Vir Singh vs State Of U.P. & 6 Others
2015 Latest Caselaw 4440 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court                                   AFR
 

 
Case :- SPECIAL APPEAL No. - 824 of 2015
 
Appellant :- Vir Singh
 
Respondent :- State Of U.P. & 6 Others
 
Counsel for Appellant :- Javed Husain Khan, Gulrez Khan, Pramod Kumar Shukla
 
Counsel for Respondent :- C.S.C.,  Mahesh  Chand  Sharma,  Shiv Nath Singh
 
                      With
 
Case :- SPECIAL APPEAL No. - 831 of 2015
 
Appellant :- Satyavir Singh Yadav
 
Respondent :- State Of U.P. & 6 Others
 
Counsel for Appellant :- Mahesh Chand Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice
 
Hon'ble Yashwant Varma, J.

(Per Hon'ble Yashwant Varma, J.)

The appellant, a lecturer in Physics and the seventh respondent (appellant in Special Appeal No. 831 of 2015), a lecturer in Chemistry have preferred these appeals seeking to assail the judgement rendered by a learned Single Judge on 9 October 2015. The appellant and the seventh respondent applied for being handed over charge of Officiating Principal in the Inter College, Jatpura, Muquimpur, District Bulandshahr consequent to the Principal having retired and a vacancy consequentially coming into being on 30 June 2014. The post of Officiating Principal, and on which there is no dispute, is to be filled from amongst the seniormost lecturer in the institution in accordance with the provisions of Section 18 of the U.P. Secondary Education Service Selection Board Act, 19821. Pursuant to a direction issued by a learned Single Judge of this Court on 4 September 20142, the District Inspector of Schools undertook an adjudication with respect to the inter se seniority of the appellant and the seventh respondent. By his order dated 8 May 2015, the District Inspector of Schools recorded that since the appellant had entered the services of the institution on 25 September 2006 and the seventh respondent had come to be promoted on 31 May 2007, the appellant would rank senior. He accordingly proceeded to direct the management of the institution to frame and submit its proposal for appointment of an Officiating Principal. It was this order of 8 May 2015 which formed subject matter of challenge in the writ petition preferred by the seventh respondent. The writ petition, it may be noted, additionally challenged orders dated 17 August 2006 and 12 September 2006 in terms of which the appellant came to be adjusted in the institution on the post of Lecturer (Physics).

The learned Single Judge by the judgment impugned before us has proceeded to quash the orders dated 12 September 2006, 17 August 2006 and 8 May 2015. The learned Single Judge concluded that the adjustment of the appellant in the institution was contrary to the law laid down by a Full Bench of this Court in Prashant Kumar Katiyar Vs. State of U.P. And Others3 and that therefore he would not be entitled to claim a valid appointment in his favour or seniority over the seventh respondent. Consequent to the above, the order of the District Inspector of Schools dated 8 May 2015 also came to be set aside.

Insofar as the seventh respondent is concerned, the learned Single Judge held that admittedly his promotion had come about on 30 May 2007 consequent to the regularisation and appointment of one Indrapal Singh as Principal of the institution. However, the learned Single Judge found that the regularisation and appointment of Indrapal Singh had been cancelled by an order of 30 June 2008. He, therefore, held that since the appointment and regularisation of Indrapal Singh stood cancelled, he stood reverted to the post of lecturer and consequently the vacancy against which the seventh respondent was promoted ceased to exist. On the above premise, the learned Single Judge held that the seventh respondent consequently stood reverted as an LT Grade teacher. It is aggrieved by the said observations that the seventh respondent has also preferred an appeal4 against the judgment dated 9 October 2015. Since the claim of the appellant and the seventh respondent have both been ruled upon by the learned Single Judge by the judgment impugned, we have proceeded to hear both the appeals together.

Before coming to the rival submissions which have been advanced before us and considering the fact that the dispute itself has a history, it would be apposite to trace briefly the manner in which the appellant and the seventh respondent came to hold their posts in the institution in question. We accordingly proceed to record the following facts as evidenced from the record.

