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REPORTABLE   IN THE SUPREME COURT OF INDIA  

 CIVIL APPELLATE JURISDICTION  

 CIVIL APPEAL NOS.2544-2545 OF 2019  

(arising out of SLP(C) Nos.16537-16538 of 2016)    KRISHNA NAND SHUKLA          .... APPELLANT(S)  

VERSUS  

DIRECTOR OF HIGHER EDUCATION  ALLAHABAD & ORS          .... RESPONDENT(S)  

J U D G M E N T  

ASHOK BHUSHAN, J.  

Leave granted.  

2. These two appeals have been filed against judgment  

of the Allahabad High Court dated 06.10.2015 dismissing  

the Writ Petition No.29473 of 1999 and order dated  

09.03.2016 rejecting Review Application No.421500 of  

2015 filed by the appellant.  

3. Brief facts of the case necessary to be noticed  

for deciding the appeals are:  

The appellant claims to be appointed on 02.08.1991  

by the Management of Jawaharlal Nehru Smarak Post  

Graduate College (Affiliated to Gorakhpur University,

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Gorakhpur. The appellant’s case is that an  

advertisement was issued on 22.06.1991 in the  

newspaper-Hindi Dainik, Gorakhpur in response to which  

he applied for the post of Professor Defence Studies.  

The Registrar of the University nominated an expert for  

appointment. By its letter dated 09.10.1991, based on  

the recommendation of the Selection Committee dated  

22.07.1991 the appointment of the appellant was  

approved on ad hoc basis by the University for a period  

of six months or until a regular teacher is selected  

by the Commission, whichever was earlier. By a  

subsequent letter dated 29.11.1991 ad hoc appointment  

of appellant was re-approved until a candidate duly  

selected by the Selection Commission takes charge on  

the post. The appellant’s further case is that by  

letter dated 09.02.1996 a post of Lecturer Military  

Science was created in the College. Appellant’s case  

was that he received salary from the College till  

April, 1998 and thereafter due to the dispute between  

Committee of Management his salary was not paid. Writ  

Petition No.29473 of 1999 was filed by the appellant  

in the High Court seeking a writ of mandamus commanding

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the respondents to pay salary to the petitioner on  

month to month basis as Lecturer, Military Science and  

not to interfere in the functioning of the petitioner  

as Lecturer, Military Science. An interim order was  

passed on 20.07.1999 in pursuance of which salary was  

started being paid to the appellant.   

4. A counter-affidavit was filed by Assistant  

Director of Education in the writ petition where the  

claim of the appellant was refuted and it was mentioned  

that the claim of the appellant had already been  

rejected by order dated 28.07.2005. It was pleaded that  

although appellant claimed his appointment as ad hoc  

Lecturer, Military Science on 02.08.1991 whereas post  

for Military Science was created only on 09.02.1996.  

The State has no liability to pay salary in view of the  

provision of the U.P. State Universities Act, 1973,  

Section 60E and 60A(vi). It was also pleaded that the  

petitioner was not appointed following the due  

procedure. The writ petition was dismissed by the  

Division Bench vide its judgment dated 06.10.2015. The  

High Court referred to paragraph 3(h) and 3(i) of the  

counter-affidavit and paragraph 6 of the rejoinder-

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affidavit of the petitioner. The High Court held that  

the appointment made without advertisement is void.  

Challenging the order dated 06.10.2015 an SLP was filed  

by the appellant in this Court. The SLP was dismissed  

by this Court on 30.11.2015 by following order:  

“Learned counsel for the petitioner says  that there is an error apparent on the face  of the record inasmuch as there is no  paragraph 3(i) in the counter affidavit filed  by the State Government nor is there any  paragraph 6 of the rejoinder affidavit, as  quoted in the impugned order. He says that  he would like to file a review petition.   

Liberty granted.   

The special leave petition is dismissed  as withdrawn.   

In case, the review petition is  dismissed, the petitioner is at liberty to  challenge the impugned order before this  Court.”  

