Allahabad High Court
Sangeeta vs State Of U.P. And 4 Others on 30 January, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2024:AHC:17010 Court No. - 34 Case :- WRIT - A No. - 1509 of 2022 Petitioner :- Sangeeta Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Gulrez Khan,Javed Husain Khan,Pramod Kumar Shukla Counsel for Respondent :- C.S.C.,Rakesh Pathak,Saurabh Srivastava Hon'ble Ajit Kumar,J.
1. Petitioner who is working as Assistant Teacher in attached primary section of an intermediate college, namely, Mangatram Kanya Higher Secondary School, Patla, district Ghaziabad, is aggrieved by decision of the District Inspector of Schools dated 30.12.2016 holding respondent no. 5, namely, Ms. Anupama Tyagi as a senior to the petitioner. Both Assistant Teachers were appointed with approval order issued by the District Inspector of Schools, Ghaziabad on 30.12.2016. Since petitioner and 5th respondent were simultaneously appointed in the institution and their substantive appointment is with effect from the same date, an issue arose as to the inter se seniority.
2. Petitioner is while claiming his seniority on the basis of her date of birth recorded as 5th June, 1981, the 5th respondent claims seniority on the basis of her joining in the forenoon of 30.12.2016. It is admitted to both the parties that petitioner joined in the afternoon of 30.12.2016 whereas 5th respondent joined in the forenoon of 30.12.2016. Upon the matter being remitted under the order of this Court dated 21.6.2021 passed in Writ A No. 4244 of 2021, the Regional Joint Director of Education proceeded to decide seniority taking as an admitted position that both the petitioners were appointed on the same date and the petitioner was senior in age to the respondent no. 5. The Regional Joint Director of Education found that rules applicable to U.P. Hindi Sansthan, namely, U.P. Hindi Sansthan Employees Service Rules No. 1983 to be applicable as according to the order of the Regional Joint Director of Education, the relevant regulations contained under Rule 3(1)(b) of Chapter II of Intermediate Education Act, 1921 do not contemplate a situation where two teachers join the same date but had different point of time that is forenoon and afternoon.
3. Learned counsel for the petitioner has argued that law is well settled that special law will override the general law if any. He has placed reliance upon the judgment of the Supreme Court in the case of Commercial Tax Officer, Rajasthan v. Binai Cements Limited and Another (2014) 8 SCC 319 and accordingly submits that Intermediate Education Act, 1921 being especially enacted for governing service conditions like seniority etc. and other incidental matters relating to teacher and employees of a recognized and aided institution under the Act, and the regulations provide for determination of seniority, the Regional Joint Director of Education was not justified in borrowing Hindi Sansthan Employees Service Rules, 1983 in determining intere se seniority. He submits that 1921 Act is a special Act whereas general rule of seniority is applicable to various other institutions. He submits that even 1983 rules of Hindi Sansthan have been especially framed for employees of Hindi Sansthan and unless and until adopted under the Act, 1921, they cannot be applied directly or even on principles.
4. Per contra, it is argued by learned counsel appearing for the 5th respondents that since Intermediate Education Act, 1921 does not contemplate a situation of dispute of seniority between two teachers in the event one has joined in forenoon and the other joined in afternoon, it could have been taken out of general provisions and for this purpose he has taken the Court to the relevant part i.e paragraph 5 (the finding part) of the order dated 21.12.2021 passed by Regional Joint Director of Education.
5. Having heard learned counsel for the parties and having perused the records, three admitted position emerge out :
i) both petitioner and 5th respondent were appointed on the same date with approval of the District Inspector of Schools on 30.12.2016 which is their date of substantive appointment;
ii) petitioner and 5th respondents joined on the same date in the institution, however, 5th respondent in the forenoon and petitioner joined in the afternoon;
iii) both the petitioner and 5th respondent agree that their service conditions are governed under the Intermediate Education Act, 1921 and regulations framed thereunder.
