Allahabad High Court
Shiv Poojan vs State Of U.P. And 3 Ors. on 20 May, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - A No. - 26501 of 2017 Petitioner :- Shiv Poojan Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Shailendra,Anand Prakash Srivastava,Archana Hans,Sharad,Siddharth Khare Counsel for Respondent :- C.S.C.,Mritunjay Mohan Sahai Hon'ble Ashwani Kumar Mishra,J.
1. An order passed by the Joint Director of Education, Varanasi Region, Varanasi, dated 24th May, 2017, whereby private respondent no.4 has been held senior to petitioner is assailed in the present writ petition. It is contended that long standing seniority in the institution is disturbed by order impugned, which is otherwise contrary to the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act of 1921') and the Regulations framed thereunder.
2. Petitioner claims to have been appointed as Lecturer in English pursuant to recruitment exercise undertaken by U.P. Secondary Education Service Selection Board. He has been issued an appointment letter on 6.2.2002 and has actually joined on 13th March, 2002. So far as respondent no.4 Triloki Nath Pandey is concerned, it appears that his initial appointment was on the post of teacher in physical education in C.T. Grade on 19.11.1985. His appointment was against a vacancy caused due to promotion of one Krishan Deo Prasad Mishra. The promotion order was challenged before the civil court wherein an order of status quo was passed. A subsequent order of District Inspector of Schools dated 28th March, 1987 has also been brought on record which refers to the order of civil court. Issues relating to legality of appointment of respondent no.4 are raised but they need not engage attention of this Court as would be clear from the facts noticed, hereinafter. It is admitted to the parties that services of respondent no.4 were ultimately regularized in L.T. Grade by an order of the Joint Director of Education, 5th Region, Varanasi dated 28.10.1995 with effect from 7.8.1993. This order was passed under Section 33(b) of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'the Act of 1982'). The seniority of teacher since is to be reckoned from the date of substantive appointment, in accordance with Regulation 3 (1)(b) of the Regulations framed under Chapter-II of the Act of 1921, the placement of respondent no.4 in the seniority list of L.T. Grade teacher would be fixed accordingly. This order is admitted to respondent no.4 also and therefore issues relating to his initial appointment in C.T. Grade or the date from which he was paid salary in L.T. Grade looses its significance.
3. Two Government Orders issued by the State Government granting benefit of pay and designation on the post of Lecturer to the teachers of physical education are relied upon by respondent no.4 to claim seniority on the post of Lecturer. The first Government Order in that regard is dated 28.2.1990, which is reproduced hereinafter:-
^^fo"k; %& osru iqujh{k.k lfefr] mRrj izns'k] 1989 dh laLrqfr;ksa ij fy;s x;s fu.kZ;kuqlkj v'kkldh; lgk;rkizkIr mPprj ek/;fed fo|ky;ksa@ b.Vj dkystksa esa 'kSf{kd inksa ij iqujhf{kr osruekuksa dh Lohd`frA egksn;] mi;qZDr fo"k;d 'kklukns'k la[;k&4749@15&8&89@3087@89 fnukad 4 vDVwcj] 1989 ds iSjk&3 ds vuqØe esa eq>s ;g dgus dk funs'k gqvk gS fd dyk] O;k;ke] Hkk"kk] x`g foKku] f'kYi] laxhr] f=Hkk"kk] isafVax] Vad.k] vk'kqfyfi rFkk Øk¶V fo"k;ksa dks d{kk 9&10 esa i<+kus okys lh-Vh- xszM eas fu/kkZfjr vgZrk ds v/khu fu;qDr v/;kidksa dks tc d{kk 9&10 esa i<+krs gq, 10 o"kZ iwjs gks tk;sa rks mUgsa ,y-Vh-xzsM ds lk/kkj.k osrueku :- 1400&40&1800&n-jks-&50&2300 fn;k tk;sA 2- mDr fo"k;ksa ds d{kk 11&12 esa i<+kus okys ,y-Vh- xszM ds ,sls v/;kidksa dks] ftudh fu;qfDr fu/kkZfjr vgZrk ds v/khu gqbZ gS] tc d{kk 11&12 esa i<+krs gq, 10 o"kZ iwjs gks tk;sa rks mUgsa izoDrk osrueku :- 1600&50&2300&n-jks-&60&2600 fn;k tk;sA 3- HkfOk"; esa mi;qZDr fo"k;ksa dks i<+kus okys v/;kidksa dh ,y-Vh- ,oa izoDrk osrueku esa fu;qfDr ds fy, lEcfU/kr O;olk; dh vgZrk ds lkFk Øe'k% Lukrd@LukrdksRrj vgZrk fu/kkZfjr dh tkrh gSA 4- ;s vkns'k foRr ¼osru vk;ksx½ vuqHkkx&2 ds v'kkldh; la[;k&os-vk- ¼2½ 55@10&90 fnukad 28 Qjojh] 1990 esa izkIr mudh lgefr ls tkjh fd;s tk jgs gSaA^^"
