Allahabad High Court
Smt. Malti Srivastava vs State Of U.P. & Others on 7 December, 2018
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 27.11.2011 Delivered on 07.12.2018 Court No. - 4 Case :- WRIT - A No. - 67384 of 2011 Petitioner :- Smt. Malti Srivastava Respondent :- State Of U.P. & Others Counsel for Petitioner :- Dr. H.N. Tripathi Counsel for Respondent :- C.S.C.,S.K. Singh,S.K. Singh Vashistha Hon'ble Ajit Kumar,J.
1. Heard Dr. H.N. Tripathi, learned counsel appearing for the petitioner and Sri G.K. Singh, learned Senior Counsel assisted by Sri S.K. Singh Vashistha, Advocate for the contesting respondent No.6 and learned Standing Counsel for the State-respondents.
2. The present petition invoking the extraordinary jurisdiction under Article 226 of the Constitution of India is directed against the order passed by the Regional Committee, Bareilly Region, Bareilly dated 14th November, 2011 approving the promotion of the 6th respondent as Lecturer (Hindi) within 50 per cent quota reserved as per the Regulation 5 of Chapter II of the Intermediate Education Act, 1921 taking recourse to the procedure prescribed vide Regulation 14 of the U.P. Secondary Education Services Selection Board Regulations, 1998 (hereinafter referred to as ''Regulations, 1998').
3. Briefly stated the facts are that the petitioner was initially appointed in the institution in question on 15th July, 1980 as Assistant Teacher in L.T. Grade, whereas the respondent No.6 was appointed in the same category on 1st July, 1980. So, as per the records pertaining to the initial appointment, the 6th respondent got appointed prior in point of time and that appointment of the petitioner is subsequent to that of the petitioner.
4. The institution was brought on grant-in-aid in the year 1984 and the approval was also accorded to both the petitioners and 6th respondent as well.
5. The controversy arose when the post of Lecturer (Hindi) fell vacant in the institution and the question arose for making appointment within 50 per cent quota reserved for promotion from L.T. Grade. However, while awarding selection grade in L.T. Grade to the 6th respondent, the District Inspector of Schools vide order dated 14th February, 1995 held the 6th respondent to be entitled for the said Grade only w.e.f. 1994 computing her period only w.e.f. 1984 when the institution was brought on grant-in-aid. As the said order passed by the District Inspector of Schools dated 20th April, 2006 was not challenged any further, this encouraged the petitioner to raise the seniority issue insofar as inter se seniority between the petitioner and 6th respondent is concerned. The papers were forwarded to the District Inspector of Schools on 28th July, 2010 of all the three Assistant Teachers but the District Inspector of Schools returned the papers vide order dated 31st July, 2018 directing the Committee of Management/ Authorized Controller to provide the name of only one eligible and qualified candidate and resultantly, the Principal of the institution forwarded vide covering the letter dated 31st August, 2010 relating to only Smt. Kamla Kaushik-the 6th respondent recommend her to be promoted on the post of Lecturer (Hindi).
6. The papers were forwarded to the Joint Director of Education, Bareilly vide letter dated 15th November, 2010 by the District Inspector of Schools, however, in the meanwhile, the petitioner filed a writ petition being Civil Misc. Writ Petition No. 64241 of 2010 in which a direction was issued to the District Inspector of Schools to consider the claim of the petitioner also. The District Inspector of Schools in turn vide order dated 28th April, 2011 rejected the representation of the petitioner and forwarded the name of the 6th respondent to be considered by the Regional Committee. Against the aforesaid order the petitioner filed another writ petition being Writ Petition No. 26372 of 2011 wherein a direction was issued by this Court while disposing of the writ petition vide order dated 12th May, 2011, to the Regional Joint Director of Education to consider the question of inter se seniority between the petitioner and the 6th respondent. Before considering the question of approval of the candidature of Smt. Kamla Kaushik- the 6th respondent on the post of Lecturer (Hindi), the Regional Joint Director of Education decided the matter ultimately holding the 6th respondent to be senior to the petitioner in terms of the initial date of appointment on the post of Assistant Teacher L.T. Grade and directed the District Inspector Schools vide order dated 6th August, 2011 to place the papers of Smt. Kamla Kaushik-6th respondent before the Regional Committee for consideration of approval under Regulation 14 of Regulations, 1998.