6. In view of admitted above factual position, now I proceed to examine relevant regulations of the Intermediate Education Act, 1921. Regulation 3(1) (as amended on date) of Chapter II of Intermediate Education Act, 1921 deals with seniority) and same is reproduced as under:
"3(1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions-
(a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post;
(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age;
(bb) Whether two or more teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted:
Provided that if such length of service is equal, seniority shall be determined on the basis of age.
(c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service."
7. A bare reading of the aforesaid provisions makes it absolutely clear that seniority is determined grade-wise, on the basis of substantive appointment in the grade concerned and then in the event two teachers or more teachers are appointed on the same date, seniority shall be determined on the basis of age. Sub-Regulation (a) and (b) of Regulations 3(1) are attracted to the controversy in hand and I do not see any classification of teachers by the seniority rule on the basis of joining time, instead, what is relevant is date of substantive appointment.
8. One of the arguments was advanced by learned counsel appearing for 5th respondent that she received salary for the day she joined because she had joined in the forenoon whereas petitioner did not get salary for the day as she joined in the afternoon of the same date, but I do not see any classification there to be in the relevant rules of the seniority. Payment of salary is not the criterion if otherwise teacher has been working on temporary basis and getting salary. Such temporary period could have been taken into consideration for the purposes of determination of seniority may be the date of substantive appointment as subsequent one .Thus argument advanced by respondents, therefore, is highly misplaced in view of sub regulation (b) of the Regulation 3(1) of Chapter II of Intermediate Education Act, 1921.
9. Inter se seniority amongst promotee teachers is also provided on the basis of length of service to be reckoned again from the date of their substantive appointment or vacancies in the grade from which they have been promoted and these teachers being promoted on the same date shall have benefit of their seniority from the date of substantive appointment in the lower grade. Regulation also provides that teacher in higher grade shall be entitled to seniority over the teacher of lower grade. Subregulation (d) further provides that teacher who has been placed under suspension if is reinstated on his original post in the grade, his seniority shall not be affected, meaning thereby where a teacher has been getting salary even upon his suspension being revoked and he stands reinstated, his seniority will also stand protected.
One must take example of cases of selection by State Public Service Commission, where seniority is batch-wise and not dependent upon joining. Still further payment of salary cannot be nor is under the regulations a criterion to determine seniority.
10. The argument advanced by learned counsel for 5th respondent that she did get salary and petitioner did not get salary of the day of joining and so she is seniority is not tenable.
11. In Suresh Dubey v. District Inspector of Schools and Others (2004) 2 UPLBEC 1876, this Court has already relied upon the judgment of the Court in the Bahadur Singh Gaur v. D. I.O.S., Kanpur and Others 1995 All LJ 1292, in holding it is date of substantive appointment which is relevant date and approval would be the date of substantive appointment. The joining since is dependent upon mood and discretion of the Committee of Management and discretion that by itself cannot be a ground to place a person above the seniority to the person who has been given joining late by the Committee of Management vide paragraph 5 of the judgment, the Court has held thus:
"In Bahadur Singh Gaur v. D.I.O.S., Kanpur and Others 1995 All LJ 1292, where earlier two judgments were referred and relied upon and similar view was reiterated indicating that the approval was given by the D.I.O.S. determining seniority, issuance of appointment letter or joining date by the claimant teacher and the approval date of the appointment to the substantive post is to be taken seniority if the approval date is the same then the seniority is to be determined on the basis of age irrespective of the fact that particular teacher was allowed and started working as lecturer before joining such persons whose date of birth approved on substantive post is elder in age. The relevant paragraphs 4,8,9,10,11 and 15 are reproduced below:
"4. There is no dispute that the seniority shall be determined on basis of the grant of approval of the selection by the District Inspector of Schools. The limited question remains to be decided as to whether a teacher who is issued appointment letter subsequently and joined later on and another teacher who is permitted to function on the date of approval even without issuing any appointment letter, will be treated senior to the person who Joins the institution later on. It is relevant to refer to Clause (b) of Sub-section (1) of Section 16F of U.P. Intermediate Education Act (prior to the amendment in the year 1975) which reads as under :
"16F. (1) Subject to the provisions hereinafter specified, no person shall be appointed as a Principal, Headmaster or the teacher in a recognised institution unless he:
(a) possesses the prescribed qualifications or has been exempted under Sub-section (1) of Section 16E.
