HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- WRIT - A No. - 22711 of 2006 Petitioner :- C/M Buddha Post Graduate College Thru' Manager And Another Respondent :- State Of U.P. Thru' Secretary Higher Education And Others Petitioner Counsel :- Radha Kant Ojha Respondent Counsel :- C.S.C. Hon'ble Sabhajeet Yadav,J.
By this petition, the petitioner being Committee of Management of the institution has challenged the order dated 2.9.2005 passed by Director of Higher Education, Uttar Pradesh, Allahabad and order dated 19.4.2006 passed by Regional Higher Education Officer, Gorakhpur contained in Annexures-1 and 2 respectively to the writ petition. Vide order dated 2.9.2005 (contained in Annexure-1 of the writ petition) the Director of Higher Education, Uttar Pradesh, Allahabad has decided the representation of Sri Indra Deo Pandit respondent no.4 dated 1.4.2005, which was moved by him in pursuance of direction of this Court dated 15.3.2005 given in Writ Petition No.6871 of 1997 filed him. By the said order, the appointment of respondent no.4 w.e.f. 27.7.1990 on the post of Assistant Accountant was treated to be approved and he was directed to be paid his salary on the said post with effect from the aforesaid date by making adjustment of salary paid to him from September, 1998 to October, 1999. In pursuance of the aforesaid order passed by the Director of Higher Education, the Regional Higher Education Officer, Gorakhpur vide order dated 19.4.2006 has directed the Manager of the institution to comply with the order passed by Director of Higher Education and to make payment of salary to the respondent no.4. These two orders have been challenged by the petitioner mainly on the ground that the Director Higher Education has passed the aforesaid order without affording any opportunity of hearing to the petitioner/Committee of Management of the institution.
2. The brief facts leading to the case are that Buddha Post Graduate College Kushinagar is affiliated to the Gorakhpur University and is governed by the U.P. State Universities Act and Statute framed thereunder. It is stated that one post of Assistant Accountant in the said institution was vacant and for filling the aforesaid post by way of direct recruitment as per provisions of the Statute of the University it was advertised in daily newspaper "Dainik Jagaran" on 6.2.1990. It is stated that the respondent no.4 was duly qualified for appointment on the post of Class III employees in the aforesaid institution as he was graduate with commerce having accountancy and audit and is post graduate in commerce. In the Selection Committee as per the Statute the Manager of Committee of Management, Principal of the institution and District Inspector of Schools, Deoria were members and participated in the meeting of Selection Committee but Employment Officer in spite of giving consent for attending the meeting of Selection Committee due to some unavoidable reason could not participate on 7.4.1990 and out of 9 candidates who had made their applications only 6 candidates appeared before the Selection Committee and respondent no.4 was found most suitable by the Selection Committee and was recommended for appointment on the post of Assistant Accountant vide letter dated 9.4.1990. Thereafter the Principal of the institution sent the entire documents relating to selection of respondent no.4 for approval to the Regional Higher Education Officer, Gorakhpur respondent no.3, as it was required as per Statute 25.04 of the Gorakhpur University but the Regional Higher Education Officer, Gorakhpur has not passed any order in spite of reminder sent by the Principal of the institution on 25.11.1990 and on the basis of order dated 25.7.1990 the respondent no.4 joined the post of Assistant Accountant.
3. It is stated that the salary of the respondent no.4 was not paid for quite long time and certain queries were made by Regional Higher Education Officer about the appointment of the respondent no.4 but ultimately after conducting a detail inquiry from the institution, the approval to the appointment of the respondent no.4 was given vide letter dated 11.9.1996 on the post of Assistant Accountant. In pursuance of approval given by the Regional Higher Education Officer the salary bill of the respondent no.4 was passed by the District Inspector of Schools, Padarouna and respondent no.4 was being paid his salary since September, 1996 and was discharging his duties on the aforesaid post since 27.7.1990. But all of a sudden the payment of his salary was stopped in the month of January, 1997 on the basis of letter dated 1.12.1996/16.1.1997 of the Director of Higher Education, Uttar Pradesh, Allahabad. Feeling aggrieved against the aforesaid action, the respondent no.4 Indra Deo Pandit has approached this Court by filing Writ Petition No.6871 of 1997 Indra Deo Pandit Vs. Director of Higher Education, U.P., Allahabad and others, whereby the payment of salary of the respondent no.4 was stopped. On 6.3.1997 this Court has stayed the effect and operation of the order dated 1.12.1996/16.1.1997 passed by the Director of Higher Education, Uttar Pradesh, Allahabad.
