Keshav Dhar Tripathi And Another vs State Of U.P. And 4 Ors.
2017 Latest Caselaw 3858 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.              
 
Court No. - 10
 
Case :- SPECIAL APPEAL No. - 438 of 2016
 
Appellant :- Keshav Dhar Tripathi And Another
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Appellant :- In Person,Birendra Prasad Shukla
 
Counsel for Respondent :- C.S.C.,Ram Kishore Pandey
 

 
Hon'ble Arun Tandon,J.

Hon'ble Siddhartha Varma,J.

Heard learned counsel for the parties.

This intra Court appeal is directed against the judgment and order of the learned Single Judge dated 17.5.2016 passed in writ petition No. 51272 of 2009.

Facts in short leading to the present appeal are as under:

Ratan Nath Uchchtar Madhyamik Vidyalay, Rasin Banda is an Institution aided and recognized under the Provision of the U.P. Intermediate Education Act, 1921. One Shesh Dhar Tripathi was appointed as Headmaster in the said Institution, which was upgraded as Intermediate College subsequently.

The Committee of Management of the Institution after departmental enquiry proposed the punishment of dismissal from service against Shesh Dhar Tripathi on 27.12.1975. The resolution so made by the Committee of Management was disapproved by the District Inspector of Schools (hereinafter referred to as the 'DIOS') vide order dated 5.1.1976. Not being satisfied the Committee of Management filed Writ Petition No. 739 of 1977, the writ petition was disposed of vide order dated 6.12.1979 and the matter was remitted to the DIOS to pass a fresh order. The DIOS approved the punishment proposed vide order dated 3.3.1991. Not being satisfied Shesh Dhar Tripathi filed an appeal before the Deputy Director of Education in accordance with the provisions of the Intermediate Education Act and Regulation framed thereunder. This appeal was allowed by the Deputy Director of Education vide order dated 12.7.1988. The Committee of Management not being satisfied filed Writ Petition No. 16470 of 1985 wherein, an interim order was granted permitting the Committee of Management to take work or not to take work from Shesh Dhar Tripathi, subject however to the condition that he shall be paid his due salary. This writ petition is stated to have been dismissed as infructuous on 10th April, 2003.

In between Shesh Dhar Tripathi was served a notice of retirement on attaining the age of 58 years by the Committee of the Management. This notice was subjected to challenge by Shesh Dhar Tripathi by means of the writ petition No. 55004 of 1999, the writ petition was disposed of vide order dated 6.8.2004 requiring the District Inspector of Schools to examine the grievance of Shesh Dhar Tripathi. The District Inspector of Schools passed an order dated 20th October, 2004 ( copy whereof is enclosed at page 378 of the present Paper Book) upholding the notice of retirement.

The records reflects that Shesh Dhar Tripathi attained the age of superannuation in the month of October, 1998 and that Shesh Dhar Tripathi ultimately expired on 5.1.2009. Till the date of his death Shesh Dhar Tripathi neither challenged the order dated 20.10.2004 before any Competent Authority nor before the High Court. Therefore his retirement at the age of 58 years i.e. in the year 1998 has become final.

After the death of Shesh Dhar Tripathi his brothers Kailash Nath Tripathi and Vidya Dhar Tripathi, setup a claim that the revision of salary as effected from time to time, had not been provided to Shesh Dhar Tripathi when he was in service and therefore such claim may be directed to be considered and the monetary benefit so calculated may be paid to the brothers. This application was not considered. Hence they approached the writ Court.

Petition filed by the brothers in the year 2009 being Writ Petition No. 51272 of 2009 has been dismissed by the learned Single Judge under the order dated 17.5.2016, after returning a finding that no such grievance was raised by Shesh Dhar Tripathi during his life time as is alleged by the brothers and that the pension scheme was not applicable to him.

It is against this order of the learned Single Judge that the present special appeal has been filed. An attempt was made on behalf of the petitioner-appellant to suggest before this Court that Shesh Dhar Tripathi was contesting his right of pension, continuance till 60 years and the payment of monetary benefit all along and that there had been a report by the DIOS addressed to the Deputy Director of Education for the purpose.

It is, therefore submitted that the learned Single Judge was not justified in recording that Shesh Dhar Tripathi had not claimed monetary benefit as per the provisions applicable during his life time.

Sri. P.S. Saxena, Senior Advocate assisted by Ram Kishore Pandey, Advocate on behalf of the Committee of Management submits that from a simple reading of the writ petition filed by Shesh Dhar Tripathi being Writ Petition No. 55004 of 1999 and the order which was passed in the said writ petition as well as from the application made by Shesh Dhar Tripathi before the DIOS in terms thereof as well as from the order of DIOS dated 6.8.2004, it is clear that he had not raised any grievance in the matter of payment of salary or in the matter of increment as lawfully due being not added to his salary.

It is submitted that Sri Shesh Dhar Tripathi retired on October 1998 and had never raised any grievance before the competent forum in respect of his salary or other monetary benefit being due in respect of the period he was in employment. Even otherwise, it is contended that if such relief was available to Shesh Dhar Tripathi, the same had to be claimed in the writ petition No. 55004 of 1999. He submits that the relief as now prayed by the brothers in the garb of the representation being decided, need not be granted in view of the provisions of Order-II Rule 2 of C.P.C. Even otherwise, it is submitted that the writ petition had been filed after 11 years of the retirement of Shesh Dhar Tripathi.

It is submitted that no interference against the judgment and order of the learned Single Judge is called for.

We have heard learned counsel for the parties and examined the record of the present special appeal.

We are of the opinion, that the contention raised on behalf of the respondents that if any monetary benefits in respect of the service period of Shesh Dhar Tripathi were payable the same should have been claimed in Writ Petition No. 55004 of 1999, inasmuch as all such benefit had become due up to the date the writ petition was filed.

Therefore relief prayed for in that regard was available at the time of filing of the writ petition, if such relief had not been claimed then it is not permissible for the brothers to pray for the same in a petition filed in 2009 in view of the principle enshrined under Order II Rule 2 of C.P.C. No subsequent writ petition would be maintainable for reliefs which were available at the time of filing of the first petition but had not been so claimed.

We may clarify that under the interim order passed in the writ petition filed by the Committee of Management against of the order of Regional Joint Director of Education Shesh Dhar Tripathi was paid his salary. There is no issue with regard to the payment of salary for any period. What is being claimed in the writ petition filed by the brothers is that certain annual increment had not been added to the salary of Shesh Dhar Tripathi.

We may also clarify that the writ petition filed by the Committee of Management in the year 1995 was rightly dismissed as infructuous on 10.4.2003 as by that date, Shesh Dhar Tripathi had attained the age of superannuation and there is no provision under the Intermediate Education Act, 1921 for any order of punishment being made against a retired teacher. No effective relief could have been granted in the petition of 1995, after Shesh Dhar Tripathi had retired.

For the reasons recorded above and for those reasons recorded by the learned Single Judge, we see no good ground to entertain the present special appeal. It is, accordingly, dismissed.

Order Date :- 31.8.2017

Akbar