(b) h a s been recommended by selection committee constituted under Sub-section (2) or (3), as the case may be of the said section and approved, in the case of Principal or Headmaster by the Regional Deputy Director, Education, and in the case of a teacher by the Inspector................."
8. The date of birth of the petitioner is 1.1.1937 and date of birth of respondent No. 3 is 26.9.1945. Admitted, the petitioner is senior to respondent No. 3. The relevant date is the date of approval of appointment by the District Inspector of Schools. The date of Joining is not the determining factor for deciding the seniority unless it is shown that the candidate did not join the institution within the time prescribed for joining as given in the appointment letter. The committee of management under Regulation 16 is bound to issue appointment letter within two weeks of the receipt of approval to selected candidates for appointment.
9. In case the date of joining is relevant date it will be on the discretion of the committee of management to issue an appointment letter to some candidate earlier and to some other candidate later on with the result, to whom the appointment letter has been issued earlier will start functioning and the other may join later on and will become junior to the other candidate though the date of selection and the date of approval is the same. So far as the time prescribed under Regulation 16 is concerned, the candidate who is living in nearest place may come and join the institution earlier but the candidate who is living at distant place may not come and join the institution immediately.
10. Learned counsel for the respondent urged that he has started functioning on 14th August, 1973, i.e., the date on which approval was granted and, therefore, he was entitled to function from the said date even though the letter of appointment was issued to him subsequently, i.e., on 22nd August, 1973, as the same was ministerial act. It may be that the appointment letter was issued subsequently and the candidate before issuance of the appointment letter himself presents before the committee of management on coming to know that the approval has been granted and the committee of management permits him to function from the date, the approval has been granted but it will not deprive the right of another candidate merely because the other candidate was not Issued appointment letter or joined subsequently within the prescribed time. The mere fact that respondent No. 3 joined the institution on 22nd August, 1973, will not confer any right of seniority against the petitioner.
11. In Prabhu Narain Singh v. Deputy Director of Education, Varanasi 1977 ALR 391, it has been held that a person does not acquire the status of a teacher unless the approval of his appointment is granted by the District Inspector of Schools and the mere fact that he was working in the institution will not confer the status of a teacher.
15. In view of the discussions made above, the Writ Petition No. 318 of 1993 is hereby allowed. The order passed by the District Inspector of Schools dated 30th October, 1992, is quashed.
(emphasis added)
12. Now coming to the argument raised by learned counsel for 5th respondent, since rules were silent, therefore, Regional Joint Director of Education was justified in applying the principle of U.P. Hindi Sansthan Employees Service Rules, 1983, I find that, what has been given in the rules has been completely misinterpreted by Regional Joint Director of Education. It says that vide Rule 5 of 1983 Rules of the said rules provides in the event there is no other rule prescribed for otherwise than service of employees would start from the date they submit their joining. In the first instance to appreciate the relevant paragraph 5 is reproduced hereinbelow:
"5. इण्टरमीडिएट शिक्षा अधिनियम-1921 (यथा संशोधित) के भाग-2 अध्याय-2 के विनियिम- 3(1) ख के अनुसार किसी श्रेणी में अध्यापको की ज्येष्ठता उनकी मौलिक नियुक्ति के आधार पर अवधारित की जायेगी। यदि एक ही दिनांक को दो या दो से अधिक अध्यापक इस प्रकार नियुक्ति किये गये थे, तो ज्येष्ठता आयु के आधार पर अवधारित की जायेगी। किन्तु सन्दर्भगत प्रकरण उक्त प्रक्रिया से भिन्न प्रकार का है। श्रीमती संगीता रानी एवं श्रीमती अनुपमा त्यागी द्वारा एक ही तिथि को कार्यभार ग्रहण किया गया है किन्तु श्रीमती अनुपमा त्यागी द्वारा पूर्वाहन्न में कार्यभार ग्रहण किया गया है एवं श्रीमती संगीता रानी द्वारा अपरान्ह में कार्यभार ग्रहण किया गया है, जिसके कारण श्रीमती अनुपमा त्यागी का वेतन दिनांक 06.01.2017 से आहरित हुआ एवं श्रीमती संगीता रानी का वेतन दिनांक 07.01.2017 से आहरित हुआ। उ० प्र० हिन्दी संस्थान कर्मचारी सेवा नियमावली 1983 के अध्याय 3 भर्ती एवं नियुक्ति की धारा 5 में यह प्रक्रिया विहित की गई है कि यदि नियमों में कोई अन्य प्राविधान न हो तो संस्थान के कर्मचारियों की सेवाये उस दिन से आरम्भ होगी जिस दिन वह कार्यभार ग्रहण करेगा। यदि वह अपरान्ह में सेवा प्रारम्भ करता है तो उसकी सेवाये अगले दिन के पूर्वान्ह से आरम्भ होगी। इस प्रकार श्रीमती अनुपमा त्यागी की अनुदानित सेवा दिनांक 06.01.2017 से मान्य की जायेगी, जबकि श्रीमती संगीता रानी की सेवा दिनांक 07.01.2017 से मान्य होगी तथा सेवावधि की गणना वेतन भुगतान की तिथि से किया जाना उचित होगा। इस प्रकार श्रीमती अनुपमा त्यागी श्रीमती संगीता रानी से वरिष्ठ होगी।"
13. From a bare reading of the aforesaid paragraph, I find Rule 3 and 5 of 1983 rules as applicable to U.P. Hindi Sansthan relates to recruitment and appointment and has nothing to do with seniority. All that it prescribes is that person who shall be taken to have joined the date, he resumes his duties . This is not the issue in the present case. Here it is not from joining which is relevant but it is the substantive date of substantive appointment, which is relevant. The second argument, therefore, advanced by learned counsel appearing for the 5th respondent is rejected.
14. The controversy qua forenoon and afternoon joining was dealt with by the Supreme court in the case of Banolat Mohapatra v. State of Orissa and Others (1999) 4 SCC 618. In the said case issue had arisen for seniority claim for the post of lecturer in a college, the appellant therein claimed before the Supreme Court that both he and respondent no. 4 joined the institution on the same day while appellant joined in the forenoon and respondent no. 4 joined in the afternoon and further letter of appointment to the appellant was sent earlier than respondent no. 4. The Supreme Court rejected the argument and held that these issues of seniority will not depend upon the joining time in the forenoon and afternoon or that who got appointment order earlier. The Court while examining the records found that appellant was placing reliance upon as annexure A dated 15.12.1979 which showed appellant was appointed against first post of Lecturer, Economic whereas respondent no. 4 was appointed against second post but in the counter affidavit, the copy of resolution that was filed which showed that appellant was appointed against second post and respondent no. 4 was against first post of lecturer. The Supreme Court further examined that original records were produced before the High Court and High Court found that Minister of Education accepted the resolution of Governing Body holding that appellant was shown senior to respondent no. 4 was post of lectures, the Court therefore found no reason to found ratio of judgment of High Court in holding fourth respondent senior to appellant. Vide paragraphs 5 and 6 the Court held thus:
"5. It has been urged that though both the appellant and Respondent 4 joined on the same day but the appellant joined in the forenoon and Respondent 4 in the afternoon and further the letter of appointment to the appellant was sent earlier. We are of the opinion that these are not at all relevant for the purpose of examining the question of seniority.
