KRISHNA NAND SHUKLA versus DIRECTOR OF HIGHER EDUCATION ALLAHABAD & ORS. on 6 March 2019

[2019] 4 S.C.R. 183

KRISHNA NAND SHUKLA

v.

DIRECTOR OF HIGHER EDUCATION ALLAHABAD & ORS.

(Civil Appeal Nos. 2544-2545 of 2019)

MARCH 06, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Pleadings – Writ petition was filed by the appellant in theHigh Court seeking a writ of mandamus commanding the respondent-University to pay him salary as Lecturer – Writ petition dismissedby the High Court on basis of the paragraph 3(h) and 3(i) of thecounter-affidavit and paragraph 6 of the rejoinder – Reviewapplication was also dismissed – On appeal, held: From the recordsit appears that along with the writ petition of the appellant anotherpetition was connected and heard – While deciding the writ petitionof the appellant paragraph 3(h) and 3(i) of the counter-affidavitand paragraph 6 of another writ petition was referred to – Thejudgment of the High Court deciding writ petition of appellantwithout referring to the pleadings in the concerned writ petitioncannot be upheld – Thus, judgment and order of the High Court setaside and matter remitted to the High Court to decide the writ petitionafresh on the basis of the pleadings on the record.

Disposing of the appeals, the Court

HELD: 1. The appellant claims ad hoc appointment on thepost of Lecturer, Military Science in a Post Graduate CollegeAffiliated to the Gorakhpur University. The submission ofappellant is that paragraphs of the counter-affidavit i.e. 3(h) and3(i) as well as paragraph 6 of the rejoinder-affidavit in the writpetition which has been referred to and relied by the High Courtfor 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. [Para 10][187-D]

2. From the records it appears that along with the WritPetition No. 29473 of 1999 filed by the appellant another writpetition being No.29474 of 1999 was connected and heard. Itappears while deciding writ petition of the appellant the paragraph

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[2019] 4 S.C.R.

A3(h) and 3(i) of the counter-affidavit and paragraph 6 in WritPetition No.29474 of 1999 has been referred to. [Para 13][188-H; 189-A]

3. The High Court unless looks into the facts of theappellant’s case and pleadings made therein the writ petition couldBnot have been decided. It is relevant to notice that the errorcommitted by the High Court in deciding the writ petition on06.10.2015 was brought into the notice of the High Court by filingdetailed review application after withdrawing SLP from this Courtbut the review application was dismissed by non-speaking orderwithout adverting to the specific grounds raised in the reviewCapplication. The judgment of the High Court deciding WritPetition No.29473 of 1999 without referring to the pleadings inthe writ petition i.e. pleadings in the counter-affidavit andrejoinder-affidavit, cannot be upheld. [Para 14][189-B, C]

4. Thus, the ends of justice would be served in settingDaside the judgment and order of the High court dated 06.10.2015and 09.03.2016 and remitting the matter to the High Court todecide the writ petition afresh on the basis of the pleadings onthe record. [Para 15][189-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2544-E2545 of 2019.

From the Judgment and Order dated 06.10.2015 of the HighCourt of Judicature at Allahabad in Writ Petition-A No. 29473 of 1999and order dated 09.03.2016 in Review Application No. 421500 of 2015.

Vishwajit Singh, Pankaj Singh, Ms. Ridhima Singh, Mrs. VeeraFKaul Singh, Ms. Vijaya Singh (for M/S. Vidhi International), Advs. forthe Appellant.

Sanjay Kumar Tyagi, Ajay Kumar Pandey, Sandeep Singh, Advs.for the Respondents.

GThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

2. These two appeals have been filed against judgment of theAllahabad High Court dated 06.10.2015 dismissing the Writ PetitionNo.29473 of 1999 and order dated 09.03.2016 rejecting ReviewHApplication No.421500 of 2015 filed by the appellant.

