{"id":176882,"date":"2001-11-20T00:00:00","date_gmt":"2001-11-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shiv-kumar-tiwari-dead-by-l-rs-vs-jagat-narain-rai-ors-on-20-november-2001"},"modified":"2016-11-17T17:17:27","modified_gmt":"2016-11-17T11:47:27","slug":"shiv-kumar-tiwari-dead-by-l-rs-vs-jagat-narain-rai-ors-on-20-november-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shiv-kumar-tiwari-dead-by-l-rs-vs-jagat-narain-rai-ors-on-20-november-2001","title":{"rendered":"Shiv Kumar Tiwari (Dead) By L.Rs vs Jagat Narain Rai & Ors on 20 November, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shiv Kumar Tiwari (Dead) By L.Rs vs Jagat Narain Rai & Ors on 20 November, 2001<\/div>\n
Author: Raju<\/div>\n
Bench: S. Rajendra Babu, Doraiswammy Raju<\/div>\n
           CASE NO.:\nAppeal (civil) 3511  of  1997\n\n\n\nPETITIONER:\nSHIV KUMAR TIWARI (DEAD) BY L.RS.\n\n\tVs.\n\nRESPONDENT:\nJAGAT NARAIN RAI & ORS.\n\nDATE OF JUDGMENT:\t20\/11\/2001\n\nBENCH:\nS. Rajendra Babu & Doraiswammy Raju\n\n\n\n\nJUDGMENT:\n<\/pre>\n
RAJU, J.\n<\/p>\n
\tThis appeal has been filed against the judgment of a Division Bench of the
\nAllahabad High Court dated 14.2.1995 in Special Appeal No.88 of 1995, affirming
\nthe decision of a learned Single Judge of the said Court dated 16.1.1995 in
\nC.Misc.W.P. No.9255 of 1979, connected with W.P. No.17209 of 1992,
\nwhereunder the Writ Petition filed by Jagat Narain Rai (first respondent herein)
\nchallenging the order of the Deputy Director of Education Vth Region, Varanasi,
\ndirecting termination of his services as Lecturer in Mathematics and payment of
\nsalary and arrears to Shiv Kumar Tiwari (the original appellant in this case
\nsince died), came to be allowed and the Writ Petition filed by the deceased
\nappellant came to be dismissed.\n<\/p>\n
\tThe original appellant, Shiv Kumar Tiwari (hereinafter referred to as the
\nappellant), was appointed as a Teacher in Mathematics on 18.9.1969 in D.A.V.
\nIntermediate College (hereinafter referred to as the College) and the District
\nInspector of Schools, the Competent Authority, accorded approval of the
\nappointment only for Academic Session 1969-70.\tFor subsequent Academic
\nSessions 1970-71 and 1971-72 and 1972-73 also appointments afresh and
\napprovals likewise were said to have been granted.  At the end of the same,
\nwhen the College Management issued a Notice on 19.5.1973 that his term was
\nexpiring on 30.6.1973, the appellant filed a Civil Suit Case No.108 of 1973 before
\nthe IInd Additional District Munsif and the said Court, by a Judgment dated
\n25.5.1979, declared the appellant to be permanent Lecturer of the College in
\nquestion and, therefore, the Notice dated 19.5.1973 is illegal and void.  It is to be
\nnoticed at this stage that neither the State nor any authorities of the Education
\nDepartment or the first respondent herein, who by then came to be appointed as
\nLecturer in Mathematics on 6.9.1973, were ever made parties to the said suit and
\nadmittedly only the College and the Management were made parties.  On a
\nrepresentation made by the appellant to the Deputy Director of the Circle, without
\neven affording an opportunity to the first respondent, an order dated 9.11.1979
\ncame to be passed that in view of the judgment of the Civil Court the appellant
\nbecame the permanent Lecturer and the services of the first respondent are not
\nonly to be terminated but the salary, etc., have to be paid to the appellant.  It is at
\nthis stage that the first respondent challenged the orders of the authority dated
\n9.11.1979 in CMWP No.9255 of 1979 and the appellant also filed W.P. No.17209
\nof 1992 for payment of his salary.  The Writ Court not only stayed the order dated
\n9.11.1979 on 16.11.79 but confirmed the stay also on 23.2.1981.\n<\/p>\n
\tBoth the above Writ Petitions, which involved identical issues for
\ndetermination, were considered together by a learned Single Judge and while
\nallowing the Writ Petition of the first respondent, the one filed by the appellant
\ncame to be dismissed, as indicated above, holding as follows :-\n<\/p>\n
a) That the letter of appointment for the post could be issued only
\nafter grant of approval by the District Inspector under Section
\n16F of the U.P. Intermediate Education Act, 1921 and the
\napprovals were as a fact being granted for each of the
\nAcademic Years\t1969-70, 1970-71, 1971-72 and 1972-73.