4. After exchange of counter and rejoinder affidavits this Court has decided the aforesaid writ petition vide judgment and order dated 15.3.2005 and concluded as under:-
" I have heard learned counsel for the petitioner and the standing counsel and have perused the record. There is no dispute to this effect that regarding the appointment of the petitioner an inquiry was made and respondent no.2 has submitted all the relevant papers to respondent no.1 and the respondent no.2 was pleased to accord the approval to the appointment of the petitioner and subsequently when some doubts were created the matter was referred and a report to that effect was submitted to the respondent no.1 that the appointment of the petitioner was valid and he is entitled for the salary. But in spite of the aforesaid fact the order impugned has been passed without issuing any notice of show cause notice or opportunity to the petitioner.
In view of the aforesaid fact as the order dated 1.12.1996, Annexure-17 to the writ petition has been passed without affording any opportunity to the petitioner and the petitioner has not been given an opportunity to prove his case before the respondent no.1 whether it was valid or not as such the order dated 1.12.1996 is liable to be quashed.
In the result, writ petition is allowed. The impugned order dated 1.12.1996 is quashed and the matter is remitted back to the respondent no.1 to pass an appropriate order regarding the approval to the appointment of the petitioner after taking into consideration the various letters dated 21.6.1997, 28.5.1997, 13.8.1996 and 16.11.1999 Annexures 1 to 4 to the supplementary affidavit and shall pass a detailed and reasoned order according to law after giving full opportunity to the petitioner, if possible giving the petitioner a personal hearing. There shall be no order as to costs."
5. In pursuant to the aforesaid judgment and order dated 15.3.2005 passed by this Court, the representation of respondent no.4 has been decided by the Director of Higher Education vide impugned order dated 2.9.2005 contained in Annexure-1 of the writ petition.
6. Sri R.K. Ojha, learned counsel for the petitioner has submitted that while deciding the representation of respondent no.4 the Director of Higher Education did not afford any opportunity of hearing to the petitioner/Committee of Management of the institution and the representation of the respondent no.4 has been decided ex parte in utter violation of principles of natural justice and fairplay, as such the impugned order passed by the Director and consequential order of Regional Higher Education Officer are not sustainable in the eye of law. Sri Ojha has further submitted that in case the petitioner/Committee of Management of the institution would have been afforded opportunity of hearing before the Director of Higher Education, it would have demonstrated that the appointment of the respondent no.4 on the post of Assistant Accountant in the institution in question was not valid and he was not entitled for any relief claimed through the aforesaid representation. In support of his submission he has placed reliance upon decisions of Hon'ble Apex Court rendered in State Bank of Patiala and others Vs. S.K. Sharma 1996 (3) S.C.C. 364 and in Narsingh Pal Vs. Union Of India and others 2000 (3) S.C.C. 588.
7. Contrary to it, Sri V.K. Singh, learned senior counsel assisted by Sri S. Sekhar Advocate on behalf of respondent no.4 has contended that from a close scrutiny of the judgement and order dated 15.3.2005 passed by this Court in earlier writ petition filed by the respondent no.4 there is nothing to indicate that this Court has ever intended the Director of Higher Education to hear the Committee of Management of the institution, which was respondent no.4 in the said writ petition, instead thereof while remitting the matter back to the Director of Higher Education this Court has directed to consider certain letters dated 21.6.1997, 28.5.1997, 13.8.1996 and 16.11.1999 contained in Annexures 1 to 4 of the supplementary affidavit filed in the said writ petition and to pass appropriate order regarding the approval of appointment of the respondent no.4 according to law after giving full opportunity of hearing to the respondent no.4 Sri Indra Deo Pandit who was petitioner of the said writ petition. The aforesaid papers are also on record as filed along with the counter affidavit filed by Sri Indra Deo Pandit respondent no.4 in this writ petition. No direction was given by this Court to hear the petitioner of instant writ petition, which was respondent no.4 in the aforesaid writ petition. As such, while deciding the said representation of the petitioner of the said writ petition/ respondent no.4 herein, the Director, Higher Education was not obliged to hear the petitioner of the instant writ petition. In case, the petitioner had any grievance against the order dated 15.3.2005 passed by this Court, the only course open for the petitioner was to challenge the said order by filing special appeal or to move to this Court for recalling the aforesaid order or for seeking any modification in the said order. But in any view of the matter once the petitioner has accepted the verdict of this Court, it is not open to the petitioner to challenge the order dated 2.9.2005 passed by the Director, Higher Education, which is consequential in nature and has been passed in compliance of the order dated 15.3.2005 passed by this Court in the writ petition earlier filed by the respondent no.4.
