Hon. Vivek Kumar Birla, J.
We have heard learned counsel for the parties.
The Special Appeal No.(318) of 2013 has been filed by Km. Abha Rani, the petitioner-appellant and Special Appeal No.(320) of 2013 has been filed by Arya Kanya Pathshala Inter College, Muzaffar Nagar through its Manager, against the judgment of learned Single Judge dated 4.2.2013. The delay in filing both the special appeals was condoned by order dated 15.4.2014.
An advertisement was carried out inviting applications for appointment of Lecturer in 'Drawing and Painting' in Arya Kanya Pathshala Inter College, Muzaffarnagar, on the posts reserved for Scheduled Castes/ Scheduled Tribes and Other Backward Classes. The advertisement provided that in case suitable candidates are not available, the vacancies can be filled up by general category candidates. Out of the 11 candidates who had applied, 5 were absent on the date fixed before the Selection Committee. Amongst the six, who had appeared Km. Abha Rani, the petitioner was placed at Sl.No.1, Km. Vijay Bhatnagar at Sl.No.2 and Km. Adarsh Kumari at Sl.No.3 by the Selection Committee on the basis of calculation of the marks obtained by them in the qualifying examinations. The Manager of the college appointed Km. Abha Rani vide appointment letter dated 29.1.1981. She joined on 2.2.1981.
By an order dated 4.2.1981 the Regional District Inspectress of Schools did not approve the appointment on the ground that both the posts were reserved for appointment. One of the candidates belonging to OBC had applied, who was eligible. The selections made by Selection Committee as against the reserved post was against the Rules and thus it was not possible to approve the appointment.
The Manager of the college submitted an explanation on 12.2.1981 to the Regional Inspectress of Girls School, Meerut stating that Km. Abha Rani, the petitioner has joined on 2.2.1981. So far as validity of her appointment is concerned, the Selection Committee had verified the documents and the eligibility of the candidates. The selections were made in accordance with the relevant rules. On enquiries made from the District Inspector of Schools, Muzaffarnagar, no information was given, which made it compulsory for the Committee of Management to appoint the candidate only from reserved categories. Smt. Omwati Pal, the candidate belonging to OBC was found wholly unsuitable for the post.
Smt. Abha Rani was not paid salary. She filed Writ Petition No.4853 of 1981 in which after considering the facts and circumstances of the case an interim order was passed directing the payment of her salary. The writ petition remained pending with interim order operative throughout. On 13.12.2010 this Court after taking into consideration the validity of the appointment after a period of 29 years observed that the entire claims set up by the petitioner is farce. The appointment was illegal as the procedure prescribed under the U.P. Intermediate Education Act of 1921 (the Act) was not followed. Neither any selection committee was constituted in accordance with Section 16F of the Act nor any selection was held in the manner prescribed. The Court making terse observations held that a person like the petitioner with the help of the management succeeded in drawing salary from the State exchequer without being appointed after following the statutory procedure, must be put to terms and thus not only entire salary, which the petitioner has drawn is to be recovered, exceptional costs should also to be imposed. The interim order was vacated with directions by way of interim measure dismissing the writ petition with costs of Rs.50,000/- to be deposited with the Registrar General of the Court, failing which the amount will be recovered from the District Magistrate. The writ petition was kept pending.
Learned Single Judge after issuing directions to recover the entire salary of 29 years paid to the petitioner and imposing cost of Rs.50,000/- was not satisfied and proceeded further to make observations to the effect:- "this Court will not become a party to such fraudulent appointment and withdrawal of money in the name of salary by such a petitioner. The Manager of the institution is equally responsible for the situation created." Further he observed that since there is nothing on record to show that steps were taken to serve the management of the institution arrayed as respondent no.2, it will be appropriate that Manager may be issued show cause notice as to why the entire salary paid to the petitioner on the basis of fraudulent appointment made in the institution contrary to the statutory rules may not be recovered from the assets of the management and for that purpose the matter will be listed in Court on 22nd December, 2010. A certified copy of the order was directed to be forwarded to the District Inspector of Schools to be communicated to the Management fixing 22nd December, 2010 for further orders.
