JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Surendra Nath Singh, seeks a writ, order or direction in the nature of certiorari quashing the selection dated 3rd August, 1996, made by the U. P. Secondary Education Services Commission, Allahabad, respondent No. 1, filed as Annexure-11 to the writ petition insofar as it relates to the post of the Principal of Krishak Inter College, Thana Gaddi, district Jaunpur and other consequential reliefs.
2. Briefly stated, the facts giving rise to the present writ petition are as follows :
"In the district of Jaunpur, there is an Intermediate College in the name of Krishak Inter College (hereinafter referred to as "the College") situate at Thana Gaddi. It is a recognised institution and receives grant-in-aid from the State Government. It is governed by the provisions of the U. P. Intermediate Education Act, 1921 and the regulations framed thereunder as also the U. P. Secondary Education Services Selection Board Act, 1982 and the Rules framed thereunder. A post of the Principal in the college substantively fell vacant on 30th June, 1994, on account of retirement of Sri Nityanand Singh, the then Principal, The petitioner was appointed as officiating/ad hoc Principal of the college by the Committee of Management vide resolution dated 29th June, 1994 and his signature was attested by the District Inspector of Schools vide order dated 13th July, 1994, which has been the subject matter of challenge in Civil Misc. Writ Petition No. 14984 of 1994, filed by Raj Pal Singh. The Committee of Management notified the vacancy to the Commission through the District Inspector of Schools in July, 1994, for making regular selection on the post of the Principal. When no selection was made within 60 days, the Committee of Management, vide resolution dated 3rd September, 1994, appointed the petitioner as ad hoc Principal. The District Inspector of Schools, vide order dated 2nd March, 1995, granted approval to the ad hoc appointment of the petitioner on the post of the Principal. In the college, the petitioner and Raj Pal Singh, respondent No. 5, were the two seniormost Lecturers. The Committee of Management had sent the names of both these persons to the Commission for calling them at the time of interview. The vacancy was advertised by the Commission in the year 1995. The respondent No. 1 fixed 26th June. 1996, for selection/interview for the post of the Principal in the college. The Commission had sent notice to the two seniormost teachers calling them to appear for interview on the date fixed, i.e., 26th June, 1996. According to the petitioner, he did not receive any notice and, therefore, could not appear for the interview. The Commission proceeded to hold the interview and recommended Raj Pal Singh, respondent No. 5, on the post of the Principal, his name having been placed at serial No. 1 in the panel."
3. I have heard Sri D. S. M. Tripathi, the learned counsel for the petitioner, and Sri B. P. Singh, learned counsel, assisted by Sri Umesh Vats, on behalf of the respondent No. 5.
4. The learned counsel for the petitioner submitted that the selection made by the Commission is in breach of Rules 4 and 6 of the U. P. Secondary Education Services Commission Rules, 1995, inasmuch as the petitioner being one of the two seniormost Lecturers in the college, was not called for interview to be held on 26th June, 1996 and, therefore, the selection is liable to be set aside. In support of his aforesaid submission, he relied upon the following decisions :
(i) Kedar Nath Awasthi v. Administrator (Nagar Mahapalika) as Manager of Aminabad Intermediate College, Lucknow and Ors., 1984 UPLBEC 914 ; and
(ii) Dhurendra Deo Sharma v. State of U. P. and Ors., 2000 (4) AWC 3162 (SC) ; 1999 (3) ESC 2044.
5. He further submitted that on the date of the selection made by the Commission, the service record of the two seniormost Lecturers of the College, namely, the petitioner and the respondent No. 5, was not placed before the Commission and, therefore, the selection of the respondent No. 5 as Principal of the college was also illegal. He relied upon the following decisions :
(i) Smt. Santosh Chowdhry v. Committee of Management and Ors., 1986 UPLBEC 1063 ;
(ii) Ram Briksh Maurya v. Murlidhar Mishra and Ors., 1999 (2) AWC 2.70 (NOC) : 1999 (2) ESC 956 (All) ; and
(iii) Dhurendra Deo Sharma v. State of U. P. and Ors., 2000 (4) AWC 3162 (SC) : 1999 (3) ESC 2044.