The second Government Order, relied upon, dated 25th October, 2000 is also reproduced hereinafter:-
^^fo"k; % v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds dyk] O;k;ke] f'kYi vkfn fo"k;ksa ds v/;kidksa dks izoDrk in dh fu/kkZfjr vgZrk j[kus ij izoDrk in uke fn;s tkus ds lEcU/k esaA egksn;] mi;qZDr fo"k;d funs'kky; ds i=kad lk[k ¼1½@f'k-@8744@2000&2001] fnukad 4 flrEcj] 2000 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd v'kkldh; lgk;rk izkIr ,sls ek/;fed fo|ky;ksa ¼bUVj dkystksa½] tks dyk] O;k;ke] Hkk"kk] f'kYi vkfn fo"k;ksa ls b.Vj Lrj rd ekU;rk izkIr gSa] esa dk;Zjr mDr fo"k;ksa ds ,sls v/;kidksa tks fujUrj 10 o"kZ ls b.Vj esa i<+k jgs gSa rFkk izoDrk osrueku izkIr dj jgs gSa] dks fuEu 'krksZa ,oa izfrcU/kksa ds v/khu ^izoDrk^ in uke fn;s tkus dh Jh jkT;iky lg"kZ Lohd`fr iznku djrs gSaA ¼1½ ftu v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ¼b.Vj dkystksa½ esa dyk] O;k;ke] Hkk"kk] f'kYi] laxhr vkfn fo"k;ksa eas izoDrk ds in l`ftr ugha gS] muesa izoDrk osrueku esa dk;Z djus okys v/;kidksa dks Lukrd Js.kh ds ewyin gks lekIr djrs gq, izoDrk in esa mPphd`r fd;k tk;sxk rFkk izoDrk osrueku izkIr v/;kidksa dks ;fn os izoDrk in gsrq fu/kkZfjr vgZrk j[krs gksa] mi;qZDrkuqlkj mPphd`r inksa ds lkis{k fu;qDRk dj fn;k tk;sxkA ¼2½ izoDrk osreku izkIr ,sls v/;kid tks izoDrk in gsrq fu/kkZfjr vgZrk ugha j[krs gSa ] os iwoZor Lukrd osrudze dh Hkkafr f'k{kk iznku djrs jgsaxs rFkk mudh lsokfuo`Rr ds mijkUr Lukrd Js.kh dk in mlh frfFk ls lekIr gksdj izoDrk in esa ifjofrZr gks tk;sxk ¼3½mi;qZDr izLrj&1 ,oa 3 esa of.kZr lqfo/kk dsoy mUgha v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds v/;kidksa dh izkIr gksxh] ftUgsa lacaf/kr fc"k; esa b.Vj Lrj dh ekU;rk izkIr gksA ¼4½lEcfU/kr v/;kid dks 'kklukns'k la[;k 1121@15&8&90@3087@89] fnukad 28 Qjojh 1990 ds izLrj&3 ds v/khu lEcfU/kr O;olk; dh vgZrk ds lkFk LukrdksRrj mikf/k dh vgZrk j[kuk vko';d gSA ¼5½;g lqfo/kk dsoy mUgha v/;kidkas dks vuqeU; gksxh tks lacaf/kr fc"k;ksa esa d{kk&11 ,oa 12 dks i ¼6½ mDr fc"k;ksa ds dsoy mUgha v/;kidksa dks izoDrk in uke vuqeU; gksxk] tks bl vkns'k ds tkjh gks dh frfFk rd fu/kkZfjr vgZrk iwjh dj pqds gksA ¼7½ izoDrk in ij dk;ZHkkj xzg.k djus okys v/;kidksa dh T;s"Brk mDr in ij dk;ZHkkj xzg.k djus dh frfFk ls gh fu/kkZfjr dh tk;sxhA mudh iwoZ lsok;sa Lukrd Js.kh ds :i esa ekuh tk;sxh rFkk izoDrk in dk dk;ZHkkj xzg.k djus ds ckn Lukrd Js.kh dh lsokvksa dk dksbZ ykHk izoDrk ds p;u @izksUur osrueku fn;s tkus gsrq vuqeU; ugha gksxkA ¼8½ inuke ifjofrZr gks ds QyLo:i ;fn fdlh izdkj dk O;; Hkkj mRiUu gksxk rks mldk cVu jkT; ljdkj vFkok f'k{kk foHkkx ds eq[;ky; }kjk ugha fd;k tk;sxk vkSj u gh bl fc"k; esa fdlh izdkj dk vuqnku fdlh Hkh Jksr ls miyC/k djk;k tk;sxkA ¼9½ mi;qZDrkuqlkj izoDrk in dh vgZrk@j[kus okys v/;kidksa dks inuke fn;s tkus ls iwoZ muds fyf[kr v.Mj Vsfdax ys yh tk;sxh rkfd T;s"Brk fu/kkZfjr vkfn ds laca/k esa ckn esa dksbZ fookn mRiUu u gksA 2- ;g vkns'k foRr ¼osru vk;ksx½ vuqHkkx&2 ds v'kkldh; la[;k os-vk- ¼2½1507@nl@2000 fnukad 25 vDVwcj 2000 esa izkIr mudh lgefr ls fuxZr fd;s tk jgs gSaA^^
4. Relying upon the aforesaid Government Orders the Committee of Management of the institution concerned has granted the benefit of designation to the Lecturer's post to respondent no.4 w.e.f. 25th October, 2000, vide order dated 5.8.2016. This benefit has been granted pursuant to an order of the District Inspector of Schools dated 3rd October, 2016 which required the Management to correctly fix seniority of respondent no.4. The order of District Inspector of Schools dated 3.10.2016 as well as the decision of Committee of Management dated 5.8.2016 granting benefit of Lecturer's post to respondent no.4 are on record. It is in this backdrop that the Joint Director of Education has granted the benefit of Lecturer's post w.e.f. 25th October, 2000 and determined his seniority accordingly. Since petitioner has been substantively appointed as Lecturer in the year 2002 therefore he has been found junior to respondent no.4. Aggrieved by this order of Joint Director of Education dated 24.5.2017 the petitioner is before this Court.
