JUDGMENT Honble Rakesh Tiwari, J.—Heard Sri Shailendra, counsel for the petitioner, Sri Vatsal Srivastava appearing for respondent No. 4 and Standing Counsel representing respondent Nos. 1 and 5. Respondent No. 2-District Basic Education Officer, Meerut and respondent No. 3-Committee of Management have not filed any counter affidavit inspite of the fact that time was granted to them while passing detailed order dated 7.8.08 rejecting prayer for interim relief. 2. Relief claimed by the petitioner is for quashing of the order dated 11.7.2008 passed by the DIOS, Meerut appended as Annexure 24 to the writ petition, on the ground that it is an ex parte order and has been passed without affording any opportunity of hearing to him. The petitioner has also prayed for a writ of mandamus for commanding the respondents not to interfere in his peaceful working as officiating Headmaster in Maharshi Dayanand High School Mohammadpur Dhoomi, Meerut (hereinafter referred to as the institution). A further prayer has been made for any suitable writ, order or direction which the Court may deem fit and proper in the circumstances of the case. 3. The institution earlier was an aided junior High school and was subsequently raised to the level of unaided High school. The petitioner claims to be officiating Headmaster in the institution having been appointed vide order dated 28.6.2005 as teachers senior to him including the respondent No. 4, had declined to officiate as such. 4. Moot question raised by Sri Shailendra, counsel for petitioner in the aforesaid backdrop is that once the petitioner had been given charge of officiating Headmaster though he is admittedly junior to respondent No. 4, who had shown his inability to officiate as Headmaster, then can respondent No. 4 again claim for the post as officiating Headmaster ? 5. Facts of the case are that Sri Ganga Saran Sharma, headmaster of the institution working in substantive capacity, was suspended vide order dated 8.2.2005. Respondent No. 4 is said to have been offered the charge of Headmaster in officiating capacity being the senior most teacher but he vide his letter dated 17.2.2005 informed his inability to work as officiating Headmaster and discharge responsibility of the post. Respondent No. 4 is said to have been offered the charge of Headmaster in officiating capacity being the senior most teacher but he vide his letter dated 17.2.2005 informed his inability to work as officiating Headmaster and discharge responsibility of the post. The management again proposed him to work as officiating Headmaster, but by his subsequent letter dated 28.2.2005, respondent No. 4 again informed the management that he is not prepared to take responsibility of preparation of income tax documents as officiating Headmaster. 6. On denial to accept charge of officiating Headmaster by the senior teachers, the committee of management is said to have issued a letter dated 7.3.2005 appended as Annexure 5 to the writ petition which was circulated according to seniority amongst the teachers, that in case a senior teacher is willing to perform the duties of officiating Headmaster, he may inform in writing and if not, he may simply sign the circular letter aforesaid. The letter dated 7.3.2005 is thus : “PRABANDHAK KE AADESH SANKHYA 31-37 DATED 8.2.2005 KE ANUSAR SRI GANGASARAN SHARMA, PRADHAN ADHYAPAK KO NILAMBIT KAR SRI JAGDISH PRASAD, SAHAYAK ADHYAPAK KO KARYAVAHAK PRADHAN ADHYAPAK KE PAD KA KARYA KARNE KE NIRDESH DIYE GAYE THE, PARANTU UNHONE KARYABHAR GRAHAN NAHI KIYA, JO SAHAYAK ADHYAPAK KARYAVAHAK PRADHAN ADHYAPAK KA KARYA KARANA CHAHTE HAI, WAH SPASHT ULLEKH KARE KE KARYA KARNA CHAHTA HAI, JO ANIKCHUK HAI WAH KEVAL HASTAKSHAR KAR DEN, YAH MAN LIYA JAYEGA KI WAH KARYAVAHAK PRADHAN ADHYAPAK KA KARYA NAHI KARNA CHAHTE HAI.” Thereafter a meeting of the Committee of Management is said to be held on 14.4.05 wherein it was decided that as senior teachers are not inclined to take charge of officiating headmaster, as such Sri Brijendra Singh, an assistant teacher, be given the charge as officiating Headmaster of the institution. Accordingly resolution dated 19.4.2005 was passed in favour of Sri Bijendra Singh. The petitioner, who was next below to respondent No. 4 in seniority, then by means of his letter dated 16.6.05 informed the management that he is ready to work as officiating headmaster in the institution. On receipt of the letter aforesaid, the committee of management vide its letter dated 26.6.2005 gave charge of officiating headmaster to the petitioner. Consequently, letter dated 28.6.2005 was issued in his favour, pursuant to which he joined the post. 7. On receipt of the letter aforesaid, the committee of management vide its letter dated 26.6.2005 gave charge of officiating headmaster to the petitioner. Consequently, letter dated 28.6.2005 was issued in his favour, pursuant to which he joined the post. 7. The committee of management received a letter dated 7.7.2005 from District Basic Education Officer, inter alia that department has come to know that after suspension of Sri Gangasaran, Sri Bijendra Singh, assistant teacher teaching class IX & X, has been given officiating charge; that as the institution has been upgraded from aided junior High school to unaided High School, as such senior most teacher is entitled to work on the post of officiating Headmaster in the institution for discharge of all administrative and financial functions. The manager of the institution was therefore directed to give charge to the senior most teacher and also to provide a copy of the order dated 15.6.2005 passed in Writ Petition No. 772 of 2005. 