The High Court dismissed this second writ petition seeking appointment and salary as not maintainable. The earlier identical petition was dismissed as unpressed, and no liberty to file a fresh petition was granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Neutral Citation No. - 2023:AHC-LKO:50451
Reserved on: 31.07.2023 Delivered on: 01.08.2023
Court No. - 5
Case :- WRIT - A No. - 6784 of 2001
Petitioner :- Ms.Sangya Dwivedi Respondent :- State Of U.P.Through Secy. Counsel for Petitioner :- M.A.Siddiqui,Dharmesh Sinha,Ram Ratan,Sapna Verma,Sarfraz Ahmad,Suresh Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Irshad Ali,J.
1. Heard Sri Dharmesh Sinha, learned counsel for the petitioner and Sri V.K. Shukla, learned Additional CSC for the respondent - State.
2. By means of present writ petition, the petitioner has made following prayers:
"i. issue a writ, order or direction in the nature of certiorari, the order of termination / disengagement, if any passed by the opposite parties, after summoning the same from opposite parties, may be quashed.
ii. issue any other writ, order or direction in the nature of mandamus, the opposite parties may kindly be commanded to allow the petitioner to work and pay her salary, including the salary with effect from 1.5.1999, and the opposite parties may kindly be further commanded to absorb the petitioner on the post of Assistant Psychologist permanently.
iii. issue any other suitable writ, order or direction to which this Hon'ble Court deems just and proper in favour of the petitioner.
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iv. allow this writ petition with costs."
3. Factual matrix of the case is that as a part of education itself under the respondent Nos.1 & 2, there is an arrangement for testing the psychological and mental health, mind and talent of the students, particularly investigation into productive capability for selection of meritorious students for special education in Uttar Pradesh and for the said purpose, centers are established i.e. almost one center in each region / division and at Faizabad also the center is coming into existence since long. The said center is known as "Regional Center of Psychology", Mandaliya Manovaigyanic Kendra and in each center one Assistant Psychologist, Clerk and Peon have been allocated. At some places, a Counseller is also posted and at Faizabad a Counseller is posted.
a) At some places, functions of Mandaliya Manovaigyanic are discharged by Principal of Government College and at Faizabad, the center is running since long with Principal, Government College as its head and with one Assistant Psychologist, Clerk and Peon. At this center, Counseller was also posted, however, none was posted after transfer of Sri Chakradhar Joshi.
b) The qualification for the post of Assistant Psychologist is Master Degree in Psychology and diploma in Guidance and Psychology and appointment for the said post are made in special subordinate education in the pay scale of Rs.1600-2660 (old scale).
c) At the State level, besides the Director of Education and Government, there are two bodies, which have to supervise the work of such centers; Rajya Shaikshik Anusandhan Evam
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Prashikshan Parishad, Lucknow - respondent No.3 and Manovaigyanik Shala, Uttar Pradesh, Allahabad.
d) The record of all the work at centers is duly maintained and supervised and checked by Regional Psychologist and Director, Manovigyan Shala and monthly statements and reports are sent to him and respondent No.3.
e) Post of Assistant Psychologist is a post to be filled through Commission and respondent No.2 is the appointing authority for the same, however, since long no selection has been made by the Commission and under local arrangement on ad hoc basis appointments are made and such persons are subsequently regularized and for the same respondent No.4 was delegated power for step gap arrangement to appoint Assistant Psychologist.
f) At Faizabad center, initially one Mr. Bhavani Dutt Patni was posted. Later on he was transferred and the post was running vacant. The petitioner submitted her candidature and being most suitable, she joined the post to perform duties w.e.f. 01.05.1999, however, no appointment order was issued to her and since then, she is discharging duties regularly uninterrupted and her work and performance has been found satisfactory.
g) The petitioner made several representations to the respondents for her absorption and for payment of salary but no heed has been paid by the respondents and the same are lying pending consideration.
4. Learned counsel for the petitioner submitted that in case direction is issued to the respondents to consider and pass appropriate order on the representations of the petitioner for absorption and payment of salary, ends of justice would be met.
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5. On the other hand, Additional CSC for respondent - State raised vehement objection in regard to maintainability of writ petition on the ground that earlier Writ Petition No.3599 (S/S) of 2001 was filed by the petitioner before this Court, which has been dismissed as not pressed by this Court vide order 25.07.2001, therefore, on the same set of facts, the present writ petition is not maintainable.
5. He further submitted that for the post alleged by the petitioner, no advertisement was issued and no appointment letter has been issued to her. He submitted that appointment on the said post is made by the Commission, however, appointment of the petitioner on the said post has never been made by Commission and statement of fact in this regard has been made in paragraph 10 of the counter affidavit that a fabricated joining report has been annexed by the petitioner as Annexure-1.
6. He next submitted that appointment on the post of Assistant Psychologist is made by Public Service Commission and Additional Director of Education (Madhyamik), Allahabad and respondent No.4 only takes care of the centers and he is not entitled to make any appointment on the said post.
7. He submitted that Sri Bhawani Dutt Patni was appointed as Assistant Psychologist at Mandaliya Manovaigyanic Kendra, Faizabad and due to his transfer, the post is lying vacant and no person has been appointed on the said post either by recruitment or by transfer. He, therefore, requested that the writ petition being misconceived and non maintainable is liable to be dismissed.
8. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
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9. This Court vide order dated 25.07.2001, passed following in Writ Petition No.3599 (S/S) of 2001:
" Shri J.K. Misra, learned counsel for the petitioner after arguing the case stated that he does not want to press this writ petition on merit. As the petitioner wishes to pursue his remedy in department concerned.
The writ petition is, accordingly dismissed as not pressed."
10. From aforesaid as well as from perusal of record, it is evident that there is no document annexed along with writ petition reflecting the advertisement of vacancy, mode of appointment and issuance of appointment letter to the petitioner.
11. It is also evident that the earlier writ petition preferred by the petitioner was dismissed by this Court as not pressed without providing liberty to file fresh writ petition. As such, the present petition being second writ petition on the same set of facts is not maintainable and is liable to be dismissed.
12. The writ petition is, accordingly, dismissed .
Order Date :- 01.08.2023 Adarsh K Singh
Digitally signed by :- ADARSH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether a second writ petition on the same facts, previously dismissed as not pressed, is maintainable.
Whether the petitioner is entitled to permanent absorption and salary payment without a commission appointment.
Colour shows how this judgement treated each authority
Writ Petition No.3599 (S/S) of 2001Referred¶27
Ms. Sangya Dwivedi
State of U.P. through Secy
Irshad Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
