Gorakhnath Singh Yadav vs State Of U.P. & Others on 5 January, 2010

                                                            Court No. 18
           Civil Misc. Writ Petition No. 71736 of 2009
                     Gorakhnath Singh Yadav
                                  Vs.
                       State of U.P. & others
Hon'ble Sudhir Agarwal, J.

1. The counsel for petitioner submitted that in view of the order of
the Apex Court passed on 1.5.2009 passed in Special Leave to
Appeal (Civil) CC 3781 of 2009, he has filed the present writ
petition challenging the order dated 24.7.1993 and, therefore,
the writ petition, despite the fact that his earlier writ petition has
been dismissed, is maintainable.

2. However, I find no substance in the submission. It appears that
the petitioner initially filed writ petition 12080 of 1993 seeking
a writ of mandamus commanding the respondents to pay him
salary though in the meantime the District Inspector of Schools
had already passed an order on 24.7.1993 holding that the
appointment of the petitioner was illegal and against a non est
post which order was not challenged by him. An interim
mandamus was issued in the aforesaid writ petition which
continued for about 12 years and when the writ petition came up
for consideration before the Hon’ble Single Judge, it was
dismissed on 12.4.2005 on the ground that once the District
Inspector of Schools has found the appointment of the petitioner
illegal and the said order was not challenged, the writ petition
seeking writ of mandamus directing the respondents to pay
salary to the petitioner is not maintainable. The review
application was also rejected by the Hon’ble Single Judge on
30.9.2009 and, thereafter Special Appeal No. 673 of 2005 was
also dismissed on 14.10.2008. It appears that the petitioner filed
Special Leave Petition before the Apex Court and the same was
dismissed on 1.5.2009 with the following order :

“Mr. Jaideep Gupta, learned senior counsel appearing for
the petitioner wishes to withdraw the Special Leave
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Petition in order to challenge the order dated 24.7.1993,
passed by the District Inspector of Schools. Leave, as
prayed for, is granted. The Special Leave Petition is,
accordingly, dismissed as withdraw.

3. A perusal of the order of the Apex Court does not show that any
leave was granted to the petitioner causing modification in the
judgments of this Court permitting him to challenge the order
dated 24.7.1993 that too after 16 years. In fact the Apex Court
has only recorded the statement made by the counsel for the
petitioner before the Apex Court and, therefore, has passed its
order dismissing the Special Leave Petition as withdrawn. It was
open to the petitioner to challenge the order dated 24.7.1993 in
his earlier writ petition no. 12080 of 1993 but having chosen not
to do so, in my view, for challenging the order dated 24.7.1993,
no fresh writ petition is maintainable being barred by Order 2
Rule 2 in view of the law laid down by Apex Court in Union of
India Vs. Punni Lal, JT 1996 (9) SC 740.

4. Besides, I have also considered even the order dated 24.7.1993
on merits and find no reason to interfere with the same. It is not
in dispute that the post of Lecturer (Geography) fell vacant in
the year 1988 and no steps for filling the same were taken within
thee months from the date of occurrence of vacancy. Regulation
20 Chapter II of the Regulations framed under U.P. Intermediate
Education Act, 1921 reads as under :

“20. Where the Committee of Management has failed to
advertise any sanctioned post which has fallen vacant in
accordance with the Regulations contained in this Chapter
within a period of three months from the date of
occurrence of the vacancy, such post shall be deemed to
have been surrendered and shall not be filled up unless its
creation is sanctioned afresh by the Director.”

5. It is not in dispute that no order was passed by the Director for
creation of the post afresh and in the circumstances the finding
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recorded by the District Inspector of Schools that the post
having been abolished in view of Regulation 20 Chapter 2 and
not created afresh according to the procedure prescribed therein,
the alleged appointment of the petitioner was illegal as it was
against a non est post. Nothing has been placed before this Court
by learned counsel for the petitioner to show that the said
provision has no application in the case in hand or that any steps
were taken by the authority concerned for creation of the post.

6. In view of above, even otherwise, I do not find any legal or
factual error in the impugned order dated 24.7.1993.

7. The writ petition is, accordingly, dismissed.
Dt. 5.1.2010
PS