JUDGMENT A.P. Sahi, J.
1. Heard learned counsel for the petitioner Sri J.P. Singh and learned Standing Counsel for respondent No. 1.
2. Notices were issued to the respondent Nos. 2. 3 and 4 as well bat no One has put in appearance on behalf of the said respondents.
3. The facts of the case lie in a very short compass. The petitioner adopted by one late Smt. Dev Kunwar and an adoption deed was registered in testimony thereof. The petitioner claims appointment after the death of late Smt. Dev Kunwar under the Dying in Harness Rules as she had been working as an assistant teacher in a primary school governed by the Basic Education Act, 1972. The petitioner was extended benefit of the rules relating to compassionate appointment and he was appointed as an assistant teacher at a Primary Pathshala Bamhrauli at Village Moth, district Jhansi The dispute arose when the adoption deed under which the petitioner has been claiming right was put to challenge in Original Suit No. 243 of 1992 filed by one Sri Satya Narain. The said suit was decreed on 29.10.1996 and the appeal filed by the petitioner against the aforesaid decree of the trial court failed. The petitioner came up in Second Appeal No. 7 of 1997 before this Court, which was Dismissed in default on 29.10.1997. The Basic Shiksha Adhikari upon, dismissal of the aforesaid second appeal terminated the services of the petitioner on 24.12.1997. However, after filing the restoration application, which was allowed on 17.2.1998, the Basic Shiksha Adhikari revoked the order dated 24.12.1997 and reinstated the petitioner in service vide order dated 20.2,1998. In the second appeal an application was moved by the plaintiff Sri Satya Narain, who was respondent in the second appeal, seeking permission to withdraw the suit and disposed of the second appeal as parties to the litigation had arrived at terms out side the court. This application was moved and disposed of on 10.8.1999. The order passed in the second appeal has been quoted in paragraph 3 of the writ petition .This Court permitted the withdrawal of the suit and the second appeal was disposed of accordingly.
4. The respondent, Basic Shiksha Adhikari, thereafter under some some confusion proceeded to withhold the salary of the petitioner and an inquiry was conducted by the higher education authorities. A report was submitted by the inquiry officer and the Joint Director of Education, Jhansi sent a letter on 20.4.2005 for taking further action in the matter. It appears that the aforesaid inquiry was conducted at the instance of some lawyer .who had absolutely no concern with the status of the petitioner nor he was an aggrieved person. The aforesaid entire exercise culminated in continuing the non payment of salary to the petitioner on the strength of a letter of the Deputy Director of Education dated 22.3.2005 and the letter of the Joint Director of Education dated 2.4.2005. It has been stated at the Bar that the services of the petitioner have not been terminated so far.
5. A perusal of the letter dated 22.3,2005 sent by the Deputy Director of Education to the Joint Director of Education demonstrate that the authorities are proceeding on the presumption that once the second appeal has been disposed of without setting aside the decree of the trial court the decree of the trial court revived .and as such there being no valid adoption of the petitioner, the petitioner is not entitled to continue to get the benefits under which he was appointed. The said letter has been endorsed by the Joint Director of Education vide Annexure-l0 , dated 2.4.2005 to the petition and the Basic Shiksha Adhikari has been directed to act accordingly.
6. The reasoning given by the Deputy Director of Education as well as endorsed by the Joint Director of Education is erroneous in law inasmuch as the plaintiff had an absolute right to exercise the option of withdrawing the suit. The application moved by the plaintiff was in the second appeal filed by the defendant before this Court. There was a decree in favour of the plaintiff and it was upto the plaintiff not to execute the same inasmuch as the withdrawal of the suit did not in any way prejudice the rights of the defendant. The order passed in second appeal, therefore, has effaced the entire proceeding as if no judicial intervention had taken place. The reaosning given by the educational authority that the disposal of the second appeal without setting aside the decree of the trial court overlooks the impact of Order 23 Rule 1 C.P.C. which are clearly attracted and justify the withdrawal of the suit by the plaintiff.
7. The letters/orders dated 22.3.2005 and 2.4.2005. therefore. proceed on an erroneous assumption and are unsustainable. Consequently, the aforesaid orders are quashed. The appointment of the petitioner on compassionate basis is upheld and the respondents are directed to release the salary of the petitioner without any further delay within a period of one month from the date of presentation of a certified copy of the order before them. The petitioner shall file a certified copy of the order before the Basic Shiksha Adhikari within a week and the said officer shall ensure the compliance of the order as indicated herein above.
8. The writ petition is, accordingly, allowed with no orders as to cost.