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Judgment
Heard Sri H.N. Shukla, learned Counsel for the petitioner, Sri V.B. Mishra, learned Counsel for the respondent No. 1, and learned Standing counsel for respondents and have perused the relevant documents on record.
By means of this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuing writ of mandamus commanding the respondents to make payment of the salary of the petitioner since 1982 till date and not to interfere in performance of the petitioner as teacher (Adhunic Vishaya) of Mahavidhyalaya, for issuing a writ of certiorari quashing the entireproceeding for fresh selection in place of the petitioner and also the fresh selection, if any, has been made in place of the petitioner, be declared null and void.
In brief, the petitioner''s case is that the petitioner was appointed on substantive post for teaching (Adhunic Vishaya) as permanent teacher on 01.07.1973 in the Sri Ram Prasad Sanskrit Mahavidyalaya, Gopalpur, Sikrara, Jaunpur affiliated by Sampurnanand Sanskrit Vishwavidyalaya, Varanasi and since then he was working on the same post upto the year 1982. The teachers of the aforesaid Mahavidyalaya were not paid their salaries properly by the Management of the aforesaid Mahavidyalaya, its complaint was made to the University''s authorities concerned thereupon, the Manager of the aforesaid Mahavidyalaya was very annoyed and wanted to remove the petitioner as well as some other teachers from the service. That in this connection, one advertisement was published on 29.05.1982 in newspaper ''Aaj'' seven teachers including the petitioner for Adhunic Vishaya as M.A., Bed. And one Pradhanacharya are required for the said institution. That in accordance with the statute of the University experts are to be nominated by the Vice-Chancellor of the aforesaid University for the purposes of selection of teachers, accordingly the Committee of Management requested the Vice-Chancellor for the nomination of the experts for the selection of teachers, the interview of which was to be held on 29.09.1982. The Vice-Chancellor accepted the request of the Committee of Management by his order dated 13.09.1982. That the petitioner along with other teachers opposed the activities of the management giving the details and the complaints were made by the petitioner and other teachers to the Vice-Chancellor of Sri Sampurnanand Sanskrit Vishvidyalaya, Varanasi that in pursuance of the aforesaid complaint the Vice-Chancellor stayed the execution of his order dated 13.09.1982 by his order dated 22.09.1982. That despite of the fact that the Vice-Chancellor of the aforesaid university stayed the execution of the appointment, the Committee of Management proceeded to make the appointments in place of petitioner and other teachers of the said Mahavidyalaya.
The petitioner filed a Writ Petition No. 11225 of 1982 praying for following reliefs:
(a) issue an order, direction or writ in the nature of a writ of certiorari quashing the order of nomination of Experts dated 26.9.1982 passed by the Vice-Chancellor of Sri Sampurnanand Sanskrit Vishwavidyalaya, Varanasi (Annexure-V).
(b) The fresh selection be declared null and void.
(c) to grant any other suitable order direction or writ which this Hon''ble deem fit and proper.
(d) to award costs of this writ petition.
In the above writ petition, no interim order was passed and only an order was passed on 30.09.1982 directing the counsel for the respondent to file counter affidavit. The selection on the post of Teachers in the institution was held in accordance with the First Statutes of Sri Sampurnanand Sanskrit Vishwavidyalaya and an approval was granted on 29.01.1983 by the University approving six teachers. On one post the approval was not initially granted which was granted on 30.04.2003 approving Jai Prakash Mishra, Teacher Adhunic Vishaya, the teachers appointed with the aforesaid approval joined in the University and had been working since their appointments and are getting salaries. The Writ Petition No. 11225 of 1982 was heard and disposed of by this Court on 28.11.1996. Noticing the prayers in the petition it was observed that the said prayer has become infructuous. The relief claimed by the petitioner for declaring the selection consequent to the nomination of experts by the Vice-Chancellor as null and void was not granted. The Court also took the view that the prayer of the petitioner, that a direction be issued to make payment and salary cannot be considered in view of the case of the petitioner that in pursuance of an order passed in some other writ petition the petitioner is continuing in service. The following observations were made by this Court in the aforesaid judgment.
Sri. H.N. Shukla, learned Counsel for the petitioner submits that by reason of the interim order passed in another writ petition the petitioner was allowed to continue in service, which is apparent from annexure CA-9 to the counter affidavit, wherein it has been pointed out that the petitioner should not be removed because of the interim order obtained by him from the High Court. Learned Counsel for the petitioner contends that by reason of the said interim order the petitioner is still continuing in service. By means of this writ petition the learned Counsel for the petitioner wants from this Court to pass an order directing the respondents to make payment of salary by reason of his continuance in service in terms of annexure CA-9 to the counter affidavit.
It appears that the petitioner can make such prayer in other writ petition where he has obtained interim order and such a scope is open in the said writ petition. So far as the present writ petition is concerned following prayers have been made:
(a) issue an order, direction or writ in the nature of a writ of certiorari quashing the order of nomination of Experts dated 26.9.1982 passed by the Vice-Chancellor of Sri Sampurnanand Sanskrit Vishwavidyalaya, Varanasi (Annexure-V).
