Dismissed

C/M Sri Durga Vidyamandir Inter College, Thru. Manager Surendra Vikram Singh and Another v. Suman Bala Srivastava and 5 Others

Allahabad HC11 Oct 2022/200/2022

Case brief

AI extract

What is this about?

This special appeal sought condonation of a 597-day delay in filing due to pendency and COVID concerns, which was granted. The main appeal challenging an interim stay order was dismissed as not maintainable since the order was interlocutory, mere prima facie, and relied on subsequent events not before the trial judge.

What did the court decide?

Delay condoned; special appeal against interim stay order dismissed; request for expedition in lower court petition made.

C/M Sri Durga Vidyamandir Inter College, Thru… — Education and Admissions | Allahabad HC (2022)

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Court No. - 2

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Case :- SPECIAL APPEAL DEFECTIVE No. - 200 of 2022

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Appellant :- C/M Sri Durga Vidyamandir Inter College, Thru. Manager Surendra Vikram Singh And Another Respondent :- Suman Bala Srivastava And 5 Others Counsel for Appellant :- Ajay Pratap Singh,Amrendra Nath Tripathi

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Counsel for Respondent :- C.S.C.,Girish Chandra Verma,Raj Kr Singh Suryvanshi

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.

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(Order on application for condonation of delay)

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Heard learned counsel for appellants, learned State counsel for the State-respondents, Sri G.C. Verma, learned counsel for respondent no.1-petitioner and Sri R.K.Singh Suryvanshi, learned counsel for U. P. Secondary Education Services Selection Board and perused the record.

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Office has reported a delay of 597 days in filing the special appeal.

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The application seeking condonation of delay states inter alia that on account of pendency of Writ Petition No.3775 (S/S) of 2006 filed by the respondent no.1-petitioner which ultimately was decided by a Division Bench of this Court along with a bunch of special appeals and writ petitions by means of an order dated 26.07.2017 and thereafter on account of the judgment of Hon’ble Supreme Court, dated 26.08.2020 and subsequently again on 07.12.2021, the appellant-Committee of Management of the Institution has been in bonafide belief that the matter at hand shall also be governed ultimately by the judgment of Hon’ble Supreme Court, dated 26.08.2020 and 07.12.2021.

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It has further been stated by the appellants in the application seeking condonation of delay that the appellants could not approach this Court earlier on account of the situation caused because of COVID-19 pandemic. It has also been submitted by learned counsel for appellants that having been regularly selected by U.P. Secondary Education Services Selection Board, two individual Assistant Teachers, namely, Ms. Kanchan Lata and Sri Vijay have been ordered to be placed at the institution concerned by the District Inspector of Schools pursuant to which they have submitted their joining in the institution on 04.12.2021 and 29.11.2021 respectively. It is, thus, the submission is that the appellants had bonafide belief that the entire matter will be governed in terms of the judgment of Hon’ble Supreme Court dated 26.08.2020 and 07.12.2021, however, since the respondent no.1-petitioner has been pressing for contempt, the appellants finding themselves hard pressed have approached this Court by filing this special appeal.

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On the other hand, Sri G.C.Verma, learned counsel for respondent no.1-petitioner has submitted that in view of the law laid down by a Division Bench of this Court in the case of State of U.P. and others vs. Khushnoor Khan and others, decided on 17.02.2021, (Civil Misc Review Application No.4 of 2021) and the law laid down by Hon’ble Supreme Court in the case of Government of Maharashtra (Water Resources Department) Represented by Executive Engineer vs. Borse Brothers Engineers and Contractors Private Ltd, reported in (2021) 6 SCC 460 , such a long delay in absence of any plausible explanation cannot be condoned.

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Having regard to the respective averments made by learned counsel for parties, it cannot be doubted that the appellant-

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Committee of Management has been under bonafide belief that the entire matter relating to respondent no.1-petitioner will be governed by the orders dated 26.08.2020 and 07.12.2021 passed by Hon’ble Supreme Court in the case of Sanjay Singh and others vs. State of Uttar Pradesh and others, (Civil Appeal No.8300 of 2016). The difficulties faced by the appellants on account of the situation caused by COVID-19 pandemic also cannot be ruled out.

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Accordingly, in the peculiar facts and circumstances of the case, we condone the delay in filing the special appeal.

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(Order on Memo of Appeal)

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This special appeal under Chapter VIII Rule 5 of the Rules of the Court has been filed by the appellant-Committee of Management and the Manager of the Institution challenging the order dated 25.01.2019 passed by learned Single Judge in Writ Petition No.1776 (S/S) of 2019 whereby the order impugned before learned Single Judge in the said writ petition, dated 01.11.2018 has been stayed.

