Raju, J. - (1.) 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 Mathermatics 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 represented by the office bearers. Therefore, the decree passed in the said Suit is not binding on the first respondent or the Education Department of the Government. c) Since the appellant has not challenged the selection process undertaken in 1973 and the appointment of the first respondent - the appellant has no right to oppose the payment of salary to the first respondent. d) Since the decree passed by the Civil Court was only against the College and the President of the Society and the Manager of the College in their individual names, it only binds them and if they have allowed him to function as a Lecturer, they alone are liable to pay the salary personally and it is open to the appellant, if so advised, to proceed against them. e) The appellant did not as a fact function as Lecturer between 7-8-1973 and 16-6-1979 and the District Inspector of Schools did not agree to pay salary to the appellant. Though the Deputy Director passed an Order on 9-11-1979, the same was stayed by the High Court on 16-11-1979 and the same was confirmed and in force till the main Writ Petition was allowed. "It is not clear as to whether the Management of the Institution permitted the fifth respondent (the appellant herein) to function as Lecturer". ;