Sushil Kumar Pandey v. State of U. P. , Through Its Additional Chief Secy. Secondary Education
2022-01-13
DEVENDRA KUMAR UPADHYAYA, SUBHASH VIDYARTHI
body2022
DigiLaw.ai
JUDGMENT : 1. This Special Appeal under Chapter VIII Rule 5 of the Rules of the Court assails the validity of the judgment and order dated 21.12.2021, passed by the learned Single Judge, whereby the writ petition bearing No.30173(SS) filed by the appellant-petitioner was dismissed. 2. At this juncture itself, we may notice that by filing the said writ petition, a challenge was made to an order dated 31.10.2018 whereby the services of the respondent No.7-Akhilesh Chandra Pandey were regularized on the post of L.T.Grade Teacher in the institution concerned. Another prayer made in the writ petition by the appellant-petitioner was to quash the order dated 14.01.1992 whereby the respondent No.7 was appointed initially on the post of Lecturer in Commerce. The other prayer made in the writ petition was that the respondents therein be directed to pay arrears of salary which is said to have accrued to him with effect from February, 2021 and further to continue to pay him salary on monthly basis. 3. Heard Sri Anu Pratap Singh, learned counsel representing the appellant-petitioner, learned State Counsel representing the State-respondent and also perused the documents available before us in this special appeal. 4. This case reflects another example of perpetual feud between the teachers of government aided and recognized institutions in the State of U.P. where they are on loggerhead almost continuously fighting for their regularization and thereafter inter-se-seniority and further promotion. Such a dispute appears in this case as well between the appellant-petitioner and the respondent No.7-Akhilesh Chandra Pandey. 5. The facts of the case which can be culled out from the pleadings available on record, are that the appellant-petitioner is said to have been appointed on 24.06.1991as L.T. Grade Teacher in the institution, namely, Bhagwan Deen Dubey Inter College, Paharpur, Pratapgarh, which is an institution recognized under the U.P. Intermediate Education Act. He is said to have promoted to the post of Lecturer, vide resolution of the Committee of Management dated, 10.05.2016. The appropriate Committee considered the said promotion of the appellant-petitioner to the post of Lecturer Grade in meeting which was held on 18.07.2016 and accordingly, the Manager of Institution, vide its order dated 28.04.2020 directed the appellant-petitioner to discharge the administrative and other functions of the post of Principal in the Institution as incharge Principal. 6. The appellant-petitioner thereafter claimed that his signatures should be attested as Principal of the Institution.
6. The appellant-petitioner thereafter claimed that his signatures should be attested as Principal of the Institution. The said matter was, however, contested by the respondent No.7 and the matter relating to inter-se-seniority as well was considered by the Joint Director of Secondary Education, Prayagraj Region, Prayagraj who passed an order on 15.12.2020 holding therein that the respondent No.7-Akhilesh Chandra Pandey was given regular post of Lecturer Grade in Commerce on 22.03.2016 whereas the appellant-petitioner was promoted to the post of Lecturer Grade in Education in the Institution on 22.07.2016 and thus, the Joint Director in the said order held that respondent No.7 is senior to the appellant-petitioner. 7. Considering the said order dated 15.12.2020, passed by the Joint Director of Secondary Education, the District Inspector of Schools, passed an order dated 31.12.2020 directing therein that the respondent No.7-Akhilesh Chandra Pandey shall be allowed to discharge his duties as Incharge Principal of the Institution and accordingly his signatures be sent for attestation. 8. Challenging the aforesaid two orders, dated 15.12.2020, passed by the Joint Director of Secondary Education whereby the inter-se-seniority between the appellant-petitioner and respondent No.7 was determined and the order dated 31.12.2020, passed by the District Inspector of Schools, Pratapgarh whereby the Management of the Institution was directed to handover the charge on the post of Incharge Principal to the respondent No.7-Akhilesh Chandra Pandey, Writ Petition bearing No.902(SS) of 2021 was filed by the appellant-petitioner. The said writ petition was dismissed by this Court, vide an order dated 11.08.2021. 9. A perusal of the said order dated 11.08.2021, whereby the Writ Petition No. 902(SS) of 2021 filed by the appellant-petitioner was dismissed, shows that the learned Single Judge came to the conclusion that the facts of the case clearly demonstrate that date of substantive appointment of the appellant-petitioner in the Lecturer Grade is 22.07.2016 whereas the date of substantive appointment of respondent No.7 in Lecturer Grade is 22.03.2016, therefore, the Court did not find itself in any hesitation to hold that the respondent No.7 is senior to the appellant-petitioner. The said finding recorded in the order dated 11.08.2021, passed in Writ Petition No. 902(SS) of 2021, is extracted herein below : "22.