\nThe appellant was aware of those facts and he was also
\nmaking applications every year for the purpose and, therefore,
\nwas fully aware that his appointment was on temporary basis.
\nNo approval of any appointment of the appellant for the period
\nsubsequent to 30.6.1973 was granted by the Competent
\nAuthority.\n<\/p>\n
b) Though the appellant was aware of the advertisement in
\nnewspaper inviting applications and selection proceedings
\nwere going on he did not challenge the selection process, nor
\nimpleaded the first respondent who was appointed on
\n6.9.1973 to the post or the Authorities of the Education
\nDepartment to the Suit C.S. No.108 of 1973 but only
\nimpleaded the College represented by the office bearers.
\nTherefore, the decree passed in the said Suit is not binding on
\nthe first respondent or the Education Department of the
\nGovernment.\n<\/p>\n
c) Since the appellant has not challenged the selection process
\nundertaken in 1973 and the appointment of the first
\nrespondent  the appellant has no right to oppose the
\npayment of salary to the first respondent.\n<\/p>\n
d) Since the decree passed by the Civil Court was only against
\nthe College and the President of the Society and the Manager
\nof the College in their individual names, it only binds them and
\nif they have allowed him to function as a Lecturer, they alone
\nare liable to pay the salary personally and it is open to the
\nappellant, if so advised, to proceed against them.\n<\/p>\n
e) The appellant did not as a fact function as Lecturer between
\n7.8.1973 and 16.6.1979 and the District Inspector of Schools
\ndid not agree to pay salary to the appellant.  Though the
\nDeputy Director passed an Order on 9.11.1979, the same was
\nstayed by the High Court on 16.11.1979 and the same was
\nconfirmed and in force till the main Writ Petition was allowed.
\nIt is not clear as to whether the Management of the Institution
\npermitted the fifth respondent (the appellant herein) to function
\nas Lecturer.\n<\/p>\n
The appeal filed by the appellant also came to be dismissed by the Division
\nBench, also for the reason that in view of the decision in Executive Committee
\nof Vaish Degree College, Shamli & Ors. Vs. Lakshmi Narain & Ors. [AIR
\n1976 SC 888] followed by the High Court in Agarwal Digambar Jain Samiti,
\nMoti Katra, Agra Vs. Sri Badri Prasad Srivastava [1984 UPLB & EC page 638]
\nno declaratory suit of the nature could have been filed and the decree of the Civil
\nCourt is not relevant.\tHence, this appeal.\n<\/p>\n
Heard S\/Shri K. R. Nagaraja and R.S. Hegde for the appellant, Shri Sunil
\nGupta for the first respondent and Ms.Alka Agrawal and Mr.Sarvesh Bisaria and
\nMr. P.P. Singh for the other respondents.   Apart from submitting arguments, on
\ntaking permission the counsel for the appellant as well as respondents 4 and 5
\n(the College Management) have filed written submissions separately but in
\nsubstance taking almost identical stand, in their attempt to meet the case of the
\nfirst respondent and the Education Department.\tThe stand taken in the written
\nsubmissions filed seems to have been more in desperateness than on the basis
\nof any principle of law or reason.  The appellant and the Management of the
\nCollege seem to have acted not only in lethargy but also with wishful and selfish
\naims of their own and, therefore, could not either justifiably attempt or legitimately
\nsucceed to throw any blame upon the first respondent or the Departmental
\nAuthorities for the woes or ills brought upon themselves by their own conduct.\n<\/p>\n
There is no controversy that the Institution had only one sanctioned post of
\nLecturer in Mathematics as on date and if the work load and sanctioned strength
\nreally required more than one they should have moved the Competent
\nAuthorities in accordance with law and obtained proper sanction for more than
