Allahabad High Court
Smt Brajbala vs State Of U.P. And 5 Others on 17 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:165645 Court No. - 35 Case :- WRIT - A No. - 11860 of 2023 Petitioner :- Smt Brajbala Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Nikhil Kumar,Prashant Kanha Counsel for Respondent :- C.S.C.,Banshi Dhar Mishra Hon'ble Vikas Budhwar,J.
1. Heard Sri Nikhil Kumar, learned counsel for the writ petitioner, Sri Saurabh, learned Standing Counsel who appears for respondents No. 1 to 4, Sri Saurabh Yadav, learned counsel who appears for respondent No. 5 and Sri Banshi Dhar Mishra, learned counsel who appears for respondent No. 6.
2. Since affidavits have been exchanged between the parties and the counsel appearing in the present case have consented that the matter be decided at the fresh, thus, this Court is proceeding to decide the matter.
3. The case of the writ petitioner is that the fifth respondent, Janta Higher Secondary School Rampura Bujurg, Bilaspur, Rampur is an institution recognized upto the level of High School and is governed under the provisions of U.P. Intermediate Education Act, 1921 and the Rules framed thereunder and the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.
4. Pleadings reveal that pursuant to the exercise undertaken for making recruitment on the post of Assistant Teachers in the institution in question the writ petitioner as well as as the sixth respondent, Mahendra Pal Singh were selected on the said post and pursuant to the approval order dated 14.09.2015 an appointment order was issued in favour of the sixth respondent on 01.10.2015. Likewise, so far as the writ petitioner is concerned, his appointment was approved on 18.09.2015 and an appointment order was issued on 01.10.2015. Appointment orders of the writ petitioner as well as the sixth respondent has been appended along with the writ petition as Annexure 1 at page 49 and 50 of the paper book which contains a recital that the respective Assistant Teachers, writ petitioner and the sixth respondent shall join the post in question within a period of one week. As per the writ petitioner, he joined the post of Assistant Teacher in the fifth respondent institution on 03.10.2015, however, the sixth respondent was accorded joining by interpolation on a day on 2nd of October, 2015 which according to the writ petitioner, was an holiday on account of Gandhi Jayanti. In para 10 of the writ petition, it has been further averred that the date of birth of the writ petitioner is 08.07.1995 and of the sixth respondent is 14.03.1989.
5. Pleadings further reveal that on 31.03.2017, the regularly selected Principal, Sri Ved Prakash Gangwar attained the age of superannuation, thus, a substantive vacancy arose pursuant whereto exercise was undertaken for filling up the said vacancies by officiation.
6. It has been further asserted that without there being any resolution of the Committee of Management of the fifth respondent institution, the sixth respondent was handed over charge as an Officiating Principal and he continued to officiate since 01.04.2017 to 31.03.2018 and thereafter on 26.05.2018 the fifth respondent, Committee of Management passed an order directing the sixth respondent to hand over the charge of Officiating Principal to one Smt. Gagan Deep Kaur who was a teacher working under the self financing scheme. It is further asserted that being aggrieved and dissatisfied with the order dated 26.05.2018 passed by the fifth respondent institution, the sixth respondent represented the matter before the second respondent, Joint Director of Education, XII Region, Moradabad on 02.06.2018 and on the basis of the representation of the sixth respondent, the second respondent passed an order dated 02.06.2018 directing the District Inspector of Schools, Rampur, fourth respondent to hand over the charge of the Officiating Principal to the senior most and qualified teacher of the institution whose appointment was approved by the Educational Authorities and who was being made admissible to the payment of salary from the State Exchequer.
7. In para 16 of the writ petition, it has been further asserted that on 15.06.2018 the District Inspector of Schools, Rampur directed the sixth respondent to hand over the charge of the Officiating Principal to the senior most and qualified teacher and in pursuance thereof a resolution was passed on 28.06.2018 by the fifth respondent institution for handing over the charge of Officiating Principal to the writ petitioner and by virtue of the order dated 12.07.2018, the fifth respondent institution directed the writ petitioner to discharge the duties of Officiating Principal and the signatures of the writ petitioner is stated to have been attested by the fourth respondent, District Inspector of Schools, Rampur on 17.07.2018 and the writ petitioner was accorded joining on 18.07.2018 on the post of Officiating Principal. As per the writ petitioner, the sixth respondent did not possess the necessary qualification of post graduation at the time of the occurrence of vacancy on 01.04.2017 pursuant to the retirement of one Sri Ved Prakash Gangwar as the Principal of the institution in question and on obtaining the post graduation from Indira Gandhi National Open University in the year 2022, the sixth respondent started its exercise for being granted posting as Officiating Principal while dislodging the writ petitioner. The representation submitted by the sixth respondent was forwarded by the institution in question to the District Inspector of Schools, Rampur and thereafter the fourth respondent, District Inspector of Schools, Rampur on 27.01.2023 informed the fifth respondent institution that the petitioner at the time of the occurrence of the vacancy of the Principal was the only qualified and eligible candidate, thus, dislodging the writ petitioner would be detrimental.
