Allahabad High Court
Prem Prakash Sharma vs Joint Director Of Education ... on 11 November, 2014
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 59
Case :- WRIT - A No. - 15076 of 2000
Petitioner :- Prem Prakash Sharma
Respondent :- Joint Director Of Education Bareilly & Others
Counsel for Petitioner :- S.S. Chauhan,D.B. Yadav,G. Prasad,S.S. Sharma,Vinod Kumar
Counsel for Respondent :- C.S.C.,Vidya Dhar Yadav
Hon'ble Rajan Roy,J.
Heard learned counsel for the petitioner, Sri Vidya Dhar Yadav, learned counsel for committee of management and learned Standing Counsel for State.
Petitioner herein was appointed as Adhoc Lecturer under Section 18 of the U.P. Secondary Education Service Board Act, 1982, hereinafter referred to as the Act of 1982 ,on 18.2.1992, as per the then existing provisions. He filed a writ petition before this Court being No. 22949 of 1992 claiming salary of the aforesaid post which was opposed on the ground that the post in question had become dead in pursuance to certain Government Orders. An interim order was passed on 7.1.1994 to the effect that the provisions for treating the post as dead is contained in Regulation 22 of Chapter II of the Regulations made under the Intermediate Education Act 1921, however, in view of the the pronouncement of this Court in case of Yogendra Singh Vs. D.I.O. S. Jaunpur, reported in 1991 UPLBEC 484, the said provision would not be applicable after coming into force the Act of 1982, accordingly, respondents were directed to pay salary to the petitioner or pass fresh reasoned order within one month.
Accordingly, the then D.I.O.S. passed an order on 16.2.1994 rejecting the claim of the petitioner on three grounds: firstly, the requisition was not forwarded by the management to the D.I.O.S. as is mandatory for the applicability of the provisions contained in Section 18 of the Act of 1984; secondly, there was requirement of only one post of Lecturer English in the institution and thirdly there was a ban by the State Government on appointment of teachers, irrespective of it the alleged appointment was made therefore, it was illegal.
Thereafter, another D.I.O.S. vide his order dated 19.7.1997, 22,7.1997 passed in allegedl compliance of the interim order dated 7.1.1994, stated that the post of Lecturer English was vacant and requisition had also been received in the office of the D.I.O.S. therefore, he held the appointment to be valid and accordingly, ordered for payment of salary to the petitioner.
Based thereon, the petitioner filed another writ petition bearing no. 22122 of 1999 claiming salary of the post. As per the averment made in para 21 of the writ petition, the said writ petition was dismissed on 16.2.1994 with the observation that once the D.,I.O.S. had assed an order dated 16.2.1994 the same issue could not have been reopened and reconsidered.
Be as it may, the petitioner thereafter is said to have submitted a representation to the Joint Director Education on 12.1.1999 and as the same was not decided he filed another writ petition bearing No. 30720 of 1999 for a writ of mandamus directing Joint Director to decide the petitioner's representation.
It is worthwhile to mention that in the meantime on 1.2.1999 the first writ petition i.e. Writ Petition No. 22949 of 1992 in which interim order was passed on 7.1.1994 and pursuant to which D.I.O.S. had passed an order on 16.2.1994, was dismissed as having become infructuous.During pendency of this writ petition, the petitioner never challenged the order dated 16.2.1994. There is nothing on record to suggest that the dismissal of writ petition No. 22122 of 1999 was challenged in appeal and this fact is not disputed by the learned counsel for the petitioner. at the bar.
The above mentioned writ petition i.e. Writ Petition No. 30720 of 1999 was disposed of on 27.7.1999 with a direction to the Joint Director Education to decide the petitioner's representation.
In pursuance to the aforesaid, impugned order was passed on 15.12.1999 wherein after narrating the history of the dispute and considering the relevant aspects, the Joint Director of Education ultimately came to the conclusion that the post of Lecturer English was vacant at the time of appointment of the petitioner and the requisition had also been sent to the D.I.O.S. by the management, however, he held that as there was a ban on such appointment by the State Government vide G.O. dated 29.6.1991, 17.7.1991 and 30.7.1991, which was duly communicated to the management of the institution also vide letter dated 20.10.1991, the appointment of the petitioner on 18.2.1992 was not a valid appointment as it was in contravention of the aforesaid Government Orders.
So far as the merits of the case is concerned, the issue which falls for consideration is as to whether the State Government could have banned the appointments permissible u/s 18 of the Act of 1982 by issuing government orders and also as to whether the said ban would be applicable to the appointments referred therein.
But before considering the said question another question arises which is how the writ petition No. 30720 of 1999 came to be filed after dismissal of the Writ Petition No. 22122 of 1999 with an observation that once the D.I.O.S. has passed order dated 16.2,.1994 then the issue was not open for reconsideration or revival by the subsequent D.I.O.S. , as was done by him on 19.7.1991 and 22.7.1997, as, if it is found that the writ petition itself was not maintainable and there was some concealment/misrepresentation on the part of the petitioner then the consequences would have to be considered.
Put up this case on 18.11.2014 in the additional cause list for further hearing.
The office shall produce the record of Writ Petition No. 22122 of 1999 and Writ Petition No. 30720 of 1999 filed by the petitioner earlier, on the next date.
Learned counsel for parties on their part shall produce the orders passed in writ petition No. 22122 of 1999 on that date.
Order Date :- 11.11.2014
M.A.A.
