Yashoda Nandan, J. - (1.) Petitioner, Baleshwar Pandey was employed as a permanent Lecturer in History at Maninath Intermediate College, Nanapar, tahsil Salempur, district Deoria in the year 1971. It appears that in the year 1971 there were disputes between two rival persons named Batuk Deo Tripathi and Sri Parmanand Tripathi and both claimed to be the Manager-cum Secretary of the Committee of Management of the College concerned. It appears that there were rival Committee of Management also. A civil suit was consequence of this dispute in which one Sri Gopal Misra, Advocate was appointed as Receiver. It appears that the individual, who held the post of Receiver, was not pleased with the petitioner and consequently suspended him from service on various occasions Ultimately on 13th February, 1973 after making an enquiry against the petitioner, the Receiver decided that the petitioner was liable to b: dismissed from service on account of misconduct and by means of a letter dated 13th February, 1973 he sought approval of the District Inspector of Schools, Deoria to the proposed action against the petitioner. The District Inspector of Schools, Deoria, by an order dated 16th February, 1973 declined to accord approval to the dismissal of the petitioner from service. The Receiver, who was functioning as Manager of the Committee of Management, appealed against the order of the District Inspector of Schools Deoria, before the Deputy Director of Education, Gorakhpur Region. Gorakhpur. By order dated 7/13th December, 1973, the Deputy Director of Education, allowed the appeal preferred by the Receiver against the order of the District Inspector or Schools, r.fusing permission to the proposed termination of the petitioner's service and accorded permission sought for by the Receiver. The petitioner alleges that consequent upon the appellate order of the Deputy Director of Education, the Committee of Management of the institution took no steps to serve an order terminating fee petitioners service on him. On 18th December, 1973 the petitioner instituted a civil suit (Civil Suit No. 1265 of 1973) in the court of the learned Munsif. Deoria, against Maninath Intermediate College, Deoria through the Manager Siksha Samiti Nonapar, tappa Bhatni, pargana Salempur Majhauii. district Deoria and the Silsha Samiti mantioned above praying for an order of injunction restraining the defendants to the suit from giving effect against the plaintiff to the order of the Deputy Director of Education dated December, 7/13-1973 and further for an injunction to the effect that the defendants to the suit do not serve a notice of dismissal on the plaintiff and remove him from service. On 19th February, 1974 a compromise was filed in the suit signed by the applicant and one Parmanand Tripathi describing himself as the Manager of the respondent as well as the Manager of Maninath Intermediate College, Deoria. In this document it was stated that the compromise had been arrived at between the parties to the suit and it had been decided that the plaintiff to the suit would continue as a lecturer of Maninath intermediate College and was entitled to his entire salary in that capacity and further that the charge-sheet framed against him and the order of his dismissal which had been served on the plaintiff, were baseless and ineffective. A prayer was made that the decree be passed in terms of the compromise and the compromise may be form part of the decree. On 5th March, 1974 the petitioners sup was decreed in terms of the compromise against the defendants. The decree itself was formally signed on 26th March, 1974. It appears that armed with the decree the petitioner succeeded in obtaining an order dated 2rd October, 1975 re-instating him in service as a lecturer. The order passed by the then Receiver Sri Bansidhar Singh dated 23rd October, 1975 specifically mentions that in view of the decree, a copy of which had been produced before him, the petitioner was being directed to be re-instated into service with immediate effect. During the period when the petitioner was under suspension and enquiry proceedings were pending against him. Respondent No. 5 Sri Rama Shanker Tewari. who was a permanent teacher in the L.T. grade in the College, had been promoted to the post which was held by the petitioner as lecturer in history in his vacancy. On 29th January, 1976, the District Inspector of Schools sent a communication to the Principal of the College to the effect that the Receiver had in accordance with the decree of the Civil court reinstated the petitioner in service in the lecturers grade with effect from 24th October. 1975. It was further stated that respondent No. 5, Sri Rama Sanker Tewari had been approved by an order dated 23rd November, 1973 in temporary capacity till final decision of the case of Sri Baleshwar Pandey. the petitioner. The District Inspector of Schools went on to state since the reinstatement of Sri Pandey, the continuance of payment of lecturers salary to Sri Tewari, was illegal and contrary to the rules. It was directed that with effect from the date of the petitioners having been reinstated on lecturers post, the respondent No. 5 stood reverted to the L.T. grade. The excess salary paid to Sri Tewari, respondent No. 5 was directed to be adjusted in his salary bill for the month of January, 1976. Aggrieved by the order of the District Inspector of Schools, dated 29th January, 1976, mentioned above, respondent No. 5 Sri Rama Shanker Tewari appealed to the Deputy Director of Education. By means of an order dated 23rd February, 1976 addressed to the District Inspector of Schools, the Deputy Director of education, intimated to the District Inspector of Schools that he had received an appeal from respondent No. 5 in which it had been asserted that the decree which had been obtained by the petitioner from the civil court was based on a compromise which had been entered into by one who was not competent to represent the Committee of Management of the College. It was stated that if the allegations made by respondent no. 5 in his appeal were correct, the District Inspector of Schools should stay his order dated 29th January, 1976 so that legal and financial problems may not arise subsequently. The District Inspector of Schools was required to send his comments on the appeal filed by respondent No. 5 within a week. Against the above mentioned communication of the District Inspector of Schools the petitioner has hied Misc. Writ Petition No 441-A of 1976 which was admitted and an interim Older was granted staying operation of the order of the Deputy Director of Education dated 23rd February, 1976. The interim order by this Court in the writ petition was passed on 20th May, 1976 Respondent No. 1. Deputy Director Education, Gorakhpur Region by order dated 6th October, 1977 has allowed the appeal of respondent No. 5. This appeal was allowed after notice had been issued to the petitioner and he had b en given an opportune y of being heard. During the appeal one of the contentions raised on behalf of the petitioner