G.P. Mathur, J. - (1.) THIS writ petition has been filed for quashing of the order dated 20 -6 -1981 passed by the Head Master of Jang Bahadur Singh Uchchatar Madhyamik Vidyalaya, Shahganj, (Orahtha), District Mirzapur (hereinafter referred to as the institution) and the order dated 24 -9 -1985 and 20 -4 -1987 passed by the District Inspector of Schools, Mirzapur. The case of the petitioner, in brief, is that he was appointed as peon in the institution in the year 1975 and was confirmed on the said post on 20 -9 -1980. The services of the petitioner were terminated on 20 -6 -1981 and he filed original Suit No. 46/81 before Munsif, Roberstganj, Challenging the order terminating his services. Since the termination order was withdrawn, the petitioner moved an application for withdrawing the suit and the learned Munsif, passed an order permitting the petitioner to withdraw the suit. Thereafter, the petitioner was reinstated in the service and was paid salary upto February, 1964. Subsequently, in the year 1984, the institution was brought under the purview of U.P. High School and Intermediate College Payment of Salary to Teachers and other Employees) Act, 1971. The management of the institution did not forward the name of the petitioner for the purpose of payment of salary to him to the D.I.O.S. The petitioner and some other teachers made a representation to the D.I.O.S. on 21 -8 -1984 and wrote several letters praying that they may be paid salary. When the representation of the petitioner was not decided, he filed writ petition No. 15496 of 1984 before this Court which was disposed of on 28 -1 -1987 and a direction was given to the D.I.O.S. Mirzapur to decide the petitioner's representation within six weeks. The petitioner filed certified copy of the order dated 28 -1 -1987 of the High Court before the D I OS. on which quarry was made from him on 12 -3 -87. However, the D.I.O.S., passed an order on 20th September, 1987 by which, his representation was rejected. Alongwith this order copy of earlier order passed by him on 24 -9 -1985 was also sent. It is these orders which have been challenged in the present writ petition.
(2.) THE respondent No. 2, namely, principal of the institution has filed a counter -affidavit and the main plea taken by him is that order by which the services of the petitioner were terminated was never withdrawn, nor any compromise was filed in the suit. It is submitted that respondent No. 2 had put in appearance in suit Dt. 15 -9 -1981 and he was granted time upto 25 -9 -91 to file written statement. However, on 25 -9 -81, the petitioner filed an application for withdrawing the suit and this application was allowed on 10 -2 -1982 and the petitioner was allowed to withdraw the suit. It is also pleaded that the petitioner was never in service as peon in the institution after the suit was withdrawn and the allegations made by the petitioner that he was re -instated is also incorrect. In Para 7 of the affidavit, it is asserted that as the petitioner had been removed from the services of the institution in June, 1981, his name was not forwarded to the D.I.O.S., when the institution came under the purview of Salary Act, 1971 and the certificate dated 13 -8 -1984 referred to in para 6 of the affidavit was forged and fictitious document. A counter affidavit has also been filed on behalf of respondent No. 1 (D.I.O.S.) wherein, it is asserted that according to the information received from the Head Master of the institution, the petitioner is not working since 20 -5 -1981. It is also pleaded that after giving opportunity to both the parties and after perusing the record, the D.I.O.S. decided the matter on 20 -4 -1981, it was held that Sri Krishna Kumar was approved peon and was entitled for salary. It is also stated in para 14 of the counter -affidavit that there are 9 sanctioned posts of IVth Class employees in the institution and the appointment of Sri Krishna Kumar had been duly approved by the department and as the petitioner had not worked after 20 -5 -81, no salary could be paid to him by the department.
(3.) I have heard Sri G.K. Singh, and Sri R.N. Singh for the petitioner and Sri S.K. Lal for the respondent No. 2 and 3 Sri M.C. Tewari learned Standing Counsel on behalf of respondent No. 1 and have perused the record. The averments made in the writ petition as well as in the counter -affidavit filed on behalf of the principal of the institution and on behalf of the D.I.O.S. have raised many disputed questions of fact. However, the fact remains that the petitioner filed writ petition No. 15498/85 in this Court which was finally decided on 28 -1 -1987. In this writ petition, the D.I.O.S. Mirzapur, Principal and the Committee of Management of the institution were arrayed as respondents. A final order was passed in the writ petition directing the D.I.O.S. Mirzapur to decide the representation made by the petitioner on 21 -8 -1981. A copy of this representation has been filed as Annexure -4 to the writ petition. This shows that it was a combined representation by the petitioner and some other teachers and employees of the institution. In Para 5 of the representation, it was specifically pleaded that though the petitioner was working as peon in the institution for the last 10 years but his name had not been forwarded by the Head Master for the purposes of payment of salary. Therefore, in this representation, the petitioner had drawn the attention of the authorities to the fact that he had been working as peon in the institution for the last 10 years, even then his name had not been forwarded by the Manager of the institution for the purpose of payment of salary to him. After the petitioner had filed certified copy of the order passed in W.P. No. 15498/85 before the D.I.O.S. Mirzapur, he sent a letter dated 12 -3 -87 to the petitioner informing him that his representation had already been decided earlier on 24 -9 -85. It was further mentioned in this letter that in case, the petitioner wanted to lead additional evidence, may do so within three days from the receipt of letter. In response to this letter of 12 -3 -87, the petitioner gave reply to the D.I.O.S. on 30 -3 -1987 photo state copy of which has been filed as Annexure -12 to the writ petition. In his reply the petitioner asserted that he had not his signature in the attendance register of the institution till September, 1984 and that he had also been paid salary from August, 1981 to February 1984. He also prayed that the documents may be summoned from the institution and the above mentioned facts may be verified. The copy of reply submitted by the petitioner on 30 -3 -87 shows that three other documents were also filed namely, photo stat copy of certificate showing that he had worked upto 21 -8 -1984, photostat copy of some notice issued by the Principal, copy of representation dated 21 -8 -84 and copy of order dated 13 -4 -84 issued by the Head Master verifying the signature of the petitioner.;