Vir Singh

The appellant is stated to have applied for the post of Lecturer (Physics) pursuant to an advertisement issued by the respondents and in respect of which a selection was held in 2004. The appellant upon selection was allotted the Maharaja Inter College Deoria by the Secondary Education Service Selection Board5. The appellant was not permitted to join the post and consequently he approached the Board seeking appropriate directions including for his adjustment. The Board by an order of 1 September 2005 adjusted the appellant in a vacancy said to be existing in PBAS Inter College, Hathras. The appellant was not permitted by the management of this institution also to join. Taking stock of the above position the District Inspector of School addressed a communication dated 16 September 2005 and requested the Board to pass appropriate orders for the adjustment of the appellant in some other college. It is at this stage that, it is averred, the institution in question (the sixth respondent before us) sent its 'no objection' on 23 November 2005 to the Board for the adjustment of the appellant against the post of Lecturer (Physics) which was stated to be lying vacant. When the Board did not move upon this request of the institution, the appellant approached this Court by filing a writ petition6. This petition preferred by the appellant came to be disposed of by a learned Single Judge of this Court calling upon the Director Secondary Education to undertake an enquiry in terms of Section 17 of the 1982 Act and in case he finds a vacancy existing in the institution to ensure compliance of the orders of the Board. The order of the learned Single Judge further provided that in case the Director did not find a vacancy existing in the institution, the Board would pass fresh orders within two weeks thereafter "allocating any other institution in favour of the petitioner for his appointment". Admittedly, this order was not assailed by the parties before us and consequently attained finality. Pursuant to the direction of this Court dated 6 April 2006, the Director Secondary Education intimated to the Board vide his communication dated 30 June 2006 that no vacancy existed in PBAS Inter College, Hathras and that therefore the appellant be adjusted in any other institution. The Board by its order of 17 August 2006 passed orders of adjustment in favour of the appellant in the institution in question. Consequential directions were issued to the institution by the District Inspector of Schools vide his communication dated 12 September 2006. The institution on 25 September 2006 issued an appointment letter in favour of the appellant.

It becomes pertinent to note here that when the appellant joined as a Lecturer (Physics) in the institution, the seventh respondent was at the relevant time working as an LT Grade teacher in the same institution. Aggrieved by the adjustment and appointment of the appellant, the seventh respondent preferred Writ Petition No. 63904 of 2007 (Satyavir Singh Yadav Vs. State of U.P. and Others) on 16 December 2007 seeking the following reliefs:

"i)     issue a writ, order or direction in the nature of certiorari quashing and setting aside the appointment/adjustment of Respondent No. 7, namely, Shri Veer Singh on the post of Lecturer in Physics at Inter College, Jatpura, District Bulandshahr vide order dated 12.09.2006 passed by the District Inspector of Schools (Annexure no. 6 to the writ petition).
 
ii)     issue a writ, order or direction in the nature of mandamus commanding the respondents to cancel/withdraw the order of adjustment dated 23.08.2006 passed in favour of Respondent no. 7 whereby he was appointed/adjusted on the post of Lecturer in Physics at Inter College, Jatpura, District Bulandshahr.
 
iii)     issue a writ, order or direction in the nature of certiorari quashing the impugned seniority list (Annexure no. 24 to the writ petition) of Lecturers working at Inter College, Jatpura, District Bulandshahr to the extent that it shows the name of respondent no. 7 above that of the petitioner.
 
iv)     issue a writ, order or direction in the nature of mandamus commanding the respondents to place the petitioner above respondent no. 7 in the seriority list of Lecturers currently working at Inter College, Jatpura, Bulandshahr.
 
v)     Issue any other order or direction to which the petitioner might be found entitled in the facts and circumstances of the case.
 
vi)   Award the costs of this writ petition to the petitioner throughout."
 