5. Learned counsel for the petitioner submits that the aforesaid two Government Orders merely grants benefit of Lecturer's pay scale and designation to the teacher concerned, which is personal to him, he does not occupy the post of Lecturer substantively nor would he be entitled to seniority on the post of Lecturer. It is also submitted that promotion in an Intermediate institution has to be necessarily granted in accordance with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 as well as the U.P. Secondary Education Service Selection Board Rules, 1998, and that any other manner of conferring appointment or promotion to the post of Lecturer in the grade would be void by virtue of Section 16(2) of the Act of 1982. It is submitted that since procedure contemplated under Section 12 of the Act of 1982 read with Rule 14 of the Rules of 1998 have not been followed as such grant of seniority to the post of Lecturer would be hit by Section 16(2) of the Act of 1982, but this aspect of the matter has not been taken note of.
6. Learned counsel for the respondents, on the other hand, submits that the post of Lecturer in physical education was not sanctioned in the institution concerned and that it was pursuant to the Government Order dated 25th October, 2000 that the post of L.T. Grade teacher was upgraded to the post of Lecturer upon completion of 10 years working as L.T. Grade teacher. It is contended that upgradation of post was automatic and conferment of benefit thereunder is a natural consequence, once the condition enumerated therein are met. Contention is that merely for the reason that proceedings under Section 12 read with Rule 14 have not been undertaken the benefit of Lecturer's post and pay scale granted in terms of the Government Order dated 25th October, 2000 would not be denied to the respondent no.4. Learned counsel further submits that while determining the issue of seniority, the legality of initial appointment or promotion cannot be questioned when there is no specific plea taken in that regard. In the alternative, learned counsel submits that respondent no.4 was the only teacher of physical education in the institution who was eligible for promotion in terms of the Government Order, and that the procedure contemplated under the Rules of 1998 can still be resorted to and the benefit of promotion ought to be granted from the date of entitlement as per the Government Order dated 25th October, 2000.
7. In order to appreciate the rival contentions advanced by learned counsel for the parties, it would be necessary to refer to the relevant provisions of law that operate in the field. Determination of seniority in an institution recognized under the Act of 1921 would be determined in accordance with Regulation 3 framed under Chapter-II of the U.P. Intermediate Education Act, 1921. Regulation 3 (1) is relevant and is reproduced hereinafter:-
"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; .............................."
8. The provisions of the Act of 1921 as well as regulations framed thereunder would continue to regulate appointment and promotion in such institutions, so far as it is not inconsistent with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982. This would be so by virtue of Section 32 of the Act of 1982, which is reproduced hereinafter:-
"32. Applicability of U.P. Act No. II of 1921. - The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act [or the rules or regulations made thereunder] shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher."
9. Section 16 of the Act of 1982 assumes significance for determination of the dispute raised in the present matter inasmuch as appointment on the post of Lecturer in an institution recognized under the Act of 1921 (except an institution maintained by minority or the State Government) would have to be made strictly as per the provisions contemplated in the Act of 1982. Section 16 of the Act of 1982 is reproduced hereinafter:-
"16. Appointment to be made only on the recommendation of the Board. - (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of ["Sections 12, 18, 21-B, 21-C, 21-D, 21-E, 21-F, 21-G, 33, 33-A, 33-B, 33-C, 33-D, 33-F and 33-G"], every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the Management only on the recommendation of the Board.
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply.
