Allahabad High Court
Nand Kishore Gaur vs Regional Dy. Director Of Education, ... on 8 November, 2017
Bench: Amreshwar Pratap Sahi, Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 37 Case :- SPECIAL APPEAL No. - 1737 of 2007 Appellant :- Nand Kishore Gaur Respondent :- Regional Dy. Director Of Education, Meerut & Others Counsel for Appellant :- J.H. Khan,Gulrez Khan,W.H. Khan Counsel for Respondent :- C.S.C.,Amit Krishan,S. Goswami Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Saral Srivastava,J.
This appeal even though arises out of the judgment of the learned Single Judge dated 14th November, 2003 in Writ Petition No. 40220 of 1993, yet it has its precursor in two previous writ petitions filed by the respondent no. 4-Committee of Management being Writ Petition No. 12299 of 1982 and Writ Petition No. 20233 of 1987. The aforesaid two writ petitions were dismissed on 30th September, 1985 and 7th May, 2001 respectively, the previous writ petition of 1982 with an interim order passed therein on 21.10.1982 and in view of a Compromise Application, and an interim order dated 17.11.1987 passed in the 1987 writ petition.
The dispute in short is about the appointment of the appellant against the post of Sub-Deputy Inspector of Schools in the Basic Education Department of the Government of Uttar Pradesh, coupled with the claim of appellant's lien on the feeder post of Head Master and consequential benefits including payment of salary in a Junior High School which is a privately managed Institution governed by the statutory provisions framed under the U.P. Basic Education Act, 1972 namely, the Uttar Pradesh recognized Basic School (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978 (hereinafter referred to as the "1978, Rules") and also financially aided by the State, as would be evident from the facts unfurled hereinafter. It is necessary to delve into the aforesaid status of employment of the appellant as Head Master and further claim as a Sub-Deputy Inspector of Schools on account of the intervening litigation and the judicial and administrative orders intersecting the same.
The writ petition giving rise to this appeal prayed for a certiorari to quash the order dated 14th August, 1989 whereby the appellant was informed by the Assistant Director of Education, Basic Ist Region, Meerut that the Director of Education vide communication dated 18.07.1989 has communicated that it was not possible to appoint and continue the appellant as a Sub-Deputy Inspector of School. This was the immediate cause that gave rise to the writ petition. A further prayer was made in the writ petition to allow the appellant to join the post of Sub-Deputy Inspector of Schools and to treat him in such service since, 1985.
A third prayer was made in the alternative that the appellant should be reinstated on the post of Head Master of the Junior High School managed by the respondent no. 4 and to pay his salary since 20th May, 1982 up to date.
The learned Single Judge after having traversed the facts came to the conclusion that since the appellant by virtue of the interim order dated 21st October, 1982 passed in Writ Petition No. 12299 of 1982, had been prevented from functioning as Head Master, he was not entitled for salary. Secondly, the learned Single Judge opined that by virtue of the compromise in the aforesaid petition the appellant had given up his claim for the post of Head Master and therefore, he will be presumed to have abandoned the same. The outcome arising out of the compromise has been held to be binding on the appellant and it was, therefore, held by the learned Single Judge that the appellant cannot now claim any return against the said post even if the 1982 writ petition was dismissed as infructuous.
The learned Single Judge while commenting on the outcome of the second writ petition, namely, Writ Petition No. 27233 of 1987 has opined that after the said writ petition came to be dismissed for want of prosecution on 7th May, 2001, the appellant attained the statutory age of superannuation on 30.06.2001 and on account of the interim order dated 17.11.1987 passed therein, the order impugned in the petition dated 09.11.1987 permitting the appellant to join had become inexecutable. Thus, the learned Single Judge came to the conclusion that since no relief can be granted, the writ petition was liable to be dismissed and he was not entitled for any payment of salary on the post of Head Master.
The nature of appointment on the post of Sub-Deputy Inspector of Schools was also held to be of ad hoc nature. It was also held that the appellant had initially acquiesced to the order dated 14.08.1989 whereby appointment on the said post had been declined and it was after four years that he filed the writ petition giving rise to this appeal in 1993 to raise a challenge to the same. In this background the appellant has been declined relief on all counts.
In order to appreciate the controversy raised, we find it necessary to record the facts chronologically in order to assess the impact of the intervening litigation and orders passed from time to time.
It is undisputed that the appellant came to be appointed as a Head Master in Adarsh Janta Purva Madhyamik Vidyalaya, Hasanpur Lohari, Muzaffarnagar by the Committee of Management in terms of the 1978 Rules on 10th July, 1980. The appointment on the post of Head Master or a teacher requires approval of the District Basic Education Officer in terms of Rule 10 of the 1978, Rules. This approval was granted on 10th July, 1980 on one year probation.
The appointment is to be followed by confirmation under Rule 12. The period of probation of the appellant under Rule 12 of the 1978 Rules was proposed to be extended by one year under a resolution of the Committee of Management dated 26th June, 1981. During the period of probation, it appears as per the stand of the Committee of Management before the learned Single Judge in its counter affidavit, that there were certain allegations against the appellant of his being a Life Insurance Corporation agent. The Committee of Management appears to have passed a resolution on 18th April, 1982 to terminate the services of the appellant treating him to be on probation and, consequently discharged him from service. As per Rule 15 of the 1978 Rules no Head Master or teacher can be discharged, removed or dismissed from service or reduced in rank or subjected to the punishments referred to therein except with the prior approval in writing of the District Basic Education Officer. The District Basic Education Officer approved the said termination of the services of the appellant treating him to be on probation, vide order dated 19.05.1982.
Aggrieved by his termination the appellant appears to have approached the higher authority, and the Deputy Director of Education vide letter dated 1st October, 1982 called upon the District Basic Education Officer to set aside the order dated 19th May, 1982. The said letter is on the record of the 1982 petition which narrates the invalidity in the procedure of extending the probation period of the appellant and the consequential action of discharge and its approval being not in accordance with law. The District Basic Education Officer on such response vide order dated 14th October, 1982 cancelled the earlier order dated 19th May, 1982 whereby he had approved the termination of the appellant.