7. This order of the Regional Joint Director of Education deciding inter se seniority and further rejecting the claim of the petitioner for being considered also along with 6th respondent who came to be challenged before this Court by the petitioner vide Writ Petition No. 50322 of 2011. The said writ petition of the petitioner was partly allowed in a sense that vide judgment and order dated 21st September, 2011, the Court directed that the writ petition is allowed to the "extent indicated as above". The operative portion of the order is reproduced hereinunder:-
"When it is admitted to the respondents that the service records of all the teachers were not placed, the decision to promote respondent no.6 cannot be sustained.
A direction, therefore, needs to be issued to the Joint Director of Education, Bareilly Region, Bareilly to place the records of all the teachers before the Selection Committee constituted under Section 12(1) of the Act so that the Selection Committee can take a decision regarding promotion on the post of Lecturer.
The impugned order dated 6th August, 2011 passed by the Joint Director of Education to the extent it directs that the records of only Kamla Kaushik to be placed before the Selection Committee is, accordingly, set aside. The decision taken by the Selection Committee/Joint Director of Education on 12th August, 2011 referred to in the communication dated 16th August, 2011 of the District Inspector of Schools as also the consequential order dated 16th August, 2011 passed by the District Inspector of Schools are set aside.
The writ petition is allowed to the extent indicated above."
8. In view of the above directions records of all the three senior most Assistant Teachers working in L.T. Grade in the institution were placed before the Regional Committee and the Regional Committee ultimately vide its decision dated 14th November, 2011 approved the promotion of 6th respondent on the basis of the seniority. The aforesaid order has been challenged by the petitioner on the following grounds:-
(A). Once the District Inspector of Schools had considered the services of the 6th respondent as Assistant Teacher in L.T. Grade only w.e.f. 1984 while according selection Grade and recording specific findings that there was no approval of the petitioner available between 1980 and 1984 and so there was no question of counting of earlier period for the purposes of selection grade, there was no occasion for the respondent-Regional Committee to have taken that period into account for according the approval for the purposes of purposes of promotion treating the 6th respondent to be senior; and (B) Once the issue has got settled by the District Inspector of Schools, the Regional Committee was not justified in ignoring the same all together.
9. In a nutshell, the argument is that the petitioner is senior as the 6th respondent could not have been appointed as Assistant Teacher in L.T. Grade for want of vacancy of Music Teacher in that Grade and, therefore, the petitioner is entitled to be held senior.
10. Per contra, the argument advanced by learned Senior Advocate is: (A) The seniority issue having come to be concluded under the order dated 6th August, 2011 of the Regional Joint Director of Education who is having appellate power to hear the seniority issue and the said order having not been quashed by this Court in its entirety and the writ petition filed by the petitioner against the aforesaid order having been allowed partly to the extent of directions issued therein, the issue of seniority cannot be reopened now;
(B). In case of consideration for promotion if seniority is to be taken up as an issue to be adjudicated upon, it is not open for the respondent to question the legality and validity of initial appointment of the 6th respondent, more particularly, when the petitioner is not setting up any claim of appointment on or against the vacancy occupied by the 6th respondent as Assistant Teacher in L.T. Grade; and (C). With the bringing of the institution on grant-in-aid taking 6th respondent to be in service and holding her entitled to selection grade also, will not render her appointment to be illegal and void and, therefore, it will not be open for the petitioner to raise finger on the entitlement and eligibility of the 6th respondent to be promoted as Lecturer (Hindi) on the ground of any illegality of the initial appointment and just for that to get her services dispensed with.
