VIJAI PRATAP OJHA Vs. STATE OF U P

JUDGEMENT

(1.) SHISHIR Kumar, J. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 25-9-2002 passed by District Basic Education Officer, Ballia and in consequence thereof Communication Letter dated 26-9-2002 issued by the Manager of the Committee of Management of the Institution concerned (Annexures-7 and 8 respectively) to the writ petition.

(2.) THE facts arising out of the writ petition are that there is a recognized Junior High School known as Rashtriya Balika Vidyalaya Dubhar, District-Ballia. THE institution is engaged in imparting education up to Junior High School level and the duly elected Committee of Management is managing the same. In order to make selection and appointment on the post of Assistant Teacher, a vacancy in question was advertised by the Manager of the Committee of Management of the institution on 22-8-1985 and 24-8- 1985 respectively in two newspapers 'janwarta' and 'bhrigukshetra'. In pursuance of the aforesaid advertisement, the petitioner applied for consideration of his candidature and the petitioner was selected by the Selection Committee where the nominee of the District Basic Education Officer was present and on the basis of merit, the petitioner was declared selected and the appointment letter was issued in favour of the petitioner on 15-10-1985 and the said appointment of the petitioner was duly approved by the Additional District Basic Education Officer, Ballia on 15-10-1985. On 15-6-1988 the petitioner was confirmed and the competent authority approved the said order. Subsequently, the petitioner was accorded selection grade vide letter dated 19-2-1996 and since then the petitioner is performing and discharging his duties as a substantively appointed employee in the institution.

(3.) IN support of his contention the Counsel for the petitioner has placed reliance upon a judgment of Apex Court reported in JT 2001 (9) SC 584, Shiv Kumar Tiwari (dead) by L. Rs. v. Jagat Narain Rai & Ors. , and submitted that it has clearly held that the judgment and decree could not be pressed into service to the detriment of right of parties and it requires no serious exercise to place on record the position of law that the judgment/decree/order of Courts or any other authority binds only the parties to it or their privies when it concern the rights of parties and such proceedings purport to be adjudicated, also the rights of contesting parties by means of an adversarial process. Even assuming that the communication of the Basic Education Officer proceed to accept its binding nature legitimately made detriment and prejudice of the parties. Relevant paras 6 and 7 of the aforesaid case are quoted below : " (6) There is no controversy that the institution had only one sanctioned post of lecturer in mathematics as on date and if the work load and sanctioned strength really required more than one, they should have moved the competent authorities in accordance with law and obtained proper sanction for more than one. The learned single Judge in the High Court has adverted to certain facts, stated to be on the basis of records, that the competent authority has not only been according approval of the appellant on temporary basis, academic year wise, but the management had been calling for applications and the appellant had been applying every time and it is only in 1973 when his period was about to expire, the appellant moved the civil Court for relief taking altogether a different stand. Though the appellant should have known there could not have been any appointment for any period or duration without the approval of the competent authority and the relief sought for involved a decision on the exercise of powers already made and to be made thereafter by such authorities, the appellant did not care to implead the department in the suit or even the first respondent in the pending suit when he came to be appointed, as admitted in para 2 of the written submission of the management. "in the meanwhile, the respondent No. 1, Shri Jagat Narain Rai, had been appointed by a regular selection process by an order dated 6-9-1973 after obtaining the approval of the department, he was appointed regularly" and also as conceded in para III of written submissions on behalf of the appellant ". . . . . . At the same time, it cannot also be disputed that the respondent Shri Jagat Narain Rai has also worked as a mathematics lecturer with effect from 6th September, 1973, it is also undisputed that there is only one sanctioned post of mathematics lecturer against which two persons have been working with full work-load". The least said about the manner of consideration and disposal given in the judgment of the civil Court in Suit No. 108 of 1973 is better. Such a judgment could not be pressed into service to the detriment of the rights of the first respondent and it requires no serious exercise to place on record the position of law that the judgment/decree/order of Courts or any other authority binds only the parties to it, or their privies when it concern the rights of parties and such proceedings purport to be adjudicated, also the rights of contesting parties by means of an adversarial process. Even assuming that the communication of the Deputy Director proceed to accept its binding nature, it could not have been legitimately made to the detriment and prejudice of the first respondent and it is futile for the appellant or the management to base any right on that alone. The plea that the department or the first respondent should have filed an appeal, though not parties to the suit, at any rate, does not lie in the mouth of either the appellant or the management to be taken. Though it would have been open to them to file an appeal with the leave of the Court, there is no duty or obligation cast on them to do on pain of distress when in law they could also legitimately ignore, as not affecting them. The judgment of the Civil Court in suit No. 108 of 1973 has no value or merit for asserting any claim or right against the first respondent or the officers of the education department. (7) That apart, on coming to know of the orders of the Deputy Director dated 9-11-1979, the first respondent filed CMWP No. 9255 of 1979 and obtained interim orders of stay on 16-11-1979 and the same was said to have been confirmed also on 23-2-1981. IN the teeth of the one only of sanctioned post, there was no justification whatsoever either in law or otherwise for the college management to have allowed the appellant to continue in serviced or availed of his services, as they claim and the appellant could not also after the said orders of the High Court legitimately claim to continue in office and worked as he claimed without receiving payment of any kind, as alleged, for such a long period. It is not known with what hopes or aim such things have been allowed to take place by them. There is no rhyme or reasons for them now to plead for or claim any equities or throw blame upon others and use it as a cover to make such claims as cannot be countenanced in a Court of law. While that be the position, the management could not take any exception to the order of the learned single Judge holding that the decree of the civil Court being only against the society, its president and manager by name and if they have permitted him to function, they are liable to pay the salary personally, leaving at the same time liberty with the appellant, if so advised, to proceed against them. It could, therefore, be seen that the said observation became inevitably necessary in the light of the rights declared in favour of first respondent while allowing his writ petition and for rejecting as a consequence the writ petition filed by the appellant, without granting, at the same time, any relief against the management. The plea of estoppel sought to be pressed into service by the appellant as well as the college management against the department is not only misconceived but has no merit of acceptance when the very order of the Deputy Director choosing to accept the judgment to the detriment of the rights of the first respondent, came to be set aside in the writ proceedings instituted by the first respondent. Such a plea also fails to take into account the vital fact that the authorities of the education department, the Deputy Director, could not have legitimately chosen to accept a judgment to which he was not a party when such acceptance has the impact of directly and seriously prejudicing the rights of the first respondent who was also not made a party to the suit before the civil Court. "