# Hitesh Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2024) 6 ILRA 128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-05
- **Case number:** Writ-A No. 26011 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hitesh-kumar-anr-v-state-of-u-p-ors-52120
- **Pages:** 14

## Headnote

CIVIL LAW - Constitution of India -
Article 226 - UP Secondary Education
(Service Selection Boards) Act, 1982 - Writ
Petition - against impugned order of DIOS,
denying the salary of the position of Principal for
the period of 16.03.2004 to 03.07.2008 to the
legal representatives of deceased Principal -
quantum of extra emoluments - court finds that,
it is admitted fact that, the deceased principal
was a regularly selected Principal/Headmaster
selected by the Selectin Board and posted at the
respondent college's establishment and further,
DIOS directed to the Committee of Management
to handover the charge of Principal - but, he
had discharged his duties of the Principal upto
15.03.2004 - since, respondent no. 6 who was
ad hoc Headmaster prior to deceased of said
6 All. Hitesh Kumar & Anr. Vs. State of U.P. & Ors.
129
college challenged his appointment order in a
writ petition - deceased Principal went out of
office on account of a Stay order passed in WP
- interim order was challenged in a SLP - status
quo by Supreme court - deceased was remain
in said college without any salary since he was
neither posted with any other institution nor
transferred elsewhere - finally SLP was allowed
- Supreme Court set-aside the interim order by
restoring the position of deceased as Principal of
the said college vide order dated 16.05.2008
- he occupied on position until his retirement
on 30.06.2009 and later on died - stand
taken by the govt. that respondent no. 6
received salary as officiating principal for that
period of which the legal heirs of the
deceased principal claiming the salary and
two persons cannot be allow to draws salary
on the same post - court held, sixth
respondent cannot be permitted to retain the
advantage of an interlocutory order that was
ultimately vacated by the Supreme Court - on
the other hand, both equity and law require
that the deceased principal being selected
Principal by the Board and joined the post and
functioned, to be ousted without recompense
under an interim order passed by this court,
must be held entitled to salary for the post of
Principal for the entire period of time - hence,
direction issued to pay the salary & other
consequential
benefits
to
the
heirs
of
deceased - further, respondent no. 6 would
be entitled to his emoluments as Assistant
Teacher and the emoluments drawn as the
officiating principal by him would have to be
refunded to the St. - Writ Petition Allowed.
(Para - 17, 18, 19, 25, 26)

Writ Petition Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,553 of 48,348. This is a partial read: ask again with offset=39553 for what follows._

128 INDIAN LAW REPORTS ALLAHABAD SERIES
Deen, Nanhe and Putai and had come to
Atariya to Manno Devi. It is also proved
from admission of the defendant-appellant
that he and his uncle Devi Deen had sold
their some land of Basantpur and also
placed on record of the trial court copies of
sale deeds.

44. The first appellate court, after
considering the pleadings, evidence and
material on record has also recorded that
the defendant-appellant has taken different
stands at different places in regard to the
land in dispute and also about the
ownership of the land in dispute from his
uncle and father. The first appellate court,
after considering the pleadings, material
and evidence on record has recorded a
finding that the land in dispute and the
house on the western side of the land in
dispute was of the Manno Devi and not of
Devi Deen or his brothers and if it would
have been of Devi Deen then he must have
challenged the sale deed executed by Smt.
Manno Devi because the sale deed was
executed by her in the year 1970 and Devi
Deen had died in the year 1980.

45. The first appellate court, after
considering and scrutinizing the pleadings,
evidence, material on record and also the
commission report has recorded a finding
of possession and ownership of the
plaintiff-respondents on the land in dispute
and also that if it would have been of the
defendant-appellant and he would have
been using the same, it would not have
been left in the shape of Khandhar in the
dilapidated condition.

46. In view of above and considering
the over all facts and circumstances of the
case, this Court does not find any
perversity, illegality or error in the findings
recorded by the first appellate court on the
basis of pleadings of the parties, evidence
and material on record. The substantial
question of law formulated by this Court is
answered accordingly. This second appeal
has been filed on misconceived and
baseless grounds, which is liable to be
dismissed.

47. The second appeal is, accordingly,
dismissed. No order as to costs.
----------
(2024) 6 ILRA 128
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.06.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 26011 of 2014

Hitesh Kumar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ashok Kumar, Praveen Kumar, Praveen
Kumar Shukla, Tryambak Nath Mishra

