Allahabad High Court
Ram Sewak Srivastava vs State Of U.P. And 7 Others on 6 September, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
RESERVED ON 11.12.2017
DELIVERED ON 06.09.2018
1. Case :- WRIT - A No. - 67815 of 2015
Petitioner :- Ram Sewak Srivastava
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Anoop Trivedi, A. Tripathi, Jitendra Kumar Srivastava,Madhur Prakash, R.C. Agarwal, Ramesh Chandra Agrahari, T. Trivedi
Counsel for Respondent :- C.S.C., B.S. Pandey, Bhupendra Nath Singh, N.K.Chaudhary, Not Known, Radhey Shyam Yadav, Shri Salil Kumar Rai
2. Case :- WRIT - A No. - 68446 of 2015
Petitioner :- Uday Bhan Singh
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Ratnakar Upadhyay,R.K.Ojha
Counsel for Respondent :- C.S.C.,Salil Kumar Rai,Siddharth Khare
3. Case :- WRIT - A No. - 86 of 2016
Petitioner :- Subhash Bhatt
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Bhim Sen Pandey
Counsel for Respondent :- C.S.C., Anoop Trivedi, Madhur Prakash, Salil Kumar Rai
4. Case :- WRIT - A No. - 43032 of 2017
Petitioner :- Ram Sewak Srivastava
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Jitendra Kumar Srivastava, Gajendra Pratap
Counsel for Respondent :- C.S.C., Siddharth Khare
Hon'ble Mrs. Sangeeta Chandra,J.
1. The Writ - C No. 67815 of 2015, Writ - C No. 68446 of 2015 and Writ - C 86 of 2016 have been filed by three teachers of Hira Lal Ram Niwas Inter College, Khaleelabad, District Sant Kabir Nagar (hereinafterto referred as "the College"), a recognized and aided institution governed by the U.P. Intermediate Education Act, 1921 and the U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter to referred as " the U.P. Act No. 5 of 1982").
2. The petitioners in all the three writ petitions have challenged the order of the Respondent - Joint Director of Education, Basti Region, Basti dated 02.12.2015, who exercising the appellate powers in Regulation 3 (1) Cha of Chapter - II of the Regulations under the U.P. Intermediate Education Act has decided the dispute of inter-se seniority of the lecturers of the College.
3. The facts as mentioned by all three petitioners for raising a challenge to the order dated 02.12.2015 are being given in brief as culled out from the pleadings made by all the three teachers in their writ petitions and in the affidavits filed by the contesting respondents.
4. Ram Sewak Srivastava has stated in his writ petition that he was initially appointed as a C.T. Grade teacher on 18.09.1985 for teaching the subject of Biology to High School Classes in pursuance of the advertisement dated 4th of September, 1985. The approval of the appointment was granted by the District Inspector of Schools, Basti on 13.08. 1986.
5. By means of the Government Order dated 11.08.1982 the C.T. Grade was declared as dying cadre. No fresh appointments were to be made in C.T. Grade. Therefore, it has been claimed by the petitioner Ram Sewak Srivastava that he automatically became L.T. Grade teacher. Ram Sewak Srivastava had a Master's Degree before his appointment and therefore possessed the eligibility to be treated as a L.T. Grade teacher. It has been claimed by him that he was granted salary of L.T. Grade w.e.f. 01.10.1995 by an order passed by the District Inspector of Schools on 16.07.1996.
6. One Ram Keval Chaudhary, lecturer in Chemistry retired on 30.06.1999. Ram Sewak Srivastava was asked to work as lecturer in Chemistry w.e.f. 01.07.1999 although the Committee of Management made proposal for his promotion only on 12.03.2000. This proposal was considered by the Selection Committee which by its order dated 16.08.2002, communicated by the Joint Director of Education, approved such promotion. Ram Sewak Srivastava then represented for grant of L.T. Grade w.e.f. 06.04.19991 to the District Inspector of Schools as by the government order dated 18.12.1997 and 24.05.2004 C.T. Grade was merged into L.T. Grade and the benefit of L.T. Grade was admissible to the teachers of C.T. Grade after having rendered five years of service. Ram Sewak Srivastava's representation was allowed by the District Inspector of Schools on 23.06.2015 and Ram Sewak Srivastava was given L.T. Grade w.e.f. 06.04.1991.
7. Ram Sewak Srivastava claimed that in the seniority list issued by the Committee of Management of the College in 2007 and in 2010 he was shown at serial No. 11 much above Ram Lalit Yadav mentioned at serial No. 15, Ram Kumar Singh mentioned at serial No. 18 and Uday Bhan Singh mentioned at serial No. 16 and Subhash Bhatt mentioned at serial No. 29 in the said seniority list. All of a sudden the Committee of Management issued a seniority list dated 16.12.2014 wherein Subash Bhatt was placed at serial No. 2, Ram Lalit Yadav was placed at serial No. 5, Ram Kumar Singh was placed at serial No. 6 and Uday Bhan Singh was placed at serial No. 7. Ram Sewak Srivastava was shown below Subhash Bhatt at serial No. 3.
8. Aggrieved by the said seniority determined by the Committee of Management of the College on 16.12.2014 the petitioner approached the Joint Director of Education in appeal under Regulation 3 (1) Cha of Chapter - II of the Regulations under the Intermediate Education Act. The Joint Director of Education after giving a hearing to all the teachers and the Committee of Management of the College and also summoning a report from the District Inspector of Schools passed the order dated 02.12.2015 rejecting the case of Ram Sewak Srivastava as also that of Subhash Bhatt holding them to be illegally appointed/promoted by the Committee of Management. Aggrieved by the order dated 02.12.2015 the writ petition No. 67815 of 2015 has been filed by Ram Sewak Srivastava.
9. Writ petition No. 68446 of 2015 has been filed by Uday Bhan Singh, lecturer in Drawing, challenging the order dated 02.12.2015 on the ground that he was appointed substantively as lecturer by the U.P. Secondary Education Service Selection Board (hereinafter to referred as the Board) and he joined his service on 15.01.2005 and has been continuously working. Uday Bhan Singh who has been placed at serial No. 7 of the seniority list dated 16.12.2004 determined by the Committee of Management of the College, has challenged the seniority determined by the Joint Director of Education with respect to Ram Kumar Singh. It is his case that Ram Kumar Singh was appointed as L.T. Grade assistant teacher on ad hoc basis on 01.01.1990. He was regularized by the Regional Level Committee by its order dated 05.09.1994 treating him to be appointed against a substantive vacancy. There were two lecturers of Economics subject in the College. One of them Mr. N.P. Shukla retired on 30.06.2003. The Committee of Management of the College allegedly passed a resolution on 20.07.2003 forwarding it to the Regional Level Committee for promotion of Ram Kumar Singh. The Regional Level Committee did not pass any order as one other lecturer in Economics subject was already working in the College and the number of students was near about twenty in the College and there was no need for a second lecturer in Economics. The Regional Level Committee, in fact, by an order dated 14.06.2005 only approved the promotion of Ram Kumar Singh as lecturer in Economics. It is from the date of approval by the Regional Level Committee i.e. from 14.06.2005 alone Ram Kumar Singh can be treated to be a lecturer in Economics. Moreover, after the Regional Level Committee approved the said promotion under the Rules of 1998 the Committee of Management never issued any appointment/promotion letter for Ram Kumar Singh. However, Ram Kumar Singh got pay of lecturer w.e.f. 01.07.2003 and therefore the Committee of Management treated Ram Kumar Singh to be senior to the petitioner Uday Bhan Singh.
