- (1.) PALOK Basu, J. Dr. Raj Deo Mishra has filed this writ petition with the prayer that the respondents be commanded to treat the petitioner as having been regularised as full-fledged Principal of the College and extend on to him the pensionary benefits which go with the said post with effect from the date of his appointment, i. e. , 4-10-1982 till the date of retirement i. e. , 30-6-1988.
(2.) WHEN this writ petition was filed on 28-2-1989 a counter affidavit was called which has been filed. The petitioner has filed a re-joinder affidavit also. As jointly requested by learned counsel for the parties, this writ petition is being heard and finally disposed of at the admission stage. Sri S. N. Babulkar, learned counsel for the petitioner has been heard at sufficient length in support of this writ petition which is opposed by Sri Sabhajit Singh Yadav, learned standing counsel. Two points have been strenuously canvassed by Sri Babulkar, learned counsel for the petitioner. First, that the petitioner was appointed as a Lecturer and then a Reader in K. S. Saket Post-Graduate College, Faizabad (College) where in due course of time he received an appointment letter dated 4-10-1982 as a result of which he reported for duty as officiat ing Principal on 4-10-1982 and has been working as such ever since till the date of his retirement, i. e. , 30-6-1988, therefore, it is argued that the petitioner must be given all benefits which accrue to a Principal of a Degree College on his retirement. Second, that due to intervening fact that a law came through which the petitioner was selected for regular appoint ment as Principal in another College which he was prevented from joining because of the interim order of this Court on some other's writ petition the petitioner's right to get the full salary during the period of officiating as Acting Principal must also be secured for the petitioner. . In opposition it was strongly canvassed that the for two reasons the petitioner's requests must not to be granted. Firstly, that the peti tioner was never appointed as a Principal of the College and as such the mere appointment as officiating Principal of the College, in the absence of any legal provision, would not entitle the petitioner to claim the salary of Principal much less the pensionary benefits in the cadre of the Principal's post. Secondly, that in the earlier writ petition moved by the petitioner he had already made an application for payment of salary and all benefits for the post of Principal since 4-10-1982 till 30-6-1988 but the said writ petition was dismissed as infructuous and consequently the aforesaid prayer of the petitioner was also dismissed. Under these circumstances once the petitioner has been denied the benefits of the salary of the post of regular Principal by dismissal of the said prayer in the earlier writ petition, in the subsequent writ petition that is the present one, petitioner cannot be granted the relief of pensionary benefits on the regular post of the Principal because the said prayer will be completely barred by the principles of "res judicata. "
(3.) BEFORE discussing the points noted above, two factual averments may be mentioned. There is no dispute that the petitioner was initially appointed in the college in some other capacity wherein he became Reader in 1970 on which post he was made permanent from 18-2-1972 and that with effect from 4-10-1982 the Committee of Management had asked the petitioner to discharge the duties of the "acting Principal. " The other relevant fact is that in the State of Uttar Pradesh, there came to be passed a law known as U. P. Higher Education Services Commission Act which came into force on 23-10-1982. Consequently, the petitioner's appointment has Acting Principal preceded the enforcement of the said Act. Under the provisions of the Act all posts of Principal and teachers have to be filled in through the procedure given in the said Act. In the procedure it is provided that the Commission shall recommend a candidate for appoint ment to the post of Principal or a teacher, as the case may be, and the Committee of Management concerned of the said College is duty bound to make the said appointment. In the instant case also the said process was followed. The petitioner made an application for his selection as a Princi pal in the vacancy notified by the Commission. Likewise, many other candidates also opted for such selection. In due course of time the Com mission interviewed the petitioner and such other persons who have been found entitled to be considered for selection. The Commission ultimately recommended the name of the petitioner for the post of Principal in a College in district Rae Barelie,, namely, Firoz Gandhi Post-Graduate College, Rae Barelie. It so happened, however, that one Dr. M. C. Jauhari was the Acting Principal of the said Firoz Gandhi Post-Graduate College, Rae-Barelie who moved the High Court with a writ petition challenging the recommendation of the petitioner for being appointed as Principal of that College. On entertaining the said writ petition, the High Court passed an interim order staying appointment of the petitioner as Principal of that College at Rae Barelie. The result was that the petitioner could not join at the selected post. Similarly, another man Sri Y. R. Tripathi was selected for the post of Principal of the College in Faizabad. Left with no alternative, the petitioner also filed writ petition and obtained that stay order as a result of which the aforesaid Sri Y. R. Tripathi could not join the college at Faizabad and the petitioner continued to act as the Acting Principal of the College at Faizabad. The only other relevant fact to be noted here is that the petitioner continued as the Acting Principal of the College till the age of superannua tion, i. e. , 30-6-1988. During |all that period he was not paid the salary of the Principal and drew only the salary of the post which he substantively held, i. e. , the post of Reader. Under the circumstances, the petitioner now says that as he was duly selected for appointment to the post of regular Principal, the respondents should be directed to pay to him all the emoluments payable to him as the Principal for the period he worked and that his pensionary benefits may be fixed in the aforesaid cadre of regular Principal and not in the cadre of Reader.;