Counsel for the Respondents:
C.S.C., Shiv Nath Singh

CIVIL LAW - Constitution of India -
Article 226 - UP Secondary Education
(Service Selection Boards) Act, 1982 - Writ
Petition - against impugned order of DIOS,
denying the salary of the position of Principal for
the period of 16.03.2004 to 03.07.2008 to the
legal representatives of deceased Principal -
quantum of extra emoluments - court finds that,
it is admitted fact that, the deceased principal
was a regularly selected Principal/Headmaster
selected by the Selectin Board and posted at the
respondent college's establishment and further,
DIOS directed to the Committee of Management
to handover the charge of Principal - but, he
had discharged his duties of the Principal upto
15.03.2004 - since, respondent no. 6 who was
ad hoc Headmaster prior to deceased of said
6 All. Hitesh Kumar & Anr. Vs. State of U.P. & Ors.
129
college challenged his appointment order in a
writ petition - deceased Principal went out of
office on account of a Stay order passed in WP
- interim order was challenged in a SLP - status
quo by Supreme court - deceased was remain
in said college without any salary since he was
neither posted with any other institution nor
transferred elsewhere - finally SLP was allowed
- Supreme Court set-aside the interim order by
restoring the position of deceased as Principal of
the said college vide order dated 16.05.2008
- he occupied on position until his retirement
on 30.06.2009 and later on died - stand
taken by the govt. that respondent no. 6
received salary as officiating principal for that
period of which the legal heirs of the
deceased principal claiming the salary and
two persons cannot be allow to draws salary
on the same post - court held, sixth
respondent cannot be permitted to retain the
advantage of an interlocutory order that was
ultimately vacated by the Supreme Court - on
the other hand, both equity and law require
that the deceased principal being selected
Principal by the Board and joined the post and
functioned, to be ousted without recompense
under an interim order passed by this court,
must be held entitled to salary for the post of
Principal for the entire period of time - hence,
direction issued to pay the salary & other
consequential
benefits
to
the
heirs
of
deceased - further, respondent no. 6 would
be entitled to his emoluments as Assistant
Teacher and the emoluments drawn as the
officiating principal by him would have to be
refunded to the St. - Writ Petition Allowed.
(Para - 17, 18, 19, 25, 26)

Writ Petition Allowed. (E-11)

List of Cases cited:

1. SLP (Civil) No. 7125 of 2004 order dated
16.05.2008,

2. Civil Appeal No. 3913 of 2008 order dated
16.05.2008,

3. Amarjeet Singh & ors. Vs Devi Ratan &
ors.(2010 1 SCC 417),

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order of the District Inspector of
Schools, Bulandshahar (for short, 'the
DIOS') dated 24.02.2014, denying for the
first petitioner's father and the second
petitioner's husband salary of the position
of Principal, Raja Mahendra Pratap Inter
College,
Jasnawali
Khurd,
District
Bulandshahr for the period 16.03.2004 to
03.07.2008. The petitioners have also
prayed that a mandamus be issued to the
respondents, ordering them to calculate and
release the total salary, which was payable
to the late Vishan Singh from 24.01.2004 to
03.07.2008, and recover the excess salary
paid to Jaswant Giri, respondent No.6 for
the said period.

2. The late Vishan Singh was a retired
Headmaster of the Raja Mahendra Pratap
Inter College, Jasnawali Khurd, District
Bulandshahr. The first petitioner, Hitesh
Kumar is a son whereas the second
petitioner, Smt. Omwati is his widow. The
late Vishan Singh was working prior to his
appointment with the Raja Mahendra
Pratap Inter College, Jasnawali Khurd,
District
Bulandshahr
(for
short,
'the
respondent College') as an Assistant
Teacher in the Maha Kavi Surya Sanskrit
Inter College, Khurrampur, Sant Vash,
District Bulandshahr. He was selected by
the Uttar Pradesh Secondary Education
Services Selection Board (for short, 'the
Selection
Board')
for
the
post
of
Headmaster in the respondent College. The
respondent College did not have the post of
a Principal as the said College did not have
aid for the intermediate section. The post,
that was borne on the State grant, therefore,
was the post of a Headmaster. The late
Vishan Singh joined as the Headmaster of
the respondent College in January, 2004.
His signatures were attested by the DIOS
and salary to teachers and other employees
130 INDIAN LAW REPORTS ALLAHABAD SERIES
of the respondent College for the month of
January, 2004 was also disbursed under the
signatures of the late Vishan Singh.

3. Jaswant Giri, who was the ad hoc
Headmaster prior to the Vishan Singh's
regular appointment as the Headmaster,
filed Writ Petition No.4941 of 2004 before
this Court. This Court passed an interim
order dated 11.02.2004, staying operation
of the appointment order made in favour of
the late Vishan Singh as the Headmaster of
the respondent College. It is said that the
interim order was obtained by making a
false statement by Jaswanti Giri. The
interim
order
dated
11.02.2004
was
challenged by the late Vishan Singh by
preferring a special leave petition to the
Supreme Court, being SLP (Civil) No.7125
of 2004. In the said special leave petition,
the Supreme Court vide order dated
07.04.2004
passed
an
interim
order,
directing status quo in the meanwhile. After
grant of the status quo in the special leave
petition, the late Vishan Singh approached
the DIOS, who orally directed that Jaswant
Giri as well as the late Vishan Singh may
work in the respondent College. It is
pertinent to mention that during the period
24.01.2004
to
03.07.2008,
no
salary
whatsoever was paid to the late Vishan
Singh. He was neither placed with any
other institution nor was he transferred
elsewhere.