10. Subhash Bhatt has filed writ petition No. 86 of 2016 challenging the same order dated 02.12.2015 holding his appointment in L.T. Grade as illegal and thereby denying his seniority on the ground that Subhash Bhatt was selected in L.T. Grade on 17.09.1989 in a post which fell vacant due to promotion of one Vashishtha Muni Mishra as Lecturer in Hindi. The appointment letter was issued to Subhash Bhatt on 26.10.1989 as L.T. Grade teacher and he joined on 01.01.1990. The District Inspector of Schools, Basti granted financial approval to the promotion of Vashishtha Muni Mishra against the post of lecturer in Hindi by his order dated 25.01.1990. The post of L.T. Grade teacher, therefore, became substantively vacant on 25.01.1990. The District Inspector of Schools thereafter by his order dated 26.03.1990 granted financial approval to the appointment of Subhash Bhatt. The Regional Level Committee regularized the appointment of Subhash Bhatt on 05.09.1994 through an order issued by the Deputy Director of Education, Gorakhpur Region, Gorakhpur under Section 33-B of the U.P. Act No. 5 of 1982. One Narendra Bahadur Pandey, lecturer in Geography retired on 30.06.1997. The Committee of Management passed a resolution for promotion of Subhash Bhatt and papers were forwarded to the District Inspector of Schools as Regional Level Committee at that point of time was not functioning. The District Inspector of Schools granted financial approval on 16.07.1999. Subhash Bhatt thereafter joined on the post of lecturer in Geography and has been working continuously. The regularization on the post of lecturer in Geography was considered by the Regional Level Committee and by an order dated 20.04.2010 Subhash Chandra Bhatt was regularized w.e.f. 16.07.1999.
11. In December, 2014 some teachers created a seniority dispute and the Committee of Management after entertaining the objections from all teachers decided the dispute by its order dated 16.12.2014. Subhash Bhatt was placed at serial No. 2, Ram Sewak Srivastava was placed at serial No. 3, Ram Lalit Yadav, Ram Kumar Singh and Uday Bhan Singh were placed at serial Nos. 5, 6 and 7 respectively against which the appeal filed by Ram Sewak Srivastava and Uday Bhan Singh has been rejected by the order impugned passed by the Joint Director of Education.
12. The first three writ petitions filed in the year 2015 and 2016 as mentioned herein above are being considered by this Court first because it is agreed between the parties that the decision rendered by this Court on the dispute relating to seniority shall govern the decision in later writ petition No. 43032 of 2017 filed by Ram Sewak Srivastava. This later writ petition has been filed by Ram Sewak Srivastava challenging the order dated 20.07.2017 passed by the District Inspector of Schools giving ad hoc promotion as Principal to Ram Kumar Singh who was already officiating on the said post w.e.f. 01.06.2017, after the retirement of Maithilisharan Srivastava. Ram Sewak Srivastava has further prayed for a Mandamus to the respondents to promote him on the post of ad hoc principal of the College.
13. In the writ petition filed by Ram Sewak Srivastava, Ram Kumar Singh, Uday Bhan Singh and Subhash Bhatt arrayed as respondents No. 6, 7 and 8 respectively have filed counter affidavits denying the claim of Ram Sewak Srivastava that seniority lists were issued by the Committee of Management of the College in Academic Session 2007-08 and 2010-11 showing him as senior and at serial No. 11 much above Ram Lalit Yadav, Uday Bhan Singh, Ram Kumar Singh and Subhash Bhatt and supporting the order passed by the Joint Director of Education in so far as the Joint Director of Education has held the appointment of Ram Sewak Srivastava as L.T. Grade teacher to be illegal and his promotion thereafter also being illegal.
14. It is their case that the seniority was determined for the first time by the Committee of Management of the College only on 16.12.2014. Ram Lalit Yadav has been arrayed as respondent No. 5 in the writ petition filed by Ram Sewak Srivastava, who has been determined by the Joint Director of Education in his order dated 02.12.2015 to be the senior most lecturer in the College, and he has also filed his counter affidavit.
15. Ram Lalit Yadav has supported the version of all other contesting respondents with regard to the non issuance of any seniority list by the Committee of Management of the College before 16.12.2014. Ram Lalit Yadav has also denied the claim of Ram Sewak Srivastava that he was directly recruited as C.T. Grade teacher and has reiterated that he was appointed as ad hoc C.T. Grade teacher and was given financial approval by the District Inspector of Schools only till the end of the Academic Session. The vacancy on the post of C.T. Grade teacher became substantive only on 06.04.1997 when Deena Nath Pathak's ad hoc promotion in L.T. Grade was regularized on the said date. Therefore, Ram Sewak Srivastava's contention that he was regularized as C.T. Grade teacher w.e.f. 06.04.1991 is false as no regularization can be made without existence of post.
16. Ram Lalit Yadav has also pointed out in his counter affidavit that the Government Order dated 11.08.1989 is clear in its term and it only bans fresh appointment on the C.T. Grade and does not provide that C.T. Grade post shall automatically be treated as L.T. Grade post. This Government Order issued on 11.08.1989 was later on followed by two other Government Orders dated 18.12.1997 and 24.05.2004. By the Government Order dated 18.12.1997 only the benefit of L.T. Grade Pay Scale was given to those teachers still working in C.T. Grade who had completed 10 years of service as such. The Government Order dated 24.05.2004 again granted the benefit of L.T. Grade Pay Scale to those C.T. Grade teachers who were still working in the said Scale after five years of continuous service. It is apparent from the perusal of order dated 13.08.1986 that Ram Sewak Srivastava was appinted in C.T. Grade against a vacancy which occurred due to ad hoc promotion of Deena Nath Pathak from C.T. Grade to L.T. Grade. Deena Nath Pathak was regularized as L.T. Grade Teacher on 06.04.1997. The C.T. Grade vacancy then became substantive. However, before the such vacancy could become substantive petitioner Ram Sewak Srivastava claims that he was regularized by order dated 17.01.1994 issued by the District Inspector of Schools regularizing him as C.T. Grade teacher w.e.f. 06.04.1991.