Provided further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the regulations made under clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
[Provided also that the dependent, of a teacher or other employee of an Institution dying-in-harness who possesses the qualifications prescribed under the Intermediate Education Act, 1921 may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under sub-section (4) of Section 9 of the said Act.] (2) Any appointment made in contravention of the provisions of sub-section (1) shall be void."
10. Any appointment in an institution recognized under the Act of 1921 would have to be consistent with the provisions of the Act of 1982. Appointment would include promotion for which procedure is prescribed under Section 12 of the Act of 1982 read with Rule 14 of the Rules of 1998. The procedure for promotion specified under the Act of 1921 read with Rule 18 of the Rules of 1998 unless is followed, no promotion in law would be permissible. Any promotion made in such an institution without following the procedure prescribed would be void by virtue of Section 16(2) of the Act of 1982.
11. The issue of inter-se seniority between the petitioner and respondent no.4 is, therefore, required to be considered in the context of statutory provisions noticed hereinabove. Petitioner has been substantively appointed to the post of Lecturer in English on 6.2.2002, after he was selected as such by the U.P. Secondary Education Services Selection Board, Allahabad. He would be entitled to seniority in the grade of Lecturer from the date of his substantive appointment i.e. 13.3.2002 after his selection on 6.2.2002 by the Board. Such a seniority has in fact been accorded to the petitioner and is not in issue. The substantive appointment of respondent no.4 in the institution is on the post of L.T. Grade teacher w.e.f. 7.8.1993 and his claim for seniority on the post of Lecturer, relying upon the two Government Orders in question, is in issue.
12. It is admitted on record that seniority list in respect of teachers of the institution concerned has been prepared by the Management from time to time. The seniority list for the year 2009-2010 as well as 2014-2015 has been brought on record which would go to show that petitioner was placed in the seniority of Lecturer with reference to the date of his substantive appointment i.e. 13th of March, 2002 while respondent no.4 was shown as a teacher in L.T. Grade with his date of appointment shown as 7.8.1993.
13. Certain correspondence appeared to have ensued thereafter between the Joint Director of Education and the office of District Inspector of Schools, Varanasi on the basis of some representation made by respondent no.4 regarding grant of seniority in the Lecturer's grade relying upon the two Government Orders. The correspondence in that regard would show that the Inspector clearly informed the Joint Director of Education, Varanasi, vide his letter dated 21st July, 2016 that respondent no.4 was continuously shown as a teacher in the L.T. Grade uptill 31st May, 2015. To similar effect are the letters of the District Inspector of Schools, Varanasi, dated 22nd July, 2016, 26.8.2016 and 13.10.2016 etc.
14. The claim of seniority on the post of Lecturer by respondent no.4 is essentially based upon two Government Orders dated 28.2.1990 and 25.10.2000, which have already been extracted above. With reference to these two Government Orders respondent no.4 claims to have been granted benefit on the post of Lecturer w.e.f 25.10.2000 and his claim has also been accepted by the Joint Director of Education vide order impugned dated 24th May, 2017.
15. The Government Order dated 28.2.1990 provides that teachers appointed in the specified subjects including physical education, who have been teaching for the last 10 years in Classes 9th and 10th and were appointed in C.T. Grade would be given the pay scale of L.T. Grade, if they possess such qualification. Similarly, teachers appointed on the post of L.T. Grade have been granted Lecturer's grade upon completion of 10 years teaching in the subject concerned provided the teacher possesses requisite qualification. This Government Order only grants benefit of higher pay scale to the teacher concerned without grant of any substantive right to the higher post itself. The subsequent Government Order of 25th October, 2000, however, grants the designation and benefit on the post of Lecturer to those teachers who have been teaching Intermediate classes for the last 10 years. Clause (1) of this Government Order provides that the post of L.T. Grade teacher, substantively held, would be upgraded to the Lecturer's post and the substantive post of L.T. Grade teacher would stand abolished. Clause (7) of the Government Order provides that benefit of seniority on the post of Lecturer would be granted only from the date such teacher joins on the upgraded post and no benefit would be granted for any period prior to it. Respondent no.4 with reference to this Government Order states that since he had been teaching students of Classes 11th and 12th for the last 10 years in the subject of physical education, as such he was entitled to benefit of seniority on Lecturer's post from 25th October, 2000 and such claim has also been accepted by the Joint Director of Education.
16. The post of Lecturer in an institution recognized under the Act of 1921 can be filled either by direct appointment through the U.P. Secondary Education Service Selection Board or by promotion in accordance with Section 12 of the Act of 1982 read with Rule 14 of the Rules of 1998. There is no other way in which a substantive appointment on the post of Lecturer could be offered in the institution concerned. There is no provision in the Act of 1982 which contemplates appointment on the post of Lecturer by way of upgradation of post held in lower grade by the teacher concerned. The Act of 1982 also does not empower the State Government to issue any Government Order, whereby appointment on the post of Lecturer could be granted by upgrading the post held substantively in L.T. Grade.
