The C/M Boys Anglo Bengali Inter College and Another vs D.I.O.S.

Heard learned Counsel for the parties and perused the written arguments submitted by learned Counsel for the respondent No. 2. This special appeal is directed against judgment and order dated 6.12.1996 passed by Hon''ble Single Judge in writ petition No. 4271 (S/S) of 1996. The writ petition was filed by Committee of Management, Boys Anglo Bengali Inter College - the appellant No. 1 and was directed against order of District Inspector of Schools (D.I.O.S.), Lucknow dated 1.7.1996 and consequent order of 19.7.1996 in favour of respondent No. 2 - Mahesh Kumar Mishra directing that he should be appointed/adjusted as Assistant Teacher in L.T. Grade with effect from 16.9.1995 when order of promotion of another teacher Amlendra Rai from the post of L.T. Grade teacher to Lecturer was passed. In the order dated 16.9.1995 it was mentioned that Shri Rai should be promoted with effect from 14.8.1993.

The D.I.O.S. passed the order dated 1.7.1996 in pursuance of judgment and order of this Court dated 24.5.1996 passed in writ petition No. 2731 (S/S) of 1996. The said order was passed on the first date of hearing without even issuing notice to the Committee of Management - appellant No. 1 which was respondent No. 3 in the said writ petition. In the said writ petition Shri Mahesh Kumar Mishra had challenged the order of D.I.O.S. dated 11.2.1994 as well as order passed by Deputy Director of Education on 1.11.1994 on the appeal of President of the College.

Respondent No. 2 Shri Mahesh Kumar Mishra and four other persons had earlier filed writ petition No. 775 of 1995 against the same order of D.I.O.S. dated 11.2.1994. (The said writ petition is still pending). In the said writ petition of 1995 it has been stated by all the five petitioners that in 1993 the college in question had advertised five posts of L.T. grade teachers and the petitioners had been appointed after following due procedure and D.I.O.S. through order dated 11.2.1994 had wrongly refused to approve the appointments on the ground that the appointments were made over and above permissible strength of teachers.

Writ petition No. 2731 of 1996 (supra) filed by Shri Mahesh Kumar Mishra alone was disposed of on 24.5.1996 "with the direction to the D.I.O.S. to re- consider the matter regarding the approval of the petitioner with effect from 16.9.1995." In paragraphs 34 to 38 of the said writ petition of 1996, the facts regarding filing and pendency of earlier writ petition of 1995 by five persons including Shri Mahesh Kumar Mishra were mentioned. In para-38 of the said writ petition it was mentioned that in view of changed circumstances i.e. approval and promotion of Shri Rai through order dated 16.9.1995, the position relating to the petitioner (Shri Mahesh Kumar Mishra) had changed as such petitioner not pressed the writ petition No. 775 of 1995. The whole para (38) is quoted below:

That on account of the approval of the promotion of Sri Amlendra Rai on 16.9.1995 the position relating to the deponent have changed as such petitioner not pressed the writ petition No. 775 (S/S) of 1995 with the permission to file a fresh writ petition before this Hon''ble court raising his grievance separately in view of the changed circumstances.

In fact even application for getting the writ petition of 1995 dismissed in respect of Shri Mishra had not been filed by then. This fact is admitted in para-15 of the counter affidavit sworn by Shri Mahesh Kumar Mishra himself filed in the special appeal wherein reference has been made regarding paragraph-9 of the counter affidavit filed in the writ petition giving rise to the instant special appeal. In para-9 of the counter affidavit in the writ petition it is mentioned as follows;

However, it is most respectfully submitted that before filing the writ petition No. 2731 (S/S) of 1996 the deponent moved an application through his counsel for withdrawing his name from the earlier writ petition No. 775 of 1995. However, due to some clerical error in the office of the deponent''s counsel the said application for permission to withdraw the name from the writ petition could not be moved though the application was duly typed as back as on 20.5.1996 itself. Even the deponent is today ready to withdraw his name from the array of the petitioners in the writ petition No. 775 S/S of 1995 provided the petitioners in the present writ petition pay him his entire salary from November, 1993 till May 1996 as has been ordered by this Hon''ble Court and allow him to continue to work and discharge his duties.

Learned Counsel for the Management - appellant has argued that no fresh cause of action accrued to Shri Mahesh Kumar Mishra to file writ petition No. 2731 (S/S) of 1996 as in the same petition in para-5 it was stated that the post of L.T. grade Chemistry teacher against which Shri Mishra was allegedly appointed in the year 1993 was advertised on ad hoc basis as one Shri Amlendra Rai who was working as demonstrator was promoted as lecturer on the superannuation of one Shri Ravi Datt Joshi on 30.6.1993 and the matter regarding approval of Shri Almendra Rai''s promotion was pending with the D.I.O.S. Shri L.P. Mishra, learned Counsel has argued that it is therefore clear that the order dated 16.9.1995 approving the promotion of Shri Amlendra Rai w.e.f. 14.8.1993 did not lead to any fresh vacancy.

Shri L.P. Mishra, learned Counsel for the appellant has further argued that without following fresh procedure of appointment including advertisement, respondent No. 2 should have been directed to be absorbed/appointed against the post which became vacant and available on 16.9.1995, assuming that fresh post came into existence on 16.9.1995.

On the other hand learned Counsel for respondent No. 2 argued that in view of judgment of this Court dated 24.5.1996 passed in writ petition No. 2731 of 1996 it could very well be done and was rightly done by the D.I.O.S. through order dated 1.7.1996. It has further been argued that if Management-appellant was aggrieved by the order dated 24.5.1996, it should have filed appeal against the same and the said order could not directly be challenged afterwards through writ petition giving rise to the instant appeal. This is also the only point taken in the written arguments.

We do not propose to decide the above rival contentions. We are of the opinion that order of D.I.O.S. dated 1.7.1996 is liable to be set aside on the ground that it was passed on the basis of order dated 24.5.1996 passed in writ petition No. 2731 (S/S) of 1996 and in the said writ petition false statement regarding dismissal of earlier writ petition of 1995 on behalf of Shri Mahesh Kumar Mishra had been made as is clear from the above quoted para-9 of the counter affidavit filed in the writ petition giving rise to the instant special appeal, even though till then application for withdrawal of writ petition on behalf of Shri Mahesh Kumar Mishra had not been filed. An order passed by any authority on the basis of judgment and order of the High Court which was obtained by giving false statement cannot be sustained as the order of the High Court itself becomes non est due to the said false statement. Accordingly, special appeal is allowed. Impugned judgment and order dated 6.12.1996 is set aside.