4. Subsequently, special leave petition
preferred by the late Vishan Singh was
granted and Civil Appeal No.3913 of 2008,
arising out of SLP (Civil) No.7125 of 2004
allowed by the Supreme Court by their
Lordships' judgment and order dated
16.05.2008. The said judgment disposed of
a large number of appeals, but so far as the
late Vishan Singh's appeal is concerned,
that is to say, Civil Appeal No.3913 of
2008, it was decided along with a batch of
seven other appeals, involving identical
question of fact and law, where the
following order was made:

"Civil Appeal No. 3897 of 2008

(Arising out of SLP(C) No.2691
of 2004)

Civil Appeal Nos. 3928-3929 of
2008

(Arising
out
of
SLP(C)
Nos.1605-1606 of 2005)

Civil Appeal No. 3861 of 2008

(Arising out of SLP(C) No.23691
of 2003)

Civil Appeal Nos. 3903-3904 of
2008

(Arising
out
of
SLP(C)
Nos.4094-4095 of 2004)

Civil Appeal No. 3913 of 2008

(Arising out of SLP(C) No.7125
of 2004)

Civil Appeal Nos. 3915-3917 of
2008

(Arising out of SLP(C) Nos.814816 of 2004)

Civil Appeal No. 3934 of 2008

(Arising out of SLP(C) No.24475
of 2005

Civil Appeal No. 3935 of 2008

(Arising out of SLP(C) No.24535
of 2005)

39. Delay condoned.

40. Leave granted.

41. The
challenge
in
these
appeals is to the interim orders passed by
the High Court in regard to the selection of
Principals of various institutions, pursuant
to the advertisements dated 12th August,
1998, 24th December, 1999 and 3 rd
March, 2002. In view of our judgment and
order in Civil Appeals (Arising out of SLP
6 All. Hitesh Kumar & Anr. Vs. State of U.P. & Ors.
131
(C) Nos.19335-36 of 2003) and other
connected appeals, these appeals are also
allowed and the impugned orders passed by
the High Court are set aside."

5. Thus, the interim order passed in
favour of Jaswant Giri by this Court was
set aside. After the judgment and order
dated 16.05.2008 was passed by the
Supreme Court, the late Vishan Singh was
paid salary from 04.07.2008 onwards, but
for the period 24.01.2004 to 03.07.2008, no
salary was paid to him. The late Vishan
Singh made various applications for the
purpose to the DIOS, but in the vain. The
late Vishan Singh retired as Principal in the
month of June, 2009. After his retirement
as
well,
he
made
a
number
of
representations for the payment of his
salary for the period 24.01.2004 to
03.07.2008, but nothing was done by the
DIOS. Vishan Singh died in the month of
August, 2012.

6. After Vishan Singh's demise, the
petitioners as his heirs and LRs, into whose
hands his estate came, approached the
DIOS, making a number of representations,
claiming salary for the deceased Principal,
relative to the period of time 24.01.2004 to
03.07.2008. These representations, it is
said, fell on deaf ears. The petitioner then
approached this Court instituting Writ
Petition No.5482 of 2013, which was
disposed of with a direction to the DIOS to
consider and decide the petitioners' claim
on account of the late Vishan Singh's
services in accordance with law, preferably
within a period of four months from the
date of presentation of a certified copy of
this Court's order. It was after a long drawn
battle
through
tiresome
and
repeat
representations and an ultimate contempt
action the petitioners had to resort to that
the DIOS passed the impugned order dated
24.02.2014, rejecting the petitioners' claim
for the late Vishan Singh's salary relating to
the period 16.01.2004 to 03.07.2008 as
Headmaster of the respondent College. The
representation was rejected on the ground
that since during the period 16.03.2004 to
03.07.2008,
the
salary
of
ad
hoc
Headmaster had been paid to Jaswant Giri,
the same could not be paid twice over to
the late Vishan Singh through his heirs. It
was, however, said that for the period
24.01.2004 to 15.03.2004, that the late
Vishan Singh worked as the Headmaster,
he was entitled to salary.

7. Aggrieved by the aforesaid order,
the present writ petition was instituted on
05.05.2014.

8. A notice of motion was issued on
08.05.2014. A counter affidavit in the
matter, however, was not filed for a period
as long as nine and a half years,
approximately. The counter affidavit came
to be filed on 08.11.2023, after this Court
ordered the personal presence of the Joint
Director of Education, Meerut Region,
Meerut and the DIOS vide order dated
03.11.2023. The order dated 03.11.2023
reads:

"Perused the office report dated
02.11.2023. According to the office report,
notice issued to respondent No. 3 has led to
the postal tracking report showing delivery
of notice confirmed to respondent No. 3. In
this view of the matter, service upon
respondent No. 3 is held sufficient.

