JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Heard learned Counsel for the appellant and Sri K.P. Shukla, appearing for the contesting respondent.
2. This is an appeal against the judgment and order dated 13.11.2006 passed the learned Single Judge dismissing the writ petition filed by the appellant. The appellant has filed the writ petition challenging the order dated 4.7.2001 passed by the Joint Director (Education) by which the representation of respondent No. 4 was allowed, and he was held to be seniormost Lecturer.
3. Sri K.P. Shukla has raised a preliminary objection regarding maintainability of the appeal. He has submitted that the order of the Joint Director of Education was passed in exercise of appellate jurisdiction under Chapter II Regulation 3 of the Intermediate Education Act, hence the special appeal is barred under Chapter VIII Rule 5 of the High Court Rules. Shri Shukla has also filed a supplementary affidavit today bringing on the record the representation of respondent No. 4, on the basis of which the order was passed by the Joint Director of Education. He submits that the said representation although termed as a representation, but in essence is an appeal under Chapter II Regulation 3(1)(f) of the U.P. Intermediate Education Act. Regulation 3 of Chapter II deals with the seniority to be maintained by the Committee of Management of every Institution. Regulation 3(1) Classes (e) and (f), which are relevant in the present case, are extracted below:
3. (1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions:
(e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision.
(f) Any teacher aggrieved by the decision of the Management Committee under Sub-clause (e) within 15 days of the date of information of such decision to the teacher, may appeal to concerned Regional Deputy Director and on appeal after giving an opportunity of hearing to the concerned parties, Deputy Director will give his decision with reasons, which will be final and executed by the Management Committee.
4. According to Regulation 3 (1) sub Clause (e) every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision. Under Sub-clause (f), the person aggrieved by the decision of the Committee of Management is entitled to prefer an appeal within 15 days from the date he is communicated the decision of the Committee of Management. The submission of Shri Shukla that mere mention of representation is of no consequence is correct. For determining as to whether the representation submitted by respondent No. 4 on 30.10.2000 was in fact an appeal under the Regulation, we have perused the said representation. The subject of the representation is determination of seniority of the working Lecturers of the Institution. In the prayer clause also, there is also no prayer for setting aside any decision of the Committee of Management determining the seniority, nor in fact, in whole of the representation, there is any mention regarding decision of dispute of seniority by the Committee of Management, which is condition precedent for filing of appeal. There is no order of the Committee of Management determining the seniority, hence the appeal cannot be filed as contemplated under Regulation 3(1)(f). In the representation, the case of respondent No. 4 is that the seniority is disputed and the order in which the names of Lecturer are recorded in the attendance register is not correct. He further submits that several representations have been given for amendment of the order of recording of the names of the Lecturers of the Institution, but no decision has yet been taken. The above statement in the representation in fact recognizes the situation that there is no decision of the Committee of Management on the complaint of respondent No. 4. Thus, the representation, which has been filed by the respondent No. 4 dated 30.10.2000 cannot be treated as an appeal within the meaning of Regulation 3(1)(f). Consequently, the order of the Joint Director of Education passed on the representation is not referable to exercise of appellate jurisdiction; hence the bar of Chapter VIII Rule 5 will not come into play.
5. Coming to the merits of the case, learned Counsel for the appellant submits that the appellant was promoted in the year 1982 and his promotion has already been declared valid by a Civil Court in Suit No. 158 of 1986. He submits that specific issues were framed and issue No. 1 with regard to promotion of the appellant, was answered in affirmative, a decree was passed by the Civil Court directing for payment of salary on the post of promotion. He submits that the said decree remain unchallenged and belatedly a writ petition has been filed by the respondent No. 4 against the said decree in this Court, but there is no interim order passed in favour of respondent No. 4.
6. Sri K.P. Shukla appearing for the respondent has submitted that the promotion of the appellant was rejected by letter dated 5.12.1985, hence he cannot claim promotion. He further submits that the Suit of the appellant in the Civil Court was barred, the Suit No. 158 of 1986 being not maintainable, the decree is ineffective and inconsequential.
7. We have considered the submissions and perused the records.
8. Before we proceed to examine merit of the case, the objection that the Suit was barred needs to be disposed of first. In support of his submission, Sri Shukla has placed reliance on Section 31 of the U.P. Secondary Education Selection Board Act, 1982 , which is extracted below:
31.Protection of action taken in good faith.- No suit, prosecution or other proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.
9. Section 31 of the Act protects against any person for anything, which is done in good faith under the Act, 1982. The protection is from prosecution or from any suit against any person with regard to anything done in good faith. The protection is for the officials discharging their duties in good faith. The said provision does not take away the jurisdiction of the Civil Court. It is well settled that the jurisdiction of the Civil Court under Section 9 of the Civil Procedure Code is very wide. The jurisdiction shall not be readily interfered to be barred unless it is expressly or impliedly barred by any statute or any law. Section 31 does not in any manner indicate that the Suit filed by the appellant was barred. The learned Single Judge in the impugned order and judgment although has noted the submission of respondent No. 4 that the Suit was barred, but the learned Single Judge has not recorded his conclusion that the Suit filed by the appellant was barred. However, in view of the facts and circumstances as quoted above, we are of the view that the Suit of the appellant cannot be said to be barred. The decree of the Civil Court has not been adverted by the learned Single Judge nor any finding has been recorded with regard to the said decree. The learned Single Judge opined that the appellant being only an ad hod Lecturer, cannot claim to be in regular cadre of Lecturer. Without adverting all the facts and circumstances of the case, no such conclusion can be drawn.
10. We are of the view that the writ petition of the appellant requires a fresh consideration by the learned Single Judge after considering all relevant facts including the effect and consequence of the decree of the Civil Court.
11. In view of the foregoing discussions, the order dated 13.11.2006 impugned in the appeal is set aside. The writ petition be now heard on merits. The appeal is allowed. We further observe that any interim order, which was in operation on the date the writ petition was dismissed, shall continue to operate during the pendency of the writ petition until further orders of first Court.