Vishnu Saran Pandey vs Joint Dir. Of Education .

ITEM No. 1D Court No. 3 SECTION XIIA (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 9097 of 2014 @ SLP(C) No. 21003 of 2006

VISHNU SHARAN PANDEY Appellant(s)

VERSUS

JOINT DIR. OF EDUCATION AND ORS. Respondent(s)

Date : 23/09/2014 This appeal was called on for judgment today.

For Appellant(s) Ms.Asha G.Nair, Adv.

For Respondent(s) Mr.K.S. Rana,Adv.

Mr.Manoj K.Mishra, Adv.

UPON hearing the counsel the Court made the following O R D E R

Hon'ble Mrs. Justice R.Banumathi pronounced Judgment of the Bench comprising Hon'ble Mr. Justice T.S.Thakur and Hon'ble Mrs. Justice R.Banumathi Leave granted The appeal is allowed in terms of the signed reportable judgment.

(Shashi Sareen) (Veena Khera) Signature Not Verified Court Master Court Master Digitally signed by Shashi Sareen Date: 2014.09.26 (Signed reportable judgment is placed on the file) 05:36:05 ALMT Reason: 2

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9097 OF 2014 (Arising out of SLP (Civil) No.21003/2006)

VISHNU SHARAN PANDEY ...Appellant

Versus

JOINT DIRECTOR OF EDUCATION & ORS. ...Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of judgment dated 15.11.2006

passed by the Allahabad High Court in CMWP No. 8512/2002 in

and by which the High Court has quashed the Order dated 4.2.2002

passed by the Joint Director of Education, Gorakhpur and held that

the 3rd respondent was senior to the appellant for holding the post of

adhoc Principal and also held that the Order dated 4.2.1991 passed 3

by District Inspector of Schools, Deoria, as relied upon by the

appellant is a fraudulent one and directing recovery of the entire

salary paid to him for the period subsequent to 24.7.1976.

3. Appellant claims to have been appointed on temporary

basis as a Lecturer in Sociology in 5 th respondent -college on

1.10.1972 and was appointed in the substantive post on 1.01.1973.

The appointment of the appellant as a Lecturer in Sociology and his

continuance had a chequered career for about two decades. CMWP

No.8512/2002 was filed by the appellant in the High Court, mainly

raising the issue of seniority for holding the post of adhoc Principal

of the 5 th respondent college. Dr. Lalloo Pathak, Principal of

5th respondent - Inter College died on 13.6.1999, while still in service

and on his demise, the post of principal became vacant from

13.6.1999. The Managing Committee by its Resolution No. 2 dated

13.6.1999, decided to appoint the senior most lecturer, Sri Lal

Mohan Singh- 4th respondent, on the post of principal on adhoc

basis and the same was sent to the authorities for approval. The

Managing Committee of 5 th respondent – college changed its

earlier resolution dated 13.06.1999 and sent another decision

appointing 3 rd respondent– Dr. Prem Sunder Singh as the

officiating principal and thus the matter of appointment on the

vacant post of principal has been under dispute. A Writ Petition 4

No. 39747/1999 was filed by Dr. Prem Sunder Singh in the Allahabad

High Court and the High Court directed the parties to approach the

concerned authorities. Accordingly, District Inspector of Schools,

Deoria heard 3rd and 4th respondents and upon perusal of the

representation and the documents produced by them by Order dated

21.10.1999, ordered that Sri Lal Mohan Singh – 4 th respondent being

the senior most lecturer of the college is entitled to take charge as

officiating principal.

