Bechan Ram vs State of U.P.and Others

Shailendra Saksena, J.—In both these writ petitions, common question of law and facts are involved, hence both these petitions are being disposed by a common judgment.

Writ petition No.3965 (S/S) of 2004 was made the leading case, hence whenever reference to any annexure is made, it relates to writ petition No.3965 (S/S) of 2004.

Both the petitioners are working as L.T. grade teachers in Navjeevan Inter College, Mohanlalganj, Lucknow, herein after referred to as ''the College'', which is recognized College under the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder. The College is under grantinaid scheme of the State Government and the salary of the teachers and other employees is paid under U.P. High School and Intermediate College (Payment of Salaries to Teachers and other Employees) Act, 1972. Both the petitioners were selected by U.P. Secondary Education Services and Selection Board, Allahabad, hereinafter referred to as ''the Board''. Petitioner Bechan Ram, the petitioner of W.P. No.3965 (SS) 2004 was selected by the Commission, on 16.10.1996 intimation was sent to the District Inspector of Schools opposite party No.3 of his selection. Opposite party No.3 the District Inspector of Schools on 31.10.1996 sent a letter to the Manager of the College opposite party No.4 requiring him to issue appointment letter/ orders within a period of fifteen days. The Committee of Management opposite party No.4 passed a resolution on 22.11.1996 approving the appointment of the petitioner. In pursuance of this resolution, appointment letter was issued on 23.11.1996 and on 26.11.1996, the petitioner joined his duties in the College on the post.

Lalmani the petitioner of writ petition No.7335 (SS) 2003 was selected in the Selection Board on 3.10.1996. The order of the District Inspector of Schools directing the Manager of the College to appoint the petitioner as L.T. grade teacher in the College was issued on 14.11.1996. Thereafter on 23.11.1996 the appointment letter appointing the petitioner in L.T. grade was issued by the Manager. On 26.11.1996 the petitioner joined the College.

In this manner both the petitioners had joined their duties as L.T. grade teachers in the College on 26.11.1996.

Since both the petitioners had joined on 26.11.1996, the dispute arose as to who should be treated as the senior and in this connection, Regulation to Section 16 (E) and 16(F) and 16 FF are relevant. Regulation 3 provides that every dispute about the seniority shall be referred to the Committee of Management, which shall decide the same giving reasons for the decision. It has also been provided under Regulation 3(1)(b) that 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. One, who is senior in age, would be treated as the senior. In the manner seniority has to be determined on the basis of age, if two teachers join on the same date. It has not been disputed that Lalmani, the petitioner of writ petition No.7335 (SS) 2003 senior in age to Bechan Ram. Both had joined the College on the same date on 26.11.1996.

But in the seniority list, petitioner Bechan Ram was being shown to be senior, on which petitioner Lalmani had raised objections. The Committee of Management in the seniority list of the teachers for the year 199899, placed Bechan Ram above Lalmani. In the seniority list for the year 19992000, same was shown, hence petitioner Lalmani submitted a representation on 13.5.2000 to the Manager of the College requesting for his correction of joining date as 26.11.1996.

Petitioner Lalmani had joined in the afternoon of 26.11.1996, whereas petitioner Bechan Ram had joined in the forenoon of 26.11.1996. Hence, on this basis, Bechan Ram was being shown as senior. The date of joining of Lalmani was being treated as 27.11.1996 on the ground that he had joined in the afternoon. Hence, for all practical purposes, the joining date would be deemed to be 27.11.1996.

Both the petitioners applied for appoint for the post of Lecturer (Sanskrit), which had fallen vacant due to retirement of one teacher Sri Krishan Pal. This post was to be filled up by promotional quota from eligible L.T.grade teachers under 50% promotional rule. The senior most teacher working in the grade was likely to be promoted. Since the petitioner Bechan Ram was being shown as senior in L.T. grade teacher in the seniority list of 2000, the Committee of Management recommended the promotion of Bechan Ram.

Representation regarding fixation of seniority of petitioner Lalmani was considered by the Management in its meeting on 12.10.2002 holding petitioner Bechan Ram, as senior and resolved to send the service book and other papers to the Selection Committee for his promotion to the post of Sanskrit Lecturer.

Feeling aggrieved against the decision of the Management, petitioner Lalmani preferred as appeal dated 29.11.2003 to the Joint Director of Education, VI Region, Lucknow opposite party No.2, the opposite party No.2: Joint Director of Education by his order dated 12.11.2003 rejected the appeal of petitioner Lalmani. Petitioner Lalmani has challenged this order of the Joint Director opposite party No.2, in his writ petition.