The appellant contends that on the passing of this order he had taken over charge on 19th October, 1982. This has been replied to by the Management in its counter affidavit filed before the learned Single Judge by asserting in paragraph no. 11 thereof, that the petitioner was reinstated on the post of Head Master, but in paragraph no. 14 while replying to the averments made in the paragraph nos. 4 and 5 of the writ petition, the Management has relied on a letter dated 23.10.1982 sent by an Assistant Teacher of the School Mr. Roshan Lal, stated to be officiating as Head Master in place of the appellant, to the District Basic Education Officer informing him that the appellant had forcibly broken the locks on 23rd October, 1982 and taken possession of registers and documents.
It is here that the intervening event of filing of Writ Petition No. 12299 of 1982 by the Management is relevant as this writ petition was filed by challenging the orders dated 01.10.1982 passed by the Deputy Director of Education (Basic) and 14.10.1982 by the Basic Education Officer respectively. But while granting interim relief, a Division Bench of this Court on 21.10.1982, only stayed the operation of the order dated 01.10.1982 and not the order dated 14.10.1982. The interim order is extracted hereinunder:-
"Issue notice.
Operation of the order dated 01.10.1982 shall remain suspended meanwhile"
The learned Single Judge while dismissing the writ petition giving rise to this appeal has therefore presumed this to be an order making the appellant dis-functional on the post of Head Master in the Institution.
The appellant put in appearance in the aforesaid Writ Petition No. 12299 of 1982 and filed a stay vacation application that was rejected on 27.04.1983. During the pendency of the said writ petition the appellant came to be appointed as a Sub-Deputy Inspector of Schools under the orders of the Regional Deputy Director Education, Meerut. The said order dated 10th June, 1985 contains several clauses of communication and in Clause No. 4 the District Basic Education Officer of Meerut was directed to make ad-hoc arrangements on the post of Head Master that became vacant on account of such ad-hoc appointment in the district including that of the appellant, on such terms that in case any future repatriation has to be made, there would be no obstruction. This letter of appointment was placed before the Division Bench hearing Writ Petition No. 12299 of 1982 and an application was filed jointly by the appellant and the respondent no. 4-Committee of Management supported by a joint affidavit stating therein about a settlement and compromise and acknowledging the terms and conditions imposed therein. The affidavit was accompanied by the letter of appointment of the appellant dated 10th June, 1985. It is to be noted that the Committee of Management was the petitioner in that writ petition and the appellant was the respondent therein. Paragraph nos. 4, 5 and 6 of the said affidavit dated 17th September, 1985 are extracted hereinunder:-
"4. That in the aforesaid case the parties have compromised the matter outside the court and the respondent no. 3 has agreed to abandon the claim on the post in petitioner's School and the respondent has further agreed not to make claim over the post in question on the basis of the orders impugned in the writ petition in future on any ground whatsoever and leave the services as he has been appointed as Sub-Deputy Inspector of Schools.
5. That the petitioner has also no objection if the applicant-respondent no. 3 leaves his service in the Institution and joins on the post of Sub-Deputy Inspector of Schools in pursuance of the appointment letter dated 10.06.1985.
6.That in these circumstances it is, therefore, in the interest of justice, enquiry and expediency that this Hon'ble Court may be pleased to dispose of the writ petition with the condition that the respondent no. 3 will not claim any benefit from the management and the management will not raise any objection for the appointment of the applicant-respondent no. 3 as Sub-Deputy Inspector of School."
The High Court vide order dated 30th September, 1985 dismissed the writ petition treating it to have become infructuous in view of the settlement arrived at between the parties outside Court. The order passed in the writ petition is extracted hereinunder:-
"In view of a joint affidavit filed on behalf of the petitioners and the respondents that the dispute has been settled outside the court; the petition is rendered infructuous.
It is accordingly dismissed.
A copy of this order may be issued to the counsel for the parties within 24 hours on payment of requisite charges."
It would be appropriate to put on record that the Deputy Director of Education and the District Basic Education Officer were respondent nos. 1 and 2 representing the State in the aforesaid writ petition and they are not parties to the compromise. In short the compromise affidavit is not between the State and the other two private parties.
The dispute took another turn after the aforesaid petition was treated to have become infructuous and was dismissed as such in the circumstances indicated above.
According to the appellant, the Committee of Management had to give a no objection to the joining of the appellant as Sub-Deputy Inspector of Schools in view of the letter dated 18th June, 1985 dispatched by the District Inspector of School, Meerut informing the appellant that his joining would be permissible only after there is a relieving certificate from the Management and a last pay certificate in his favour. This document was filed as Annexure No. 5 to the writ petition.
It is the case of the appellant that the Management harassed the appellant in obtaining the said certificates and ultimately, a certificate was issued by the Manager as late as on 9th January, 1987. This document was filed as Annexure No. 6 to the writ petition. The Committee of Management had been called upon by the authorities to attend the office of the Basic Education Officer but the Manager did not turn up to verify the signatures and there was some dispute again raised by the Manager which stands reflected in the letter of communication sent by the Regional Assistant Basic Director of Education dated 12th May, 1987, copy whereof was filed as Annexure no. 7 to the writ petition. The dispute appears to have arisen as the Management appears to have dispatched a letter to the District Basic Education Officer on 22.12.1986 informing him about not having sent any letter in favour of the appellant and the signatures being forged. The District Basic Education Officer sent a letter to the Manager which was filed by the Management alongwith its counter affidavit as Annexure No. CA-9. The Manager in turn informed him that he had not written any previous letter which is fake and manipulated as produced by the appellant, and he further informed the Basic Education Officer that the appellant was involved in a criminal case of theft. The Manager also alleged having sent another letter on 7th May, 1987 to the same effect but at the same time also accepted the compromise arrived at in the 1982 writ petition and that he had no intention to harass the appellant who had no claim for any further salary as Head Master.
It is in this background that on 23rd April, 1987 the Regional Assistant Director of Basic Education issued instructions to the District Basic Education Officer to take appropriate action against the Management. On 30th April, 1987 the Regional Assistant Director of Education Basic wrote another communication to the Manager of the Institution that in the event the Manager does not respond, the Department will take appropriate action for payment of salary to the appellant and such other action that may be necessary. The District Basic Education Officer passed an order for making payment of salary to the appellant as Head Master on 09.11.1987 calling upon the Manager to allow the appellant to take charge as Head Master in order to ensure the compliance of departmental directives issued from time to time. These two orders of the Basic Education Officer were filed as Annexure Nos. 10 and 11 respectively to the writ petition before the learned Single Judge. The aforesaid orders appear to have been passed presumably treating the lien of the appellant on the post of Head Master to be alive and because of the fact that he could not join as a Sub-Deputy Inspector of Schools due to the management causing obstruction by declining to issue the certificates of no dues and last pay drawn as desired vide letter dated 18.06.1985.