\none.  The learned Single Judge in the High Court has adverted to certain facts,
\nstated to be on the basis of records, that the Competent Authority has not only
\nbeen according approval of the appellant on temporary basis, academic year-
\nwise, but the Management had been calling for applications and the appellant
\nhad been applying every time and it is only in 1973 when his period was about to
\nexpire, the appellant moved the Civil Court for relief taking altogether a different
\nstand.\tThough the appellant should have known there could not have been any
\nappointment for any period or duration without the approval of the Competent
\nAuthority and the relief sought for involved a decision on the exercise of powers
\nalready made and to be made thereafter by such authorities, the appellant did
\nnot care to implead the Department in the suit or even the first respondent in the
\npending suit when he came to be appointed, as admitted in para 2 of the written
\nsubmissions of the Management, In the meanwhile, the respondent No.1, Shri
\nJagat Narain Rai, had been appointed by a regular selection process by an order
\ndated 06.09.1973 after obtaining the approval of the Department he was
\nappointed regularly and also as conceded in Para III of written submissions on
\nbehalf of the appellant\t  At the same time it cannot also be disputed
\nthat the respondent Shri Jagat Narain Rai has also worked as a Mathematics
\nLecturer with effect from 6th September, 1973.\tIt is also undisputed that there is
\nonly one sanctioned post of Mathematics Lecturer against which two persons
\nhave been working with full work-load.\t The least said about the manner of
\nconsideration and disposal given in the judgment of the Civil Court in Suit No.108
\nof 1973 is better.  Such a Judgment could not be pressed into service to the
\ndetriment of the rights of the first respondent and it requires no serious exercise
\nto place on record the position of law that the judgment\/decree\/order of Courts or
\nany other authority binds only the parties to it, or their privies when it concern the
\nrights of parties and such proceedings purport to be adjudicate also rights of
\ncontesting parties by means of an adversarial process.\tEven assuming that the
\ncommunication of the Deputy Director proceed to accept its binding nature  it
\ncould not have been legitimately made to the detriment and prejudice of the first
\nrespondent and it is futile for the appellant or the Management to base any right
\non that alone.\tThe plea that the Department or the first respondent should have
\nfiled an appeal, though not parties to the suit, at any rate, does not lie in the
\nmouth of either the appellant or the Management to be taken.  Though it would
\nhave been open to them to file an appeal with the leave of the Court, there is no
\nduty or obligation cast on them to do on pain of distress when in law they could
\nalso legitimately ignore, as not affecting them.  The judgment of the Civil Court in
\nSuit No.108 of 1973 has no value or merit for asserting any claim or right against
\nthe first respondent or the officers of the Education Department.\n<\/p>\n
\tThat apart, on coming to know of the orders of the Deputy Director dated
\n9.11.1979, the first respondent filed CMWP No.9255 of 1979 and obtained
\ninterim orders of stay on 16.11.1979 and the same was said to have been
\nconfirmed also on 23.2.1981.  In the teeth of the one only of sanctioned post,
\nthere was no justification whatsoever either in law or otherwise for the College
\nManagement to have allowed the appellant to continue in service or availed of
\nhis services, as they claim and the appellant could not also after the said orders
\nof the High Court legitimately claim to continue in office and worked as he
\nclaimed without receiving payment of any kind, as alleged, for such a long period.