11. Having heard learned learned counsel for the parties and having examined the record and noting down the arguments raised across the Bar, I find that two points neatly emerge for consideration of this Court: Firstly, as to whether the order passed by the District Inspector of Schools dated 20th April, 2006 will come in the way of the seniority of the 6th respondent and whether it would give advantage to the petitioner to hold her senior and ultimately the position of the officiating Principal of the institution; and Secondly, as to whether the petitioner reserves any right to question the appointment of the 6th respondent even while her writ petition bearing Writ Petition No.- 50223 of 2011 wherein the order dated 6th August, 2011 was examined, was allowed only to the extent of consideration of the candidature of the petitioner for departmental promotion.
12. Coming to the first aspect of the matter, I see that though the order of the District Inspector of Schools dated 20th April, 2006 questioned the initial appointment of the petitioner and awarded selection grade considering the period of service of the petitioner from the date the institution was brought on grant-in-aid, the question of sanctioned post in a institution and absorption of the teachers working in such institution in the regular cadre strictly arises only at the time when the institution is being brought on grant-in-aid and, therefore, the period of service in the regular cadre of the 6th respondent if is considered from the said date for the purposes of computing the period of eligibility of the selection grade, the period or for that matter initial appointment of the 6th respondent does not ipso facto becomes null and void. The findings recorded by the District Inspector of Schools are based on lode of materials as not placed by the Committee of Management but this by itself do not give any right to the petitioner to question the appointment of the 6th respondent, more especially when she is not claiming any right of appointment against the vacancy on which the 6th respondent claimed to have been appointed and continued and subsequently, absorbed at the time of grant-in-aid. Moreover, continuance of the 6th respondent in the institution and never such issue being raised by the petitioner prior to the year 2010, will be taken as if he acquiesced to the status of the 6th respondent in the institution and, therefore, she as an individual and as a co-employee is estopped from questioning the appointment of her colleague that too a quite later stage when the question arose for promotion as Lecturer in the institution. The order passed by the District Inspector of Schools dated 20th April, 2006, in the considered opinion of the Court at the most can be taken as irregular appointment of the petitioner prior to 1984 thereafter when the institution was brought on grant-in-aid she was absorbed and her appointment was approved against the substantive vacancy. District Inspector of Schools was neither the authority to annul an appointment of teacher to be void nor, was sitting with an authority to decide the issue. A passing remark or opinion can not be an order on merits. If 6th respondent did not challenge the order of grant of selection form a later date, it does mean that she accepted the order as an order holding her appointment as void. Nor, this Court finds that such an order in law can be deemed to be an order worth calling an authoritative pronouncement on the validity of the appointment of the 6th respondent. Even the passing remarks were totally uncalled for. An authority that is not vested with a power to decide an issue any remarks by such authority can at the best be termed as tentative opinion, such authority as a matter of fact should either refer the matter to the competent authority to seek guidelines or if sure that any issue has no significance should refrain itself for making such remarks.
13. Learned counsel for the petitioner has argued that he having challenged the order dated 12th August, 2011 and the same having been set aside by this Court in Writ Petition No. 50223 of 2011 vide dated 21st September, 2011 and his candidature having been directed to be considered along with 6th respondent for promotion on the post of Lecturer (Hindi), the issue remained open and alive to be adjudicated in the event if his candidature is wrongly rejected holding him junior to the 6th respondent.
