IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 91 of 2007 Committee of Management, Adarsh Junior High School, Manakpur Adampur, District- Haridwar through its Manager Sri Net Ram. …..…….. Appellant Versus Nishi Kumar and others ....……… Respondents Coram:- Hon’ble J.S. Khehar, Chief Justice Hon’ble Sudhanshu Dhulia, Judge Present: Mr. M.C. Kandpal, Senior Advocate with Mr. S.S. Chaudhary Advocate for the appellant. None for respondent Nos. 1 and 2. Mr. H.M. Raturi, Advocate for respondent Nos. 3 and 4. Mr. Lok Pal Singh, Advocate for respondent No. 5 and 6. Date of Decision: 29.04.2010 J.S. Khehar, C.J. Nishi Kumar and Tilak Ram, respondent Nos. 1 & 2 in the instant special appeal, approached the High Court of Judicature at Allahabad by filing Writ Petition No.44478 of 1992, which was on transfer to this Court, re-numbered as Writ Petition (S/S) No. 126 of 2002. The prayer made by respondent Nos. 1 and 2 in the writ petition was, that although they had been selected as class-IV employees, the District Basic Education Officer, Haridwar had refused to accord approval to their appointment, vide an order dated 24.09.1992. Respondent Nos. 1 and 2 accordingly sought a writ in the nature of certiorari for quashing the aforesaid order dated 24.09.1992. Writ Petition (S/S) No.126 of 2002 was allowed by a learned Single Judge of this Court on 13.06.2007. Operative part of the order rendered by the learned Single Judge is being extracted hereunder:- “In these circumstances, I do not find any ground that the District Basic Education Officer was right to refuse approval to the petitioners on the post of Junior Clerk and Peon especially when the posts were advertised, Selection Committee was constituted validly and one of the member of the Selection Committee was a representative of District Basic Education Officer. After the defect which was already cured by the Committee of Management, the petitioners are 2 already working on the basis of stay order granted by the Hon’ble Allahabad High Court in the year 1992. In these circumstances, I quash the orders dated 26.08.1992 as well as 24.09.1992 passed by the District Basic Education Officer, Hardwar.” 2. The order passed by the learned Single Judge dated 13.06.2007 allowing Writ Petition (S/S) No.126 of 2002 was assailed by the Committee of Management of the Adarsh Junior High School Manakpur (District-Haridwar) by preferring the instant Special Appeal No. 91 of 2007. It would be pertinent to mention that the case of the Committee of Management in the special appeal was, that respondent Nos. 5 and 6 i.e. Manoj Kumar and Lokesh Kumar were validly appointed as against the unauthorized appointment of respondent Nos. 1 and 2 Nishi Kumar and Tilak Ram. When the instant Special Appeal No.91 of 2007 came up for hearing on 16.03.2010, the sole appellant was unrepresented, but since the cause being pursued by the sole appellant was for the benefit and interest of respondent Nos. 5 and 6 in the instant special appeal, the Division Bench hearing the instant special appeal on 16.03.2010 did not place any credence on the fact, that the sole appellant was unrepresented as it was felt that respondent Nos. 5 and 6, whose interest was common with the sole appellant, would effectively assist this Court on the grounds raised in the special appeal. Accordingly, Special Appeal No.91 of 2007 was disposed of by an order dated 16.03.2010. The aforesaid order is being extracted hereunder:- “At the very outset, learned counsel for the appellant stated, that he desires to withdraw his Power of Attorney, in as much as he did not wish to represent the appellant any further. Prayer made by the learned counsel for the appellant is allowed. He is permitted to withdraw his Power of Attorney. 2. In the absence of the learned counsel for the appellant, we have gone through the impugned order dated 13.06.2007, whereby a learned Single Judge of this Court allowed Writ Petition (S/S) No. 126 of 2002. 3. During the course of hearing, learned counsel representing respondent nos. 5 and 6 desired us to set aside the order passed by a learned Single Judge, in other words, learned counsel for respondent nos. 5 and 6 expressed the same grievance, which was earlier expressed by the appellant, who had approached this Court. We, therefore, permitted learned counsel for respondent nos. 5 and 6 to assist this Court on behalf of the appellant. 