1. Heard Sri P.N. Saxena, Senior Advocate assisted by Sri Yogish Kumar Saxena, learned counsel for petitioner, learned Standing Counsel appearing for respondents no. 1 to 5, Sri B.P. Yadav, learned counsel for respondent no. 6 and Sri Rajneesh Kumar Srivastava, learned counsel for the respondent no. 7.
2. The writ petition is directed against order 30.7.2008 (Anenxure 9 to the writ petition) issued by District Inspector of Schools, Jaunpur (hereinafter referred as 'DIOS') directing management of committee of Janta Janardan Inter College, Jasupur, Chakia, Jaunpur (hereinafter referred as 'college') to ensure to provide charge of office of principal to Tej Bahadur Yadav so that there may not be any occasion of non-compliance of Apex Court's decision dated 16.5.2008.
3. Brief facts giving rise to this writ petition are that college is recognized under provisions of U.P. Intermediate Act, 1921(hereinafter referred as '1921 Act') and payment of salary is being made under U.P. Salary Act, 1971 ( hereinafter referred as '1971 Act'). The post of principal fell vacant on 30.6.2001 due to retirement of Awadhraj Yadav, the incumbent holding office of the principal. The vacancy was notified to U.P. Secondary Education Service Selection Board (hereinafter referred as 'Board'). The selection was held wherein the petitioner was placed at serial no. 1 and respondent no. 7 at serial no. 2 in the merit list (copy of selection list issued by the Board is annexure 1 to the writ petition). Consequently, DIOS issued a letter dated 24.4.2003 directing management of the college (respondent no. 6) to issue letter of appointment to the petitioner appointing him on the post of principal. The petitioner approached respondent no. 6 and also submitted an application on 2.5.2003 requesting to allow him to join as principal of the college but he was refused by manager. The petitioner reported this fact to the DIOS who thereafter issued a letter dated 20.5.2003 and warned respondent no. 6 against non-appointment of the petitioner.
4. In the meantime, advertisement issued by Board pursuant whereto the petitioner was selected, was quashed by this Court vide judgment dated 16.10.2003 in a bunch of writ petitions. The matter was taken in appeal and in the meantime in another writ petition filed by Ram Dhani Yadav, this Court passed judgment on 23.5.2005 permitting his continuance as adhoc principal till regular selection is made by the Board. The judgment of this Court setting aside advertisement was reversed by Apex Court in Civil Appeal Nos. 3938-3939 of 2008 Balbir Kaur & Another vs. U.P. Secondary Education Service Selection Board, Allahabad & others vide judgment dated 16.5.2008 whereafter the petitioner approached DIOS and the committee of management for appointment but instead the DIOS issued impugned order.
5. The petitioner has also filed supplementary affidavit placing on record his application dated 2.5.2003 sent to manager of the college requesting for permitting his joining; letter dated 14.5.2003 sent to DIOS regarding denial of joining by management; the petitioner's letter dated 20.5.2003 sent to DIOS as reminder and letter dated 31.5.2003 sent by DIOS to manager stating that he should ensure appointment of petitioner failing which responsibility would lie on the management.
6. On behalf of respondents no. 1,3,4 and 5, counter affidavit has been filed sworn by Km.Sudha Vaidhya , Principal, Government Girls Inter College, Madiyahu, Jaunpur stating that manager of the college actually issued a letter of appointment to petitioner on 12.5.2003 but the petitioner did not respond. Thereafter reminder sent on 27.5.2003 yet petitioner failed to join. Later on, the petitioner sent a letter dated 18.11.2003 expressing his inability to join the college and in these circumstances, next selected candidate in the panel was issued appointment by committee of management. It is also said that there was a dispute between two persons claiming ad hoc appointment of the principal in the college. Writ petitions no.11937 of 2004 and 54952 of 2004 were filed which have nothing to do with the cause relating to petitioner. Further, the Special Leave Petition before Apex Court against judgment of this Court had also nothing to do with this petitioner but it relates to matter between the adhoc principal and respondent no. 7, hence the petitioner cannot claim any advantage thereof. Basically since the petitioner has declined to join the college vide letter dated 18.11.2003 (a copy whereof has been place on record as annexure 1 to the counter affidavit) the management appointed next person in the merit list and for a long time the petitioner did not claim appointment on the post of principal in the college hence stopped.