14. I have gone through the order dated 12th August, 2011 passed by the Regional Joint Director of Education wherein he accorded the seniority to the 6th respondent over and above the petitioner in compliance of the order of the High Court dated 27th October, 2010 and has noticed that the selection grade and the promotional grade were accorded to the petitioner and 6th respondent separately w.e.f. separate dates and has ultimately with operative portion held to the 6th respondent to be senior to the petitioner while rejecting her representation for consideration of her candidature for promotion. The operative portion of the order whereby 6th respondent has been held to be senior to the petitioner is reproduced hereunder:-
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15. It is against this order, the petitioner had filed Writ Petition No. 50223 of 2011 which came to be allowed but to certain extent as indicated in the order itself (supra). From the observations that have come to be made in the above noted writ petition, it is quite explicit that the Court has proceeded to pass the order in the light of Rule 14 of the The U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as Rules, 1998'). Rule 14 of the Rules, 1998 is reproduced hereunder:-
"14. Procedure for recruitment by promotion. - (1) Where any vacancy is to be filled by promotion, all teachers working in Trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers grade or the Trained graduates grade, as the case may be, without their having applied for the same.
(2) The criterion for promotion shall be seniority subject to the rejection of unfit.
(3) The Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the pro forma given in Appendix 'A'.
(4) Within three weeks of the receipt of the list from the Management under sub-rule (3), the Inspector shall verify the facts from die record of his office and forward the list to the Joint Director.
(5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in sub-section (1) of Section 12 and after the Committee's recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management.
(6) Within ten days of the receipt of the panel from the Joint Director under sub-rule (5), the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorisation under its resolution issue the appointment order in the pro forma given in Appendix 'F' to such candidate."
16. The plain reading of the aforesaid Rules, 1998 clearly indicate that on the date of occurrence of the vacancy who ever is eligible in the year of recruitment shall be considered for promotion provided he possesses requisite qualification for the Lecturer Grade without even applying for the same. Therefore, there is no doubt that the second part of the operative portion of the order passed by the Regional Joint Director of Education was doing violence to the Rule 14 of the Rules, 1998 and accordingly, to that extent the writ petition was allowed. The relevant portion of the judgment that contains above consideration is reproduced hereunder:-
"Rule 14 of the Rules provides that where any vacancy is to be filled up by promotion, all the teachers who posses the requisite qualification shall be considered for promotion to the Lecturers grade without their having applied for the same.
It is submitted by the learned Standing Counsel that the records of all the teachers who possessed the requisite qualification were not placed. In such circumstances, learned Standing Counsel and Sri S.K. Singh Vashishtha, learned counsel appearing for respondent no.6 have very fairly stated that the impugned orders may be set aside and the matter may be remitted with appropriate directions.
When it is admitted to the respondents that the service records of all the teachers were not placed, the decision to promote respondent no.6 cannot be sustained.
A direction, therefore, needs to be issued to the Joint Director of Education, Bareilly Region, Bareilly to place the records of all the teachers before the Selection Committee constituted under Section 12(1) of the Act so that the Selection Committee can take a decision regarding promotion on the post of Lecturer.
The impugned order dated 6th August, 2011 passed by the Joint Director of Education to the extent it directs that the records of only Kamla Kaushik to be placed before the Selection Committee is, accordingly, set aside. The decision taken by the Selection Committee/Joint Director of Education on 12th August, 2011 referred to in the communication dated 16th August, 2011 of the District Inspector of Schools as also the consequential order dated 16th August, 2011 passed by the District Inspector of Schools are set aside.
The writ petition is allowed to the extent indicated above."
17. In view of the above, therefore, the order passed in the Writ Petition No. 50223 of 2011 leaves no room of doubt that so far as the seniority aspect is concerned the matter stood concluded by the order of Regional Joint Director of Education dated 6th August, 2011 and the same shall be deemed to have been affirmed by this Court vide order dated 21st September, 2011 passed in the writ petition (supra).
18. Issue of seniority cannot be permitted to acquire enormity of a giant sea Whale to chew away the status of a colleague holding a substantive position to the extent of neutrality. The permanent status of an employee enjoying substantive position cannot be permitted to be whaled away like this by another colleague.
