Allahabad High Court
Updesh Kumar vs State Of U.P. And 5 Others on 20 July, 2022
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 37 Case :- WRIT - A No. - 9939 of 2022 Petitioner :- Updesh Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Arvind Srivastava Iii,Sr. Advocate Counsel for Respondent :- C.S.C.,Yogendra Kumar Srivastava Hon'ble Manish Mathur,J.
1. Heard Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Arvind Srivastava III, learned counsel for the petitioner, learned Standing Counsel appearing for respondent nos. 1 to 4 and Mr. R.K. Ojha, learned Senior Advocate assisted by Mr. Yogendra Kumar Srivastava, learned counsel for the respondent no. 6.
2. In view of the order proposed to be passed, the respondent no. 6 is not being put to notice and petition is being decided at admission stage with consent of learned counsel for parties.
3. This petition has been filed assailing order dated 25.05.2022 passed by the Joint Director of Education, Agra Region, Agra whereby respondent no. 6 has been determined to be senior to the petitioner. Order dated 26.05.2022 passed by the District Inspector of Schools, District Mainpuri is also under challenge, whereby respondent no. 6 has been appointed Adhoc/ Officiating Principal of the institution in question namely, Bhatiya Inter College, Bhaisarauli, District Mainpuri.
4. Learned counsel for petitioner submits that the petitioner as well as respondent no. 6 were appointed Assistant Teachers in the institution on the same date i.e. 1.7.1990. Subsequently, vide seniority list dated 20.02.2019, issued by Manager of the college, petitioner was indicated as being senior to respondent no. 6. It is submitted that the aforesaid seniority list was issued in accordance with Regulation 3 under Chapter II of the Regulations framed under the Intermediate Education Act, 1921. It is further submitted that said Regulation provided a time limit of 15 days whereunder respondent no. 6 could have filed any objection against seniority list and in case his grievances were not redressed to his satisfaction, he had an option of filing an appeal before the Director of Education. It is submitted that even after circulation of the seniority list dated 20.02.2019, no objections were filed by respondent no. 6, due to which the said seniority list became final and remained conclusive.
5. It is further submitted that impugned order dated 25.5.2022 has been passed by the Joint Director of Education contrary to provisions of Regulation 3 of the aforesaid Regulations ignoring that without any objection being filed by the respondent no. 6 within time boundation as indicated in the aforesaid Regulation, the seniority list had become final.
6. It is also submitted that the Joint Director in his impugned order has noticed submissions advanced by the petitioner in which it is clearly indicated that seniority list dated 20.02.2019 was brought on record in proceedings before the Joint Director but the same have not been adverted to in reasoning recorded by the Joint Director and therefore, order impugned has been passed ignoring material on record.
7. Similarly, it has been submitted that the issue pertaining to appointment of officiating/adhoc Principal was required to be seen by the District Inspector of School in terms of Section 18 of the Act of 1982 whereunder the authority was also required to see conduct of respondent no. 6 and not merely the aspect of seniority. It is submitted that no objections at all had been called for by the Inspector from petitioner pertaining to appointment of adhoc/officiating Principal of the college although the Inspector was perfectly aware with regard to submissions made by petitioner before Joint Director pertaining to inappropriate conduct of respondent no. 6 and orders passed pertaining to same by competent authorities. It is submitted that aforesaid document pertaining to inappropriate conduct of respondent no. 6 has been noticed by the Joint Director in his order but neither he nor the Inspector has adverted to submissions raised by petitioner as such also impugned order dated 26.5.2022 is against provisions of section 18 of the Act, 1982. Reliance has also been placed on judgment rendered by Supreme Court in the case of Ram Murti Singh vs. District Inspector of Schools, Deoria, reported in 1995 Supp 3 SCC 170 to buttress his submissions.
8. Learned counsel appearing on behalf of respondent no. 6 has refuted submissions advanced by learned counsel for petitioner with the submission that order impugned passed by the Joint Director is perfectly in consonance with Chapter II Regulation 3 of Regulations framed under the Act, 1921, whereunder it has been prescribed that teachers having been appointed on the same date, would have their seniority determined in accordance with age with the older person being senior to younger one.
9. It is submitted that the impugned order dated 25.5.2022 has been passed in accordance thereof. So far as seniority list dated 20.02.2019 is concerned, it has been submitted that the same does not indicate anywhere that any opportunity had been granted to teaching staff of the college to file objections there against. It is specifically averred, upon instruction, that respondent no. 6 was never provided any opportunity to file objections prior to issuance of alleged seniority list dated 20.02.2019 and as such the alleged seniority list dated 20.02.2019 was inconclusive.
10. It is submitted in the alternative that even if assuming though not admitting fact of conclusiveness of alleged seniority list dated 20.02.2019, the same being against statutory provision would have no effect and as such it is submitted that order impugned passed by the Joint Director is perfectly in consonance with statutory provisions.
