Allahabad High Court

Rama Kant Kushwaha And Others vs D.I.O.S. And Others on 8 January, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:4325
 
Court No. - 10
 

 
Case :- WRIT - A No. - 30616 of 2006
 

 
Petitioner :- Rama Kant Kushwaha And Others
 
Respondent :- D.I.O.S. And Others
 
Counsel for Petitioner :- A.K. Singh
 
Counsel for Respondent :- C.S.C.,Anand Kumar Ray,Yogesh Srivastava
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Heard Sri Ashish Mohan Srivastava, learned Standing Counsel for review applicants and Sri Devansh Mishra and Sri Vishnu Swaroop Srivastava, Advocates for petitioners.

Order on Delay Condonation Application No. 364515 of 2011

1. This is an application seeking condonation of delay in filing Recall/Review Application.

2. Delay in filing Recall/Review Application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.

Order on Recall/ Review Application No. 364522 of 2011

1. This is a review application at the behest of State of U.P. through Secretary Education Department (Primary School attached with Inter College), Secretariat, Gorakhpur and two others, i.e., Respondents-1, 2 and 4 in writ petition), who were, District Inspector of Schools, Gorakhpur (Respondent-1); Director of Education (Madhyamik), U.P. Allahabad (Respondent-2); and, State of U.P. through Secretary Education (Secondary) Government of U.P. Lucknow (Respondent-4).

2. Present review application is accompanied by an affidavit sworn by one, Satish Kumar Tiwari, Associate District Inspector of Schools, Gorakhpur.

3. The above details are mentioned, since a preliminary objection is raised that judgment under review dated 18.05.2009 was challenged at the behest of District Inspector of Schools, Gorakhpur before a Division Bench of this Court by way of filing Special Appeal Defective No. 1110 of 2009, which was dismissed as withdrawn vide order dated 28.10.2009. For reference the said order is reproduced hereinafter:

?Shri U.N. Sharma appears for the appellant respondent. Learned Standing Counsel appears for respondent Nos.1 and 2. Shri Gajendra Pratap, Sr. Advocate assisted by Shri A.K. Singh appears for respondent Nos.3 to 7. It is stated by him that Shri Rama Kant Kushwaha-respondent No.4 has since expired.

Shri U.N. Sharma, learned counsel appearing for the Deputy Inspector of Schools, Gorakhpur Shri Ravindra Singh states that the appellant would like to withdraw the special appeal.

The special appeal is accordingly dismissed as withdrawn.?

4. The aforesaid fact of filing of special appeal by District Inspector of Schools, Gorakhpur and later on it was withdrawn, was not disclosed in present review application. An argument is raised that since special appeal was filed by District Inspector of Schools, whereas present review application is filed by State, therefore, it cannot be barred by principle of constructive res judicata.

5. However, said argument has no legal basis since the affidavit accompanying to review application is sworn by Associate District Inspector of Schools, Gorakhpur and, therefore, it was a legal duty of review-applicants to disclose that earlier the judgment under review was challenged before Division Bench of this Court by way of filing special appeal, which was dismissed as withdrawn.

6. The Court takes note that in certain circumstances, once a special appeal is dismissed as withdrawn, i.e., it was not considered on merit, a review application may be maintainable, however, for that a correct declaration has to be made in review application and admittedly said declaration has not been made in present review application. Therefore, this review application could be dismissed at the threshold, still in the interest of justice the Court takes note of facts of case.

7. The writ petition was filed in the year 2006 and it was allowed alongwith another writ petition by judgment under review dated 18.05.2009 with a direction that petitioners be paid regular monthly salary. Relevant part of judgment under review is reproduced hereinafter:

?I have considered arguments advanced by the learned counsel for the parties and perused the record.

It has been admitted by the contesting parties that the petitioners were validly appointed teachers and have been working in the institution since 01.01.1994. Their appointments were duly approved by the District Inspector of Schools, Gorakhpur vide approval order dated 26.04.1994. The financial sanction was also accorded by the then District Inspector of Schools, Gorakhpur to the appointment of the petitioners on 26.04.1994. This fact has been taken note of by the present District Inspector of Schools, Gorakhpur in his order dated 03.03.2006. It has also borne out of the record that one Liyaqat Ali alongwith nineteen other teachers of the Institution are getting their regular salary, while the petitioners have been deprived of this benefit of payment of their salary inspite of the fact that the employer ? employee relations are continuing since 1.1.1994 and the petitioners are imparting instructions to the students in the Primary Section of the Institution. This Court has also taken note of the fact that six teachers out of 59, who were getting regular salary, have also retired with effect from 30.06.2006. In view of all these facts, the petitioners are certainly entitled for payment of salary.

A perusal of the order passed by the District Inspector of Schools indicates that the petitioners? case was not considered by the District Inspector of Schools wherein unnecessary details have been given regarding number of the students in the year 2006. It has been admitted and is also clear from the approval letter issued by the District Inspector of Schools, Gorakhpur on 26.4.1994 that 2651 students were studying in the Primary Section of the Institution and accordingly, the petitioners were also appointed alongwith other teachers. The District Inspector of Schools has not dealt with the case of the petitioner- Smt. Gyan Srivastava and there is no reason for depriving of payment of salary to her.