7. In reply to this counter affidavit, the petitioner, in his rejoinder affidavit has said that he never gave letter dated 18.11.2003 and this is a manipulated one. He has reiterated that he never applied DIOS or the management that he is not interested to join. Therefore entire story pleaded against him is totally false.
8. On behalf of respondents no. 1,3,4 and 5 supplementary counter affidavit has also been filed stating that alleged letter dated 31.5.2003 which has been stated in para 6 of supplementary affidavit and copy whereby is filed as SA-4 was never issued from the office of DIOS. There are two more counter affidavits, one on behalf of respondent no. 6 i.e. management of the college and another on behalf of respondent no. 7. The counter affidavit filed on behalf of respondent no. 6 has been sworn by Bansraj Yadav, Manager of committee of management. It is stated that pursuant to DIOS's letter dated 24.4.2003 appointment letter was issued to petitioner on 12.5.2003 directing him to join within a week but he failed. Reminder letter issued on 27.5.2003 but this time also petitioner failed to join. Thereafter respondent no. 6 received a letter dated 1.12.2003 from DIOS informing that petitioner by letter dated 18.11.2003 had informed that he was not inclined to join as principal of the college. He also enquired from management whether any letter of appointment was issued to petitioner, and if so, send a copy thereof. In reply thereto, manager of the college sent letter dated 15.12.2003 informing that letter of appointment was issued to petitioner on 12.5.2003 and reminder sent on 27.5.2003 but the petitioner neither attended nor has shown any inclination to join. It is in these circumstances, DIOS sent letter dated 22.7.2004 directing the manager of the college to appoint next candidate in the merit list i.e. respondent no. 7 on the post of principal; pursuant whereto, on 27.8.2004 letter of appointment was issued to respondent no. 7 appointing him on the post of principal. Respondent no. 7 submitted his joining on 31.8.2004 and thereafter started working as such.
9. Appointment of respondent no. 7 on the post of principal was challenged by one Ram Dhani Yadav claiming himself to be senior most teacher entitled to continue as officiating principal. Dispute coming to Court in writ petitions no. 11937 of 2004 and 54952 of 2004.The former was filed by Ram Dhani Yadav and latter by respondent no.7. Hon'ble Single Judge vide judgment dated 23.5.2005 allowed writ petition no. 11937 of 2004 and dismissed writ petition no. 54952 of 2004. It is said that before Apex Court the petitioner was not a party but respondent no. 7 was party and therefore judgment of Apex Court would operate in favour of respondent no. 7. Committee of management has also resolved that respondent no. 7 would work on the post of principal,in the meeting held on 1.6.2008,pursuant whereto respondent no. 7 was directed to join the institution and he actually joined on 13.6.2008. His signature as Principal has also been attested by DIOS on 30.7.2008.
10. In rejoinder affidavit, the petitioner has denied of having received any letter of appointment or reminder from respondent no. 6. It is said that these documents are forged and fabricated. It is also said that respondent no. 6 deliberately, falsely informed DIOS about non-joining of petitioner and thereby made convenient platform for respondent no. 7 who was close relative of management of the college. Respondent no.7 has also taken a stand similar to that of management. However, he has stated that post of principal was advertised by the Board vide advertisement no.1 of 2002. He however, admits that in the select list prepared by Board for the post of principal of the college, name of petitioner was at serial no. 1 and that respondent no. 7 at serial no. 2. Letter dated 24.4.2003 issued by respondents was an appointment of petitioner is also disputed. He further states that management held its meeting on 1.5.2003 and decided to appoint petitioner on the post of Principal. Consequently, the letter of appointment was issued on 12.5.2003 and reminder was sent on 27.5.2003 whereas the petitioner failed to join. The petitioner thereafter declined to join as principal by submitting letter dated 18.11.2003 in the office of DIOS. Consequently, letter was issued by DIOS on 1.12.2003 informing the management accordingly. Respondent no. 7 being next in the merit list was issued letter of appointment dated 27.8.2004 pursuant to DIOS's letter dated 22.7.2004 whereby he directed to appoint respondent no. 7 as Principal of the college. Respondent no. 7 joined on 31.8.2004. DIOS passed order dated 25.11.2004 for payment of salary to him.