was that in view of the interim order granted by this Court in Writ Petition No. 441-A of 1976., it was not open to the Deputy Director of Education to proceed to hear the appeal and decide it on merits The Deputy Director of Education rejected the contention holding that no interim order has been passed by this Court prohibiting him from proceeding to decide the appeal on merits. The Deputy Director of Education proceeded to consider the question as to whether the decree obtained by the petitioner in Civil Suit no. 1265 of 1973 from the court of the learned Munsif, Deoria on the basis of which the petitioner had been reinstated in service and as consequence of which respondent No 5 Sri Rama Shanker Tewari had been reverted to L T. grade, had any binding effect on the department and was legal. It was held that in the suit in which the decree had been passed neither the District Inspector of Schools, nor respondent No. 5 Sri Rama Shanker Tewari. nor the Stale oi U.P figured as parties. They were not parties to the compromise decree. The Deputy Director of Education further held that the services of the petitioner, Sri Bileshwar Pandey, had been terminated as a result of his order dated 7/13th December, 1973 and yet he also had not been impleaded as a party to the suit nor had any knowledge of its institution and pendency. Their defendants to the suit were Siksha Samiti and the college through the Manager of Siksha Samiti and consequently the decree had no legally binding effect on the department or Deputy Director of Education, or the District Inspector of Schools, or respondent No 5. On an examination of evidence produced before him, the Deputy Director of Education further held that the gentleman who had entered into the compromise on behalf of the college, was at the relevant time not the manager t f the institution and the compromise decree bad been obtained by the petitioner by practicing fraud on the court. As a consequence of the findings recorded, as mentioned above, the Deputy Director of Education, come to the conclusion that on the basis of the compromise decree in the Civil suit, the District Inspector of Schools was rot justified in treating the petitioner as having been reinstated in service on the post of lecturer in (he Institution and consequently his order directing the reversion of Sri Rama Shanker Tewari to the post of L.T grade in spite of his having been confirmed as lecturer, was also legally unsustainable the appeal was consequently allowed and the order of the District Inspector of Schools dated 29th January, 1976 was set aside with effect from the date the petitioner had taken charge of the post of lecturer in History in the College. The Deputy Director of Education held that the services of the petitioner would not be recognised. Aggrieved by this order, the petitioner has filed this writ petition and has prayed that the order of the Deputy Director of Education dated 6th October, 1977 be quashed by means of appropriate writ or order. Certain miscellaneous relief have also been prayed for in this writ petition.
(2.) Learned counsel, appearing for the petitioner, has challenged the order of the Deputy Director of Education on various grounds. He firstly contended that respondent no. 5. had been only temporarily promoted to the post in the lecture is grade during the pendency of the proceedings against the petitioner and consequently no appeal lay against the order of the District Inspector of Schools by which be had been merely reverted to the post on which he had a lien since the order of the District Inspector of .Schools did not amount to an order of punishment. Respondent no. 5 had challenged the order of the District Inspector of Schools dated 29th January, 1976 on the allegations that he had been confirmed in the lecturers grade as the petitioners services had been finally terminated and consequently his reversion to the post in the lecturers grade, amounted to a punishment. Respondent no.5 had not accepted the petitioners case that had been only temporarily promoted. The question as to whether any appeal lay at the instance of respondent no. 5 or not, has to be decided on the basis of the stand taken by him in the appeal and not on the basis of the allegations made by the petitioner. The Deputy Director of Education by means of the impugned order has also found that, in fact, respondent no. 5 had been confirmed on the post of lecturers grade. If this finding is correct, there can be no doubt that the order of the District Inspector of Schools dated 29th January, 1976 directing his reversion to the post in the lecturers grade amounted to an order visiting him with penal consequences and consequently was appealable.
(3.) It was next contended that assuming the Deputy Director of Education was right in his conclusion that respondent no. 5 had been promoted permanently to the post of lecturer in the college, it did not necessitate the termination of the petitioners services. On the finding recorded that respondent no. 5 had been confirmed in the post of lecturer, it was urged that he should have been adjusted in some other lecturers pest and it was illegal for the Deputy Director of Education to have directed the termination of the petitioners service. This submission, in our opinion, is without any merit. The Deputy Director of Education has not directed the removal of the petitioner from his service. He came to the conclusion that respondent no. 5 was a confirmed lecturer. It has been found by the Deputy Director of Education that the petitioners services had been terminated earlier as a result of the approval accorded by the Deputy Director of Education himself and that his reinstatement on the basis of the compromise decree was illegal. The termination of the petitioners service is not the consequence of respondent no. 5 having been found to be a confirmed lecturer, but according to the finding of the Deputy Director of Education on account of an earlier order and his re instalment was obtained on the basis of a fraudulently obtained compromise decree which was not binding on the department or on the Deputy Director of Education, or even respondent no. 5. It was also urged that the Deputy Director of Education erred in law and acted contrary to the principal of natural justice by recording a finding that the compromise had been entered into by Sri Parmanand Tripathi, who was net at the relevant time, the Manager of the Committee of Management without notice having been served to the Committee. This plea is not available to the petitioner. It was open to the Committee of Management to have challenged the order of the Deputy Director of Education on the ground raised by the petitioner. The Committee of Management, however, has not challenged the order impugned and has submitted to it. The petitioner consequently can have no grievance against the order on the ground that it was passed without hearing the Committee of Management when he himself had been heard and had been given opportunity of producing material in his support.;