17. The only power whereunder such a Government Order could be issued is Section 9(4) of the Act of 1921. The State Government in exercise of its power thereunder could modify, rescind or make any regulation in respect of any matter covered under the Act of 1921. The Government Order, therefore, can at best modify or rescind a regulation framed under the Act of 1921 or to frame a regulation.
18. The Government Order dated 25.10.2000 if is treated as an enabling provision for appointment on the post of Lecturer in an institution recognized under the Act of 1921 then the Government Order would introduce a new avenue of appointment which is not contemplated in the Act of 1982 and would incur wrath of Section 32 of the Act of 1982.
19. Admittedly respondent no.4 has been substantively appointed as teacher in L.T. Grade on 7.8.1993. The only way in which he can occupy the post of Lecturer would be by way of promotion by following the procedure prescribed under Section 12 read with Rule 14 of the Act of 1982 read with Rules of 1998. Respondent no.4 has not been granted promotion to the post of Lecturer in the manner so contemplated. Any other manner in which seniority in Lecturer's grade and post is offered would necessarily become void by virtue of Section 16(2) of the Act of 1982.
20. The Government Order of 25th October, 2000 upgrades the post of L.T. Grade teacher in specified circumstances and also grants benefit of designation on the post of Lecturer as also seniority from the date a person joins on the post of Lecturer. The benefit in that regard is personal to the teacher concerned inasmuch as the post of L.T. Grade teacher would be treated to have been abolished. Such promotion cannot be treated to be a substantive promotion in the grade and cadre of Lecturer since the procedure for appointment to the post of Lecturer as per the Act of 1982 is not followed. Such promotion at best can be treated personal in nature to the teacher concerned against an ex-cadre post or else the Government Order itself would become inconsistent with the Act of 1982. The seniority of teacher who is granted the benefit of personal promotion under the Government Order dated 25th October, 2000 therefore would have to be separately maintained. The benefit of seniority in the cadre of Lecturer therefore cannot be granted under Regulation 3 framed under Chapter-II to the Act of 1921.
21. In Dr. Rashmi Srivastava Vs. Vikram University and others, 1995(3) SCC 653 a similar issue came up for consideration before the Apex Court. Claim of seniority between direct recruits and those promoted under the merit promotion scheme was examined. In paras 37 and 38 of the judgment, the Apex Court observed as under:-
"37. A resume of relevant provisions of the merit promotion scheme and the relevant provisions of the Vikram University Act (sic M.P. Vishwavidyalaya Adhiniyam, 1973) to which we have made reference earlier clearly shows that when the Act was enacted in 1973 the State Legislature had not contemplated any promotion of a Lecturer as Reader or Reader as Professor as the case may be. All the relevant ordinances and statutes will therefore have to be read in that light. It is not possible to agree with the contention of the learned counsel for appellants that Section 49 as enacted can take in its sweep even departmental promotees. A mere look at Section 49 shows that the Members of the Committee of Selection as contemplated by sub-section (4) of Section 49 have to investigate the merits of the various candidates and to recommend to the Executive Council the names if any, of persons whom they consider suitable for the posts, arranged in order of merit. Sub-section (5) mentions that out of the names so recommended under sub-section (4) the Executive Council shall appoint persons in order of merit. This clearly contemplates an open market recruitment procedure by way of direct recruitment and candidates selected will have to be appointed in order of merit. It is obvious that there would be no occasion to consider the question of inter se merit of a departmental promotee and a direct recruit. It is also pertinent to note that in the year 1973 the subsequent merit promotion scheme of 1982 would never have been under contemplation of the Legislature. It must therefore be held on a conjoint reading of the relevant provisions of the Act that only one source of recruitment of University teachers namely, Professors and Readers and even of Lecturers is contemplated and that source is by way of direct recruitment. If that is so and if under merit promotion scheme as recommended by the Commission which was adopted by Respondent 1 University, any departmental candidate is to be promoted, he would be so promoted dehors Section 49 and would obviously be an ex cadre Reader or Professor as the case may be. Once that happens it would be obvious that there would be no occasion to fix the inter se seniority of directly recruited Readers and Professors who are holding cadre posts and ex cadre merit promoted Readers and Professors who would stand outside the cadre. The first respondent by its impugned decision which was quashed by the High Court in the judgment under appeal tried to fuse the inter se seniority of both these classes of employees. And that itself amounted to treating unequals as equals. It clearly offended the provisions of Articles 14 and 16(1) of the Constitution of India. Unless Section 49 is suitably amended and a separate source of recruitment by way of internal promotion is contemplated by the Act there would remain no occasion of undertaking any exercise of fixing inter se seniority between ex cadre employees and cadre employees. It is not in dispute between the parties that neither the Act nor any ordinances or statutes of Respondent 1 University even remotely whisper about creation of a separate recognised source of recruitment of Professors and Readers by way of departmental promotions. It is of course true as indicated by Dr Dhavan appearing for the intervenors that in some of the Universities even ordinances have been issued accepting such new source of promotion of University teachers under the merit promotion scheme. But even if it is so that would make no difference as it is the parent Act, namely, University Act concerned which should contemplate creation of new source of recruitment by way of departmental promotions of University teachers. Unless that is done mere issuance of ordinances or statutes to that effect which to that extent would conflict with the parent Act would be of no avail and would be an exercise in futility. They would also be ultra vires the Act. It must therefore be held that unless the University Acts concerned under which the Universities are functioning, by suitable amendments provided for an additional source of recruitment of Readers and Professors by way of departmental promotions, mere adoption of merit promotion scheme recommended by the Commission or mere decision of the Coordination Committee or Executive Committee not to discriminate between merit promotees and direct recruit University teachers and even issuance of ordinances or statutes to that effect would be of no avail and will not have any legal effect nor would they permit the Universities concerned to fuse the cadre employees with ex cadre employees and to prepare a combined seniority list on that basis.
