Ahsan Ali Vs. State of U.P. and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - it was mentioned in the said letter that if the district inspector of schools, etawah himself was satisfied that shyam babu mishra was to be promoted on the post of lecturer in biology against the post created on 19.8.1973 then he should take a final decision in the matter and intimate the government within three days. not being satisfied shyam babu mishra filed a writ petition in this court being writ petition no. not being satisfied shyam babu mishra made another representation dated 12.1.1993 to the additional director of education (secondary), allahabad which was also rejected by the director of education by his order dated 22.9.1996, a reference of which has been made by the district inspector of schools, etawah in his order dated 10.12.1998. another attempt was made by shyam babu mishra by filing a representation before the state government and then moving a writ petition in this court being writ petition no. 13. even before the state government, comments were sent by the directorate of education clearly pointing out the reasons why the approval to the promotion of shyam babu mishra w. a series of correspondence ensued between the secretary to the state government and the directorate of education and it appears that ultimately the district inspector of schools, etawah was persuaded to take a view that approval to the promotion of shyam babu mishra could be granted and then a communication dated 30.11.1998 was sent by the special secretary, government of uttar pradesh to the district inspector of schools, etawah that since he himself was satisfied that approval should be granted, he should pass necessary orders and intimate the government within three days. 18. having heard the learned counsel for the parties on this question, i am of the clear opinion that the representation filed by shyam babu mishra before the state government was clearly not maintainable in law and, therefore, on this ground alone the order of the district inspector of schools, etawah cannot be sustained and has to be set aside. the writ petition filed by him is clearly maintainable.dilip gupta, j.1. as to who should have been promoted to the newly created post of lecturer in biology is the controversy involved in all these three petitions and, therefore, they are being decided by a common judgment.2. writ petition no. 19230 of 1999 has been filed by ahsan ali for quashing the order dated 10.12.1998 passed by the district inspector of schools, etawah by which the promotion of shyam babu mishra (respondent no. 6) as a lecturer in biology w.e.f. 1.9.1975 has been recognised.3. writ petition no. 29412 of 2000 has been filed by shyam babu mishra for quashing the order dated 24.5.2000 passed by the district inspector of schools, etawah by which it has been directed that the petitioner shall be paid the salary of assistant teacher in the l.t. grade. ahsan ali has been arrayed as respondent no. 5 in this petition and a direction has also been sought upon the respondent nos. 1 to 3 to restrain respondent no. 5 ahsan ali from working as ad hoc lecturer in civics.4. writ petition no. 7143 of 2003 has been filed by shyam babu mishra for quashing the order dated 5.12.2002 passed by the joint director of education, kanpur region, kanpur. ahsan ali has been arrayed as respondent no. 6 in this petition.5. radha ballabh inter college phaphund, district etawah (now in district auraiya) (which shall hereinafter referred to as the college) is recognised under the provisions of the u.p. intermediate education act, 1921 (hereinafter referred to as the 'act'). one mewa ram rathaur was appointed as an assistant teacher in the l.t. grade in biology (agriculture). he passed the post graduate condensed diploma course on 26.8.1970. shyam babu mishra was appointed as a demonstrator in the college on 10.9.1970 whereas ahsan ali was appointed as an assistant teacher in the l.t. grade on 23.8.1971. on 19.8.1973 three posts of lecturers were created in the college in the subjects biology (agriculture), physics (agriculture) and sanskrit and one post of l.t. grade (general). it is said that against the newly created post of lecturer in biology created on 19.8.1973, the committee of management of the college promoted mewa ram rathaur on 17.12.1973 and his promotion was approved by the district inspector of schools, etawah. feeling aggrieved by the aforesaid promotion, shyam babu mishra filed a representation before the district inspector of schools, etawah for quashing it. a representation was also made by mewa ram rathaur before the district inspector of schools, etawah for giving him the lecturer's grade w.e.f. 1970 in view of the government order dated 19.4.1966. both the aforesaid representations were decided by the district inspector of schools, etawah by his order dated 8.11.1982. the representation filed by shyam babu mishra was rejected while the representation filed by mewa ram rathaur was allowed and it was held that mewa ram rathaur was entitled to lecturer's grade w.e.f. 26.8.1970. the aforesaid