\nIt is not known with what hopes or aim such things have been allowed to take
\nplace by them.\tThere is no rhyme or reason for them now to plead for or claim
\nany equities or throw blame upon others and use it as a cover to make such
\nclaims as cannot be countenanced in a Court of Law.  While that be the position,
\nthe Management could not take any exception to the order of the learned Single
\nJudge holding that the decree of the Civil Court being only against the Society, its
\nPresident and Manager by name and if they have permitted him to function, they
\nare liable to pay the salary personally, leaving at the same time liberty with the
\nappellant, if so advised, to proceed against them.  It could, therefore, be seen
\nthat the said observation became inevitably necessary in the light of the rights
\ndeclared in favour of first respondent while allowing his Writ Petition and for
\nrejecting as a consequence the Writ Petition filed by the appellant, without
\ngranting, at the same time, any relief against the Management.\tThe plea of
\nestoppel sought to be pressed into service by the appellant as well as the
\nCollege Management against the Department is not only misconceived but has
\nno merit of acceptance when the very order of the Deputy Director choosing to
\naccept the judgment to the detriment of the rights of the first respondent, came to
\nbe set aside in the writ proceedings instituted by the first respondent.  Such a
\nplea also fails to take into account the vital fact that the authorities of the
\nEducation Department, the Deputy Director, could not have legitimately chosen
\nto accept a judgment to which he was not a party when such acceptance has the
\nimpact of directly and seriously prejudicing the rights of the first respondent, who
\nwas also not made a party to the suit before the Civil Court.\n<\/p>\n
\tThe Division Bench not only affirmed the judgment of the learned Single
\nJudge on the ground that it does not find any infirmity in the order of the learned
\nSingle Judge, but chosen to assign a further reason that the declaration of the
\nnature could not also have been granted by the Civil Court in favour of the
\nappellant in view of the decision of this Court in Executive Committee of Vaish
\nDegree College, Shamli & Ors. (supra) followed subsequently by the decision
\nreported in Agarwal Digambar Jain Samiti, Moti Katra, Agra (supra).  For the
\nreasons already stated, we also find that the order of the learned Single Judge is
\nwell-merited and does not suffer from any error or infirmity to call for interference
\neither in the hands of the Division Bench or in this appeal.  As far as the
\nadditional reason assigned by the Division Bench is concerned, the same cannot
\nalso said to be incorrect.  The decision of this Court in Vaish Degree College
\ncase (supra) not only dealt with the character and status of the Institution
\nregistered under the Registration of Co-operative Societies Act, but also
\nconsidered the legality, propriety and desirability of granting a declaration that the
\ncontract of service subsists taking into account the provisions contained in the
\nSpecific Relief Act, 1963.  The Division Bench chose to apply the said part of the
\ndecision to the case on hand, and rightly too, on the facts and circumstances of
\nthis case.\n<\/p>\n
\tFor all the reasons stated above, we see no merit in the appeal.  The
\nappeal shall stand dismissed.\tThe dismissal need not stand in the way of the
\nauthorities of the Department if, on their own, they are prepared to give any relief
\nto the College or the Institution keeping in view any of the special circumstances
\nof this case without detriment to the rights of the first respondent.  There will be
\nno order as to costs.\n<\/p>\n
J.\n<\/p>\n
(S. Rajendra Babu)<\/p>\n
J.\n<\/p>\n
(Doraiswamy Raju)<\/p>\n
November 20, 2001.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shiv Kumar Tiwari (Dead) By L.Rs vs Jagat Narain Rai & Ors on 20 November, 2001 Author: Raju Bench: S. Rajendra Babu, Doraiswammy Raju CASE NO.: Appeal (civil) 3511 of 1997 PETITIONER: SHIV KUMAR TIWARI (DEAD) BY L.RS. Vs. RESPONDENT: JAGAT NARAIN RAI & ORS. DATE OF JUDGMENT: 20\/11\/2001 BENCH: S. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-176882","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShiv Kumar Tiwari (Dead) By L.Rs vs Jagat Narain Rai & Ors on 20 November, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shiv-kumar-tiwari-dead-by-l-rs-vs-jagat-narain-rai-ors-on-20-november-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shiv Kumar Tiwari (Dead) By L.Rs vs Jagat Narain Rai & Ors on 20 November, 2001 - 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