8. Being aggrieved against the letter dated 27.01.2023, the sixth respondent filed representation before the Joint Director of Education, XII Region, Moradabad on 24.04.2023. Pursuant thereto, the second respondent undertook the proceedings while putting the writ petitioner, the fifth and the sixth respondent to notice and after submission of their version now the order impugned dated 11.07.2023 has been passed by the second respondent, Joint Director of Education, XII Region, Moradabad whereby the sixth respondent has been assigned seniority over and above the writ petitioner.
9. Questioning the order dated 11.07.2023 passed by the second respondent, Joint Director of Education, XII Region, Moradabad the writ petitioner has filed the present writ petitioner with a further relief that the respondent authorities may not interfere in the working of the writ petitioner on the post of Officiating Principal in Janta Higher Secondary School Rampura Bujurg, Bilaspur, Rampur.
10. This Court entertained the writ petitioner on 28.07.2023 and passed the following order.-
"Sri Nikhil Kumar, learned counsel for the petitioner submits that the order dated 11.7.2023 passed by the Regional Level Committee proceeds on misconception of facts and law particularly when according to the writ petitioner he was issued an appointment order on the post of Assistant Teacher on 1.10.2015 and he assumed the charge on 3.10.2015 and according to him in case of sixth respondent he was issued appointment order on 1.10.2015 however he is stated to be assumed charge on 2.10.2015 approval whereof was granted in the case the writ petitioner on 18.9.2015 and the respondent no.6 on 14.9.2015, as per the writ petitioner there has been manipulation done while according to joining to the sixth respondent on 2nd October, 2015 which was an holiday on account of Gandhi Jayanti wherein the educational activity was not being conducted.
Learned counsel for the petitioner has invited the attention of the court towards appendix-A to the Regulation-I of Chapter 2 being a table wherein minimum qualifications and experience has been provided according to which head of the institution must possess M.Com./M.Sc. (Agriculture) or equivalent post graduate degree along with four year experience, however so far as the sixth respondent is concerned he obtained post graduation in the year 2022, prior to which the petitioner is Officiating Principal since July, 2018 and even in fact while filing an appeal before the educational authorities seniority list which is in existence for long time is being sought to be disturbed in order to accord joining to the sixth respondent as Officiating Principal. He seeks to rely upon Regulation 3 (1)(b) of the Chapter II of the 1921 Act.
Sri Basnhi Dhar Mishra, who appears for the sixth respondent on the other hand submits that 2nd October, 2015 was not a holiday day in entirety as only teaching activity was not being done, however the office work was being done and he has been rightly accorded joining on 2nd October, 2022. He further submits for approval of the appointment, sixth respondent is prior to the petitioner and an appeal was preferred for correction of the incorrect seniority list and when the writ petitioner obtained the necessary qualification he staked his claim for Officiating Principal. He further submits that prior to 2018 also the sixth respondent was Officiating Principal.
Matter requires consideration.
Sri Shailendra Singh, learned Standing Counsel for respondent no. 1 to 4 as well as Sri Banshi Dhar Mishra learned counsel appears for the respondent no.6.
Issue notice to the respondent no.5.
Steps to be taken by both ways by 3rd August, 2023.
Affidavit of service shall be filed before the next date fixed.
All the respondents may file their response within two weeks. Three days time is allowed to the petitioner for filing rejoinder affidavit.
Put up this case on 17th August, 2023 as fresh.
Status quo as on date shall continue till the next date of listing."
11. Since the respondents No. 1 to 4 were represented by the learned Standing Counsel and respondent No. 6 was represented by Sri Banshi Dhar Mishra, thus, this Court issued notice to the fifth respondent. Pursuant to the service of the notice Sri Saurabh Yadav has put in appearance on behalf of the fifth respondent. An affidavit of compliance has also been filed by the writ petitioner which is taken on record. Sri Banshi Dhar Mishra, learned counsel who appears for the sixth respondent has also filed his counter affidavit which is available on record to which a rejoinder affidavit has been filed.
12. A statement has been made by Sri Nikhil Kumar that he does not propose to file any reply to the counter affidavit filed on behalf of the fifth respondent. So far as learned Standing Counsel is concerned Sri Saurabh has made a statement at bar that he has received instructions and they have self sufficient for disposal of the case particularly in view of the order which is being proposed to be passed.