4. Challenging the order of District Inspector of Schools,

Deoria and claiming that he being the senior is entitled to take charge

as officiating principal, the appellant filed appeal before the Joint

Director of Education, Gorakhpur. The Joint Director of Education

afforded opportunity to the appellant and also heard 3 rd and 4th

respondents and thereafter, passed a detailed order dated 4.2.2002,

declaring that the 3rd respondent- Dr. Prem Sunder Singh is the

senior most lecturer in 5th respondent–college and is entitled to hold

the charge as officiating principal. The above Order of the Joint

Director of Education dated 4.2.2002 was challenged by the appellant

in CMWP No.8512/2002, contending that he is senior to respondents

3 and 4 and claiming that he is entitled to hold the post of adhoc

principal in 5th respondent college. In the writ petition, the High

Court had gone into the question of legality of the appointment of the 5

appellant and his continuance as a Lecturer of Sociology in 5 th

respondent - college and observed that the appellant was able

to obtain a fraudulent order dated 4.02.1991, on the basis of which

he has been receiving salary from the State. On the above findings,

the High Court directed the appellant to refund the entire salary paid

to him for the period subsequent to 24.7.1976 and in case the same

is not refunded, the same was to be recovered from him as arrears of

land revenue.

5. Mr. S.R. Singh, learned senior counsel appearing for the

appellant submitted that the issue involved in the writ petition was

the question of seniority of the rival parties as to, who was to be

appointed as adhoc principal in 5th respondent college. Therefore,

High Court was not justified in reopening the question regarding the

validity of the appellant’s appointment as a lecturer in the institution

and had erred in holding that the appellant’s appointment as a

Lecturer in Sociology was not a valid one. Learned Senior Counsel

further submitted that the order of Deputy Director of Education

dated 24.11.1978 was passed on the misconception that Sociology

was not a recognized subject in the 5th respondent college; but as per

Order dated 8.8.1972 of the Secretary of U.P. Board of High School

and Intermediate Education, the subject Sociology was sanctioned in

the 5th respondent-college and by virtue of the Order of District 6

Inspector of Schools, dated 4.2.1991 the appellant rightly rejoined

the post and the said order dated 4.2.1991 has attained finality. It

was further submitted that the various orders passed by Courts and

the authorities were not considered by the High Court and without so

doing, the High Court erred in saying that the appellant obtained an

illegal and fraudulent order of appointment and ordering recovery of

salary.

6. Learned counsel for the respondents, supporting the order

of the High Court, submitted that the appellant managed to obtain

the order dated 4.2.1991 from the District Inspector of Schools and

before passing the order, neither any notice was issued to the

concerned parties nor District Inspector of Schools has considered

the effect of the orders and the appellant cannot rely upon the said

order dated 4.2.1991.

7. We have given our thoughtful consideration to the rival

submissions and carefully perused the materials on record.

8. In Writ Petition No.8512/2002 before the High Court, what

was under challenge was the order dated 4.2.2002 passed by the

Joint Director of Education and the issue involved was the question of

seniority of the appellant and respondent Nos. 3 and 4 and as to who

was entitled to be appointed as adhoc principal of the 5 th

respondent-college. But the High Court appears to have mainly 7

focussed the discussion on the validity of the appointment of the

appellant and the order dated 4.2.1991.

9. The order dated 4.2.1991 passed by District Inspector of

Schools (DIS) has been held to be fraudulent by the High Court

mainly on two grounds:- firstly, in the teeth of the order of the Deputy

Director of Education dated 24.11.1978, passed on the premise that

the subject ‘Sociology’ was not a recognized subject in the 5 th

respondent college. Secondly, the order dated 4.2.1991 was passed

by the then District Inspector of Schools, on the eve of his retirement

without hearing the 5th respondent- management and the concerned

authorities.

10. Appellant contends that the subject ‘Sociology’ was then a

recognized subject in the 5th respondent-college and he was appointed

in the substantive post on 1.1.1973 and confirmed on the said post

on 1.1.1974. Per contra, 5 th respondent college contends that

‘Sociology’ was not a recognized subject in 5 th respondent college and

the Managing Committee terminated the appellant from service

finding that the appointment of the appellant was illegal by the order

dated 21.2.1976. The appellant challenged the termination order by

filing Writ Petition No.1265/1976 which was dismissed by Order

dated 15.3.1978 on the ground of availability of alternative remedy.