11. One Ram Dhani Yadav, the then officiating principal of the college however filed writ petition no. 11937 of 2004 challenging placement of respondent no. 7 in the select list for appointment as principal of the college. Respondent no. 7 also filed writ petition no. 54952 of 2004. Hon'ble Single Judge vide judgment dated 23.5.2005 allowed writ petition of Ram Dhani Yadav but dismissed writ petition of respondent no. 7. The Court observed that advertisement having already been quashed by this Court and since respondent no. 7 had not challenged it before the Apex Court, he had no right to claim. Against judgment dated 23.5.2005 respondent no. 7 preferred SLP bearing no. 14417-14418 of 2005. He filed another SLP no. 7904 of 2005 challenging judgment dated 16.10.2003 whereby advertisement was quashed. In the meantime, the officiating principal Ram Dhani Yadav filed contempt petition no. 2781 of 2005 seeking implementation of judgment dated 23.5.2005. Hence this Court vide judgment dated 12.2.2007 directed the management to allow Ram Dhani to function as officiating principal of the college. It is said that after Apex Court's judgment dated 16.5.2008, whereby the High Court's judgment quashing advertisement has been reversed, respondent no. 7 is entitled to continue as Principal since he was party in the Apex Court and petitioner being not a party, is not entitled for the office of Principal.
12. In rejoinder affidavit, petitioner has again disputed issuance of any letter of appointment in his favour.
13. Sri P.N. Saxena, Senior Advocate assisted by Sri Yogish Kumar Saxena, Advocate has contended that first question to be answered is, whether petitioner was ever issued appointment letter as claimed by respondents or not. If the story set up regarding issuance of appointment letter to petitioner is found fabricated and manipulated, the entire subsequent facts and the story set up by respondents shall fall, and petitioner would be entitled to be appointed as Principal of the college.
14. Second thing to be considered is, whether at any point of time petitioner ever informed DIOS that he is not inclined to join as principal of the college.
15. To examine above first important aspect, averments showing relationship between manager of committee of management and respondent no. 7 are to be seen. In para 5 of writ petition, the petitioner has categorically said that respondent no. 7 is the son-in-law of Vanshraj Singh Yadav, manager of committee of management of the college. The averment in actual words reads as under:
"5. That it is pertinent to mention here that the respondent no. 7 namely Sri Tej Bahadur Singh Yadav is son in law of the son of the Manager of the Instt. Namely Vanshraj Singh Yadav. The fact remains that Sri Vanshraj Singh Yadav is working as manager of the instt. While his son namely Raj Narayan is working as head clerk of the instt. and the daughter of Sri Raj Narayan namely Smt. Nisha has been married to the respondent no. 7. The respondent no. 7 is also working as ad-hoc lecturer in the same instt. In fact the appointment of Sri Raj Narayan as well as the respondent no. 7 in the same instt. Is clearly against the provision of U.P. Intermediate education Act 1921 itself."
16. Interestingly, the matter of relationship has not been denied in all three counter affidavits referred to above. I would prefer to reproduce reply given by official respondents as well as respondents no. 6 and 7 respectively to para 5 of the writ petition which read as under:
"27. That the contents of paragraph no. 5 of the writ petition are denied as stated. In reply thereof it is stated that on the selection made under the U.P.Act No. 5/1982 there is no impact of relationship. This fact has been considered by the Division Bench of this Hon'ble Court in case of Shanti Prasad Versus Joint Director of Education reported in 2006(1) ESC 729 in which this Hon'ble court observed that appointments made under U.P. Act No.5/1982 the relationship has got no relevance. This judgment has also been subsequently followed by the single Judge of this Hon'ble court in case of Smt. Urmila Singh Versus State of U.P. and others in writ petition no. 49557/2007. Therefore, the appointment of the deponent can not be challenged on this basis. "
17. It is no doubt true that relationship of manager with respondent no. 7 as such may not be a disqualification for appointment as Principal in the college, but this close relationship may have some bearing on the matter.