The stand of the Management before the learned Single Judge was also qualified and which clearly indicated that the Management did not intend to make any payment of salary or issue last pay certificate to the appellant as Head Master which fact is evident from paragraph nos. 18 to 21 of the counter affidavit of the Management before the learned Single Judge.
At this juncture, it is relevant to mention that the previous second writ petition was filed by the Management namely, Writ Petition No. 20233 of 1987 challenging the aforesaid order dated 09.11.1987 of the District Basic Education Officer that remained pending where an interim order was passed on 17.11.1987 that is extracted hereinunder:-
"Issue notice.
Meanwhile the operation of the impugned order 9th November, 1987 (Annexure 18 to the writ petition) shall remained stayed."
The appellant in his writ petition has stated that he made all efforts to get the aforesaid interim order vacated and the writ petition disposed of but of no avail and his counsel before this Court Sri A.K. Sharma died on 4th February, 1993. The petition was dismissed for want of prosecution on 07.05.2001, the order whereof is extracted hereinunder:-
"List of old cases has been revised. None appeared for the petitioner.
The writ petition is dismissed for want of prosecution. The interim order stands vacated."
It is in this background that the Assistant Director of Education Basic sent a communication to the appellant on 14th August, 1989 informing him about the communication of the Director of Education dated 18th July, 1989 that it was not possible to either appoint or continue the appellant as Sub-Deputy Inspector of Schools. The appellant states that after the death of his counsel, he was advised to challenge the said order and, consequently, the writ petition giving rise to the present appeal was filed in 1993.
The aforesaid background, therefore, makes it clear that the appellant was contesting both his claims throughout that ultimately turned out to be a situation of running the last mile. This led to the filing of the writ petition by the appellant that has been dismissed by the learned Single Judge giving rise to this appeal.
The cluster of facts intersected by the Administrative orders and the tangled history of litigation aforesaid, therefore, has come up for consideration before us in this appeal where the appellant contends that his exploitation by the Management and no help coming from the State, the appellant deserves the relief as prayed for in order to vindicate his grievances.
We may put on record that we have heard Sri Khan, learned counsel for the appellant, and the learned counsel for the state as well as the for the Basic Education Department. Sri Amit Krishan learned counsel who had appeared before the learned Single Judge and filed a counter affidavit on being called upon by the Court stated before us that he has no instruction on behalf of the Management to argue this appeal on behalf of the respondent no.4. It may not be out of place to mention here that as per the Allahabad High Court Rules, 1952 the Vakalatnama of a counsel representing a party before the learned Single Judge is not automatically terminated and it continues if an intra Court appeal under Chapter VIII Rule 5 of the 1952, Rules is preferred assailing the judgment and order of a learned Single Judge. A copy of the appeal was therefore served on Sri Amit Krishan through his Clerk on 13.12.2007 before being presented as per Chapter IX Rule 10 of the 1952 Rules. Nonetheless, Sri Amit Krishan made a statement before us that he has no instruction as indicated above and, therefore, we have proceeded to only consider the counter affidavit filed by the Management and its version before the learned Single Judge. This is also in conformity with law as the present appeal to that extent is continuity of the proceedings before the learned Single Judge and the pleadings thereof have to be looked into for the purpose of the appeal.
A couple of stages earlier, before the matter came to be heard by us, another Division Bench vide orders dated 9th August, 2017 had called upon the State to show cause as to why it was not possible to offer the post of Sub-Deputy Inspector of Schools to the appellant vide order dated 09.08.2017 extracted hereinunder:-
"The record of the Writ Petition No.40220 of 1993 may be brought along with this special appeal.
List on 24.08.2017.
"Learned Standing Counsel will also produce before this Court the record of the State by virtue of which the appellant was given the post of Sub Deputy Inspector of Schools. The State should also show and substantiate as to why he was not allowed to take up the post."
This was followed by another direction to produce the record on 24.08.2017 which is extracted hereinunder:-
List on 11.9.2017 to enable the learned standing counsel to produce the record as directed by the order dated 9.8.2017.
Ultimately the Division Bench passed the following order on 11.09.2017 calling upon the state to file an affidavit in the aforesaid background:-
"Learned Standing Counsel prays for and is allowed two weeks' time to file counter affidavit.
List this matter on 09.10.2017."
Consequently, on behalf of the District Basic Education Officer an affidavit came to be filed, captioned as a counter affidavit in the present appeal narrating some of the facts indicated above and also stating that since the appellant had already attained the age of superannuation, therefore, the appeal was liable to be dismissed and the judgment of the learned Single Judge deserves to be confirmed.
This stand in the counter affidavit is contrary to all the communications that had been made in favour of the appellant and narrated hereinabove.
It is amidst these contradictions that the learned counsel for the appellant has urged that it is a travesty of justice that the learned Single Judge has completely over-looked the fact that the compromise which was entered into, was not a unilateral compromise and that there were bilateral conditions imposed therein. Therefore to presume and accept the binding nature of the compromise only against the appellant is unjustified. It is urged that the other part of the compromise whereby the Management and the state had to perform their part has not been appreciated in correct perspective and, therefore, the impact of the compromise having not been given full effect to in its entirety, the impugned judgment is vitiated. Sri Khan, submits that the appellant cannot be non-suited on both counts namely, he cannot be denied his lien on the post of Head Master on the strength of the compromise, and then at the same time also denied his claim on the post of Sub-Deputy Inspector of School. It is therefore, submitted that the judgment is liable to be set aside both on equity as well as in law.
It is urged by Sri Khan that the writ petition of 1982 was dismissed as infructuous, the consequence whereof is that the order of the District Basic Education Officer dated 14.10.1982 and the communication of the Assistant Director of Education 01.10.1982 stand. This, therefore, does not terminate the lien of the appellant on the post of Head Master and the compromise has to be given effect in its entirety. The Management by frustrating the other part cannot insist that the appellant has abandoned his claim for the post of Head Master and, even otherwise, the compromise cannot be treated to have been acted upon unless both the conditions are fulfilled. He further submits that the compromise does not find place as a condition of the order of the High Court dismissing the writ petition as infructous on 30th September, 1985. The State is not a party to the compromise and, therefore, the state is bound to make payment of salary to the appellant as per the orders passed by its authorities. This aspect of the matter has also been over-looked by the learned Single Judge including all the communications that have been narrated hereinabove and were on record of the writ petition whereby the Assistant Director of Education Basic and the District Basic Education Officer had acknowledged the right of the appellant to receive salary as Head Master of the Institution, so long as the appellant was not given charge as Sub-Deputy Inspector of Schools.
