- (1.) R. R. K. Trivedi, J. In both the aforesaid appeals questions of law and facts involved are common and both the appeals can be conveniently decided by a common judgment. Special Appeal No. 807 of 1994 shall be the leading case.
(2.) FACTS giving rise to the aforesaid appeals are that the office of the institution Nagar Palika Inter College, Jaunpur, hereinafter referred to 'college', fell vacant. The vacancy was duly notified to the Uttar Pradesh Secondary education Service Commission, hereinafter referred to 'commis sion'. Commission notified a panel of selected candidates on 24th October, 1985. In this panel names of Sri Devi Prasad Singh and Dr. Havildar Singh were shown at first and second place respectively in order of merit. On an intimation received from the District Inspector of Schools the management issued the order of appointment in favour of Sri Devi Prasad Singh on 23rd December, 1985 calling upon him to join as Principal of the college within ten days from the date of the receipt of the order. However, Devi Prasad Singh could not join on account of an interim order dated 21st December, 1985 passed by this Court in Civil Misc. Writ Petition No, 17085, of 1985, filed by Sri Pyare Mohan Verma, senior most teacher of the college. In this writ petition, entire Selection proceedings, were questioned. It appears that Dr. Havildar Singh, whose name was shown at the second place in the panel, also made efforts for his appointment during pendency of the aforesaid writ petition, consequently he was also impleaded as respondent and an interim order dated 30th September, 1986 was passed by this Court staying his appoint ment. This writ petition was however dismissed on 5th January, 1980. After the dismissal of the aforesaid writ petition, it appears that for a considerable period no steps were taken either by the management to compel Devi Prasad Singh to join in pursuance of order of appointment as Principal, nor he himself took any initiative. Even the authorities of the Education Department failed to take any prompt action. Dr. Havildar Singh, however, made a representation on 1st June, J 988 before the Adminstrator/ Manager of the College that the candidate mentioned at serial No. 1 has not joined and therefore, he should be given chance. However, as no action was taken on this representation, he moved an application before the Deputy Director of Education under Section 17 (1) of the Uttar Pradesh Secondary Education Service Commission and Selection Board Act, 1982, hereinafter referred to 'act'. In this representation mention of application moved on 1st June, 1988 before the management of college, and fact of dismissal of the writ petition on 5th January, 1988, was specifically made. In this connection, another application by way of reminder was filed by him before the Deputy Director of Education 29th September, 1988. It was after these applications that the District Inspector of Schools passed an order on 27th October, 1988 directing the management to take immediate steps to hand over charge to Devi Prasad Singh and if he fails to assume charge by 15th November, 1988, it shall be inferred that he is not interested to join and order of appointment should be issued in favour of second candidate in the panel, In view of these developments, it appears, Devi Prasad Singh wrote a letter on 14th November, 1988 to the management and another letter dated 15th November, 1988 addressed to the District Inspector of Schools, seeking time to join by 15th December, 1988, He also requested the management to issue a fresh order to appointment. The Executive Officer/manager of the college vide order dated 29th November, 1988 intimated Devi Prasad Singh that he may join as Principal of the college upto 15th December, 1988. In this letter, it was also mentioned that this extension of time for joining the post is being granted with the condition that no further time shall be allowed. It was also stated to that the order of appointment already issued on 23rd December, 1985 is still effective and no fresh order is required. Devi Prasad Singh, however, failed to join as Princi pal on or before 15th December, 1988. By an application dated 14th December 1988, which appears to have been received by the management on 16th December, 1988, he sought further time upto 31st December, 1988. During this period Deputy Director of Education by his order dated 2ist December, 1988 directed to appoint Dr. Havildar Singh, the candidate mentioned at the second place in the panel, if Devi Prasad Singh has failed to join by 15th December, 1988. Dr. Havildar Singh also approached and moved an appli cation on 23rd December, 1988 for his appointment as Devi Prasad Singh failed to join upto 15th December, 1988. The management, however, by an order dated 29th December, 1938 further extended time upto 31st December, 1988. It is alleged that Devi Prasad Singh joined as Principal on 3jst December, 1988. On 23rd February, 1989, however, he proceeded on leave which was granted by the management vide order dated 22nd February, 1989. This leave was further extended on 15th May, 1989 for the period 1st May 1989 to 30th June, 1989. By another order dated 16th June, 1989 leave was granted for period 1st July, 1989 to 30th July, 1991. In this order dated 16th September, 1989 it was also directed that during the leave of Devi Prasad Singh, Jai Nath Singh Yadav, officiating Principal, shall continue as Principal as before. It may be mentioned that during this period of leave Devi Prasad Singh continued as Principal of Sri Krishan Geeta Rastriya Inter College Lalganj, Azamgarh. He resigned from this post on 29th June. 1989 and joined as Principal of Navodaya Vidyalaya, Vindhawal, Jaipur Pali, Rajasthan on 1st July, 1989. Admittedly, he has been confirmed as Principal of Novodayas Vidyaiaya in Rajasthan.
(3.) IN the aforesaid facts and circumstances, Dr. Havildar Singh filed Civil Misc. Writ Petition No. 19956 of 1989 for a Writ of mandamus directing respondents Nos. 2, 3 and 4 in the writ petition to appoint him on the post of Principal of the College and in the alternative he has also claimed a direction against respondent No. 2 to exercise powers under Section 17 of Act for the aforesaid purpose. IN this writ petition, Devi Prasad Singh was impleaded as respondent No. 1 vide order dated 11th November, 1991. Writ petition was allowed by the learned Single Judge vide order dated 4th October, 1994 aggrieved by which Nagar Palika INter College, Jaunpur through Manager/ Officer INcharge, Nagar Palika has filed Special Appeal No. 807 of 1994. IN this appeal Dr. Havildar Singh is respondent No 1 and Devi Prasad Singh is respondent No 6. Jai Nath Singh Yadav, who was allowed the continue as officiating Principal, filed Civil Misc. Writ Petition No. 2029 of 1992 claiming direction for payment of arrears of salary payable to Principal of the College w. e. f. 19th July, 1989 and also his regularisation as Principal. This writ petition has been dismissed by the learned Single Judge on 4th October, 1994 aggrieved by which Jai Nath Yadav has filed Special Appeal No. 804 of 1994.;