5. After the above order of this Court dated  

30.11.2015 the appellant filed a review application in  

the High Court. The review application has been  

dismissed by the High Court by a non-speaking order  

dated 09.03.2016. The appellant aggrieved by the order  

dismissing the review application as well as the main

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judgment dated 06.10.2015 dismissing the writ petition  

has filed these two appeals.  

6. Shri Vishwajit Singh, learned counsel for the  

appellant submits that the writ petition was dismissed  

by the High Court by referring to pleadings in some  

other writ petition. In the writ petition filed by the  

appellant, counter-affidavit was filed by one Dr. R.R.  

Yadav which is brought on the record of these appeals  

as Annexure-P14. In the counter-affidavit, there are  

no paragraphs 3(h) and 3(i) whereas the High Court in  

the impugned judgment dated 06.10.2015 referred to  

paragraphs 3(h) and 3(i) of the counter-affidavit and  

reply of the said paragraphs of the counter-affidavit  

in paragraph 6 of the rejoinder-affidavit as quoted in  

the impugned judgment was different.   

7. Learned counsel submits that in the review  

application appellant has taken grounds pointing out  

apparent error but the review application was rejected  

without considering the said grounds. Learned counsel  

for the appellant submits that before the appointment  

of the appellant vacancy was advertised, copies of one

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of the advertisements dated 22.06.1991 in Hindi Dainik  

is filed as Annexure P-1. He submits that appellant has  

already filed a writ petition in the High Court for his  

regularization being Writ Petition No.1704(SB) of 2013  

which is pending at Lucknow Bench of the Allahabad High  

Court. Learned counsel for the appellant submits that  

the appellant has been working for more than two  

decades the High Court committed an error in dismissing  

the writ petition without adverting to the facts and  

pleadings of the appellant’s writ petition.  

8. Learned counsel for the State refuting the  

submission of the appellant contends that the  

appointment of the appellant was not made following  

procedure as prescribed in law. He submits that the  

High Court has rightly dismissed the writ petition of  

the appellant.   

9. We have considered the submissions of the parties  

and perused the records.  

10. The appellant claims ad hoc appointment on the post  

of Lecturer, Military Science in a Post Graduate  

College Affiliated to the Gorakhpur University. The

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submission of the learned counsel for the appellant is  

that paragraphs of the counter-affidavit i.e. 3(h) and  

3(i) as well as paragraph 6 of the rejoinder-affidavit  

in the writ petition which has been referred to and  

relied by the High Court for dismissing the writ  

petition are not present in the counter-affidavit filed  

to the writ petition of the appellant and the  

rejoinder-affidavit filed by the appellant. The  

appellant has brought on the record the copy of  

counter-affidavit as Annexure-P14. In the counter-

affidavit has paragraph 3 upto sub-paragraph ‘g.’ only.  

There are no paragraphs 3(h) and 3(i) in the counter-

affidavit of Dr. R.R. Yadav, Assistant Director in the  

Directorate of Higher Education, U.P., Allahabad filed  

in the writ petition filed by the appellant. In the  

judgment of the High Court paragraph 6 of the  

rejoinder-affidavit has been extracted which was  

claimed to be reply to paragraph 3(h) and 3(i). The  

appellant filed rejoinder-affidavit in his writ  

petition which is brought on record as Annexure-P15.

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In paragraph 6 of the rejoinder-affidavit filed by the  

appellant following has been pleaded by the appellant:  

“6. That in reply to the contents of paragraph  No.3(c) of the counter-affidavit it is  submitted that the petitioner was appointed  on 06.08.1991 as Lecturer in Military Science  and against the said post the petitioner was  adjusted and the petitioner was continuing  her salary and getting the salary and all  emoluments including the G.P.F. and financial  approval has been granted by the Respondent  No.1 For kind consideration of this Hon’ble  Court a true copy of the order of financial  approval dated 12.11.2001 granted by the  Respondent No.1 is being filed herewith and  is marked as Annexure No.R.A.-2 to this  Rejoinder Affidavit.”  

