Ram Prasad in his place. Thereafter, the petitioner, Ram Prasad filed a suit No.193 of 1984 in the Court of Munsif for a direction to the Principal to give him charge. In the suit the Principal of the institution had admitted all the claims of the petitioner. In this suit neither the respondent no.2 - Vinod Ram nor the Committee of Management were party. The facts of service of the respondent no.2 and the orders passed in his matter as aforementioned were also suppressed. It appears that an appeal against the aforesaid order of the Munsif Court was filed before the District Judge who passed the order dated 18.9.1986 clarifying that the decree passed by the Munsif Court in suit No. 193 of 1984 is not binding upon Sri Vinod Ram (respondent no.2 herein). 4. It appears from the perusal of the impugned order that the ground taken by the Principal of the institution in his alleged order dated 4.2.1981 was disapproved by this Court in Writ Petition No.8174 of 1981, decided on 18.10.1985. Despite being asked, learned counsel for the petitioner has not produced a copy of the aforesaid order dated 18.10.1985 before this Court. Thus, the relevant papers/orders have 3 been suppressed even in present writ petition. 5. From perusal of paragraph 10 of the writ petition, it appears that the respondent no.2 was given charge who started working in the institution. He was also being paid salary. As per allegation of the petitioner in paragraph 10 of the writ petition, payment of salary to the respondent no.2 was again started since March 1988. 5. From perusal of paragraph 10 of the writ petition, it appears that the respondent no.2 was given charge who started working in the institution. He was also being paid salary. As per allegation of the petitioner in paragraph 10 of the writ petition, payment of salary to the respondent no.2 was again started since March 1988. It appears that the petitioner has filed a writ petition No.5754 of 1989 but even on being asked it has not been disclosed before me by learned counsel for the petitioner the status of the said writ petition. It further appears that against the payment of salary to the respondent no.2, the petitioner filed another writ petition No.14796 of 1989 in which notices were issued and in the mean time liberty was granted to him to make a representation before the respondent no.1 who was directed to decide it. On being asked, learned counsel for the petitioner states that this writ petition was subsequently dismissed as infructuous. Despite being asked he has not produced a copy of the order of dismissal of Writ Petition No.14796 of 1989. It is stated by the petitioner that pursuant to the order dated 2.8.1989 passed in the aforesaid writ petition no.14796 of 1989, he moved a representation before the respondent no.2 which has been rejected by the impugned order dated 16.1.1990 against which the present writ petition has been filed. 6. Learned counsel for the petitioner submits that in view of the decree passed by the Munsif Court in Suit No.193 of 1984, the petitioner was entitled to continue in service but the respondent no.1 has illegally not given effect to the decree. He further submits that the petitioner was lawfully appointed and, therefore, he was entitled for regular salary on the basis of an approval order dated 15.6.1985. 7. The D.I.O.S. has no power to review its earlier orders dated 12.8.1985 and 15.6.1985. The impugned order has been passed on the basis of earlier orders of reinstatement in service of respondent 4 no.2 and not with reference to the order of dismissal of his service by order dated 4.2.1981 passed by the Principal of the institution. The respondent no.2 has not challenged the order dated 4.2.1981, therefore, that order has become final. 8. I have carefully considered the submissions of learned counsel for the petitioner. 9. The respondent no.2 has not challenged the order dated 4.2.1981, therefore, that order has become final. 8. I have carefully considered the submissions of learned counsel for the petitioner. 9. The first submission of learned counsel for petitioner that the decree in suit No.193 of 1984 is binding upon the respondent no.2 is wholly without substance inasmuch as the respondent no.2 was not a party in that suit. This position was further clarified by the District Judge in his appellate order dated 18.9.1986 observing that the decree passed in suit no.193 of 1984 is not binding upon Sri. Vinod Ram ( respondent no.2 herein). 