Allahabad High Court
Ramvir Sharma S/O Gulab Singh vs State Of U.P. Through Secretary, ... on 24 May, 2007
Author: Vineet Saran
Bench: Vineet Saran
JUDGMENT Vineet Saran, J.
1. By means of this writ petition, the petitioner is challenging the order dated 19.6.2006 whereby his representation with regard to fixation of seniority vis-a-vis the respondent No. 5 as well as other teachers has been rejected. A further prayer has been made for a direction in the nature of mandamus commanding the respondents to declare the petitioner as senior to the respondent No. 5 and the petitioner be given charge of officiating Principal.
2. I have heard Sri Arvind Singh, learned Counsel appearing for the petitioner as well as learned Standing Counsel appearing for the State-respondents and Sri Sujit Sinha, learned Counsel appearing for the contesting respondent No. 5. Pleadings have been exchanged and with consent of the learned Counsel for the parties, this writ petition is being disposed of at this stage.
3. Brief facts of this case are that when the management had placed the respondent No. 5, Anil Kumar Saxena as senior to the petitioner, Ramvir Sharma, the petitioner represented to the Joint Director of Education. When the said representation was not decided, he filed Writ Petition No. 50031 of 2005, which was disposed of by this Court vide judgment and order dated 13.1.2006, with the direction to the Joint Director of Education to decide the appeal/representation of the petitioner within three months, after giving opportunity of hearing to the petitioner as well as other concerned teachers. Thereafter when the application was not decided, the petitioner filed Contempt Petition No. 2369 of 2006, which was disposed of on 25.5.2006 with the direction to the Joint Director of Education to comply with the order and decided the representation. Pursuant thereto, the Joint Director of Education passed the impugned order dated 19.6.2006 rejecting the representation of the petitioner.
4. While deciding the representation, the Joint Director of Education has categorically held that approval to the promotion of the petitioner, Ramvir Sharma as Lecturer was granted by the Regional Committee headed by the Joint Director of Education on 12.2.1999, whereas the approval to the promotion of the respondent No. 5, Anil Kumar Saxena as Lecturer was granted by the Regional Committee on 20.1.2004. The submission of the learned Counsel for the petitioner is that even if the respondent No. 5 had been promoted on adhoc basis prior to the petitioner (which is, however, disputed by the petitioner) then too he could not be considered as senior to the petitioner, as the date of promotion would become effective from the date of grant of approval and not the date of adhoc promotion. A Division Bench of this Court in the case of Smt. Omi Bala Nigam v. Regional Inspectress of Grils Schools 1986 UPLBEC 69, in paragraph 9 of the judgment, held that "The date of substantive appointment spoken of in Clause (b) of Regulation 3 of Chapter II of the Act should be construed as the date after approval has been accorded by the District Inspector of School under Section 16-G. Inasmuch as requirement is to obtain prior approval to the appointment, a date on which a teacher joints before approval would not be considered a, date of substantive appointment. As stated above, approval is a condition precedent to appointment. Without approval, there could be no appointment and joining of service would be in contravention of the provisions of the Act and Regulations framed thereunder. Accordingly, seniority could not be counted with effect from that date.
(Emphasis supplied)
5. In a more recent judgment in the case of Jagat Narain Dwivedi v. Deputy Director of Education (1998) 1 UPLBEC 181 this Court has, in paragraph 13 held that "The whole controversy has arisen because the petitioners are treating the date and time of joining the post in lecturer's grade as the determining factor, whereas a critical analysis of provisions of law and various decisions of this Court leaves one with no doubt in mind that the determining factor for the purpose of fixing interse seniority is not the dale of joining the post but it is the date of accord of approval of appointment by the approving authority. In a somewhat similar situation, a Division Bench of this Court in the case of Smt. Omi Bala Nigam v. Regional Inspectress of Grils Schools, Jhansi Region, Jhansi and Ors. reported in (1986) 1 UPLBEC 69, dealt with the identical issue in the following manner and held that it is the date of approval alone which is relevant for the purpose of fixing interse seniority."
(Emphasis supplied)
6. A categorical finding of fact has been recorded by the Joint Director of Education that approval to the promotion of the petitioner was granted on 12.2.1999, whereas approval to the promotion of respondent No. 5 was given on 20.1.2004. Such finding of fact has not been disputed by either of the parties. In such view of the matter, since under the provisions of law, the factor relevant for determining and fixing the interse seniority is not the date of joining the post but it is the date of accord of approval to such appointment by the approving authority, in my view, the rejection of the representation of the petitioner was not justified as the petitioner had been granted approval for being promoted as Lecturer was prior to that of the respondent No. 5, and thus while fixing interse seniority, the petitioner ought to have been placed senior to the respondent No. 5.
7. For the foregoing reasons, the order dated 19.6.2006 passed by the respondent No. 2, the Joint Director of Education, Agra Region, Agra is quashed. The respondent No. 2 is directed to pass fresh orders, in accordance with law, and in the light of the observations made hereinabove, within 15 days from the date of filing of a certified copy of this order before the said respondent No. 2.
8. This writ petition stands allowed to the extent indicated as above. No order as to costs.