Ganesh Yadav vs State of U.P. and Others

The main relief''s prayed for in the present petition are as under:

(a) Issue a writ, order or direction in the nature of mandamus directing to the opposite parties to take appropriate action against guilty teachers/employees; officials/officers Manager/Principal by considering the enquiry report submitted by Principal Secretary (Secondary Education) (Annexure No. 10 of the writ petition).

(b) Issue a writ, order or direction in the nature of mandamus directing to the concerned authorities to submit the copy of order dated 03.09.1990 and 02.02.1991 regarding creation of post of teachers/employees of aforesaid institution and set aside the same.

Prayer Clause (b) was dropped at the time of hearing as is evident from the order dated 09.09.2010.

The principal contention is to take action based on the enquiry report submitted by the Principal Secretary (Secondary Education) (Annexure No. 10 to the petition).

For better appreciation of the controversy, we may refer to certain facts and events. The Management of the Institution filed two writ petitions, being Civil Misc. Writ Petition No. 20320 of 1991 and Civil Misc. Writ Petition No. 9955 of 1992. Writ Petition No. 20320 of 1991 came to be disposed of by order dated 4.10.1993. In Writ Petition No. 20320 of 1991, the Petitioners sought a writ of mandamus directing the Respondents to treat and to include 30 pre-existing posts of CT Grade teachers, existing as not dead, while calculating the total strength of sanctioned teachers in the Institution and further to pay salary to all the teachers and staff of the Institution whose names were recommended by the District Inspector of Schools, Deoria, vide his final recommendation letter dated 24.1.1992 for teachers and staff of the Institution.

In Writ Petition No. 9955 of 1992, the Petitioner prayed for a writ of mandamus commanding the Respondents to make payment of salary to the teachers and staff working in the institution since before the school was upgraded to High School and to make payment of salary as and when it becomes due along with the arrears of the salary.

A learned Single Judge of this Court, after hearing the parties allowed both the petitions. The Court noted that the Institution has 16 posts of LT Grade teacher and one Principal as also other staff, i.e., Class-III and Class-IV employees in addition to 30 pre-existing teachers, who was serving in the Institution and consequently, directed to make the payment of salary to all the teachers and staff of the institution whose names were recommended by the DIOS, Deoria vide his final recommendation letter date 24.1.1992, within a period of three months along with the arrears.

In terms of the recommendation letter dated 24.1.1992, there were altogether 76 posts of teachers and staff, to whom salary was directed to be paid.

The State of U.P. against the order dated 4.10.1993, preferred SLPs before the Supreme Court and on 21.4.1994, a statement was made on behalf of the State of U.P. by the learned Counsel that he has instruction to withdraw the Special Leave Petitions. The Special Leave Petitions, therefore, stood dismissed as withdrawn. Consequently, the order of the learned Single Judge stood confirmed.

The Management had also filed one more writ petition, being Civil Misc. Writ Petition No. 6241 of 1992. By this petition, the relief sought was to grant protection of the U.P. High School and Intermediate Colleges (Payment of Salary to the Teachers and other Employees) Act, 1971 to the teachers and employees of all sections including Primary Section. By order dated 7.1.1993, that writ petition was allowed and the order of the Director of Education dated 21.1.1991 was quashed and the Respondents were directed to pass appropriate order on the application of the Petitioners for grant of protection of the Act to the teachers and other employees of the Primary Section of the College within a period of three months from the date of presentation of certified copy of the order. An appeal, being Special Appeal No. 397 of 1993 was filed against that order by the Director of Education and 2 others. A Division Bench of this Court noted that the denial of maintenance grant today after passage of six years can hardly be justified and the State should consider the judgment and pass appropriate orders as per directions contained in the judgment for teachers as a class. A SLP was filed, being Special Leave to Appeal (Civil) ..CC.9891/2002, which came to be dismissed on the ground of delay. Pursuant to this, 37 teachers were granted protection of pay.

One Mritunjay Rai filed Writ-C No. 25407 of 2007. This petition was dismissed on the ground that there was no independent cause of action available and that there was a PIL petition pending and as such the writ petition was dismissed, but the report, which had been submitted by the Principal Secretary, Secondary Education will be taken as part and parcel of PIL.

One Kanhaiya Lal Kushwaha filed another petition, being Public Interest Litigation No. 16698 of 2006. This petition was dismissed in spite of repeated calls none was present. The Court noted that it had become in fructuous by passage of time as the Petitioner has lost interest. This petition was dismissed on 20.5.2010. The Petitioner in the present petition has averred that an application for restoration has been filed and is pending.