When the case is called on, no
one appears on behalf of respondent No. 3.

In this case, notice was issued to
the respondents as far back as on
08.05.2014,
and
till
date,
the
said
132 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents have not cared to file a
counter affidavit. If parties to a cause, for
as long as a period of nearly nine years, do
not choose to file a return/counter affidavit
despite orders, it is imperative for this
Court to summon those parties in person,
with option to file their counter affidavit, or
else, hear them.

The
immense
bulk
of
adjournments are caused due to parties on
the respondents' side of the array not filing
their returns, pleadings etc. and this lapse,
taken in its stride, is ultimately leading to
swelling dockets. If a party does not choose
to file a return/counter affidavit for as long
as nine years, this Court is of opinion that
such a party, whether private or official,
should be summoned to attend in person.
The other course of proceedings ex-parte,
as experience would dictate, leads more to
protraction than an effective decision of the
cause. Ex-parte judgments and orders are
invariably asked to be set aside, and
adhering
to
standards
that
favour
opportunity of hearing, judgments and
orders passed ex-parte are set aside,
putting the clock back for the parties to
where it all began. This all leads to
immense protraction and delay.

Accordingly,
let
the
Joint
Director of Education, Meerut Division,
Meerut and the District Inspector for
Schools, Bulandshahr appear before this
Court in person on 08.11.2023 at 02:00
p.m.

Adjourned to 08.11.2023.

To be taken up at 02:00 p.m.

The Registrar (Compliance) is
directed to communicate this order to the
Joint Director of Education, Meerut
Division, Meerut and the District Inspector
for Schools, Bulandshahr today."

9. This Court considers it appropriate
to highlight the fact that delays of 9-10
years or so, on the part of the functionaries
of the State, arrayed as respondents, is not
an isolated matter in the present case. The
need arising, this Court would not hesitate
in directing compilation of data in this
regard. And, this comes along with a
barrage of criticism by the litigants about
delays in the dispensation of justice, which
includes the State litigants as well. There
have been in the past, of which judicial
notice must be taken, directions to
functionaries, like the Chief Secretary and
so on, to streamline matters, but these are
usually forgotten with the turn of the day.
To the individual litigants, not by dozen or
scores, but a far larger number, the story
remains the same. The State's returns in
their causes are awaited. In this case also, if
the Court had not directed the two official
respondents to appear in person vide our
order dated 03.11.2023, the return filed on
19.12.2023, would not have been put in,
may be for some more years. So much for
the necessity and usefulness of enforcing
personal
attendance
of
parties
and
witnesses, without which no Court can
function. The reason for the delay in filing
a return in this case is furnished by the
DIOS in his personal affidavit dated
08.11.2023. In paragraph No.4 of the
DIOS's affidavit aforesaid, it is averred:

"4. That the delay in filing the
counter affidavit is due to the fact that since
the record of the present case was
misplaced in the office of the answering
respondent due to which it could not be
noticed that the counter affidavit has to be
filed in the present writ petition. It was
after receiving the notice regarding the
6 All. Hitesh Kumar & Anr. Vs. State of U.P. & Ors.
133
order dated 03.11.2023 passed by this
Hon'ble Court in the present writ petition,
the answering respondent get the record
searched in his office and is filling the
counter affidavit. However, the deponent
tenders his unconditional and unqualified
apology for the inconvenience caused to
this Hon'ble Court by this act of the
deponent."

10. If for a misplaced record, the
counter affidavit in a cause could be
delayed by as much as nine years and a
half, the sense of responsibility of this
protesting galaxy of official litigants, who
protest every appearance in Court, can well
be fathomed. We have already indicated the
peril of proceeding ex parte, if a respondent
is not putting in his return, in our order
dated 03.11.2023 and there is just no way,
but to ensure that returns are filed by
respondents, whether private or public
functionaries. Ex parte judgments and then
their relatively liberal recall by established
standards of procedure do more injustice to
the litigants than any kind of justice to the
cause.

11. When this matter came up on
08.11.2023, the parties having exchanged
affidavits, at least the respondents' return
being there, the petition was admitted to
hearing, which proceeded forthwith. The
matter was adjourned on 08.11.2023 for
further
hearing
to
30.11.2023.
On
30.11.2023, there was no time and the
cause had to be adjourned to 14.12.2023. In
the
meantime,
on
13.12.2023,
the
petitioners filed a rejoinder affidavit in the
office. The matter was finally heard on
14.12.2023 in the presence of the learned
Counsel for the petitioners and the learned
Counsel
for
the
State,
representing
respondent Nos.1, 3 and 4. No one
appeared on behalf of respondent No.5
despite service being sufficient. There was
no appearance on behalf of respondent
No.6 as well, though the said respondent
was adequately served and service upon
him was held sufficient on 14.12.2023,
when the learned Counsel for the appearing
parties
concluded
their
submissions.
Judgment was reserved.