38. It is true as submitted by learned counsel for appellants that for avoiding stagnation and heart burning promotional avenues should be made available in any service as laid down by this Court in number of decisions to which our attention was invited by them. However the short question for our consideration is whether the University Act concerned has made such a provision. If a provision is made then there would be no difficulty in the way of the appellants but in the absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or Professor to the cadre of such Readers or Professors as the case may be. They would remain ex cadre employees who cannot claim any inter se seniority with direct recruits forming the cadre concerned. It is not possible to agree with the contention of Shri Bobde and Dr Dhavan that under the merit promotion scheme though the promotions were personal, to that extent there was a temporary extension of the cadre of Reader or Professor as the case may be or that they were special promotees as Dr Dhavan would like to have it. The very guidelines of the scheme suggest that a merit promoted Reader or Professor will be treated to have a personal promotion. It will not create any addition to the cadre nor will it create any vacancy in the lower cadre from which he or she was promoted. The workload has to be so distributed as not to require any additional staff. Dr Dhavan said that this was only because of the financial crunch. That may be so. But ultimately the effect thereof would be that once a merit promoted Reader or Professor goes out of service there will be no post which will fall vacant in the promotional avenue. Consequently, it cannot be said that there was any temporary addition to the cadre strength of Reader or Professor as the case may be. We entirely concur with the reasoning adopted by the High Court while considering the relevant clauses of the merit promotion scheme when it took the view that Readers and Professors promoted under the scheme were not entitled to be included in the seniority list of directly recruited Readers and Professors. Reliance placed by learned counsel for appellants on Statute 16 is also of no avail to the appellants for the simple reason that Statute 16 deals with seniority of teachers of the University. This statute is promulgated under Section 35(o) of the Act. Section 35(o) of the Vikram University Act (sic M.P. Vishwavidyalaya Adhiniyam, 1973) deals with the mode of determining seniority for the purpose of the Act. Consequently it will have to be read with Section 49 meaning thereby when a Professor, Reader or Lecturer is recruited under Section 49 how his seniority is to be determined can be decided in the light of the relevant statute framed under Section 35(o). When we turn to Statute 16 we find that as per clause (2) thereof the seniority of Professors, College Professors, Readers, Associate Professors or Lecturers shall be determined in accordance with the length of continuous service of such person in the cadre concerned taken together with length of continuous service which is equivalent to or superior to the cadre concerned. It was submitted by learned counsel for the appellants that the word cadre as employed by Statute 16(2) is used in a loose sense. It is difficult to agree. Statute 16(2) read with Section 35(o) and Section 49 leaves no room for doubt, that all those Readers and Professors who were recruited under Section 49 as direct recruits and who enter the cadres of Professors and Readers as the case may be shall have their seniority determined in accordance with length of service in their cadres concerned. As merit promotee Reader or Professor is outside the cadre there is no question of Statute 16(2) operating in his case. It is also pertinent to note that merit promotee Professors or Readers form a separate distinct class as compared to directly recruited Professors or Readers. It is true that as decided by Respondent 1 University, the same Selection Committee which directly recruits Professors and Readers under Section 49(2) deals with the question of granting merit promotions to the Lecturers concerned as Readers and Readers as Professors. But to that extent the machinery or infrastructure available under Section 49(2) for directly recruiting teachers was made available for deciding the eligibility of departmental candidates for merit promotion but that would not by itself create a new source of recruitment for promotee Readers and Professors unless Section 49 was suitably amended. That has not been done till now. In this connection, we can profitably refer to the decision of this Court in the case of Bal Krishna Agarwal (Dr) v. State of U.P. [(1995) 1 SCC 614 : 1995 SCC (L&S) 356 : JT (1995) 1 SC 471] In that case a Division Bench of this Court was concerned with the question whether Professors promoted by Allahabad University governed under Uttar Pradesh State University Act, 1973 could claim seniority vis-à-vis directly recruited Professors. Under Section 31 a merit promotion scheme adopted by Allahabad University was promulgated by State of Uttar Pradesh. By inserting Section 31-A in the University Act with effect from 10-10-1984 a distinct source of recruitment by way of merit promotion for