18. The question arose whether there could be and was a deliberate attempt on the part of management not to permit any other person to join as Principal of the college and instead to create a situation so as to result in appointment of respondent no.7 as Principal.
19. Once it is not disputed that in the merit list, for the college in question, petitioner was at serial no. 1 and respondent no. 7 was at serial no. 2, without excluding petitioner, respondent no. 7 could not have been appointed in the college. The letter dated 24.4.2003 issued by District Inspector of Schools directing management to appoint petitioner as Principal of the college is not disputed. The official respondents in para 3 of the counter affidavit have admitted para 4 of the writ petition wherein reference to letter dated 24.4.2003 is given. It is also admitted by respondent no. 6 i.e. committee of management. Respondent no. 7 has also not disputed said letter.
20. A common stand however has been taken by respondents no. 6 and 7 that letter of appointment was issued to petitioner on 12.5.2003 directing him to join but he failed. Reminder was also issued on 27.5.2003. This averment made in para 3 of counter affidavit of respondent no. 6 has been denied in para 9 of rejoinder affidavit stating that these two documents are forged and fabricated. It is also said that same is result of collusion of respondent no. 6. Similar stand is taken in paragraphs 7 and 8 of the counter affidavit of respondent no. 7 and has been disputed and denied in para 9 and 10 of rejoinder affidavit stating that these documents are manipulated.
21. During course of the arguments this Court enquired from learned counsel appearing for respondents no. 6 and 7 as to how and in what manner the two letters dated 12.5.2003 and 27.5.2003 were issued and communicated since nothing has been placed on record as to how these letters were sent to petitioner and whether they were served upon him. Annexure CA-1 to the counter affidavit filed by respondent no. 7 is the copy of the letter dated 12.5.2003. Though it is signed by manager Vanshraj Yadav but neither it contains any number or anything else to show the manner in which it was communicated to petitioner. A copy of this letter is addressed to Secretary, U.P. Secondary Education Selection Board, Allahabad, Joint Director, Varanasi and D.I.O.S., Jaunpur. Reminder letter dated 27.5.2003 which is CA-2 to the counter affidavit of respondent no. 7 though has been given number but the manner in which it was communicated to petitioner is not clear. Copy of this letter is endorsed to District Inspector of Schools, Jaunpur and Joint Director of Education, Varanasi. However, both these letters appear to have not been received by District Inspector of Schools otherwise there could not have been any occasion for him to enquire from manager of the college on 1.12.2003 whether the petitioner has ever been issued letter of appointment by manager or not, and if so sent a copy thereof. This letter reads as under : -
Þmi;qZDr fo"k;d Jh mekdkUr JhokLro p;u cksMZ }kjk p;fur iz/kkukpk;Z us vius i= fnukad 18&11&03 }kjk voxr djk;k gS fd mudk p;u vkids fo|ky; esa iz/kkukpk;Z in ds fy, fd;k x;k Fkk fdUrq vc os vkids fo|ky; esa iz/kkukpk;Z in ij dk;ZHkkj xzg.k djus ds bPNqd ugha gSaA mDr ds lanHkZ esa d`i;k vki ;g voxr djkus dk d"V djsa fd D;k vki }kjk Jh mekdkUr JhokLro p;u cksMZ }kjk p;fur iz/kkukpk;Z dks fu;qfDr i= fuxZr fd;k x;k Fkk vFkok ugha ;fn gks rks mldh ,d izfr ¼Nk;k izfr½ miyC/k djkus dk d"V djsa ftlls vxzsRrj dk;Zokgh dh tk ldsAß
22. District Inspector of Schools however independently and on his own proceeded to issue letter dated 1.12.2003 referring to alleged letter dated 18.11.2003 stating that he (the petitioner) is not willing to join as Principal of the college though has been selected for the same. The DIOS's letter was replied by manager by letter dated 15.12.2003 in which letter number is given but nowhere shows manner in which alleged letter dated 12.5.2003 was communicated to petitioner. In a mechanical way, DIOS without making any enquiry into the matter, issued letter dated 22.7.2004 permitting and directing manager to appoint the next person in the merit list. In absence of anything on record to show that two letters dated 12.5.2003 and 27.5.2003 were ever issued and communicated so as to be served upon the petitioner in a recognized mode. This Court is justified to infer that no letter of appointment was ever issued to petitioner by respondent no. 6. Both the letters referred to in the counter affidavits of respondents no. 6 and 7 are unreliable.