13. Sri Nikhil Kumar, learned counsel for the writ petitioner has sought to argue that the order dated 11.07.2023 passed by the second respondent, Joint Director of Education, XII Region Moradabad is wholly unsustainable in the eyes of law particularly in view of the fact that the same completely omits and overlooks the statutory provisions governing the field, in particular, the provisions contained under Chapter II Regulation 3(1) of the U.P. Intermediate Education Act, 1921, he submits that no doubt the writ petitioner and the sixth respondent were appointed as Assistant Teacher in the institution in question and their appointment orders are dated 01.10.2015 and the approval so accorded by the Educational Authorities in favour of the sixth respondent is 14.09.2015 as whereas, in case of the writ petitioner it is 18.09.2015 but the same was with relation to the fact that in the case of the writ petitioner certain correspondences were being sought to be made seeking inputs and clarifications that too at the level of the selecting body to which the writ petitioner had no role to play and ultimately the appointment orders were issued on a one fine day i.e. 01.10.2015 with respect to the writ petitioner and the sixth respondent, he further submits that the grant of the approval that too with regard to the writ petitioner and sixth respondent on a different date would be totally immaterial, once the appointment order has been issued on a particular day i.e. 01.10.2015 requiring the writ petitioner and the sixth respondent to join the post in question within a period of 7 days and, thus, merely because the sixth respondent joined the post on the next date i.e. 02.10.2015 and the writ petitioner on 03.10.2015 could also not be relevant as both, the writ petitioner and the sixth respondent had joined within the time stipulated therein.
14. The submission is date of joining is as uncertain glory which depends upon the stationing of the respective teacher at a particular place and subject to the receiving of the appointment order or the communication with regard to the date before which the joining is to be accorded. He, thus, submits that since the date of birth of the writ petitioner is 08.07.1995 and sixth respondent is 14.03.1989, thus, sub-clause (b) of Regulation 3(1) of Chapter II of 1921 Act which came to the rescue of the writ petitioner. Sri Nikhil Kumar, learned counsel for the writ petitioner further submits that the date of joining of the sixth respondent is also under cloud as 2nd of October, 2015 was an holiday on account of Gandhi Jayanti wherein no teaching work was being done and, thus, there was no occasion to have accorded joining to the sixth respondent in that regard. In addition, it has been further sought to be argued that as per the Appendix 'A' to the Regulation 1 of Chapter II, the sixth respondent was not eligible and qualified for being accorded officiation as he did not possess the post graduation degree to his credit on the date of occurrence of the vacancies i.e. 01.04.2017 on the premise that Sri Ved Prakash Gangwar superannuated on 31.03.2017 as he obtained the post graduation degree in the year 2022, thus, even otherwise he was neither eligible nor qualified.
15. The submission of the learned counsel for the writ petitioner is that the order impugned only relates to the issue with regard to seniority that too on a wrong footing that seniority is to be determined from the date of the joining and further the issue with regard to the eligibility of the sixth respondent has not been touched, thus, according to him the order impugned is set aside, matter be remitted back.
16. Sri Banshi Dhar Mishra, learned counsel who appears for the sixth respondent, on the other hand, while countering the submission of the learned counsel for the writ petitioner submits that the date of joining is a valid criteria for being accorded seniority and there is one additional factor which is available to the sixth respondent that the approval was granted on 14.09.2015 and with respect to the writ petitioner on 18.09.2015. He further submits that might on 2nd October, 2015 was a holiday but it was not a holiday in totality as only teaching work was not done but so far as other works are concerned which obviously comprises administrative work the institution was open and it was the sixth respondent who wanted to join on an auspicious day and that is why he tendered his joining on 2nd of October, 2015. He further submits that in view of the language employed in Regulation 3 of Chapter II of the U.P. Intermediate Education Act, 1921, he is treated to be senior to the writ petitioner. Sri Mishra has also invited the attention of the Court towards page 32 of the counter affidavit filed by him which according to him is a seniority list wherein just below the name of Ved Prakash Gangwar the name of the sixth respondent finds place and thereafter the name of the writ petitioner, thus, it is being sought to be argued that the seniority has already been determined and it will be too late of the day to disturb the same. Sri Mishra has also relied upon a decision in the case of Smt. Ram Kumari Vs. State of U.P. Writ A No.12247 of 2019 so as to buttress his submission in that regard.
17. Sri Saurabh, learned Standing Counsel, on the other hand, has adopted the argument of the learned counsel for the sixth respondent and according to him the seniority has been rightly determined and it needs no interference in the present proceedings in that regard. Sri Saurabh Yadav, learned counsel who appears for the fifth respondent institution has supported the case of the writ petitioner he submits that he has nothing to add.
