Ashwani Kumar Mishra, J. - (1.) This petition is by the Committee of Management of the institution, challenging the order dated 4.7.2012, contained in Annexure-9 to the writ petition.The order of the Director Social Welfare records that in view of the order passed by the High Court in Writ Petition No. 24309 of 1993 ( Hari Lal Vs. Director Samaj Kalyan and others) dated 18.4.1996, the previous order passed in the matter on 2.2.2006 is recalled. Aggrieved by such order, the committee of management is before this Court.
(2.) There exists an institution known as Mahadevi Harijan Bal Vidyalaya, Langarpur Bankat, District Azamgarh. Dispute arose as to who are the validly appointed teachers in this institution. The Director of Social Welfare proceeded to pass an order on 19.6.1993, granting sanction for payment of salary to respondent Nos. 4 to 8 and also appointed a receiver, an officer of the department, to manage the institution. The Director specifically turned down the plea of appointment of 7 other alleged teachers, which was being sponsored by the committee of management of the institution, namely Hari Lal,,Urmila Kumar, Chandan, Smt.Prem Balika Devi, Radhika Devi and Ram Milan Yadav and Indra Bhushan. This order of the Director was assailed by filing Writ Petition No. 24309 of 1993 ( Hari Lal and 7 others Vs. Director Social Welfare and others), which was connected alongwith other writ petitions. These Writ petitions ultimately came to be dismissed on 18.4.1996. Learned Single Judge while dismissing the petition, took note of the provisions of Rule-9 of the 'Uttar Pradesh Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975' and returned a specific finding that none of the 7 teachers were appointed after following such procedure contemplated in law. The Court also took note of the fact that the appointment of these 7 persons was in teeth of a injunction order passed by the Civil Court, operating in the field. The judgment of the learned Single Judge was challenged in a batch of 3 special appeals with leading Special Appeal being Special Appeal No. 445 of 1998. The Division Bench vide judgment dated 23.1.2002 proceeded to dismiss the Special Appeal by returning a specific finding of non compliance of Rule-9 in the matter of appointment of these 7 teachers. The Division Bench further observed that the aspect relating to grant of injunction by the Civil Court had lost its relevance in view of the specific finding returned that such appointments were contrary to Rule -9 of the Rules. The relevant discussion of the Division Bench, in this regard reads as Under:- "There is no averment in the writ petition that the writ petitioners (appellants in the special appeals) had been appointed after following the procedure prescribed by Rule 9. There is no pleading that the vacancy had been advertised in two newspapers and thereafter any interview was held. Similarly, there is no pleading that the appointment of the writ petitioners had been made after previous approval of Basic Shiksha Adhikari. The Director has also recorded a finding that the Manager had appointed some persons who were his relations and while making the appointments, the requirement of Rule 9 had not been followed. In this view of the matter, the appellants cannot claim that they are legally appointed teachers of the School. Therefore, they have no legal right to get salary and the view taken by the Director is perfectly correct. It may also be mentioned here that in Writ Petition No. 8785 of 1993 and Writ Petition No. 16789 of 1993 giving rise to (Special Appeal Nos. 446 of 1998 and 447 of 1998), the writ petitioners concealed the fact that the respondent Nos. 2 to 7 had obtained a temporary injunction order in their favour in O.S. No. 424 of 1983, which continued to operate in their favour by virtue of the interim order dated 12.12.1991 passed in Writ Petition No. 35787 of 1991. The learned single Judge also took note of this fact and was of the opinion that this was an additional ground for dismissing the writ petitions. We are also in agreement with the view taken by the learned single Judge, A development which has taken place during the pendency of the appeals may also be noted. By the order dated 30.4.2001, a direction was issued for early disposal of O.S. No. 424 of 1983. The learned Civil Judge (Sr. Division), Azamgarh, by the judgment and order dated 6.11.2001 abated the suit on the finding that the same was cognizable by U.P. Public Services Tribunal and further issued a direction that the record be transmitted to the Tribunal. Learned counsel for the contesting respondents has made a statement that a revision has been preferred against the aforesaid order before the District Judge, Azamgarh. Learned counsel for the appellants has fairly admitted that the service dispute of a teacher is not cognizable by U.P. Public Services Tribunal. However, the decision of the suit will not make any difference now in view of the fact that the controversy has been decided by the Director, Samaj Kalyan, by his order dated 19.6.1993, wherein, a finding has been recorded that respondent Nos. 2 to 7 are working as Assistant Teachers in the school and they are entitled to get salary. Learned counsel for the appellants has urged that appointment of respondent Nos. 2 to 7 was also not proper and the same has not been made in accordance with Rules. In view of the finding of Director, Samaj Kalyan, U.P., in favour of respondent Nos. 2 to 7, we are not inclined to accept the contention of the learned counsel for the appellants. That apart, the appellants having filed the writ petition, they can succeed only by showing that their own appointment is proper and valid and that the same has been made in accordance with the Rules. The appellants having failed to do so cannot get any relief by contending that the appointment of the contesting respondents was not valid. The principal prayer made by the appellants is payment of salary to them, The Director, Samaj Kalyan, has recorded a clear finding in favour of respondent Nos. 2 to 7, that they are working as Assistant Teachers in the school. The appellants have not been found to be working as Assistant Teachers. It has not been pleaded by them that they possess the necessary qualification or their appointment was made in accordance with Rule 9 of the Rules. In these circumstances, the appellants have absolutely no case for payment of salary to them. We are in agreement with the view taken by the learned single Judge. All the special appeals lack merit and are hereby dismissed at the admission stage".
(3.) This order of the Division Bench was then challenged by filing Special Leave Petition ( Civil ) No.8094-8096 of 2002 before the Hon'ble Supreme Court, which came to be dismissed on 29.4.2002. The position in terms of the judgment of the Hon'ble Single Judge dated 23.1.2002, therefore, attained finality.;