Km. Abha Rani, the petitioner filed Special Appeal No.35 of 2011 against the order dated 13th December, 2010. A Division Bench of this Court found that the order though it appears to be an interim order, since the writ petition was dismissed, it has all the trappings of the finality, and is thus appellable under Chapter VIII Rule 5 of the Rules of the Court. The Division Bench held the appeal to be maintainable and proceeded to hear the matter on merits. The Division Bench allowed the appeal with the findings that a cryptic order was passed by the Regional Inspectress of the Girls School on 4.2.1981 disapproving the selection. It did not give the name of any eligible candidate of reserved category, and since the order had civil consequence, even though it was passed by the administrative authority, it should have contained reasons. In the absence of reasons no foundation could be laid to disapprove the appointment of the petitioner. The Division Bench after quoting S.N. Mukherjee v. Union of India, AIR 1990 SC 1984; Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and others, (1991) 2 SCC 716, and M/s Mahabir Prasad Santosh Kumar v. State of U.P. & Ors., AIR 1970 SC 1302 allowed the special appeal with the following order:-
"Against this background, it has been stated by the learned Standing Counsel that the matter is fixed before the learned Single Judge to decide it finally and he is not opposing the prayer for stay. However, when we find that so far as the petitioner is concerned, the order has reached to the finality even on the basis of the unreasoned order dated 04th February, 1981, we are of the view that neither such order of the authority nor the order of the learned Single can be sustained.
Hence, in totality, the order of the learned Single Judge dated 13th December, 2010 impugned in this appeal as well as the order under the challenge in the writ petition before the learned Single Judge being dated 04th February, 1981 passed by the concerned Regional Inspectress of Girls Schools regarding the appellant are set aside. Consequently, her service is deemed to be approved.
Accordingly, the special appeal is allowed, however,without imposing any cost."
After the order of the Division Bench allowing the special appeal No.35 of 2011 nothing further remained to be decided in the matter and only a consequential order was required to be passed by learned Single Judge.
It appears that the registry without noticing the fact that Special Appeal has been allowed, in compliance with the order of learned Single Judge dated 13.12.2010, which was set aside by the Division Bench listed the matter before Hon'ble Single Judge, who proceeded to hear the matter, as if he was hearing the matter all over again.
By the impugned judgment dated 4.2.2013 learned Single Judge reheard the matter and recorded the findings contrary to the findings recorded by the Division Bench and disposed of the writ petition once again holding that the petitioner's appointment was illegal, as it was not in terms with the Regulations, which provided for advertisement of the posts, constitution of the selection committee and award of quality point marks. He proceeded to decide the writ petition on different grounds altogether, which were not the basis on which the Regional Inspectress of Girls School had failed to note the appointment in her order dated 4.2.1981. The only reason on which the petitioner's appointment was not approved was that an unreserved candidate could not be appointed on the vacancy, which was advertised for reserved candidates. Learned Single Judge was fully aware of the judgment of the Division Bench by which the order of the Regional Inspectress of Girls School dated 4th February, 1981 was set aside and the appointment of the petitioner was deemed to be approved. Learned Single Judge noticed the findings of the Division Bench in the last paragraph of the judgment, still proceeded to record the findings, which were so recorded in his earlier judgment dated 13.12.2010, and insisted on the management to refund the entire salary paid to the petitioner by the State Government and the State Government was made entitled to recover the same in accordance with law from the Management.
We are not required to go into the merits of the matter as the order of the Regional Inspectress of Girls School dated 4th February, 1981 disapproving the petitioner's appointment was set aside by the Division Bench in its judgment in Special Appeal No.35 of 2011 between the parties, on 12.1.2011, and that the services of the petitioner were deemed to be approved.
In our view the principles of res judicata restrained learned Single Judge to proceed to hear the matter on merits. The case was listed before him after the judgment of the Division Bench only for consequential orders. He could not have proceeded to hear the matter all over again and to make same orders, which he had made earlier, except with a modification that the management will be liable to refund the entire salary paid to the State Government.
It is apparent that the learned Single Judge exceeded in exercise of his jurisdiction, sitting singly, overreaching the judgment of the Division Bench. The judgment delivered by learned Single Judge is thus inoperative in law.
Both the special appeals are allowed. The judgment of learned Single Judge dated 4.2.2013 is set aside with a declaration that it will have no effect on the appointment of the petitioner. Her appointment will stand approved with the judgment of Division Bench dated 12.1.2011 in Special Appeal No.35 of 2011. The petitioner is held entitle to cost for pursuing the matter before learned Single Judge and in this Special Appeal quantified at Rs.10,000/-. If she has not been paid salary in pursuance to the judgment of the Division Bench dated 12.1.2011, the same shall be paid to her without any delay.
Dt.27.05.2014 SP/