A perusal of the reliefs sought establishes that the seventh respondent challenged the consequential order of the District Inspector of Schools dated 12 September 2006 as also the seniority list which came to be prepared in which the appellant was shown as senior to the seventh respondent. This writ petition preferred by the seventh respondent stood tagged along with the writ petition preferred by the appellant (Writ Petition No. 37707 of 2014) and came to be disposed of on 4 September 2014 with the learned Single Judge passing directions which have been referred to hereinabove.

On 30 June 2014, one Shri Churamani Sharma who was working as an ad hoc Principal retired. It is, at this stage, that the dispute between the appellant and the seventh respondent came to the fore and led to the filing of the writ petition by the appellant which came to be disposed of on 4 September 2014 with directions to the District Inspector of Schools to adjudicate upon their inter se seniority. The inter se seniority as noted above was decided by the District Inspector of Schools on 8 May 2015.

Satyavir Singh Yadav

The seventh respondent is stated to have been appointed on compassionate grounds as an LT Grade teacher on 24 July 1996. It was contended on his behalf that a post of Lecturer (Chemistry) had remained vacant in the institution consequent to the posting of Sri Indrapal Singh as the ad hoc Principal in 1992. It is further contended that the services of Indrapal Singh as ad hoc Principal came to be regularised on 26 December 2006 pursuant to the provisions of Section 33-C of the 1982 Act. The seventh respondent asserted that consequent to the regularisation of Indrapal Singh as Principal of the institution on 26 December 2006 a substantive vacancy in the Lecturers grade came into existence. It was against the above substantive vacancy which came into existence that the seventh respondent came to be promoted as Lecturer (Chemistry).

Indrapal Singh

Indrapal Singh is stated to have been appointed as an ad hoc Principal in 1992. This ad hoc appointment came to be made consequent to the regularly selected Principal seeking voluntary retirement on 30 June 1992. On 15 April 1997, the Board is stated to have selected one Mangal Sen for appointment as the regularly selected Principal in the institution. Necessary directions for his joining and taking over charge were issued on 22 January 1999. It further transpires that the District Inspector of Schools addressed subsequent communications dated 21 August 1999, 31 January 2001, 17 April 2001, 26 August 2001 and 15 January 2004 to the manager of the institution requiring him to permit the selected candidate to take charge as Principal. These directions however do not appear to have been complied with by the institution. Constrained by the above Mangal Sen is stated to have approached this Court by filing a writ petition7 seeking issuance of appropriate directions for implementation of the selection made by the Board. The above petition came to be disposed of with a direction to the Director, Education (Secondary) U.P. to pass appropriate orders in respect of the claim of Mangal Sen. The Director Education (Secondary) U.P. issued directions on 13 May 2002 calling upon the management to permit Sri Mangal Sen, the regularly selected Principal to be permitted to join the institution.

Indrapal Singh who till then continued as an ad hoc Principal challenged the above order of the Director by preferring a writ petition8 before this Court. This petition came to be dismissed on 30 October 2006. Aggrieved thereby Indrapal Singh preferred a Special Appeal9 which too came to be dismissed on 28 November 2006. Strangely, however, despite the right of Sri Indrapal Singh to continue to function as the ad hoc Principal having been negatived and the writ petition as well as the intra court appeal preferred by him having been dismissed, he came to be regularised under Section 33 C of the 1982 Act by an order dated 26 December 2006. This order of regularisation came to be annuled only on 30 June 2008 and on the same date Indrapal Singh is stated to have taken voluntary retirement. It is in the above background facts that the rival submissions may now be noticed.