In view of the discussions made above, the writ petitions succeeds and is allowed. The Impugned order dated 3.3.2006, passed by the District Inspector of Schools, so far as it relates and affects payment of salary to Smt. Gyan Srivastava-petitioner and other petitioners in connected writ petition, Assistant Teachers of Primary Section of the Institution is quashed. This order shall not come in the way of the payment of regular salary and arrears of held up salary to the petitioner since employer-employee relations are continuing and the petitioner is still teaching in the Institution and her appointment was duly approved and financial sanction was also accorded to the appointment of the petitioners. The Respondent nos. 2 to 4 are directed to pay regular monthly salary to the petitioners and also pay them arrears of salary since when their appointments were approved and financial approval was accorded.?

8. After above referred Special Appeal filed by District Inspector of Schools, Gorakhpur was dismissed as withdrawn vide order dated 28.10.2009 and the review applicants remained silent and woke up only when contempt petition was filed. This review application was filed in the month of December, 2011. Thereafter, review application remained pending and in contempt proceedings few strict orders were passed and presence of Director of Education, Government of U.P., Lucknow was required. Thereafter contemnors rushed to Supreme Court by way of filing a Special Leave Petition (Civil) Diary No. 49503 of 2024, which was disposed of vide order dated 24.10.2024 that presence of contemnors was not justified since a recall application was pending before this Court and it was directed that review application be expedited. The review application was thereafter listed on some dates but got adjourned and today though initially there was a request for adjournment but in above circumstances on Court's pursuation, it was finally heard.

9. The best case put by learned counsel for review-applicants to review the judgment is that review-applicants have filed a counter affidavit in the writ petition, however, it was not taken note of though it has not been much disputed that no counter affidavit was on record when judgment under review was passed. A copy of counter affidavit is now annexed in present review-application and referred relevant para 4 thereof is reproduced hereinafter:

?4. That the contents of paragraph 3, 4 and 5 of the writ petition are not admitted and in reply it is stated that institution in question namely Nehru Intermediate College Bichiya Railway Colony is an aided and recognized non Governmental institution over which provision of Intermediate Education Act, 1921 as well as Payment of Salaries Act are pre-applicable. It is further stated in the institution in question, attached Primary School is also running and duly appointed and recognized teachers working therein are being paid their salary under this provision of Payment of Salaries Act, 1971. It is further stated that in attached primary school 25 section/Anubhag are approved by the department against which 54 teachers are being paid their salary which is much more then prescribed strength. Apart from those no other teacher is being paid their salary, It is pertinent to mention here that according to the payment of salary, Civil Misc. Writ Petition No. 30616 of 2006, Rama Kant Kushwaha and other Vs. State of U.P. & Others was filed in this Hon?ble Court in which detailed counter affidavit has already been filed by the department on 21.02.2007. Apart from which previously another Civil Misc. Writ Petition No. 21661 of 2002, Rama Kant Kushwaha and 10 others Vs. District Inspector of Schools and others was filed in this Hon?ble Court in which order was passed by this Hon?ble Court on 24.10.2005 and in compliance of which decision has already been taken by the District Inspector of Schools, Gorakhpur on 03.03.2006 by which payment of salary to 12 others teacher was denied by the department. Aforesaid order dated 03.03.2006 is also subject matter of the present writ petition which is perfectly just and legal and there is no illegality in it.?

10. Per contra, the case of petitioners in writ petition is that since judgment under review is passed on merit and on basis of material available, therefore, it may not be interfered as well as despite writ petition remained pending for more than two years, no counter affidavit was placed on record, therefore, Court may not look into the contents of counter affidavit, now annexed alongwith this review application.

11. Law with regard to scope of review has been reiterated by Supreme Court in Sanjay Kumar Agarwal vs. State Tax Officer and another, AIR 2023 SC 5636 and relevant para thereof is reproduced hereinafter:

?16. The gist of the afore-stated decisions is that: -

(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.

(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

(iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.

(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be ?reheard and corrected.?

(v) A Review Petition has a limited purpose and cannot be allowed to be ?an appeal in disguise.?

(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.?

12. As referred above, review-applicants before this Court have not come with clean hands. The deponent (Associate District Inspector of Schools, Gorakhpur) of review application ought to have declared that a special appeal was filed at the behest of District Inspector of Schools, Gorakhpur, which was later on dismissed as withdrawn without any liberty. However, said fact was not disclosed.

13. Even otherwise, the judgment under review was passed on basis of material available. The counter affidavit was not on record when writ petition was decided. No document has been filed to show that counter affidavit was filed in Registry before writ petition was decided. Court takes note that stand of State-Respondents is that appointments were made much beyond the approved strength, therefore, appointments of petitioners were not legal, however, petitioners have already worked for last about three decades and even the State-Respondents were not careful to pursue their case despite impugned order in writ petition was passed in the year 2006 and present review application was filed in the year 2011, i.e., after five years.

14. In view of above, argument of State-Respondents/ review applicants cannot be considered in a review application and for that they have liberty to take appropriate legal remedy. The review application cannot be allowed as an appeal in disguise.

15. With aforesaid observations, this review application is disposed of.

Order Date :- 8.1.2025