3 4. During the course of hearing, learned counsel for respondent nos. 5 and 6 invited our attention to an order dated 24.09.1992. Through the aforesaid order the District Basic Education Officer, Haridwar had refused to grant permission for approving the selection of respondent nos. 1 and 2 herein. A perusal of the aforesaid communication reveals, that the aforesaid order passed by the District Basic Education Officer was on account of the solitary fact, that the recommendation for appointment of respondent nos. 1 and 2 was communicated by the Selection Committee directly to the District Basic Education Officer, whereas the same ought to have been forwarded for consideration by the Managing Committee of the Junior High School, Manakpur- Adampur, District: Haridwar. In so far as the sole issue on which the claim of respondent nos. 1 and 2 for appointment to the posts of junior clerk/peon was declined is concerned, the same has been dealt with by the learned Single Judge in the following manner: “In any case, the said refusal was on the basis that papers were not sent by the Committee of Management and were sent directly by the Selection Committee, the defect was curable and, in fact, the said papers were later on sent by the Committee of Management on 28.07.1992, which was received in the office of District Basic Education Officer on 05.08.1992, which is clear from the Annexure No. 7 to the writ petition.” 5. In the background of the factual position noticed hereinabove, we have considered the sole contention advanced by the learned counsel representing respondent Nos. 5 and 6. Firstly, the infirmity in the procedure, resulting in the denial of approval for respondent nos. 1 and 2, was not serious. If there was no fraud in the process of selection, the same ought to have been condoned. The learned Single Judge has categorically arrived at the conclusion, that the selection process was perfectly legitimate. In the aforesaid view of the matter, the selection process deserved to be affirmed despite the fact, that the Selection Committee had directly forwarded its recommendations to the District Basic Education Officer for approval. Secondly, even if the said infirmity could have been the basis of declining approval, the same has obviously been remedied now, as is apparent from the order passed by the learned Single Judge, in as much as the Management Committee has submitted the recommendation afresh on 28.07.1992. This aspect of the matter has not been disputed at the hands of the learned counsel representing respondent nos. 5 and 6. We, therefore, find no reason or justification to defer with the order passed by the learned Single Judge. 6. In view of the above, the instant Special Appeal is hereby dismissed.” 4 3. A recall application bearing No.238 of 2010 was filed by the sole appellant seeking recall of the order dated 16.03.2010. The sole ground agitated during the course of the hearing was, that the sole appellant had not been heard, and as such, the determination rendered by this Court on 16.03.2010 did not take into consideration various issues, which would have been canvassed at the hands of the appellant, had the appellant been heard on 16.03.2010. In this behalf it was also pointed out, that on an earlier occasion the sole appellant had moved a Withdrawal Application No.1300 of 2008, but the same was dismissed on 12.06.2008, so as to suggest that the representation of the sole appellant at the time of hearing and disposal of Special Appeal No.91 of 2007, on 16.03.2010 was not only essential but imperative. Having heard the learned counsel for the applicant/appellant, we were satisfied that the order passed on 16.03.2010, disposing of Special Appeal No.91 of 2007 in the absence of the sole appellant, deserved to be recalled. Having rendered our determination, as has been noticed hereinabove, learned counsel for the sole appellant was heard on merits so as to take into consideration the assertions that could have been made by the appellant at the time of hearing on 16.03.2010. 4. During the course of hearing on merits, learned counsel for the appellant invited this Court’s attention to the fact that the erstwhile Manager of the Committee of Management i.e. Shri Net Ram had died on 30.09.2009, whereafter the applicant i.e. Shri Bal Kishan Sharma was appointed in his place as Acting Manager of the Committee of Management. It is submitted, that the recall application was filed on 14.04.2010 depicting the aforesaid factual position. The affidavit filed by the Acting Manager is the sole basis of the contention sought to be advanced at the hands of the appellant during the course of the hearing. It is the vehement contention of the learned counsel for the appellant, that the claim made by respondent Nos. 1 and 2 Nishi Kumar and Tilak Ram in Writ Petition (S/S) No.126 of 2002 was based on a false and incorrect pleas, namely, that an appointment order had been issued in their favour, and on the basis thereof, they had rendered service at the Adarsh Junior High School, Manakpur even since the issuance of the appointment order. As against the aforesaid factual position, it is pointed 5 out that respondent Nos. 1 and 2 i.e. Nishi Kumar and Tilak Ram had actually not worked even for a single day. It is pointed out, that the erstwhile Manager Shri Net Ram had colluded with respondent Nos. 1 and 2 Nishi Kumar and Tilak Ram and, therefore, chose not to file any counter