KRISHNA NAND SHUKLAversusDIRECTOR OF HIGHER EDUCATION ALLAHABAD & ORS.

                         [2019] 4 S.C.R. 183                               183


                    KRISHNA NAND SHUKLA                                    A
                                   v.
 DIRECTOR OF HIGHER EDUCATION ALLAHABAD & ORS.
                (Civil Appeal Nos. 2544-2545 of 2019)
                          MARCH 06, 2019                                   B
        [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
       Pleadings – Writ petition was filed by the appellant in the
High Court seeking a writ of mandamus commanding the respondent-
University to pay him salary as Lecturer – Writ petition dismissed
                                                                           C
by the High Court on basis of the paragraph 3(h) and 3(i) of the
counter-affidavit and paragraph 6 of the rejoinder – Review
application was also dismissed – On appeal, held: From the records
it appears that along with the writ petition of the appellant another
petition was connected and heard – While deciding the writ petition
of the appellant paragraph 3(h) and 3(i) of the counter-affidavit          D
and paragraph 6 of another writ petition was referred to – The
judgment of the High Court deciding writ petition of appellant
without referring to the pleadings in the concerned writ petition
cannot be upheld – Thus, judgment and order of the High Court set
aside and matter remitted to the High Court to decide the writ petition
                                                                           E
afresh on the basis of the pleadings on the record.
      Disposing of the appeals, the Court
       HELD: 1. The appellant claims ad hoc appointment on the
post of Lecturer, Military Science in a Post Graduate College
Affiliated to the Gorakhpur University. The submission of                  F
appellant is that paragraphs of the counter-affidavit i.e. 3(h) and
3(i) as well as paragraph 6 of the rejoinder-affidavit in the writ
petition which has been referred to and relied by the High Court
for dismissing the writ petition are not present in the counter-
affidavit filed to the writ petition of the appellant and the rejoinder-
affidavit filed by the appellant. [Para 10][187-D]                         G

      2. From the records it appears that along with the Writ
Petition No. 29473 of 1999 filed by the appellant another writ
petition being No.29474 of 1999 was connected and heard. It
appears while deciding writ petition of the appellant the paragraph
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184            SUPREME COURT REPORTS                       [2019] 4 S.C.R.


A     3(h) and 3(i) of the counter-affidavit and paragraph 6 in Writ
      Petition No.29474 of 1999 has been referred to. [Para 13]
      [188-H; 189-A]
            3. The High Court unless looks into the facts of the
      appellant’s case and pleadings made therein the writ petition could
B     not have been decided. It is relevant to notice that the error
      committed by the High Court in deciding the writ petition on
      06.10.2015 was brought into the notice of the High Court by filing
      detailed review application after withdrawing SLP from this Court
      but the review application was dismissed by non-speaking order
      without adverting to the specific grounds raised in the review
C     application. The judgment of the High Court deciding Writ
      Petition No.29473 of 1999 without referring to the pleadings in
      the writ petition i.e. pleadings in the counter-affidavit and
      rejoinder-affidavit, cannot be upheld. [Para 14][189-B, C]
            4. Thus, the ends of justice would be served in setting
D     aside the judgment and order of the High court dated 06.10.2015
      and 09.03.2016 and remitting the matter to the High Court to
      decide the writ petition afresh on the basis of the pleadings on
      the record. [Para 15][189-D]
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2544-
E     2545 of 2019.
            From the Judgment and Order dated 06.10.2015 of the High
      Court of Judicature at Allahabad in Writ Petition-A No. 29473 of 1999
      and order dated 09.03.2016 in Review Application No. 421500 of 2015.