6. According to Sri Tripathi, no notice or interview call letter was sent by the Commission at the correct address by the Commission and it appears that intentionally the interview call letter was sent at the incorrect address showing the petitioner as Lecturer, Kutir Inter College, Chakkey, which is much away from the college and was returned to the respondent No. 1 by the Post Office of Kutir Chakkey on 16th July, 1996. He further submitted that after the interview was held on 26th June, 1996, the Secretary of the respondent No. 1 had sent letters on 19th July, 1996 to the District Inspector of Schools, Azamgarh, for sending the service record of the two seniormost Lecturers/teachers of the college and further direction was issued to the District Inspector of Schools to ensure that two seniormost Lecturers/teachers of the college mentioned therein to be present in the interview fixed on 2nd August, 1996. However, neither the name of the petitioner's college nor any notice was communicated to him. The general notice published in the newspaper on 21st July, 1996, did not mention the name of the petitioner's college and, therefore, the selection made without calling the petitioner in the interview is illegal.
7. Sri B.P. Singh, learned counsel, however, submitted that Civil Misc. Writ Petition No. 33445 of 1996, Bachchan Ram v. U. P. Secondary Education Services Commission, Allahabad and Ors., was filed on behalf of the petitioner by the Manager challenging the selection dated 3rd August, 1996, on the ground of non-intimation of interview date to the present petitioner, Surendra Nath Singh who was arrayed as respondent No. 7 therein. The aforesaid writ petition had been dismissed by this Court vide judgment and order dated 11th December, 1998. Thus, the petitioner was estopped from challenging the selection dated 3rd August, 1996. After the dismissal of the aforementioned writ petition, Surendra Nath Singh, the present petitioner, and the Committee of Management filed Special Leave Petition No. 626 of 1999 before the Hon'ble Supreme Court raising the same ground. A conditional interim order was passed by the Hon'ble Supreme Court on 29th January, 1999. After the exchange of counter and rejoinder-affidavits, the Hon'ble Supreme Court, vide order dated 25th November, 1999, dismissed the special leave petition as withdrawn. He further submitted that as the present petitioner had filed the special leave petition before the Hon'ble Supreme Court challenging the judgment and order dated 11t December, 1998, which he subsequently withdrew, the petitioner cannot be permitted to challenge the said selection dated 3rd August, 1996, afresh. Apart from it, the petitioner had filed Civil Misc. Writ Petition No. 33857 of 1998 on 22nd October, 1998, challenging the Advertisement No. 1 of 1998 dated 12th August, 1998, even though the said advertisement did not relate to the college. An interim order was passed on 23rd October, 1998, permitting the petitioner to function as ad hoc Principal of the college and staying further proceeding in pursuance of Advertisement No. 1 of 1998. However, the order dated 23rd October, 1998, has been stayed by this Court in Special Appeal No. 1012 of 1998, filed by the respondent No. 5. He further submitted that when the respondent No. 5 was not being given the charge of the Principal by the Committee of Management inspite of the Court's orders dated 11th December, 1998 and 23rd November, 1998, passed in his favour, the District Inspector of Schools, Jaunpur, vide order dated 23rd December, 1998. gave the charge of the Principal to the respondent No. 5 and attested his signatures on 28/29th January, 1999. These two orders have not been challenged by the petitioner. When the District Inspector of Schools directed the Committee of Management to pay the salary of the Principal to the respondent No. 5, the Committee of Management filed Civil Misc. Writ Petition No. 21775 of 1999 and vide order dated 25th May, 1999, this Court had stayed the operation of the order dated 18th May, 1999. Certain directions were also given. The petitioner also filed Civil Misc. Writ Petition No. 25012 of 1999 challenging the order dated 18th May, 1999, which shows that there is a collusion between the Committee of Management and the present petitioner. According to Sri Singh, the controversy raised in the present petition has already been settled by the judgment dated 11th December, 1998 passed in Civil Misc. Writ Petition No. 33445 of 1996, which writ petition was filed by the Manager on behalf of Surendra Nath Singh, the present petitioner. He had proper notice of the date of interview in view of the general notification published in the newspaper Dainik Jagran. In any event, he submitted that if the petitioner had no notice of the interview, it would not vitiate the selection as so many candidates have faced interview and respondent No. 5 was selected.
