Reserved Court No. - 23 Case :- SERVICE SINGLE No. - 67 of 2009 Petitioner :- Digvijai Pratap S/O Late Saware And Another Respondent :- State Of U.P.Through Secretary Basic Education And Others Petitioner Counsel :- Janardan Singh Respondent Counsel :- C.S.C.,K.N.Shukla,Udai Bhan Pandey,Vishal Verma Hon'ble Shabihul Hasnain,J.
Heard Sri Janardan Singh, learned counsel for the petitioner, Sri Vishal Verma for opposite party No.3 and Sri Udai Bhan Pandey for opposite party NO.5. This petition has been filed challenging the appointment of the opposite party No.5. The order has been passed by District Magistrate vide order dated 5.10.2008 contained in annexure-6 at page 13 of the writ petition. The petitioner has also prayed for quashing of annexure-5 wherein the District Magistrate has called for comments of the Zila Basic Shiksha Adhikari, Gonda vide his letter dated September 10, 2008. The order of the District Magistrate dated 5.10.2008 has been passed on this report of the Basic Shiksha Adhikari in which all the details of the matter have been given. An interim order was passed in the writ petition on the first date after issuing notice to the opposite parties staying the operation of the District Magistrate order whereby the appointment to the opposite party No.5 has also been stayed. The counter affidavit in this regard is on record in which stay vacation application has been filed by the opposite party No.5 and the counsel which was filed in the month of March, 2009 along with stay vacation application. Since then no rejoinder affidavit has been filed in the matter by the petitioner and the interim order is continuing.
Today when the case was taken up further request was made by the petitioner counsel that a week's time may be granted for filing a rejoinder affidavit and the interim order may be extended till then.. This request was very strongly objected by learned counsel for the opposite party No.5 stating therein that the petitioner has no locus even then on the basis of this interim order her appointment has been stayed and she is out of job. He insisted that no further time should be granted or if time is to be granted for rejoinder affidavit then the stay may not be extended which has been granted in January, 2009 and exactly a year has passed today. In such a situation the Court asked the respective counsel to address the Court on merits. Learned counsel for the State as well as Basic Shiksha Adhikari were also heard. A preliminary question raised by the Basic Shiksha Adhikari as well as by the learned counsel for the opposite party No.5 is about locus of the petitioner.
Sri Janardan Singh, has vehemently argued that he has the locus as he was a candidate who was also selected by the Village Education Committee at serial NO.2, as has been mentioned in paragraph 2 of the writ petition. Learned counsel for the opposite parties have argued that once the opposite party No. 5 was appointed and she started working, the list becomes exhausted. The person at serial N.2 looses his right the moment the list comes to an end. In the present case, vide resolution dated 7.9.2001 the name of the opposite party No. 5 was sent for approval which was approved by the District Level Committee. A perusal of the writ petition and the averments therein it becomes very clear that whole writ petition except for one paragraph does not disclose anything about the case of the petitioner. The whole petition is full of facts narrated against opposite party No.5. The work and conduct of the opposite party No.5 has been discussed which is not the business of the petitioner. When the petitioner is not selected and not given appointment he has no locus to discuss any thing taking place in the department.
Even otherwise, the main contention of the petitioner is that the District Magistrate has reviewed his earlier order by which the order has been recalled. The legal argument is that the District Magistrate does not have the power of reviewing his own order. Learned counsel for the opposite parties has argued that under General Clauses Act the authority who has the power of passing any order has the inherent power of cancelling the same. Moreover, learned counsel for the opposite party No.6 has further relied on the case law reported in (1994) 1 Supreme Court Cases 1, S.P.Chengalvaraya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by Lrs. And others wherein it has been stated by the Hon'ble Supreme Court that an order being obtained from the Court by any person through concealment of facts and on the basis of fraud should not be sustained. It has been held that such litigants who used the Court for causing injury to other should not be allowed to misuse the power of the Court. Further, reliance has placed on AIR 1996 Supreme Court 2592, Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd.
Court has heard both the parties as well as counsel for the Basic Shiksha Adhikari who has also brought to the notice of the Court that there are more petitioners regarding this matter and it is a case resulting out of enmity between one Sita Saran Jaiswal, who is Principal and Smt. Meena Pandey, who is opposite party No.5 and one Manoj Pandey who was also appointed as Shiksha Mitra. The petitioner in the present case has no locus and it is a proxy petition filed because of this enmity.
The Court has considered all the aspects of the matter and comes to the conclusion that firstly the petitioner has no locus; secondly the petition does not disclose petitioner's right to challenge the appointment of opposite party No.5. The petitioner does not have the locus to challenge the action of the District Magistrate in any manner whatsoever. The District Magistrate had passed his earlier order without hearing the opposite party No.5 and on an application moved by the opposite party No.5 that she has been condemned without opportunity of hearing, the District Magistrate after asking for the comments from the Basic Shiksha Adhikari has recalled his earlier order in favour of opposite party No.5. The Court feels that the petition is totally misconceived, misleading and devoid of merit and locus.
It is accordingly dismissed. Interim order contained therein is also discharged.
Order Date :- 13.1.2010 RKM.