8. While elaborating his submission, Sri V.K. Singh learned counsel for the respondent no.4 has urged that the judgment and order dated 15.3.2005 passed by this Court in earlier writ petition filed by the respondent no.4 is final between the petitioner and the respondent no.4, consequently the findings recorded by this Court are also final, conclusive and binding upon the parties. This Court has categorically recorded the finding that there is no dispute to the fact that regarding the approval of appointment of petitioner in aforesaid case and respondent no.4 herein, an inquiry was made and Regional Higher Education Officer has submitted all relevant papers to the Director, Higher Education and thereafter Regional Higher Education Officer accorded approval to the appointment of the respondent no.4 and subsequently some doubts were created, the matter was referred and a report to that effect was submitted to the respondent that the appointment of the respondent no.4 was valid and he is entitled for salary. This Court while remitting the matter back to the Director of Higher Education has directed him to pass appropriate order regarding the approval of the appointment of the respondent no.4 after taking into consideration the various letters dated 26.6.1997 (Annexure- CA-4), 25.5.1997 (Annexure CA-3), 13.8.1996 (Annexure CA-5) and 16.11.1999 (Annexure CA-6) after giving full opportunity to the petitioner of that case (respondent no.4 to this petition). There is no direction for giving opportunity of hearing to the Committee of Management of the institution the petitioner of instant writ petition. It is also submitted that the aforesaid judgment was given and dictated in the open Court in presence of counsel for the petitioner namely Committee of Management and counsel for respondent no.4 and the learned standing counsel. It was not prayed by the petitioner namely Committee of Management that they should be heard by the Director of Higher Education while considering the letters referred in the judgment and order dated 15.3.2005. Thus, the finding regarding approval to the appointment of the respondent no.4 and the direction issued to the Director, Higher Education has attained finality as the judgment was not challenged by the Committee of Management either in special appeal or by seeking review or modification.
9. It is further submitted by learned senior counsel appearing for the respondent no.4 that the Management did not file even a single objection before the Educational authorities right from 11.9.1996 till date. Vide letter dated 11.9.1996 the Regional Higher Education Officer, Gorakhpur addressed to the Manager/Principal of the institution has informed the Manager/Principal of the institution that on the basis of papers of institution the appointment of Sri Indra Deo Pandit (Respondent No.4) as Assistant Accountant is approved. It was also directed that the respondent no.4 shall be paid his salary from the aforesaid date. Since the Committee of Management did not raise any objection before the Educational authorities about the selection, recommendation, appointment and approval of the respondent no.4, therefore, same cannot be allowed to raise objection at belated stage by filing instant writ petition. Not only this but after said approval of respondent no.4 salary bill of respondent no.4 was passed by the District Inspector of Schools, Padarouna at the instance of Management of the institution and he was paid his salary since September, 1996 onward but all of a sudden the payment of salary was stopped in the month of January, 1997 by the order dated 1.12.1996/16.1.1997 passed by Director of Higher Education, U.P. Allahabad.
10. Learned counsel for the respondent no.4 has pointed out that an objection against the appointment and approval of respondent no.4 was taken by filing a counter affidavit through a teacher Sri Ganesh Shukla lecturer in Hindi and not by any member of Committee of Management but the said objection was not accepted and was not worthy of consideration by Hon'ble Judge while deciding the Writ Petition No.6871 of 1997 filed by the respondent no.4 vide judgment and order dated 15.3.2005. Once the aforesaid objection of Committee of Management has been rejected in proceeding of Writ Petition No.6871 of 1997, the same objection cannot be taken by the petitioner/Committee of Management before any authority. Thus, the Committee of Management should be estopped from raising any objection with regard to the approval of appointment of the respondent no.4 on principle of estoppel and acquiescence. Further since the Committee of Management did not challenge the said judgment and order dated 15.3.2005 passed in the aforesaid writ petition, therefore, it can be assumed that the Committee of Management has submitted to the judgment and order dated 15.3.2005 passed by this Court and has no further right of hearing before any authority after decision has been taken by the Director, Higher Education in pursuance of the order dated 15.3.2005 passed by this Court in Writ Petition No.6871 of 1997 filed by the respondent no.4. Thus, in given facts and circumstances of the case, giving any opportunity of hearing to the petitioner/Committee of Management of the institution would be a futile exercise and would be an empty formality. In support of his submissions learned counsel appearing for the respondent no.4 has placed reliance upon various decisions of Hon'ble Apex Court including B.L. Sreedhar Vs. K.M. Munireaddy and others reported in AIR 2003 SC 578, State of U.P. Vs. Om Prakash Gupta AIR 1970 SC 679, K.L. Tripathi Vs. State Bank of India and others 1984 (1) SCC 43 and Ashok Kumar Sonkar Vs. Union of India and others 2007 (4) SCC 54.