12. Heard Mr. Om Narayan Dwivedi,
Advocate holding brief of Mr. Tryambak
Nath Mishra, learned Counsel for the
petitioners and Ms. Monika Arya, learned
Additional Chief Standing Counsel on
behalf of respondent Nos. 1, 3 and 4.

13. In the counter affidavit filed on
behalf of respondent Nos.3 and 4 jointly, it
is admitted that the late Vishan Singh was
selected as the Principal of the respondent
College or Headmaster, whatever be the
designation, by the Selection Board. It is
also acknowledged that on receiving the
panel of selected candidates, the DIOS vide
his letter dated 15.01.2004 directed the
Committee
of
Management
of
the
respondent College to handover charge of
the Principal to Vishan Singh. It is also
admitted that in compliance with the
DIOS's direction, the respondent College,
by a resolution of the Committee of
Management dated 19.01.2004, resolved to
handover charge to Vishan Singh, which
was handed over on 24.01.2004.

14. It is next said in paragraph No.5
of the counter affidavit that the officiating
Principal Jaswant Giri filed a writ petition
before this Court, being Writ Petition
No.4941 of 2004, where this Court, vide
order
dated
11.02.2004,
stayed
the
operation of the order passed by the DIOS,
which resulted in restoration of the
previously working incumbent Jaswant Giri
on the post of officiating Principal. A
134 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of the order dated 11.02.2004
passed by this Court in Writ Petition
No.4941 of 2004 shows that what was
stayed was the operation of the order dated
19.01.2004 passed by the DIOS and the
order dated 24.01.2004. Now, there was no
order dated 24.01.2004 as such. It was just
that on the said date Vishan Singh took
over charge of the respondent College as
the Principal. It is next averred in the
counter affidavit that Vishan Singh moved
Special Leave Petition No.7125 of 2004
before the Supreme Court, wherein vide
order dated 07.04.2004, while issuing
notice on the SLP, status quo in the
meanwhile was ordered. The SLP was
tagged by the Supreme Court with other
special leave petitions. It is admitted that
by judgment and order dated 16.05.2008,
the interim order passed this Court dated
11.02.2004 was set aside. It is also
acknowledged that in compliance of the
aforesaid judgment passed by the Supreme
Court, Vishan Singh was restored to his
position as Principal of the respondent
College w.e.f. 04.07.2008. He occupied on
the position until his retirement on
30.06.2009.

15. The stand taken is that from
24.01.2004 to 03.07.2008, Jaswant Giri
received salary attached to the post of
officiating Principal of the respondent
College and excluding that period, for the
period that Vishan Singh had worked, he
was paid salary attached to the post of
Principal
of
the
respondent
College.
Precisely, the stand that is taken in the
impugned order is echoed in the return,
where it is said that for the period
24.01.2004 to 03.07.2008, when Jaswant
Giri received salary for the post of
officiating Principal, two persons cannot be
paid against a single post. It is, however,
added that during the period that the late
Vishan Singh worked, to wit, 24.01.2004 to
15.03.2004, he is entitled to receive salary,
which apparently has been paid to the
petitioners. There is apparently some
incongruence in the respondents' stand on
its own terms about the fact that Jaswant
Giri
worked
from
24.01.2004
to
03.07.2008, and not the late Vishan Singh.
Whereas in the impugned order as well as
in paragraph No.8 of the counter affidavit,
it is conceded that from 24.01.2004 to
15.03.2004, it was Vishan Singh, who
worked as Principal of the respondent
College and entitled to salary, yet it is said
in the same paragraph that from 24.01.2004
to 03.07.2008, it was Jaswant Giri, who
worked as the officiating Principal and
drew salary attached to the post for this
period of time.

16. There is on the admitted stand of
the respondents, some kind of an overlap in
the period of time, when Vishan Singh and
Jaswant Giri worked as Principal of the
respondent College. This confusion has not
been
much
dispelled,
but
it
is
inconsequential.
It
is
inconsequential
because after all for the period 24.01.2004
to 15.03.2004, Vishan Singh's heirs have
been held entitled to receive salary on
account of the former discharging duties of
the Principal, though they claimed it for a
longer period of time from 24.01.2004 to
03.07.2008.