(b) the fresh selection be declared null and void
(c) to grant any other suitable order direction or writ which this Hon''ble Court may deem fit and proper.
(d) to award costs of this writ petition.
The scope of the present writ petition can not travel beyond the prayer made, as aforesaid. The prayer which the petitioner is now making can not be imported within the ambit and scope of the present writ petition. The petitioner is at liberty to make such prayer and obtained the relief in the other writ petition. So far as this petition is concerned, it relates to the selection made and nomination of experts. If the petitioner establishes his right in the other writ petition the selection so made would be subject to the petitioner''s right established in the said writ petition. But the petitioner''s right with regard to his employment as has been sought to be established in other writ petition, can not be gone into by virtue of this writ petition. Therefore, this petition appears to have become infructuous and is accordingly dismissed. This order shall not preclude the petitioner from raising the question raised in the present writ petition, in the other writ petition, if it is so open to him. There will, however, be no order as to costs.
This writ petition was filed by the petitioner on 02.01.2001 for following relief:
(i) issue an order or direction, or writ in the nature of mandamus, commanding the respondents to make payment of the salary of the petitioner since 1982 till date and not to interfere in performance of the petitioner as teacher (Adhunic Vishaya) of Mahavidyalaya.
(ii) issue an order, direction or writ in the nature of certiorari quashing the entire proceeding for fresh selection in place of the petitioner.
(iii) the fresh selection, if any, has been made in place of the petitioner, be declared null and void.
(iv) Grant another suitable order direction or writ which this Hon''ble Court, deem fit and proper.
(v) award the cost of the writ petition to the petitioner.
The petitioner in this writ petition himself has stated that since 12th August, 1982 the petitioner and other teachers are not permitted to make their initials on the attendance register and they are not being paid salaries since March, 1982.
Sri H.N. Shukla, learned Counsel for the petitioner submitted that the petitioner was appointed as teacher in Mahavidyalaya in the year 1973 whose presence was found in inspection made by the Inspector Sanskrit Pathshala, in the year 1981 and he is entitled to continue in service and receive salary. It is submitted that after the judgment in Writ Petition No. 11225 of 1982 the petitioner made a representation to the Vice-Chancellor on 11th August, 1997 but no decision has been taken by the Vice-Chancellor on the said representation.
Learned Counsel for the respondent submitted that the Teachers have already been appointed in the University with the approval of University on 29.01.1983 and 30.04.1983 which appointments were neither challenged by the petitioner nor those teachers are before this Court. It is submitted that the petitioner was never approved by the University nor there is any material on the record that the petitioner was an approved teacher.
We have heard the submissions of the learned Counsel for the parties and have perused the material on record.
Earlier the petitioner had filed a Writ Petition No. 11225 of 1982 challenging the order of Vice-Chancellor, University dated 26.09.1982 by which experts were nominated for holding selection on the post of teacher. In the counter affidavit filed by the Committee of Management the copy of the approval order dated 29.01.1983 and 30.04.1983 issued by the University in pursuance of the selection which was challenged by the petitioner, has been filed. The teachers have been approved including the teacher Dr. Jai Prakash Mishra on the subject of Adhunic Vishaya on which subject the petitioner''s claimed his appointment. The relief prayed in the Writ Petition No. 11225 of 1982 was not granted by the Court and while dismissing the writ petition the Court held that the petition has become infructuous, with regard to payment of salary, the court had observed in its earlier order that it shall be open for the petitioner to claim his salary in other case in which the petitioner claims that an order has been passed for continuance in the service. The petitioner could not bring on record any material that any other case was filed by the petitioner apart from the Writ Petition No. 11225 of 1982 or there was any other order passed in favour of the petitioner. The selection which were made in the year 1982-83 having not been challenged and the teachers who were approved by the University are working in the institution, no mandamus can be issued for payment of salary. The petitioner claimed that he was not paid salary from August, 1982 and the writ petition for payment of salary has been filed more than 18 years. The petitioner has not produced any material on record to indicate that he was appointed with the approval of the Competent Authority at the relevant time or his appointment is approved by the University.
In any view of the matter, the teacher having already been appointed by the University which process of selection although was challenged by the petitioner but the said petition was dismissed as infructuous after completion of selection and the selection was not challenged for eighteen years. The prayers (ii) and (iii) of the petitioner for quashing the entire proceeding of selection in place of the petitioner and declaring such selection null and void cannot be granted for more than one reason. Firstly the selection having been approved on 29.01.1983 and 30.04.1983 the petitioner cannot be permitted to challenge the selection after 18 years. Secondly, the teachers whose selection is sought to be challenged have not been impleaded in the writ petition. Thirdly in Writ Petition No. 11225 of 1982 the petitioner had made a prayer for declaring the selection null and void which prayer was not granted in the said writ petition.
In view of the aforesaid facts, we are of the view that the petitioner is not entitled for any relief in this writ petition. The writ petition is, therefore dismissed.