23. Now going to another aspect whether petitioner informed District Inspector of Schools that he is not willing to join as Principal of the college, in this regard, in paragraph 5 and 8 of counter affidavits of respondents no.1,3,4 and 5, reference has been made to petitioner's letter dated 18.11.2003, a copy whereof has been placed on record as CA-1. This letter reads as under:
Þfnukad [email protected]@2003 lsok esa] Jheku ftyk fo|ky; fujh{kd tkSuiqj egksn;] lfou; fuosnu gS fd lfpo mRrj izns'k ek/;fed f'k{kk lsok p;u cksMZ bykgkckn ds i=kad ek0 f'k0 p0 [email protected] [email protected] fnukad [email protected]@2003 }kjk esjk p;u turk tukZnu b0 dk0 tklksiqj pfd;k] tkSuiqj ds iz/kkukpk;Z in ij fd;k x;k gSA bl lanHkZ esa vkidks voxr djuk gS fd eSa mDr fo|ky; esa iz/kkukpk;Z in ij dk;ZHkkj xzg.k djus dk bPNqd ugha gWawA vr+% Jheku th ls fuosnu gS fd mDr fLFkfr ls voxr gksrs gq;s vko';d dk;Zokgh djus dh d`ik djsaA Hkonh;
mekdkar JhokLro xzke o iksLV&fgUnh c?kSyk tkSuiqjß
24. Petitioner has replied both the paragraphs in para 5 and 8 of the rejoinder affidavit dated 23.8.2009 and also in para 9 of rejoinder affidavit dated 22.3.2008 which read as under:
"5. That the contents of paragraph no.5 of the counter affidavit are not admitted as stated and hence denied. It is further stated that the deponent never given letter dated 18.11.2003 showing that he has not interested to take the charge of institution on the post of principal. This manipulated letter by the respondent no. 6-7, who give this letter to take the benefit in favour of the respondent no.7."
"8.That the contents of paragraph no. 8 of the counter affidavit are not admitted as stated and hence denied. On its reply paragraph no. 11 to 17 of the writ petition are reaffirmed. It is also point out that deponent never inform to the respondent no.5 stating therein, he is not interested to join the post of Principal in the institution by this manipulated letter."
"9. That the contents of paragraphs no. 8 of the counter affidavit is not admitted as stated hence denied. In reply it is stated that the respondent no. 6 never sent any letter to petitioner for joining the post of Principal. Letter dated 12.5.2003, as annexed in this para under reply was never served upon petitioner. This letter is manipulated document with the collusion of respondent no 6."
25. Nothing has been placed on record by official respondents as to how and in what manner the DIOS of his office received letter dated 18.11.2003. In the writ petition also, petitioner, in para 8 of the writ petition, has said as under:
"8. That in spite of the quashing of the advertisement of the year 2002 by this Hon'ble court vide judgment dated 16.10.03, the respondent no. 7 got an alleged order dated 22.7.07 for his joining as principal by the then District Inspector of Schools by producing forged resignation letter by the petitioner. When the whole matter was brought to the knowledge of the District Inspector of Schools, he himself stopped the salary of the respondent no. 7. The adhoc principal of the instt. as well as respondent no.7 filed a writ petition before this Hon'ble court bearing no. 11937/05 and the writ petition no. 54952/04 filed by the respondent no. 7. Both the writ petition were clubbed together and decided the writ petition bearing no. 11937/05 filed by ah-hoc principal was allowed while the writ petition no. 54952/04 filed by the respondent no. 7 was dismissed. The order dated 22.7.04 by way of which the respondent no. 7 was appointed as principal has been quashed by this Hon'ble court. The true copy of the judgment dated 23.5.05 passed by this Hon'ble court is beige annexed herewith as ANENXURE III to this writ petition."