F           Vishwajit Singh, Pankaj Singh, Ms. Ridhima Singh, Mrs. Veera
      Kaul Singh, Ms. Vijaya Singh (for M/S. Vidhi International), Advs. for
      the Appellant.
             Sanjay Kumar Tyagi, Ajay Kumar Pandey, Sandeep Singh, Advs.
      for the Respondents.
G           The Judgment of the Court was delivered by
            ASHOK BHUSHAN, J. 1. Leave granted.
            2. These two appeals have been filed against judgment of the
      Allahabad High Court dated 06.10.2015 dismissing the Writ Petition
      No.29473 of 1999 and order dated 09.03.2016 rejecting Review
H     Application No.421500 of 2015 filed by the appellant.
     KRISHNA NAND SHUKLA v. DIRECTOR OF HIGHER                                 185
      EDUCATION ALLAHABAD [ASHOK BHUSHAN, J.]

      3. Brief facts of the case necessary to be noticed for deciding the      A
appeals are:
       The appellant claims to be appointed on 02.08.1991 by the
Management of Jawaharlal Nehru Smarak Post Graduate College
(Affiliated to Gorakhpur University, Gorakhpur. The appellant’s case is
that an advertisement was issued on 22.06.1991 in the newspaper-Hindi          B
Dainik, Gorakhpur in response to which he applied for the post of
Professor Defence Studies. The Registrar of the University nominated
an expert for appointment. By its letter dated 09.10.1991, based on the
recommendation of the Selection Committee dated 22.07.1991 the
appointment of the appellant was approved on ad hoc basis by the
University for a period of six months or until a regular teacher is selected   C
by the Commission, whichever was earlier. By a subsequent letter dated
29.11.1991 ad hoc appointment of appellant was re-approved until a
candidate duly selected by the Selection Commission takes charge on
the post. The appellant’s further case is that by letter dated 09.02.1996
a post of Lecturer Military Science was created in the College. Appellant’s    D
case was that he received salary from the College till April, 1998 and
thereafter due to the dispute between Committee of Management his
salary was not paid. Writ Petition No.29473 of 1999 was filed by the
appellant in the High Court seeking a writ of mandamus commanding
the respondents to pay salary to the petitioner on month to month basis
as Lecturer, Military Science and not to interfere in the functioning of       E
the petitioner as Lecturer, Military Science. An interim order was passed
on 20.07.1999 in pursuance of which salary was started being paid to
the appellant.
       4. A counter-affidavit was filed by Assistant Director of Education
in the writ petition where the claim of the appellant was refuted and it       F
was mentioned that the claim of the appellant had already been rejected
by order dated 28.07.2005. It was pleaded that although appellant claimed
his appointment as ad hoc Lecturer, Military Science on 02.08.1991
whereas post for Military Science was created only on 09.02.1996. The
State has no liability to pay salary in view of the provision of the U.P.      G
State Universities Act, 1973, Section 60E and 60A(vi). It was also pleaded
that the petitioner was not appointed following the due procedure. The
writ petition was dismissed by the Division Bench vide its judgment dated
06.10.2015. The High Court referred to paragraph 3(h) and 3(i) of the
counter-affidavit and paragraph 6 of the rejoinder-affidavit of the
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186            SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A     petitioner. The High Court held that the appointment made without
      advertisement is void. Challenging the order dated 06.10.2015 an SLP
      was filed by the appellant in this Court. The SLP was dismissed by this
      Court on 30.11.2015 by following order:
            “Learned counsel for the petitioner says that there is an error
B           apparent on the face of the record inasmuch as there is no
            paragraph 3(i) in the counter affidavit filed by the State Government
            nor is there any paragraph 6 of the rejoinder affidavit, as quoted
            in the impugned order. He says that he would like to file a review
            petition.
C           Liberty granted.
            The special leave petition is dismissed as withdrawn.
            In case, the review petition is dismissed, the petitioner is at liberty
            to challenge the impugned order before this Court.”