19. One must not forget that when he raises an issue of inter se seniority, he acknowledges the status of his colleague as a colleague with equal substantive status in employment. A place that one acquires as faculty member at par in a cadre with another is the only basis for determination of inter se seniority. If one is aggrieved by the illegal appointment of someone, he should either be employer himself or the authorities who are concerned with approval and payment of salary and for that adequate forum is provided as per the prescribed procedure. Otherwise, if one wants to be treated senior in a cadre from his colleague in the same cadre, he would raise objection to seniority only in terms of date of appointment and/ or approval, and there is forum and procedure prescribed under the Rules governing the field. So, no one gets leverage to question the validity of appointment of his colleague nor, do the rules provide for such procedure nor, forum of District Inspector of Schools. Even otherwise, one who does not dispute appointment of his colleague for decades together, as in the present case, cannot be permitted to raise such issue at the time of promotion.
20. Now coming to the authorities relied upon by the learned counsel for the respondents, I find that the judgment in the case of Mata Baran v. State of U.P. and others reported in 2012 (2) ADJ 189, cannot be applied to the facts of the present case. It is not a case of the petitioner that there was particular qualification required and that the 6th respondent did not possess that particular qualification. All that is argued is that the petitioner was appointed as Assistant Teacher in the Institution as Music Teacher though there was no sanctioned strength to that effect in the recognized institution at that stage. It is not a case of the petitioner that selection, approval and appointment of the 6th respondent at the time of the institution being brought on grant-in-aid, in any manner, was illegal.
21. Another judgment of the Apex Court in the case of Richal and others v. Rajasthan Public Service Commission and others reported in 2018 (8) SCC 81, is not also attracted and distinguishable on the facts. There is nothing like an issue involved in the present case that her selection and appointment was vitiated for wrongful awarding marks by the Selection Committee.
22. The judgment in the case of Manish Ujwal and others v. Maharishi Dayanand Saraswati University and others reported in 2005 (13) SCC 744 is also distinguishable on facts.
23. A co-ordinate Bench of this Court in the case of Vijai Narain Sharma v. District Inspector of Schools and others reported in 1985 LawSuit(All) 420 has held that in matters of the adjudication of seniority dispute on the question of right to promotion in preference to the other employees does not open for such person claiming seniority to challenge the validity of selection and appointment of another teacher. Vide paragraph Nos. 18 and 19, the Court took judicial notice of growing tendency amongst the teachers to question validity of appointment of colleague while issue of inter se seniority crops up to occupy the position of officiating principal and thus in paragraphs 25, 26, 27, 28 and 29, Court held that appointment of a teacher who has acquired substantive position, cannot be questioned while adjudicating inter se seniority. Paragraph Nos. 18, 19, 23, 24, 25, 26, 27 and 28 of the judgment are reproduced as under:-
"18. Judicial notice can be taken of the fact that in this State, in every College, there are series of litigation amongst the teachers challenging the seniority list prepared by the various colleges. The question of seniority has assumed great importance because of the provisions in the Act and the Regulations framed thereunder governing these colleges. It has been Laid down that; the senior-most teacher in the college shall officiate as Principal of the college in the absence of the Principal. As a result of these litigations inter se, fighting and groupism amongst the teachers has taken the upper hand which has completely shattered the discipline in the college. It has come to my notice that in cases relating to seniority, it has almost become a practice to challenge the appointments and promotion of all the teachers creating a state of uncertainty and making a sword of democles hang on every teacher. This creates great dissatisfaction and aggressive teachers take an upper hand. This also results in the lack of proper teaching because most of the time the teachers are involved in maintaining the validity of their appointments and promotion rather than concentrating on the teaching which is their primary duty.
19. It has been often found that appointments and promotion are challenged after more than one or two decades. The position of the records is that neither the Managing Committees maintain proper records in a regular manner nor the records are available with the District Inspector of Schools. In fact, the Managing Committees change so often and they are also litigating so frequently that a decision by one Managing Committee is not supported by a succeeding Managing Committee. The post of the District Inspector of Schools is also transferable and it often transpires that the District Inspector of Schools, who had earlier passed the order, is not available to justify the approval given by him to the appointment or promotion made of a teacher. It is in the light of these circumstances that the contention raised by the Learned Counsel for Dinesh Chandra Dube has to be examined.