It is urged by Sri Khan that the lien of the appellant was subject to the condition of his being appointed as a Sub-Deputy Inspector of Schools which aspect has not been correctly appreciated by the learned Single Judge. The Management virtually played a trick with the appellant by raising objections after the compromise and disputing his claim of salary on the one hand as Head Master and not furnishing the certificates to enable the appellant to join on his post of Sub-Deputy Inspector of Schools. The Management was estopped from resiling back from the compromise.
He further submits that if the learned Single Judge ultimately, found that there could not be a valid appointment on ad hoc basis as a Sub-Deputy Inspector of Schools, then the other relief claimed in the writ petition, namely, relief Clause No. C to reinstate him on the post of Head Master and pay salary ought to have been allowed. He contends that the learned Single Judge erroneously presumed that this was a case of no work no pay and that the appellant having abandoned his claim as Head Master would not be entitled to any benefit on the said post.
In short, the submission of Sri Khan is that this relief of maintaining the lien on the post of Head Master and benefits arising therefrom could not have been over-looked by partially reading the compromise against the appellant and then denying relief all together.
The learned Standing Counsel on the other hand contended that there was a complete abandonment by the appellant on the post of Head Master in the school on any ground in future and this agreement, therefore, by the appellant estopps him from raising any such plea either in law or in equity. He submits that the dismissal of the writ petition as infructuous was only on account of said agreement as reflected in the joint affidavit and recorded in the order of the High Court dated 30th September, 1985. The dismissal of the writ petition will not revive the claim of the appellant on the strength of the orders that were impugned in the writ petition.
So far as the issue of the benefits on the post of Sub-Deputy Inspector of School is concerned, the Standing Counsel urged that in the absence of any such provision to appoint on ad-hoc basis, the very letter of appointment of the appellant does not entitle him to either claim continuance or appointment, and even otherwise since the appellant never held the post of Sub-Deputy Inspector of School, there is no occasion to consider his claim of payment of salary on the said post. The appellant does not have any substantive appointment on the post of Sub-Deputy Inspector of Schools and, therefore, any consequential benefits also on that count cannot be accepted. It is also urged that it is for this reason that the communication dated 14th August, 1989 was issued communicating the decision of the Deputy Director of Education that it was not possible to allow the appellant to be appointed as Sub-Deputy Inspector of Schools or continue in the post or claim any benefit. Thus, the appeal is liable to be dismissed.
Having considered the submissions raised and having perused the pleadings, it is undisputed that the appellant had been appointed on probation as a Head Master with the prior approval of the District Basic Education Officer under the 1978, Rules. This was a regular permanent and substantive appointment against a vacant post on probation for one year. Before the completion of the probation period, the Management resolved proposing extension of the period of probation by one year more, which is also a undisputed fact.
The dispute about extension had been raised before the Education Authorities, but the district Basic Education Officer ultimately informed the management that this power lay with the management under Rule 12. This was adversely commented upon by the Deputy Director Education in the letter dated 01.10.1982.
It is during this stated extended period of probation that the service of the appellant was terminated. The background of termination even though, was based on an allegation of the appellant being an agent of the Life Insurance Corporation, yet no disciplinary proceedings as contemplated under Rule 16 of the 1978 Rules were held. The resolution of the Committee of Management to terminate his services on 18th April, 1982 was approved by the District Basic Education Officer in terms of Rule 15 of the 1978, Rules. This was, therefore an approval of discharge of the appellant from service treating him to be on probation. The appellant appears to have taken it as a matter of punishment on an invalid extension of probation but the Management disputes it as a termination simpliciter and alleges that the appellant had not filed any statutory appeal as provided for under Rule 16 of the 1978, Rules read with the U.P. Basic Education Staff Rules, 1973 before the competent authority.
From the records of the 1982 petition, the fact of filing of an appeal and having been transmitted vide letter dated 15.06.1982 to the Secretary of the Basic Education Board has been admitted in Para 11 of the counter affidavit dated 21.10.1983 of the Deputy Director Education, Meerut Sri Hari Kant Rastogi. This filing of the appeal appears to have been asserted by the appellant that was replied by the Manager in his affidavit dated 05.08.1983 in para 3 where it was alleged that the appellant had not filed the memorandum of appeal and that the appeal could not be decided as the matter was subjudice in the writ petition. There is no other material on record to gather anything about the fate of such appeal.
The Deputy Director of Education Basic on the appellant's complain, vide communication dated 1st October, 1982 called upon the District Basic Education Officer to set aside the order dated 19.05.1982 approving the discharge.
The District Basic Education Officer on 14th October, 1982 cancelled the order dated 19.05.1982. The consequence was that the order approving the discharge of the appellant was set aside. It is to be noted that the approving authority under the Rules is the District Basic Education Officer. There appears to be a dispute about an appeal having been filed before the competent authority in terms of the Rules referred to hereinabove inasmuch as, the U.P. Basic Education Staff Rules, 1973 that are applicable to disciplinary proceedings as per Rule 16 provides that the Appellate Authority would be the Chairman of the Basic Education Board in the case of disciplinary proceedings against a Head Master and the Deputy Director Education has admitted the forwarding of an appeal filed by the appellant against the order dated 19.05.1982 to the Board on 15.06.1982. There is nothing on record as noticed above to indicate the fate of the appeal stated to have been sent to the Board on 15.06.1982.
In the instant case, the appellant had approached the Deputy Director of Education Basic, who had issued an Administrative order on 01.10.1982 calling upon the District Basic Education Officer to recall the approval to the discharge order. It was on such communication that the District Basic Education Officer passed the order on 14th October, 1982.
The Committee of Management challenged the said orders to be without authority presumably on the ground that the Deputy Director of Education Basic did not enjoy any powers to issue any such directions and, therefore, the District Basic Education Officer had passed an erroneous order on 14.10.1982. The writ petition filed by the Management being Writ Petition No. 12299 of 1982 was entertained, but while passing the interim order the Division Bench only stayed the operation of the order dated 01.10.1982 and not the operation of the order dated 14.10.1982. This is evident from the terms of the order extracted hereinabove. Whether the said communication was without authority or jurisdiction never came to be finally adjudicated as the petition was dismissed as infructuous.
