JAGDISH BHALLA, J. ( 1 ) THIS special appeal arises out of the judgement and order of learned Single Judge dated 7. 1. 2004, whereby the writ petition has been allowed and the impugned orders dated 16. 12. 2002, 13. 12. 2002 and 17. 12. 2002 contained in Annexures 1,3 and 2 respectively have been quashed. Aggrieved by said judgement, the appellant has preferred this special appeal. ( 2 ) IN short the facts of the case are that according to the seniority list dated 4. 12. 1999, the appellant is said to be the senior-most teacher of the college. On 30. 6. 2002, one Sri H. S. Mishra who was working as principal of the college retired as such a permanent vacancy of the principal fell vacant. The appellant being the senior most teacher was asked to officiate as Principal on 1. 7. 2002. Initially the appellant accepted the additional responsibilities, however, by letter dated 4. 7. 2002 addressed to Authorized Controller, the appellant declined to continue as officiating Principal due to personal reason as a consequence whereof, options from the lecturers in order of seniority were obtained. The first three lecturers, in order of seniority, declined to officiate as principal. The next person i. e. Ashok Kumar Pandey accepted to shoulder responsibility of officiating Principal. ( 3 ) IT is in this background that Ashok Kumar Pandey was appointed as officiating Principal of the college on 18. 7. 2002. Unfortunately, Ashok kumar Pandey died on 22. 11. 2002. The actual controversy started after the death of Ashok Kumar Pandey because by that time, the appellant felt that he is now in a position to share extra responsibility of officiating principal, which he initially declined due to some personal reasons. Accordingly on 27. 11. 2002, the appellant made a representation to the authorized Controller requesting him to consider his case for the post of officiating Principal being the senior most teacher in the institution in light of section 18 of U. P. Secondary Education Services Commission and selection Board Act 1982 which inter-alia provides that the senior most teacher shall be permitted to function as Principal of an Institution. However, in the mean time the District Inspector of Schools on 4. 12. 2002, passed an order that the person next to Ashok Kumar Pandey in the seniority list be appointed as officiating Principal. However, in the mean time the District Inspector of Schools on 4. 12. 2002, passed an order that the person next to Ashok Kumar Pandey in the seniority list be appointed as officiating Principal. Subsequently, the District Inspector of Schools by an order dated 13. 12. 2002 cancelled/withdrew his order dated 4. 12. 2002 in light of communication dated 2. 6. 1992 of Director of Education containing certain guidelines to be followed by the authorities in the matter of appointment of officiating principal. ( 4 ) IN the circumstances, since the appellant has offered his services being the senior most teacher to officiate as Principal of the college, it was accordingly directed by the District Inspector of Schools that the appellant be appointed as officiating Principal and in the process, signature of the appellant was attested as officiating Principal of the college. Thereafter, the appellant started functioning as such. ( 5 ) AGGRIEVED by the said order of District Inspector of Schools, the respondent-petitioner filed writ petition No. 978 (SS) of 2003; Ram chandra Singh Vs. State of UP and others challenging the order of District inspector of Schools and consequential order passed thereafter by the authorized Controller. ( 6 ) THE learned Single Judge after hearing the parties allowed the said writ petition vide judgement and order-dated 7. 1. 2004, the correctness of which has been questioned by the appellant in the present appeal. ( 7 ) FROM the perusal of judgement of learned Single Judge, passed in the writ petition the main question before him was whether once a lecturer being the senior most has declined, foregone or resigned from the post of officiating Principal, can he claim for the same post of officiating Principal again? The learned single Judge after considering the submissions of the parties and various judgements cited before him rejected the claim of senior most lecturer to officiate as Principal for the reason that he declined to officiate as Principal of the college on earlier occasion. Ultimately, the learned Single Judge relying upon certain division Bench judgments allowed the writ petition holding that the appellant, Rajendra Prasad Shukla has no right to officiate as Principal of the college because he has once declined to continue as such. ( 8 ) LEARNED counsel for the appellant has contended that the Full bench decision rendered in Km. Radha Raizada Vs. . ( 8 ) LEARNED counsel for the appellant has contended that the Full bench decision rendered in Km. Radha Raizada Vs. . Committee of management Vidyawati Darbari Girls Inter College and others 1994 (2) E. S. C. 345 (Alld) and another decision in Committee of management, J. K. Inter College Basti and another Vs. . District inspector of Schools Basti and others 2001 (1) U. P. L. B. E. C. 621 on which respondent-petitioner has relied are not applicable in his case. According to him, the appellant has a right to be considered for officiating post of Principal when the same became vacant irrespective to the fact that on earlier occasion, the appellant has declined to continue on the post for some personal reasons. It has been emphatically submitted that the appellant remains senior most teacher of the college in accordance with law and his claim cannot be rejected on the ground that earlier he had declined to shoulder the responsibility and further it cannot be said that once the appellant had refused to officiate as principal, his case would not be considered for all time to come or when a vacancy arises on account of resignation or retirement or death of an incumbent holding the post of Principal. ( 9 ) LEARNED counsel for the appellant has also pointed out that as far as Full Bench judgement is concerned, the Full Bench has not considered the eventuality as to what would happen when a senior most teacher shows his inability to continue on the post of officiating principal for certain period on account of personal reasons; whether he can be considered for appointment again. Therefore, the view taken by the Full Bench is not applicable in the present case. The first case relied upon by learned counsel for the respondent-petitioner is 1995 (Supp) (3) 170; Ram Murti Singh Vs. . District Inspector of Schools and others, wherein it has been held as under:-" ordinarily, the senior most person may expect that he would be appointed, but certainly not if he is not competent. In the present case, we find from the order of the District Inspector of Schools, deoria, dated 11. 