- (1.) V. K. Shukla, J. Petitioner Madhu Sudan Singh, Assistant Teacher in L. T. Grade in Ram Surat Singh Inter College, Tarighat, District Ghazipur, has approached this Court for following relief : " (a) Issue a writ, order or direction in the nature of mandamus directing the respondents to consider the promotion of the petitioner on the post of Lecturer in History without influencing order passed by Civil Judge, (S. D.) Ghazipur in Suit No. 349 of 1995. (b) Issue a writ, order or direction in the nature of mandamus directing the respondents not to allow the respondent No. 5 to continue on the post of Lecturer in History in the Institution. (c) Issue such other writ, order or direction which this Hon'ble Court deem fit and proper under the facts and circumstances of the case. (d) award cost of the writ petition to the petitioner. "
(2.) BRIEF background of the facts giving rise to instant writ petition is that in the District of Ghazipur there is Ram Surat Singh Inter College, Tarighat, District Ghazipur. Said institution as its name suggests engaged in imparting education up to Intermediate level. Affairs of the said institution is to be strictly managed in consonance of the provision of U. P. Act No. II of 1921. Said institution is in grant-in-aid list of the State Government and the provision of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are also fully applicable to the said institution. After enforcement of U. P. Act No. V of 1982 selection and appointment on the post of Principal, Lecturer and L. T. Grade teachers is to be made strictly as per the provisions as contained in U. P. Act No. V of 1982 and the Rules framed thereunder as well as Removal of Difficulties Order, which were prevalent at the said point of time. In the institution concerned petitioner had been appointed as C. T. Grade teacher and thereafter was promoted as L. T. Grade teacher and since then petitioner has been performing and discharging duties as L. T. Grade teacher. Four posts of Lecturers have been sanctioned in the institution concerned on 8th September, 1983 by the order passed by Director of Education and while sanctioning aforesaid posts of Lecturer categorical mention was made by the Director of Education that post of Lecturer in English shall be filled up by way of direct recruitment and the post of Lecturer in History, Economics and Sociology shall be filled up by way of promotion from amongst teachers who had been in L. T. Grade. Out of four posts which were there, Committee of Management proceeded to fill up one post by promoting Sri Ram Srish Singh as Lecturer in History and Sri Ram Ji Prasad was promoted as Lecturer in Sociology. One Jitendra Singh was appointed by direct recruitment as Lecturer in English and Kanhaiya Dubey was appointed as Lecturer in Economics by way of promotion. District Inspector of Schools did not accord approval to the promotion of Ram Srish Singh as Lecturer in History on the pretext that post in question had already been lapsed and against the said order 3-7-1992 passed by District Inspector of Schools Sri Ram Srish Singh preferred appeal before Deputy Director of Education, Varanasi which was entertained and order dated 17-3-1997 has been passed approving the promotion of Sri Ram Srish Singh and for making payment of salary. One Jwala Prasad who was also claiming promotion on the post of Lecturer in History challenged the said order dated 17-3-1997 by preferring Civil Misc. Writ Petition No. 1049 of 1997 wherein interim order was passed and operation of the order dated 17-3-1997 has been stayed. Said writ petition as on date stand dismissed. One Nagesh Kumar Singh Respondent No. 5 of present writ petition claims that vacancy of lecturer in History was published on 10-9-1992 and he applied and appeared before the Selection Committee and he was ultimately selected as Lecturer in History and he joined on 28-12-1992. Thereafter entire papers had been transmitted to District Inspector of Schools for according financial approval and repeated request was made but no order has been passed. As there was complete inaction on the part of the District Inspector of Schools, in this background Civil Suit No. 349 of 1995 was filed in the Court of Civil Judge (Senior Division), Ghazipur. In the said suit after hearing the parties on 17-1-1997 injunction order was passed directing no interference in the functioning of Nagesh Kumar Singh as Lecturer in History and payment of salary. Against the said order of Civil Judge, Appeal No. 5 of 1997 was preferred and therein no interim order was passed. Contempt proceedings under Order 39 Rule 2-A were initiated and thereafter in the threat of action in contempt matter as per the opinion of D. G. C. (Civil) Sri Haridwar Ram dated 12- 12-2001. Thereafter matter has been referred to Director of Education (Madhyamik) and thereafter to State Government and then on 6-8-2002 Special Secretary Education directed the Director of Education as well as District Inspector of Schools to make payment of salary as order of Court had been subsisting and thereafter salary was ensured to Nagesh Kumar Singh after financial approval was accorded on 13- 11-2002. In this background Nagesh Kumar Singh has tried to submit that his appointment is valid and he has rightly been paid arrears of salary also from 29-3-1992 to 30-8-2002. Petitioner has contended that Sri Ram Shirsh Singh who was promoted as Lecturer in History was promoted as Ad hoc Principal by virtue of being senior most teacher in the institution in the year 2001 and he retired on 20-6-2006 and thereafter Civil Misc. Writ Petition No. 14049 of 1997 has been dismissed as such post of Lecturer in History has substantively fell vacant qua the same he is entitled for the promotion, as such his claim is liable to be considered but on account of passing of order of injunction passed in Civil Suit authorities are proceeding to adjust Nagesh Kumar Singh on the said post of Lecturer in History in stead