6. The appellant placed reliance on a copy of the resolution of the Governing Body dated 15-12-1979 vide Annexure A to the petition. In the said resolution the name of the appellant had been shown against the first post in Economics in the College and the name of Respondent 4 against the second post. In the counter filed on behalf of the College namely Respondents 3 and 4, a copy of the resolution has been annexed as Annexure 2 and from the said resolution we find that the appellant was shown against the second post and Respondent 4 against the first post of Lecturer. As resolutions of the Governing Body are kept by the College and the above resolution has been duly produced by the College, it has to be accepted and not the copy of the resolution annexed by the appellant. We find from the judgment of the High Court in OJC No. 867 of 1990 that the Court called for the relevant file and on perusing the record it was found that the Minister of Education accepted the resolution of the Governing Body holding that Respondent 4 was senior to the appellant. The Court also noted that the enquiry report of the Director, which was available on record, also indicated the same position. The Court also perused the resolution of the Governing Body and came to the finding that the Governing Body also decided the seniority as claimed by Respondent 4. In view of the above finding of the High Court we are not at all inclined to accept the submission made on behalf of the appellant that as per the resolution of the Governing Body the appellant was shown senior to Respondent 4."
(emphasis added)
15. Coming to the judgment relied upon by learned counsel for the petitioner, I find it to settled law that special law would override the general and so when special provisions are there, no principle of general law even can be renowned. Once statutory rule provide date of substantive appointment to be guiding factor, it mean that date and not the joining time. The rule qua substantive appointment would, therefore, include both forenoon and afternoon joining. Vide paragraph 33,34,35 and 36 Supreme Court in the case of Commercial Tax Officer, Rajasthan. (supra) has observed thus:
33. We are mindful of the principle that the Court should examine every word of a statute in its context and must use context in its widest sense. We are also in acquaintance with observations of this Court in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., 1987 SCR (2) 1 where Chinnappa Reddy, J. noting the importance of the context in which every word is used in the matter of interpretation of statutes held thus:
"Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. (Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Eastern Book Company; N. S. Bindra's Interpretation of Statutes, 8th Ed., The Law Book Company; Craies on Statute Law, S.G.G.Edkar, 7th Ed., Sweet & Maxwell; Justice G.P. Singh, Principles of Statutory Interpretation, 13th Ed., LexisNexis; Craies on Legislation, Daniel Greenberg, 9th Ed., Thomson Sweet & Maxwell, Maxwell on Interpretation of Statutes, 12th Ed., Lexis Nexis)
35. Generally, the principle has found vast application in cases of there being two statutes: general or specific with the latter treating the common subject matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes § 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonized, if possible, with the objective of giving effect to a consistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject matter cannot be reconciled, the special or specific statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in controversy. (Edmond v. U.S., 520 U.S. 651, Warden, Lewisburg Penitentiary v. Marrero).
36. The maxim generalia specialibus non derogant is dealt with in Volume 44 (1) of the 4th ed. of Halsbury's Laws of England at paragraph 1300 as follows:
"The principle descends clearly from decisions of the House of Lords in Seward v. Owner of "The Vera Cruz", (1884) 10 App Cas 59 and the Privy Council in Barker v Edger, [1898] AC 748 and has been affirmed and put into effect on many occasions.... If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament's true intention was to establish thereby a rule of universal application, then the special provision must give way to the general."
16. In view of above, the order passed by the Regional Joint Director of Education dated 21.12.2021 is hereby quashed. Petitioner and 5th respondent having given substantive appointment on 30.12.2016 and they having joined on the same day as they were issued appointment order, it will be taken that they have been substantively appointed together on 30th December, 2016 and the petitioner being senior in age is held senior to 5th respondent in view of provision as contained under Regulation 3(1) (a) and (b) of the Chapter III of Intermediate Education Act, 1921. The Committee of Management shall accordingly pass consequential orders regarding inter se seniority between petitioner and 5th respondent for all purposes.
17. Thus writ petition is accordingly allowed with no order as to cost.
Order Date :- 30.1.2024 Sanjeev