Allahabad High Court
Prin. Mahatma Gandhi Smarak ... vs Tribuvan Prajapati And Others on 22 March, 2023
Bench: Devendra Kumar Upadhyaya, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- SPECIAL APPEAL No. - 129 of 2023
Appellant :- Prin. Mahatma Gandhi Smarak College , Sultanpur
Respondent :- Tribuvan Prajapati And Others
Counsel for Appellant :- Sharad Pathak
Counsel for Respondent :- Anshuman Singh Rathore,C.S.C.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
Heard learned counsel for appellant, Sri Sudeep Kumar and Sri Anshuman Singh Rathore, learned counsel for respondent no.1-petitioner and Sri Anand Singh, learned counsel representing the respondents-State authorities.
Instituting these proceedings under Chapter VIII Rule 5 of the Rules of the Court, an order dated 27.02.2023 passed by learned Single Judge in Writ-A No.398 of 2023 has been questioned.
At the outset, Sri Sudeep Kumar, learned counsel for respondent no.1-petitoner raised a preliminary objection regarding maintainability of this special appeal by submitting that the order under challenge in this special appeal, dated 27.02.2023 is interlocutory order and since the writ petitions still is pending, hence against such an interim order, the special appeal is not maintainable.
We have considered the said objection regarding maintainability, however, having regard to the nature of order which is under challenge in the special appeal, we are of the opinion that it is not only that learned Single Judge has stayed the order dated 31.12.2022 which, in fact, is a retirement notice but has also directed that the respondent no.1-petitioner shall be allowed to work and shall be paid his salary. Learned Single Judge has further observed that in case Principal (appellant herein) and the Committee of Management do not forward the salary bill of the respondent no.1-petitioner, the District Inspector of Schools would be entitled to take such steps for payment of salary as he is authorized to take steps for single operation of accounts for payment of salary.
When we examine the kind of directions issued by the order dated 27.02.2023, what we find is that such directions, in our opinion, amount to having trapping of judgment for the reason that such direction could be passed at the time of final decision of the writ petition and not an interim stage.
We, for the aforesaid reasons, over rule the objection regarding maintainability of the special appeal raised by Sri Sudeep Kumar, learned counsel for respondent no.1-petitioner.
As far as the merit of the claim of the respective parties is concerned, what we notice from the records available before us on this special appeal is that this case has a chequered history.
The respondent no.1-petitioner was appointed against a Class-IV post in the institution concerned on 30.05.1999, however his appointment was cancelled/services were terminated by means of an order dated 15.01.2007 by the appointing authority i.e the Principal (appellant herein).
The primary ground of cancellation of appointment of respondent no.1-petitioner was that he relied upon fabricated/forged transfer certificate showing his date of birth to be 08.02.1977 whereas his date of birth as ascertained by the Principal of the Institution was 01.01.1963. The order of cancellation of appointment/termination of service of the respondent no.1-petitioner was however, set aside by the Committee of Management in an appeal, by means of the order dated 01.02.2007, though the said appellate order does not throw any light as to the basic issue regarding the controversy relating to date of birth of respondent no.1-petitioner and alleged used by him of the fabricated transfer certificate for procuring his appointment. It further transpires that on some complaint an inquiry was conducted by the Sub-Divisional Magistrate, who submitted his report on 03.01.2007 opining therein that date of birth of respondent no.1-petitioner as claimed by him i.e. 08.02.1977 is not correct.
The Sub-Divisional Magistrate while submitting his report dated 03.01.2007 has relied upon certain enquiries conducted into the said fact by the Basic Shiksha Adhikari. The said report was presented before the District Magistrate who passed an order on 04.01.2007 directing the District Inspector of Schools and other authorities to take appropriate action.
It is the submission of learned counsel for appellant that pursuant to the said order passed by the District Magistrate, the date of birth of respondent no.1-petitioner was corrected in the service book on 06.01.2007. Further submission on behalf of the appellant is that before amending the date of birth on 06.01.2007 in the service book, certain enquries were also conducted by the Principal of the institution as well.
Our attention has also been drawn to various documents relied upon by the respondent no.1-petitioner while invoking the writ jurisdiction of this Court earlier by instituting Writ Petition No.4008 (S/S) of 2000 and it has been thus submitted that the stand taken by the respondent no.1-petitioner in the said writ petition runs contrary to the stand which has been taken by him in Writ-A No.398 of 2023 inasmuch as certain documents allegedly reveal that he was class-V passed at the time when he claimed his appointment against Class-IV post whereas in Writ-A No.398 of 2023, an assertion has been made that he is illiterate.
Various other documents have been relied upon by the appellant and according to learned counsel for appellant, the said documents clearly establish that the respondent no.1-petitioner has not denied submission of transfer certificate containing his date of birth to be 08.02.1977.
Our attention has also been drawn to a report submitted by the Deputy Director of Education on 20.11.2018 wherein as well the date of birth of the respondent no.1-petitioner as 08.02.1977 has not been found to be correct.
All the aforesaid submissions advanced by learned counsel for appellant has been disputed by learned counsel representing the respondent no.1-petitioner, however, in our opinion, a finding needs to be recorded before arriving at a correct conclusion regarding the date of birth of the respondent no.1-petitioner.
For adjudicating the issue raised by learned counsel for respondent no.1 i.e the petitioner in the writ petition which is still pending, in our considered opinion, both the parties need to exchange their affidavits and thereafter they are required to be heard and accordingly the matter is required to be finally disposed of. However, for the reasons aforesaid as also taking into account the fact that the date of birth of the respondent no.1-petitioner is shrouded in suspicion and is under cloud, the order dated 27.02.2023, in our opinion, cannot be permitted to be sustained.
Accordingly, the special appeal is allowed and the order dated 27.02.2023 passed by learned Single Judge in Writ-A No.398 of 2023 is hereby set-aside. We permit the appellant and other parties including the District Inspector of Schools to file affidavit in reply to the proceedings of writ petition within a maximum period of two weeks from today.
We specifically direct the District Inspector of Schools to file counter affidavit before learned Single Judge in the writ petition strictly in terms of the time period being provided for in this order by us, failing which adverse inference may be drawn against him. A week's time thereafter shall be available to learned counsel for petitioner to file rejoinder affidavit.
The matter thereafter shall be listed.
Having regard to the fact that on one hand the appellant is claiming that respondent no.1-petitioner had retired w.e.f 31.12.2022 and on the other hand, the respondent claims that he has to work in the institution for 14 more years, we request learned Single Judge to expedite the proceedings of writ petition and conclude the same as early as possible.
We may clarify that any observation made herein above shall not be construed as our opinion as to the merit of the claims of the respective parties.
There will be no order as to costs.
Order Date :- 22.3.2023
Renu/-
