Mritunjay Rai vs State Of U.P. And 7 Others
2015 Latest Caselaw 899 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - C No. - 35035 of 2015
 

 
Petitioner :- Mritunjay Rai
 
Respondent :- State Of U.P. And 7 Others
 
Counsel for Petitioner :- S.K. Pandey
 
Counsel for Respondent :- C.S.C.,A.K. Pandey,Siddharth Khare
 

 
Hon'ble Arun Tandon,J.

Hon'ble Mrs. Sunita Agarwal,J.

Heard learned counsel for the parties.

Preliminary objections have been raised by Sri Shailendra, Advocate on behalf of respondent no.7, which are as follows:

(a) This petition as filed by Mrityunjay Rai, is not maintainable as he has no locus, in view of the findings recorded in the judgment and order of the Division Bench of this Court in Writ Petition No. 6239 of 2015 decided on 10.2.2015. Under the said judgment, the Division Bench had not only held that the petitioner has no locus to maintain the petition, the Bench also imposed exceptional costs. Reference is also made to the order of the Hon'ble Single Judge dated 3.12.2014 passed in Writ Petition No. 20454 of 2012.

(b) No P.I.L. is maintainable in service matters.

(c) The petitioner has not disclosed his bonafides as required in the present public interest petition.  

Lastly it is stated that Writ Petition No. 25407 of 2007 was earlier filed by the present petitioner, for salary being not paid to the persons covered by the order of the High Court passed in Writ Petition No. 20320 of 1991. This writ was dismissed on 29.3.2010 on the ground that a review application was pending in Writ Petition No. 20320 of 1991.  According to Sri Shailendra, for the same cause this second petition may not be entertained. It is explained that the review application filed by the present petitioner in Writ Petition No. 20320 of 1991, has been dismissed, against which Special Leave Petition was filed, which has also been dismissed.

There may be some substance in the plea raised by Sri Shailendra Advocate qua the locus of the present petitioner to maintain this public interest petition. But at the same time, we find that earlier writ petition filed by the same petitioner being Writ Petition No. 20454 of 2012,  has been directed to be treated as Public Interest Litigation.

In order to keep the record straight, it may be noticed that Writ Petition No. 20454 of 2012 an interim order dated 2.5.2012 was passed by the writ Court directing  status quo with regard to the payment of salary. This order passed by the Single Judge dated 2.5.2012 was subjected to be challenged by means of Special Appeal No. 930 of 2012 which was dismissed. The order of Division Bench was challenged before the Apex Court in Special Leave Petition No. 582-582A of 2012. The Apex Court disposed of the special leave petition with the observation that the High Court may first examine as to whether the petition is in the nature of Public Interest Litigation or not and deal with it, accordingly. 

With reference to the order of the Apex Court the Hon'ble Judge has come to the conclusion that Writ Petition No. 20454 of 2012 is in the nature of Public Interest Litigation.

Another issue which also needs explanation in the larger public interest is as to whether the High Court while exercising its constitutional powers under Article 226 of the Constitution of India shall close its eyes to the glaring facts regarding fraud misappropriation of public money only because the person who files the petition himself may not be acting bonafidely. Is this Constitutional Court not required to segrgate the bad petitioner from the larger public interest which emerges from the pleadings of the petition. What the High Court is required under law to do in cases involving serious public interest, like issues of environment. Issues of misuse of public land/properties, issues of fraud on public exchequer and like matters when the petitioner may either be bound or ought to represent the public cause for various reasons, including his malafides. Is not the High Court required to act 'Suo Moto' or such facts being brought to its knowledge by removing the petitioner from array of parties and thereafter to proceed with merits of the allegations or record. Should technicalities like bonafides of the petitioner, his having not disclosed the required facts about himself in the P.I.L. be permitted to defeat the larger public good/utmost of substantial justice is the one of the important questions to be explained in this P.I.L.

Since as on date, this Bench has jurisdiction to entertain Public Interest Litigation. We convert this petition into a P.I.L. Let necessary correction in the Cause Title be made. Office is directed to allot a fresh number to the petition.

