By the Court.-
This Special Appeal has been filed challenging the judgment and order dated February 14, 1994 of a learned Single Judge dismissing Writ Petition No. 14245 of 1991 preferred by the appellant.
2. Learned counsel for respondents Nos. 1 and 2 have raised a preliminary objection regarding the maintainability of the appeal. In terms of Chapter VIII, Rule 5 of the Allahabad High Court Rules (hereinafter referred to as the Rules), a special appeal against the judgment of a learned Single Judge rendered in exercise of jurisdiction conferred by Articles 226 or 227 of the Constitution is not maintainable, if the same had been exercised against an appellate or revisional order of the Government or any officer or authority under any Uttar Pradesh Act or any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution. Sri R. N. Singh, learned counsel for the appellant, in his usual fairness, has conceded the legal position that if the writ petition is treated to be one which had been filed against an appellate order, the present appeal would not be maintainable. The question which requires consideration, therefore, is whether the writ petition had been filed against an original order or against an appellate order.
3. The appellant claims that he was appointed as a teacher in L. T. grade in Anglo Bengali Inter College, Allahabad (hereinafter referred to as the College) in the year 1965, was promoted as lecturer on July 13, 1968 and his promotion was approved by the District Inspector of Schools on January 20, 1969. A seniority list was circulated on February 16, 1976 in which the appellant was shown at Serial No. 10 and Ashish Chandra Misra (respondent No. 2) at SI. No. 12 and thus appellant was shown senior to him. The regular Principal of the College was scheduled to retire on July 31, 1991 and sometime before that, respondent No. 2 sent a letter to the Manager of the College for reopening the question of seniority. The appellant objected to it but he received a notice from the convener of the Seniority Committee of the College to appear before the Seniority Committee. Feeling aggrieved by the action of the Committee of Management and Seniority Committee of the College; the appellant filed the writ petition claiming several reliefs and relief Nos. (i), (ii) and (iii) are quoted below :
(i) issue a writ order or direction including a writ in the nature of Mandamus prohibition, restraining the respondents from proceeding to reconsider the question of seniority which has already been determined long ago specially in view of the recent full bench judgment of the Hon'ble Court ;
(ii) issue a writ, order or direction Including a writ in the nature of mandamus directing the respondents to appoint the petitioner as officiating Principal of the Institution in the vacancy likely to arise after 30th June, 1991 on the retirement of Dr. J. M. Banerjee as Principal of the Institution in question, and
(iii) issue a writ order or direction in the nature of certiorari quashing the notice dated 8-1-1991 issued by Sri M. C. Chattopadhya member of the Seniority Committee of the Institution..
In the writ petition, an interim order was passed on May 4, 1991 and relevant part thereof reads as under :
"Until further orders of this court, the respondents are restrained from proceeding to reconsider the question of seniority which has already been decided in 1976 and the operation of the order dated 20-4-1991 (annexure-1 to the affidavit filed along with impleadment application) shall remain stayed."
Subsequently after hearing counsel for the parties, the aforesaid order was modified on April 30, 1993 and it was left open to the managing committee of the college to finally decide the question of seniority and the aggrieved party was also allowed to prefer an appeal before the Regional Deputy Director of Education.
4. Regulation 3(1 Xe) of Chapter 11 of the Regulations, framed under the LI. P. Intermediate Education Act (hereinafter referred to as the Act) provides that dispute about seniority of teachers shall be referred to the Committee of Management which shall decide the same giving reasons.
5. Regulation 3(l)(f) provides for an appeal against the decision of the Committee of Management before the Deputy Director Education. The Committee of Management of the College issued notice to the appellant and after hearing the parties passed an order on June 11, 1993 holding that respondent No. 2 was senior to the appellant. The appellant preferred an appeal against this decision before the Deputy Director of Education, Allahabad, but the same was dismissed on October 4, 1993.
6. The appellant then filed a stay application and an amendment application dated October 14, 1993 in the writ petition. The applications were supported by the affidavit of the petitioner himself and copies of the orders dated June 11, 1993 and October 4, 1993 passed by the Committee of Management and Deputy Director of Education, respectively, were also filed. In the amendment application, it was prayed that the relief mentioned in para 28 of the affidavit may be added to the writ petition and the same reads as follows :
"that a suitable writ, order or direction in the nature of certiorari be issued quashing the impugned order dated 4-10-1993 and 11-6-1993 passed by the Deputy Director of Education and the Committee of Management respectively, (Annexures-1 and 6 to this affidavit)."