3. Brief facts of the case necessary to be noticed for deciding theappeals are:

The appellant claims to be appointed on 02.08.1991 by theManagement of Jawaharlal Nehru Smarak Post Graduate College(Affiliated to Gorakhpur University, Gorakhpur. The appellant’s case isthat an advertisement was issued on 22.06.1991 in the newspaper-HindiDainik, Gorakhpur in response to which he applied for the post ofProfessor Defence Studies. The Registrar of the University nominatedan expert for appointment. By its letter dated 09.10.1991, based on therecommendation of the Selection Committee dated 22.07.1991 theappointment of the appellant was approved on ad hoc basis by theUniversity for a period of six months or until a regular teacher is selectedby the Commission, whichever was earlier. By a subsequent letter dated29.11.1991 ad hoc appointment of appellant was re-approved until acandidate duly selected by the Selection Commission takes charge onthe post. The appellant’s further case is that by letter dated 09.02.1996a post of Lecturer Military Science was created in the College. Appellant’scase was that he received salary from the College till April, 1998 andthereafter due to the dispute between Committee of Management hissalary was not paid. Writ Petition No.29473 of 1999 was filed by theappellant in the High Court seeking a writ of mandamus commandingthe respondents to pay salary to the petitioner on month to month basisas Lecturer, Military Science and not to interfere in the functioning ofthe petitioner as Lecturer, Military Science. An interim order was passedon 20.07.1999 in pursuance of which salary was started being paid tothe appellant.

4. A counter-affidavit was filed by Assistant Director of Educationin the writ petition where the claim of the appellant was refuted and itwas mentioned that the claim of the appellant had already been rejectedby order dated 28.07.2005. It was pleaded that although appellant claimedhis appointment as ad hoc Lecturer, Military Science on 02.08.1991whereas post for Military Science was created only on 09.02.1996. TheState 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 pleadedthat the petitioner was not appointed following the due procedure. Thewrit petition was dismissed by the Division Bench vide its judgment dated06.10.2015. The High Court referred to paragraph 3(h) and 3(i) of thecounter-affidavit and paragraph 6 of the rejoinder-affidavit of the ABC

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Apetitioner. The High Court held that the appointment made withoutadvertisement is void. Challenging the order dated 06.10.2015 an SLPwas filed by the appellant in this Court. The SLP was dismissed by thisCourt on 30.11.2015 by following order:

“Learned counsel for the petitioner says that there is an errorBapparent on the face of the record inasmuch as there is noparagraph 3(i) in the counter affidavit filed by the State Governmentnor is there any paragraph 6 of the rejoinder affidavit, as quotedin the impugned order. He says that he would like to file a reviewpetition.

CLiberty granted.

The special leave petition is dismissed as withdrawn.

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

5. After the above order of this Court dated 30.11.2015 theDappellant filed a review application in the High Court. The reviewapplication has been dismissed by the High Court by a non-speakingorder dated 09.03.2016. The appellant aggrieved by the order dismissingthe review application as well as the main judgment dated 06.10.2015dismissing the writ petition has filed these two appeals.E

6. Shri Vishwajit Singh, learned counsel for the appellant submitsthat the writ petition was dismissed by the High Court by referring topleadings in some other writ petition. In the writ petition filed by theappellant, counter-affidavit was filed by one Dr. R.R. Yadav which isbrought on the record of these appeals as Annexure-P14. In the counter-Faffidavit, there are no paragraphs 3(h) and 3(i) whereas the High Courtin 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 thecounter-affidavit in paragraph 6 of the rejoinder-affidavit as quoted inthe impugned judgment was different.

G7. Learned counsel submits that in the review application appellanthas taken grounds pointing out apparent error but the review applicationwas rejected without considering the said grounds. Learned counsel forthe appellant submits that before the appointment of the appellant vacancywas advertised, copies of one of the advertisements dated 22.06.1991 inHindi Dainik is filed as Annexure P-1. He submits that appellant hasH

already filed a writ petition in the High Court for his regularization beingWrit Petition No.1704(SB) of 2013 which is pending at Lucknow Benchof the Allahabad High Court. Learned counsel for the appellant submitsthat the appellant has been working for more than two decades the HighCourt committed an error in dismissing the writ petition without advertingto the facts and pleadings of the appellant’s writ petition.

8. Learned counsel for the State refuting the submission of theappellant contends that the appointment of the appellant was not madefollowing procedure as prescribed in law. He submits that the High Courthas rightly dismissed the writ petition of the appellant.

9. We have considered the submissions of the parties and perusedthe records.

10. The appellant claims ad hoc appointment on the post ofLecturer, Military Science in a Post Graduate College Affiliated to theGorakhpur University. The submission of the learned counsel for theappellant is that paragraphs of the counter-affidavit i.e. 3(h) and 3(i) aswell as paragraph 6 of the rejoinder-affidavit in the writ petition whichhas been referred to and relied by the High Court for dismissing the writpetition are not present in the counter-affidavit filed to the writ petitionof the appellant and the rejoinder-affidavit filed by the appellant. Theappellant has brought on the record the copy of counter-affidavit asAnnexure-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 ofHigher Education, U.P., Allahabad filed in the writ petition filed by theappellant. In the judgment of the High Court paragraph 6 of the rejoinder-affidavit has been extracted which was claimed to be reply to paragraph3(h) and 3(i). The appellant filed rejoinder-affidavit in his writ petitionwhich is brought on record as Annexure-P15. In paragraph 6 of therejoinder-affidavit filed by the appellant following has been pleaded bythe appellant:

“6. That in reply to the contents of paragraph No.3(c) of thecounter-affidavit it is submitted that the petitioner was appointedon 06.08.1991 as Lecturer in Military Science and against thesaid post the petitioner was adjusted and the petitioner wascontinuing her salary and getting the salary and all emolumentsincluding the G.P.F. and financial approval has been granted by AB

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188SUPREME COURT REPORTS

Athe Respondent No.1 For kind consideration of this Hon’ble Courta true copy of the order of financial approval dated 12.11.2001granted by the Respondent No.1 is being filed herewith and ismarked as Annexure No.R.A.-2 to this Rejoinder Affidavit.”

11. The paragraph 6 of the rejoinder-affidavit as quoted in theBimpugned judgment dated 06.10.2015 is entirely different. As noted above,before this Court an SLP was filed by the appellant in which the aboveargument was addressed and this Court dismissed the SLP by permittingthe appellant to withdraw the SLP to file a review petition before theHigh Court. A review application being No.421500 of 2015 was filedwhere following grounds apart from other grounds have been taken:

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“1. Because there is an error apparent on the face of the recordinasmuch as there is no paragraph 3(i) in the counter-affidavitfiled by the Respondent No.01 and 02 jointly nor is there anyparagraph 6 of the rejoinder-affidavit, as quoted in the impugnedorder dated 06.10.2015.D

2. Because there is an error apartment on the fact of the petitionerand issue date of appointment letter did not match with therecord of the writ petition No.29473 of 1999 as mentioned inimpugned order dated 06.10.2015.

3. Because it is relevant to state here before the Hon’ble CourtEthat the petitioner’s writ petition No.29473 of 1999 disposedby the Hon’ble Court without hearing and examine the factsand evidence of the petition. The impugned order dated06.10.2015 is the same copy of order passed on 06.10.2015 inwrit petition No.29474 of 1999 (Dr. Triyogi Nath vs. DirectorFof Higher Education & others), while date & events regardingthe appointment and contents of counter-affidavit, rejoinder-affidavit & supplementary affidavit are absolutely different.”

12. Although above grounds specifically were taken by theappellant in the review application but the High Court by non-speakingGorder rejected the review application on 09.03.2016. As per the libertyearlier granted to the appellant he has again come up in these appealschallenging both the orders of the High Court.

13. From the records it appears that along with the Writ PetitionNo. 29473 of 1999 filed by the appellant another writ petition beingH

No.29474 of 1999 (Dr. Triyogi Nath vs. Director of Higher Education &others) was connected and heard. It appears while deciding writ petitionof the appellant the paragraph 3(h) and 3(i) of the counter-affidavit andparagraph 6 in Writ Petition No.29474 of 1999 has been referred to.

14. The High Court unless looks into the facts of the appellant’scase and pleadings made therein the writ petition could not have beendecided. It is relevant to notice that the error committed by the HighCourt in deciding the writ petition on 06.10.2015 was brought into thenotice of the High Court by filing detailed review application afterwithdrawing SLP from this Court but the review application was dismissedby non-speaking order without adverting to the specific grounds raisedin the review application. We are of the view that the judgment of theHigh Court deciding Writ Petition No.29473 of 1999 without referring tothe pleadings in the writ petition i.e. pleadings in the counter-affidavitand rejoinder-affidavit, cannot be upheld.

15. We are of the view that ends of justice would be served insetting aside the judgment and order of the High court dated 06.10.2015and 09.03.2016 and remitting the matter to the High Court to decide thewrit petition afresh on the basis of the pleadings on the record. We makeit clear that in the facts and circumstances of the case we have neitheradverted to the merits of the claim of the appellant nor have expressedany opinion on the merits of the claim. The High Court shall now proceedto decide the writ petition afresh on merits in accordance with law. Itgoes without saying that claim of petitioner for payment of salary orclaim for regularization as pending in W.P.No.1704(SB) of 2013 shall bedependent on the outcome of Writ Petition No.29473 of 1999. Thejudgment dated 06.10.2015 and order dated 09.03.2016 are set aside.The appeals are disposed of accordingly.

Ankit Gyan

Appeals disposed of.

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