So far as the issue with regard to Public Interest Litigation being not maintainable in service matter is concerned, we find that there are allegations of fraud having been played upon this Court. The orders of the Court having been tampered and without there being any sanctioned post attempt has been made, to ensure payment of salary from state exchequer running into crores of rupees, to the persons who have been appointed against non sanctioned post.

Two Full Benchs of this Court have held that creation of post under Section 9 of U.P. Act No. 24 of 1971, is a condition precedent before a writ of mandamus to pay salary to the teachers  appointed from state exchaquer can be issued.  Reference Gopal Dubey vs. District Inspector of Schools reported in 1999 (35) ALR 191 and State of U.P. through its Secretary, Secondary Education & Ors. Vs. C/M, Sri Sukhpal Intermediate College, Tirhut, Sultanpur & Ors. in Special Appeal Defective No.673 of 2014 decided on 12.5.2015.

After examining this petition, we find that public money has been withdrawn for the purposes of payment of salary to the alleged Teachers and employees in the garb of an order of Writ Court which according to the petitioner has been tempered with.  This payment, prima facie, is against non sanctioned and non-created posts. We may record that the order, which has been challenged by means the present petition is  the Order of the Principal Secretary (Secondary Education), Government of U.P. at Lucknow dated 23rd March 2015, where in paragraph 5 it has been recorded that the Governor has been pleased to sanction 47 posts for the institution so that the Teachers and staff may be paid salary.  It logically follows that there were no sanctioned posts available for these 49 persons sanctioned earlier and, therefore, in view of the judgment of the Full Bench in the case of Gopal Dubey Vs. District Inspector of Schools. (supra) and State of U.P. (supra).  There is little no doubt in our minds that there is no responsibility of State Government to pay salary from public money against these 49 posts.

We required Sri A.K. Pandey, learned Additional Chief Standing Counsel for the  State to inform as to what was the necessity for the Governor to create superannuary post if according to them there were existing posts against which these 49 persons had been appointed and were entitled for payment of arrears of salary as per the order of Single Judge made in the year 1990. No reply could be given to our satisfaction. The State Government has not been acting fairly in the matter under the influence of Sri Brahma Shanker Tripathi-respondent no.8, who at present is Cabinet Minister in the State Government.

We, at this stage, also refer to the facts which have been noticed in the order of the Single Judge dated 3.2.2012 passed in Writ Petition No. 20320 of 1991 on the review  application as well as the facts which have been noticed in the Special Appeal No. 462 of 2012 filed by the Committee of Management of the present institution against the said interim order. The Division Bench has taken note of what has happened in the matter of payment of salary to the alleged Teachers and staff of the institution in question.  It recorded that though the order of the Single Judge passed on the review application may not be correct the Division Bench shall not exercise its appellate jurisdiction under Chapter VIII Rule 5 of High Court Rules in the facts noticed.

We are of the considered opinion that the entire records of the State, Institution and those pertaining to the Writ Petition No. 20320 of 1991 must be examined by this Court . No person should be permitted to take benefit of technicalities in defrauding the public exchequer. No technicality,  may be  permitted to come in the way of substantial justice.  Public money is too  sacrosanct  to be permitted to be abused only because some one had an opportunity to obtain orders contrary to law with the help of the persons in power at the State level.

We are faced with a situation where Rs. 32 crores and odds have been sanctioned to be paid as arrears with reference to the superannuary posts created under order dated 23.3.2015.  This according to the petitioner is so because of the Cabinet Minister, who is the President of the Committee of Management of the institution.

We direct that status quo as on date be maintained with regard to payment of salary in the institution till the next date of listing.

It may be recorded that the said teachers and staff have not been granted salary  since 2007, they can wait for another month. 

Let this matter be listed before appropriate Bench in the first week of July, 2015. Parties at liberty to file their response by that date.

Order Date :- 15.6.2015

Ashish Pd./ J.S.