11. The paragraph 6 of the rejoinder-affidavit as  

quoted in the impugned judgment dated 06.10.2015 is  

entirely different. As noted above, before this Court  

an SLP was filed by the appellant in which the above  

argument was addressed and this Court dismissed the SLP  

by permitting the appellant to withdraw the SLP to file  

a review petition before the High Court. A review  

application being No.421500 of 2015 was filed where

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following grounds apart from other grounds have been  

taken:  

“1. Because there is an error apparent on the  face of the record inasmuch as there is  no paragraph 3(i) in the counter- affidavit filed by the Respondent No.01  and 02 jointly nor is there any paragraph  6 of the rejoinder-affidavit, as quoted  in the impugned order dated 06.10.2015.  

2. Because there is an error apartment on  the fact of the petitioner and issue date  of appointment letter did not match with  the record of the writ petition No.29473  of 1999 as mentioned in impugned order  dated 06.10.2015.  

3. Because it is relevant to state here  before the Hon’ble Court that the  petitioner’s writ petition No.29473 of  1999 disposed by the Hon’ble Court  without hearing and examine the facts and  evidence of the petition. The impugned  order dated 06.10.2015 is the same copy  of order passed on 06.10.2015 in writ  petition No.29474 of 1999 (Dr. Triyogi  Nath vs. Director of Higher Education &  others), while date & events regarding  the appointment and contents of counter- affidavit, rejoinder-affidavit &  supplementary affidavit are absolutely  different.”  

12. Although above grounds specifically were taken by  

the appellant in the review application but the High  

Court by non-speaking order rejected the review

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application on 09.03.2016. As per the liberty earlier  

granted to the appellant he has again come up in these  

appeals challenging both the orders of the High Court.  

13. From the records it appears that along with the  

Writ Petition No. 29473 of 1999 filed by the appellant  

another writ petition being No.29474 of 1999 (Dr.  

Triyogi Nath vs. Director of Higher Education & others)  

was connected and heard. It appears while deciding writ  

petition of the appellant the paragraph 3(h) and 3(i)  

of the counter-affidavit and paragraph 6 in Writ  

Petition No.29474 of 1999 has been referred to.   

14. The High Court unless looks into the facts of the  

appellant’s case and pleadings made therein the writ  

petition could not have been decided. It is relevant  

to notice that the error committed by the High Court  

in deciding the writ petition on 06.10.2015 was brought  

into the notice of the High Court by filing detailed  

review application after withdrawing SLP from this  

Court but the review application was dismissed by non-

speaking order without adverting to the specific  

grounds raised in the review application. We are of the

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view that the judgment of the High Court deciding Writ  

Petition No.29473 of 1999 without referring to the  

pleadings in the writ petition i.e. pleadings in the  

counter-affidavit and rejoinder-affidavit, cannot be  

upheld.   

15. We are of the view that ends of justice would be  

served in setting aside the judgment and order of the  

High court dated 06.10.2015 and 09.03.2016 and  

remitting the matter to the High Court to decide the  

writ petition afresh on the basis of the pleadings on  

the record. We make it clear that in the facts and  

circumstances of the case we have neither adverted to  

the merits of the claim of the appellant nor have  

expressed any opinion on the merits of the claim. The  

High Court shall now proceed to decide the writ  

petition afresh on merits in accordance with law. It  

goes without saying that claim of petitioner for  

payment of salary or claim for regularization as  

pending in W.P.No.1704(SB) of 2013 shall be dependent  

on the outcome of Writ Petition No.29473 of 1999. The

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judgment dated 06.10.2015 and order dated 09.03.2016  

are set aside. The appeals are disposed of accordingly.   

...............................J.      ( ASHOK BHUSHAN )  

...............................J.      ( K.M.JOSEPH)  

NEW DELHI,  MARCH 06, 2019.