17. Learned senior counsel Shri Gajendra Pratap arguing on behalf of Ram Sewak Srivastava has raised mainly three grounds for challenge to the seniority list dated 16.12.2014 and the order dated 02.12.2015. It has been submitted that it is settled law that while deciding the dispute of seniority the competent authority cannot examine the validity of the appointment. Appointment cannot be challenged in collateral proceedings. For the said proposition of law the learned counsel for the petitioner has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Shiva Shanker Mohapatra Vs. State of Orissa and others, (2012) 12 SCC 471 (Para - 18 and 30).
18. It has also been argued that Ram Sewak Srivastava had cited the judgment rendered by the Full Bench of this Court in Raeesul Hasan Vs. State of U.P. and others reported in (2015) 6 ADJ 778 before the Joint Director which was ignored. He has argued that in view of the law settled by the Full Bench in the case of Raeesul Hasan (supra) the promotion of Ram Sewak Srivastava as lecturer in the recruitment year 2002-2003 could not have been declared illegal on the ground that he did not possess five years continuous service in L.T. Grade on the date of occurrence of the vacancy i.e. 01.07.1999.
19. It has also been argued by Shri Gajendra Pratap that even though the judgement rendered in Raeesul Hasan (supra) has been later on overturned by a Larger Bench of Five Judges on 30.05.2017 holding that five years of continuous service is required. The said judgment of the Larger Bench of Five Judges has been challenged in Special Leave Petition before the Hon'ble Supreme Court where leave has been granted on 06.11.2017 and stay of reversion, if any, of teachers who were already promoted has also been granted by the Hon'ble Supreme Court.
20. It has also been argued that even otherwise by an order passed by the District Inspector of Schools on 23.06.2015 Ram Sewak Srivastava had been granted L.T. Grade by the District Inspector of Schools w.e.f. 06.04.1991 and had thus rendered more than five years of continuous service at the time of occurrence of the vacancy on 01.07.1999.
21. Shri Gajendra Pratap has moreover argued that on the date when the petitioner filed his appeal before the Joint Director of Education i.e. in May, 2015 and when he had filed his writ petition before this Court, his promotion as lecturer was right due to retrospective application of the Three Judges (FB) Decision in Raeesul Hasan reported in (2015) 6 ADJ 778 (supra). The subsequent development brought about by the judgment of the five Judges (Larger Bench) rendered on 30.05.2017 would have no effect at all on the right of Ram Sewak Srivastava which had been crystallized on the basis of the judgment rendered by the Full Bench.
22. The learned senior counsel for Ram Sewak Srivastava has relied upon the judgment rendered by the Hon'ble Supreme Court in Rameshwar Vs. Jot Ram, AIR 1976 SC 49. He has also cited the judgments rendered by this Court in Vijai Narain Sharma Vs. District Inspector of Schools, Etawah, 1986 UPLBEC 46 (para - 25, 26, 27 and 28); Smt. Manju Keshi Dixit Vs. State of U.P. and others, (2004) 4 AWC 3758 (para - 13) and Hari Pal Singh Vs. State of U.P. and others, (2012) 1 UPLBEC 260 (para - 85) in support of his argument that an appointment can not be challenged in a proceeding of collateral nature that is a dispute relating to the seniority. The judgments cited by the learned Senior Counsel shall be discussed by this Court at appropriate places.
23. It has also been argued by Shri Gajendra Pratap that the findings recorded by the Joint Director of Education with respect to the illegality in promotion of Subhash Bhatt as ad hoc lecturer and he having not been regularized till the date of settlement of the seniority by the Committee of Management on 16.12.2014 are based on correct appreciation of the facts and law and should not be disturbed.
24. With respect to Subhash Bhatt it has been argued by Shri Gajendra Pratap that he was never substantively appointed in L.T. Grade and his ad hoc appointment in L.T. Grade on 01.01.1990 could not have been regularized and his ad hoc promotion by the District Inspector of Schools on 16.07.1999 as lecturer in Geography could not have been regularized w.e.f. 16.07.1999 by the Regional Selection Committee by its order dated 20.04.2010. Also, the order dated 20.04.2010 passed by the Regional Selection Committee was without jurisdiction as by the time it was passed the Regional Selection Committee had lost the authority to consider a teacher for regularization of his ad hoc promotion. The Regional Selection Committee could only consider a person for selection on the post of lecturer and to recommend his name for being appointed as lecturer in the terms of the amended Rules of 1998.
25. From the pleadings on record and from the arguments raised by Shri Gajendra Pratap it is evident that Ram Sewak Srivastava has not challenged seriously either the placement of Ram Kumar Singh or Ram Lalit Yadav or Uday Bhan Singh in the seniority list circulated and determined by the Committee of Management of the College nor the determination of their seniority by the Joint Director of Education in the order impugned dated 02.12.2015.
26. Shri R.K. Ojha, learned senior counsel, assisted by Shri Akhilesh Kumar Singh appearing for Uday Bhan Singh has during the course of argument also reiterated the contention raised by the counsel for other lecturers with regard to the illegality of Ram Sewak Srivastava's appointment in C.T. Grade and his regularization w.e.f. 06.04.1991. He has pointed out from the orders passed by the District Inspector of Schools dated 05.10.1985 and 13.08.1986 filed as Annexure - 2 to the writ petition No. 67815 of 2015 that the District Inspector of Schools has granted approval of appointment to Ram Sewak Srivastava in C.T. Grade on ad hoc and temporary basis for the Academic Session 1985-1986 only, and thereafter for the Academic Session 1986-87. In the order dated 13.08.1986 Deena Nath Pathak was shown as promoted from C.T. Grade to L.T. Grade and Ram Sewak Srivastava was shown as having been appointed only on ad hoc basis in C.T. Grade on the vacancy created out of promotion of Deena Nath Pathak. The ad hoc appointment of Ram Sewak Srivastava was regularised allegedly in terms of the Government Order dated 11th of August, 1989. However, the Government Order dated 11th of August, 1989 only provided that C.T. Grade shall be considered as a Dying Cadre and no fresh appointment shall be made in C.T. Grade. He has also pointed out Annexure - 5 from the writ petition filed by Ram Sewak Srivastava which is the order dated 16.07.1996, that only Pay Scale of L.T. Grade was given to him and one Radhey Shyam Mishra on completion of ten years of service in C.T. Grade w.e.f. 01.10.1995. There could not have been any automatic conversion of Ram Sewak Srivastava's appointment as C.T. Grade into an appointment on L.T. Grade post.
27. Shri Ojha repeatedly emphasized that only Pay Scale was given by the said Government Orders and no appointment on L.T. Grade post. The C.T. Grade posts were converted into L.T. Grade posts for the first time by addition of Section 33-D in the U.P. Act No. 5 of 1982 introduced w.e.f. 20.04.1998, which provided that every teacher in C.T. Grade who was a trained Graduate and had completed 10 years of continuous satisfactory service in the said C.T. Grade, on or before the 1st of January, 1986, or even after the said date, on completion of 10 years of service, could be deemed to have been appointed in Trained Graduate Grade.