23. It is, therefore, clear that even in the case of a promotion of a teacher to the lecturer's grade or to the L.T. grade, a teacher aggrieved by the decision of the Committee of Management has got a remedy to challenge the said decision before the District Inspector of Schools. From the above provisions therefore, the scheme of the Act is that at the time when the appointment is made or when the promotion is made, the said appointment or promotion made by the Managing Committee can be challenged to the higher authority prescribed under the Act and the regulations framed thereunder.
24. Regulation 3 of Chapter II lays down the principles on which the seniority list has to be prepared. I have already quoted Regulation 3 of Chapter II, which lays down the manner in which the seniority is to be determined. The relevant factors for determining the validity of the seniority list are the grade in which the teacher is working, whether he is appointed on the substantive post or not, whether the appointment is permanent or temporary, the date of the appointment or promotion and the age of the teachers.
25. On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplates that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. That dispute can be taken in appeal under Clause (f) of Regulation 3, quoted above. In my -opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute.
27. In this view of the matter, I am of the opinion that the contention raised by the Learned Counsel for the Respondent is well founded. In proceedings for determining the validity of the seniority list prepared by the college, it is not open to a teacher of the said college to challenge the appointment or promotion of any other teacher in the same college.
28. Learned Counsel for the Respondent has cited a decision of this Court in Civil Misc. Writ No. 471 of 1974, Madan Pal Sharma v. The Chancellor, Meerut University, decided on 2nd July, 1980. In that case, while challenging the seniority list it was sought to be urged that the appointment of the teacher in the R. G. College, Meerut, was not a valid appointment. In that case, a Division Bench of this Court observed as under:
"In our opinion, it is not open to the Petitioner to challenge the validity of the selection or appointment of Smt. Usha Rani Gupta as lecturer in Raghunath Girls College in the present collateral proceedings."
24. Again in the case of Vir Singh v. State of U.P. and others reported in 2015 (11) ADJ 637, wherein this Court has held while considering the dispute of inter se seniority between two teachers at the time of promotion. the person claiming the seniority over and above the co-teacher working in the same institution does not have any locus to challenge the appointment of such teacher. Vide paragraphs 21 and 22 of the judgment, the Division Bench of this Court held thus:-
"21. Additionally we find that quite apart from the seventh respondent not having any locus standi to challenge the appointment and adjustment of the appellant [in the sense of the appellant being a Lecturer in Physics and the seventh respondent being a Lecturer in Chemistry] he only assailed the consequential orders of adjustment made in respect of the appellant. The parent order of the Director and the Board directing adjustment of the appellant were never subjected to challenge till the filing of the writ petition which gives rise to the present appeal.
22. More fundamentally when one views the reliefs sought by the seventh respondent in his writ petition it is apparent that the primary cause for challenge to the adjustment of the appellant was the consequential effect it would have on the inter se seniority. In our opinion the validity of an appointment cannot be the subject matter of scrutiny or adjudication while deciding the issue of inter se seniority. We therefore find that the learned Single Judge has clearly erred in proceeding to annul and set aside the initial appointment and adjustment of the appellant.
Consequently we are of the view that the Special Appeal preferred by the appellant is liable to succeed and the writ petition of the seventh respondent must consequentially stand dismissed. For reasons noted above, we find merit in the conclusions arrived at by the learned Single Judge in respect of the status of the seventh respondent being reverted to that of an L.T. Grade teacher. The appeal of the seventh respondent must consequentially fail."
25. In view of the above exposition of law, I do not find any force in the submissions advanced by the learned counsel for the petitioner. The writ petition lacks merit and is, accordingly, dismissed with no order as to cost.
Order Date :- 7.12.2018 Atmesh