Division bench upheld the order of single bench consequently approval dated 18-May-1992 enforced.

This special appeal
has arisen from a judgment and order of the learned Single Judge dated 20
November 2015 by which two writ petitions filed by the appellant respectively
in 2008 and 2011 have been dismissed.
The dispute in the
present case relates to the appointment of a Head Master in a recognized and
aided Junior High School by the name of Maharshi Mukti Vidya Mandir Junior High
School, Lal Gopalganj, Allahabad. In pursuance of an advertisement which was issued
on 25 January 1992 in a newspaper, the seventh respondent, Ram Shanker Shukla
was selected to the post. An approval was granted on 18 May 1992 by the
District Basic Education Officer. An objection was raised by an Assistant
Teacher by the name of Uma Shanker Tripathi upon which the District Basic
Education Officer stayed his earlier order dated 18 May 1992 on 23 December
1992.
Several writ petitions
were filed before this Court – Writ Petition No. 26608 of 1992 by Uma Shanker
Tripathi for quashing the order of approval to the selection of the seventh
respondent; Writ Petition No. 8520 of 1993 by the seventh respondent for the payment
of his salary and another Writ Petition No. 45148 of 1993. The third writ
petition was dismissed on 10 February 1993. The first two writ petitions were
the subject matter of a common order dated 29 March 1995. The order of this Court held that the order
granting approval passed by the District Basic Education Officer could be
recalled only if it was obtained by fraud, misrepresentation or on a
misconception of fact or law.
Consequently it was left open to the
objector to submit his contentions to the appointment of the seventh respondent
to the District Basic Education Officer for expeditious consideration. If the
order of approval was to be maintained, a direction was issued that the seventh
respondent would be entitled to salary. The order of the learned Single Judge
dated 29 March 1995 was sustained in a Special Appeal on 19 May 1995.
In pursuance of the
order of the learned Single Judge, the District Basic Education Officer passed
orders on 4 September 1995 holding that the procedure which had been followed
in regard to the appointment of the seventh respondent was valid and in consonance
with law. However, a technical flaw
was found in the order inasmuch as the order in favour of the seventh
respondent appointing him to the post of Head Master was issued on 18 May 1992
whereas the Manager who issued the order had continued to function only until the
previous day, namely 17 May 1992.
This part of the order was again
called into question by the seventh respondent in a writ petition1. The
District Basic Education Officer had directed the new Manager to issue a letter
of appointment letter and it was this part of the order which was questioned by
the seventh respondent. The order of 4 September 1995 was also called into
question by Uma Shanker Tripathi in a writ petition2 and in another writ
petition3. Incidentally, it may be noted that the seventh respondent also filed
a writ petition4 for the payment of his salary from 18 May 1992. The entire
batch of writ petitions was disposed of by a learned Single Judge of this Court on 20 April 1998. The learned
Single Judge observed as follows:
“The District Basic Education Officer had approved the
selection on 18.5.1992. He had stayed his own order on 23.12.1992. In case in
pursuance of the order of approval Sri Ram Shankar Shukla joined the
institution and is in fact working there since then, there does not seem any
justifiable reason that he should not be paid salary for such period unless his
approval is held to be illegal. This Court while disposing of the Writ Petition
No.26603 of 1992 clearly held that the order of approval having been granted it
is liable to be cancelled only when it has been obtained by fraud and
misrepresentation.”
In the view of the
learned Single Judge, whether the seventh respondent had actually functioned
was a question of fact. Hence, it was left open to the seventh respondent to
submit a representation to the District Basic Education Officer who was
directed to determine as to whether the seventh respondent had actually been
working as Head Master, and in that event, an order would be passed for the
payment of salary.
The judgment of the
learned Single Judge dated 20 April 1998 was challenged in a Special Appeal5 by
the Committee of Management. The Special Appeal was admitted on 2 September
1998 and by way of an interim direction, the direction contained in the judgment
of the learned Single Judge for disposal of the representation was stayed until
further orders. As a result of the admission of the appeal and grant of stay,
the order of approval which was issued in favour of the seventh respondent on
18 May 1992 could not be implemented until the Special Appeal was itself
dismissed for want of prosecution on 11 May 2007. Thereafter, it appears that
the District Basic Education Officer addressed a communication on 28 November
2008 in regard to the implementation of the approval granted to the appointment
of the seventh respondent. On 25 September 2010, the Joint Director of
Education, Allahabad Division while adverting to the earlier letter was
constrained to appoint an Authorized Controller in respect of the institution.