8. Respondent No. 4 in the circumstances then moved Writ Petition No. 28851 of 2006, by which he sought relief of appointment as head of the institution appending therewith a representation addressed to the DIOS, which according to him had remained unactioned. 9. The aforesaid writ petition was disposed of by the Court vide judgment and order dated 9.5.2008 inter alia that in case the permanent incumbent on the post of principal has not been reinstated and is still under suspension, the DIOS shall pass appropriate orders after affording opportunity of hearing to the parties concerned and that respondent Nos. 4 and 5 shall comply with the directions so issued by the DIOS as directed above. The Court directed that exercise may be taken within four weeks from the date a certified copy of the order is filed before him. 10. As per directions contained in the judgment dated 9.5.2008 aforesaid, the DIOS issued notice to the parties concerned fixing 9.6.2008 and thereafter 23.6.2008 in the matter. He then passed the impugned order dated 11.7.2008 which has been communicated to the petitioner on 14.7.2008. 11. The order dated 14.7.2008 is challenged by the petitioner on the ground that it is ex parte and has been passed without affording opportunity of hearing to the petitioner or to the committee of management. He then passed the impugned order dated 11.7.2008 which has been communicated to the petitioner on 14.7.2008. 11. The order dated 14.7.2008 is challenged by the petitioner on the ground that it is ex parte and has been passed without affording opportunity of hearing to the petitioner or to the committee of management. It is stated that the petitioner was present on both the dates i.e. 9.6.2008 and 23.6.2008 but the matter was not heard; that it has been incorrectly mentioned in the order that on 23.6.2008 representative of the committee of management or the petitioner were heard as in fact DIOS himself was not present in his office on the aforesaid dates; that the impugned order has been passed by him in collusion with respondent No. 4; that DIOS has in the order noticed the fact that letter dated 7.3.2007 was circulated by the committee of management inter alia that senior most teacher respondent No. 4 himself did not accept the proposal to officiate as headmaster and also did not give his willingness in writing which shows that he was not willing to discharge duties of the aforesaid post. 12. According to the petitioner, it is clearly deducible from the circumstances that respondent No. 4 had impliedly admitted the fact that till 26.6.2005, he had not given his consent to work as officiating headmaster in the institution, as such appointment of the petitioner who had given his consent cannot be said to be illegal. 13. It is submitted by the counsel for petitioner that respondent No. 4 though being senior to the petitioner had waived his right to officiate as headmaster of the institution, can neither now claim nor allowed to take benefit of subsequent circumstances after the petitioner has taken charge as officiating Headmaster. It is stated that the DIOS could not have passed the order impugned until and unless the order dated 11.7.08 of the District Basic Education Officer approving the petitioner as officiating headmaster was not cancelled or held to be unjustified by him and that as the matter relates to Junior High School, as such it was the District Basic Education Officer who had the authority to decide the matter and not the DIOS. 14. 14. The next contention of the counsel for petitioner is that DIOS while passing the order impugned has not recorded any finding as to why and under what circumstance action of the District Basic Education Officer in appointing the petitioner could be disturbed and hence the impugned order being arbitrary, discriminatory and illegal, is liable to be quashed. 