26. Respondents no. 1,3,4 and 5 in para 6 of the counter affidavit have not disputed the averment made in para 8 of the writ petition but only referred to writ petitions and stated that benefit thereof cannot be extended to the petitioner.
Þ6- ;g fd ;kfpdk ds izLrj&7 ,oa 8 esa of.kZr dFku ds mRrj esa ;g dguk gS fd ;kfpdk la0&[email protected] ,oa ;kfpdk la0&[email protected] rnFkZ ,oa izfri{kh la0&7 ds chp Fkk] ftldk ykHk ;kph dks ugha fn;k tk ldrkA 7- ;g fd ;kfpdk ds izLrj&9 ,oa 10 ds mRrj esa ;g dguk gS fd ;kph ekuuh; loksZPp U;k;ky; esa ugha x;kA ekuuh; loksZPp U;k;ky; esa ,l0 ,y0 ih0 rnFkZ iz/kkukpk;Z ,oa izfri{kh la0&7 ds chp FkhA vr% ,l0 ,y0 ih0 esa ekuuh; loksZPp U;k;ky; }kjk ikfjr vkns'k dk ykHk ;kph dks ugha fn;k tk ldrk] blds vfrfjDr pwWafd ;kph lUnfHkZr fo|ky; esa dk;ZHkkj xzg.k djus esa bPNqd ugha Fkk rFkk dk;ZHkkj xzg.k ugha fd;kA vr% mls ekuuh; loksZPp U;k;ky; ds fu.kZ; dk ykHk ugha fn;k tk ldrk gSAß
27. The reply of para 6 of writ petition is almost similar to counter affidavits of respondents no. 6 and 7 as is evident from paragraphs 5 and 28 respectively. Thus, nothing is clear from reply of official respondents contained in their counter affidavit as to how they received petitioner's letter dated 18.11.2003. They have not placed anything on record to show that it was actually submitted by the petitioner. Petitioner has specifically stated that this letter is a forged and factitious document. The falsity on the part of college is also evident from the fact that despite letter sent by District Inspector of Schools on 24.4.2003 the management did not communicate the petitioner regarding his appointment and the two letters relied by the respondents said to have been issued on 12.5.2003 and 27.5.2003 have not been shown that same were ever communicated or sent to the petitioner in a recognized manner so as to be received by him. It is difficult to assume that a person who has been selected by the Board after facing a gruesome competition would give up his claim for appointment without any reason therefor.
28. A Division Bench of this Court on 16.10.2003 held the selection illegal pursuant to advertisement of 2002 wherein the petitioner was selected. It is mere a reason to disbelieve the averment of respondents that there could be any occasion thereafter to petitioner to inform DIOS about his disinclination to join the college for the simple reason that the selection was quashed. The question of appointment or disinclination to join does not arise. Besides, I have carefully gone through copy of the letter dated 18.11.2003 (Annexure CA-1 to the counter affidavit of respondents no. 1,3,4 and 5). Apparently, to my observation, signature of petitioner on the letter did not tally with his signature he has put in on various pages of writ petition as well as affidavit and vakalatnama. The real distinction lie in the first word of his sir name 'Sri' in writ petition as well as in vakalatnama and affidavit. There are tense of signature of petitioner in his sir name 'Sri' said to have been signed on letter dated 18.11.2003 which is distinguished to those signatures signed in word 'Sri' on various pages of writ petition, vakalatnama as well as in affidavit It is also surprising that District Inspector of Schools had not even tried to verify the factum of issuance of such letter by calling petitioner. In the meantime, a tussle between respondent no. 7 and Ram Dhani Yadav continued in as much as Ram Dhani was trying to insist upon his continuance as officiating principal and respondent no. 7 was obviously interested to get that post which resulted in writ petition no.11937 of 2005 and 54942 of 2004. Some observations made by this Court in judgment dated 23.5.2005 in respect of subsequent events are also of some importance. This court has observed that selection in which respondent no. 7 was placed at serial no.2 in the merit list was quashed by thisCourt on 16.10.2003, despite that District Inspector of Schools issued order dated 22.7.2004 directing management to appoint respondent no. 7 as principal of the institution. After quashing of selection, everything disappeared and respondent no.7 thus could not have been recommended. Since manager was supporting respondent no. 7, he immediately issued a letter of appointment. This is evident from following observations made in order dated 23.5.2005 of this Court :
"The manager of the institution was also supporting Tej Bahadur Yadav, and all sort of help was being extended to him" .