28. Shri R.K. Ojha has further pointed out the settled position in law that all judgments and orders passed by the Courts have retrospective operation unless they are specifically made by the Court to be applicable prospectively as such the Five Judges Larger Bench's decision rendered in Raeesul Hasan (supra) on 30.05.2017 would operate retrospectively and five years' continuous service in L.T. Grade was required "on the date of occurrence of the vacancy" and not in the "year of the recruitment". Such five years of continuous service should have been completed on or before 01.07.1999 and not in the recruitment year 2002-2003 when approval was granted by the Regional Level Committee to the promotion of Ram Sewak Srivastava.
29. Shri R.K. Ojha has pointed out during the course of the argument that the decision taken by the Joint Director of Education with respect to the illegality of appointment of Subhash Bhatt is correct and should not be interferred with. Subhash Bhatt was appointed in L.T. Grade on ad hoc basis on 01.01.1990. He was regularized w.e.f. 05.09.1994 and his promotion as lecturer was allegedly regularized by the Regional Level Committee w.e.f. 16.07.1999 by the order dated 20.04.2010 with a further direction to the Committee of Management to issue appointment letter/promotion order under Rule 14 (5) of the 1998 Rules w.e.f. the date of ad hoc promotion as lecturer (Geography) i.e. w.e.f. 16.07.1999. Under Rule 14 (5) of the 1998 Rules the Committee of Management never issued any appointment/promotion letter to him.
30. Moreover, the Regional Level Committee had no power of regularization of ad hoc promotion under 1998 Rules as amended on 07.08.2001. It could have only issued a regular promotion order as the provision for giving of ad hoc promotion had been deleted by amendment in the Rules. The Rules 15 and 16 as they existed earlier making the provision for ad hoc appointment by direct recruitment and ad hoc appointment by promotion had been omitted w.e.f. 07.08.2001. The purported exercise of regularization of ad hoc promotion under the Rule 14 and the direction issued in the order dated 20.04.2010 by the Regional Level Committee for the District Inspector of Schools and the Committee of Management of the College to take further action in the terms of Rule 14 (5) of the 1998 Rules as amended in 2001, could not have been done and this fact has been rightly noticed by the Joint Director of Education in the order impugned.
31. It has also been argued by Mr. Ojha that Radhey Shyam Mishra, another teacher, given regularization by the District Inspector of Schools in L.T. Grade w.e.f. 06.04.1991 along with Ram Sewak Srivastava by the order dated 23.06.2015, was similarly placed like Ram Sewak Srivastava. He was also appointed on ad hoc basis in C.T. Grade on 01.10.1985 and thereafter given ad hoc appointment in L.T. Grade on 22.09.1990. His regularization in purported exercise of power by the Regional Level Committee under the Rule 14 of of the 1998 Rules by its order dated 20.04.2010 was also vitiated by the same error. Radhey Shyam Mishra also did not have five years of continuous service at the time when the vacancy arose on 01.07.1997 due to retirement of lecturer in Mathematics. The Joint Director of Education has rightly concluded that the appointment of Radhey Shyam Mishra in L.T. Grade and his promotion thereafter as lecturer was also vitiated. It has also been argued by Shri Ojha that the interim order granted in Special Leave Petition by the Hon'ble Supreme Court on 06.11.2017 shall be applicable only for protection of the promotions made dehors the rules as interpreted by the Larger Bench decision of this Court. It will not apply on claims relating to seniority over the properly promoted/appointed persons. Shri Ojha has relied upon the judgment rendered by this Court in Vidya Kant Tiwari Vs. State of U.P. and others, (2011) 6 ADJ 97.
32. The learned counsel for Uday Bhan Singh has during the course of argument pointed out that Uday Bhan Singh being substantively appointed as lecturer in Drawing w.e.f. 15.01.2005 was senior to Ram Kumar Singh who was approved as lecturer (Economics) by the Regional Level Committee only on 14.06.2005. It has also been contended that under the Rules, Ram Kumar Singh had been appointed only on ad hoc basis in L.T. Grade in 1990. His appointment in L.T. Grade was regularized in 1994. The vacancy on the post of lecturer arose on 01.07.2003. The Committee of Management should have been waited for two months from the date the post of lecturer (Economics) actually fell vacant before it could have passed a resolution for the promotion of Ram Kumar Singh. However, by its resolution dated 20.07.2003 such promotion was recommended which was finally approved by the Regional Level Committee only on 14.06.2005. The District Inspector of Schools wrongly gave sanction for payment of salary to Ram Kumar Singh w.e.f. 01.07.2003. Also, mere granting of Pay Scale of lecturer Grade does not mean substantive appointment/promotion on the post of lecturer.
33. It has been argued by Shri B.S. Pandey, learned counsel appearing for Subhash Bhatt, that his seniority is to be computed w.e.f. 16.07.1999, the date when financial approval was granted to his promotion on the post of lecturer in Geography and later on regularized by the Regional Level Committee by its order dated 20.04.2010. It has been submitted on the basis of the judgments rendered by the Hon'ble Supreme Court in the case of Baleshwar Das Vs. Union of India, AIR 1981 SC 41 and J.C. Gupta Vs. N.K. Pandey, AIR 1998 SC 268 and the judgment rendered in the case of Veer Bahadur Singh Vs. State of U.P. and others reported in (2004) 3 UPLBEC 2348, that seniority of a teacher is to be computed not from the date approval is granted but service rendered prior to regularization can be counted for the purpose of seniority. Moreover, in the Full Bench decision in Raeesul Hasan (supra) rendered on 14.05.2015 this Court has held that the "year of recruitment" shall be considered as determining factor for the purpose of eligibility for promotion and not "the year of occurrence of the vacancy". It has also been argued that the order passed by the Joint Director of Education dated 02.12.2015 amounts to a review of his own order dated 20.04.2010, which could not have been done by the Administrative Authority without any provision for the same in the Statute.
34. Shri B.S. Pandey appearing on behalf of Subhash Bhatt while challenging the order impugned in so far as it records finding regarding the illegality of appointment of Subhash Bhatt has also challenged the appointment of Ram Sewak Srivastava. It has been contended by him that the Government Orders dated 18.12.1997 and 24.05.2004 were not applicable in the case of Ram Sewak Srivastava as Ram Sewak Srivastava was already working in L.T. Grade and Lecturer Grade when the said government orders were issued. He has pointed out the apparent forgery with regard to the signatures of the then manager on the fabricated seniority lists said to be issued in 2007 and 2010. He has pointed out page No. 58 of the Paper Book of the writ petition No. 67815 of 2015 where the signatures of the then manager have been appended on the order of the appointment of Ram Sewak Srivastava and ad hoc C.T. Grade appointment on 18.09.1985 and has compared the said signatures with the alleged seniority list of 2007-08 and 2010-11.
