Arvind Lal vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Anil Anthwal, learned counsel for the appellant, Mr. B.P.S. Mer, learned Brief Holder for the State Government and Mr. M.S. Bhandari, learned counsel for the seventh respondent and, with their consent, the Special Appeal is disposed of at the stage of admission.

The appellant herein filed Writ Petition (S/S) No. 2189 of 2018 seeking a writ of mandamus directing the Chief Education Officer, Narendra Nagar, District Tehri Garhwal to grant approval on the selection, which was conducted by the Committee of Management, as per the select/merit list dated 12.09.2006; and for a mandamus directing the respondents to issue appointment letter to the petitioner, as per the selection dated 12.09.2006, with all consequential benefits.

The appellant-writ petitioner invoked the jurisdiction of this Court, seeking the relief sought for in Writ Petition (S/S) No. 2189 of 2018, twelve years after the selection was held on 12.09.2006. Since the Writ Petition is still pending on the file of this Court, we may not be justified, in an intra-Court appeal preferred against an interlocutory order, to examine whether or not the writ petition suffers from undue delay and laches, for these are all matters for the learned Single Judge to consider in accordance with law.

The appellant-writ petitioner filed Writ Petition (S/S) No. 2189 of 2018 seeking parity with Mr. Pramod Prasad, who had filed Writ Petition (S/S) No. 1820 of 2016 and a learned Single Judge of this Court had, by his order dated 07.04.2017 after taking note of the fact that the petitioner therein was not given promotion since an inquiry was pending against him, held that the inquiry was an ex-parte inquiry. The said Writ Petition was allowed, and the Chief Education Officer was directed to take a final decision for approval, on the communication dated 05.09.2014 and reminder dated 04.02.2015, ignoring the inquiry held against the petitioner therein, within a period of ten weeks from the date of the order.

Mr. Anil Anthwal, learned counsel for the appellant-writ petitioner, would submit that the said order of the learned Single Judge, in Writ Petition (S/S) No. 1820 of 2016 dated 07.04.2017, has been affirmed by a Division Bench of this Court in Special Appeal No. 372 of 2018 dated 11.10.2018 wherein it was held that, since Mr. Pramod Prasad had been selected and recommended by a duly constituted Selection Committee, the competent authority was under a statutory duty to take an appropriate decision within two months from the date of receipt of the recommendation of the Selection Committee, in terms of Regulation 17(g) of Chapter II of the Regulations framed under the Uttarakhand School Education Act, 2006; moreover the Chief Education Officer could not have withheld approval to the appointment of Mr. Pramod Prasad on the strength of a report of some inquiry which was held ex-parte against him. While dismissing the Special Appeal, the Division Bench gave liberty to the appellant therein to question the eligibility of Mr. Pramod Prasad by making a representation to the competent authority, i.e. the Chief Education Officer, Tehri Garhwal, within three weeks from the date of the order.

It is not known whether any such representation was submitted by Mr. Pravin Tiwari, regarding the eligibility of Mr. Pramod Prasad, in terms of the liberty granted by the Division Bench in its order dated 11.10.2018.

Be that as it may, since the appellant-writ petitioner herein sought parity with Mr. Pramod Prasad, the learned Single Judge, in the interlocutory order under appeal dated 08.07.2019, was of the prima facie view that the appointment of Mr. Pramod Prasad, as an Assistant Teacher (L.T. Grade), may not have been in order. The learned Single Judge, thereafter, recorded the statement of the Director, School Education, Uttarakhand, that the order passed by the learned Single Judge, in Writ Petition (S/S) No. 1820 of 2016 dated 07.04.2017, could not be challenged for lack of legal advice; Mr. Pramod Prasad was not entitled to get his appointment; and the order passed by the coordinate Bench should have been challenged in appeal. Taking note of the assurance of the Director, School Education that action would be taken against Mr. Pramod Prasad under Section 36(10) of the Uttarakhand School Education Act, 2006, the learned Single Judge granted the Director, School Education, Uttarakhand one month's time to submit a report, and directed that the matter be posted on 08.08.2019. Aggrieved thereby, the present appeal.

Mr. Anil Anthwal, learned counsel for the appellant-writ petitioner, would question the interlocutory order passed by the learned Single Judge dated 08.07.2019 on the following grounds : (i) the learned Single Judge had gone far beyond the relief sought for in the writ petition; (ii) the observations made in the interlocutory order under appeal against Mr. Pramod Prasad was in a Writ Petition, where Mr. Pramod Prasad was not even a party; (iii) the order passed in Writ Petition (S/S) No. 1820 of 2016 dated 07.04.2017 has been affirmed in appeal i.e. the order in Special Appeal No. 372 of 2018 dated 11.10.2018; and (iv) judicial discipline would have required the learned Single Judge to refrain from interference. Learned counsel would rely on the judgments of the Supreme Court in Hari Singh Vs. State of Haryana : (1993) 3 SCC 114; Union of India and another Vs. Paras Laminates (P) Ltd. : (1990) 4 SCC 453; and Dr. Vijay Laxmi Sadho Vs. Jagdish (order in Civil Appeal No. 2720 of 2000 dated 05.01.2001).

Section 36(10) of the Uttarakhand School Education Act, 2006 stipulates that where the Director, in the case of appointment of a teacher of an institution, is satisfied that any person has been appointed as a teacher in contravention of the provisions of the Act, he shall, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential orders as may be necessary.

The learned Single Judge has merely recorded the submission of the Director, School Education that he would take action against Mr. Pramod Prasad under Section 36(10) of the Uttarakhand School Education Act, 2006. As noted hereinabove, any such action would require the Director, School Education to first hear Mr. Pramod Prasad before passing any such order. In any event the appellant-writ petitioner herein is not Mr. Pramod Prasad, and he only seeks parity with Mr. Pramod Prasad. All that the learned Single Judge has done, by the interlocutory order under appeal, is to call for a report from the Director, School Education.

While we see no reason to disagree with the submission of Mr. Anil Anthwal, learned counsel for the appellant-writ petitioner, that an order passed by a Division Bench would bind a learned Single Judge of this Court, there is nothing in the interlocutory order under appeal to show that the learned Single Judge has taken a view contrary to that of the Division Bench. All that the learned Single Judge has done is to call for a report from the Director, School Education, and has posted the matter to 08.08.2019 for further hearing. All such contentions, as are available to the appellant-writ petitioner in law, can always be put forth by him before the learned Single Judge when the matter is heard next on 08.08.2019.

While we may not be understood to have held that no intra-Court appeal would lie against every interlocutory order, for there may well be cases where even interlocutory orders may constitute a "judgment" justifying interference in an intra-Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, we are satisfied that the present case is not one such, as the learned Single Judge has merely called for a report from the Director, School Education and nothing more.

While refusing to interfere with the order under appeal, we make it clear that we have not expressed any opinion on the merits of the contentions put forth by Mr. Anil Anthwal, learned counsel for the appellant-writ petitioner, and it is always open to him to put forth all such contentions as are available to him in law, including on the judgments cited before us, when the matter is heard next by the learned Single Judge on 08.08.2019.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.