Nonetheless, what has to be seen is the impact of the aforesaid interim order dated 21.10.1982. As noted earlier, the counter affidavit of the Management filed before the learned Single Judge in paragraph 11 thereof admits the fact of having reinstated the appellant, but in a guarded way has explained in paragraph 14 of the said counter affidavit that the appellant had forcibly broken up the locks and taken possession of registers and documents. This assertion in the counter affidavit, therefore, reflects on the physical presence of the appellant in the Institution as Head Master.
The Management had however totally denied the functioning of the appellant in the 1982 petition. The Management in its affidavit dated 05.08.1983 in the 1982 petition has asserted that the appeal filed by the appellant cannot be decided due to the matter being subjudice in the petition.
However, the fact remains that the appellant had not been paid his salary and it is for this reason that the appellant in relief Clause-C of the writ petition had prayed for salary since 20.05.1982. This situation was continuing in 1993, when the writ petition was filed by the appellant giving rise to this appeal. Not only this, in paragraph 15 of the writ petition, the appellant has categorically stated that he was not allowed to continue as Head Master in the Institution but at the same time in view of the compromise, he was also not given charge of the post of Sub-Deputy Inspector of Schools. It is also to be noted that when the order was passed by the District Basic Education Officer on 09.11.1987 calling upon the Management to allow him to function as Head Master and pay him salary, the said order was also challenged in Writ Petition No. 20233 of 1987 where an interim order was passed on 17.11.1987 was continuing till the dismissal of the writ petition for non-prosecution in 2001 and the interim order was vacated.
Thus, when the writ petition giving rise to this appeal was filed in 1993, there was another interim order operating since 1987 and it is for this reason that the appellant was neither treated as the Head Master of the Institution nor was he paid the salary.
The appellant had been denied the benefit of appointment as Sub-Deputy Inspector of Schools vide communication dated 14.08.1989. During the pendency of this dispute and the continuance of the interim order dated 17.11.1987 and in the absence of any interim order against the impugned order dated 14.08.1989 in the writ petition giving rise to the present appeal, the appellant also attained the age of superannuation on 30.06.2001.
The question, therefore, is about the status of the service of the appellant lawfully existing or otherwise so as to enable this Court to consider the grant of any relief to the appellant. This would, however, be dependent on the impact and the consequences of the compromise between the appellant and the Management that is contained in the affidavit dated 17th September, 1985 and the order of the High Court dated 30th September, 1985,, as also the fate of the 1987 petition.
It also deserves notice that the Educational authorities while insisting upon making payment of salary and allowing the appellant to join as Head Master in the communications of 1987 referred to hereinabove, even though have referred to the aforesaid compromise, yet they did not choose to refer to the impact of the interim order dated 21.10.1982.
The moot question, therefore, is about the status of employment of the appellant as a result of the passing of the order of the High Court dated 30th September, 1985 while noticing the out of Court settlement and the affidavit filed in respect thereof. The fact remains that the District Basic Education Officer had cancelled the approval of discharge. This order of the District Basic Education Officer dated 14th October, 1982 was not stayed by the High Court, but the interim order dated 21.10.1982 stayed the operation of the order of the Deputy Director of Education Basic dated 01.10.1982. The stay vacation application was rejected on 27.04.1983. It is, at this stage, that the compromise affidavit dated 17.09.1985 was filed jointly by the Committee of Management, the petitioner in the writ petition and the appellant who was the respondent therein. The affidavit is a joint affidavit and the three relevant paragraphs of the said affidavit have been extracted hereinabove. The said paragraphs unequivocally state that a compromise had been arrived at outside the Court whereby the appellant, who was the respondent no. 3 therein had agreed to abandon his claim on the post of Head Master in the Institution and has further agreed not to make any future claim on the basis of the orders impugned in the writ petition and "leave the services as he has been appointed as Sub-Deputy Inspector of Schools". Reciprocally, the Committee of Management, being the petitioner in that writ petition, also undertook that it shall not raise any objection if the appellant leaves his services in the Institution and "joins on the post of Sub Inspector of Schools in pursuance of the appointment letter dated 10th June, 1985". It is further stated that the writ petition be disposed of with the condition that no claim shall be made by the appellant against the Management, and correspondingly the Management will not raise any objection for the appointment of the appellant as Sub-Deputy Inspector of Schools.
Before considering the impact of the said three paragraphs of the affidavit of compromise it would be apt to state at the very outset, that this was a compromise between the appellant and the Committee of Management who are private parties. The State of U.P. through its educational authorities, namely, the Deputy Director of Education Basic and the District Basic Education Officer who were respondent nos. 1 and 2 in the writ petition of 1982 are not parties or signatories to the compromise. The Institution in question is governed by statutory Rules in matters of employment, namely, the 1978 Rules referred to hereinabove which requires the prior approval of the District Basic Education Officer before termination of the services of an employee. Thus, there is a statutory control in respect of such a recognized school which fact is undisputed. Apart from this, the Institution is aided from State funds. Thus there is a statutory administrative as well as financial control in respect of the services of an employee of a recognized Junior High School against the post sanctioned by the competent authorities of the State and is subject to their direct control including payment of salary. The disbursement of salary is regulated by The U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978. This controlling power of the State was nowhere compromised nor did the State or its authorities alter their stand that was taken in Writ Petition No. 12299 of 1982.
It should not be lost sight of that the State long thereafter, on 18th July, 1989 for the first time made a communication to the appellant that it was not possible to appoint or continue him as a Sub-Deputy Inspector of Schools.
Accordingly, as on the date when the compromise between the private parties was filed and the writ petition of 1982 was dismissed as infructuous on 30.09.1985, the State through its Educational Authorities nowhere opposed the claim of the appellant. On the other hand, the State also did not oppose the writ petition to be dismissed as infructuous on the terms arrived at between the parties.
This gives rise to a further question about the impact of the compromise between the private parties and the silent stand of the State without either approving or disapproving the said compromise. It is for this reason that we have to analyze the outcome of the said compromise, as the learned Single Judge has concluded that the appellant will be deemed to have abandoned his entire claim on the post of Head Master, and on account of his having attained the age of superannuation during the litigation, he cannot be granted the benefit of being appointed as a Sub-Deputy Inspector of Schools.