order dated 8.11.1982 passed by the district inspector of schools, etawah was challenged by shyam babu mishra in this court by means of writ petition no. 14612 of 1982 which was dismissed summarily on 16.12.1982 by the following order :'after hearing the learned counsel for the petitioner, we are of the opinion that since the impugned order does not suffer from any error apparent on the face of the record, we cannot interfere in the present proceedings under article 226 of the constitution of india. the petitioner if so advised, may file a suit for the vindication of the grievance raised in this writ petition.the writ petition is dismissed summarily.'6. however, the manager of the committee of management sent a letter dated 3.2.1983 to the district inspector of schools, etawah mentioning therein that the erstwhile committee of management had illegally promoted mewa ram rathaur as a lecturer on 17.12.1973 and so the committee of management had taken a decision in its meeting held on 30.1.1983 to promote shyam babu mishra as a lecturer in biology w.e.f. 10.9.1975 against the post of lecturer in biology created on 19.8.1973. the district inspector of schools, etawah, however, submitted a report dated 5.6.1987 in this connection to the deputy director of education, allahabad pointing out that only one post of lecturer in biology had been created in the college against which mewa ram rathaur had earlier been promoted on 17.12.1973 and so there was no occasion for the committee of management to promote shyam babu mishra w.e.f. 10.9.1975. the deputy director of education, allahabad accordingly vide his order dated 1.9.1989 rejected the claim of the committee of management for promotion of shyam babu mishra as a lecturer in biology. it was specifically mentioned in the order that the writ petition filed by shyam babu mishra had also been dismissed by the court on 16.12.1982 and, therefore, it was not proper to re-open the issue of promotion. shyam babu mishra again made a representation dated 12.1.1993 before the additional director of education (secondary), allahabad for granting approval to his promotion to the post of lecturer in biology against the post created on 19.8.1973. this representation was also rejected by the director of education by his order dated 22.9.1996. then shyam babu mishra filed a representation dated 24.10.1996 to the state of uttar pradesh through the principal secretary (education) u.p. government, lucknow and also a writ petition in this court being writ petition no. 38172 of 1996 which was disposed of on 9.12.1996 by the following order :'in the present writ petition one of the complaints of the petitioner is that in spite of making representations before the respondent no. 1, the claim of the petitioner is not being considered as the representations are lying pending.in the circumstances, the writ petition is disposed of with a direction upon the respondent no. 1 to decide the representation of the petitioner at annexure no. 13 to the writ petition in accordance with law within a period of six weeks from the date of production of a certified copy of this order along with a copy of the said representation.'7. subsequent to the directions issued by this court on 9.12.1996 in writ petition no. 38172 of 1996 shyam babu mishra submitted a. representation before the state government on 18.12.1996 with a prayer that approval to his promotion w.e.f. 10.9.1975 should be granted in accordance with the provisions of regulation 6 (6) of the regulations contained in chapter ii of the act. comments were sought for by the state government from the directorate of education and by a communication dated 21.2.1997 detailed comments were submitted to the state government by the directorate of education pointing out that against the creation of one post of lecturer in biology on 19.8.1973 mewa ram rathaur had been promoted and this was also approved by the district inspector of schools, etawah. as such against the same post there was no occasion to approve the promotion of shyam babu mishra. the principal of the college also sent a communication dated 29.3.1997 to the director of education (secondary) pointing out that only one post of lecturer in biology had been created on 19.8.1973 against which mewa ram rathaur had been promoted and the district inspector of schools, etawah had approved his promotion. this promotion was challenged by shyam babu mishra before the district inspector of schools, etawah but his representation was rejected by means of the order dated 8.11.1982 and the writ petition filed by shyam babu mishra against the said order was also dismissed by the high court on 16.12.1982. it was, therefore, clear that mewa ram rathaur had been continuously working as a lecturer in biology and there was no post vacant against which any other person could be promoted. on the record there is a communication dated 30.11.1998 sent by the special secretary, government of u.p. to the district inspector of schools, etawah in connection with the letter dated 19.11.1998 sent by the district inspector of schools, etawah. it was mentioned