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At this juncture itself, we may notice that by means of the order dated 01.11.2018, the Manager of the Institution has terminated the services of respondent no.1-petitioner on the post of Assistant Teacher on the alleged ground that since her appointment was made temporarily which was to last on coming and joining of the regularly selected candidate and one Sri Jai Kumar Singh a regularly selected candidate on the post of Assistant Teacher (Social Science) had joined on 31.07.2013 as such the services of respondent no.1-petitioner stood terminated in terms of her appointment order itself and also as per order dated 01.05.2006 passed by this Court in Writ Petition No.3775 (S/S) of 2006. The said order dated 01.11.2018 became the subject matter of challenge in Writ Petition No.1776 (S/S) of 2019 filed by the respondent

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no.1-petitioner wherein the order dated 25.01.2019 has been passed which is under challenge before us in this special appeal.

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Submission of learned counsel for appellants is that in the wake of the fact that regularly selected candidate has been recommended for appointment, as such the appointment of respondent no.1-petitioner was terminated in terms of her initial appointment order itself. It has further been submitted that by means of the order dated 31.01.2019 one Jyoti Singh having been selected by the Selection Board was ordered to be posted at the institution in question, pursuant to which appointment order was issued to her and in this view, the order under appeal is not sustainable. It has also been argued that subsequent to the placement order dated 31.01.2019 in respect of Ms Jyoti Singh, two other individuals, namely, Ms Kanchan Lata and Sri. Vijay have been placed in the institution having been selected by the Selection Board and pursuant to the placement order passed in respect of these two individual teachers the appointment orders have also been issued and further that they have joined on 12.01.2021 and 15.12.2021 respectively. In this view, submission is that the order dated 25.01.2019 passed by learned Single Judge is not sustainable.

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On the other hand, submission of Sri G.C.Verma, learned counsel representing the respondent no.1-petitioner that the order under appeal in this special appeal is purely interlocutory order, hence the special appeal under Chapter VIII Rule 5 of the Rules of the Court is not maintainable.

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To the said objection, it has been stated by learned counsel for appellants that since the order dated 25.01.2019 passed by learned Single Judge has a trapping of a judgment, hence the appeal would be maintainable.

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When we closely examine the submission of learned counsel for appellants, what we find is that the entire attempt made by learned counsel for appellants to challenge the order dated 25.01.2019 passed by learned Single Judge is based on the subsequent events which took place after passing of the order on 25.01.2019. It is to be noticed that the placement order of the first teacher, namely, Ms Jyoti Singh was passed on 31.01.2019 and thereafter two other orders of placement in respect of Ms Kanchan Lata and Sri Vijay have been passed in the year 2021. All the three placements orders are subsequent to the order dated 25.01.2019.

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It is not that subsequent events which take place in a matter are to be ignored all together while deciding any issue pending before the Court, however, such subsequent events are to be brought before learned Single Judge by way of filing counter affidavit or any other affidavit.

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We have been informed that a detailed counter affidavit by the appellants has been filed before the learned Single Judge.

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The contention of learned counsel for appellants regarding the terms and nature of initial appointment of respondent no.1petitioner, the impact on her continuance only till availability of regularly selected candidate and the impact of subsequent events are the matters which are yet to be reflected upon by learned Single Judge as all the said issues are engaging attention of learned Single Judge in the writ petition which is still pending.

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We may also notice that the order dated 25.01.2019 which is under appeal before us has only stayed the operation and implementation of the order dated 01.11.2018 which is under challenge before learned Single Judge, that too, only till the next date of listing.

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By no stretch of imagination, can it be said that the order dated 25.01.2019 in any manner decides a lis and issue between the parties, it only expresses prima facie opinion for the purposes of grant of interim relief. In this view, we are unable to accept the submission made by learned counsel for appellants that the order dated 25.01.2019 has in any manner trapping of a judgment so as to make it amenable to the jurisdiction of Division Bench of this Court under Chapter VIII Rule 5 of the Rules of the Court.

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At this juncture, learned counsel for the appellants has stated that respondent no.1-petitioner are pressing hard the contempt matter before learned Contempt Judge where the charges have been framed against the appellant no.2.

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Having regard to the overall facts and circumstances of the case, we thus hold that this special appeal has been preferred against completely an interlocutory order which does not decide any lis or issue between the parties finally, and hence is not maintainable, which is hereby dismissed .

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However, we make a request to learned Single Judge to expedite the proceedings of Writ Petition No.1776 (S/S) of 2019 and conclude the same as early as possible.

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We permit the learned counsel for respondent no.1-petitioner to file rejoinder affidavit, if any, within three days from today in the writ petition. We also may make it open to learned counsel representing the appellants to make an appropriate application seeking deferment of proceedings of contempt petition before learned Contempt Judge.

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Order Date :- 11.10.2022 Renu/-

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Digitally signed by RENU AGARWAL Date: 2022.10.13 14:57:42 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

C/M Sri Durga Vidyamandir Inter College, Thru. Manager Surendra Vikram Singh and Another v. Suman Bala Srivastava and 5 Others

Case brief

What is this about?

What did the court decide?

C/M Sri Durga Vidyamandir Inter College, Thru. Manager Surendra Vikram Singh and Another v. Suman Bala Srivastava and 5 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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