The appeal filed by the appellant before the Deputy Director of 8

Education, VIIth Region, Gorakhpur came to be dismissed by the

order dated 24.11.1978, on the premise that Sociology was not a

recognized subject.

11. Ever since 1976, there had been a spate of litigation

between the appellant and the Management and the authorities.

According to the appellant, he filed a case bearing No. 397/1982 in

the Court of Munsif-Magistrate, Deoria. In the said case, Sri

Nageshwar Nath Srivastava–Assistant in the Intermediate Education

Board is said to have produced the document paper No.453 of his

Office and letter No.11325 dated 8.8.1972 as per which the 5 th

respondent–college was given recognition for intermediate

examination as well as recognition for some subjects including

Sociology. The said letter No.I.v./Recognition/11325 Allahabad dated

8.8.1972 is placed on record as Annexure-P/1 filed in SLP paperbook.

12. The appellant had also filed Writ Petition being CMWP

No.1915/1983, which was disposed of by order dated 28.3.1984

directing the appellant to approach the concerned authorities.

Pursuant to the said order, the appellant submitted his

representation dated 11.4.1984 to the Deputy Director of Education

praying to recall his earlier order dated 24.11.1978. Further case of

the appellant is that the said representation dated 11.4.1984 was

forwarded to District Inspector of Schools, who upon consideration of 9

all the materials, passed the Order dated 4.2.1991. The learned

Senior Counsel for the appellant submitted that the said Order dated

4.2.1991 was acted upon by the authorities and the 5 th

respondent-college and the said order has attained finality. 13.

Since the Order dated 4.2.2002 passed by the Joint Director of

Education was under challenge in CMWP No. 8512/2002, it is

not known whether the various orders pertaining to the appointment

of the appellant were placed on record before the High Court. It

appears that the High Court had not gone into the nuances of the

spate of litigations between the appellant and the Management and

the effect of the orders passed in those litigations. Any finding on the

correctness of the appellant’s appointment seriously affects the right

of the appellant. While the High Court proceeded to examine the

correctness of the order dated 4.2.1991, in our view, the High Court

ought to have called upon the parties to produce all the materials

pertaining to the earlier litigations and examined the effect of those

orders on the appointment of the appellant. We find many issues

arising between the parties remain unanswered and many areas

remaining obscure.

14. Upon consideration of rival submissions and the materials,

the following among other issues arise for consideration:- (a) Whether

the subject ‘Sociology’ was then a recognized subject in 5 th 10

respondent college and whether the appellant was appointed in a

substantive post; (b) the effect of decree and orders passed in Case

No.397/1982, W.P.No.1915/1983, C.S.No.66/1991 and

W.P.No.31716/1991 vis-à-vis the order dated 24.11.1978 passed

by Deputy Director of Education and order dated 4.2.1991 passed by

District Inspector of Schools; (c) whether the Order dated

4.2.1991 was acted upon by all concerned including the 5 th

respondent-management and the authorities and whether the said

order has attained finality as contended by the appellant; (d) whether

the appellant has been actually working from 4.2.1991. We are of

the view that instead of this Court by itself examining the above

issues, it would be better if the matter is remitted back to the High

Court to examine the same.

15. In the result, the impugned order dated 15.11.2006, passed

by the High Court in CMWP No.8512/2002 is set aside and the

appeal is allowed. The matter is remitted back to the High Court for

consideration of the matter afresh in the light of the above discussion.

The High Court shall afford an opportunity of hearing to all concerned

and proceed with the matter afresh. Considering the age of the

appellant and the fact that the writ petition is of the year 2002, we

request the High Court to expedite the hearing and dispose of the

same at an early date, preferably within a period of nine months from 11

the date of receipt of the copy of this Order. We make it clear that we

have not expressed any opinion on the merits of the matter. In the

facts and circumstances of the case, no order as to costs.

………………………J. (T.S. Thakur)

………………………J. (R. Banumathi)

New Delhi;

September 23, 2014