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Awadhesh Narain Pandey v. D.I.O.S. & Others - WRIT - A No. 11319 of 1994 [2006] RD-AH 3194 (13 February 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).



Civil Misc. Writ Petition No. 11319 of 1994

Awadhesh Narain Pandey Vs. District Inspector of Schools,

                                    Varanasi and others.

Connected with

Civil Misc. Writ Petition No. 36019 of 2000

Kamal Kar Singh Vs.  Jt. Director of Education, and others

Hon'ble D.P. Singh, J.

Heard counsel for the parties.

Markandeya Higher Secondary School, Kaithi in Varanasi is a duly recognized and aided Intermediate College. In pursuance of a notice dated 12.11.1990 pasted on the notice board of the institution, the petitioner applied for adhoc appointment on a L.T. Grade post and vide a appointment letter dated 24.11.1990 he joined the institution on the same day. It is alleged that the papers with regard to his selection/appointment were sent to the District Inspector of Schools, Varanasi vide covering letter dated 26.11.1990. As the salary was not being paid, he preferred writ petition no. 28858 of 1994 but the same was dismissed vide order and judgment dated 29.1.1994 holding that no appointment on a substantive vacancy could be made without following due procedure provided in the First Removal of Difficulties Orders framed under U.P. Higher Secondary Education Service Commission Act, 1985. However, the petitioner has filed this second writ petition on the ground that other appointments like the petitioners have been made and approved and thus the judgment violates Article 14 and since in more than 1000 cases such adhoc teachers are continuing till regular selection, this Court in its earlier writ petition could not single out the petitioner and discriminate him and therefore the salary with effect from 24.11.1990 should be released in his favour.

After hearing the parties, the court found that no counter affidavit has been filed on behalf of the State respondent and that on the same cause of action this present writ petition has been filed and the petitioner has been able to draw salary, thus, it passed a detailed order on 25.8.2005 asking the Director of Education (Secondary) to conduct an enquiry and submit a report. For ready reference the order dated 25.8.2005 is quoted below.

" Heard Sri D.S.P. Singh, counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Sri Ram Niwas Singh, learned counsel appearing for the newly impleaded respondent.

This writ petition has been filed claiming the following reliefs:-

(a) to command an order in the nature and direction of mandamus directing the opposite parties to make the petitioner's due salary w.e.f. 24.11.1990 till now and in future in accordance with law.

(b) to pass any other and further suitable order as this Hon'ble Court deems fit and proper; and

(c) to allow this writ petition with cost in favour of the petitioner.

The case as set up in the writ petition is that the petitioner was granted adhoc appointment on 24.11.1990 in the Markandeya Ucchatar Madhyamic Vidyalaya, Kaithi, Varanasi and the entire paperswith regard to his appointment was sent by the management through a covering letter dated 26.11.1990 to the District Inspector of Schools for approval. In spite of reminders, no orders were passed and thus the petitioner filed a writ petition no. 28858 of 1994 which was dismissed in lemini but since certain grounds could not be taken in the earlier writ petition, therefore this present second petition was filed.

A Learned Single Judge of this Court vide order dated 25.3.1994 granted time to learned Standing Counsel to file counter affidavit and further directed the petitioner to serve the respondent no. 2 by registered post for which the steps were to be taken within a week. From the record, it is evident that no steps were taken by the petitioner in compliance of the aforesaid order. Simultaneously, the following order was passed on the stay application.

"Issue notice.

Let an interim mandamus be issued to the respondent no. 1 directing him to take decision in the matter of according approval of the appointment of the petitioner as recommended in the letter dated 26.11.1990 of the management Annexure-4 to the petition, within two months from the date a certified copy of this order is produced before him. In case the decision is in affirmative, the petitioner be paid his salary for the period he has worked or cause shall be shown by filing counter affidavit."

This petition has remained pending and no further orders have been passed. An impleadment application on behalf of the respondent no. 3 was filed on 17.1.2002 to be impleaded as respondent no. 3 supported by an affidavit, it was alleged in the affidavit that the applicant is a life member of the society which had established the aforesaid institution. He also alleged that though the earlier writ petition filed by the petitioner was dismissed by a reasoned order, and this fact was brought to the notice of the Educational Authorities, the petitioner was illegally being paid salary of the alleged post without any order in his favour. No counter affidavit to this application was filed. Thus the impleadment application was allowed on 9.12.2003.

