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2024 DIGILAW 1528 (ALL)

Hitesh Kumar v. State Of Uttar Pradesh

2024-06-05

J.J.MUNIR

body2024
JUDGMENT : 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 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. 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.814-816 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. 3915-3917 of 2008 (Arising out of SLP(C) Nos.814-816 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 (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 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. 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. 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 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. 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 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. 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 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. 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. 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 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. 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 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 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 . 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 Uttar Pradesh 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 Uttar Pradesh 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 1-2-1995 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 Uttar Pradesh 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, sixty-one Excise Inspectors stood promoted, subject to the final outcome of the special 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 10-10-1994, 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 year wise 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 12-7-2000. 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. 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 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. Uttar Pradesh 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. (Vide Shiv Shankar v. Uttar Pradesh 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 Uttar Pradesh [ (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 vs. Pune Municipal Corpn. [ (1995) 3 SCC 33 ] this Court observed that while granting the interim relief, the court in exercise of its discretionary power should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction is also competent to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The court can do so in exercise of its inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. The court can do so in exercise of its inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. Such a procedure is necessary as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of the court at the behest of the plaintiff. 20. In South Eastern Coalfields Ltd. v. State of M.P. [ (2003) 8 SCC 648 : AIR 2003 SC 4482 ] this Court examined this issue in detail and held that no one shall suffer by an act of the court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. 22. Similarly, in Karnataka Rare Earth vs. Deptt. of Mines & Geology [ (2004) 2 SCC 783 ] a similar view has been reiterated by this Court observing that the party which succeeds ultimately is to be placed in the same position in which it would have been if the court would not have passed an interim order.” 25. 22. Similarly, in Karnataka Rare Earth vs. Deptt. of Mines & Geology [ (2004) 2 SCC 783 ] a similar view has been reiterated by this Court observing that the party which succeeds ultimately is to be placed in the same position in which it would have been if the court would not have passed an interim order.” 25. It is precisely this principle spoken of in Amarjeet Singh that is attracted to the facts of the present case. We have already elaborated, how it is attracted. For sure, the sixth respondent cannot be permitted to retain the advantage of an interlocutory order that was ultimately vacated by a judgment of the Supreme Court. He cannot retain whatever he had drawn in salary, therefore, as the officiating Principal of the respondent College. On the other hand, both equity and law require that the late Vishan Singh, who had joined the post of Principal or Headmaster, whatever be the designation, after selection by the Selection Board on 24.01.2004 and functioned up to 15.03.2004, to be ousted without recompense under an interim order passed by this Court, must be held entitled to salary for the post of Principal of the respondent College for the entire period of time, that is to say, the period from 16.03.2004 to 03.07.2008. This is the logical consequence and one that is equitable as well, because Vishan Singh did not draw salary, as already said hereinabove, from any other source. There is material to show, in fact, an admission by respondent Nos.3 and 4 that Vishan Singh was permitted to stay on in the respondent College during the period of time that Giri was permitted to officiate. The salary attached to the post of Principal has, therefore, to be paid to Vishan Singh’s heirs, to wit, the petitioners. 26. Taking notionally that Vishan Singh had worked during period of time from 24.01.2004 to 03.07.2008 and not Giri, as already remarked, Giri would be entitled to his emoluments as an Assistant Teacher with the respondent College, which he would retain, and anything drawn on account of his emoluments as the officiating Principal, would have to be refunded to the State. Taking notionally that Vishan Singh had worked during period of time from 24.01.2004 to 03.07.2008 and not Giri, as already remarked, Giri would be entitled to his emoluments as an Assistant Teacher with the respondent College, which he would retain, and anything drawn on account of his emoluments as the officiating Principal, would have to be refunded to the State. For the purpose, respondent Nos.3 and 4 would take steps to determine the quantum of these extra emoluments drawn for the relevant period of time after hearing respondent No.6 regarding the quantum alone; not the liability to pay back and recover the same from respondent No.6. The petitioners would be entitled to salary that Vishan Singh must be deemed to have earned during the period 24.01.2004 to 03.07.2008 as the Principal/Headmaster of the respondent College. The entitlement to terminal benefits/death-cum-retirement benefits payable to the petitioner and the sixth respondent respectively, would be revised and redetermined by respondent Nos.3 and 4, accordingly. 27. In the result, this writ petition succeeds and is allowed. The impugned order dated 24.02.2014 passed by the District Inspector of Schools, Bulandshahar is hereby quashed. A mandamus is issued in the terms indicated above, by which each of the respondent Nos.1 to 6 shall be bound. 28. Costs easy. 29. It is ordered, accordingly. 30. Let a copy of this judgment be communicated to the Secretary (Secondary Education), Government of U.P., Lucknow, the Secretary, Uttar Pradesh Secondary Education Services Selection Board, Alengang, Prayagraj, the Joint Director of Education, Meerut Region, Meerut, the District Inspector of Schools, Bulandshahr by the Registrar (Compliance) and to the Authorized Controller, Raja Mahendra Pratap Inter College, Jasnawali Khurd, District Bulandshahr and Jaswant Giri son of Richhpal, resident of Preeti Vihar, Gali No.1, Near Sanjeev General Store, Bulandshahr through the Civil Judge (Sr. Div.), Bulandshahr by the Registrar (Compliance).