The present Petitioner filed a writ petition, being Writ-A No. 32207 of 2010. The learned Judge noted that in Writ Petition No. 25407 of 2007, the Court had passed a detailed order requesting the Secretary (Education) to examine the legality or otherwise of appointment of teachers in the School. That order notes that the order was subject to two special appeals, which were dismissed. The learned Single Judge, vide his order dated 27.5.2010 directed that the action be taken in terms of the report of the Secretary, within two months. An appeal came to be preferred against that order, being Special Appeal No. 932 of 2010. By an interim order dated 8.6.2010, the order dated 27.5.2010 was stayed. The Division Bench of this Court allowed the appeal and set aside the order dated 27.5.2010 with liberty to the Petitioner to file a PIL on the same facts and circumstances of the case before the Bench assigned with such matters. The said order is dated 4.8.2010.

The question for our consideration is, whether considering the various petitions, has the Petitioner bonafidely presented this Public Interest Litigation. We may only refer to prayer Clause (b) of the petition, which was subsequently allowed to be dropped pursuant to the order dated 9.9.2010 passed by this Court. Prayer Clause (b) read as under:

(b). Issue a writ, order or direction in the nature of mandamus directing to the opposite parties to advertise the vacancies in daily news paper and to make appointment of teachers/employees on the teachers/employees according to provisions as provided under the act; so that Petitioner may also get chance to the appointed on the sanctioned post of teachers/employees of said institution.

Though prayer Clause (b) has been dropped, it would be clear that the petition as earlier filed also sought a prayer to enable the Petitioner to apply and be appointed. In other words, a personal interest in the matter.

We have set out the facts as pleaded in the various petitions and the appeals filed and the outcome thereof. The teachers and staffs were appointed and have been regularized pursuant to orders passed by this Court in Civil Misc. Writ Petition No. 20320 of 1991 and Civil Misc. Writ Petition No. 9955 of 1992. Both these writ petitions were allowed and the teachers and staff were directed to be paid salary. In other words, right from the year 1992, they have been held to be regular.

The question for our consideration is whether it is open to this Court now to sit in appeal over those judgments, which have become final and the SLPs against those judgments have also been dismissed. Once that be the case, the judgments are binding on all authorities including this Court. The only remedy for a party, if any, would be to apply for recall of the orders, if fraud was played on this Court. That also, in our opinion, considering that nearly 20 years have passed, would be difficult for a Court to entertain.

The Petitioner contends that he is highly educated but an unemployed youth. At the same time, learned Counsel for the Petitioner states that he has been conducting some coaching classes and maintaining himself. How does such a Petitioner raise financial resources to single out one institution is at least difficult to understand.

The relief in the matter of the report of the Secretary (Education) was pursuant to an order passed by the learned Single Judge in Writ Petition No. 32207 of 2010. In the matter of interim order passed in Writ Petition No. 25407 of 2007, we have noted earlier that that petition itself has been dismissed by order dated 29.3.2010. Once that be the case, all interim orders, if any, issued would stand set aside and merely because a report was prepared by itself would be no ground to issue directions based on the report.

Assuming that such a report could be prepared, could Officers overreach the judgments of this Court, which have become final pursuant to the dismissal of the SLPs. In our opinion, the judgments of this Court are binding on authorities including the Secretary, who has prepared the report and it was not open to him to prepare a report, which would be contrary to the directions issued by this Court in those writ petitions filed by the Committee of Management in the years 1991, 1992 and 1993.

Having said so, in our opinion, this petition is totally devoid of merit.

We may now examine the controversy in the light of a judgment of the Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal and Others, The Supreme Court in paragraph 181 of the judgment has set out various parameters for the purpose of entertaining a Public Interest Litigation petition. In the present case, we are not satisfied regarding the credentials of the Petitioner in approaching this Court, more so regarding prayer Clause (b) of the petition, which was subsequently deleted. The approach of the Petitioner is not in respect of any genuine public grievance. The controversy was decided by this Court long back. Other petitions in respect of similar relief were dismissed.

We had, therefore, put learned Counsel for the Petitioner to notice as to why exemplary costs should not be imposed on the Petitioner. The only answer on behalf of the Petitioner was that the Petitioner is an unemployed youth. We are not satisfied that an unemployed person would be able to pursue the petitions before this Court. What we find is that, apart from that, in Public Interest Litigation Petition No. 16698 of 2006, Counsel for the Petitioner was the same.

In that view of the matter, the present petition is dismissed with costs quantified to Rs. 50,000/- (Fifty Thousand Only) to be paid by the Petitioner to the Committee of Management-Respondent No. 6. If the said amount is not paid by the Petitioner, within two months from today, the same shall be recovered as arrears of land revenue.