Allahabad High Court
Triloki Nath Dixit Son Of Sri Ganesh ... vs State Of Uttar Pradesh Through Its ... on 4 October, 2007
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri K.K. Mani for the petitioner and Sri Rahul Shripat, learner Counsel appearing for the respondent No. 5.
2. By this writ petition, the petitioner has prayed for quashing the order dated 4.8.2006, passed by the District Inspector of Schools attesting the signature of respondent No. 5 as officiating Principal of the institution and the order dated 13.10.2006, passed by the Join, Director of Education declaring the respondent No. 5 senior to the petitioner and approving the decision of the District Inspector of Schools recognising the respondent No. 5 as ad-hoc Principal.
3. Brief facts necessary for deciding the writ petition are that the post of Principal of the institution fell vacant on 30.6.2006 due to retirement of earlier incumbent. The Committee of Management passed a resolution dated 28.5.2006 recommending the respondent No. 5 to be appointed as officiating Principal. The District Inspector of Schools vide order dated 4.8.2006 attested the signature of respondent No. 5 as officiating Principal. The petitioner aggrieved by the order dated 4.8.2006 filed writ petition No. 36426 of 2006, which was disposed of vide order dated 13.7.2006 permitting the petitioner to approach the Joint Director of Education, who was required to pass a reasoned and speaking order. This Court also observed that facts indicate that authority concerned was required to decide the seniority dispute between the petitioner and Chandra Shekhar Pandey.
4. In pursuance of the order of this Court, the Joint Director of Education issued notice to the petitioner and respondent No. 5 as well as to the Committee of Management. The petitioner, respondent No. 5 and Committee of Management filed their representations, and were also heard by the Joint Director of Education. The Joint Director of Education by the impugned order dated 13.10.2006 declared respondent No. 5 senior to the petitioner and approved the appointment of respondent No. 5 as ad-hoc Principal.
5. The dispute between the parties relates to inter-se seniority which is an important factor for appointment as officiating Principal/ad-hoc principal under Section 18 of the U.P. Secondary Education Service Selection Board Act, 1982. The Joint Director of Education by the impugned order held that since both; the petitioner and respondent No. 5 were absorbed as L.T. Grade teacher by order dated 22.7.1979, passed by the District Inspector of Schools and the respondent No. 5 being senior in age having been born on 1.1.1948 to the petitioner, who was born on 15.6.1951, the respondent No. 5 is declared senior in accordance with Regulation 3(i)(b) of Chapter II of Regulations framed under the U.P. Intermediate Education Act, 1921. The petitioner's case in the writ petition is that the petitioner was appointed on 1.7.1970 as a C.T. grade teacher in the institution, when it was only a Junior High School whereas the respondent No. 5 was appointed in the Junior High School on 1.7.1974. The institution was upgraded at High school on 30.4.1978 and thereafter three post of L.T. Grade teachers were created by order dated 31.1.1979, the Committee of Management recommended three teachers i.e. the petitioner, respondent No. 5 and one Hare Krishna Misra to be approved as L.T. Grade teacher in which resolution, the name of the petitioner was at serial No. 1. Hence, the petitioner, by virtue of his name being at serial No. 1 as well as he having longer period in C.T. grade is entitled to be declared as senior.
6. The case of respondent No. 5 is that both the petitioner and respondent No. 5 were substantively appointed in L.T. grade on 22.7.1979 the respondent No. 5 being senior in age has rightly been declared senior in accordance with the provisions of Regulation 3(1)(b) of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921. The case of respondent No. 5 is further hat the petitioner had passed B.Ed, only in 1977 whereas the respondent No. 5 passed the B.Ed., in 1975. The petitioner cannot be treated to be substantively appointed in C.T. grade prior to 1977. Hence it was respondent No. 5 who was substantively appointed teacher in CT. grade since, 1975.