15. Counsel for the respondent submits that by a detailed order dated 7.8.2008, the Court did not grant stay of the impugned order dated 11.7.08, hence aggrieved by rejection of his application for interim relief, the petitioner preferred Special Appeal No. 1035 of 2008, Brij Bhushan Sharma v. State of U.P. and others, in which the Division Bench of the Court recording its prima facie satisfaction, vide judgment dated 26.8.08 held that considering the facts and circumstances, the Court had rightly refused to grant interim relief of stay of the order dated 11.7.08. The special appeal filed by the petitioner was thus dismissed has having no merit but with the observation that the order will not in any way prejudice the rights of the parties at the time of final hearing of the writ petition. 16. Aggrieved by the judgment dated 26.8.08 in the aforesaid special appeal, the petitioner filed Special Leave to Appeal (Civil) No. 25393 of 2008, Brij Bhushan Sharma v. State of U.P. and others with S.L.P.(C) No. 27210 of 2008, in which the following order was passed on 14.11.2008 : “Having heard learned counsel for the respective parties, we dispose of both the special leave petitions by requesting the High Court, in the peculiar facts of this case, to dispose of the pending writ petition filed by the petitioner in SLP(C) No. 25393 of 2008, within three months from the date of communication of this order. Having regard to the interest of the students of the school and having further regard to the fact that we are informed by learned counsel appearing for the Manager that the examinations are to be held shortly, the parties are directed to maintain status quo as on today with regard to the administration of the school until final disposal of the writ petition.” 17. In rebuttal the counsel for the petitioner submits that his basic contention is that respondent No. 4 in his Writ Petition No. 28851 of 2006, Jagdish Prasad v. State and others, had concealed the fact regarding appointment of petitioner as officiating headmaster as well as the circular letter dated 7.3.2005 issued by the committee of management, by which it was clear that respondent No. 4 had waived his rights for officiating on the post of headmaster of the institution; that Vakalatnama had been filed by him, in the aforesaid writ petition No. 28851 of 2006 wherein the petitioner in the present writ petition was arrayed as respondent, yet respondent No. 4 in the present petition was able to get an ex parte judgment and order on 9.5.2008 in that petition as the name of the counsel Sri Shailendra had not been printed in the cause list and that as the DIOS had denied opportunity of hearing to the petitioner pursuant to the spirit of the order of the High Court dated 9.5.08, as such the impugned order is liable to be quashed for this reason too. 18. The counsel for the petitioner has also placed averments in the supplementary affidavit in which it has been stated that appointment of respondent No. 4 was prior to registration of the society and as such his appointment being void, he could not have been considered for appointment on the post of officiating Headmaster. In support of his contention he has placed reliance on the judgment rendered in Special Appeal No. 959 of 2006, Sundershan Kumar v. State of U.P. and others, in which the Court observed thus : “In our opinion, respondent No. 6 in unequivocal terms had refused to officiate as Principal when the substantive vacancy of the post of Principal had occurred on 30.6.2003. The said same post continued to remain vacant as no substantive appointment on the said vacancy was made. Mere fact that an ad hoc arrangement of officiating Principal which was made earlier on the said post, has come to an end, it does not mean that a fresh substantive vacancy had been created or arisen. The substantive vacancy remains the same and only officiating arrangement has come to an end. Mere fact that an ad hoc arrangement of officiating Principal which was made earlier on the said post, has come to an end, it does not mean that a fresh substantive vacancy had been created or arisen. The substantive vacancy remains the same and only officiating arrangement has come to an end. Since respondent No. 6 had declined to officiate as Principal on the said very vacancy, he cannot be permitted at this stage to turn around and to claim appointment as officiating Principal on the same very post. The respondent No. 6 having refused to accept officiating appointment is estopped under law from claiming officiating appointment on the same substantive vacancy. It would have been a different thing if a substantive vacancy which had occurred earlier had been filled up by a regular appointment and then a fresh vacancy had been created. In that event, respondent No. 6 may have become entitle for reconsideration for officiating Principal on the fresh substantive vacancy. The above view taken by us stands fortified by an unreported Division Bench judgment of this Court in the case of Smt. Sudesh Kakkar v. Regional Inspector of Girls Schools and others, passed in Special Appeal No. 141 of 1993, decided on 7.4.1994 which has been relied upon in the case of Satya Vir Singh (supra). In that case the services of Smt. Subhadra Gupta, the permanent Principal of Jain Kanya Pathshala Inter College, Muzaffarnagar were terminated on 20.10.1975.” 