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Judgment
Sudhir Narain, J.—This writ petition is directed against the order dated 2651997, passed by the Regional Deputy Director of Education (Secondary) Vth Region, Gorakhpur, respondent No. 1, holding that Indra Dev Shahi, respondent No. 6 is senior to the petitioner and is entitled to function as ad hoc Principal of Janta Uchchattar Madhyamik Vidyalaya, Batulihai, District Deoria ("hereinafter referred to as the Institution).
The Institution was initially established as a Junior High School and was granted recognition in the year 1970. Subsequently, the institution was upgraded and was granted recognition as High School in the year 1977. It came into the grantinaid list of the State Government in the year 1983. Shri Shiv Shankar Lal, Principal of the Institution retired on 30th June 1993. The petitioner claimed that he should be appointed as the Principal being seniormost teacher in the institution. Respondent No. 5 claimed that the petitioner is junior to him and he should be appointed as Principal of the Institution.
On 1371994, the Deputy Director of Education directed respondent No. 5 to make representation to the Committee of Management for redressal of his grievance. Respondent No. 5 made representation to the Committee of Management on 1471994 claiming that he was senior to the petitioner and was entitled to ad hoc promotion to the post of Principal of the institution. The Committee of Management passed resolution on 11th September 1997. The Committee of Management by resolution held that respondent No. 5 is senior to the petitioner and is entitled to function as ad hoc Principal. Respondent No. 5 made representation to the District Inspector of Schools to approve his appointment as ad hoc Principal. The District Inspector of Schools did not pass any order. Respondent No. 5 filed Writ Petition No. 2493 of 1996, seeking mandamus against the respondents to permit him to function as Principal. In the said writ petition an order dated 2211997 was passed directing the Deputy Director of Education to pass appropriate order on the representation of respondent No. 5. Respondent No. 1 has decided the said representation by the impugned order dated 26597, holding that respondent No. 5 is senior to the petitioner and is entitled to function as principal.
Sri R. S. Misra, learned counsel for the respondent raised a preliminary objection that the petitioner has alternative remedy of filing appeal before the Director of Education and this Court could not, in these circumstances, exercise the jurisdiction under Article 226 of the Constitution of India.
Sri Ashok Khare, learned Counsel for the petitioner contended that the order passed by the Regional Deputy Director of Education is final in respect of his decision relating to the seniority of the teachers and no appeal lies against this order. He has placed reliance upon clauses (e) and (f) of Regulation 3 of Chapter II framed under the U.P. Intermediate Education Act, as amended, read as under:
"(e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision;
(f) Any teacher aggrieved from the decision of the Committee of Management under subclause (e) may prefer an appeal to the Deputy Director of Education of the Region concerned within fifteen days from the date of communication of such decision to such teacher. The Regional Deputy Director of Education shall decide the appeal by a reasoned order after affording opportunity of hearing to the parties concerned. The decision of the Deputy Director of Education of the Region concerned in appeal shall be final and shall be given effect to by the Committee of Management."
(As translated from Hindi)
Clause (7) of U. P. Secondary Education Services Commission (Removal of Difficulties) Order 1981 provides for deciding a dispute in relation to the promotion and direct recruitment. Clause (7) was amended by U. P. Secondary Education Services Commission (Removal of Difficulties) IVth Order 1982 which reads as under:
"3. Amendment of para 7.In the said Order, in paragraph 7, for subparagraph (1) the following subparagraph (1) and (1A) shall be substituted, namely
(1) Every dispute connected with the promotion or direct recruitment under this Order shall be referred to the Deputy Director of Education of the region concerned for decision.
(1A) An appeal against the decision of the Deputy Director of Education may be made to the Director whose decision thereon shall be final."
The contention of learned counsel for the Respondent is that the dispute was, in fact, regarding ad hoc promotion to the post of Principal. The dispute involves the question of determination of seniority but the order which purports to decide the question of promotion is appealable to the Director of Education. Learned Counsel for the petitioner contended that the dispute is regarding seniority and in respect of the seniority the matter can be decided by the Committee of Management and against its decision the appeal lies to the Regional Deputy Director of Education. This order is final under clause (f) of Regulation 3 of Chapter II. The provision of clause (7) of U.P. Secondary Education Services Commission (Removal of Difficulties) Order 1981 (hereinafter referred to as the Order) is not applicable. The Deputy Director of Education has power to decide as to who can be promoted on a dispute being referred to him. The dispute regarding promotion may involve determination of the seniority by the Regional Deputy Director of Education. This power is being exercised under .Clause (7) of the Order. The Regional Deputy Director of Education will decide the dispute regarding seniority under clause (T) of Regulation 3 of ChapterII of the Regulations but on a dispute being raised regarding promotion, he can exercise the power under clause (7) of the Order. Once the matter relating to promotion is decided the order is appealable under subclause (ii) of clause (7) to the Director of Education.
There is another aspect of the matter. The promotion to any post in an institution governed by the provisions of U. P. Intermediate Education Act, is to be made in accordance with the provisions of U.P. Secondary Education Services Commission and Selection Board''s Act 1982 (hereinafter referred to as the Act). Section 16 of the Act provides that notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made therein to the appointments/promotions are to be made in accordance with the provisions of the said Act. Section 18 of the Act provides for ad hoc appointment/promotion of the teachers, Section 32 of the Act provides that the provisions of the Intermediate Education Act 1921 and the Regulations made therein in so far as they are not inconsistent with the provisions of the Act or the Rules of the Regulation made thereunder, shall continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. Section 33 confers power on the State Government for passing the orders. The U. P. Secondary Education Services Commission (Removal of Difficulties) Order 1981, as amended from time to time has been issued under this provision.
The provisions under Rule 3 of ChapterII of the Regulations framed under the U. P. Intermediate Education Act provides for determination of the seniority by the Committee of Management. It does not provide for determining any dispute relating to promotion to a post of teacher/principal. Clause (7) of the Order is the specific provision. The specific provision will override the general provisions relating to the determination of seniority. When the dispute relates to the promotion on the basis of seniority, such dispute can be decided under clause (7) by the Regional Deputy Director of Education and against this decision the appeal will lie to the Director of Education.
In view of the above, the petitioner has alternative remedy of filing an appeal before the Director of Education.
The writ petition is accordingly dismissed.