in the said letter that if the district inspector of schools, etawah himself was satisfied that shyam babu mishra was to be promoted on the post of lecturer in biology against the post created on 19.8.1973 then he should take a final decision in the matter and intimate the government within three days. consequently, the district inspector of schools, etawah passed an order on 10.12.1998 granting approval to the promotion of shyam babu mishra as a lecturer in biology in the college w.e.f. 10.9.1975. it was mentioned in the said order that the promotion of mewa ram rathaur should be considered against the post created on 16.11.1967 and the promotion of shyam babu mishra against the post created on 19.8.1973. as such the promotion of shyam babu mishra should be deemed to be w.e.f. 10.9.1975 under the provisions of regulation 6 (6) of chapter ii contained in the act. it is this order dated 10.12.1998 which has been challenged by ahsan ali in writ petition no. 19230 of 1999. it may be stated that ahsan ali had been promoted as a lecturer in civics in the college on 1.12.1992 and if shyam babu mishra was declared promoted w.e.f. 10.9.1975, the seniority of ahsan ali was bound to be affected. mewa ram rathaur unfortunately died on 14.9.1997. this court while entertaining the writ petition passed an interim order on 13.5.1999 staying the operation of the order dated 10.12.1998 passed by the district inspector of schools until further orders.8. in compliance of the aforesaid interim order dated 13.5.1999, the district inspector of schools, etawah passed an order dated 24.5.2000 that shyam babu mishra shall continue to get the salary of assistant teacher in the l.t. grade as he was getting prior to the passing of the order dated 10.12.1998. this order has been challenged by shyam babu mishra in writ petition no. 29412 of 2000.9. shyam babu mishra filed another writ petition in this court being writ petition no. 7143 of 2003 for quashing the order dated 5.12.2002 of the joint director of education, kanpur region, kanpur whereby the promotion of ahsan ali as a lecturer in the college in civics against the post arising out of retirement of suresh chandra chaudhary on 30.6.1987 was approved.10. i have heard sri h.n. singh, learned counsel appearing for ahsan ali and sri y.k. saxena, learned counsel appearing for shyam babu mishra and have perused the materials available on record.11. the dispute primarily centres around the promotion to the post of lecturer in biology on the post created on 19.8.1973.12. it is not in dispute that mewa ram rathaur had been promoted on the post of lecturer by means of the resolution of the committee of management dated 17.12.1973 and approval was also granted to his promotion by the district inspector of schools, etawah. an attempt was made by shyam babu mishra for cancellation of the aforesaid promotion through a representation sent to the district inspector of schools, etawah which was ultimately rejected on 8.11.1982 by the district inspector of schools, etawah by a detailed order. not being satisfied shyam babu mishra filed a writ petition in this court being writ petition no. 14612 of 1982 which was also dismissed holding that the impugned order of the district inspector of schools, etawah does not suffer from any error apparent on the face of the record. however, it was left open to the petitioner to vindicate his grievance by filing a suit. there is nothing on the record to indicate that any civil suit was filed by shyam babu mishra. on the other hand, since the office bearers of the committee of management had changed, shyam babu mishra pursued the matter with the committee of management, which in its meeting held on 30.1.1983 resolved to promote shyam babu mishra w.e.f. 10.9.1975 against the same post, which had been filled up by promoting mewa ram rathaur. the manager then sent a communication dated 3.2.1983 to the district inspector of schools, etawah seeking approval to the promotion of shyam babu mishra w.e.f. 10.9.1975. the matter remained pending and on 5.6.1987 the district inspector of schools, etawah submitted a report to the deputy director of education, allahabad pointing out the reasons why the approval to the promotion of shyam babu mishra could not be granted and the director of education, allahabad rejected the claim of shyam babu mishra for promotion as a lecturer in biology in the college. reason assigned was that mewa ram rathaur had already been promoted against the sole post of lecturer created on 19.8.1973 and, therefore, there was no occasion at all for the committee of management to promote another candidate shyam babu mishra particularly when his claim has been rejected earlier by the district inspector of schools, etawah and the writ petition against the said order had also been dismissed. not being satisfied shyam babu mishra made another representation dated 12.1.1993 to the additional director of education (secondary), allahabad which was also rejected by the director of education by his order dated 22.9.1996, a reference of which has been made by the district inspector of schools, etawah