19. Per contra, counsel for the respondents has relied upon judgment rendered by learned Single Judge of the High Court in Rama Shankar Misra v. Joint Director of Education, Varanasi and others, 2001(2) ESC 837 (All), wherein the Court in paragraph 20 of the judgment has held that : “The consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for a long period, it should not be disturbed or set aside on some technicalities or procedural irregularities.” 20. In paragraph 27 of the aforesaid judgment, it has been held by the Court that : "The irresistible inference is that the appointment of the petitioner was approved by the authorities and there was no dispute regarding his date of appointment. In paragraph 27 of the aforesaid judgment, it has been held by the Court that : "The irresistible inference is that the appointment of the petitioner was approved by the authorities and there was no dispute regarding his date of appointment. Even otherwise as held by this Court in the case of Vijai Narain Sharma (supra) the question of validity of the appointment cannot be gone into in any proceedings for determination of seniority.” 21. He has also relied upon judgment rendered by the High Court in Civil Misc. Writ Petition No. 3937 of 1992, Committee of Management, Maharishi Daya Nand Junior High School v. State of U.P. and others, in which the Court has upheld appointment of respondent No. 4-Jagdish Prasad in the year 1977 as assistant teacher in the institution which was challenged on the ground that he has lacks qualifications for the post. 22. After hearing the counsel for the parties and on perusal of record, the following admitted facts emerge : (a) Sri Ganga Saran Sharma, regular Headmaster of the institution had been suspended on 8.2.2005. The petitioner who is junior to respondent No. 4, has not prayed for quashing of appointment of respondent No. 4 as void which is one of the grounds taken in the supplementary affidavit. The appointment of respondent No. 4 in 1977 has already been held to be valid in Writ Petition No. 3937 of 1992, by the High Court which has become final. (b) Admittedly the petitioner had not accepted to officiate as headmaster and the committee of management considered the matter in its meeting dated 14.4.05 and by resolution dated 19.4.2005 issued appointment letter in favour of Sri Brijendra Singh. It is only thereafter that petitioner by means of his letter dated 16.6.05 to the management informed that he is ready to officiate as headmaster of the institution. (c) The DIOS vide his notice dated 18.6.2008 had directed the management to give charge of officiating headmaster to the senior most teacher. The letters on the basis of which the present writ petition has been filed were also before the Division Bench in Special Appeal No. 1035 of 2008, in which same stand had been taken by the petitioner as in the present writ petition. The Division Bench in its judgment has opined that DIOS is competent to examine as to who will officiate as headmaster of the institution. The Division Bench in its judgment has opined that DIOS is competent to examine as to who will officiate as headmaster of the institution. Relevant extract of the judgment is as under : “Institution having been upgraded up to High School level, the immediate authority to monitor the functioning of the institution is District Inspector of Schools. We are prima facie of the opinion that the District Inspector of Schools is competent to examine as to who will officiate as Headmaster of the institution. We may record that District Inspector of Schools has jurisdiction to examine the issue raised more so when it was so directed by this Court vide order dated 9.5.08.” Regarding opportunity of hearing, the Court had opined that : “The representation made by the petitioner has been taken into consideration by the DIOS while passing the impugned order, therefore, the submission of the appellant that principle of natural justice has been violated, is totally misconceived. Opportunity of hearing cannot be equated with an opportunity of personal hearing as claimed. We may notice that no such direction was issued under the order of this Court dated 9.5.08.” 