In both these writ petitions, the question as to who is to be treated as senior, has been raised. Reliance was placed on the principles of law laid down in the case of Pilla Sitaram Patrudu and others v. Union of India and others, (1996) 5 SCC 637, wherein it was laid down that if an appointment of direct recruits was delayed for no fault on the part of that recruit, but due to laches on the part of the department, direct recruit is entitled to be appointed according to Rules. His seniority would be computed from the date of joining, the recruit is entitled in the ranking given to him in the select list. On the basis of the law laid down in this case, there was clear laches on the part of the Management of the College and he cannot be made to suffer on account of laches of the College Management. On 31.10.1996, the District Inspector of Schools opposite party No.3 has sent a letter to the Manager of the College, requiring him to issue appointment order within a period of fifteen days but the Management of the College opposite party No.4 passed a resolution on 22.11.1996. It was only on 23.11.1996 the appointment letter was issued. In the case of petitioner Lalmani, letter of the District Inspector of Schools was issued on 14.11.1996 directing the Manager to appoint him as L.T. grade teacher in the College. The appointment letter was issued on the same day i.e. on 23.11.1996 and both the petitioners joined on 26.11.1996. The petitioner Bechan Ram had joined in the forenoon, hence it has clearly been held that he would be treated to have been appinted and joined his duties on 26.11.1996, whereas Lalmani had joined in the afternoon on 26.11.1996. Hence, for all practical purposes, his joining was treated to be on 27.11.1996. His salary from 27.11.1996 was made payable to him. As the salary was made payable from 27.11.1996, hence, it would be treted that he had joined on 27.11.1996. In this manner, he cannot claim seniority. Under Reg. 3(1)(b) ChapterII, seniority of teacher in a grade has to be determined on the basis of their substantive appointment in that grade.

Consequently, petitioner''s seniority in the L.T. grade was liable to be determined with reference to the date on which the District Inspector of Schools accorded approval for the appointments in the L.T. grade and on this account also petitioner Bechan Ram, as argued, has to be treated as senior. To support this contention, reliance was also placed on the principles of law laid down in the case of Mahendra Prakash Kulshreshtha v. District Inspector of Schools, Mainpuri and others, reported in 1984 UPLBEC 1342, wherein above said principles were laid down.

In the case of Smt. Omi Nigam v. Regional Inspectress of Schools, Jhansi and others, reported in 1986 UPLBEC 69, it was laid down that the date of substantive appointment spoken of in Clause (b) of Reglation 3 of Chapter II, of the Act, should be construed as the date after approval has been accorded by the District Inspector of Schools under Section 16(g), inasmuch as, requirements is to obtain prior approval to the appointment. The approval is condition precedent to the appointment. Without approval there could be no appointment and joining of service would be contravention of the provisions of the Act and the Regulations framed thereunder. Seniority could not be counted with effect from that date. Joining of service has to be construed in the light of approval also. Same were reiterated in the case of Committee of Management, Beni Madho Inter College, Beni Madho Nagar, Pratapgarh and others v. District Inspector of Schools, Pratapgarh and others, (W.P. No.12097 of 1990 along with connected petitions). In Bahadur Singh Gaur v. District Inspector of Schools, Kanpur and others, (1995) 3 UPLBEC 1751, it was laid down that seniority of a teacher has to be determined on the basis of the date of grant of approval of the selection by the District Inspector of Schools. The date of approval by the District Inspector of Schools is relevant date for determining the seniority of the candidate.

In the facts of the present case, the principles of law laid down in the above mentioned cases fully apply in the case of petitioner Bechan Ram. It cannot be disputed that both the petitioners i.e. petitioner Bechan Ram and petitioner Lalmani had joined on the same date. Lalmani was senior in age but, his effective date of joining cannot be treated as 26.11.1996 because he had joined in the afternoon and for all practical purposes, the effective date would be 27.11.1996. The Joint Director of Education opposite party No.2, after considering all the facts, in my opinion, has come to the correct conclusion that petitioner Bechan Ram would be treated to be senior. The Joint Director of Education after considering all the facts, which have also been mentioned in his order dated 12.11.2003, has drawn the correct conclusions. In view of the above facts, no interference in the order, which has been passed by the Joint Director of Educaiton opposite party No.2 is called for.

Petitioner Lalmani has placed reliance on a case of Hari Kumar Awasthi v. The District Inspector of Schools, Barabanki and others reported in 1986 UPLBEC 1102, which in the facts and circumstances of the present, do apply in the present case.

The petition, which has been filed by petitioner Bechan Ram (writ petition No.3965 (SS) 2004), deserves to be allowed and it is allowed, whereas petition filed by petitioner Lalmani (writ petition No.7335 (SS) 2003) deserves to be dismissed and it is accordingly dismissed.

It is directed that the opposite parties, who had determined the interse seniority of the petitioners on the basis of the above facts, will issue and implement, order of promotion on the post of Leturer (Sanskrit) accordingly, with all consequential benefits.

(Ordered accordingly)