Sabit Kumar vs State Of Uttarakhand And Others
2022 Latest Caselaw 2522 UK

   HIGH COURT OF UTTARAKHAND AT NAINITAL


             Writ Petition No.1329 of 2020 (S/S)

Sabit Kumar                                              ..........Petitioner

                                       Vs.

State of Uttarakhand and others                        ........ Respondents



Present :    Mr. Tapan Singh, Advocate for the petitioner.
             Mr. Narain Dutt, Brief Holder for the State.



                                 JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

By means of the instant petition, the petitioner

seeks the following reliefs:-

i) Issue a writ, order or direction quashing the

impugned order dated 09/10-06-2020 passed

by the respondent no.-3 (contained as

Annexure No.12, to this writ petition.

       ii)     Issue a writ, order or direction in the nature of

               mandamus               commanding/directing                the

respondent no.3 to decide the representation of

the petitioner a fresh after considering the

evidence submitting by the petitioner as well as

record of the school, within stipulated time

fixed by this Hon'ble court.

iii) Issue any other relief, which this Hon'ble Court

may deem fit and proper in the circumstances

of the case be passed in favour of the

petitioner.

iv) Cost of the petition be awarded in favour of the

petitioner."

2. Heard learned counsel for the parties and

perused the record.

3. It is the case of the petitioner that he was

appointed as Assistant Teacher on 10.08.2004, by the

Manager of Janta Junior High School, Harchandpur-

Nijagpur Post Gurukul Narson, District Haridwar (for

short, "the school"). He worked there. Subsequently, the

school was taken in grant-in-aid category. The petitioner

continued teaching in the school. He filed a writ petition

for his regularization. As soon as the Manager of the

Committee learnt about the writ petition, having been

filed by the petitioner, he stopped the petitioner from

teaching. In an earlier Writ Petition (S/S) No.749 of 2014,

Sabit Kumar vs. State of Uttarakhand and others (for

short, "the first petition") the petitioner sought the

following reliefs:-

i) Issue an appropriate order, writ or direction in

the nature of mandamus commanding the

respondents to regularized the services of the

petitioner similar to the regularized made of

other junior teachers working in the same

School in the interest of justice to the

petitioner.

     ii)    Issue an appropriate order, writ or direction in

            the   nature       mandamus        commanding         the

respondents to not to remove the petitioner

from his service arbitrary without showing any

reason and without any notice to the petitioner

and hence it is prayed from using appropriate

prior of his removal from service as per

principle of natural justice.

iii) Issue an appropriate order, writ or direction in

the nature of mandamus commanding the

respondents to allow the petitioner to continue

to work in his service till the pendency of this

writ petition.

iv) Issue an appropriate order, or direction or writ

commanding the respondents to decide the

representation of the petitioner by an speaking

order.

v) Issue any other order or any further directions

which this Hon'ble court may deem fit and

proper in the fact and circumstances of the

case to mould the relief and render justice to

the petitioner.

vi) Award the cost of the present writ petition to

the petitioner, and for this act of kindness, the

petitioner shall every pray as in duty bound"

4. The first petition was dismissed on 29.02.2016.

The Court has observed as hereunder:-

"6. As far as claim of the petitioner for regularization is concerned that has not been established by the petitioner before this Court as no provision of law has been shown by the petitioner whereby his services could be regularized. Petitioner has also relied upon the Government Order dated 30.12.2013 where a teacher who has continuously worked for five years inter alia as a teacher his services were liable to be regularized whether he is working on contractual basis or daily wage capacity. The petitioner, however, has not been able to show before this Court that he was ever engaged in the said school in any capacity as no salary slip or even honorarium has

been shown to this Court. Therefore, the relief sought by the petitioner cannot be granted.

