Dismissed

Dr. Diwakar Patel v. State of U.P. and 6 Othrs.

Allahabad HC5 Apr 2018WRIA/2415/2018

Case brief

AI extract

What is this about?

This is a brief miscellaneous order dismissing a writ petition as not maintainable because it contained serious personal allegations against another party (Dr. Pramod Kumar Singh) who was a necessary respondent but was not impleaded in the current challenge to an earlier interim order. The court found the petition incompetent without joining the necessary party.

What did the court decide?

The writ petition is dismissed as not maintainable due to the absence of a necessary party against whom allegations were made.

Dr. Diwakar Patel Vs State of U.P. and 6 Othrs. — Service and Employment | Allahabad HC (2018)

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Court No. - 34 Case :- WRIT - A No. - 2415 of 2018 Petitioner :- Dr. Diwakar Patel Respondent :- State Of U.P. And 6 Othrs. Counsel for Petitioner :- Satendra Tirpathi Counsel for Respondent :- C.S.C.,Archana Singh

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Hon'ble Sudhir Agarwal,J. Hon'ble Ifaqat Ali Khan,J.

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This is misconceived and ill-advised writ petition.

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The petitioner is already impleaded as respondent no. 4 in Writ Petition No. 42850 of 2017 in which his appointment was challenged by one Pramod Kumar Singh. Therein this Court passed following order on 13.10.2017:-

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"The petitioner is working on Honorarium basis on one of the posts out of 7 sanctioned posts of Assistant Professor in the Department of Military Science, D.S. College, Aligarh which fell vacant due to the death of Dr. V.K. Shukla. The petitioner is entitled to continue working till a regularly selected candidate from the Commission joins.

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In pursuance of advertisement No. 46, on the basis of selection, respondent no.4 Dr. Diwakar Patel belonging to OBC category has joined at the institution.

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The submission of learned counsel for the petitioner is that out of the 7 sanctioned posts, 2 posts are meant for OBC candidates and at the relevant time, Dr. Harendra Singh and Dr. Tejveer Singh were already working in the OBC category. Therefore, no third person in the said category can be permitted to join at the institution.

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On the last occasion, a specific query was made to the learned Standing Counsel if Dr. Tejveer Singh was an OBC candidate. Learned Standing Counsel on the basis of instructions, denied that he belongs to OBC category but accepts that later Dr. Pushpendra Singh Yadav belonging to the OBC category has been appointed by way of transfer in 2015. This also completes

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the quota of OBC category in the subject of Military Science. Learned counsel for the petitioner has placed on record a certificate issued by the Principal of the D.S. College stating that Dr. Tejveer Singh who has expired on 02.05.2017 was appointed in 1988 and he was of the OBC category.

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In view of the above, it is implicit that Dr. Harendra Singh and Dr. Tejveer Singh both were of OBC category and, therefore, the quota of the OBC category in the Department of Military Science was full and as such, no third person namely Dr. Pushpendra Singh Yadav (by transfer) or Dr. Diwakar Patel (pursuant to selection against advertisement no. 46) could not have joined.

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Learned Standing Counsel appearing for respondent nos. 1 and 2 may file counter affidavit.

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Issue notice to respondent nos. 3 and 4 by speed post. List for admission/final disposal after six weeks.

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In the meantime, the respondents shall not interfere with the working of the petitioner on Honorarium basis as Assistant Professor, Military Science at D.S. College, Aligarh."

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Pursuant to said interim order, respondents-authorities found that it may not be possible to allow two persons to continue on the post of Assistant Professor, simultaneously, to both appointments are on the same post, payment of salary due to petitioner has been stopped vide impugned order dated 21.12.2017. Hence, it was open to Dr. Diwakar Patel to file counter affidavit in the said pending writ petition.

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In our view, the aforesaid order is not maintainable as in para 22 of this writ petition, several serious allegations on Promod Kumar Singh has been made, which read under:

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"22” That it is pertinent to bring the following facts before this Hon'ble Court for kind consideration :

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That this writ petition (second) has been filed by Mr. Pramod Kumar Singh, who was working on honorarium basis

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on the post of

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Asst. Professor in Department of Military Science, Dharm Samaj Degree College, Aligarh, U.P. since 03.02.2006 till 25.08.2017 and he has concealed about the fact that he has already filed first writ petition No. 38548 of 2017 in Sep., 2017 and also that his services has been terminated on 25.08.2017.

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That the services of the Mr. Promod Kumar Singh as honorarium Lecturer were terminated on 2508.2017 in light of the various orders of the Hon'ble High Court and the information was given to Director, Higher Education, Allahabad. A photo copy of the termination order of Mr. Pramod Kumar Singh through letter No. DS/ 1100-1105/ 2017 dated 25.08.2017 is being filed here with and marked as Annexure No. 10 to this writ petition.

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That at the filing of this second writ petition, Mr. Pramod Kumar Singh was not working as Honorarium Lecturer in D.S. College, Aligarh, U.P. This fact was concealed by Mr. Pramod Kumar Singh in this writ petition No. 42850 of 2017.

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That Mr. Pramod Kumar Singh has filed one more petition earlier Writ-A, No. 38548/2017 (Pramod Kumar Singh Vs. State of U.P. and others). The specific prayer of Mr. Pramod Kumar Singh in this writ petition were:-

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(i) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents if there is any other vacancy where the petitioner is teaching, the petitioner may be permitted to continue against that vacancy on honorarium basis till a regularly selected candidate becomes available for that vacancy.

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(ii) To issue any other suitable writ, order of direction which this Hon'ble Court may deem fit and proper.

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(iii) Award the costs to the petitioner.

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(5). That in this writ petition No. 38548 of 2017, that this Hon'ble Court order dated 05.09.2017 has directed the petitioner to file a representation before the respondent no. 2 ( Director, Higher

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Education, Allahabad) for redressal of his grievance. A photo copy of the order of this Hon'ble Court dated 05.09.2017 is being filed herewith and marked as Annexure No. 11 to this writ petition.

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(6) That within three days after the previous petition, Mr. Pramod Kumar Singh filed the writ petition No. 42850 of 2017. In this he has nowhere mentioned about the previous writ No. 38548 of 2017 and whether he has given any representation to Director, Higher Education or not. And if he has given any representation then what was the outcome of that representation.

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(7) That in this writ petition No. 42850 of 2017, in its order dated 13.10.2017 the Hon'ble Court has-to quote:

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"In the meantime, the respondents shall not interfere with the working of the petitioner on Honorarium basis as Asst. Professor, Military Science at D.S. College, Aligarh."

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(8) That in this writ petition, Mr. Pramod Kumar Singh stated that he is still working but this is false statement as his services has already been terminated on 25.08.2017."

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In our view Promod Kumar Singh is necessary party in this writ petition since petitioner has made personal allegations against him and in his absence no relief against him can be granted to petitioner.

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This writ petition is dismissed as not maintainable for the reasons aforesaid.

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Order Date :- 5.4.2018/Swati

Dr. Diwakar Patel v. State of U.P. and 6 Othrs.

Case brief

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Dr. Diwakar Patel v. State of U.P. and 6 Othrs.

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