In 2008, the appellant
filed a writ petition claiming to have been appointed on the post of Head
Master by the Management on 9 February 2005 and sought a mandamus for the
payment of arrears of his salary. In 2011, an order was passed by the
Authorized Controller implementing the appointment of the seventh respondent
which was called into question in a second writ petition instituted by the
appellant for challenging the order dated 13 April 2011. During the pendency of the writ petition, the order dated 13
April 2011, it is common ground, was stayed. Ultimately, it was only when the
learned Single Judge dismissed both the writ petitions filed by the appellant
that the cloud of uncertainty on the appointment of the seventh respondent was
lifted.
The only ground which
has been urged in support of the Special Appeal is that though the seventh
respondent had been selected as a Head Master in 1992 and his appointment had
been approved by the District Basic Education Officer on 18 May 1992, there was no justification for the
Authorized Controller to issue a direction on 13 April 2011 after a lapse of
considerable time in the intervening period allowing the seventh respondent to
take charge of the post.
In other words, delay is the only ground which is pressed in service of the
challenge to the judgment rendered by the learned Single Judge.
A close analysis of
the facts to which we have adverted would reveal that there was no substance in
the contention that the seventh respondent had been guilty of an unexplained
delay in pursuing his rights. On the contrary, it appears from the record that
though the seventh respondent was a duly selected candidate, his appointment
was repeatedly questioned and as a result of the pendency of litigation, the
appointment though approved by the District Basic Education Officer could not
be implemented for reasons beyond the control of the seventh respondent. The
approval of the seventh respondent was called into question. In 1993 itself,
the seventh respondent had also espoused his own remedy seeking disbursement of
his salary. In pursuance of the order of the learned Single Judge dated 29
March 1995, the District Basic Education Officer held by an order dated 4
September 1995 that the appointment of the seventh respondent had been made
following a proper selection procedure known to law. However, finding that the
actual letter of appointment had been issued by the Manager one day after his
term had ended, the new Manager was directed to issue a letter of appointment.
This was called into question by the seventh respondent. Again a batch of writ
petitions was filed in order to challenge the basic finding in favour of the
seventh respondent that his appointment was made in accordance with law. Those
writ petitions were ultimately disposed of on 20 April 1998 by the learned
Single Judge. The learned Single Judge observed in line with what had been
observed in the earlier decision of a learned Single Judge dated 29 March 1995
that unless the approval granted to the seventh respondent was vitiated by
fraud, misrepresentation or by misconception of law or fact, it could not be
abrogated.
The order of the
learned Single Judge dated 20 April 1998 directing the District Basic Education
Officer to determine whether the seventh respondent had actually worked, to
facilitate the disbursement of his salary could not be implemented as a result
of the Special Appeal which was filed in which the direction of the learned
Single Judge was stayed. This stay continued till 2007 when the Special Appeal
was dismissed for want of prosecution on 11 May 2007. Even thereafter, the
District Basic Education Officer addressed a communication on 28 November 2008
and eventually on 25 September 2010, an Authorized Controller was appointed.
While the Authorized Controller issued directions on 13 April 2011, they were
challenged by the appellant and the order was stayed.
The narration of facts
would indicate that the seventh respondent has not been indolent in pursuing
his rights and remedies and has been a victim of litigation. The approval which had been granted as far
back as in 1992 has never been disturbed. So long as the approval which was
granted to the seventh respondent continues to hold the field, the appellant
who has staked his claim in 2005 cannot claim any higher right.
In this view of the
matter, and for the reasons aforesaid, we find that the learned Single Judge
was not in error in dismissing the writ petition.
The special appeal
shall accordingly stand dismissed. There shall be no order as to costs.
Order Date :- 7.1.2016
RK
(Yashwant Varma, J)
(Dr. D.Y. Chandrachud, CJ)

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