Krishna Nand Shukla vs Director of Higher Education Allahabad and Others

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.2544-2545 OF 2019 (arising out of SLP(C) Nos.16537-16538 of 2016)

KRISHNA NAND SHUKLA .... APPELLANT(S)

VERSUS

DIRECTOR OF HIGHER EDUCATION ALLAHABAD & ORS .... RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. These two appeals have been filed against judgment

of the Allahabad High Court dated 06.10.2015 dismissing

the Writ Petition No.29473 of 1999 and order dated

09.03.2016 rejecting Review Application No.421500 of

2015 filed by the appellant.

3. Brief facts of the case necessary to be noticed

for deciding the appeals are:

Signature Not Verified The appellant claims to be appointed on 02.08.1991 Digitally signed by SANJAY KUMAR Date: 2019.03.06

by the Management of Jawaharlal Nehru Smarak Post 17:06:14 IST Reason:

Graduate College (Affiliated to Gorakhpur University, 2

Gorakhpur. The appellant’s case is that an

advertisement was issued on 22.06.1991 in the

newspaper-Hindi Dainik, Gorakhpur in response to which

he applied for the post of Professor Defence Studies.

The Registrar of the University nominated an expert for

appointment. By its letter dated 09.10.1991, based on

the recommendation of the Selection Committee dated

22.07.1991 the appointment of the appellant was

approved on ad hoc basis by the University for a period

of six months or until a regular teacher is selected

by the Commission, whichever was earlier. By a

subsequent letter dated 29.11.1991 ad hoc appointment

of appellant was re-approved until a candidate duly

selected by the Selection Commission takes charge on

the post. The appellant’s further case is that by

letter dated 09.02.1996 a post of Lecturer Military

Science was created in the College. Appellant’s case

was that he received salary from the College till

April, 1998 and thereafter due to the dispute between

Committee of Management his salary was not paid. Writ

Petition No.29473 of 1999 was filed by the appellant

in the High Court seeking a writ of mandamus commanding 3

the respondents to pay salary to the petitioner on

month to month basis as Lecturer, Military Science and

not to interfere in the functioning of the petitioner

as Lecturer, Military Science. An interim order was

passed on 20.07.1999 in pursuance of which salary was

started being paid to the appellant.

4. A counter-affidavit was filed by Assistant

Director of Education in the writ petition where the

claim of the appellant was refuted and it was mentioned

that the claim of the appellant had already been

rejected by order dated 28.07.2005. It was pleaded that

although appellant claimed his appointment as ad hoc

Lecturer, Military Science on 02.08.1991 whereas post

for Military Science was created only on 09.02.1996.

The State has no liability to pay salary in view of the

provision of the U.P. State Universities Act, 1973,

Section 60E and 60A(vi). It was also pleaded that the

petitioner was not appointed following the due

procedure. The writ petition was dismissed by the

Division Bench vide its judgment dated 06.10.2015. The

High Court referred to paragraph 3(h) and 3(i) of the

counter-affidavit and paragraph 6 of the rejoinder- 4

affidavit of the petitioner. The High Court held that

the appointment made without advertisement is void.

Challenging the order dated 06.10.2015 an SLP was filed

by the appellant in this Court. The SLP was dismissed

by this Court on 30.11.2015 by following order:

“Learned counsel for the petitioner says that there is an error apparent on the face of the record inasmuch as there is no paragraph 3(i) in the counter affidavit filed by the State Government nor is there any paragraph 6 of the rejoinder affidavit, as quoted in the impugned order. He says that he would like to file a review petition.

Liberty granted.

The special leave petition is dismissed as withdrawn.

In case, the review petition is dismissed, the petitioner is at liberty to challenge the impugned order before this Court.”

5. After the above order of this Court dated

30.11.2015 the appellant filed a review application in

the High Court. The review application has been

dismissed by the High Court by a non-speaking order

dated 09.03.2016. The appellant aggrieved by the order

dismissing the review application as well as the main 5

judgment dated 06.10.2015 dismissing the writ petition

has filed these two appeals.

6. Shri Vishwajit Singh, learned counsel for the

appellant submits that the writ petition was dismissed

by the High Court by referring to pleadings in some

other writ petition. In the writ petition filed by the

appellant, counter-affidavit was filed by one Dr. R.R.

Yadav which is brought on the record of these appeals

as Annexure-P14. In the counter-affidavit, there are

no paragraphs 3(h) and 3(i) whereas the High Court in

the impugned judgment dated 06.10.2015 referred to

paragraphs 3(h) and 3(i) of the counter-affidavit and

reply of the said paragraphs of the counter-affidavit

in paragraph 6 of the rejoinder-affidavit as quoted in

the impugned judgment was different.

7. Learned counsel submits that in the review

application appellant has taken grounds pointing out

apparent error but the review application was rejected

without considering the said grounds. Learned counsel

for the appellant submits that before the appointment

of the appellant vacancy was advertised, copies of one 6

of the advertisements dated 22.06.1991 in Hindi Dainik

is filed as Annexure P-1. He submits that appellant has

already filed a writ petition in the High Court for his

regularization being Writ Petition No.1704(SB) of 2013

which is pending at Lucknow Bench of the Allahabad High

Court. Learned counsel for the appellant submits that

the appellant has been working for more than two

decades the High Court committed an error in dismissing

the writ petition without adverting to the facts and

pleadings of the appellant’s writ petition.

8. Learned counsel for the State refuting the

submission of the appellant contends that the

appointment of the appellant was not made following

procedure as prescribed in law. He submits that the

High Court has rightly dismissed the writ petition of

the appellant.