in his order dated 10.12.1998. another attempt was made by shyam babu mishra by filing a representation before the state government and then moving a writ petition in this court being writ petition no. 38172 of 1996 which was disposed of finally on 9.12.1996 with a direction that the representation may be decided in accordance with law within a period of six weeks.13. even before the state government, comments were sent by the directorate of education clearly pointing out the reasons why the approval to the promotion of shyam babu mishra w.e.f. 10.9.1975 could not be granted. a series of correspondence ensued between the secretary to the state government and the directorate of education and it appears that ultimately the district inspector of schools, etawah was persuaded to take a view that approval to the promotion of shyam babu mishra could be granted and then a communication dated 30.11.1998 was sent by the special secretary, government of uttar pradesh to the district inspector of schools, etawah that since he himself was satisfied that approval should be granted, he should pass necessary orders and intimate the government within three days. it is in these circumstances that the district inspector of schools, etawah passed the order dated 10.12.1998. in the said order the district inspector of schools, etawah in order to grant approval to the promotion of shyam babu mishra has carved out a new case, namely, that the promotion of mewa ram rathaur should be adjusted against the post of lecturer created on 16.11.1967 and, therefore, on the post created on 19.8.1973 the appointment of shyam babu mishra could be approved w.e.f. 10.9.1975.14. it is in this context that it has become necessary to examine the maintainability of the representation filed by shyam babu mishra before the state government.15. learned counsel for shyam babu mishra and the learned standing counsel for the state government could not point out any provision in the act or the regulations which could confer power on the state government to decide the matter. the only provision, on which they placed reliance in this context, was regulation 6 contained in chapter ii of the act which are quoted below :'6. (1) where any vacancy in the lecturer's grade or in the l.t. grade as determined under regulation 5, is to be filled by promotion, all teachers working in the l.t. or the c.t. grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the committee of management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer's grade or in the l.t. grade is require.note.--for purposes of this clause, service rendered by a teacher in the l.t. or the c.t. grade in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.(2) selection for promotion to the next higher grade shall be made on the basis of service standing, achievements in service, academic qualifications and integrity.(3) subject to clause (2) where more than one teacher in the l.t. grade are eligible for promotion to the post of lecturer in any subject preference shall be given to the teacher who is the senior-most amongst them in service in that grade.(4) (a) the claim of any teacher who is eligible for promotion shall not be ignored merely because he has proceeded on long leave or is officiating or working temporarily on a post in the higher grade. (b) in the case of a teacher who is under suspension, the claim for promotion shall not be ignored if he is reinstated prior to the selection for promotion. (5) in respect of any teacher selected for appointment by promotion in accordance with these regulations, the manager of the institution shall within a week from the date of resolution passed by the committee of management in regard to such appointment forward the proposal for the concurrence of the inspector together with a copy of such resolution and a statement showing the following particulars-- (i) the total number of sanctioned posts in the grade in which promotion is to be made ;(ii) the number of posts to be reserved for promotion ;(iii) the number of posts already filled by promotion giving names of the incumbents ;(iv) the total number of vacancies which have occurred ;(v) the number of vacancies determined by the committee of management to be filled by-(a) promotion ;(b) direct recruitment ; (vi) the names of all eligible candidates for promotion, their qualifications and the length of their service from the date of their substantive appointment in the grade from which they are to be promoted ; and(vii) names of persons selected for promotion. (6) within three weeks from the date of receipt of the proposal under clause (5) the inspector shall communicate his decision thereon to the manager failing which the inspector shall be deemed to have given his concurrence to the resolution passed by the committee of management.