10. It is wholly undisputed that the respondent no.2 was validly appointed as Class IV employee in the institution in question on 1.12.1973. The order of the Principal dated 4.8.1977, dismissing him from service was set aside in appeal by the Committee of Management vide order dated 12.2.1979 and the respondent no.2 was reinstated in service. The appeal filed by the Principal against the aforesaid order was dismissed by the D.I.O.S. vide order dated 20.6.1979. Thereafter, the Principal filed a writ petition before this Court to challenge the order of the D.I.O.S. which was dismissed by order dated 4.7.1979. Thus, the order of reinstatement in service of the respondent no.2 has attained finality. To give effect to the order of reinstatement in service of the respondent no.2, the D.I.O.S. issued various letters/orders to the Principal of the institution being letters dated 27.7.1979, 30.6.1979, 13.7.1982 and 7.1.1984 but the Principal of the institution arbitrarily avoided to give effect to the said orders. However, it appears that subsequently, the respondent no.2 was allowed to work and he started getting salary. The ground given by the Principal of the institution for dismissing the respondent no.2 from service by an alleged order dated 4.2.1981 was disapproved by this court in writ petition No.8174 of 1981 by order dated 18.10.1985 as evident from the facts noted in the impugned order. Despite being asked, learned counsel for the petitioner has not produced a copy of the aforesaid order of this Court dated 18.10.1985 in writ petition no.8174 of 1981. Therefore, the observations made in the impugned order in this regard are treated to be correct. Despite being asked, learned counsel for the petitioner has not produced a copy of the aforesaid order of this Court dated 18.10.1985 in writ petition no.8174 of 1981. Therefore, the observations made in the impugned order in this regard are treated to be correct. Writ petition No.14796 of 1989 filed by the petitioner against the payment of salary to respondent no.2 was also dismissed as has been admitted by learned counsel for the petitioner before this Court as aforenoted. 11. Thus, I do not find any illegality in payment of salary to the respondent no.2 as per facts mentioned in the impugned order. 12. In paragraph 4 of the writ petition, the petitioner has alleged that the respondent no.1 in his order dated 15.6.1985 held that the dismissal order dated 4.2.1981, passed by the Principal against the respondent no.2 has become final and he has no right on the post and that the appointment of the petitioner is legal and genuine. The contents of this paragraph has been replied by the respondent no.2 in paragraph 6 of the counter affidavit in which it has been stated that the contents of paragraph 4 of the writ petition are totally incorrect and denied. It has been further stated that letter dated 15.6.1985 was never issued by the office of the respondent no.1 and the alleged letter dated 15.6.1985 has been manufactured by the petitioner for the purposes of the case and this letter was never produced. Even in proceedings concluded by the impugned order, the petitioner has merely produced a photostat copy of his alleged appointment letter dated 16.4.1981 and an application. Thus, the submission of learned counsel for the petitioner with reference to alleged letter dated 15.6.1985 is wholly without substance. 13. A report has also been submitted by the Principal of the institution by his letter No.131/92-93, dated 2.1.1993, to the District Inspector of Schools, Azamgarh, in which he has stated that no records or evidences are available in the college records regarding the petitioner to be peon in the institution in question. He has also stated that appointment of the petitioner without there being any vacant post and the dismissal of respondent no.2 by alleged letter dated 4.2.1981 was the result of illegal acts of the then Principal Sri Babu Ram Singh, who has retired. He has also stated that appointment of the petitioner without there being any vacant post and the dismissal of respondent no.2 by alleged letter dated 4.2.1981 was the result of illegal acts of the then Principal Sri Babu Ram Singh, who has retired. He has also mentioned that in the aforesaid suit No.193 of 1984 the institution was not party and there was no decree against it and, therefore, no liability can be fastened upon the institution on account of a decree obtained by a person (the petitioner herein) who is not the employee of the institution. 14. The facts as discussed above leaves no manner of doubt that the petitioner was never validly appointed as peon in the institution in question. In fact he abused the process of court to get a back door entry for his appointment. He has also concealed material facts not only in the suit filed by him before the court of Munsif but he has also suppressed the orders passed by this Court in several writ petitions and did not produce copies of the orders despite being asked. The findings recorded in the impugned order passed by the respondent no.1 are findings of fact based on consideration of relevant material on record. Therefore, these findings can not be interfered in writ jurisdiction under Article 226 of the Constitution of India. 15. In view of the aforesaid, the writ petition fails and is hereby dismissed.