8. Having heard the learned counsel for the parties, I find that earlier Civil Misc. Writ Petition No. 33445 of 1996 filed by Bachchan Ram challenging the impugned selection has been dismissed by this Court on 11th December, 1998, is concerned, it may be mentioned here that the aforesaid writ petition was filed by the Manager and not by the present petitioner. However, the Special Leave Petition No. 626 of 1999 had been got dismissed as withdrawn. Dismissal of the special leave petition as withdrawn does not, in any way, affect the right of the present petitioner to approach this Court under Article 226 of the Constitution of India. The Hon'ble Supreme Court in the case of Kunhayammed and Ors. v. State of Kerala and Anr., 2000 (4) AWC 2.37 (SC) (NOC) : 2000 AIR SCW 2608, relying upon its earlier decision in the case of Indian Oil Corporation Limited v. State of Bihar, AIR 1986 SC 1780, has held that the dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution of India. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition. In the present case, the petitioner had withdrawn his special leave petition and, therefore, there was no adjudication on merits by the Hon'ble Supreme Court. However, I find that the petitioner was arrayed as the respondent No. 7 in Civil Misc. Writ Petition No. 33445 of 1996 and all the grounds which he has taken in the present writ petition for challenging the impugned selection, was also taken in the aforementioned writ petition which had been dismissed by this Court vide judgment and order dated 11th December, 1998. In that writ petition this Court, vide order dated 15th October. 1996, had directed the petitioner to transpose the respondent No. 7 as the petitioner No. 3 in the petition. Thus, the earlier writ petition will be deemed to have been filed by the present petitioner also. The order dated 15th October, 1996, passed by this Court is reproduced below :
"Learned counsel for respondent Nos. 1 to 3 are granted three weeks' time to file a counter-affidavit. The petitioners are directed to serve respondent Nos. 4 to 7 personally within two weeks and they may file counter-affidavit within two weeks thereafter. The petitioners may also transpose respondent No. 7 as petitioner No. 3 in this petition.
List in the week commencing 18th November, 1996."
9. Thereafter the present petitioner along with the writ petitioners of Civil Misc. Writ Petition No. 33445 of 1996 had jointly challenged the judgment and order dated 11th December, 1998 by filing Special Leave Petition No. 626 of 1999 which was subsequently got dismissed as withdrawn, which establishes that, in fact, the earlier writ petition had been filed with the consent and for the benefit of the present petitioner and, in any event, he is bound by the judgment of this Court, whereby the said writ petition has been dismissed. The present writ petition would, therefore, be barred by the principles of constructive res judicata and accordingly not maintainable. See Har Swarup v. General Manager, Central Railway and Ors., AIR 1975 SC 202 ; Mysore State Road Transport Corporation v. Babajan Conductor and Anr.. AIR 1977 SC 1112 ; Workmen of Cochin Port Trust v. Board of Trustees of Cochin Port Trust and Anr. AIR 1978 SC 1283 ; Forward Construction The Consolidation Officer and Ors. v. Prabhat Mandal (Regd.), Andheri and Ors.. AIR 1986 SC 391 ; Smt. Pujari Bai etc. v. Madan Gopal (dead) L.Rs. viz., Smt. Jaiwanti and Ors., AIR 1989 SC 1764 ; Direct Recruit Class II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors., AIR 1990 SC 1607 and Seth Chand Ratan v. Pandit Durga Prasad (D.) by L.Rs. and Ors., (2003) 5 SCC 399.
10. I further find that under the U. P. Secondary Education Services Commission Rules. 1995, as amended by the U. P. Secondary Education Services Commission (First Amendment) Rules, 1996, which came into force on 26th February, 1996 and is applicable in the present case, Rule 11 (2) (b) provides that in regard to the post of the head of an institution the management shall also forward the names of the two seniormost teachers, copies of the service record including character rolls and such other records or particulars as the Commission may require from time to time. Proviso to Sub-rule (2) of 12 provides that in respect of a post of the Head of an institution, the Commission shall also, in addition, call for interview two seniormost teachers whose names are forwarded by the management through the Inspector under Clause (b) of Sub-rule (2) of Rule 11. Thus, under the Rules, the Commission is enjoined to call for interview two seniormost teachers of the institution in respect of the post of the Head of the institution. In the present case, it is not in dispute that the notice which was sent to the petitioner, was on a wrong address and had been returned back by the post office. The general notice published in the daily newspaper Dainik Jagran for appearing in interview on 2nd August, 1996, cannot be said to be a notice to the petitioner. Moreover, the service record of the two seniormost teachers was not sent before the Commission at the time of selection. The principles laid down by this Court in the case of Kedar Nath Awasthi, Dhurendra Deo Sharma and Ram Briksha Maurya (supra) no doubt support the contention of the petitioner but as already mentioned hereinbefore, the present writ petition having been held to be not maintainable, the petitioner is not entitled for any relief. In this view of the matter, as the respondent No. 5 has been selected as Principal by the Commission and the Manager in collusion with the petitioner did not allow him to join for one reason or the other and he had joined with the intervention of the District Inspector of Schools, he is entitled for salary for the said post from the date when he had joined before the District Inspector of Schools, which shall be paid within a month from the date a certified copy of this order is filed before the District Inspector of Schools.
11. In the result, the writ petition fails and is dismissed.