17. Upon hearing learned Counsel for
the parties and perusing the record, what
we find is that it is not in dispute that
Vishan Singh was a regularly selected
Principal or Headmaster, whichever was
the post, then provided for in the
respondent College's establishment. He was
selected by the Selection Board and the
respondents admit in the counter affidavit
that the DIOS passed an order dated
6 All. Hitesh Kumar & Anr. Vs. State of U.P. & Ors.
135
15.01.2004, directing the Committee of
Management of the respondent College to
handover charge of Principal of the said
College to Vishan Singh. The Committee
of Management passed a resolution on
19.01.2004 and charge of the respondent
College was entrusted to Vishan Singh on
24.01.2004. As a later concession by the
respondents would show Vishan Singh
discharged duties of the Principal up to
15.03.2004. Initially, he was denied salary,
but after the matter was considered by the
DIOS by the order impugned, Vishan
Singh's heirs were granted salary for his
services as Principal of the respondent
College from 24.01.2004 to 15.03.2004.

18. Vishan Singh went out of office
on account of the interim order dated
11.02.2004 passed by this Court in Writ
Petition
No.4941
of
2004
filed
by
respondent No.6, Jaswant Giri, who was
prior to Vishan Singh taking over as the
Principal, the Officiating Principal. The
stay order passed by this Court was
construed by the respondents in the manner
that Vishan Singh had to be ousted from
office and the sixth respondent, Jaswant
Giri reinstated as the Officiating Principal.

19. It is of utmost importance to
notice that Vishan Singh remained as if it
were in no man's land between 16.03.2004
to 03.07.2008, whereafter he was handed
over
charge
of
the
Principal,
in
consequence of the judgment passed by the
Supreme Court in Civil Appeal No.3913 of
2008 on 16.05.2008, setting aside the
interim
order
of
this
Court
dated
11.02.2004. During this period of time,
Vishan Singh did not go back to Maha
Kavi
Surya
Sanskrit
Inter
College,
Khurrampur, Bulandshahr, where he was
an Assistant Teacher. He continued with
the respondent College, where he had taken
over as Principal, but ousted on account of
this Court's interim order dated 11.02.2004.
He was not paid salary from 16.03.2004 to
03.07.2008 for any post, either of an
Assistant Teacher with Maha Kavi Surya
Sanskrit
Inter
College,
Khurrampur,
Bulandshahr, or as the Principal of the
respondent College. This fact is specifically
asserted in paragraph No.12 of the writ
petition, which says that during this period
of time, he was neither posted with any
other institution nor transferred elsewhere.
After all, he was a regularly selected
candidate by the Selection Board, who had
already taken over as the Principal of the
respondent College under orders of the
DIOS and a resolution of the Management.
His ouster is attributable to the interim
order of this Court passed on the writ
petition, preferred by respondent No.6,
Jaswant Giri; nothing else. Queerly, in
answer to paragraph No.12 of the writ
petition, in paragraph No.16 of the counter
affidavit, it is pleaded by the Joint Director
of Education, Meerut Region, Meerut and
the DIOS thus:

"16.
That
the
contents
of
paragraph no. 12 of the writ petition are not
admitted hence denied, in reply thereto, it is
submitted that in the status quo order
passed by Hon'ble Apex Court, the District
Inspector of Schools permitted/ instructed
the petitioner's father to hold the post of
Principal of the institution."

(emphasis by Court)

20. The admission in paragraph No.16
by respondent Nos.3 and 4 shows that the
DIOS permitted/ instructed Vishan Singh to
hold the post of Principal of the respondent
College. This shows that Vishan Singh was
never asked to go away from the
respondent College. He was not an
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant Teachers with the respondent
College and the fact, that during the period
24.01.2004 to 03.07.2008, he was not paid
any
salary,
is
not
denied
by
the
respondents. The salary was paid for this
period to respondent No.6, Jaswant Giri on
the strength of the interim order dated
11.02.2004 passed by this Court in the writ
petition. But admittedly, the late Vishan
Singh was also permitted to stay with the
respondent College and he was not posted
elsewhere; not transferred elsewhere; and,
not paid salary attached to any other post
during this period of time.

21. It must be remarked that during all
this while, the late Vishan Singh was not a
persona non grata. He was the regularly
selected Principal of the respondent College,
who had joined the said institution and ousted
in consequence of the interim order made by
this Court on 11.02.2004. This interim order
was ultimately set aside by the Supreme
Court by their Lordships' judgment and order
dated 16.05.2008 passed in Civil Appeal
No.3913 of 2008. There is no case that the
writ petition filed by Jaswant Giri was
pursued
further
to
a
different
event.
Admittedly, it was under the judgment of the
Supreme Court that Vishan Singh's right to
hold the post of Principal of the respondent
College finally crystallized and he held that
post until his retirement upon reaching the
age of superannuation on 30.06.2009. Now,
the question is, can the late Vishan Singh be
denied salary for the post of Principal of the
respondent College, of which he had taken
lawful charge on 24.01.2004, but ousted on
16.03.2004, in consequence of the interim
order dated 11.02.2004 passed by this Court
in Writ Petition No.4941 of 2004, though the
said order was set aside finally vide judgment
and order dated 16.05.2008 passed by the
Supreme Court in Civil Appeal No.3913 of
2008.