8. 1987 that the appellant, though the senior most, was not found to be competent. In the present case, we find from the order of the District Inspector of Schools, deoria, dated 11. 8. 1987 that the appellant, though the senior most, was not found to be competent. His relationship with teachers and other employees was not satisfactory and hence the Management feared that he would not be able to draw the cooperation of the teachers and employees for working as a team. If this was found to be detrimental to the interests of the institution and he was not promoted though senior most we do not think that we can find fault with the order passed by the District Inspector of Schools and affirmed by the High Court. " ( 10 ) THE next case relied upon by learned counsel for the respondent-petitioner is 1993 (2) E. S. C. 477 (Alld); Virpal Singh Vs. . District inspector of Schools and others, wherein the Honble Single Judge has held that " no statute can force a person to perform such duties, which a person does not want to perform. Even in State and Central Services, officers often forego their promotions for some reason or the other, although under the Statue they are entitled for promotion and in said case since the petitioner has relinquished his right for promotion, it was held that he was estopped from challenging the same. It was further held that once right of promotion is waived, promotion couldnt be challenged. On the strength of aforesaid proposition, learned counsel for the respondent-petitioner submitted that refusal to continue as officiating principal of the college amounts to waiver on the part of appellant and he is estopped to be considered again unless, a permanent incumbent joins and thereafter post of Principal again falls vacant which for interim arrangement is to be filled by a teacher on officiating basis whereas in the present case the vacancy arose due to death of Ashok Kumar pandey-officiating Principal. The appellant, according to learned Counsel for the respondent, cannot be considered for appointment as officiating principal unless it is not filled up by a permanent incumbent as such , the appellant has no right to be considered again till the same is filled up by a permanent incumbent and thereafter falls vacant. ( 11 ) IN Satya Vir Singh Vs. . ( 11 ) IN Satya Vir Singh Vs. . District Inspector of Schools and others relied upon by learned counsel for the respondent-petitioner, the learned Single Judge has held that once incumbent has resigned from the post of officiating Principal, he has no right subsequently to be appointed as officiating Principal of the institution. In Prem Murti Dixit vs. . Sri Sastyavir Singh Raghuvanshi and other 1996 (1) E. S. C. 362 (Alld), it has been held that once a teacher declines to accept promotional post or after having accepted the same, he has voluntarily given it up, it was not open for him to claim said post again after promotion of another incumbent on the post in question. ( 12 ) LEARNED counsel for the respondent-petitioner has placed reliance on 1990 (SC) 1255; N. C. Singhal Vs. . Union of India and others, wherein it was laid down that " if an employee eligible for promotion is offered a higher post by way of promotion, his refusal to accept the same would enable the employer the Central Government in this case to fill in the post by offering it to a junior to the Government servant, refusing to accept the post and in so acting there will be no violation of Article 16. Further the Government servant who refused to accept the promotional post offered to him for his own reasons cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened to him. " ( 13 ) ACCORDING to learned counsel for the respondent-petitioner, similar view was taken in Special No. 141 of 1993; Smt. Sudesh Kakkar Vs. . The Regional Inspectress of Girls School Ist Region, Meerut, Hari ram Yadav Vs. . State of U. P. and others; 2001 (2) ESC 594 (Alld ). ( 14 ) THE aforesaid judgments which have been considered by learned single Judge and have been relied upon by learned counsel for the respondent-petitioner do not deal with the eventuality, if an incumbent for personal reason at a particular time had refused to continue to officiate as Principal but at later stage when the incumbent working as officiating Principal dies or resigns or retires, he can not be considered for the job irrespective of his position at the top in the seniority list. The cases referred to above deals with the situation, wherein once a senior person refused to shoulder their responsibility of acting Principal, and the charge is given to the junior and during continuance of junior on the post, the incumbent, who had earlier refused, stakes his claim again for being allowed to work as acting Principal. ( 15 ) BEFORE proceeding further, it would be necessary to refer Clause (2)of U. P. Secondary Education (Removal of Difficulties) Order 1981 which provides that the management of an Institution may appoint by promotion or by direct recruitment a teacher purely on adhoc basis under the provisions of this order in case of substantive vacancy caused by death, retirement, resignation or otherwise. Clause (4) deals with adhoc appointment by way of promotion, wherein it is provided that the vacancy on the post of Head of institution be filled by promotion in the case of Intermediate Colleges by senior most teacher of the institution in the lecturers Grade. Section 18 of U. P. Secondary Education (Services and Selection board) Act, 1982 provides for filling up the vacancy of Principal