7. Sri Ashok Khare, learned Senior Advocate appearing for the petitioner submitted that the seniority of the petitioner and respondent No. 5 have to be determined in accordance with Regulation 3(1)(bb) of Chapter II of U.P. Intermediate Education Act, 1921 and the petitioner having longer length of service in C.T. grade has to be declare J senior to respondent No. 5. The services rendered in junior High School in C.T. grade, which has been upgraded in High School cannot be ignored for the purposes of determining the seniority and even if it is assumed that Regulation 3(1)(bb) does not strictly apply on the principle of longer service period, the petitioner has to be declared as Senior. Learned Counsel for the petitioner placed reliance on judgment of this Court in the cases of Committee of Management, Field Marshall General Manik Show Uchchatter Madhyamic Vidyalaya v. Director of Education, U.P. Allahabad and Ors. reported in (1994)1 UPLBEC 166, Ram Swaroop Kainthoia v. Director of Education (Secondary), U.P. Allahabad and Ors. reported in ALR 1988 (33) 450, Panchami Singh v. Junior Director of Education Gorakhpur and Ors. reported in 2003(3) AWC 2227, Chhotey Lal Arya v. State of U.P. through Secretary (Madhyamik) and Ors. reported in 2005(61) ALR 543.
8. Sri Rahul Shripat, learned Counsel for the respondent No. 5 refuting the submission of learned Counsel for the petitioner supported the order of the Joint Director of Education. He contends that both the petitioner and respondent No. 5 having been substantively appointed in the L.T. grade in the institution on the same date, the seniority has to be determined on the basis of age and respondent No. 5 being senior in age has rightly been declared senior to the petitioner.
9. I have considered the submissions and perused the record.
10. The issue which has arisen in the writ petition for consideration is as to whether in the facts of the present case, the inter se seniority is to be determined by principles laid down under Regulation 3(1)(b) or Regulation 3(1)(bb) of Chapter II of U.P. Intermediate Education Act, 1921. It is relevant to look into the Regulations 3 of Chapter II which lays down the provisions for determination of seniority. Regulation 3 of Chapter II is as follows:
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 he 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) Where 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 higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service;
(d) If a teacher who is placed under suspension is reinstated on his original post, his original seniority in the grade shall not be affected;
(e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision;
(f) Any teacher aggrieved by the decision of the Management Committee under Sub-clause (e) within 15 days of the date of information of such decision to the teacher, may appeal to concerned Regions: Deputy Director and on appeal after giving an opportunity of hearing to the concerned parties. Deputy Director will give his decision with reasons which will be final and executed by the Management Committee.
(g) Where two or more teachers working in the same grade are promoted on the same date, their inter se seniority shall be the length of service in that grade in which they were working, but, if the length of service is equal, then in the event of promotion seniority shall, be determined on the basis of the age.
11. Regulation 3(1)(b) provides that seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. Further if two or more teachers have been appointed on the same date, the seniority shall be determined on the basis of age. The provisions of Regulation 3(1)(bb) was added by notification dated 10.9.1976 which is an exception to Rule of determination of seniority as provided in Regulation 3(1)(b). The exception is that if two or more teachers working in a grade are promoted to next higher grade their seniority inter se shall be determined on the basis of length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted. Thus Regulation 3(1)(bb) becomes applicable only when two or more teachers are promoted on the same day in the next higher grade. The applicability of the above principle pre-supposes promotion.
12. The submission of learned Counsel for the petitioner is that in the facts of the present case, since the petitioner and respondent No. 5 were absorbed in newly created post of L.T. Grade in the institution, the said exercise is nothing but a promotion from C.T. grade to L.T. grade. As noted above, the petitioner was appointed in Junior High School on 1.7.1970 and respondent No. 5 was appointed on 1.7.1974. The institution was upgraded on 30.4.1978 and vide order dated 1.1.1979, three posts of L.T. grade were created on which petitioner and respondent No. 5 were absorbed vide order dated 22.7.1979 assed by the District Inspector of Schools. The word 'promoted' which has been used in Regulation 3(1)(bb) obviously refers to promotion as contemplated under the provisions of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder. Regulations 5 and 6 of Chapter II contain the provision for promotion. Regulation 5 end 6(1) relevant for the present case are quoted herein below:
5. (1) Every vacancy in the post of teacher in a recognised institution shall, except as otherwise provided in Clause (2), be filled by direct recruitment.