11. So far as appointment of answering-respondent as adhoc/officiating Principal of the college is concerned, it has been submitted that the same was referred by the Joint Director for consideration of District Inspector of School in consonance with section 18 of the U. P. Secondary Education Service Selection Board Act, 1982 and the Inspector has thereafter validly passed order on the basis of seniority determined by the Joint Director. It is submitted that the concept of adhoc/officiating appointment on the post of Principal is required to be made on the basis of seniority subject to rejection of unfit. It is submitted that the said concept has been enunciated in various judgments since it is not particularly indicated in the said provision. It has however been submitted that even thereafter any deviation from the concept of seniority has to be made in rarest of the rare cases.
12. Upon consideration of submissions advanced by learned counsel for petitioner as well as learned counsel for respondent no.6 and perusal of material on record, it is evident that the petitioner is placing heavy reliance upon seniority list dated 20.02.2019 to submit that since petitioner had been determined to be senior to respondent no. 6, the order passed by the Joint Director is against the provision of Regulation 3 of the Regulations since no objection against the seniority list was ever submitted by the respondent no.6.
13. So far as aforesaid submission is concerned, particularly taking into account submission of learned counsel for respondent no. 6, seniority list dated 20.02.2019 does not indicate whether it is tentative or final in nature. There is no averment that any finalization of seniority list has been done after invitation and consideration of objection by teaching staff of the college. In neither of the impugned orders, fact regarding invitation of objection and consideration thereof prior to finalization of seniority, is evident.
14. Furthermore, Chapter II Regulation 3 (1) (b) of the Regulations which takes into account methodology of preparation of seniority list, is particularly relevant and is as follows:
"(1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions-
(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;
15. Sub-clause (f) (g) provides that any teacher having any objection to the seniority list circulated, would have an opportunity to file objection before the Committee and thereafter would have an opportunity to file appeal before the Joint Director within a period of 15 days. Proceedings before the Joint Director are thereafter required to be decided after providing opportunity of hearing to all concerned.
16. In the present case, it is seen that there is no averment in the seniority list dated 20.02.2019 that any circulation thereof was ever made or objections invited from teaching staff of the college. Although there does not appear to be any provision of inviting objections prior to finalization of the seniority list but information pertaining to finalization of seniority nonetheless is required in terms of Regulation 3 (1) (f) (g). In case seniority list is not circulated, it would make the provision of sub-section (f) and (g) of Regulation 3 (1) otiose which cannot be the concept under the Act or its Regulations.
17. Even otherwise, provision of Regulation 3 (1) (b) specifically contemplates seniority of teacher in a grade to be determined on the basis of their substantive appointment in a particular grade. It further provides that in case two or more teachers are appointed on the same date, seniority shall be determined on the basis of age.
18. Regulation 3 (1) (b) of the Regulations simply states that in case two or more teachers are so appointed on the same date, seniority shall be determined on the basis of age.. However, the method as to how age will play a role in determination of seniority, does not find any mention in the Regulation. There is no provision that a person older in age would automatically be senior to the one who is younger in age. However, the aforesaid concept has been explained by Supreme Court in case of Sudama Singh vs. Nath Saran Singh, reported in 1988(1) SCC 57 whereunder issue pertaining to section 16 GG of the Intermediate Education Act, 1921 was under consideration pertaining to regularisation of appointment of adhoc teacher. The Supreme Court also adjudicated upon the aspect of seniority amongst regularized teachers and particularly noticed Regulation 3(1) (b) of the Regulations. In the penultimate paragraph the concept of age having a role in determination of seniority has been dealt with in the following manner.
" Since it is admitted that both the appellant and the 1st respondent had been appointed in a substantive capacity by virtue of section 16GG of the Act they must be deemed to be holding their respective posts in the substantive capacity only from 21.4.1977 on which date section 16GG of the Act came into force. Both of them should be deemed to be on probation from 21.4.1977 [Vide section 16GG(2)]. Any earlier appointment or promotion on an ad hoc basis has no bearing on the question of seniority. The appellant and the 1st respondent should be deemed to have been appointed on a substantive basis on the same date for purpose of seniority and, therefore, the appellant, who is older than the 1st respondent, should be treated as senior to the 1st respondent by reason of the second sentence in clause (b) of regulation 3(1) of the Regulations framed under the Act. We are, therefore, of the view that the High Court erred in declaring that the 1st respondent was senior to the appellant on the basis of the fortuitous promotion of the 1st respondent said to have been made on March 1, 1976. The Judgment of the High Court is, therefore, liable to be set aside and the decision of the District Inspector of Schools has to be restored."
19. The same view has been taken by Coordinate Bench of this Court in the case of Triloki Nath Dixit vs. State of U.P. and others, 2007(9) ADJ 100 in which again dispute pertaining to inter se seniority for appointment as officiating /adhoc Principal under section 18 of the U.P. Secondary Education Service Selection Board Act 1982 was under consideration. This Court noticed provisions of Regulation 3 (1)(b) of the Regulations and came to a conclusion that the meaning of word ''seniority shall be determined on the basis of age' would mean that a person older in age would be held senior to the one who is younger in age. Relevant paragraph no. 23 of aforesaid judgment is quoted hereinbelow.
