S. C. Mathur, A.C.J. - (1.) RESERVING reasons to be recorded later we had by our short order dated 7th September, 1993, dismissed the present special appeal. We now proceed to give reasons for that order.
(2.) BY his common judgment an order dated 16th August, 1993 a learned single Judge disposed of three writ petitions raising identical disputes The primary dispute was whether the State Government's order dated 6th May, 1982, which provided for retention in service for two years of a teacher who had been awarded national or State level " award after attaining the age of superannuation, created a legally enforceable right in such teacher. The secondary question was whether the State Government had acted arbitrarily and with discrimination while denying retention in service to the petitioners in the three writ petitions. All the three petitions were dismissed by the learned Single Judge, Two of the petitioners, namely, Dr. Prem Dutt Chamoli and Sri Rufus Mahesh Kumar Browne, filed special appeal against the said judgment which were dismissed by us through judgment and order dated 30th August, 1993. All the three points mentioned herein were negatived by us. The remaining petitioner, namely, Sri Anand Prakash Tyagi, has now preferred the , instant appeal. Learned counsel for the appellant submitted that certain fresh points have been raised in the present special appeal. On the basis of these allegedly fresh points the learned counsel has claimed reconsideration of our judgment and order dated 30th August, 1993. We: have heard the learned counsel for the appellant at some length. Before taking up the allegedly fresh points we may point out that the learned counsel conceded that the writ petitions of all the three petitioners were almost identically drafted and the points raised were identical. In the affidavit filed in support of the application for interim relief in the present case certain facts have been stated and certain annexures have been filed which were admittedly not before the learned Single Judge. The first question that arises for consideration is whether the fresh facts and papers now brought on record should be considered or not. Order 41 rule 11 of the Code of Civil Procedure, 1908-for short the Code, Provides for production of additional evidence in appellate court. The Code does not apply to proceedings under Article 226 of the constitution. Consequently, Order 41 rule 27 will also nor apply. An appeal is a continuation of the original proceedings. An appeal from a judgment in a writ petition is also a continuation of the writ petition. Therefore, the principles applicable to a writ petition may be applied to an appeal arising from a writ petition. The jurisdiction of this court under Article 226 of the Constitution is very wide and the same width may be imported in the exercise of jurisdiction while hearing appear against a judgment rendered in a writ petition. Mow for what purpose the amplitude of this power is to be utilised-for enforcement of a right or for enforcement of a privilege ? We have already held by our judgment dated 30th August, 1993 that the Government Order dated 6th May, 1982 does not create any legally enforceable right in a teacher. If it creates anything at all in favour of a teacher, it is only a privilege. It also simultaneously trenches upon some body's right to get an appointment. When a Principal retires from his post a senior teacher may get promotion. When the retirement of a principal is postponed, the promotion of a senior teacher is also postponed. Accordingly the power to admit additional evidence at the appellate stage may be exercise in very rare cases and only where it exercise is essential to enforce a constitutional or a legal right.
(3.) THE age of retirement of a teacher, including the Principal, is admittedly prescribed by a statutory provision viz Regulation 21 of Chapter III of the Regulations framed under the U. P. Intermediate Education Act, 1921 and the same is 60 years. Upto this age, subject to statutory provisions, a teacher has the right to remain in service but thereafter, as observed earlier, it is, at the most, privilege. THE claim of continuance will, therefore, not involve assertion of a constitutional or a legal right. Apart from the above, if we apply the principles of Order 41 Rule 27, parties to the appeal have no right to produce additional evidence. It is specifically stated so in sub-rule! (1). Under clause (b) of sub-rule (1) the requirement of additional evidence has to be of the Court for pronouncing judgment Under Clause (aa) the [party seeking to produce additional evidence has to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time the judgment appealed against was passed. At the most the appellant can claim consideration of additional facts and additional papers under this clause. Under this clause he has to establish exercise of due diligence Let us now examine whether there is any assertion of due diligence in appellant's affidavit. This only explanation given in the said affidavit for not producing the evidence earlier is contained in paragraph 18 wherein it is stated-"At the time of filing the writ petition, the petitioner-appellant did not have a copy of the said chart and as such was not in a position to enclose the same as annexures to the writ petition", (Emphasis supplied). From the emphasised portion it is apparent that the explanation is confined to the stage of filing the writ petition. It does not extend upto the time the judgment under appeal was pronounced. Further, there is no assertion that any effort was made to obtain the said evidence. In our opinion, the explanation given in the affidavit is wholly insufficient to explain the appellant's failure to produce the evidence now sought to be produced before the learned Single Judge.;