In order to appreciate the impact of the compromise, it would be necessary to deal with the theory, the practice and the applicability of the principles of compromise in order to apply them on the facts of the present case so as to deduce an opinion on the issue of abandonment as observed by the learned Single Judge.
It would therefore be apt to begin with the proposition that a settlement can be arrived at even without a dispute or after a dispute has arisen. The settlement can be private and also with the aid of external agencies including a Court. In the instant case the settlement is an outcome of a dispute already raised that had taken the shape of a writ petition. During the course of the pendency of the writ petition, the application for disposing of the writ petition accompanied by the terms of settlement was filed, and the writ petition was dismissed as infructuous while noticing the said fact. This was, therefore, a settlement arrived at in a Court proceeding but the compromise was not made with the State that was also a respondent in the writ petition and secondly, it was not with the aid of the Court but an out of Court settlement on the strength whereof the cause was treated as infructuous.
The passing of the order of the Court, therefore, brought to an end the litigation that was being pursued by the parties on acknowledging reciprocal terms whereby certain rights were given up in lieu of substituted rights. To understand this in the light of the claim and in the light of the word "abandoned" used in paragraph 4 of the compromise affidavit, it is necessary to observe that the aforesaid term "abandonment" as a term of compromise in the present case has to be understood not as a unilateral surrender or complete renunciation of rights but as an agreement by way of commitments that are laced with yielding opposite claims. It is a mutual concession and an adjustment amicably arrived at in order to compose differences by waiving certain rights and substituting the same by a new promise. The outcome of such a settlement is to give up all future litigation for the same cause of action, and to the extent of surrender made, no legal retention of rights in respect of such surrender stands acknowledged. The claims admitted as per the paragraphs of the affidavit in the present case amount to avoiding a suit and end litigation on the strength whereof new rights flow. It precludes the parties from bringing any fresh cause of action on the same grounds in future but at the same time it does not amount to an admission of either the validity or invalidity of the orders that were under challenge giving rise to the cause of action.
A compromise is a bilateral surrender giving away partly something to the other side on commonly accepted terms. The word compromise in Latin is spelt as compromittere (comp=mutually; promittere=promise). According to the definition of the word compromise in Black's Law Dictionary (8th South Asian Edition), it is an agreement between two or more persons to settle matters in dispute between them either on a real or supposed claim in which each party surrenders something in concession to the other. It is a middle course.
It is a pledge whereby parties amicably divest themselves to have the best of bargain. A mutual waiver with adjustments that seeks to enforce a substituted position agreed to by both parties is the object of a compromise. The dispute is harmonized in a legally designed way to draw the curtain for all times in future. Reference be also had to paragraph no.27 of the decision in the case of Bimal Kumar and another Vs. Shakuntala Debi and others, reported in 2012 (3) SCC, 548 extracted hereinunder :
"It is to be borne in mind that the term 'compromise' essentially means settlement of differences by mutual consent. In such process, the adversarial claims come to rest. The cavil between the parties is given a decent burial. A compromise which is arrived at by the parties puts an end to the litigative battle. Sometimes the parties feel that it is an unfortunate bitter struggle and allow good sense to prevail to resolve the dispute. In certain cases, by intervention of well-wishers, the conciliatory process commences and eventually, by consensus and concurrence, rights get concretised. A reciprocal settlement with a clear mind is regarded as noble. It signifies magnificent and majestic facets of the human mind. The exalted state of affairs brings in quintessence of sublime solemnity and social stability."
Reference be also had to paragraph no.7 of the decisions in the case of State of Punjab and others Vs. Phulan Rani and another, 2004 (7) SCC, 555 and in the case of State of Punjab and others Vs. Ganpat Raj, 2006(8) SCC, 364.
In the present case the management promised not to obstruct the appellant seeking the job of a Sub-Deputy Inspector of Schools in lieu of waiver of his rights as Head Master by the appellant in the institution. Both sides virtually thought of getting rid of each other. Correspondingly this was to result in a gain to the appellant that was deliberately obstructed for long by the management. The appellant failed to achieve ultimately because he lost his claim on the post of Sub-Deputy Inspector of Schools but the State and the Educational Authorities continuously maintained their stand that the appellant was entitled to retain his post of Head Master. The State or its authorities were not parties to the compromise.
The joint affidavit recites the prayer of the parties to dispose off the matter. It was not an application for abandoning a claim to the total exclusion of the other. Yet the Court on the request of the parties treated the cause of the management as infructuous. The management gave up the litigation as the appellant promised not to claim continuance as Head Master. At the same time the management later-on played truant as a result whereof the District Basic Education Officer had to pass orders on 09.11.1987 against the management. This order was virtually in supercession of the settlement through the joint affidavit dated 17.09.1985. The management therefore challenged the order dated 09.11.1987, the operation whereof was stayed on 17.11.1987 but the petition was dismissed for non-prosecution on 07.05.2001 and the interim order was vacated. With the dismissal, the order dated 09.11.1987 remained intact. On this date the appellant could not have attained superannuation as, if he is treated to be continuing in service, then he would have retired on 30.06.2001. The management did not take any steps to get the petition restored so as to deny any benefits to the appellant. The State and the Educational Authorities were not parties to the earlier compromise, and rather supported the claim of the appellant against his original post of Head Master as is evident from the communication culminating in the order dated 09.11.1987 the effect whereof could not be wiped out as the interim order dated 17.11.1987 was vacated and merged into the final order of dismissal dated 07.05.2001.
To understand the combined effect of the dismissal of the writ petition as infructuous and at the same time the status of the interim orders passed in both the writ petitions, a decision by a Division Bench of this Court explaining the said position that can be aptly quoted from Smt. R.S.Khan Vs. State of U.P. and others, 2005 (1) ESC, 515. The Court in paragraph nos.15 to 17 held as under :
"15. The Apex Court had considered the effect of interim order in M/s Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, AIR 1992 SC 1439. In paragraph 10 at page 1444 it had held as below :
"...While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence..."
16. This decision clearly lays down that the stay of the operation of an order does not mean that the removal order dated 18.3.1999 ceased to exist or it had been wiped out. The removal order till it is quashed would remain in existence. The word "infructuous" had been defined in The New Shorter Oxford English Dictionary, 1993 edition as below :
"Infructuous" has been mentioned as "Not bearing fruit; unfruitful, barren; unprofitable, ineffective."