11. At the very outset I would like to deal with the first two decisions cited by learned counsel for the petitioner. In State Bank of Patiala and others Vs. S.K. Sharma 1996 (3) S.C.C. 364 the question of compliance of rules of natural justice in the departmental inquiry was under consideration before the Hon'ble Apex Court, wherein the Hon'ble Apex Court has examined the issue in quite detail by enunciating the law on that regard. In my opinion, the law laid down by Hon'ble Apex Court in the said decision has no application in given facts and circumstances of the case. It is not a case where Director, Higher Education by his own while deciding the representation of the respondent no.4 has denied opportunity of hearing to the petitioner/Committee of Management of the institution instead thereof it is in pursuant to the judgment and order dated 15.3.2005 passed by this Court in earlier Writ Petition No.6871 of 1997 filed by the respondent no.4. the Director, Higher Education was directed by this Court to examine certain papers referred in the said judgment and pass appropriate order regarding approval of the appointment of the respondent no.4 according to law after giving opportunity of hearing to the respondent no.4, who was petitioner in the said writ petition. Therefore, the aforesaid decision rendered by Hon'ble Apex Court has no application in given facts and circumstances of the case. Another judgment which has been cited by learned counsel for the petitioner is rendered in Narsingh Pal Vs. Union Of India and others 2000 (3) S.C.C. 588. This decision is also in respect of termination of services of employee wherein the question of estoppel and waiver of fundamental rights was under consideration before the Hon'ble Apex Court and it was held that even acceptance of retrenchment compensation by the workman does not mean that he had surrendered all his constitutional right in favour of employer. It was further observed by the Apex Court that fundamental rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of fundamental rights available under the Constitution. Therefore, the aforesaid decision is also of no avail to the petitioner.
12. It is well settled that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
13. In State of Orissa Vs. Sudhansu Shekhar Misra AIR 1968 SC 647 while dealing with the question of binding effect of decision in para 13 of the said decision Hon'ble Apex Court observed as under:-
" A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made it it."
14. In Ambica Quarry Works Vs. State of Gujarat & others (1987) 1 SCC 213: (AIR 1987 SC 1073) in para 18 Hon'ble Apex Court observed as under:-
" The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
15. In Bhavnagar University Vs. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 : (AIR 2003 SC 511) in para 59 the Hon'ble Apex Court has observed as under:-
" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of decision."
16. Thus, in view of law laid down by Hon'ble Apex Court in respect of the precedential value of a decision I have no hesitation to hold that the aforesaid decisions referred by learned counsel for the petitioner in support of its case have no application in given facts and circumstances of the case, therefore, can be of no assistance to the case of the petitioner.
17. Now first question arises for consideration is that as to whether while deciding the representation of the respondent no.4 in pursuant to the direction given by this Court vide judgment and order dated 15.3.2005 in Writ Petition No.6871 of 1997 earlier filed by the respondent no.4, the Director, Higher Education was obliged to hear the petitioner/Committee of Management of the institution?
18. From a close analysis of the aforesaid judgment and its operative portion it is clear that while deciding the said writ petition this Court has directed the Director of Higher Education to pass appropriate order in respect of approval of appointment of the petitioner of the aforesaid case respondent no.4 here in this petition by taking into consideration the various letters dated 21.6.1997, 28.5.1997, 13.8.1996 and 16.11.1999 Annexures-1 to 4 of supplementary affidavit filed in the said writ petition, which has been filed along with counter affidavit by the respondent no.4 in instant writ petition and while taking decision on the issue he was required to pass a detailed and reasoned order according to law after giving full opportunity of hearing to the petitioner of the said case (respondent no.4 of instant writ petition) alone. Nothing regarding any opportunity of hearing to the petitioner of instant writ petition/Committee of Management of the institution which was respondent no.4 in the said writ petition has been said by this Court, therefore, in my considered opinion, the scope of inquiry of Director of Higher Education was confined by this Court to the limited question referred in the said decision and he could not travel beyond the scope of order earlier passed by this Court while deciding the representation of respondent no.4 in pursuant thereof.
