JUDGMENT Rakesh Tiwari, J.
1. Heard the learned counsel for the parties.
2. By means of this writ petition, the petitioner has challenged the order dated 2.1.1978, Annexure-5 to the writ petition, passed by the Committee of Management for terminating his services with effect from 7.11.1977.
3. The allegation of the petitioner is that the impugned order of termination has been passed by the manager without obtaining any prior approval of the District Inspector of Schools, as required under Section 16G (3) of the Uttar Pradesh Intermediate Education Act, 1921 (hereinafter referred to as the Act). Section 16G (3) of the Act provides that order of suspension of a teacher including the Head Master of the institution can be passed after obtaining the approval of the District Inspector of Schools of the concerned district. The writ petition was earlier allowed by the learned single Judge vide judgment dated 17.2,1993 on the ground that prior to the approval of the District Inspector of Schools, the termination was not taken as consequence of which the petitioner is deemed to be in service of the college and the order of termination is a clear violation of Section 16G (3) of the Act. The order of termination was illegal and the respondents were directed to pay to the petitioner his arrears of salary with effect from the date his services were terminated and shall continue to pay his salary till a valid order of termination is passed to bring to an end of his services.
4. An application for recall of the judgment dated 17.2.1993 was filed on the ground that incorrect facts have been mentioned in the writ petition by the petitioner. It was stated in paragraphs 4 and 5 of the affidavit filed in support of the recall application that the termination order was passed after obtaining approval from the District Inspector of Schools and against the order of approval passed by the District Inspector of Schools, the petitioner had filed an appeal before the Regional Deputy Director of Education. Vide order dated 11.2.1994 this Court suspended the operation of the judgment and order dated 17.2.1993 until further orders. Time was also granted to file counter and rejoinder-affidavits. The recall application was again dismissed by this Court and the stay order. If any, was vacated. Thereafter on 28.11.1994 a restoration application was filed, which was allowed vide order dated 15.3.2002, recalling the order dated 24.11.1994. In the mean time a contempt application was filed by the petitioner for payment of arrears of his salary, etc. Under the fear of contempt petition, the arrears of salary, etc. was paid to the petitioner. However, the order granting approval to the termination of services of the petitioner was not challenged by him and the same became final. No statutory appeal also was filed challenging the order of approval to the termination of services of the petitioner under Section 16G (3) of the Act. The writ petition has come now before this Court for hearing.
5. The learned counsel for the petitioner has stated that this writ petition has become infructuous inasmuch as he has been paid the arrears of salary as well as retiral benefits after his retirement on 30th June, 1993. He further submitted that no cause of action survived in the present writ petition.
6. The learned counsel for the respondents has submitted that since the order granting approval of termination of services of the petitioner was not challenged and the same has become final particularly in view of the fact that no statutory appeal was filed, the petitioner was not entitled to get the arrears of salary as well as the retiral benefits. It is further submitted that the same have been paid to the petitioner due to the fact that the petitioner filed contempt application and the respondents are entitled to recover the arrears of salary and the retiral benefits from the petitioner as he has taken the money of the Government by abusing the process of law to which he was not entitled.
7. The admitted facts are that the petitioner was terminated from service on 7.11.1977 after the approval was granted by the District Inspector of Schools and he had not challenged the order granting approval, which has become final. It is also admitted fact that the petitioner had also not filed any statutory appeal as provided under Section 16G (c) of the Act and had retired from service on 30th June, 1993 and was paid the arrears of salary and the retiral benefits in view of concealments of true facts mentioned in the affidavit filed in support of contempt application before this Court.
8. In my opinion, the petitioner could not get the retiral benefits by taking recourse to abuse of process of law and retiring w.e.f. 1993. He has also not gone to the contempt court with clean hands. Admittedly, the petitioner retired on 30th June, 1993 and it would not be proper for the Court to take any action against him in his old age. The ends of justice would be met, if the petitioner is directed to refund any excess amount, which has been taken by him from the respondents towards retiral benefits for the period 7.11.1977 and 30.6.1993 with simple interest at the rate of 12% per annum within a period of three months from today. Since the petitioner has actually worked, the arrears of salary should not be recovered from him.
9. The writ petition is dismissed with the aforesaid direction to the petitioner to refund any excess amount computed for the aforesaid period with simple interest at the rate of 12% per annum within the aforesaid period. If the excess amount is not refunded by the petitioner, the same shall be recovered from him as arrears of land revenue. No order as to costs .