affidavit, so as to dispute the factual position before the learned Single Judge. It is also pointed out, that respondent Nos. 5 and 6 i.e. Manoj Kumar and Lokesh Kumar had been duly appointed against the same posts on which respondent Nos. 1 and 2 Nishi Kumar and Tilak Ram were appointed, and their appointment was approved by District Basic Education Officer. It is further submitted, that respondent Nos. 5 and 6 have regularly been discharging duties at the Adarsh Junior High School, Manakpur, even since their appointment. Based on the aforesaid facts it is vehemently contended, that the order dated 13.06.2007 passed by the learned Single Judge allowing Writ Petition (S/S) No.126 of 2002, as also the order passed by this Court disposing of Special Appeal No. 91 of 2007 had been rendered without taking into consideration relevant facts. 5. We have considered the submissions advanced on behalf of the sole appellant as have been noticed in the foregoing paragraph. It is not possible for us to accept the instant submissions for a variety of reasons, which are being recorded hereinafter. Firstly, it is acknowledged by the learned counsel for the sole appellant, that the facts depicted in the recall application on the basis whereof all the submissions have been advanced, were neither pleaded before the learned Single Judge in Writ Petition (S/S) No.126 of 2002, nor were they ever pleaded before this Court during the pendency of Special Appeal No. 91 of 2007 prior to its disposal, vide order dated 16.03.2010. It is certainly not possible for us to examine the pleas advanced by the learned counsel for the appellant, which have been narrated for the first time in the recall application filed by the appellant. Secondly, the contention advanced at the hands of the sole appellant are based on alleged conclusion between the erstwhile Manager of the Committee of Management of Adarsh Junior High School, Manakpur with respondent Nos. 1 and 2 i.e. Nishi Kumar and Tilak Ram. However, 6 the pleadings in the affidavit do not disclose the basis on which any such inference can be drawn. Thirdly, the submissions advanced by the learned counsel for the appellant are merely factual assertions at the hands of the successor Acting Manager of the Committee of Management of the Adarsh Junior High School, Manakpur without any authentication whatsoever. In the absence of authentication of the facts asserted at the hands of the appellant, on the basis of concrete material, it would be improper to adjudicate upon the matter again, on a set of facts which are in absolute contrast with the facts on the basis of which earlier orders were passed by this Court. And fourthly, the sole appellant has not disputed the veracity of the conclusions drawn by this Court in our order dated 16.03.2010 (extracted above) during the course of re-hearing of the instant special appeal. 6. In the facts and circumstances noticed in the foregoing paragraph, we are satisfied that the Special Appeal No. 91 of 2007 deserves to be disposed of in the same terms as it was earlier disposed of by order dated 16.03.2010. 7. Ordered accordingly. 8. Having considered the totality of the facts and circumstances of the instant appeal, as has been agitated before us after filing of Recall Application No.238 of 2010, we are satisfied that the cause raised by the appellant during the course of its re-hearing was wholly improper and unjustified. Unsubstantiated allegations against the erstwhile Manager alleging collusion have been levelled by the present Acting Manager of the Committee of Management of Adarsh Junior High School, Manakpur. Facts hitherto not available on the pleadings have been made the basis of raising a fresh claim before this Court. None of the facts, on which reliance has now been placed, has been substantiated by any means whatsoever, other than the assertion of the Acting Manager. In the peculiar facts noticed in the instant paragraph, we are satisfied that the appellant through the Acting Manager has 7 misused the jurisdiction of this Court for extraneous consideration by seeking recall of the earlier order dated 16.03.2010, and also, by agitating the matter afresh on issues which could not legitimately be agitated at the instant appellate stage. We accordingly hereby dismiss the instant special appeal with costs quantified at Rs. 10,000/- (Rupees ten thousand). The aforesaid costs shall be deposited by the appellant in the Uttarakhand High Court Lawyers Welfare Fund through the Registry of this Court within one month from today, and the receipt thereof shall be placed on the record of this case within the time stipulated hereinabove. In case, the aforesaid costs are not deposited within the time stipulated hereinabove, the instant special appeal shall be re-listed for motion hearing for the recovery of the aforesaid costs. ( Sudhanshu Dhulia, J. ) ( J.S. Khehar, C.J. ) 29.04.2010 29.04.2010 P. Singh