It appears that the newly added respondent no. 3 had earlier filed writ petition no. 36019 of 2000 for a direction for appointing an Authorized Controller and also for a writ of quo warranto against the respondent no. 4, who is none other than the petitioner in this petition. Further relief for stoppage of salary and refund thereof was also sought. The aforesaid writ petition no. 36019 of 2000 and the present petition have been connected together vide order dated 9.12.2003.

After going through the record of both the petition, it is apparent that even though the claim of the petitioner was for approval of his appointment was rejected vide a detailed order dated 29.10.2004 passed in writ petition no. 28858 of 1994, he continued to function and receive salary from the State Exchequer.

On these facts, the Director of Education (Secondary), Allahabad is hereby directed to conduct an enquiry and submit a report to this court as to on which authority or basis the petitioner is being paid his salary. The report should be submitted to this Court before the next date fixed. Till the next date fixed the petitioner will not be paid any salary from the State Exchequer.

List on 27.9.2005 together with the connected petition before me."

Whereafter the Director has submitted his report holding that the appointment of the petitioner was wholly dehors the rules and in fact the claim of the petitioner for being appointed on the post vacated by Sri Heera Ram was also fraudulent as in his place Sri Ganga Dhar Mishra had been appointed and whose appointment was approved by the District Inspector Schools, Varanasi on 3.11.1974. In the aforesaid enquiry, the petitioner as well as the management were heard.

In pursuance of the enquiry report, an order was passed on 29.11.2005 asking the petitioner to show cause why the salary already paid to him be not recovered, in pursuance thereof he has filed his reply.

At this stage, it would be convenient to notice the reliefs claimed in this petition.

(a) to command an order in the nature and direction of mandamus directing the opposite parties to make the petitioner's due salary with effect from 24.11.1990 till now and in future in accordance with law;

(b) to pass any other and further suitable order as this Hon'ble Court deems fit and proper; and

(c) To allow this writ petition with cost in favour of the petitioner.

After passing of the order by this Court on 25.8.2005, the petitioner filed an amendment application on 24.10.2005 seeking to incorporate the following prayer in the writ petition.

"(aa) to issue a writ in the nature and direction of certiorari to quash para 5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 dated 31.7.1981 as ultra virus to its object as it was never acted upon and treated as ab initio void in State of U.P.

The first question which falls for determination is whether this second writ petition is maintainable on the same cause of action and relief as claimed in writ petition no. 28858 of 1994 which was dismissed by a reasoned order on 29.1.1994.

Learned counsel for the petitioner has urged that in earlier writ petition he was taken by surprise so far as the applicability of the First Removal of Difficulties Order is concerned and since he wanted to challenge its virus for which no foundation had been laid in the earlier writ petition, therefore second writ petition was maintainable.

The rules of this Court clearly prohibit such course of action. Rule 7 of Chapter XXII of the Allahabad High Court Rules 1952 provides that, where an application has been rejected, it shall not be competent for the applicant to move a second application on the same fact. This cardinal rule of public policy to discourage repeated filing of petition on same cause of action, which is also incorporated in Order 2 Rule 2 of the Code of Civil Procedure, are also applicable to writ proceedings. It is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments in B.N. Singh Vs. State of U.P; [1979 ALJ 1184]; Dr. Ramji Dwivedi Vs. State of and others [AIR 1984 SC 1506] equivalent to 1983 UPLBEC 426; Niranjan Rai Vs. District Inspector of Schools [(1991) 2 UPLBEC 1416; Sahib Ram Vs. State of Haryana [JT 1995(1) SC 24; Harish Chandra Srivastava Vs. State of U.P. and others [(1967) 3 UPLBEC 1840 (DB); Keshav Tripathi Vs. State of U.NP. and others [1997 ALJ 28 (DB) and S.L. Bathla Vs. State Bank of India [(1999) 1 UPLBEC 233]. This rule was succinctly explained in State of U.P. and another Vs. Labh Chand [(1993) 2 SCC 495] by the Apex Court in paragraph 20 as follows:-

"20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench...... of the same High Court, even if such dismissal was on the ground of laches or on the ground of non availing of alternative remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge......of the same court, it would encourage an unsuccessful writ petitioner to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge and another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting which the first writ petition of the same person was dismissed by the same court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to the accepted and followed as salutary rule in exercise of writ jurisdiction of courts."

Recently a Full Bench of our Court in the case of Surya Deo Mishra Vs. State of U.P. and others (Writ petition No. 12776 of 1999) has taken a similar view.

Let us examine the issue from another angle.