D            5. After the above order of this Court dated 30.11.2015 the
      appellant filed a review application in the High Court. The review
      application has been dismissed by the High Court by a non-speaking
      order dated 09.03.2016. The appellant aggrieved by the order dismissing
      the review application as well as the main judgment dated 06.10.2015
      dismissing the writ petition has filed these two appeals.
E
              6. Shri Vishwajit Singh, learned counsel for the appellant submits
      that the writ petition was dismissed by the High Court by referring to
      pleadings in some other writ petition. In the writ petition filed by the
      appellant, counter-affidavit was filed by one Dr. R.R. Yadav which is
      brought on the record of these appeals as Annexure-P14. In the counter-
F     affidavit, there are no paragraphs 3(h) and 3(i) whereas the High Court
      in the impugned judgment dated 06.10.2015 referred to paragraphs 3(h)
      and 3(i) of the counter-affidavit and reply of the said paragraphs of the
      counter-affidavit in paragraph 6 of the rejoinder-affidavit as quoted in
      the impugned judgment was different.
G            7. Learned counsel submits that in the review application appellant
      has taken grounds pointing out apparent error but the review application
      was rejected without considering the said grounds. Learned counsel for
      the appellant submits that before the appointment of the appellant vacancy
      was advertised, copies of one of the advertisements dated 22.06.1991 in
      Hindi Dainik is filed as Annexure P-1. He submits that appellant has
H
     KRISHNA NAND SHUKLA v. DIRECTOR OF HIGHER                                 187
      EDUCATION ALLAHABAD [ASHOK BHUSHAN, J.]

already filed a writ petition in the High Court for his regularization being   A
Writ Petition No.1704(SB) of 2013 which is pending at Lucknow Bench
of the Allahabad High Court. Learned counsel for the appellant submits
that the appellant has been working for more than two decades the High
Court committed an error in dismissing the writ petition without adverting
to the facts and pleadings of the appellant’s writ petition.
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       8. Learned counsel for the State refuting the submission of the
appellant contends that the appointment of the appellant was not made
following procedure as prescribed in law. He submits that the High Court
has rightly dismissed the writ petition of the appellant.
       9. We have considered the submissions of the parties and perused        C
the records.
       10. The appellant claims ad hoc appointment on the post of
Lecturer, Military Science in a Post Graduate College Affiliated to the
Gorakhpur University. The submission of the learned counsel for the
appellant is that paragraphs of the counter-affidavit i.e. 3(h) and 3(i) as    D
well as paragraph 6 of the rejoinder-affidavit in the writ petition which
has been referred to and relied by the High Court for dismissing the writ
petition are not present in the counter-affidavit filed to the writ petition
of the appellant and the rejoinder-affidavit filed by the appellant. The
appellant has brought on the record the copy of counter-affidavit as
Annexure-P14. In the counter-affidavit has paragraph 3 upto sub-               E
paragraph ‘g.’ only. There are no paragraphs 3(h) and 3(i) in the counter-
affidavit of Dr. R.R. Yadav, Assistant Director in the Directorate of
Higher Education, U.P., Allahabad filed in the writ petition filed by the
appellant. In the judgment of the High Court paragraph 6 of the rejoinder-
affidavit has been extracted which was claimed to be reply to paragraph        F
3(h) and 3(i). The appellant filed rejoinder-affidavit in his writ petition
which is brought on record as Annexure-P15. In paragraph 6 of the
rejoinder-affidavit filed by the appellant following has been pleaded by
the appellant:
      “6. That in reply to the contents of paragraph No.3(c) of the            G
      counter-affidavit it is submitted that the petitioner was appointed
      on 06.08.1991 as Lecturer in Military Science and against the
      said post the petitioner was adjusted and the petitioner was
      continuing her salary and getting the salary and all emoluments
      including the G.P.F. and financial approval has been granted by
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188            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A           the Respondent No.1 For kind consideration of this Hon’ble Court
            a true copy of the order of financial approval dated 12.11.2001
            granted by the Respondent No.1 is being filed herewith and is
            marked as Annexure No.R.A.-2 to this Rejoinder Affidavit.”
            11. The paragraph 6 of the rejoinder-affidavit as quoted in the
B     impugned judgment dated 06.10.2015 is entirely different. As noted above,
      before this Court an SLP was filed by the appellant in which the above
      argument was addressed and this Court dismissed the SLP by permitting
      the appellant to withdraw the SLP to file a review petition before the
      High Court. A review application being No.421500 of 2015 was filed
      where following grounds apart from other grounds have been taken:
C
            “1. Because there is an error apparent on the face of the record
               inasmuch as there is no paragraph 3(i) in the counter-affidavit
               filed by the Respondent No.01 and 02 jointly nor is there any
               paragraph 6 of the rejoinder-affidavit, as quoted in the impugned
               order dated 06.10.2015.
D
            2. Because there is an error apartment on the fact of the petitioner
                and issue date of appointment letter did not match with the
                record of the writ petition No.29473 of 1999 as mentioned in
                impugned order dated 06.10.2015.