35. Having heard the arguments raised by Gajendra Pratap, Shri R.K. Ojha, Shri B.S. Pandey and Shri B.D. Shukla appearing for Shri Ram Kumar Singh and having gone through the impugned order dated 02.12.2015 this Court considers it necessary to first refer to the legislative changes brought about in the U.P. Act No. 5 of 1982 and the U.P. Secondary Education Services Selection Board Rules, 1995/1998.
36. Under the U.P. Act No. 5 of 1982 Section 18 deals with the ad hoc appointment of teachers and ad hoc promotions. Initially, Section 18 of the Act of 1982 provided that where the Committee of Management had notified a vacancy on the post of teacher and such post of teacher has actually remained vacant for two months, the management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis in the manner prescribed under the said Section. The management had to determine the vacancies and also determine the reservation and whether they fall under the promotion or direct recruitment quota and intimate the number in each category/group/subject to the District Inspector of Schools who verified the same from his own record and sent requisition to the Commission/Board. A three members Selection committee constituted under Sub Section 9 would make selection of candidates applying for direct recruitment on ad hoc basis and prepare a list of selected candidates and allocate them to the institution and recommend their names to the management for appointment. Every appointment of an ad hoc teacher was to cease to have effect from the date when the candidates recommended by the Commissioner or the Board joined the post. This Section 18 introduced by the U.P. Act No. 24 of 1992 was omitted by the U.P. Act No. 1 of 1993.
37. A new Section 18 was introduced by the U.P. Act No. 15 of 1995 which provided that where the management has notified a vacancy to the Commission in accordance with Sub Section 1 of Section 10 and the post of teacher actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis. In case of promotion the senior-most teacher possessing prescribed qualification in the next lower Grade was to be considered by the management on its own. With respect to an ad hoc appointment by direct recruitment the recommendation of the Selection Committee with the Regional Deputy Director of Education as its chairman was to be made on the basis of quality point marks determined on academic records of the candidates. In Sub Section 9 of Section 18 every such appointment of ad hoc teacher either by promotion or direct recruitment was to cease to have effect from the date when the candidate recommended by the Commission joins a post.
38. The U.P. Act No. 25 of 1998 introduced further changes in the constitution of Selection Committee for ad hoc appointment by direct recruitment. The Regional Joint Director of Education became the chairman. The Regional Deputy Director of Education (Secondary) and the Regional Assistant Director of Education (Basic) were the second and third members of the said Selection Committee.
39. Under the U.P. Act No. 5 of 2001 the ad hoc appointment by promotion of only Principal/Head Master was envisaged by the management by promoting the senior-most teacher if the vacancy notified to the Board in accordance with such Sub Section 1 of Section 10 actually remained vacant for more than two months.
40. Under Sections 33-A, 33-B, 33-C, 33-F and 33-G provisions have been made for regularization of certain ad hoc appointments on substantive vacancy or short term vacancies, subject to the conditions mentioned therein, mainly relating to the cut off date as given in various Sub Sections of these Sections.
41. It is nobody's case that any of the lecturers jostling for seniority in this bunch of writ petitions is covered by the cut off dates mentioned and the conditions mentioned in the various Sub Sections of these Sections. Shri Gajendra Pratap has referred to Section 33-F and 33-G feebly but has not pressed further his argument as the cut off dates mentioned in Section 33-F are not applicable to Ram Sewak Srivastava and the provision of Section 33-G was introduced only w.e.f. 22nd of March, 2016 i.e. much later than the date of the order impugned.
42. The U.P. Secondary Education Service Commission Rules, 1995 (hereinafterto referred as "the Rules of 1995") were introduced on 08.05.1995. Under the said Rules "year of recruitment" has not been defined, therefore, the definition of "year of recruitment" as given in the U.P. Act No. 5 of 1982 under Section 2(l) would apply, which means a period of 12 months commencing from the first day of a calender year i.e. the year of recruitment would be from the 1st of January up to 31st of December of that particular year in which recruitment was going to be made. The determination of vacancies under Rule 11 of the Rules of 1995 had to be done by the Management in accordance with the Sub Section (1) of Section 10 on the basis of the quota determined for promotion and direct recruitment and on the basis of category. Such determination would include the vacancies that were likely to arise due to retirement on the last day of the year of recruitment. The such determination was to be sent by the Management to the Inspector by 15th of July of the year of recruitment. If after the vacancies had been notified any vacancy occurred on the post of teacher the Management was to intimate the same within 15 days of its occurrence to the Inspector who would thereafter notify the same to the Commission within 10 days.
43. Under the Rules 15 and 16 the procedure for ad hoc appointment by direct recruitment and promotion respectively has been given. For promotion of a teacher working in the next lower grade, otherwise eligible, who was to be considered on the basis of the seniority he should have put in five years of continuous service as such on the date of the occurrence of the vacancy. The Management was to recommend the name along with a copy of the seniority list and service records to the Inspector who would send the name of the approved teachers to the Management for issuance of appointment letter thereafter.
44. Under the U.P. Secondary Services Selection Board Rules, 1998 (hereinafter to referred as "the Rules of 1998") notified on 13th of July, 1998, Rules 15 and 16 have been done away w.e.f. 07.08.2001. This means they were in existence up to 06.08.2001. Under Rule 17 regularization of certain appointments by promotion or by direct recruitment made by the Management after 14th of May, 1991 but before 06.08.1993 against substantive vacancies under Section 18 could be done. The Management was to prepare the list of such teachers and send the same to the Inspector along with a copy of the seniority list and service records and the Inspector was to verify the same from the records in his office and forward the such list to the Joint Director of Education. The Joint Director of Education was to place the matter before the Selection Committee referred to in Clause - a of Sub Section (2) of Section 33-C i.e. Selection Committee consisting of the Regional Joint Director of Education, the Regional Deputy Director of Secondary Education and Regional Assistant Director of Basic Education. The Selection Committee would consider the case of each of the candidates on the basis of the records and prepare a list of selected candidates arranged in order of seniority and forward the same to the Joint Director of Education who would send the list to the Inspector and the Management which would make substantive appointment from the said list in order in which the names stood in the said select list. The appointment so made was to be effective from the date of such order of appointment.
45. It is apparent from a reading of the 1995 Rules along with 1998 Rules that such appointment was to be treated as regular substantive appointment only w.e.f. the date appointment order was issued by the Management after the approval given by the Regional Level Committee.
46. The Government Orders dated 11.08.1989, 18.12.1997 and 24.05.2002 have been referred to during the course of hearing with respect to the alleged conversion of C.T. Grade posts automatically into L.T. Grade. Copies of such Government Orders have been filed as Annexures - 4, 8 and 9 in the writ petition filed by Ram Sewak Srivastava.