23. As regards the question of waiver or refusal by respondent No. 4 and provisions of the Act is concerned, the Court in Special Appeal aforesaid held as follows : “So far as the submission of the appellant that the respondent No. 4 had refused to accept the responsibility of the post of Headmaster, we may only record our prima facie satisfaction that from the letter dated 7.3.2005, which has been relied upon by learned counsel for the petitioner, it is mentioned that those teachers who are not interested in functioning as Headmaster of the institution may sign. This letter was admittedly signed by the petitioner while respondent No. 4 had not signed the said document. Therefore, if the petitioner who had refused to work as officiating Headmaster as per the document. So far as the respondent No. 4 is concerned, he did not sign the document. Non-signing of the document does not lead to an inference that respondent No. 4 refused to accept the post of Headmaster at the relevant time. Therefore, if the petitioner who had refused to work as officiating Headmaster as per the document. So far as the respondent No. 4 is concerned, he did not sign the document. Non-signing of the document does not lead to an inference that respondent No. 4 refused to accept the post of Headmaster at the relevant time. However, the document does not in any way improve the case of the petitioner inasmuch as at best the writ petitioner and respondent No. 4 can be said to be similarly placed in terms of the letter dated 7.3.2005. No benefit can be drawn by the petitioner against the respondent No. 4 on the plea that he has not signed the document. We further notice that after the teacher working under the self financed scheme has been asked to hand over charge of the post of Headmaster to the senior most teacher, under orders of the Basic Shiksha Adhikari there had to be a fresh offer to the teachers for working as officiating Headmaster at that stage. We may record that there is no document which could clinchingly establish that the respondent No. 4 ever refused to accept the responsibility of the post of Headmaster. We may not be taken to have expressed any final opinion qua the inference so drawn. 24. The matter has come up before this Court for hearing on nomination by His Lordship Hon. the Chief Justice. From the arguments advanced by the learned counsel for the respective parties at length and on perusal of the record, it appears that respondent No. 4 had never in unequivocal terms refused to officiate as Headmaster. What appears from the record is that respondent No. 4 had taken charge of officiating Headmaster and had informed the management that since certain registers etc. were not provided to him, it would not be possible for him to submit the documents regarding income tax of teachers etc. The management taking as a refusal by respondent No. 4 to officiate as headmaster appointed Brijendra Singh, an assistant teacher appointed for teaching students under the self finance scheme. The petitioner who had earlier refused to officiate had signed the circular letter, hence had no better claim than respondent No. 4. The management taking as a refusal by respondent No. 4 to officiate as headmaster appointed Brijendra Singh, an assistant teacher appointed for teaching students under the self finance scheme. The petitioner who had earlier refused to officiate had signed the circular letter, hence had no better claim than respondent No. 4. The DIOS in his order dated 11.7.08 has recorded specific findings of fact as follows : ^^1- izcU/kd }kjk vius i= fnukad 7&3&2005 ds }kjk twfu;j Lrj ij dk;Zjr lHkh lgk;d v/;kidksa ls dk;Zokgd iz/kkuk/;kid dk in Hkkj xzg.k djus ds lEcU/k esa lgefr gsrq fy[kk x;k FkkA ftlesa Jh JhHkxoku&l0v0] Jh cztHkw"k.k&l0v0 ,oa Jh nsosUnz flag&l0v0 us vlgefr O;Dr djrs gq, vkns’k i= ij gLrk{kj dj fn;s x;s] fdUrq Jh txnh’k izlkj&ofj"Bre l0v0 us vius dksbZ gLrk{kj ugha fd;s vkSj u gh Jh txnh’k izlkn }kjk izcU/kd dks dksbZ ,slk i= fy[kk x;k ftlesa mUgksaus dk;Zokgd iz/kkuk/;kid dk in Hkkj xzg.k djus ds fy, viuh vlgefr O;Dr dh gksA lquokbZ ds le; izcU/kd }kjk ,slk dksbZ izek.k izLrqr ugha fd;k gSA 2- ,d ckj rhuksa lgk;d v/;kidksa }kjk dk;Zokgd iz/kkuk/;kid dk inHkkj xzg.k djus ls vlgefr O;Dr djus ds mijkUr Hkh Jh cztHkw"k.k&l0v0 ¼tks T;s"Brkdze esa rhljs LFkku ij gSa½ }kjk ckn esa lgefr O;Dr djus ij izcU/kd }kjk bUgsa dk;Zokgd iz/kkuk/;kid dk in Hkkj lkSik x;k gS&fue fo:) gSA D;ksafd bl dk;kZy; ds i= la0 ek0 5@3575&77 fnukad 6&9&2005 ds }kjk fo|ky; ds izcU/kd dks funsZf’kr fd;k x;k Fkk fd vki }kjk dfu"Bre l0v0 dks dk;Zokgd iz/kkuk/;kid dk in Hkkj lkSai j[kk gS&tks foHkkxh; fu;eksa ds foijhr gSA blds mijkUr ftyk csfld f’k{kk vf/kdkjh esjB us Hkh vius i= la0 ÁcUèk@1857&58 fnukad 7&7&2005 ds }kjk fo|ky; ds izcU/kd dks funsZf’kr fd;k x;k fd iz/kkuk/;kid ds fuyEcu ij ;k vU; fLFkfr esa twfu;j Lrj ij lgk;rk izkIr fo|ky; esa dk;Zjr ofj"Bre l0v0 gh dk;Zokgd iz/kkuk/;kid dk dk;Z djsaxsa] fdUrq izcU/kd }kjk mijksDr funsZ’kksa ds mijkUr Hkh foHkkxh; fu;eksa ds fo:) T;s"Brkdze ds rhljs LFkku ij dk;Zjr dfu"Bre l0v0 dks dk;Zokgd Áèkkukè;kid dk in Hkkj lkSaik x;k gSA fu.kZ; twfu;j Lrj ij dk;Zjr lgk;d v/;kidksa dh T;s"Brk lwph ds vk/kkj ij Jh txnh’k izlkn&l0v0 ofj"Bre lgk;d v/;kid gSaA foHkkxh; fu;eksa ds vuqlkj Jh txnh’k izlkn&ofj"Bre l0v0 gh dk;Zokgd iz/kkuk/;kid dk in Hkkj ikus ds vfèkdkjh gSaA vr% Jh txnh’k izlkn&ofj"Bre l0v0 dk izR;kosnu fnukad 9&6&08 Lohdkj djrs gq, mUgsa dk;Zokgd