9. We have considered the submissions of the parties

and perused the records.

10. The appellant claims ad hoc appointment on the post

of Lecturer, Military Science in a Post Graduate

College Affiliated to the Gorakhpur University. The 7

submission of the learned counsel for the appellant is

that paragraphs of the counter-affidavit i.e. 3(h) and

3(i) as well as paragraph 6 of the rejoinder-affidavit

in the writ petition which has been referred to and

relied by the High Court for dismissing the writ

petition are not present in the counter-affidavit filed

to the writ petition of the appellant and the

rejoinder-affidavit filed by the appellant. The

appellant has brought on the record the copy of

counter-affidavit as Annexure-P14. In the counter-

affidavit has paragraph 3 upto sub-paragraph ‘g.’ only.

There are no paragraphs 3(h) and 3(i) in the counter-

affidavit of Dr. R.R. Yadav, Assistant Director in the

Directorate of Higher Education, U.P., Allahabad filed

in the writ petition filed by the appellant. In the

judgment of the High Court paragraph 6 of the

rejoinder-affidavit has been extracted which was

claimed to be reply to paragraph 3(h) and 3(i). The

appellant filed rejoinder-affidavit in his writ

petition which is brought on record as Annexure-P15. 8

In paragraph 6 of the rejoinder-affidavit filed by the

appellant following has been pleaded by the appellant:

“6. That in reply to the contents of paragraph No.3(c) of the counter-affidavit it is submitted that the petitioner was appointed on 06.08.1991 as Lecturer in Military Science and against the said post the petitioner was adjusted and the petitioner was continuing her salary and getting the salary and all emoluments including the G.P.F. and financial approval has been granted by the Respondent No.1 For kind consideration of this Hon’ble Court a true copy of the order of financial approval dated 12.11.2001 granted by the Respondent No.1 is being filed herewith and is marked as Annexure No.R.A.-2 to this Rejoinder Affidavit.”

11. The paragraph 6 of the rejoinder-affidavit as

quoted in the impugned judgment dated 06.10.2015 is

entirely different. As noted above, before this Court

an SLP was filed by the appellant in which the above

argument was addressed and this Court dismissed the SLP

by permitting the appellant to withdraw the SLP to file

a review petition before the High Court. A review

application being No.421500 of 2015 was filed where 9

following grounds apart from other grounds have been

taken:

“1. Because there is an error apparent on the face of the record inasmuch as there is no paragraph 3(i) in the counter-

affidavit filed by the Respondent No.01 and 02 jointly nor is there any paragraph 6 of the rejoinder-affidavit, as quoted in the impugned order dated 06.10.2015.

2. Because there is an error apartment on the fact of the petitioner and issue date of appointment letter did not match with the record of the writ petition No.29473 of 1999 as mentioned in impugned order dated 06.10.2015.

3. Because it is relevant to state here before the Hon’ble Court that the petitioner’s writ petition No.29473 of 1999 disposed by the Hon’ble Court without hearing and examine the facts and evidence of the petition. The impugned order dated 06.10.2015 is the same copy of order passed on 06.10.2015 in writ petition No.29474 of 1999 (Dr. Triyogi Nath vs. Director of Higher Education & others), while date & events regarding the appointment and contents of counter-

affidavit, rejoinder-affidavit & supplementary affidavit are absolutely different.”

12. Although above grounds specifically were taken by

the appellant in the review application but the High

Court by non-speaking order rejected the review 10

application on 09.03.2016. As per the liberty earlier

granted to the appellant he has again come up in these

appeals challenging both the orders of the High Court.

13. From the records it appears that along with the

Writ Petition No. 29473 of 1999 filed by the appellant

another writ petition being No.29474 of 1999 (Dr.

Triyogi Nath vs. Director of Higher Education & others)

was connected and heard. It appears while deciding writ

petition of the appellant the paragraph 3(h) and 3(i)

of the counter-affidavit and paragraph 6 in Writ

Petition No.29474 of 1999 has been referred to.

14. The High Court unless looks into the facts of the

appellant’s case and pleadings made therein the writ

petition could not have been decided. It is relevant

to notice that the error committed by the High Court

in deciding the writ petition on 06.10.2015 was brought

into the notice of the High Court by filing detailed

review application after withdrawing SLP from this

Court but the review application was dismissed by non-

speaking order without adverting to the specific

grounds raised in the review application. We are of the 11

view that the judgment of the High Court deciding Writ

Petition No.29473 of 1999 without referring to the

pleadings in the writ petition i.e. pleadings in the

counter-affidavit and rejoinder-affidavit, cannot be

upheld.

15. We are of the view that ends of justice would be

served in setting aside the judgment and order of the

High court dated 06.10.2015 and 09.03.2016 and

remitting the matter to the High Court to decide the

writ petition afresh on the basis of the pleadings on

the record. We make it clear that in the facts and

circumstances of the case we have neither adverted to

the merits of the claim of the appellant nor have

expressed any opinion on the merits of the claim. The

High Court shall now proceed to decide the writ

petition afresh on merits in accordance with law. It

goes without saying that claim of petitioner for

payment of salary or claim for regularization as

pending in W.P.No.1704(SB) of 2013 shall be dependent

on the outcome of Writ Petition No.29473 of 1999. The 12

judgment dated 06.10.2015 and order dated 09.03.2016

are set aside. The appeals are disposed of accordingly.

...............................J. ( ASHOK BHUSHAN )

...............................J. ( K.M.JOSEPH) NEW DELHI, MARCH 06, 2019.