of considering the claim of the petitioner. At this juncture present writ petition has been filed. On presentation of the present writ petition this Court passed following order : "petitioner is directed to implead Civil Judge, Senior Division, Ghazipur as respondent No. 6 during the course of the day. Learned Standing Counsel represents respondent Nos. 1 to 3. A copy of the writ petition may be served upon Sri K. R. Sirohi, Advocate who represents newly added respondent No. 6 within two days. Issue notice to respondent Nos. 4 and 5 fixing 23rd March, 2007 as the date for appearance. Petitioner to take steps within a week. All the respondents may file counter-affidavit by the next date fixed. List on the date fixed. It is contended that Original Suit No. 349 of 1995 filed by Sri Nagesh Kumar Singh is legally not maintainable for following reasons : (a) a decree of permanent injunction for being permitted to work as Lecturer in a recognized Intermediate College and for no interference being placed in that regard, cannot be granted unless relief of declaration qua appointment being legal, valid and in accordance with law has been prayed for. (b) Provisions of U. P. Intermediate Education Act, 1921 and U. P. Secondary Education Services Selection Board Act, 1982 are self contained and appropriate remedy is provided therein to the teachers qua grievance in respect of ad hoc/regular appointment on the post of Lecturer and therefore, suit is impliedly barred in view of Section 9 of the Code of Civil Procedure. Learned Counsel for the petitioner submits that the temporary injunction granted by the Trial Court in the said suit is nullity being without jurisdiction and therefore, is liable to be ignored. It is further pointed out that the vacancy on the post of Lecturer (History) was caused in the institution on 30th June, 2006 with the retirement of Ram Shri Singh and therefore, the rights of the petitioner for being promoted against said vacancy caused in the year 2006 cannot be jeopardised in any manner by the injunction granted by the Trial Court in Original Suit No. 349 of 1995 on 17th January, 1997. Learned Counsel for the petitioner on instructions received, lastly submits that because of such injunction the District Inspector of Schools, Ghazipur has released arrears of salary to the tune of Rs. 7,00,000 (rupees seven lacs only) in favour of respondent No. 5. In view of the said statement, an investigation is required to be made by this, inasmuch as public money cannot be permitted to be siphoned on the basis of injunction granted by the Trial Court which prima facie appears to be without jurisdiction. Sri K. R. Sirohi, learned Counsel for respondent No. 6 may also file counter-affidavit with regard to the maintainability of Original Suit No. 349 of 1995. In the counter-affidavit to be filed by the District Inspector of Schools, Ghazipur it shall be indicated as to how arrears of salary has been released in favour of the respondent No. 5 when there was only one post of Lecturer (History) created in the institution and one Sri Ram Shrish Singh was already working against the said post, and was being paid salary admissible to the post of Lecturer. Let the District Inspector of Schools, Ghazipur remain present before this Court with all original records pertaining to the payment of salary to the respondent No. 5 on the next date fixed. It may also be clarified that in case the Court comes to the conclusion that payment of salary to two persons against one post of Lecturer (History) has been made by the District Inspector of Schools, Ghazipur the Court may proceed to direct that the double payment so made by recovered from the District Inspector of Schools through his personal assets. In the totally of circumstances as noticed herein above, petitioner has made out a prima facie case for grant of an interim order. Till the next date of listing respondent No. 5 shall not be paid salary without the leave of the Court. " Pursuant to directives issued by this Court, counter-affidavit has been filed on behalf of District Inspector of Schools, and on behalf of contesting respondent No. 5. To both the counter- affidavit, rejoinder affidavit has been filed. Apart from this original record of Original Suit No. 349 of 1995 has also been summoned and concerned Civil Judge Sri K. M. L. Srivastava, who had passed injunction order has also appeared in person.
(3.) AFTER pleadings mentioned above have been exchanged present writ petition has been taken up with the consent of the parties for final hearing and disposal. Sri R. C. Dwivedi, learned Counsel for the petitioner contended with vehemence that Original Suit No. 349 of 1995 filed by Nagesh Kumar Singh for permanent injunction is not legally maintainable as decree of permanent injunction for being permitted to work as Lecturer in a recognized Intermediate College and for no interference being placed in that regard, cannot be granted unless relief of declaration qua appointment being legal, valid and in accordance with law has been prayed for and further provisions of U. P. Intermediate Education Act, 1921 and U. P. Secondary Education Services Selection Board Act, 1982 are self contained and appropriate remedy is provided therein to the teachers qua grievance in respect of ad hoc/regular appointment on the post of Lecturer and therefore, suit is impliedly barred and further temporary injunction was nullity being without jurisdiction and as such this Court in exercise of its power vested under Article 227 of the Constitution of India shall quash the entire proceedings as appointment of Nagesh Kumar Singh is void on the face of it, and directives be issued for recovery of the amount which has been illegally paid to Nagesh Kumar Singh respondent No. 5 and further respondents be directed to consider the claim of the petitioner for promotion strictly in consonance with the provisions of U. P. Secondary Education Services Selection Commission Rules, 1998.;