23. In view of the foregoing discussions, it is clear that the absorption of both the petitioner and the respondent No. 5 on 22.7.1979 cannot be treated to be a promotion within the meaning of Regulation 3(1)(bb) of Chapter II hence, the inter se seniority of petitioner and respondent No. 5 has to be determined in accordance with Regulation 3(1)(b) i.e on the basis of date of substantive appointment in L.T. grade. The date of substantive appointment in L.T. grade of petitioner and respondent No. 5 being same, the seniority has to be declared on the basis of age. The respondent No. 5 being older in age is held senior to the petitioner. No error has been committed by the Joint Director of Education in declaring the respondent No. 5 senior to the petitioner. None of the submission of Learned Counsel for the petitioner can be accepted. The writ petition lacks merit and is dismissed.
20. Upon applicability of aforesaid judgment in present facts and circumstances of the case, it is evident that methodology of calculation of seniority in terms of Regulation 3 (1) (b) of the Regulations entails a person older in age being senior to the one younger in age, both of them having been appointed substantively on the same date in the same cadre/grade.
21. Considering the statutory provision of Regulation 3 (1) (b) of Regulations framed under the Intermediate Act, 1921 as explained by aforesaid judgments, it is evident that the aforesaid provision has to be read in the context that in case of two teachers being appointed under the Intermediate Education Act, 1921 on the same date, person older in age would be senior to the younger one.
22. As such, submission of learned counsel for the petitioner challenging determination of seniority between petitioner and respondent no. 6 appears to be contrary to statutory provisions and the judgment indicated hereinabove. Although it may be true that seniority list dated 20.02.2019 may have attained finality without any objection being filed by respondent no. 6 but it is trite that the proposition of law that there is no estopple against Statute would prevail over the submission advanced by the learned counsel for the petitioner. Supreme Court in the case of Director of Elementary Education vs. Pramod Kumar Sahoo, (2019) 10 SCC 674 has settled the proposition that there is no estopple against Statute.
23. Since the impugned order dated 25.5.2022 has determined inter se seniority between the petitioner and respondent no. 6 clearly in terms of Regulation 3 (1) (b) of the Regulations as explained by the judgments indicated hereinabove, no exception can be taken to the aforesaid order.
24. However, there is another aspect pertaining to appointment of respondent no. 6 as adhoc/officiating Principal by means of order dated 26.5.2022.
25. With regard to aforesaid, learned counsel for petitioner has placed reliance upon judgment rendered by Supreme Court in Ram Murti Singh (Supra) wherein it has been held that a senior most teacher does not have any automatic right to be appointed as adhoc/officiating Principal of an institution and that his conduct and competence is also as an aspect required to be seen prior to such appointment. The Supreme Court has clearly held that in case the senior most teacher does not have working relationship with other teachers and employees and is unable to draw their cooperation and his appointment would be detrimental to the interest of the institution, there is no right vested in the senior most teacher to be appointed as adhoc/officiating Principal of the institution.
26. Upon applicability of aforesaid judgment of the present facts and circumstances of the case, it is seen from the impugned order dated 25.5.2022 that issues pertaining to conduct and competence of respondent no. 6 were brought to the notice of the Joint Director as would be evident from a reading of the said order itself. Since Joint Director passed an order merely pertaining to seniority between petitioner and respondent no. 6, naturally, he did not have any occasion to advert to the same but the Inspector while passing order dated 26.5.2022 was duty bound to have adverted to same.
27. However, upon reading of the said order, it is evident that there is no discussion whatsoever by the Inspector on the said submissions made by petitioner although order of the Joint Director was noticed by the Inspector while passing the impugned order. As such, the Inspector while determining respondent no. 6 fit to be appointed adhoc/officiating Principal of the college, was duty bound to have adverted to such submissions that were made by the petitioner. The order dated 26.5.2022 not being in consonance with the judgment in the case of Ram Murti Singh (Supra), therefore does not pass muster.
28. Consequently, the order dated 26.5.2022 passed by the Inspector, Mainpuri is quashed by issuance of a writ in the nature of certiorari. Further, a writ in the nature of Mandamus is issued commending the District Inspector of Schools, Mainpuri to revisit issue pertaining to appointment of adhoc/officiating Principal of the College in terms of judgment rendered in the case of Ram Murti Singh (Supra). The Inspector shall particularly take into account submissions made by petitioner before the Joint Director pertaining to competence and conduct of respondent no. 6 who shall also have an opportunity to rebut the same. Final decision with regard to seniority would be taken by the Inspector within a period of three weeks from the date a certified copy of this order is produced before the said authority.
29. Consequently, the writ petition is partly allowed in terms of aforesaid. No order as to costs.
30. However, in view of the fact that respondent no. 6 has already been held to be senior-most in the institution and the aspect of his competence to be appointed adhoc/officiating Principal is yet to be determined, it would be appropriate that respondent no. 6 shall continue to officiate till a period of three weeks from the date a copy of this order is produced before the Inspector or decision taken, whichever is earlier.
Order Dated: 20.07.2022 AU