19. It is well settled that the issue concluded at higher forum cannot be re-agitated in the remand proceeding and only that issue can be considered which has been remanded by higher forum. In this connection, it would be useful to refer relevant decisions of Hon'ble Apex Court herein after.
20. In Radha Raman Samant Vs. Bank of India and others (2004) 1 SCC 605 the Hon'ble Apex Court has held that only that issue can be considered which has been remanded by Higher court or authority. The pertinent observation made in para 12 of the decision is extracted as under:-
" ......... Therefore, the learned Single Judge was bound to address only on one issue upon which the matter had been remanded. Thus, the Division Bench could not have overlooked these facts in the appeal arising from the order of the learned Single Judge on the second occasion after remand and need not have gone into the question as to whether the writ petition could have been entertained at all or not. Therefore, we are of view that the High Court could not have overlooked these facts and interfered with the order of the learned Single Judge."
21. The same view has been reiterated by Hon'ble Apex Court in Bharat & Co. Vs. Trade Tax Officer and another (2005) 6 SCC 796. The pertinent observation made by Hon'ble Apex Court in para 19 of the decision is extracted as under:-
" 19. ........ The Trade Tax Tribunal as early as on 31.3.2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellant's favour. In the face of this order, it was not open to the Assistant Commissioner, Trade Tax on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter particularly when it had been expressly drawn to the High Court's attention. The High Court was also precluded from re-deciding the same issued between the same parties."
22. In view of legal position stated herein before it is to be noted that since this Court vide judgment and order dated 15.3.2005 passed in Writ Petition No.6871 of 1997 earlier filed by the respondent no.4 has directed the Director, Higher Education to take decision in respect of approval of appointment of respondent no.4 on the post in question by taking into consideration the various letters dated 21.6.1997, 28.5.1997, 13.8.1996 and 16.11.1999 contained in Annexures-1 to 4 of the supplementary affidavit filed in the said writ petition which are filed along with counter affidavit by the respondent no.4 in instant writ petition, only by hearing the writ petitioner of the aforesaid case (respondent no.4 of instant writ petition) and no direction to hear the respondent no.4 of the said writ petition/petitioner of the instant case was given, therefore, the scope of inquiry of Director, Higher Education was confined only to a limited question based on certain papers referred in the said judgment, as such the Director, Higher Education, in my considered opinion, could not travel beyond the scope of the aforesaid judgment and order passed by this Court and hear the writ petitioner of instant case. In my view, the Director, Higher Education was not obliged to hear the petitioner of instant case accordingly, no fault can be found in the impugned order on that count.
23. Next question arises for consideration is that as to whether in given facts and circumstances of the case, the issue of writ for providing hearing to the petitioner/ the Committee of Management before Director of Higher Education would be a futile exercise?
24. The law in this regard is very much clear. While dealing with the question of observance of principles of natural justice in S.L. Kapoor Vs. Jag Mohan AIR 1981 SC 136 it has been observed that where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. The aforesaid view has been reiterated again by the Apex Court in M.C. Mehta Vs. Union of India and others AIR 1999 SC 2583. In para 22 of the decision the Apex Court observed as under:-
"22. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice."
25. Now applying the aforesaid legal position in the facts of the instant case, it is to be noted that it is not in dispute that vide order dated11.9.1996, contained in Annexure C.A.-1 to the counter affidavit, filed by respondent no.4 Sri Indra Deo Pandit, the Regional Higher Education Officer, Gorakhpur has accorded the approval of appointment of respondent no.4 on the post of Assistant Accountant and directed the management/principal of the institution to make payment of salary of Sri Indra Deo Pandit on the said post from the State exchequer. The aforesaid order passed by Regional Higher Education Officer was not challenged by the committee of management of the institution instead thereof the committee of management of the institution has accepted the approval of appointment of respondent no.4 on the said post and in compliance of said approval of appointment his salary bill was also passed by District Inspector of Schools, Padrauna at the instance of Committee of Management of the institution and he was paid his salary since September, 1996 onward till December, 1996 but all of sudden the payment of salary of respondent no.4 was stopped in the month of January, 1997 by the order dated 1.12.1996/16.1.1997 passed by Director of Higher Education, U.P. Allahabad on account of some doubt about the validity of his appointment. The aforesaid order passed by Director of Higher Education is on record as Annexure C.A.-2 to the counter affidavit filed by respondent no.4. The respondent no.4 has challenged the aforesaid order by filing Writ Petition No. 6871 of 1997. In the said writ petition the order passed by Director of Higher Education has been stayed by this court.
