- (1.) D. P. Singh, J. Heard learned Counsel for the parties.
(2.) THIS petition is directed against order dated 4-2-2002 passed by the Joint Director of Education holding that the respondent No. 3 was senior to the petitioner for holding the post of ad hoc Principal of the institution. The case as set up by the petitioner is that he was granted temporary appointment on the post of Lecturer in Sociology on 1- 10-1972. He claims to have been appointed on probation on 1-1- 1973 and thereafter he was confirmed on 1-1-1974. As the management illegally stopped his salary without any termination order, he preferred Writ Petition No. 1265 of 1976. In the writ petition the District Inspector of Schools filed his counter- affidavit stating that services of the petitioner had been terminated and approved and he further justified it, inasmuch, as the subject of Sociology was never recognized in the institution and no sanctioned post of Lecturer for Sociology was in existence. Thus, the writ petition was dismissed making it open for the petitioner to file appeal before the Competent Authority. In pursuance thereof the petitioner filed an appeal before the Deputy Director of Education where notices were issued to the Management, the Principal and the District Inspector of Schools. After hearing the petitioner and all other parties a detailed order was passed on 24-11-1978 holding that the termination of the petitioner had already been approved by the District Inspector of Schools and the said order was a valid order as the subject of Sociology had never been recognized nor any post on which the petitioner was allegedly appointed was sanctioned. It appears that this order was never challenged by the petitioner before any Competent Court or Authority. However, he filed a suit for declaration and injunction but the outcome has not been disclosed in the writ petition and no order or judgment has been annexed. Curiously, the petitioner filed Writ Petition No. 1915 of 1983 which was finally disposed off vide order dated 28-3-1984 asking the petitioner to approach the competent Court. In the garb of the aforesaid order, the petitioner filed a recall application on 11-4-1984 for recalling the order dated 24-11-1978 and on the application itself the Deputy Director of Education referred the matter to the District Inspector of Schools. The matter remained pending for about seven years and all of a sudden the District Inspector of Schools passed an order on 4-2-1991 allowing payment of salary to the petitioner. On the strength of this order, the petitioner preferred writ petition No. 31716 of 1991 claiming a mandate for salary from 1976. This petition remained pending for several years and was disposed off by an ex parte order dated 11-3-1998 with the liberty to the petitioner to approach the District Inspector of Schools. In turn, the District Inspector of Schools vide order dated 2-6-1999 passed an order for payment of salary from 1976. Encouraged by his success, he threw his hat in the seniority dispute on the strength of his appointment in 1972 and claimed ad hoc promotion to the post of Principal which is resulted in the impugned order. After hearing the parties at length and after perusing all the records, the Court gave an option to the petitioner to withdraw the writ petition or else he would have to justify his continuance in the institution in the teeth of the order dated 24-11-1978. After consultation with his client, the Counsel for the petitioner chose to press the petition.
(3.) BEFORE proceeding to examine the validity of the impugned order at the behest of the petitioner it would be necessary, on these facts, to examine the legality of the appointment and continuance of the petitioner as a Lecturer in Sociology in the institution. In the counter-affidavit filed by the respondent No. 3 it is alleged in paragraph No. 3 that the services of the petitioner were dispensed with by the management with effect from 24-2-1976 after due approval of the District Inspector of Schools. This statement of fact has not been denied in the rejoinder affidavit. It is also apparent that the claim of the petitioner for salary in writ petition No. 1265 of 1976 was turned down on the ground of alternative remedy vide order dated 15-3-1978 and in pursuance of which he preferred an appeal before the Regional Director of Education, 7th Region, Gorakhpur which was also rejected vide order dated 24-11-1978. These averments in paragraph Nos. 5 and 6 in the counter-affidavit of the respondent No. 3 have not been substantially denied in the rejoinder affidavit. The Deputy Director of Education by a detailed order dated 24-11-1978, which is annexed as Annexure-2 of the counter- affidavit, had rejected the appeal of the petitioner. Admittedly, this order was never challenged by the petitioner before any competent Court of law and thus it became final. It is further alleged in the counter-affidavit that the petitioner approached the State Government vide his letter dated 28-9-1982 for recognition of the subject of Sociology in the institution but the State Government through its Deputy Secretary rejected the prayer of the petitioner vide order dated 25-5-1983. Though this fact has been denied claiming that the petitioner has no knowledge, it does not stand to reason as what would any other person gain from applying on behalf of the petitioner for recognition of the subject. The existence of the letter dated 27- 5-1983 has not been denied by the petitioner though it is addressed to him.;