47. A perusal of the Government Order dated 11.08.1989 shows that in pursuance of the recommendations of the Pay Revision Committee of 1989 a radiogram was issued on 20.06.1989 which provided that henceforth no post in C.T. Grade was to be created in the Secondary Schools nor appointment was to be made of teachers in such C.T. Grade. Under the Government Order dated 18.12.1997 if any post was to be filled up in L.T. Grade or Lecturer Grade through promotion the Management was to consider the case of C.T. Grade teachers who had rendered five years of continuous service on substantive post on the date of the occurrence of the vacancy subject to educational qualification and and training qualification being possessed by the such C.T. Grade teacher. Also all the C.T. Grade teachers who were trained Graduates and who had rendered ten years of satisfactory service either on or after 01.01.1986 were to be considered and treated as absorbed in substantive capacity in L.T. Grade. In the Government Order dated 24th of May, 2004 the number of years of service required under the Government Order dated 18.12.1997 was relaxed and now only five years of service was required in C.T. Grade either on 19.02.1991 or thereafter for absorption in L.T. Grade.
48. It is evident from a perusal of the all three Government Orders that only the benefit of Pay Scale/Grade was to be given to the C.T. Grade teachers on completion of either ten years or five years of service in the said Grade and there was no conversion of the post of C.T. Grade into L.T. Grade till the introduction of Section 33-D in the U.P. Act No. 5 of 1982. Under Section 33-D introduced w.e.f. 20.04.1998 a C.T. Grade teacher having rendered ten years of continuous service in the said Grade was deemed to have been appointed in L.T. Grade/Trained Graduate Teacher.
49. Shri Gajendra Pratap has referred to the judgements of this Court and of the Supreme Court to argue that in a challenge raised to the determination of seniority the validity of appointment/promotion of Ram Sewak Srivastava could not have been looked into. In Vijai Narain Sharma Vs. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44 a coordinate Bench of this Court held that if any teacher is aggrieved by the decision of the Committee of Management regarding the seniority or promotion, he may make a representation to the Inspector of Schools or to the Regional Joint Director of Education. It has been observed that under Regular - 3 of Chapter - II it is nowhere contemplated that a teacher who challenges the seniority list can challenge the validity of appointment or promotion of a teacher in the College also. If no challenge is made at the stage of appointment or promotion before the District Inspector of Schools, the such appointment or promotion becomes final. In a challenge to seniority before the Joint Director of Education such challenge to appointment and promotion is not permissible.
50. In Haripal Singh Vs. State of U.P. and others, (2012) 1 UPLBEC 260 a coordinate Bench of this Court was considering a bunch of writ petitions filed by several teachers relating to the right to officiate as Principal of the College on the basis of seniority. The Court considered the claim of the contesting parties and also the question whether the conditions mentioned in Section 18 for ad hoc appointment/promotion were followed. This Court held that two conditions are mainly required to be satisfied for the Management to acquire the power to make ad hoc appointment/promotion. Firstly, the vacancy was to be notified to the Commission/Board in accordance with Sub Section (1) of Section 10 and secondly, if the Board failed to notify the vacancy and did not recommend the name of a suitable candidate and the post of teacher actually remained vacant for more than two months. The Court came to the conclusion that although a teacher working in a lower grade may have been asked to teach as lecturer i.e. to discharge the duties of a higher post, it could not have been treated as a promotion even on ad hoc basis.
51. This Court referred to the judgment rendered by the Hon'ble Supreme Court in the case of Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 and Sheshmani Shukla Vs. District Inspector of Schools, JT 2009 (10) SC 309 and the observations made therein that the Rules had to be followed in letter and spirit and an appointment made inconsistent with the said procedure is void ab initio and it would not matter that such incumbent had worked for a long time. For the purpose of grant of approval by the statutory authority if such appointment was void ab initio, he must establish his legal right and corresponding legal duty of the statutory authority.
52. This Court referred to a Division Bench judgment in Lalta Prasad Goswami Vs. State of U.P. and others (Special Appeal No. 32 of 2006) decided on 12.01.2006 and Joint Director of Education, Azamgarh Mandal and District Inspector of Schools Vs. Udai Raj Vishwakarma, (2007) 3 ADJ 131 to observe that a teacher appointed against the provisions of Section 18 and Removal of Difficulties Orders could not be regularized under Section 33. It was held that any appointment made in breach of Section 18 was illegal and would not confer any right upon the incumbent in any manner. This Court discussed the procedure for making appointments on substantive vacancies and short term vacancies and came to the conclusion that the regularization of only such appointments could be done as were made in accordance with the procedure prescribed under Section 18 and the Removal of Difficulties Orders. Having found the petitioners therein not have been appointed or regularized in accordance with law, it considered the arguments of the learned counsel for petitioner that the order of regularization already having been issued in favour of the petitioner may not be judged by the Court at such late stage as it was never challenged earlier.
53. This Court in Hari Pal Singh's case (supra) also considered the judgments rendered in Smt. Rani Srivastava Vs. State of U.P. and others, (1990) 1 UPLBEC 425; Dr. Asha Saxena Vs. Smt. S.K. Chaudhary and others, (1991) 2 UPLBEC 1202 (FB); and Smt. Manju Keshi Dixit Vs. State of U.P. and others, (2004) 4 AWC 3758 as well as Smt. Bharti Roy Vs. Deputy Director of Education, II, Kanpur and others, (2008) 1 UPLBEC 781 where the Court has held that in the garb of challenging the seniority list one cannot be allowed to assail the very appointment of the incumbent and that too after a long time.
54. This Court, however, in Hari Pal Singh's case (supra) relied upon Vidya Kant Tiwari Vs. State of U.P., 2011 (6) ADJ 97 and has observed that such proposition of law would not apply in such cases where the appointment is wholly illegal and void ab initio. This Court in Vidya Kant Tiwari's case observed in paragraph - 81 thus:-
"However, if the authorities responsible for observing a mandatory provision acting illegally have helped an individual to get certain benefits, can it be said that a person who has no occasion of possessing all such information and has never acquiesced to the situation cannot challenge such illegal appointment whenever he is sought to be affected adversely by the authorities and by such illegal appointee. The answer would be No."
55. In paragraph 85 it has been further observed that "Just to repeat therefore I have no hesitation to say that consistent view of this Court is that normally/ordinarily an appointment cannot be challenged while determining seniority, if the appointment has been made and continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities but where it is wholly illegal and non est, the situation would be different. The proposition of law is not so wide to be attracted in every case like this one.................."
56. It was observed further in paragraph 86 thus:-
"Here the very appointment of respondent no. 5 in view of law laid down by the Apex Court in Prabhat Kumar Sharma (supra), Shesh Mani Shukla (supra) and Lalta Prasad Goswami (supra) is void ab-initio. Therefore, it is not a mere challenge to appointment but the state of affairs as existed in law in the light of law laid down by Apex Court. Petitioner has not challenged the appointment of respondent no. 5 in the garb of challenging only seniority but he has said that a person whose appointment is illegal since inception cannot be treated a Lecturer having been appointed from a date earlier to the petitioner so as to affect his interest otherwise."