17. The effect of dismissal of writ petition as infructuous did not result in setting aside, or quashing the order of removal, dated 18.3.1999. The petitioner should have requested the Court to decide the petition on merits, or she could have filed a review petition. She did not challenge the order, dated 16.11.2002, dismissing her Writ Petition No. 12246 of 1999 as infructuous after expiry of her term. Invita beneficium non datur. The law confers upon a man no right or benefits which he does not desire, whoever waives, abandons or disclaims a right will loose it. The removal order would cast a stigma on the petitioner. It is true that after the petitioner's term elapsed, a writ of mandamus cannot be issued, but a writ of certiorari to quash the removal order could have been issued. The effect of the quashing the order would have been that the removal order, dated 18.3.1999, would have ceased to exist and the position existing prior to the removal order would have been restored. Therefore, it cannot be said that after the expiry of term of the petitioner as President, she had no longer any interest in getting the removal order quashed, because if the removal order remained intact, the petitioner would be disqualified for contesting subsequent election."
In the instant case, applying the said ratio, the interim order dated 21.10.1982 stood dissolved with the dismissal of the 1982 petition on 30.09.1985 and the interim order dated 17.11.1987 in the 1987 petition was vacated on 07.05.2001 merging with the final order of dismissal of the petition. The learned Single Judge has taken the passing of the interim orders as a disadvantage to the appellant. We do not agree with this conclusion as firstly the interim order dated 21.10.1982, that was confirmed with the rejection of the Stay Vacation Application on 27.04.1983, had only stayed the order dated 01.10.1982 and not the order of the District Basic Education Officer5 dated 14.10.1982. Secondly, as per the law discussed above, with which we concur, the interim order with its confirmation stood dissolved with the dismissal of the petition on 30.09.1985. This was therefore a disadvantage for the management and not the appellant as understood by the learned Single Judge. The law having been incorrectly applied the impugned judgment of the learned Single Judge on this count is legally unsustainable.
Thus the outcome has now to be seen only on the strength of the out of Court settlement which is a dimension added in this case distinct from facts of the above noted decision.
It needs to be clarified that a compromise can be arrived at even in a writ petition. This principle has been held to be applicable in the writ jurisdiction. Reference be had to the decision in the case of Commissioner of Endowments and others Vs. Vittal Rao and others, 2005(4)SCC, 120 (Paragraph nos.16 to 20). This has been also explained by our Court in the case of Sriram Vs. Girdhari Lal and others, 1982 AWC, 865 (Paragraph nos.6, 7 and 14).
There is however, a clarification in so far as the present case is concerned. The State and its authorities who were proper and necessary parties arrayed in the 1982 petition are not parties or signatories to the compromise. They remained passive when the petition was dismissed as infructuous, but they had opposed the petition that was filed by the management. There is therefore no element of either express, implied or tacit consent of the State or its Authorities to the compromise. The State opposed the 1987 petition also filed by the management that was dismissed in 2001. The interim orders in both the petitions stood merged with the final order. The compromise was not a Court aided compromise. The order of the Court dated 30.09.1985 noted the out of Court settlement and then dismissed the petition as infructuous. The petitions were filed by the management and not the appellant. The Court did not expressly absolve the State of any future action. To the contrary the State and the Educational Authorities themselves espoused the cause of the appellant as is reflected in the order dated 09.11.1987.
Thus what can be said at the utmost is that a settlement was arrived at between the management and the appellant. This was a complete out of Court settlement. Such a settlement can be valid but only between the parties as explained in paragraph no.7 of the decision in the case of Sriram Vs. Girdhari Lal and others (Supra).
Thus the said compromise and the abandonment of claim by the appellant has to be tested on the said principles and the facts as well as law discussed above. The compromise was clearly a two-way affair. The management had to give clearance as per the letter of the District Inspector of Schools dated 18.06.1985. This was not complied with inasmuch as when the appellant produced the No Dues Certificate that was stated to have been issued on 09.01.1987, after almost two years of the compromise, also came to be contested by the management unreasonably as is evident from the communications establishing harassment by the management noted above in the sequence of narration from 18.06.1985 to 09.11.1987. The management cannot be permitted to resile back from its' commitment as per the settlement which it has consciously entered into. This method cannot be allowed to be read as a voluntary abandonment of claims by the appellant in which the State Educational Authorities clearly supported the cause of the appellant resulting in the order dated 09.11.1987. The management by its conduct virtually repudiated the compromise as it refused to co-operate in terms of the settlement. It did not issue the certificates, or else the appellant would have been able to join the post of Sub-Deputy Inspector of Schools under the letter of appointment dated 10.06.1985 and the communication of the District Inspector of Schools dated 18.06.1985. In essence the compromise was an out of Court settlement that stood virtually frustrated as the management brought about a choking situation strangulating the aspirations and the promise extended to the appellant under the compromise. The intention of the management was not only to drive the appellant out of the institution but to demolish his aspirations to retain a job altogether.
The appellant was driven to the wall leading to the situation as expressed by P.J.Rourke "A compromise in the sense that being bitten in half by a shark is a compromise with being swallowed whole".
The appellant in the hope of getting a higher post took the risk of accepting a standard lower than was desirable as an adhoc Sub-Deputy Inspector of Schools for practical reasons leaving his permanent job. This is in tune with what Nikita Khruschev was quoted in the "Times" 1958 saying "If one cannot catch a bird of paradise, better take a wet hen."
It was desire on one side to survive and fear of the management on the other. The appellant accepted, in the words of George Herbert, "A lean compromise is better than a fat law suit."
But as a litigative pursuit has it hazards, the settlement by sacrificing a right to continue in employment in the hope of retaining another ended up in the loss of both. This is the story of the appellant's hopes ending in a unexpected demise due to the strategy of the management.
The compromise could not have been made a ruse by the management to get rid of the appellant of all his valid claim that was not allowed to be adjudicated in either of the three writ petitions.
The management can not be permitted to resile back from a compromise as has been indicated in the decision of the Apex Court in the case of Dhyan Singh and another Vs. Judgal Kishore and another, AIR 1952 SC, 145 while discussing the doctrine of estoppel that has been followed by a learned Single Judge in the case of Smt.Manraji Vs. Deputy Director Consolidation, 2005(1) AWC, 704 paragraph no.9 extracted hereinunder :
"There is another aspect of the matter. The parties to a compromise are bound by estoppel as well. The principle of estoppel prevents the parties to resile from the compromise or to revoke it after having taken advantage of the same. This principle has been approved by the Apex Court in number of decisions. In Dhiyan Singh and another Vs. Jugal Kishore and another, AIR 1952 SC, 145. While discussing the Doctrine of Estoppel, the Apex Court ruled that even if an award made is invalid, the persons who were parties to it are estopped from challenging the validity of the award or from going behind the award in a subsequent litigation."