29. Thereafter again some letters were issued to DIOS for supporting respondent no. 7. All these facts go to show that there was neither any occasion for the petitioner to show his disinclination for appointment as principal of the college nor respondents no. 5 and 6 could have taken any step for appointment of respondent no. 7 as principal of the college since the selection was already quashed and appeal was pending before Apex Court. So long as Apex Court has not decided the matter, question of appointment pursuant to the recommendation made by the Board would have not arisen. Therefore I am inclined to believe the averment of the petitioner that he did not submit any such letter dated 18.11.2003 and this letter is fabricated one and has no legal consequence on this issue. Whether this was fabricated by 'A' or 'B' may not be of much relevance for this Court. This letter appears not to have been sent by petitioner and therefore would have no legal consequence so far as rights of the petitioner are concerned.
30. Now, the next question is, if petitioner had not filed any appeal against judgment dated 16.10.2003 before Apex Court, can he not claim his right pursuant to the recommendation made by Board after the Apex Court has set aside judgment of this Court. Theme song of all respondents is that petitioner was not a party before Apex Court in the appeal against judgment dated 16.10.2003, hence benefit of Apex Court dated 16.5.2008 cannot be claimed by him. The petitioner claimed to have filed intervenor application No. 14417-18 of 2005 (Copy whereof has been filed as annexure 1 to the supplementary rejoinder affidavit dated 7.7.2009) wherein also he claimed to have disputed submission of any letter dated 18.11.2003. He also referred to his counter affidavit dated 24.4.2005 filed in writ petition no. 11937 of 2005 wherein in para 20 he said that he never refused to join on the post of principal at any point of time.
31. In my view, whether petitioner himself preferred an appeal or not, may not be relevant for the reason that once it is admitted that an appeal against the judgment was preferred before the Apex Court and the Apex Court has not passed specifically any individual order pertaining to the aforesaid judgment, but from perusal of the judgment of the Apex Court it appears that only question argued before it was whether the selection made by Board was rightly quashed by Division Bench in Special Appeal no. 159 of 2001 and other connected appeals or not, the Apex Court upheld the judgment of the Single Bench and set aside the Division Bench in respect of selection, also dismissed the writ petition. The result is that judgment of Hon'ble Single Judge in so far as it relied on the fact that selection was already quashed by a Division Bench, and adhoc principal can continue still regular selection is made, become inoperative. If that be so, it is evident that recommendation made by the Board which would be operative and has to be given effect to. It can not be said that it is only for the benefit of a person who had filed before the Apex Court though was not on the top of the merit list. The effect of judgment is that selection having been validated, the same has to be given effect to in the manner, same would have been given by the Board otherwise.
32. In view of above discussion, I am of the view that impugned order issued by DIOS directing respondent no. 6 to treat respondent no. 7 as Principal of the college and hand over charge of office of principal can be sustain. The writ petition is allowed. Impugned order is hereby quashed. Respondents no. 1 to 6 are directed to take steps for appointment of petitioner on the post of Principal of the college in accordance with provisions of 1982 Act and take appropriate step in this regard. Entire exercise shall be completed within two months from the date, a certified copy of this order is served upon concerned respondents.
33. Petitioner shall also be entitled to cost which is quantified to Rs.5000/- against respondents no. 5 and 6 to be shared equally between them.
Order Date :- 7.2.2011 P.P.