57. This Court in Hari Pal Singh (supra) after considering the appointments alleged to have been made by the Management and approved by the District Inspector of Schools as well as the Regional Level Committee illegally, has referred to Regulation - 3 (1) (b) of Regulations in Chapter - III of Intermediate Education Act which contemplates the seniority of teachers appointed on substantive basis shall be determined from the date of substantive appointment. It reads as under:-
"3 (1) (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."
58. It has been observed by this Court that a person who never became a member of service having never been appointed on substantive basis, could not claim seniority as the question of determination of his seniority vis-a-vis other substantively appointed teachers of the College would not arise. The Management's illegality and non application of mind on this aspect was writ large. Without looking into this aspect of the matter they included the name of the petitioner in the seniority list which was impermissible. Hence, it is not only the question of challenge to the seniority list but also the inclusion of the name of petitioner in the seniority list.
59. This Court referred to a judgment rendered by the Hon'ble Supreme Court in Shitala Prasad Shukla v. State of U.P. AIR 1986 SC 1859 wherein the Supreme Court observed thus:
"An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have. been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue."
60. After having observed thus, this Court in Hari Pal Singh (supra) referred to some of the precedents which without laying down any principle of law had taken a lenient view and had allowed the incumbent concerned to continue.
61. Thereafter, it observed that the Supreme Court has now taken a strict approach for adherence to the rule of law. The Court has deprecated misplaced sympathy. The view of Court is that anything acquired illegally if allowed to remain with the person so acquired it would amount to conferring a premium upon him of such illegality. This would encourage the people to go ahead with such kind of illegalities with the expectation in the context of similar precedents that if they are successful in continuing for long time, the judicial forum may not interfere and allow them to continue with their illegally obtained benefits.
62. In State of Orissa and another Vs. Mamata Mohanty, (2013) 3 SCC 436, the Supreme Court held that an order which is bad in its inception would not get sanctity at a later stage. No subsequent action or development can validate an action which was not lawful at its inception for the reason that illegality strikes at the root of the order. It would not be said that the petitioner having continued for a long time had derived any right. The Supreme Court observed that "The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
This Court while dismissing the writ petition of Haripal Singh also imposed cost.
63. Now coming to the facts as discussed in the order of the Joint Director of Education impugned in these writ petitions. It is evident that the Joint Director of Education has considered the case of all the teachers individually as mentioned by them during the hearing on the appeals filed by Ram Sewak Srivastava and Uday Bhan Singh. The facts mentioned are identical to the facts already mentioned in each of the writ petitions filed by the teachers as aforesaid. Indisputably, Ram Sewak Srivastava was initially appointed on ad hoc basis in C.T. Grade, on ad hoc promotion of Deena Nath Pathak in L.T. Grade.
64. Such ad hoc appointment in C.T. Grade was regularized on 06.04.1991 before the L.T. Grade post became substantively vacant on 06.04.1997 Ram Sewak Srivastava was absorbed in L.T. Grade after rendering 10 years of service in C.T. Grade w.e.f. 01.10.1995. Vacancy arose of lecturer in Chemistry on retirement of Ram Kewal Chaudhary on 30.06.1999. At the time when the vacancy occurred on 01.07.1999 Ram Sewak Srivastava had not completed five years of continuous service in the L.T. Grade. The promotion order issued in favour of Ram Sewak Srivastava by the Committee of Management on 16.08.2002 was vitiated in the terms of the Rules of 1998. Ram Sewak Srivastava perhaps knew of this and therefore managed the order of District Inspector of Schools dated 23.06.2015 regularizing him in L.T. Grade w.e.f. 06.04.1991.
65. Radhey Shyam Mishra was similarly appointed on ad hoc basis in C.T. Grade on 01.10.1985 on promotion of Ram Lalit Yadav in L.T. Grade. The promotion of Ram Lalit Yadav in L.T. Grade was regularized on 06.04.1991. The C.T. Grade post therefore became vacant only on 06.04.1991. It has been contended that Radhey Shyam Mishra was although absorbed in L.T. Grade w.e.f. 01.10.1995. Shri K.S. Agrawal, lecturer in Mathematics retired on 30.06.1997 and vacancy arose on 01.07.1997. Radhey Shyam Mishra also did not complete five years of continuous service in L.T. Grade before he was considered on 20.07.1997 by Committee of Management and promoted on 16.09.2002. Radhey Shyam Mishra along with Ram Sewak Srivastava represented to the District Inspector of Schools and the District Inspector of Schools after referring to the Government Order dated 24.05.2004 absorbed Radhey Shyam Mishra in L.T. Grade w.e.f. 06.04.1991. Radhey Shyam Mishra was later on promoted as lecturer (Mathematics) on 14.09.2002 under Rule 14 (6) of 1998 Rules by the Regional Level Selection Committee.
66. Subhash Bhatt was appointed in the L.T. Grade on 01.01.1990. Such appointment was approved on 26.03.1990 only for the purpose of payment of salary. The order of regularization of ad hoc appointment was issued only on 05.09.1994. One Narendra Bahadur Pandey, lecturer in Geography retired on 30.06.1997 and vacancy arose on 01.07.1997 but promotion was made by the Committee of Management on the said date without waiting for two months to expire for the post to have remained actually vacant. The District Inspector of Schools gave financial approval on 16.07.1999. The seniority of Subhash Chandra Bhatt was calculated w.e.f. 16.07.1999 after his alleged promotion was regularised by the Regional Level Committee under Rule 14 of the 1998 Rules by its order dated 20.04.2010.
67. Ram Kumar Singh in his objection before the Joint Director of Education did not refer to his own case but referred to the illegality in the appointment of Subhash Bhatta and Ram Sewak Srivastava. The Joint Director of Education without much analysis of his contention accepted Ram Kumar Singh's version that he was substantively appointed as lecturer (Economics) w.e.f. 01.07.2003, whereas the Committee of Management made a recommendation for promotion of Ram Kumar Singh only on 20.07.2003 and the Regional Level Committee gave its approval on 14.06.2005. Ram Kumar Singh admitted that the time limit prescribed under Rule 14 of the 1998 Rules was not followed in his case but he said he had no role and he cannot be held to be at fault as he was given Lecturer Grade with approval of the Regional Level Committee w.e.f. 01.07.2003 by the District Inspector of Schools.
68. The finding of the Joint Director of Education with regard to Ram Kumar Singh of his substantive appointment on 07.01.2003 as lecturer is erroneous in so far as the Regional Level Committee approved the such promotion only on 14.06.2005.
69. Ram Lalit Yadav was appointed in the C.T. Grade on 24.01.1980 and was given ad hoc promotion in the L.T. Grade on 29.08.1995. His promotion was regularized w.e.f. 06.04.1991 by the District Inspector of Schools and when the vacancy of lecturer (History) was created on 01.07.2002 he had rendered sufficient service to be promoted as lecturer (History) by the Committee of Management. His proposal was approved by the Joint Director of Education by his order dated 19.12.2002 and he was given promotion thereafter w.e.f. 07.01.2003. The Regional Joint Director of Education in the order impugned found Ram Lalit Yadav to have been substantively appointed as lecturer in History w.e.f. 07.01.2003 and therefore, rightly held him to be the senior-most.