The said finding recorded in the order dated 11.08.2021, passed in Writ Petition No. 902(SS) of 2021, is extracted herein below : "22. The facts of present case clearly demonstrate that date of substantive appointment of the petitioner under Lecturer grade is 22.07.2016 and substantive date of appointment of respondent No.7 in Lecturer grade is 22.03.2016, therefore, this Court has no hesitation to hold that respondent No.7 is senior to the petitioner." 10. The Court thus noticed that there is no illegality in the order dated 15.12.2020, passed by the Joint Director of Secondary Education and the order dated 31.12.2020, passed by the District Inspector of Schools. 11. After the aforesaid decision by this Court dated 11.08.2021 in Writ Petition No. 902(SS) of 2021, the appellant-petitioner instituted a Writ Petition No. 30173(SS) of 2021 with the prayers as aforementioned wherein the appellant-petitioner challenged the order dated 31.10.2018 whereby the services of respondent No.7 were regularized on the post in Lecturer grade. A challenge was also made to the order of initial appointment of respondent No.7 on 14.01.1992. The prayer was also made in the writ petition that the respondents therein may be directed to pay arrears of salary and continue to pay regular salary to the appellant-petitioner on the post of Incharge Principal of the Institution. 12. Learned Single Judge by means of order dated 21.12.2021 which is under challenge herein has dismissed the writ petition observing that what was under challenge in the writ petition, had already been challenged by the appellant-petitioner while filing the Writ Petition No.902(SS) of 2021. The learned Single Judge has opined that it is settled principle of law that the writ petition should contain the whole/entire claim of the petitioner for a cause of action at the relevant point of time and in case whole/entire claim is not pleaded/included, the said claim stands relinquished. 13. It is not in dispute that while challenging the order dated 15.12.2020, whereby the inter-se-seniority between the appellant-petitioner and the respondent No.7 was determined, the order of regularization of services of respondent No.7 on the post of Lecturer Grade was not challenged in Writ Petition No.902(SS) of 2021.
13. It is not in dispute that while challenging the order dated 15.12.2020, whereby the inter-se-seniority between the appellant-petitioner and the respondent No.7 was determined, the order of regularization of services of respondent No.7 on the post of Lecturer Grade was not challenged in Writ Petition No.902(SS) of 2021. The very basis of the order dated 15.12.2020 determining the inter-se-seniority between the appellant-petitioner and respondent No.7 was the date of substantive appointment of both these persons which in the case of respondent No.7 depended on the order of regularizing his services in Lecturer Grade i.e. the order dated 31.10.2018. 14. Accordingly, if by filing the earlier Writ Petition No. 902(SS) of 2021, the appellant-petitioner did not include his whole/entire claim to challenge the order of regularization of respondent No.7 in Lecturer Grade, dated 31.10.2018, the principles contained in Order 2 Rule-2 of Civil Procedure Code in this case, in our considered opinion, will act with full force. 15. There is no dispute that the provisions of Code of Civil Procedure may not be applicable as they are, in the proceedings before this Court while exercising writ jurisdiction, however, broad principles contained therein will act as guiding principles for this Court while exercising the writ jurisdiction. In this regard, a reference can be made to a judgment of Hon'ble Supreme Court in the case of Executive Engineer, ZP Engg. Divn. Vs. Digambara Rao, reported in (2004) 8 SCC 262 , wherein it has clearly been held by Hon'ble Supreme Court that the petitioner while invoking writ jurisdiction under Article 226 of the Constitution of India is bound to lay the whole claim having regard to the provisions contained in Order 2 Rule-2 of the Code of Civil Procedure or the principles analogous thereto. 16. The learned Single Judge has, thus, rejected the claim of the appellant-petitioner relating to challenge to the order dated 31.10.2018 whereby the services of respondent No.7 were regularized in Lecturer Grade on the ground as aforesaid and on the principles based on the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure. 17. So far as the claim relating to challenge to the initial appointment of respondent No.7 made on 14.01.1992 is concerned, the learned Single Judge has clearly stated that such a challenge after a long period of 30 years, would not be maintainable. 18.
17. So far as the claim relating to challenge to the initial appointment of respondent No.7 made on 14.01.1992 is concerned, the learned Single Judge has clearly stated that such a challenge after a long period of 30 years, would not be maintainable. 18. In respect of claim that appellant-petitioner is entitled to be paid salary on the post of post of Principal, a finding has been recorded by the learned Single Judge while dismissing the writ petition, vide order dated 21.12.2021 to the effect that earlier a Writ Petition No.12646(SS) of 2021 was filed by the appellant-petitioner, which was disposed of by means of order dated 26.11.2021 giving liberty to the appellant-petitioner to move a fresh representation to the authority concerned, which was directed to be disposed of. Learned Single Judge has also recorded a finding that the appellant-petitioner accordingly made a representation on 02.12.2021 and he was thus called upon with the necessary documents, evidence and written statement on 09.12.2021, however, though the Writ Petition No.30173(SS) of 2021 was filed on 18.12.2021 but nothing was disclosed in the writ petition as to the developments which might have taken place on and after 09.12.2021. At this juncture, learned counsel for the appellant-petitioner has stated that the grievance relating to payment of arrears of salary has been redressed. 19. For the reasons disclosed above, we find that there is no illegality or irregularity in the order dated 21.12.2021, passed by the learned Single Judge which may persuade us to interfere in this Special Appeal. 20.The Special Appeal is highly misconceived, which is hereby dismissed.