Court No. - 55
Case :- SPECIAL APPEAL No. - 649 of 2011 Appellant :- Shane Raza Respondent :- State Of U.P. And Others Counsel for Appellant :- J.H. Khan,Gulrez Khan,W.H. Khan Counsel for Respondent :- C.S.C.,Mohd. Waris,Prabhakar Awasthi,T.I. Khan with Case :- SPECIAL APPEAL No. - 1907 of 2010 Appellant :- Faheem Haider Respondent :- State Of U.P. And Others Counsel for Appellant :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,J.H. Khan,M.A. Qadeer,Mohd. Waris,T.A. Khan,T.I. Khan
Hon'ble Vikram Nath,J.
Hon'ble Saurabh Shyam Shamshery,J.
We have heard Sri Gulrez Khan, learned counsel for the appellant in Special Appeal No.649 of 2011 and for respondent No.5 in Special Appeal No.1907 of 2010, Sri Prabhakar Awasthi, learned counsel appearing for respondent - Faheem Haider in Special Appeal No. 1907 of 2010 and for respondent No.5 in Special Appeal No.649 of 2011 and Sri Gopal Chandra Saxsena, learned Standing Counsel for the State-respondent.
Both the above appeals have been preferred assailing the correctness of the judgment and order dated 29.10.2010 passed by learned Single Judge in Writ Petition No.19505 of 2008 (Faheem Haider vs. State of U.P. and others) and Writ Petition No.24090 of 2008 (Shane Raza vs. State of U.P. and others) whereby both the writ petitions were dismissed.
I.M. Inter College, Amroha, Jyotiba Phule Nagar is an aided Minority Institution. Shane Raza - appellant in Special Appeal No.649 of 2011 was working on the L.T. Grade in the said institution. Three posts of Lecturer namely Lecturer (Hindi), Lecturer (Civics) and Lecturer (English) fell vacant on 1.7.2013. Shane Raza, the L.T. Grade Teacher was eligible for promotion to the post of Lecturer (Civics), however, on the said post, a direct recruitment was made and Faheem Haider was appointed as Lecturer (Civics) in the Institution.
Shane Raza filed Writ Petition No.59082 of 2005, assailing the orders passed by the District Inspector of Schools, Jyotiba Phule Nagar dated 2.11.2004 and 31.12.2004 whereby the District Inspector of Schools had granted approval to the selection and appointment of Faheem Haider on the post of Lecturer (Civics) by direct recruitment. The aforesaid writ petition was allowed vide judgment and order dated 23.10.2007. The orders passed by the District Inspctor of Schools were quashed and the matter was remitted to the District Inspector of Schools to decide the controversy afresh.
The learned Single Judge based upon material placed before it, recorded finding that in addition to the above three posts referred to above of Lecturer (Hindi Civics and English) another post of Lecturer (Geography) had fallen vacant on 1.7.2001 which has not been taken into consideration by the District Inspector of Schools. It accordingly recorded the finding that the post of Lecturer (Civics) was to be filled up by way of promotion and not by direct recruitment and accordingly remitted the matter to the District Inspector of Schools to pass fresh orders in the light of the observations made in the said judgment. It also left it open to the District Inspector of Schools to pass an appropriate orders with regard to the appointment of Faheem Haider directly on the post of Lecturer (Civics) by way of necessary modification or cancellation of the approval. It may also be noted that Faheem Haider was a party to the said writ petition No.59082 of 2005.
After the order of this Court dated 23.10.2007, the District Inspector of Schools passed a fresh order dated 11.3.2008. By the said order, the District Inspector of Schools directed the Committee of Management to pass an appropriate resolution for promotion of Shane Raza and to grant him promotion for the post of Lecturer (Civics) and further as there was no vacant post of Lecturer (Civics), approval granted to Faheem Haider's appointment was withdrawn. The District Inspector of Schools further observed that Committee of Management may take a sympathetic view with regard to Faheem Haider by providing him appropriate relief as and when in future posts are vacant.
The order of the District Inspector of Schools dated 11.3.2018 was challenged before this Court by way of two separate writ petitions filed by Faheem Haider and Shane Raza. Faheem Haider prayed for setting aside the order of District Inspector of Schools and to get his appointment as Lecturer (Civics) restored whereas Shane Raza filed the writ petition praying for being provided promotion from the date of the vacancy of Lecturer (Civics) or from the date of which his juniors have been promoted to the post of Lecturers in the institution.
Both the said writ petitions were dismissed by the learned Single Judge. Insofar as the writ petition filed by Faheem Haider was concerned, learned Single Judge was of the view that as the earlier order of the Writ Court dated 23.7.2007 had become final between and the findings recorded therein having claimed unchallenged the post of Lecturer (Civics), was to be filled by way of promotion only. Faheem Haider would thus have no case. Insofar as Shane Raza was concerned, the learned Single judge was of the view that the relief claimed for back dated promotion was barred by principles of res judicata as the same had not been claimed in the earlier writ petition.
It may also be recorded here that after the order of the District Inspector of Schools dated 11.3.2008, in the writ petition filed by Faheem Haider, there was an interim order dated 17.4.2008 providing that the status of the petitioner therein as a direct recruitee would not be disturbed.
Further after dismissal of the writ petition, in this appeal also there is an interim order in favour of Faheem Haider dated 30.11.2010 for the status quo as of date in respect of the post of Lecturer in the Civics in the Institution wold be maintained by the respective parties. Thus, as on date, Shane Raza has not been promoted nor has been extended any benefit to promotion for the post of Lecturer (Civics) from the date of the order of the District Inspector of Schools or from any earlier date as claimed by him and on the other hand Faheem Haider who was directly appointed in 2004 has continued as Lecturer (Civics) in the Institution and has been continuously receiving salary. We may also note that Shane Raza has since retired on 30.6.2011. Before we could proceed further in the matter, Sri Prabhakar Awasthi, learned counsel for Faheem Haider has prayed for some reasonable time to place further instructions in the matter.
We accordingly direct that this matter be listed on 13.2.2019 before the appropriate Bench.
The matter shall not be treated as part heard/tied-up to this Bench.
Order Date :- 22.1.2019 Rishabh