70. Uday Bhan Singh was appointed through regular selection on substantive basis as lecturer (Drawing) in January, 2005. He ought to have been placed after Ram Lalit Yadav at serial No. 2. However, the Joint Director of Education has ignored his claim and has put Ram Kumar Singh at serial No. 2 and Uday Bhan Singh at serial No. 3. Uday Bhan Singh's writ petition deserves to be allowed and is therefore allowed.
71. Subhash Bhatt was found by the Joint Director of Education to have been appointed on ad hoc basis in L.T. Grade on 01.01.1990 and was promoted on ad hoc basis as lecturer in Geography on 16.07.1999, later on approved by the Regional Level Committee. By the time such order was issued by the Regional Level Committee, the Rules 14 and 15 in 1998 Rules had been deleted w.e.f. 07.08.2001. Only substantive promotion could have been made by the Regional Level Committee and not regularization of ad hoc promotion made on 16.07.1999. The Joint Director of Education has also expressed doubt with respect to the post of lecturer (Geography) falling under the promotion quota. The finding recorded by the Joint Director in respect of Subhash Bhatt is indeed correct and is therefore not being disturbed. The writ petition of Subhash Bhatt is dismissed.
72. Radhey Shyam Mishra and Ram Sewak Srivastava were both found by the Joint Director of Education to have been wrongly regularized by the District Inspector of Schools w.e.f. 06.04.1991 in L.T. Grade by his order dated 23.06.2015. When the such order was issued on 23.06.2015 none of these teachers was working in C.T. Grade as they had already been promoted as lecturers. In terms of the language of Government Order dated 24.05.2004 the absorption in L.T. Grade could be given to only such C.T. Grade teachers who had rendered five years of continuous service as such in C.T. Grade on the date of such absorption. Moreover, at the time of occurrence of the vacancy of lecturer (Mathematics) on 01.07.1997 and lecturer (Chemistry) on 01.07.1999, neither Radhey Shyam Mishra nor Ram Sewak Srivastava had completed five years of continuous service in L.T. Grade for their promotion to the Lecturer Grade. In determination of seniority, therefore, the Joint Director of Education has mentioned the names of Ram Sewak Srivastava, Radhey Shyam Mishra and Subhash Bhatt to have been wrongly included. The finding recorded by Joint Director regarding all the three teachers is upheld. The writ petition of Ram Sewak Srivastava deserves to be dismissed and is dismissed.
73. Now, dealing with the argument raised by the learned counsel for Ram Sewak Srivastava that the law should be applied as it stood on the date when the petitioner filed his case and not when the said case is decided and the judgment rendered by the Hon'ble Supreme Court in Rameshwar Vs. Jot Ram, AIR 1976 SC 49.
74. I have carefully gone through the judgment cited by the learned Senior Counsel. It relates to agrarian reforms undertaken by the legislature in State of Punjab at the time when the respondents in the said civil appeal had applied to the Collector to buy the land of their landlord and the Collector had given the permission and on deposit of fees the title had devolved upon such tenants. The law was in their favour. However, during the pendency of the appeal the law changed by amendment carved out by the Legislature, in favour of the appellant, the descendants of the said landlord, the Supreme Court made certain observations looking into the facts of the said case which were to the effect that the subsequent events like the landowner's death at the appellate stage would not unsettle the right acquired by the tenants as their right crystallized on the date when the applications were made and on deposit of the first installment of the cost determined by the Collector made by each of the tenants. This Court referred to a construction which will promote predictability of results, maintenance of reasonable orderliness, simplification of the judicial task and advancement by the Court of the purpose of the legislation and the judicial preference for what it regards as the sounder rule of law as between competing ones, to hold that the rights of parties are determined on the date they come to Court. The protraction of Court machinery would not prejudice a person as a litigant who seeks justice in a perfect legal system gets it when he asks for it.
75. However, in the case of Ram Sewak Srivastava the judgement rendered by the Hon'ble Supreme Court in Rameshwar Vs. Jot Ram (supra) would be of no help as in the very same judgment it has been emphasized that where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine.
76. In the case of Ram Sewak Srivastava or Subhash Bhatt the law has been the same. There is no legislative change in the language of the Section/Rule. It is only a question of interpretation given to the phrase "on the date of occurrence of vacancy" and the phrase "on the first day of year of recruitment".
77. The law as settled by the Larger Bench on 30.05.2017 would apply retrospectively as it would be considered to be a correct interpretation of statutory provisions as they existed. Therefore, the conclusion arrived at by the Joint Director of Education in the order impugned that neither Radhey Shyam Mishra nor Ram Sewak Srivastava had rendered five years of continuation service on the date of occurrence of the vacancy on the post of lecturer, cannot be considered to be erroneous.
78. With regard to Subhash Bhatt the observations made by this Court in Vidya Kant Tiwari's case and Haripal Singh Vs. State of U.P. and others are being respectfully followed. Subhash Bhatt remained an ad hoc lecturer and his regularization order allegedly issued by the Joint Director of Education in pursuance of the decision taken by the Regional Level Committee on 20.04.2010 was against the provisions of the 1998 Rules as they stood amended on 07.08.2001.
79. Coming to the writ petition No. 43032 of 2017 filed by Ram Sewak Srivastava challenging the order dated 24.07.2017 passed by the District Inspector of Schools directing the manager of the College to give the officiating charge as Principal to Ram Kumar Singh, the said order could not have been passed as this Court has found on detailed consideration of facts, that Ram Lalit Yadav was the senior-most teacher and after his retirement, Uday Bhan Singh who was regularly selected lecturer and joined on 15.01.2005, would be senior-most. The officiating charge of the post of principal could not have been given to Ram Kumar Singh whose ad hoc promotion was approved by the Regional Level Committee only on 14.06.2005 much after Uday Bhan Singh's substantive appointment in January, 2005.
80. Therefore, the order dated 24.07.2007 is set aside. However, the consequential relief claimed by Ram Sewak Srivastava cannot be given to him i.e. no Mandamus can be issued to the respondents to promote Ram Sewak Srivastava on the post of ad hoc principal of the College in view of dismissal of his earlier writ petition by me.
81. In view of the observations made by me herein above, the Writ - A No. 67815 of 2015 filed by Ram Sewak Srivastava is dismissed and Writ - A No. 43032 of 2017 is partly allowed. Writ - A No. 86 of 2016 filed by Subhash Bhatt is dismissed and Writ - A No. 68446 of 2015 filed by Uday Bhan Singh stands allowed.
82. No order as to costs.
Order Date :- 06.09.2018 LBY