26. During the pendency of aforesaid writ petition in pursuance of letter of Director of Higher Education dated 2.5.1997, the Regional Higher Education Officer, Varanasi has asked the committee of management/principal of the institution vide letter dated 28.5.1997, contained in Annexure C.A.-3 to the counter affidavit of respondent no.4 to furnish the papers regarding selection of respondent no.4 as indicated in the said letter. In pursuant thereof, on the basis of report submitted by the management/principal of the institution, the Regional Higher Education Officer, Varanasi has furnished the papers regarding selection and appointment of respondent no.4 to the Director of Higher Education vide his letter dated 21.6.1997, contained in Annexure C.A.-4 to the counter affidavit filed by respondent no.4. Not only this but while making inquiry regarding the selection of respondent no.4 vide letter dated 13.8.1996 the Regional Higher Education Officer had asked the Dy. Director of Education, Kanpur namely Sri Basudev Yadav about his participation in the meeting of selection committee held on 7.4.1990 who in turn had informed the Regional Higher Education Officer, Gorakhpur that he had participated in the meeting of selection committee and selection was held unanimously by the members of selection committee. The aforesaid letter is also on record as Annexure C.A.-5 to the counter affidavit. On the basis of papers supplied by the Regional Higher Education Officer about the selection of respondent no.4 on the post in question, the Director of Higher Education vide his order dated 16.11.1999 contained in Annexure CA-6 of the said counter affidavit affirmed the approval of appointment of respondent no.4 and directed for payment of his salary. These Annexures C.A.-3, C.A.-4, C.A.-5 and C.A.-6 were filed by the respondent no.4 as Annexures-1 to 4 of the said supplementary affidavit in the Writ Petition No. 6871 of 1997 earlier filed by him before this court, which were directed to be examined by this court by the Director of Higher Education vide judgement and order dated 15.3.2005 passed in the said writ petition. In compliance of the said direction after going through the aforesaid papers the Director of Higher Education has decided the representation of respondent no.4 in his favour, whereby he has again affirmed the approval of appointment of respondent no.4 on the post in question.
27. Thus, in the wake of these indisputable facts and circumstances of the case, I find that the petitioner-committee of management of the institution has never raised any objection during the aforesaid process of inquiry before the authorities of department of Higher Education regarding validity of appointment of respondent no.4 and it is due to some sort of misunderstanding between the management of the institution and respondent no.4, the Management is trying to indulge the respondent no.4 in further litigation by raising a dispute which has been set at rest by the order of Director of Higher Education, U.P., Allahabad Therefore, in my opinion, the committee of management did not file the instant writ petition for any genuine cause or grievance instead thereof it appears to be based on malafide ground with some ulterior motive, as such this court cannot encourage such a litigation. I am of the view that on the basis of indisputable facts of the case the conclusion drawn by the Director of Higher Education is perfectly justified and no different opinion can be given in the matter and providing opportunity of hearing to the petitioner before Director of Higher Education would be an empty formality and a futile exercise. Thus, useless formality theory can be pressed into service in the matter and the relief sought for by the petitioner is liable to be rejected accordingly.
28. That apart, learned counsel appearing for the petitioner could not point out any thing regarding the irregularities in the selection of respondent no.4 taken place in the year 1990 more than 21 years ago, which can be reopened after such long lapse of time. The respondent no.4 is running pillar to post since 1990 uptil now for redressal of his grievances. Providing further opportunity of hearing to the petitioner/Committee of Management of the institution before Director of Higher Education, in my considered opinion, would reopen the issue, therefore, in order to give quietus to the litigation I am not inclined to reopen the issue and interfere in the order impugned in the writ petition.
29. In view of aforesaid discussions, writ petition is liable to be dismissed. Accordingly, the same is hereby dismissed.
Order Date :- 30.11.2011 SL/-