JUDGMENT D.P. Singh, J.
1. 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.
3. 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 exparte 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 adhoc promotion to the post of Principal which Is resulted in the impugned order.
4. 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.
5. 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.
6. 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.
7. In paragraph Nos. 10, 11 and 12 of the counter affidavit it is categorically stated that concealing the fact that the subject of Sociology was never recognized in the institution and that the services of the petitioner stood terminated and the appeal against it was also rejected, he preferred writ petition No. 1915 of 1983 with the following reliefs:
(a) To issue a writ in the nature of mandamus commanding the opposite party No. 3, District Inspector of Schools to pay the salary of petitioner since February, 1976 uptil now and for future salary also month to month;
(b) To issue any other writ, order or direction which may deem fit and proper to the case of the petitioner; and
(c) To award costs of the writ petition to the petitioner.
The District Inspector of Schools filed a detailed counter affidavit bringing to the notice of the Court all the aforesaid facts including his termination and rejection of the appeal and therefore the Court vide order dated 28.3.1984 rejected the writ petition keeping it to open for him to approach any competent court for the relief of payment of salary. These substantial averments have not been denied in the rejoinder affidavit but recourse to the filing of the suit has been disclosed but what transpired in the suit and what judgment was rendered in the suit has neither been disclosed nor any order is annexed. Instead of approaching the appropriate Court, the petitioner again approached the Deputy Director of Education, who without even issuing notice to any of the parties or hearing them, merely endorsed the application for the District Inspector of Schools to examine the matter. It is not denied that the District Inspector of Schools also did not hear the management or the Principal and passed the order dated 4.2.1991. It is also stated in paragraph No. 14 of the counter affidavit that the author of the order dated 4.2.1991 was one Sri Satya Prasad Tripathi who worked as the District Inspector of Schools only for a couple of months and just before his retirement the petitioner was able to obtain the fraudulent order. The allegation that Sri Tripathi passed the order on the eve of his retirement has not been denied. Question arises as to whether the District Inspector of Schools had any authority under law to have passed the order dated 4.2.1991 after the order of termination had been confirmed in appeal by the Regional Deputy Director of Education through his order dated 24.11.1978 and which order had become final? No order has been brought on record to show that the order dated 24.11.1978 was ever recalled or set aside. From these facts, it is evident that;-
(a) The subject Sociology was never recognized in the institution as is evident from the order of the District Inspector of Schools dated 21.2.1976; the order of Regional Deputy Director of Education dated 24.11.1978 and the order of the State Government dated 27.5.1983.
(b) It is evident that the services of the petitioner were dispensed with on the aforesaid ground which is evidenced by the approval of the District Inspector of Schools dated 21.2.1976, order dated 24.11.1978 rejecting his appeal.
8. The entire case of the petitioner is based upon the order dated 4.2.1991. A perusal of the said order shows that neither any notice was issued to the management nor the District Inspector of Schools has considered the effect of the aforesaid orders which orders had not been set aside or in fact even challenged by the petitioner before any competent court of law. The petitioner fraudulently approached the Deputy Director of Education on the strength of the order of this Court dated 28.3.1984, but the order of this Court dated 28.3.1984 kept it open for the petitioner to approach "appropriate court" and not any other authority, because under the scheme of the Intermediate Education Act, the appellate order is final and no other appeal or revision is provided before any other authority. None of the authorities had any power to ignore or pass a different order than the one passed by the Regional Deputy Director of Education on 24.11.1978 and that too after expiry of 13 years. The very existence of the petitioner stinks of fraud and maneuvering. He has been able to obtain a totally illegal and fraudulent order and on its basis he is receiving salary from the State, Exchequer for more than 2 1/2 decades. No doubt after such a long period, the Court is very loath to undo an act, but on these facts, the court would be failing in its duty towards society at large after finding that the very existence of the petitioner was fraudulent. The petitioner was put to notice, but to no avail. Thus, the court is of the considered opinion that the totally illegal and fraudulent order dated 4.2.1991 should be quashed as a void order and the petitioner should be directed to refund the entire salary received by him from the State Exchequer as allowing him to retain salary would send out a wrong signal to such preparators of fraudulent acts that if found, they will be spared and longer their fraudulent act is allowed to stand, better the chances of being let off would be there. Thus, at the instance of the petitioner, the impugned order cannot be quashed.
9. For the reasons above, this petition fails and is dismissed with a direction to the District Inspector of Schools, Deoria to forthwith stop all payments of salary to the petitioner and he will not be treated as a teacher in the institution. The petitioner is hereby directed to refund the entire salary paid to him for the period subsequent to 24.7.1976 from State Exchequer within a period of one month from today to the District Inspector of Schools, Deoria and in case the same is not refunded, the Collector, Deoria shall recover the amount so quantified by the District Inspector of Schools, Deoria within a further period of one month as arrears of land revenue. In the meantime the Collector, Deoria shall forthwith block all transaction of any immovable property standing in the name of the petitioner so that the same is not alienated in the meantime.
10. Let a copy of this order be sent to the District Inspector of Schools, Deoria and another copy to the Collector, Deoria within a week and both will send their compliance or otherwise report to this Court on 15.1.2007 through Registrar General of this Court, who would submit it to this Court.