Lecturers and Readers in the University was created by State Legislature. But that section which created a distinct source of recruitment by promotion was effectively brought into force from 10-10-1994. The appellant before this Court was directly appointed as Professor on 9-11-1984 while the contesting Respondents 4 and 5 were promoted as Professors under the scheme by Government Orders dated 12-12-1983 and 25-2-1984. These respondents were treated as senior to the appellant before this Court. He unsuccessfully challenged the said fixation of inter se seniority before the High Court, as the High Court took the view that the appellant had to be relegated to the alternative remedy available under Section 68 of the Act. In appeal pursuant to leave granted by this Court, S.C. Agrawal, J. speaking for the Division Bench took the view that the appellant was entitled to be treated as senior to the promotee Professor as Section 31-A was not on the statute book when Respondents 4 and 5 were promoted and therefore their promotions could be treated as valid only from 21-2-1985 when Section 31-A was enforced. Before that date the appellant had already entered the cadre of Professors on 11-11-1984 and therefore he had to be treated as senior to Respondents 4 and 5. In para 13 of the report the following observations were made in this connection: (SCC pp. 621-22) "We are of the opinion that in view of the provisions contained in Section 31-A and Section 2(14) of the Act there is no escape from the conclusion that Respondents 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualifications for such promotion were made in the Statutes and since this was done by Notification dated 21-2-1985, promotion under the Personal Promotion Scheme could not be made prior to 21-2-1985. The Executive Council in its Resolution No. 198 dated 8-11-1984 had accepted the recommendations of the Selection Committee for promotion of Respondents 4 and 5 on the basis of Government Orders dated 12-12-1983 and 25-2-1984. At that time Section 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. This was done by introducing Section 31-A by U.P. Act No. 9 of 1985 with effect from 10-10-1984. But Section 31-A could be given effect only after the necessary provision was made in the Statutes prescribing the length of service and the qualifications for personal promotion. This was done by the notification dated 21-2-1985. The promotion of Respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to 21-2-1985 and it has to be treated to have been made with effect from 21-2-1985. The inter se seniority of the appellant and Respondents 4 and 5 has to be determined on that basis."
In our view the aforesaid decision of this Court is squarely applicable to the facts of the present case. As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 31-A which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such provision. It is therefore to be held that till appropriate amendments are effected in the Universities Act concerned on the same lines as Section 31-A of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the cadre of Reader or Professor as the case may be and consequently there would arise no occasion for consideration of the further question of fixation of inter se seniority of such ex cadre promotees and the directly recruited Readers or Professors who form the cadre concerned."
(emphasis supplied by me)
22. This Court in Bharti Roy Vs. Deputy Director of Education-II, Kanpur and others, 2008 (2) ADJ 134, has also taken the view that benefit of seniority cannot be granted unless the appointment or promotion is in accordance with the Regulations and the Act of 1982. After referring to Division Bench judgment of this Court in Madan Gopal Agrawal and others Vs. The District Inspector of Schools, Bijnor and others, 1996 (3) ESC 202, this Court observed as under in paras 26 to 29:-
"26. Same view was taken by another Hon'ble Single Judge (Dr. B.S. Chauhan, J.) in Madan Gopal Agrawal and Ors. v. The District Inspector of Schools, Bijnor and Ors. 1996 (3) ESC 202 (All). However, this Court also held that grant of LT grade under the aforesaid Government Orders is personal and it does not mean posting in LT grade, inasmuch as, when such a person would retire, it would result in a vacancy in CT grade and not in LT grade since the incumbent cannot be said to hold the post of Assistant Teacher in LT grade. The observations of this Court are as under:
"7. ... under the different Government Orders issued from time to time the teachers working in C.T. Grade become eligible to be considered for L.T. Grade as a personal pay scale. This does not mean the posting in L.T. Grade and the post which becomes vacant after the retirement of such a teacher would not be deemed to be a vacant post in L.T. Cadre nor such a person can take benefit on the post of the L.T. Grade for promotion and seniority as he is not holding the post in Grade in L.T. Grade vide Rashmi Srivastava v. University , Virendra Pandey v. State of U.P. 1994 (24) ALR (H) 19, Writ Petition No. 30754 of 1991 Madljuri Devi v. Regional Inspectress of Girls Schools, decided on 20.3.1995 and Vipin Kumar v. District Inspectress of Schools 1993(2) Educational and Service Cases 456.