Learned counsel appearing for the seventh respondent has drawn our attention to the limited extent of the appeal preferred by the seventh respondent, namely, the findings recorded by the learned Single Judge that consequent to the regularisation of Indrapal Singh having been annuled the seventh respondent would stand reverted to the status of an LT Grade teacher. Learned Senior Counsel appearing for the seventh respondent contends that admittedly it was the regularisation of Indrapal Singh as Principal alone which came to be cancelled by the order of 30 June 2008. He submits that the order of cancellation would only operate qua his regularisation as Principal. He seeks to draw sustenance from the fact that Sri Indrapal Singh had been continuing as an ad hoc Principal right from 1992. It is his submission therefore that Indrapal Singh even after the passing of the order dated 30 June 2008 could at best be said to stand reverted to the post of ad hoc Principal. He submits that the learned Single Judge has clearly committed an error in proceeding to hold that the substantive vacancy against which the seventh respondent had come to be promoted would also consequently cease to exist and that the seventh respondent would stand reverted as an LT grade teacher. It is his further submission that Sri Indrapal Singh continues to draw all benefits and retiral dues attached to the office of an ad hoc Principal and that this fact also establishes that the order of 30 June 2008 did not eclipse his functioning as a Principal on ad hoc basis.

Assailing the appointment and adjustment of the appellant, it is contended that the adjustment effected in his favour was in the teeth of the provisions of the 1982 Act and the law as declared by the Full Bench of this Court in Prashant Kumar Katiyar (supra). It is submitted that at the time when orders for the adjustment of the appellant were passed, the law on the issue stood duly settled in light of the judgment rendered by two learned Judges of this Court in Satish Kumar Vs. State of U.P. Vs. State of U.P. And Others10. It was submitted that the Division Bench has clearly held that no authority statutory or otherwise could clothe the Board with power to direct the adjustment of candidates against vacancies which had not been advertised. The contention is that since the post of Lecturer (Physics) in the institution had not been advertised and did not form part of the selection in which the appellant participated, he could not have been adjusted. It was submitted, therefore that the appointment and adjustment of the appellant was void ab initio. The learned Senior Counsel taking his submissions forward, contends that this was not a case where a long standing seniority was sought to be disturbed or reopened belatedly. He submits that soon after the adjustment of the appellant in the institution on 25 September 2006, the seventh respondent had instituted writ proceedings in this Court laying challenge to the order of the District Inspector of Schools dated 12 September 2006. It is his submission that since the adjustment of the appellant was in violation of the law as declared by this Court, while he may be permitted to continue on equitable considerations, such illegal adjustment could not be pressed to the detriment of the interest of the seventh respondent including in respect of his seniority and claim to act as the officiating Principal.

Learned counsel for the appellant on the other hand submits that his adjustment in the institution on 25 September 2006 came about pursuant to a writ issued by this Court which clearly commanded the Board to allocate another institution for his appointment. It is further contended that the writ petition preferred by the seventh respondent challenging his adjustment was not liable to be countenanced at all for two reasons. It is submitted that firstly the challenge in the said petition was only to the consequential order passed by the District Inspector of Schools on 12 September 2006. It is submitted that the primary orders dated 30 June 2006 passed by the Director Education and 17 August 2006 by the Board were never subjected to challenge in the writ petition. Secondly, it was submitted that the reliefs sought in the petition of the seventh respondent would clearly indicate that the seventh respondent had moved the Court being aggrieved by the effect which the adjustment of the appellant in the institution would have on his seniority. He submits referring to the judgments rendered in Smt. Manju Keshi Dixit Vs. State of U.P.11, Kamala Sharma Vs. Deputy Director Education12 that while adjudging inter se seniority the validity of the initial appointment of the appellant could not have been gone into. The learned counsel for the appellant then submits that the learned Single Judge disposed of his writ petition with directions requiring the Board to move in respect of his adjustment at a time when the judgment in Satish Kumar (supra) had not been rendered. In any view of the matter, he would submit that the judgment rendered by the Court would have retrospective operation only qua the parties thereto and for all others it would operate only prospectively.

Countering the submissions advanced on behalf of the seventh respondent with respect to the impact of the cancellation of the order of regularisation of Sri Indrapal Singh, he submits that the ad hoc Principal who was illegally regularised on 26 December 2006 continued to occupy the post despite the dismissal of his writ petition and which order stood affirmed by the Division Bench in special appeal. He further highlights the facts that even though the Board had selected and approved a candidate for appointment as Principal as far back as in 1997 his joining was deliberately thwarted by the management as well as Indrapal Singh. He, therefore, submits that such illegality cannot be permitted to be read in aid of the case of the respondents.