purely on adhoc basis by promoting the senior most teacher till the regularly recommended Principal is duly appointed and joins as such. Section 18 (2) of said Act provides that where the management fails to promote the senior most teacher under sub section-1, the District Inspector of schools, shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get salary as the Principal or head Master, as the case may be, from the date, he joins such post in pursuance of such order of promotion. ( 16 ) THUS the settled position is that ordinarily the senior most teacher is to be given appointment to officiate as Principal of the Institution. ( 16 ) THUS the settled position is that ordinarily the senior most teacher is to be given appointment to officiate as Principal of the Institution. However, in case the authorities find an incumbent to be incompetent and the authorities have reasons to believe that neither the senior most incumbent has cordial relation with the staff nor will he able to take whole team to achieve goal of imparting proper education and further his appointment would be against the interest of students and the institution, it would be open for the authorities to ignore the claim of such an incumbent inspite of his seniority but then too, it should be done after recording reasons and affording opportunity to such an incumbent ( 17 ) UNDISPUTEDLY, the appellant is a senior most teacher of the institution and there is nothing adverse material against him, which may be treated as an impediment for appointment as officiating Principal of the college. Except that once he declined to continue as officiating principal due to some personal reasons. Once there is no incumbent working as officiating Principal, the appellant can claim for appointment as officiating Principal. ( 18 ) HAVING considered the case in its entirety, we are of the view that inability shown for some personal reasons should not be treated as permanent refusal and cannot be an embargo, if for one or the other reason new incumbent is to be appointed as acting Principal of the college. The senior most incumbent can again exercise his right to offer himself for being appointed as officiating Principal till the post if filled-up by a regularly selected candidate. We are in agreement with the judgment pronounced by the various Division Benches referred to in the judgment of learned Single Judge and the judgment relied upon by learned counsel for the respondent-petitioner which have laid emphasis on the fact that in case once an incumbent refused to officiate as Principal and the next person is given charge and during his continuance in office, the incumbent cannot claim appointment on the said post. ( 19 ) THE waiver clause could have created hurdles for the appellant had he claimed to officiate as Principal of the college during the life time of incumbent, who was appointed on refusal of the appellant to shoulder the responsibility for the reason that some right would accrue in favour of the such an incumbent. But once the post became vacant again due to resignation, retirement, and death or otherwise, the appellant is entitled to claim for his appointment till a regularly selected candidate joins by virtue of being the senior most teacher. It may be pointed out here that appellant had never relinquished his right for appointment on the post of officiating Principal after the death of Ashok Kumar Pandey in November, 2002 making him ineligible for consideration. ( 20 ) WE further found that in M/s Motilal Padampat Sugar Mills Co. Ltd Vs. . State of U. P. and others- AIR 1979 SC 621 , it has been held by the Apex Court that " it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. " ( 21 ) THE essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Waiver and estoppel are questions of conduct and must necessarily be determined on the facts of each case. On the touchstone of the aforesaid principle, we have to examine facts of the case in hand to decide whether the right forsaken by the appellant for some personal reasons at the relevant time will be treated as permanent relinquishment of right. ( 22 ) IN the instant case no such foundation was laid down by the respondent-petitioner so far plea of waiver is concerned. Therefore, now at the time of hearing, it cannot be allowed to be raised by the respondent-petitioners, although in the interest of justice, we have dealt with the question of waiver as well. ( 22 ) IN the instant case no such foundation was laid down by the respondent-petitioner so far plea of waiver is concerned. Therefore, now at the time of hearing, it cannot be allowed to be raised by the respondent-petitioners, although in the interest of justice, we have dealt with the question of waiver as well. ( 23 ) BEFORE concluding, we would also like to add that the learned single Judge on the strength of decisions rendered in Satya Vir Singh vs. District Inspector of Schools, ALR 1995 (25), Prem Murti Dixit Versus Sri satyavir Singh, 1996 (1) E. S. C. 362 and Smt. Sudesh Kakkar versus regional Inspectors of Girls Schools [special Appeal No. 141 of 1993] held that the appellant cannot claim again the right to function as Officiating principal. With due regard to the aforesaid decisions, we are of the view that the said decisions are sub-silentio as, the eventuality, which we have discussed in detail in the preceding paragraphs, has not been considered. In other words, such a question was either not raised or was raised but not considered in the aforesaid decision. In Municipal corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 , Apex Court has held that precedents sub silentio and without argument are of no moment. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and principles, laid down therein. ( 24 ) FOR the aforesaid reasons, the Special Appeal is allowed and the judgment and order dated 7th January, 2004 passed by learned Single judge in writ petition no. 978/ss/2003 is hereby set aside. The District inspector of School, Faizabad shall ensure that the appellant is allowed to function as Officiating Principal of the College and is paid salary and other benefits regularly, till the regularly selected candidate joins. .