8. It is not to be treated as their promotion in L. T. Grade till they are promoted to the post in L.T. Grade strictly in accordance with law."
27. Same view has been expressed by another Hon'ble Single Judge (Hon. Ashok Bhushan, J.) in Civil Misc. Writ Petition No. 39731 of 2000, Ansan Lal Jha v. District Inspector of Schools and Ors. decided on 13.2.2006.
28. A pari material Government Order was issued on 28.2.1990 for grant of Lecturer Grade to those teachers who were working in L.T. Grade and had completed ten years of service and were imparting education to the students of XI and XII class continuously for ten years. The incumbent was granted Lecturer's Grade pursuant to the Government Order dated 28.2.1990 and he raised a similar contention which came up for adjudication before a Division Bench of this Court in Vipin Kumar v. District Inspector of Schools (1993) 3 UPLBEC 1900 and in paragraphs No. 6, 9 and 13 the Court held:
"6. ...A teacher may be given lecturer's pay scale even though there is no vacancy to the post of lecturer. The grant of lecturer's pay scale is not correlated with the filling of vacancy in a particular post. In a college where teachers are appointed in L. T. grade and they are given lecturer's pay scale, then in that situation there would not occur any vacancy to the post of lecturer and on the other hand the post may not exist but the teachers are given lecturer's pay scale. The word "grade" has different connotations in the context of a particular statute."
"9. The word "grade" used in Para 4(2) of the Removal of Difficulties Order, 1981, Rule 9 of U.P. Secondary Education Service Commission Rules, 1983 and Regulation 6 of Chapter II of Intermediate Education Act, 1921 must be taken as "post" of lecturer. A teacher, who is working in L T. Grade is to be promoted to the post of lecturer's grade in the sense that he is to be promoted to the post of lecturer in an institution. A teacher may be given lecturer's pay scale but he may not be given the post. Unless he is given a post the mere fact that he has been given lecturer's pay scale will not be taken as to have given him the post of lecturer unless he is duly promoted to the said post in accordance with the provisions of a Statute."
"13. The seniority of a teacher of a lecturer's grade is also to be considered from the date of appointment to the post in lecturer's grade and not from the date of payment of lecturer's pay scale. Regulation 3 of Chapter II of Regulations of the Intermediate Education Act contemplates seniority from the date of appointment and the same principle has to be made applicable in case of persons appointed on ad hoc basis. The seniority cannot be fixed on the basis of grant of pay scale given by the Government under its own orders."
29. In view of the aforesaid authorities which are binding on this Court as well and even otherwise, I am also in respectful agreement with the law laid down therein, it is evident that the first petitioner even if treated to have been granted L.T. grade w.e.f. 1.7.1992 after completion of ten years of service in C.T. Grade, that would not entitle her to claim seniority on the post of Assistant Teacher (L.T. Grade) unless she is appointed or promoted in accordance with the Regulations and 1982 Act on the said post. Neither there is any averment in any of the petitions filed by the first petitioner nor any order is available on record to show that the first petitioner was ever promoted on the post of Assistant Teacher (L.T. Grade) in accordance with 1982 Act read with Regulations framed under 1921 Act. In these circumstances, I am clearly of the view that she could not have been granted benefit of seniority on the post of Assistant Teacher (L.T. Grade) and could not have been placed above the second petitioner who admittedly was appointed directly as Assistant Teacher (L.T. Grade) and was regularised on the said post on 27.1.1994. Thus, the entire claim and dispute raised by the first petitioner loses its ground resulting in vitiating the order dated 12.7.2006 passed by Joint Director of Education, Kanpur Region whereby she has been declared first petitioner senior to the second petitioner ignoring the exposition of law on the subject in its entirety. "
23. The respondent no.4 therefore cannot claim seniority in the grade of Lecturer nor could he be held senior to the present petitioner. The upgradation of post substantively held in L.T. Grade by respondent no.4 to the Lecturer's grade would at best be treated personal to him on an ex-cadre post. A separate seniority list would have to be drawn in respect of such teachers.
24. Even otherwise on facts it is admitted that benefit of substantive appointment on the L.T. Grade post has been granted to respondent no.4 on 7.8.1993. He could be held entitled to the benefit of the post of Lecturer only upon completion of 10 years working as such and not before that. Ten years would, therefore, be completed on 7.8.2003 and the petitioner having been appointed prior to it would have to be placed above respondent no.4 in the seniority.
25. Viewed from both the aspects, the order of Joint Director of Education holding respondent no.4 to be senior to petitioner cannot be sustained. Accordingly, for the reasons and discussions this writ petition succeeds and is allowed. Order dated 24.5.2017 stands quashed. The Joint Director of Education is directed to pass an appropriate order in light of the observations made above and to grant all consequential benefits to the petitioner in terms thereof, forthwith. No order is passed as to costs.
Order Date :- 20.5.2019 Anil (Ashwani Kumar Mishra, J.)