IMPORTANT POINT
No declaratory suit of the nature could have been filed and the decree of civil court is not relevant.

Headnote:Service Jurisprudence-One post of Lecturer in mathematics in-Appellant appointed temporarily for 1970-71, 1971-72 and 1972-73 with approval of competent authority-When he received notice of expiry of his term, he filed civil suit for declaration that he has become a permanent lecturer-Competent authority not impleaded as party-Writ petitions-High Court holding that no declaratory suit of the nature could have been filed and the decree of Civil Court is not relevant-Whether correct? (Yes)-Appeal dismissed.
       Held : Though the appellant should have known there could not have been any appointment for any period or duration without the approval of the Competent Authority and the relief sought for involved a decision on the exercise of powers already made and to be made thereafter by such authorities, the appellant did not care to implead the Department in the suit or even the first respondent in the pending suit when he came to be appointed, as admitted in para 2 of the written submissions of the Management, "In the meanwhile, the respondent No.1, Shri Jagat Narain Rai, had been appointed by a regular selection process by an order dated 06.09.1973 after obtaining the approval of the Department he was appointed regularly" and also as conceded in Para III of written submissions on behalf of the appellant "........... At the same time it cannot also be disputed that the respondent Shri Jagat Narain Rai has also worked as a Mathematics Lecturer with effect from 6th September, 1973. It is also undisputed that there is only one sanctioned post of Mathematics Lecturer against which two persons have been working with full work-load". The plea that the Department or the first respondent should have filed an appeal, though not parties to the suit, at any rate, does not lie in the mouth of either the appellant or the Management to be taken. Though it would have been open to them to file an appeal with the leave of the Court, there is no duty or obligation cast on them to do on pain of distress when in law they could also legitimately ignore, as not affecting them. The judgment of the Civil Court in Suit No.108 of 1973 has no value or merit for asserting any claim or right against the first respondent or the officers of the Education Department. (Para 6)
       That apart, on coming to know of the orders of the Deputy Director dated 9.11.1979, the first respondent filed CMWP No.9255 of 1979 and obtained interim orders of stay on 16.11.1979 and the same was said to have been confirmed also on 23.2.1981. In the teeth of the one only of sanctioned post, there was no justification whatsoever either in law or otherwise for the College Management to have allowed the appellant to continue in service or availed of his services, as they claim and the appellant could not also after the said orders of the High Court legitimately claim to continue in office and worked as he claimed without receiving payment of any kind, as alleged, for such a long period. It is not known with what hopes or aim such things have been allowed to take place by them. There is no rhyme or reason for them now to plead for or claim any equities or throw blame upon others and use it as a cover to make such claims as cannot be countenanced in a Court of Law. While that be the position, the Management could not take any exception to the order of the learned Single Judge holding that the decree of the Civil Court being only against the Society, its President and Manager by name and if they have permitted him to function, they are liable to pay the salary personally, leaving at the same time liberty with the appellant, if so advised, to proceed against them. It could, therefore, be seen that the said observation became inevitably necessary in the light of the rights declared in favour of first respondent while allowing his Writ Petition and for rejecting as a consequence the Writ Petition filed by the appellant, without granting, at the same time, any relief against the Management. The plea of estoppel sought to be pressed into service by the appellant as well as the College Management against the Department is not only misconceived but has no merit of acceptance when the very order of the Deputy Director choosing to accept the judgment to the detriment of the rights of the first respondent, came to be set aside in the writ proceedings instituted by the first respondent. Such a plea also fails to take into account the vital fact that the authorities of the Education Department, the Deputy Director, could not have legitimately chosen to accept a judgment to which he was not a party when such acceptance has the impact of directly and seriously prejudicing the rights of the first respondent, who was also not made a party to the suit before the Civil Court. (Para 7)
       The decision of this Court in Vaish Degree College case (AIR 1976 SC 888) not only dealt with the character and status of the Institution registered under the Registration of Co-operative Societies Act, but also considered the legality, propriety and desirability of granting a declaration that the contract of service subsists taking into account the provisions contained in the Specific Relief Act, 1963. The Division Bench chose to apply the said part of the decision to the case on hand, and rightly too, on the facts and circumstances of this case. (Para 8)
       Held finally : For all the reasons stated above, we see no merit in the appeal. The appeal shall stand dismissed. The dismissal need not stand in the way of the authorities of the Department if, on their own, they are prepared to give any relief to the College or the institution keeping in view any of the special circumstances of this case without detriment to the rights of the first respondent. There will be no order as to costs. (Para 9)