(2)(a) Fifty per cent of the total number of the sanctioned posts in lecturer's grade or in the L.T. grade snail only be filled by promotion from amongst the teachers working in the institution in the L.T. and the C.T. grades respectively and promotions shall be made subject to availability and eligibility of such teachers for promotion.
(b) If more than fifty per cent of the total number of the sanctioned posts in the lecturer's grade or as the case may be, in the L.T. grade have already been filled by promotion, the persons already promoted shall not be reverted.
(c) In computing fifty per cent of the post under Clause (a) fraction of less than one half shall be ignored while fraction of one-half or more shall be reckoned as one.
Explanation.- (1) The expression "sanctioned post" means any post not being a post created temporarily for a specified period, which is created by an order of the authority competent to create such post and includes a post on which appointment has been made with the approval of the Inspector.
(2) The post held by a teacher who, while working in an institution in a lower grade was appointed to a higher grade in that institution through direct recruitment shall not be deemed to have been filled by promotion.
(3) For purposes of this regulation, teachers duly appointed in any manner prior to the coming into force of the Intermediate Education (Amendment) Act, 1958 (U.P. Act No. XXXV of 1958) shall be deemed to ha/e been appointed through direct recruitment.
6.(1) Where any vacancy in the lecturer's grade or in the L.T. grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. grade, as the case may be, having a minimum of five years' continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer's grace or in the L.T. grade is required.
Note.- For purposes of this clause, service rendered by a teacher in the L.T. or the C.T. grade in any other recognised institution shall count for eligibility, unless interrupted by removal dismissal or reduction to a lower post.
13. Regulation 5(1) provides that the post of teachers in a recognised institution shall be filled by direct recruitment except as provided in Sub-regulation (2). Regulation 5(2) provides that 40% of the pests of L.T. grade shall be filled up by promotion on the basis of availability and eligibility of teachers. Regulation 6(1) provides that for promotion in L.T. grade, all the teachers having a minimum of five years of continuous service to their credit on the date of occurrence of vacancy shall be considered for promotion. The note of Regulation 6(1) lakes the services rendered by a teacher in C.T. grade in any other recognised institution shall be countable for eligibility. The services rendered only in a recognised institution has been made countable. The words "Institution" and "Recognition" have been defined in Section 2(b) and 2(d) respectively which are as follows:
2(b) "Institution" means a recognised Intermediate College, Higher Secondary School or High School, and induces, where the context so requires, a part of an institution, and "Head of Institution" means the Principal or Head Master, as the case may be, of such institution;
2(d) "Recognition" means recognition for the purpose of preparing candidates for admission to the Board's Examinations;
14. From the above provisions two relevant aspects are to be noted; firstly promotion is confined to only 40% of the sanctioned posts and secondly minimum five years service in C.T. grade (in a recognised institution) have to be fulfilled. By order dated 31.1.1979, only three posts of L.T. grade were sanctioned, 40% of which shall be only one post and secondly even the experience of C.T. grade in the Junior High School from which institution was upgraded as High School be taken into consideration on the date when the vacancy was created. The respondent No. 5 had not completed minimum five years. Further both the petitioner and the respondent No. 5 were appointed as untrained teacher in C.T. grade, both having obtains: training qualifications subsequently i.e. in the year 1977 by the petitioner and in the year 1975 by the respondent No. 5. Thus, it is clear from the aforesaid that absorption of three teachers on 22.7.1979 in L.T. grade, cannot be accepted by way of promotion since absorption of three teachers of L.T. grade posts cannot be held to be in accordance with Regulations 5 and 6 of Chapter II and even if it is accepted that the petitioner was eligible for promotion, the respondent No. 5 could not be promoted on the second post since 40% promotion quota confines only to one post out of three posts. Thus, according to Chapter II promotion of respondent No. 5 being not permissible, there is no basis for accepting the absorption dated 22.7.1979 as promotion from C.T. grade to L.T. grade. Thus, the submission of the Learned Counsel for the petitioner that absorption of both petitioner and respondent No. 5 on 22.7.1979 should be treated as promotion so as to make Regulation 3(1)(bb) applicable for determining the seniority, cannot be accepted.