22. We do not think so. The
submission by the respondents that two
persons cannot draw salary on the same
post, canvasses so much of a rule bound
stand
that
it
conflicts
with
very
fundamental principles of fairness and the
way rights enjoyed under interim orders,
are construed in the event those rights are
lost in consequence of judgment. The rule
bound point of view that two persons
cannot draw salary on the same post for the
same period of time, can be remedied by
recovering so much of it from the sixth
respondent, who has drawn it on the
strength of the interim order, over and
above his salary as an Assistant Teacher
with the respondent College. But, as the
reputed maxim goes: actus curiae neminem
gravabit, the late Vishan Singh could not be
denied his right to be paid for the post of
Principal
of
the
respondent
College,
because of an interlocutory error committed
by this Court in passing the interim order
dated 11.02.2004. The late Vishan Singh's
entitlement to receive salary, attached to
the post of Principal that he had already
joined after regular selection by the
Selection Board, cannot be denied. The
sixth respondent, in consequence, would be
entitled to retain his salary for the period
24.01.2004 to 03.07.2008, payable for the
post of an Assistant Teacher that he
substantively held, but not the enhanced
emoluments that he must have received
attached to the post of officiating Principal.
The respondent Authorities are not at all
right in thinking that if the late Vishan
Singh is paid salary attached to the post of
Principal for the period 24.01.2004 to
03.07.2008, a period of time during which
Jaswant Giri had already been paid for the
post of officiating Principal, it would
amount to double payment on the same
post. It could be very logically worked out
consistent
with
the
financial
rules
6 All. Hitesh Kumar & Anr. Vs. State of U.P. & Ors.
137
applicable by leaving with the sixth
respondent Giri for the period 24.01.2004
to 03.07.2008, salary that he would have
earned as an Assistant Teacher and pay
Vishan Singh salary attached to the post of
Principal. If this Court had not passed an
interim order on 11.02.2004, Vishan Singh,
who had already joined the post of
Principal and paid salary for some period of
time, would have continued to receive it
until his retirement. Jaswant Giri too would
have received salary attached to the post of
Assistant Teacher for the entire period of
time that he was in service. This position
was subjected to a disequilibrium because
of the interim order passed by this Court on
11.02.2004
in
the
writ
petition.
If,
therefore, whatever Jaswant Giri received
in extra emoluments as the officiating
Principal for the relevant period of time, is
recovered from the said respondent, no
financial loss would ensue to the exchequer
nor would it lead to the precipitation of
financial
indiscipline
by
paying
two
incumbents salary attached to the same
post.

23. The principle that benefits drawn
by a party under an interim order of the
Court, if judgment goes the other way,
cannot be retained and must be restituted, is
well acknowledged by the law. Reference
in this connection may be made to
Amarjeet Singh and others v. Devi Ratan
and others,
(2010) 1
SCC 417.In
Amarjeet Singh (supra), the facts may be
noticed from the report of the decision of
their Lordships of the Supreme Court,
which read:

"2. The facts and circumstances
giving rise to these appeals are that the
appellants and the respondents in these
cases were appointed as Excise Inspectors
under the provisions of the U.P. Excise
Service (Class II) Rules, 1970 (hereinafter
called as "the 1970 Rules"). The parties
became eligible for consideration for
promotion to the post of Superintendent of
Excise under the said 1970 Rules. The
criteria of promotion for the post of
Superintendent of Excise and for the higher
post of Assistant Excise Commissioner
(hereinafter called "AEC") had been
"merit" under the provisions of the U.P.
Assistant Excise Commissioners Service
Rules, 1992 (hereinafter called as "the 1992
Rules"). The said Rules stood amended
w.e.f. 10-10-1994 and the criteria for
promotion was changed from "merit" to
"seniority subject to rejection of unfit".

3. The appellant Amarjeet Singh
along with some other Excise Inspectors
filed Writ Petition No. 1113 (SB) of 1994
before
the
Allahabad
High
Court
challenging the selection process for
promotion under the 1992 Rules. The High
Court vide judgment and order dated 1-21995 held that the vacancies which had
come into existence prior to 10-10-1994 i.e.
the date of amendment, be filled up as per
the unamended Rules i.e. on the basis of
"merit" and not on the basis of "seniority
subject to rejection of unfit".

4. Being aggrieved, the State of
U.P. preferred a special leave petition
before this Court and this Court vide order
dated 30-10-1995 passed an interim order
permitting the State authorities to make
promotions as per the 1994 Amendment
Rules but it was subject to the result of the
petition as this Court made it clear that if
the petition was dismissed, the respondents
would be reverted to the lower post from
which they would be promoted. In view of
the said interim order of this Court, sixtyone Excise Inspectors stood promoted,
subject to the final outcome of the special
138 INDIAN LAW REPORTS ALLAHABAD SERIES
leave petition. This Court dismissed the
said special leave petition vide order dated
19-8-1998 in limine. However, the State
authorities for the reasons best known to
them, did not revert the promoted officers
and they continued to hold the higher posts.