The principle of res judicata is a principle based on public policy. It is a species of the principle of estopple and even though it is incorporated in section 12 of the Civil Procedure Code,1908 it is applicable to proceedings under Article 226 of the Constitution. In Ishwar Dutt vs. Land Acquisition Collector [2005 (7) SCC 190], after considering large number of decision the Apex Court held that the principle of res judicate are fully applicable to writ proceedings and it has gone to hold that where an issue or cause of action between same set of parties is identical and that issue has been earlier decided, it cannot be re-opened in the same or other proceedings even though a new point may have been raised but which could have been raised earlier also.

In the present case, though, conveniently the petitioner has not quoted the reliefs claimed in the earlier writ petition, but from a perusal of the judgment dated 29.1.1994 it is apparent that the reliefs claimed in the earlier writ petition was for payment of salary from 24.11.1990 for the post of L.T. Grade teacher. Even assuming that the amended relief which is now sought to be added, after more than 12 years of its pendency, even then the second writ petition could not be maintainable because it was open to the petitioner to have claimed the relief for declaring paragraph 5 of the Removal of Difficulties Orders as ultra virus Article 14 of the Constitution of India. He cannot be allowed a second innings even on this new ground. Thus, in my opinion, this second writ petition on the same cause of action was not maintainable.

While noticing the facts, it has come on record that this Court was led into passing an interim mandamus on 25.3.1994 giving an opportunity to the District Inspector of Schools to reopen the matter with regard to grant of approval of the appointment of the petitioner as recommended by the Committee of Management through its letter dated 26.11.1990, though it had reached finality as no appeal against writ judgment dated 29.1.1994 was admittedly filed. In pursuance of the aforesaid misdirected interim mandamus, the District Inspector of Schools vide his order dated 6.7.1994 and has gone on to hold that the appointment of the petitioner was in conformity with the rules and granted financial approval. This order is in the teeth of the judgment dated 29.1.1994. There is nothing on record to show that the aforesaid judgment dated 29.1.1994 was ever brought to the notice of the District Inspector of Schools before he passed the order dated 6.7.1994. It is apparent that this order was never brought to his notice and this amounts to concealment of material fact and has the indices of committing fraud for unlawful gain. Though there is a mention in the writ petition with regard to the aforesaid judgment but it has been concealed and has not been annexed with the writ petition. It is not denied that no appeal against the judgment and order dated 29.1.1994 was ever preferred by the petitioner. Thus, the action of payment of salary from State Exchequer to the petitioner was a result of misrepresentation and fraud committed by the petitioner knowingly. In Grindlays Bank Limited Vs. IOC [(1980) 2 SCC 191], the Supreme Court affirmed the principle that any undeserved and unfair advantage obtained by a party invoking the jurisdiction of the Court must be neutralized. In South Eastern Coalfields Ltd. Vs. State of M.P. [2003 (8) SCC 648] it has reiterated the principle that none should suffer by an act of court and explained the concept of restitution. It held:-

"Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced."

 It is settled law that if a party gains or is benefited by interim order obtained on the basis of fraud or misrepresentation, while dismissing the writ petition, the Court is empowered to place the parties on the same point of time when the writ petition was filed. In the judgment dated 29.1.1994 this Court has held that the petitioner's appointment was illegal and could not have been made by the management in view of paragraph 5 of the Removal of Difficulties Order where only the District Inspector of Schools could have invited application after advertisement in two daily newspapers and after considering the relative quality points of the candidates, could recommend the case of the best. Since the petitioner purposely did not file the copy of the judgment alongwith this writ petition nor disclosed the contents of the judgment to the District Inspector of Schools, by these misrepresentations and fraudulent acts he has been able to obtain salary for the last more than 10 years and that too on the basis of an order passed in writ petition which was otherwise not maintainable. Therefore, the petitioner is liable to refund all the salary received by him from State Exchequer within three months from today. In case the amounts are not deposited through demand draft with the District Inspector of Schools, Varanasi within the time prescribed, the amount shall be recovered from the petitioner as arrears of land revenue by the Collector, Varanasi within further period of 2 months and credited in the relevant account of the State. Both the authorities are directed to apprise the Court of the compliance of this Order immediately through the Registrar General of this Court.

Let a copy of this order be sent to the Collector, Varanasi and District Inspector of Schools, Varanasi for compliance.

In view of the discussion hereinabove, writ petition no. 11319 of 1994 is dismissed while writ petition no. 36019 of 2000 is disposed off in terms of this judgment. The resultant order dated 6.7.1994 is also quashed.




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