(7) where the committee of management feels aggrieved from the decision of the inspector under clause (6), it may within two weeks from the date of communication of such decision to the manager, make a representation against it to the regional deputy director of education whose decision in the matter shall be final.'16. placing reliance on the aforesaid provision sri saxena and the learned standing counsel contended that since the petitioner had a right to be promoted, he had a corresponding right also to file a representation to the state government. a further contention was raised that since this court in writ petition no. 38172 of 1996 had disposed of the writ petition with a direction to the state government to decide the representation, the question of maintainability of the representation before the state government does not arise at all.17. sri h.n. singh, learned counsel appearing for ahsan ali, however, contended that there is no provision in the act or the regulations framed thereunder which empowers the state government to decide a matter relating to the promotion of a lecturer in the intermediate college and in any event the provisions of regulation 6 contained in chapter ii of the act do not empower the state government to decide the dispute. he further contended that this court on 9.12.1996 had merely directed the state government to decide the representation of the petitioner in accordance with law and if the representation itself was not maintainable, mere directions of the court would not confer jurisdiction upon the state government to decide the representation on merits. he further contended that in any view of the matter, the state government had not decided the matter, since it was ultimately decided by the district inspector of schools, etawah.18. having heard the learned counsel for the parties on this question, i am of the clear opinion that the representation filed by shyam babu mishra before the state government was clearly not maintainable in law and, therefore, on this ground alone the order of the district inspector of schools, etawah cannot be sustained and has to be set aside. regulation 6 contained in chapter ii of the act in no manner whatsoever confers power upon the state government to decide the matter. it merely provides for the conditions under which the vacancy in the lecturer's grade has to be filled up by promotion. it was, therefore, obligatory on the part of the state government to have first examined whether the representation itself was maintainable because the direction of the high court was to decide the representation in accordance with law. a mere direction by this court to decide the representation in accordance with law will not confer jurisdiction upon an authority to decide the same on merits irrespective of the fact whether the representation was maintainable or not. in the present case the state government instead of first examining whether the representation filed by shyam babu mishra was maintainable in law, proceeded to issue directions to the district inspector of schools, etawah to pass orders. a perusal of the order of the district inspector of schools, etawah also shows that the maintainability of the representation before the state government was not considered at all. the district inspector of schools, etawah had no jurisdiction to decide the controversy at the behest of the state government more particularly when he had already approved the promotion of mewa ram rathaur as a lecturer in biology in the college. in this view of the matter, the order dated 10.12.1998 passed by the district inspector of schools, etawah pursuant to the directions issued by the state government is liable to be set aside and is, accordingly, set aside.19. sri saxena, learned counsel appearing for shyam babu mishra then contended that ahsan ali had no right to file the present: petition since the dispute was between mewa ram rathaur and shyam babu mishra. sri h.n. singh, learned counsel appearing for ahsan ali, however, submitted that in the event shyam babu mishra was promoted w.e.f. 10.9.1975, his seniority would be affected since he had been promoted as lecturer in civics in 1992.20. i find considerable force in the submission of sri h.n. singh, learned counsel for the petitioner ahsan ali. it cannot be doubted that if shyam babu mishra is promoted w.e.f. 10.9.1975, as has been held by the district inspector of schools, etawah in the impugned order, then the seniority of ahsan ali would be affected. mewa ram rathaur had already died in 1997 and, therefore, it cannot be said that ahsan ali was not a person aggrieved. the writ petition filed by him is clearly maintainable.21. the other writ petitions, being writ petition nos. 29142 of 2000 and 7143 of 2003 are petitions in which shyam babu mishra has claimed reliefs placing reliance upon the order dated 10.12.1998 passed by the district inspector of schools, etawah. since the said order has been set aside while deciding writ petition no. 19230 of 1999, the two writ petitions filed by shyam babu mishra being writ petition nos. 29142 of 2000 and 7143 of 2003 are liable to be dismissed.22. in the result, writ petition no. 19230 of 1999 is allowed and the order dated 10.12.1998 passed by the district inspector of schools, etawah is quashed. writ petition nos. 29142 of 2000 and 7143 of 2003 are dismissed. there shall be no order as to costs.