iz/kkuk/;kid fu;qDr djus ds fy, fu.kZ; fy;k tkrk gSA ftyk fo|ky; fujh{kd] esjBA** 25. Admittedly, the institution has been raised to High school level and as such the DIOS is competent to issue direction for appointment of officiating headmaster and also because the High Court so held in Writ Petition No. 28851 of 2006. Respondent No. 4, the seniormost teacher in the institution had not signed the said circular letter by the management to indicate that he did not want to officiate as headmaster. On the contrary as per the letter since it was not signed by the petitioner, it establishes that he was ready to accept the officiating charge of the post. As such when the senior most teacher was available in the institution who possessed the requisite qualifications and accepted the charge as officiating Headmaster, the appointments of Brijendra Singh as well as of the petitioner as officiating Headmaster was against the rules. 26. The petitioner had also initially declined to officiate as headmaster for which reason the committee of management resolved to appoint Sri Brijendra Singh hence being junior to respondent cannot claim to have better right than him. 27. Though the Special Appeal No. 1035 of 2008 as well as S.L.P. No. 25393 of 2008 of the petitioner against rejection of his interim application by the Court for allowing him to continue to officiate as headmaster, were dismissed, yet he has managed to continue to officiate as headmaster of the institution. 28. In fact it appears that Jagdish Prasad-respondent No. 4 had assumed the office of officiating Headmaster and was already working but appears to have been ousted under some conspiracy by appointment of Brijendra Singh and then the petitioner. 29. The petitioner did not dispute the seniority of respondent No. 4 to whom he has initially accepted to be senior to him in the writ petition. This point has been raised in supplementary affidavit without even amending the writ petition, hence in view of the ratio laid down in Rama Shanker Misra’s case (supra), the seniority cannot be disputed in this petition where only question involved is whether a junior teacher can officiate on the post of headmaster if the senior teachers are not inclined to accept the responsibility. 30. 30. Respondent No. 4 having not declined to work as officiating Headmaster being senior most teacher as per record and in the admitted facts that petitioner was junior most, it cannot be said that any illegality has been committed by the DIOS in directing the senior most teacher to function as officiating Headmaster. 31. As noted above, there is no question of any waiver of rights by the respondent No. 4 as appointment was in officiating capacity, hence the judgment in Sundershan Kumar’s case (supra) referred to by the counsel for petitioner, is not applicable as the vacancy was not substantive since it was temporarily caused on account of suspension of the regular Headmaster who was still in service and had not been terminated from that post. 32. After the judgment was dictated Sri Shailendra, learned counsel for the petitioner at this stage has placed emphasis upon following excerpt of paragraph 11 of the judgment rendered in JT 2005 (10) SC 22, Punjab and Sind Bank and others v. Mohinder Pal Singh and others : “Waiver of a right implies his knowledge of the existing right. A person cannot be said to have waived his right unless it is established that his conduct was such so as to enable the Court to arrive at a conclusion that he did so with knowledge that he had a right but despite the same acted in such a manner which would imply that he has waived the same." 33. As stated earlier neither from the record nor from averments and decision rendered by the Court in the dispute inter se between the parties it appears that there was any waiver or consent of respondent No. 4 forgoing to officiate as headmaster of the institution rather he had filed writ petition for his right to work as officiating headmaster being the senior most teacher in the institution. It is settled law that senior most teacher is to be given officiating charge of the post of Headmaster and the senior most teacher cannot shirk his responsibility from officiating on the post-on any ground. 34. For all the reasons stated above, this petition fails and is accordingly dismissed. It is settled law that senior most teacher is to be given officiating charge of the post of Headmaster and the senior most teacher cannot shirk his responsibility from officiating on the post-on any ground. 34. For all the reasons stated above, this petition fails and is accordingly dismissed. Respondent No. 4 being the senior most teacher shall be handed over the charge as officiating Headmaster in the institution forthwith on submission of certified copy of order before the committee of management and DIOS shall ensure compliance of this order. No order as to costs. ————