7. The writ petition lacks merit and is hereby dismissed. No order as to costs."

5. The judgment dated 29.02.2016, passed in the

first petition was challenged by the petitioner in Special

Appeal No.83 of 2016, Sabit Kumar vs. State of

Uttarakhand, which was also dismissed on 05.05.2016

but, the Court gave a liberty to the petitioner with regard

to the injury, which had been allegedly suffered in the

form of not been allowed to work. In para 12 of the

judgment of the special appeal the Court had observed as

hereunder:-

"12. The upshot of the discussion is that, we feel that

we do not see any justification for permitting the appellant to

lay store by the 2013 Rules but, at the same time, in regard

to the injury which has been allegedly suffered in the form of

not being allowed to work, though there is an order or

appointment in his favour, he may workout his remedy before

any other competent forum. We make it clear that the

observation made by the learned single judge in the

impugned judgment will not stand in the way of any

competent body in law taking decision in accordance with

law, if the same is approached by the appellant diligently.

Necessarily if any order is to be passed by the affecting the

committee of Management/private respondent, it can be done

only after affording opportunity of hearing to it."

6. It appears that thereafter, a complaint was

made by the petitioner with regard to his grievances. But,

not satisfied with the action taken by the department, the

petitioner further filed Writ Petition (S/S) No.392 of 2018,

Sabit Kumar vs. State of Uttarakhand and others (for

short, "the second petition"), but, the second petition was

withdrawn by the petitioner and a liberty was given to the

petitioner to make a representation. The petitioner made

a representation, which was rejected by the impugned

order dated 10.06.2022. Hence, the petition.

7. The learned counsel for the petitioner would

submit that the petitioner worked as an Assistant Teacher

in the school for a long. When he sought regularization

and filed a writ petition in this Court, the Committee of

Management did not allow him to work. There are

evidences that the petitioner was teaching in the school.

After decision in the special appeal, when the petitioner

made a complaint it was enquired into and the Inquiry

Officer concluded that the petitioner did work in the

school but, his appointment process was not ever notified

in any newspaper. The record of the inquiry has been

enclosed as Annexure No.7 in the writ petition.

8. Learned counsel for the petitioner would

submit that the procedure for appointment of Assistant

Teacher in the school was followed in the case of the

petitioner. The notice was published in the notice board

and it is valid requirement. Reference has been made to a

judgment of this Court in the case of Ramesh Pal Singh

S/o Shri Attar Singh vs. Raja Mahendra Pratap and

others, Writ Petition No.7186 of 2001 (S/S). In the case of

Ramesh Pal Singh (supra), the Court has taken note of

the fact that advertisement in that case was issued and

notified on the notice board.

9. On the other hand, learned State counsel

would submit that the dispute has already been settled;

no documents have been produced by the petitioner

which may entitled him for the relief; his appointment

was not as per the prevailing Rules.

10. One of the basic fundamental of justice

dispensation system is finality of the judgment delivered

in a dispute. The history as narrated hereinabove makes

it abundantly clear that in the first petition, it was the

grievance of the petitioner that he should be allowed to

work as an Assistant Teacher; his services should be

regularized; he should not be removed without showing

any cause or without affording any opportunity of

hearing. Interesting the relief (iv) sought in the first

petition was direction for the respondents to decide the

representation that may be made by the petitioner. Fact

remains that the first petition filed by the petitioner was

rejected by this Court on 29.02.2016. The special appeal

preferred against it was also rejected. Court, of course

gave a liberty to the petitioner, but not to agitate the same

issue. The liberty was given with regard to the injury,

which has been allegedly suffered in the form of not been

allowed to work. Para 10 of the rejoinder of the petitioner,

filed in the first petition has been quoted in para 4 of the

judgment of the special appeal. In it, the petitioner had

stated that, in fact, he was paid salary in the school. He

worked in the school.

11. It is true that in the second petition the Court

gave a liberty to the petitioner to make a representation,

but the judgment dated 07.01.2020, passed in the second

petition cannot override the judgment passed in the first

petition and importantly, the judgment passed on

05.05.2016 in the special appeal. The issue has been

decided finally by this Court. The judgment dated

05.05.2016, passed in the Special Appeal No.83 of 2016,

has attained finality. The issue cannot be agitated further.

Therefore, this Court does not see any reason to

reconsider the controversy. Accordingly, the petition

deserves to be dismissed.

12. The petition is dismissed.

(Ravindra Maithani, J.) 17.08.2022 Sanjay