18. Before proceeding to decide the controversy in question it would be apposite to extract the provisions contained under Regulation 3 of Chapter II of the U.P. Intermediate Education Act.-
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;
(b) ........
(c) ........
16. I have heard the learned counsel for the parties and perused the record.
19. Undisputedly, the fifth respondent institution is recognized upto High School and received grant-in-aid upto Junior High School and the provisions of U.P. Intermediate Education Act, 1921 and the Payment of Salary Act, 1971 stands applicable. It is not in dispute that the writ petitioner and the sixth respondent were selected as Assistant Teachers in the respective disciplines. It is further not in dispute that approval to the appointment of the writ petitioner was made on 18.09.2015 as whereas the sixth respondent on 14.09.2015 but appointment orders were issued in favour of the writ petitioner and the sixth respondent on 01.10.2015 requiring them to join the institution in question within a period of 7 days which is till 08.10.2015. Records reveal that the writ petitioner joined the post in question 03.10.2015 as whereas the sixth respondent on 02.10.2015. Now a question arises as to whether what would be crucial date and a factor for determining the seniority.
20. Regulation 3(1)(b) of Chapter II of 1921 Act itself provides that the seniority of a teacher in a grade shall be determined on the basis of their substantive appointment in that grade and in case two or more teachers are appointed on the same date seniority shall be determined on the basis of the age. The determining factor would be the date of substantive appointment. Obviously, an appointment order is to be issued by the Management of the Committee of Management after seeking approval. Here, in the present case though the dates of the approval are different with regard to the writ petitioner and the sixth respondent but the appointment order had been issued from 01.10.2015 with respect to the writ petitioner and the sixth respondent. There is no concept of date of joining stipulated in the regulations itself. However, the question of grant of seniority from the date of joining only arises in a contingency when the respective teacher or an employee does not join within the time stipulated in the appointment order and for whatever reasons it might be, delay in joining by a Teacher obviously looses his seniority in that regard. The said contingency does not arise in the present case particularly when the joining time was 7 days and before the lapse of the joining time the writ petitioner and the sixth respondent joined the post in question might one on 3nd October, 2015 and on 2rd of October, 2015. However, the same will be totally irrelevant in the present case in view of the language employed in the regulations as well as the facts and the circumstances of the present case. The second respondent, Joint Director of Education XII Region Moradabad has completely overlooked the said crucial aspect and was swayed away with the factor of joining which is not applicable in the present facts and circumstances of the case and, thus, the order impugned on which count is liable to be set aside.
21. Apart from the same so far as the stand taken by the sixth respondent while relying upon page 32 of the counter affidavit alleged to be a seniority list is concerned, prima facie, the same from a close look does not appear to be a seniority list as it only gives the description of the teachers and the details in that regard. However, the core and the fundamental issues underlying the seniority is to be determined by the second respondent at his own level.
22. Much emphasis has been laid upon the qualification of the sixth respondent with relation to the fact that the writ petitioner was not post graduate when the permanent vacancy arose consequent to the superannuation of Sri Ved Prakash Gangwar. However, from the order impugned it appears that the said ground was raised by the petitioner but the discussion part lacks deliberation over the same and less to say about returning any finding in that regard.
23. At this juncture, the learned counsel for the parties have made a statement that since the order impugned is not happily worded and does not address to all the crucial core and fundamental issues, thus, this Court may not undertake the task of deciding the matter in writ jurisdiction but remit the matter back to the second respondent to decide the matter afresh after giving full opportunity of hearing to the parties concerned in that regard.
24. Sri Banshi Dhar Mishra as well as learned Standing Counsel has argued that even in fact the writ petitioner and the sixth respondent do not possess four years' of experience and, thus, the issue of doctrine of necessity has to be also decided by the parties in question.
25. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being decided on the following terms; (a) the order dated 11.07.2023 passed by the second respondent, Joint Director of Education XII Region, Moradabad is set aside; (b) the matter stands remitted back to the second respondent to decide the inter-se seniority and eligibility of the writ petitioner and the sixth respondent; (c) the second respondent shall also determine the eligibility and the suitability of the writ petitioner and sixth respondent for officiation on the post of Principal in the institution in question; (d) the second respondent shall fix a specific date in the third week of September, 2023 for hearing; (e) the orders be passed within a further period of three weeks therefrom.
26. With the aforesaid observations, the writ petition stands partly allowed. Needless to point out that it shall be open to the parties to take all legal and factual ground before the second respondent.
Order Date :- 17.8.2023/Rajesh