Though the amendment application was brought on record but a formal order either allowing or rejecting the same was not passed.
7. Sri R. N. Singh, learned counsel for the appellant, has vehemently contended that as no order on the amendment application had been passed, it cannot be held that the same had been allowed by the court and it should be deemed that the relief claimed therein namely, for quashing of the order dated June 11,1993 passed by the Committee of Management and October 4, 1993 passed by the Deputy Director Education were never considered by the Court. He has thus submitted that the validity of the appellate order passed by the Deputy Director of Education having not been challenged or considered by the Court, the Special Appeal would be maintainable in terms of Chapter VIII Rule S of the Rules of the Court. S/Sri A. K. Yog and L. P. Naithani, learned counsel for the contesting respondents, have on the other hand submitted that by oversight no order was transcribed on the amendment application, but in fact the same had been allowed and the pleas raised therein have been considered and adjudicated upon by the learned Single Judge on the validity of an appellate order having been assailed in the writ petition, the present special Appeal is not maintainable,
8. We have given our careful consideration to the submission made by learned counsel for the parties. It is correct that no order has been passed on the amendment application, but a perusal of the judgment of the learned Single Judge shows that the pleas raised therein were considered and a decision thereon has also been given. In this connection, it will be useful to refer to some portions of the judgment of the learned single Judge. On page S of the judgment it has been observed as follows : -
"..........................These two orders, namely, the order of the Managing Committee holding respondent No. 2 as senior to the petitioner and the order of the Regional Deputy Director of Education, dated 4-10-1993 dismissing petitioner's appeal against the order of the Managing Committee were passed after this court modified the stay order by order dated^30-4-1993. Both these orders have also been challenged by the petitioner by way of an amendment application in this writ petition."
On page 24 of the judgment, it has been observed as follows ;
"Both these orders, which are under challenge before me, have been passed after giving opportunity of hearing to the petitioner, petitioner also has not been able to point out any illegality in these orders except for his argument that the Managing Committee and the Regional Deputy Director of Education committed illegality in reopening the seniority question. This argument having already been rejected by me in the earlier part of this judgment, it cannot be said that the Managing Committee, or the Regional Deputy Director of Education committed any illegality in determining the seniority of the petitioner taking his date of appointment as 24-8-1968 and that of respondent No. 2 as 1-8-1968, the orders passed in this respect by the Managing Committee and the Regional Deputy Director of Education, to my mind, need no interference both on fact or on law.
The operative portion of the order of the learned Single Judge reads as follows :
“............................In view of the discussions made and for the reasons stated above, the petitioner is not at all entitled to any of the reliefs prayed for by him in this writ petition, the orders of the Managing Committee and Regional Deputy Director of Education, which are subject-matter of challenge by way of amendment application, do not also suffer from any illegality.
It is, therefore, clear that the validity of the appellate order passed by the Deputy Director of Education on October 4, 1993 was assailed and after examining the rival contentions, the same was upheld by the learned Single Judge. Thus, there is no escape from the conclusion that the writ petition had in fact been preferred against an appellate order and consequently the present Special Appeal is not maintainable.