E           3. Because it is relevant to state here before the Hon’ble Court
               that the petitioner’s writ petition No.29473 of 1999 disposed
               by the Hon’ble Court without hearing and examine the facts
               and evidence of the petition. The impugned order dated
               06.10.2015 is the same copy of order passed on 06.10.2015 in
               writ petition No.29474 of 1999 (Dr. Triyogi Nath vs. Director
F              of Higher Education & others), while date & events regarding
               the appointment and contents of counter-affidavit, rejoinder-
               affidavit & supplementary affidavit are absolutely different.”
             12. Although above grounds specifically were taken by the
      appellant in the review application but the High Court by non-speaking
G     order rejected the review application on 09.03.2016. As per the liberty
      earlier granted to the appellant he has again come up in these appeals
      challenging both the orders of the High Court.
            13. From the records it appears that along with the Writ Petition
      No. 29473 of 1999 filed by the appellant another writ petition being
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     KRISHNA NAND SHUKLA v. DIRECTOR OF HIGHER                                  189
      EDUCATION ALLAHABAD [ASHOK BHUSHAN, J.]

No.29474 of 1999 (Dr. Triyogi Nath vs. Director of Higher Education &           A
others) was connected and heard. It appears while deciding writ petition
of the appellant the paragraph 3(h) and 3(i) of the counter-affidavit and
paragraph 6 in Writ Petition No.29474 of 1999 has been referred to.
       14. The High Court unless looks into the facts of the appellant’s
case and pleadings made therein the writ petition could not have been           B
decided. It is relevant to notice that the error committed by the High
Court in deciding the writ petition on 06.10.2015 was brought into the
notice of the High Court by filing detailed review application after
withdrawing SLP from this Court but the review application was dismissed
by non-speaking order without adverting to the specific grounds raised
in the review application. We are of the view that the judgment of the          C
High Court deciding Writ Petition No.29473 of 1999 without referring to
the pleadings in the writ petition i.e. pleadings in the counter-affidavit
and rejoinder-affidavit, cannot be upheld.
       15. We are of the view that ends of justice would be served in
setting aside the judgment and order of the High court dated 06.10.2015         D
and 09.03.2016 and remitting the matter to the High Court to decide the
writ petition afresh on the basis of the pleadings on the record. We make
it clear that in the facts and circumstances of the case we have neither
adverted to the merits of the claim of the appellant nor have expressed
any opinion on the merits of the claim. The High Court shall now proceed        E
to decide the writ petition afresh on merits in accordance with law. It
goes without saying that claim of petitioner for payment of salary or
claim for regularization as pending in W.P.No.1704(SB) of 2013 shall be
dependent on the outcome of Writ Petition No.29473 of 1999. The
judgment dated 06.10.2015 and order dated 09.03.2016 are set aside.
The appeals are disposed of accordingly.                                        F


Ankit Gyan                                               Appeals disposed of.



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