JUDGMENT

Raju, J.-This appeal has been filed against the judgment of a Division Bench of the Allahabad High Court dated 14.2.1995 in Special Appeal No. 88 of 1995, affirming the decision of a learned Single Judge of the said Court dated 16.1.1995 in C. Misc. W.P. No. 9255 of 1979, connected with W.P. No. 17209 of 1992, whereunder the Writ Petition filed by Jagat Narain Rai (first respondent herein) challenging the order of the Deputy Director of Education Vth Region, Varanasi, directing termination of his services as Lecturer in Mathematics and payment of salary and arrears to Shiv Kumar Tiwari (the original appellant in this case - since died), came to be allowed and the Writ Petition filed by the deceased appellant came to be dismissed.

2. The original appellant, Shiv Kumar Tiwari (hereinafter referred to as the "appellant"), was appointed as a Teacher in Mathematics on 18.9.1969 in D.A.V. Intermediate College (hereinafter referred to as the "College") and the District Inspector of Schools, the Competent Authority, accorded approval of the appointment only for Academic Session 1969-70. For subsequent Academic Sessions 1970-71 and 1971-72 and 1972-73 also appointments afresh and approvals likewise were said to have been granted. At the end of the same, when the College Management issued a Notice on 19.5.1973 that his term was expiring on 30.6.1973, the appellant filed a Civil Suit Case No. 108 of 1973 before the IInd Additional District Munsif and the said Court, by a Judgment dated 25.5.1979, declared the appellant to be permanent Lecturer of the College in question and, therefore, the Notice dated 19.5.1973 is illegal and void. It is to be noticed at this stage that neither the State nor any authorities of the Education Department or the first respondent herein, who by then came to be appointed as Lecturer in Mathematics on 6.9.1973, were ever made parties to the said suit and admittedly only the College and the Management were made parties. On a representation made by the appellant to the Deputy Director of the Circle, without even affording an opportunity to the first respondent, an order dated 9.11.1979 came to be passed that in view of the judgment of the Civil Court the appellant became the permanent Lecturer and the services of the first respondent are not only to be terminated but the salary, etc., have to be paid to the appellant. It is at this stage that the first respondent challenged the orders of the authority dated 9.11.1979 in CMWP No.9255 of 1979 and the appellant also filed W.P. No.17209 of 1992 for payment of his salary. The Writ Court not only stayed the order dated 9.11.1979 on 16.11.79 but confirmed the stay also on 23.2.1981.

3. Both the above Writ Petitions, which involved identical issues for determination, were considered together by a learned Single Judge and while allowing the Writ Petition of the first respondent, the one filed by the appellant came to be dismissed, as indicated above, holding as follows :-

(a) That the letter of appointment for the post could be issued only after grant of approval by the District Inspector under Section 16F of the U.P. Intermediate Education Act, 1921 and the approvals were as a fact being granted for each of the Academic Years - 1969-70, 1970-71, 1971-72 and 1972-73. The appellant was aware of those facts and he was also making applications every year for the purpose and, therefore, was fully aware that his appointment was on temporary basis. No approval of any appointment of the appellant for the period subsequent to 30.6.1973 was granted by the Competent Authority.

(b) Though the appellant was aware of the advertisement in newspaper inviting applications and selection proceedings were going on he did not challenge the selection process, nor impleaded the first respondent who was appointed on 6.9.1973 to the post or the Authorities of the Education Department to the Suit C.S. No. 108 of 1973 but only impleaded the College repre

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2001 Supreme(SC) 1594

IMPORTANT POINT No declaratory suit of the nature could have been filed and the decree of civil court is not relevant.

Cases Referred (1)

IMPORTANT POINT
No declaratory suit of the nature could have been filed and the decree of civil court is not relevant.