It is now that the flip side of the coin has to be seen. It is not the case of the appellant that he was coerced to enter into a compromise. This is evident from the affidavit dated 17.09.1985. The appellant and the Committee of Management entered into the compromise with a common denominator of getting rid of each other but with a rider that intended a better future prospect in favour of the appellant that was ultimately ruined. The presumption therefore is that the compromise and settlement was entered into between the management and the appellant without the State and its Educational Authorities being a party to the same. To study the aspect from the point of view of the management, the appellant had been discharged from service during probation. It is quite possible that the appellant had thought that his claim against such discharge may have been doubtful and therefore as noted above and admitted by the Deputy Director Education in the affidavit filed in the year 1982 petition, the appellant had filed an appeal that was transmitted to Basic Education Board on 15.06.1982. The appellant therefore had raised a challenge to his discharge order which is admitted to the State Authorities but was however denied by the management by stating that a copy of the memorandum of appeal has not been filed and even otherwise it could not be decided as the matter was subjudice before this Court.
The appellant therefore appears to have in the aforesaid background entered into the settlement the result whereof was that the orders passed against the management and challenged in the 1982 writ petition were not adjudicated upon as the cause for the management became infructuous due to the settlement. Simultaneously the appellant also lost his opportunity to further pursue his claim as against the post of Head Master of the institution as he got a better prospect of getting his claim considered against the post of Sub-District Inspector of Schools. Thus the appellant did promise to forego his claim on the post of Head Master so as to get another post and the parties virtually clarified their position under the compromise. This compromise was an agreement not to do something that was wrong or impermissible. At the same time the State was not a party to the compromise but was a party to the dismissal of the writ petition as infructuous.
The claim of the appellant therefore as against the post of Head Master became doubtful as on the one hand his grievance against discharge that was supported by the State went unadjudicated due to the settlement at the instance of the management, and at the same time the appellant also lost the opportunity of getting it adjudicated on account of a future hope where the management failed to co-operate as promised. Thus what is sauce for the goose is sauce for the gander. The advantage that the appellant had was the order dated 09.11.1987 that supervened the compromise. This uncertainty was revived on account of the conduct of the management but the fact remains that the appellant was also a party to the said settlement outside the Court. This was therefore an extraordinary situation that requires an extraordinary remedy.
In the aforesaid backdrop the conclusions that can be drawn and inferred are that there is a settlement between the parties with an exclusion of the State that has supported the cause of the appellant. The learned Single Judge arrived at an abrupt conclusion of abandonment and omitted to consider the aforesaid aspects of the impact of the compromise, the status of the interim orders getting dissolved on the dismissal of the writ petition and the possible relief to the appellant which in our opinion had not become totally extinct. As explained above the interim orders that have been relied upon by the learned Single Judge, even if confirmed can-not be treated as a continued obstacle in so far as the appellant is concerned in the background that both the writ petitions of 1982 and 1987 were ultimately dismissed. More particularly the order dated 09.11.1987 having revived after the dismissal of 1987 writ petition and the vacation of the interim order. Thus whether the claim of the appellant was doubtful on account of the compromise had to be adjudicated on the basis of the nature of the out of Court settlement, the conduct of the parties, their intentions and its execution in the background that the post in question was controlled statutorily by rules with a positive role of the Educational Authorities who had not entered into any compromise.
In our opinion the claim of the appellant had not become infructuous either by passage of time or on account of non-adjudication or non co-operation of the management. The one sided version treating the appellant to have abandoned his entire claim for all the reasons aforesaid was not a correct conclusion arrived at upon a consideration of all the factors as noticed above by the learned Single Judge. This has resulted in injustice to the appellant who is claiming lien on the post.
We may clarify that the word "lien" in service law has a clear meaning of attachment to the post without being disrupted lawfully. In Service Law a person can be said to have acquired a lien on a post only when he has been confirmed and made permanent. The appellant is stated to have been discharged during probation. In the instant case the job is stated to have been lost on account of the alleged "abandonment" through an out of Court settlement and not on account of an adjudication on the issue of discharge on probation. It is this contentious issue of being discharged that was avoided adjudication. Upon the completed period or extended period of probation, there is an automatic confirmation. The very basis of extension and discharge was the bone of contention. This was never decided finally either in the appeal filed by the appellant before the Board nor by this Court in any of the petitions. Learned counsel for the appellant is therefore justified in relying on the decision of the Apex Court judgment in the case of Anil Kumar Sony Vs. The Managing Director Punjab Financial Corporation and another, 1991(3) SCC, 624.
The abandonment of rights on the post of Head Master brought about this situation, but this abandonment in all fairness was an arrangement of reciprocity in neccesitious circumstances with obligations on both sides. The management not only withdrew from it's promise but created a situation to make it impossible for the appellant to gain anything out of the settlement.
In pith and substance, the learned Single Judge did not correctly appreciate the post settlement scenario. To construe that the order dated 09.11.1987 became inexecutable due to interim orders is not legally sound as held above. The learned single Judge in these circumstances ought to have modified the relief by calling upon the District Basic Education Officer to have enquired into and pass orders taking into account all the subsequent developments including the orders of the Court and the revival of the cause of the appellant, the status of discharge and abandonment in the given circumstances, as we have held that neither the State or the Educational Authorities have bound themselves by any compromise.
This is permissible as the District Basic Education Officer under the Rules referred to above is the authority having statutory control of the service dispute in question including payment of salary and other emoluments.
We therefore allow this appeal and set aside the impugned judgment dated 14.11.2013 modifying the relief prayed for in the petition with a direction to the District Basic Education Officer to pass a fresh order preferably within three months in the light of the observations made hereinabove after giving an opportunity of hearing to the management and the appellant. We are also of the opinion that the appellant cannot be granted any relief of reinstatement as he has already attained the age of superannuation way back on 30.06.2001, but he would be entitled for consequential relief if any finding is returned in his favour by the District Basic Education Officer.
Order Date :- 08.11.2017 S.Chaurasia/R.