It is the above rival submissions which now fall for determination.

The principal submission advanced on behalf of the seventh respondent proceeds on the premise that the cancellation of the regularization of Indra Pal Singh resulted in him standing reverted to the "post" of ad hoc Principal. In our opinion this premise itself is based upon a fallacious assumption. The post in the institution was that of "Principal". This was only held "pro tem" or "ad hoc" by Indra Pal Singh. There is no separate post of ad hoc Principal. To contend therefore that his consequential reversion led him to occupy a post of ad hoc Principal is fundamentally flawed. Indra Pal Singh came to be appointed as ad hoc Principal in 1992. This ad hoc arrangement was made awaiting a regular appointment of Principal being made by the Board. Admittedly on 15 April 1997 Mangal Sen came to be selected and recommended for appointment as Principal of the institution in question. The right of Indra Pal Singh, therefore, to continue as ad hoc Principal post 15 April 1997 stood clearly eclipsed. However as the narration of facts would show, Indra Pal Singh, perhaps with the support of the management, continued to act as the ad hoc Principal even thereafter.

This illegality came to be perpetuated when he was regularized on 26 December 2006. This exercise of purported powers under Section 33-C of the 1982 Act was clearly unsustainable. The power under the aforementioned provision as is evident from a reading of sub section (6) thereof clearly establishes that the order of regularization could not have been made. Sub section (6) of Section 33-C is in the following terms: -

"(6) Nothing in this section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of sub section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act." (Emphasis supplied)

The provisions of section 33-C were brought on the statute book in terms of U.P. Act 25 of 1998 with effect from 20 April 1998. Undisputedly the recommendation of Mangal Sen came to be made by the Board on 15 April 1997. The vacancy on the post of Principal in the institution therefore on the relevant date stood "filled" and in any view of the matter the vacancy was one in respect of which a selection had already been made in accordance with the 1982 Act. It is therefore apparent that the regularization of Indra Pal Singh on 26 December 2006 was in clear breach of the unambiguous terms and command of the statute. If that be the position, it is clear that the post of Lecturer (Chemistry) did not attain the character of a substantive vacancy against which the promotion of the seventh respondent could have been effected. More fundamentally we find that prior to the regularization of Indra Pal Singh, he had laid a direct challenge to the selection and appointment of Mangal Sen which came to be negatived by this Court on 30 October 2006. The Special Appeal preferred by him against the aforesaid judgment also came to be dismissed on 28 November 2006. Despite the above, Indra Pal Singh continued to act as the ad hoc Principal and ultimately retired on 30 June 2008. This Court can neither legitimize the above illegalities nor can its decision rest on or be swayed by the fact that Indra Pal Singh continues to draw retiral benefits of an ad hoc Principal as was commended for our acceptance. We accordingly find no error in the conclusion arrived at by the learned single Judge that on 30 June 2008, the regularization and appointment of Indra Pal Singh as Principal came to an end and he consequently stood reverted to that of a Lecturer. As a necessary corollary to the above, there existed no vacancy which would have warranted the promotion of the seventh respondent and he would therefore continue as an L.T. Grade teacher. We may additionally note that the promotion of the seventh respondent was intrinsically intertwined and dependent upon the order of regularization of Indra Pal Singh. But for the order of 26 December 2006, there existed no substantive vacancy against which the seventh respondent could have been promoted. Once the order of 26 December 2006 was cancelled, all necessary consequences would ensue.