15. Regulation 5(1) provides filling up of the post by direct recruitment except those provided under Sub-regulation (2). The post filled in the institution except the post which are filled by promotion has to be treated under the direct recruitment quota. Regulation 5(2) which was existing at the relevant time is as follows:
5. (1) Every vacancy in the post of teacher in a recognised institution shall, except as otherwise provided in Clause (2), be filled by direct recruitment.
(2)(a) Forty per cent of the total number of the sanctioned posts in lecturer's grade or in the L.T. grade shall be reserved for promotion from amongst the teachers working in the institution in the L.T. and the C.T. grades respectively and promotions shall be made subject to availability and eligibility of such teachers for promotion.
(b) If more than forty per cent of the total number of the sanctioned posts in the lecturer's grade or as the cast may be, m the L.T. grade have already been filled by promotion, :he persons already promoted shall' not be reverted.
(c) In computing forty per cent of the post under Clause (a) fraction of less than one half shall be ignored while fraction of one-half or more shall be reckoned as one.
Explanation.- (i) The expression "sanctioned post" means any post not being a post created temporarily for a specified period, which is created by an order of the authority competent to create such post and includes a post on which appointment has been made with the approval of the Inspector.
(ii) The post held by a teacher who, while working in an institution in a lower grade might have been appointed to a higher grade in that institution through direct recruitment shall not be deemed to have been filled by promotion.
16. The above regulation also indicate that the post filed up by a person working in the lower grade cannot be treated as promotion and the present is case where post of L.T. grade was filed up from amongst petitioner and respondent No. 5 who were working the the lower grade. Regulation 5(2) thus, also clearly indicate that filling up post of L.T. grade by the petitioner and the respondent No. 5 cannot be treated to be a promotion.
17. The judgments relied upon by Learned Counsel for {re petitioner in support of his submissions need to be considered.
18. The first case relied by the petitioner Committee of Management, Field Marshall General Manik Show Uchchatter Madhyamic Vidyalaya v. Director of Education, U.P. Allahabad and Ors. (supra). In the said case, this Court held that although the C.T. Grade has been declared as dying cadre but those teachers who are already working in C.T. Grade were not to be thrown out or their services be dispensers when the institution is upgraded from Junior High School to High School. The Court issued a mandamus for payment of salary to those teachers who were working in C.T. Grade prior to upgradation. The issue which has arisen in the present case, were neither involved nor considered in the said case and the said case has no application in the acts of the present case. The second judgment relied on by Learned Counsel for the petitioner in the case of Ram Swaroop Kainthola v. Director of Education (Secondary), U.P. Allahabad and Ors. (supa) in which dispute of seniority arose between two teachers. Both were working in the Junior High School. After upgradation, three posts of L.T. Grade teachers were created on 9.7.1989. The respondent in that case was promoted on 26.4.1990 on one of the vacancies. The petitioner of that case was granted L.T. Grade after completion of ten years' service in C.T. Grade on 9.1.1995. The respondent No. 4 was regularised as L.T. Grade w.e.f. 23.4.1994. In the said case, the petitioner was given L.T. Grade by virtue of completion of ten years' service in C.T. Grade. In the aforesaid background, the respondent No. 4 was held senior. In paragraph 9 of the above judgment, following was laid down
9. Admittedly, three posts were created by the Director of Education after upgradation of the institution to High School level. Respondent No. 4 was admittedly senior to petitioner in C.T. Grade and otherwise entitled to be promoted to the pest of L.T. Grade teacher in those vacancies prior to the petitioner. One Yudhbir Singh Rawat, who was senior to the petitioner was also promoted to L.T. Grade teacher. The petitioner has not been appointed to the post of L.T. Grade teacher on the basis of the vacancy to that post but he has been given L.T. grade on account of the fact that he had completed ten years service as C.T. grade and in view of the Government Order those teachers who had completed ten years of teaching work in C.T. Grade were given L.T. grade. The petitioner, in these circumstances, cannot be said to be senior to respondent No. 4. The order passed by respondent No. 1 does not suffer from any manifest illegality.