5. The Departmental Promotional
Committee (hereinafter called "DPC")
meant for filling up forty-two vacancies,
which came into existence prior to 10-101994, met on 19-12-1998. After scanning
the service records and determining the
inter se merit of the candidates, the
Committee came to the conclusion that
only thirty candidates were suitable for
promotion to the posts of AEC and they
were to be promoted as per the availability
of yearwise vacancies. The respondents,
herein,
were
found
unsuitable
for
promotion in the said selection process.
After completing the aforesaid exercise,
twelve vacancies for the post of AEC
remained unfilled. Therefore, the twelve
vacancies were carried forward to enable
the State authorities to fill up the same
under the amended Rules on a different
criterion i.e. "seniority subject to rejection
of unfit". Thus twelve officers/respondents
were promoted under the amended Rules
by another DPC held on 22-1-1999.

6. The State Government issued the
Order dated 15-5-1999 reverting all Excise
Inspectors promoted on 6-12-1995 under the
interim order of this Court and gave notional
promotions with retrospective effect to the
appellants as well as to all the reverted
officers/respondents. As a consequence, a
seniority list dated 12-7-2000, was issued,
wherein the appellants were placed over and
above the respondents.

7.
Being
aggrieved,
the
respondents approached the High Court
challenging the said seniority list dated 127-2000. The High Court vide impugned
judgment and order dated 11-4-2002 held
that as the postings to both sets of officers
i.e. those who had been promoted by DPC
dated 19-12-1998 and another DPC dated
22-1-1999 had been made on the same day
and had been given notional promotion
from one and the same date, their inter se
seniority was to be fixed as it existed in the
feeding cadre of Excise Inspectors and thus
quashed the seniority list dated 12-7-2000
and further directed the State to prepare a
fresh seniority list placing the appellants
below
the
respondents.
Hence
these
appeals."

24. In the context of these facts, it was
held in Amarjeet Singh:

"16. In view of the fact that the
respondents continued on a higher post
under the orders of this Court for years
together and even after dismissal of the
petition filed by the State, and the exercise
for making promotions was not undertaken
by the State authorities, the appellants
should not suffer for no fault of theirs. It
has fairly been conceded by the learned
counsel appearing for the respondents that
had the exercise of making promotions
been undertaken immediately after the
order of this Court dated 19-8-1998, the
appellants could have been promoted much
earlier and they could have been senior to
the respondents. Thus the question does
arise as to whether the appellants should be
asked to suffer for the interim order passed
by this Court in a case having no merits at
all.

17. No litigant can derive any
benefit from mere pendency of case in a
court of law, as the interim order always
merges in the final order to be passed in the
6 All. Hitesh Kumar & Anr. Vs. State of U.P. & Ors.
139
case and if the writ petition is ultimately
dismissed, the interim order stands nullified
automatically. A party cannot be allowed to
take any benefit of its own wrongs by getting
an interim order and thereafter blame the
court. The fact that the writ is found,
ultimately, devoid of any merit, shows that a
frivolous writ petition had been filed. The
maxim actus curiae neminem gravabit, which
means that the act of the court shall prejudice
no one, becomes applicable in such a case. In
such a fact situation the court is under an
obligation to undo the wrong done to a party
by the act of the court. Thus, any undeserved
or unfair advantage gained by a party
invoking the jurisdiction of the court must be
neutralised, as the institution of litigation
cannot be permitted to confer any advantage
on a suitor from delayed action by the act of
the court. (Vide Shiv Shankar v. U.P. SRTC
[1995 Supp (2) SCC 726 : 1995 SCC (L&S)
1018 : (1995) 30 ATC 317] , GTC Industries
Ltd. v. Union of India [(1998) 3 SCC 376 :
AIR 1998 SC 1566] and Jaipur Municipal
Corpn. v. C.L. Mishra [(2005) 8 SCC 423] .)

18. In Ram Krishna Verma v.
State of U.P. [(1992) 2 SCC 620 : AIR
1992 SC 1888] this Court examined the
similar issue while placing reliance upon its
earlier judgment in Grindlays Bank Ltd. v.
ITO [(1980) 2 SCC 191 : 1980 SCC (Tax)
230 : AIR 1980 SC 656] and held that no
person can suffer from the act of the court
and in case an interim order has been
passed and the petitioner takes advantage
thereof and ultimately the petition is found
to be without any merit and is dismissed,
the interest of justice requires that any
undeserved or unfair advantage gained by a
party invoking the jurisdiction of the court
must be neutralised.

19. In Mahadeo Savlaram Shelke
v. Pune Municipal Corpn.