We then proceed to consider the issue of adjustment of the appellant. The law on the subject has been authoritatively pronounced upon by the Full Bench of the court in Prashant Kumar Katiyar to hold that an unadvertised vacancy cannot be filled up by a candidate selected by the Board against some other vacancy. The Full Bench in fact reiterated what was held in Satish Kumar. Satish Kumar clearly found the lack of jurisdiction in the Board ordering adjustment of candidates against unadvertised vacancies. We are also conscious of the fact that a Division Bench of the Court in Om Prakash Awasthi Vs. State of U.P.13 has held that the law enunciated in Satish Kumar shall govern the field retrospectively. What we however find is that certain supervening events cannot be lost sight of. The adjustment of the appellant came to be effected pursuant to a writ issued by a learned single Judge of the court on his petition on 6 April 2006. Admittedly this judgment attained finality and was not subjected to challenge by the state respondents at any stage. The direction of the learned Single Judge may have run contrary to what was held in Satish Kumar which it may be incidentally noted came to be rendered on 22 September 2006. The judgment of the learned Single Judge rendered on the writ petition of the appellant, however, continued to bind and operate inter parties. This was not a decision by a court without jurisdiction. Howsoever wrong or incorrect the decision may have been in light of the subsequent enunciation of the law in Satish Kumar, in the absence of any corrective steps having been taken by the parties, it cannot be disturbed or overlooked and that too in collateral proceedings.

It is trite law that even an incorrect or erroneous decision binds parties unless it is set aside or modified in accordance with law. As far back as in 1900 the Privy Council in Malakarjun Bin Shidramappa Pasare Vs. Narhari Bin Shivappa14 observed: -

"He contended that he was not the right person, but the Court having received his protest, decided that he was the right person, and so proceeded with the execution. In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed."

Dealing with a similar issue in State of West Bengal Vs. Hemant Kumar Bhattacharjee15 our Supreme Court enunciated the law in the following terms: -

"Before proceeding with these arguments in detail, we can dispose of second contention shortly. This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4-4-52 had ample jurisdiction to decide the case and the fact that their decision was on the merits erroneous as seen from the later judgment of this Court, does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contention. The decision of the High Court dated 4-4-52 bound the parties and its legal effect remained the same whether the reasons for the decision be sound or not."

The above principle of law has been consistently followed as would be evident from the following observations of the Supreme Court in Rafique Bibi Vs. Sayed Waliuddin16 -

"8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not a executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down in law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denied of its efficacy by any collateral attack or in incidental proceedings."

In light of the above, we hold that the initial adjustment of the appellant cannot be said to be void ab initio.

Additionally we find that quite apart from the seventh respondent not having any locus standi to challenge the appointment and adjustment of the appellant [in the sense of the appellant being a Lecturer in Physics and the seventh respondent being a Lecturer in Chemistry] he only assailed the consequential orders of adjustment made in respect of the appellant. The parent order of the Director and the Board directing adjustment of the appellant were never subjected to challenge till the filing of the writ petition which gives rise to the present appeal.

More fundamentally when one views the reliefs sought by the seventh respondent in his writ petition it is apparent that the primary cause for challenge to the adjustment of the appellant was the consequential effect it would have on the inter se seniority. In our opinion the validity of an appointment cannot be the subject matter of scrutiny or adjudication while deciding the issue of inter se seniority. We therefore find that the learned Single Judge has clearly erred in proceeding to annul and set aside the initial appointment and adjustment of the appellant.

Consequently we are of the view that the Special Appeal preferred by the appellant is liable to succeed and the writ petition of the seventh respondent must consequentially stand dismissed. For reasons noted above, we find merit in the conclusions arrived at by the learned Single Judge in respect of the status of the seventh respondent being reverted to that of an L.T. Grade teacher. The appeal of the seventh respondent must consequentially fail.

Accordingly and for the reasons assigned above, we allow Special Appeal No. 824 of 2015 and set aside the judgment of the learned Single Judge to the extent indicated above. Special Appeal No. 831 of 2015 as well as Writ Petition No. 39932 of 2015 shall stand dismissed. The respondents shall now proceed in the matter afresh in light of the observations contained in this judgment.

Order Date :- 23.11.2015

Arun K. Singh

(Dr. D.Y. Chandrachud, C.J.)

(Yashwant Varma, J.)