9. Sri R. N. Singh has urged that the rights of the parties have to be examined as on the date of the initiation of the proceedings and not with reference to a subsequent date. He has thus submitted that as at the time of the filing of the writ petition only a writ of prohibition was sought and validity of any appellate order had not been assailed, the present appeal is maintainable. We are unable to accept the submission made by the learned counsel. It is correct that initially the appellant had only sought a writ of prohibition and if he had confined to the said relief only, the appeal would have been maintainable. However, the appellant himself moved an amendment application making a prayer for quashing of the appellate order of the Deputy Director of Education. The learned Single Judge acceded to the request of the appellant, examined the validity of the appellate order of the Deputy Director of Education and recorded a finding thereon. The appellant by his own conduct and voluntary act sought the relief for quashing of the appellate order. Thus in view, of this later development, the appellant has been deprived of the right of appeal in terms of the language of Chapter VIII .Rules S of the Rules of the Court
9-A. Sri R. N. Singh, learned counsel for the appellant, next submitted that the decision of the Committee of Management and Deputy Director of Education had been rendered in pursuance of an interim order passed by the court and in view of the ultimate dismissal of the writ petition, the result brought about by such interim order would be non est in the eyes of law as the final order granted no relief. In support of his submission, he has placed reliance on Kanauria Chemicals v. U. P. State Electricity Board, AIR 1994 All. 273. There can be no dispute with the proposition of law urged by the learned counsel but the same has no application on the facts of the present case. As mentioned pearlier, Regulation 3(1) (e) of Chapter II framed under the Act provides that dispute about seniority of teachers shall be referred to the Committee of Management which shall decide the same giving reasons. Regulation 3 (1) (f) provides for an appeal against the decision of the Committee of Management before the Deputy Director Education. The interim order dated May 4, 1991 restrained the respondent (Committee of Management) from reconsidering the question of seniority. This order was modified on April 30, 1993 and the relevant part thereof reads as follows :
"Order dated 4-5-1991 is modified to the effect that it is made open to the Managing Committee of the Anglo Bengali Inter College, Allahabad to finally decide the question of seniority between petitioner and respondent No. 2 after affording opportunity of hearing to the petitioner and respondent No. 2................ ........................On the question being decided by the Managing Committee, it will be open to aggrieved party to make representation/appeal before the Regional Deputy Director of Education.......... ..........
The orders regarding seniority between the parties passed by the Managing Committee and the Deputy Director of Education shall, however, not be given effect until further orders,"
The Act itself makes a provision for preparation of a seniority list and it also provides a remedy of appeal to the aggrieved person. By the interim order dated May 4, 1991, the Committee of Management was restrained from exercising a function which it is entitled to perform under the Act. The effect of the order dated April 30, 1993 was that the restrain order was vacated and the Committee of Management was allowed to perform its function and the person aggrieved from this decision was also allowed to prefer a statutory appeal, it is, therefore, not correct to say that the orders dated June 11, 1993 of the Committee of Management and October 4,1993 of the Deputy Director of Education had been passed as a result of any interim order. If the interim order dated May 4, 1991 had not been passed by the Court, the orders on seniority would have been passed by the Committee of Management. In fact the last part of the order dated April 30, 1993 which provided that the order regarding seniority would not be given effect to, would merge with the final order after the decision of the writ petition and would cease to be operative.
10. Sri Singh has also submitted that appeal should be confined to the relief of prohibition alone as was prayed for in the writ petition as it was originally filed and if the said relief is granted, the orders regarding seniority passed by the Committee of Management and Deputy Director of Education subsequently, would automatically tall. ID support of his submission, he has placed reliance on AIR 1961 SC 372 ; AIR 1975 SC 2057 ; AIR 1980 SC 377 and AIR 1981 SC 707. In our opinion, the contention raised by the learned counsel cannot be accepted. The appellant having himself invited a decision regarding validity of the orders passed by the Committee of Management and Deputy Director of Education by moving an amendment application and the learned Single Judge having given a decision thereon, it is not open to him to say that the aforesaid decision of the learned Single Judge should be ignored and the writ petition should be confined to the validity of the proceedings initiated by the Managing Committee of the College for determination of seniority. The principle that if a notice is quashed all subsequent proceedings initiated in pursuance thereof automatically go can have no application on the facts of the present case as the appellant herein is not only confronted with the order of an authority under the Act but also the decision of a learned Single Judge of this Court in proceedings under Article 226 of the Constitution. The said decision will continue to bind the parties unless it is specifically set aside by a Court which is competent to do so. It is well settled principle of law that what can not be done directly cannot permitted to be done indirectly. The authorities cited by the learned counsel have been rendered on general principles and can have no application in view of the special language of Chapter VIII, Rule 5 of the Rules of the Court,
11. In view of the discussions made above, we uphold the preliminary objection that the present Special Appeal is not maintainable and the same is accordingly dismissed.
order as to costs.
Appeal dismissed.