19. The above case also do not support the petitioner's contention. In the case of Panchami Singh v. Junior Director of Education Gorakhpur and Ors. (supra) both the petitioner and contesting respondent were promoted on 7.9.1993 as L.T. Grade teachers. The seniority of both of them were to be determined by Regulation 3(bb). The date of appointment of respondent in that case was 9.11.1972 (untrained) and substantive appointment w.e.f. 1.7.1975, whereas the date of substantive appointment of the petitioner was found at 1.8.1977 hence, the Joint Director of Education declared the respondent senior to the petitioner. The writ petition was dismissed and the said determination was upheld. Following observations were made in paragraphs 5 and 6 of the said judgment:
In view of this position, the appointment of the petitioner as C.T. Grade teacher would be treated to have been made after acquired the B. Ed. Qualification on 1.8.1977 where a, the third respondents' appointment would be taken as valid from the date he acquired the B.T.C. Certificate, namely, from the date 1975. In view of these facts, the Joint Director of Education committed no error in coming to the conclusion that the third respondent is senior to the petitioner.
I have already held that the appointment of the third respondent became regular with effect from the date he acquired the training qualification in 1975 and as such, the proposition laid own in the case cited by the counsel for the petitioner do not affect the case of the third respondent to have his seniority reckoned from the date he acquired the training qualifications and on this basis too the third respondent is senior.
20. From the above observation of this Court, it is clear that applying the principle as laid down in the above judgment, the respondent has to be declared senior since the petitioner acquired B.Ed., qualification in the year 1977, whereas the respondent No. 5 had acquired the said qualification in 1975. The above judgment thus, does not help the petitioner in any manner rather support the case of the respondent No. 5.
21. The last judgment relied by Learned Counsel for the petitioner in the case of Chhote Lal (supra), the seniority between the petitioner and respondent in that case was on the basis that the petitioner was appointed on ad-hoc basis in L.T. Grade on 15 2.1982, whereas the contesting respondent was appointed in L.T. Grade directly on 13.3.1986. The petitioner was treated to be substantively appointed Lecturer w.e.f. 6.4.1991 by virtue of provisions of Section 331A of U.P. Act No. 5 of 1982. This Court held that regularisation of the petitioner as L.T. Grade teacher shall relate back to as ad-hoc appointment by virtue of which the petitioner was declared senior. Following was laid down in paragraph 16 of the aforesaid judgment.
16. In the present case the petitioner was given L.T. Grade on a substantive post by an order of the District Inspector of Schools who was the competent authority on 15.2.1982, in pursuance the appointment under the First Removal of Difficulties Order, 1981. He will thus be entitled to substantive appointment in L.T. Grade w.e.f. 15.2.1982, as it was made by the competent authority, under the then existing law (when the U.P. Secondary education Service Commission was not established), and was net to be of a temporary or stop gap arrangement. He was qualified, eligible and was validly given L.T. Grade after the school was upgraded. Such an upgradation even if recognised by the Amendment Act of 1991 to be substantive from the date of enforcement of the Amendment Act of 1991, will relate back to the date v/hen it became effective. Further, I find that the petitioner was a along treated as senior, and that long standing seniority with legitimate expectations cannot be disturbed by hyper technical objections, by those who admittedly entered the institution, much after the petitioner was given and was drawing L.T. Grade.
22. The above case was on its own facts and on the proposition that subsequent regularisation will relate back the petitioner of that case was declared senior. No such issue arises in the present case nor the proposition laid down in the above Judgment can help the petitioner in this case. The above case is also clearly distinguishable and has no application in the facts of the present case.
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.