Harish Chandra Chaudhary vs Deputy Director of Education and Others

D.K. Seth, J.—Petitioner and the Respondent No. 5 were appointed as Lecturer in Bajna Inter College, Bajna, District Mathura in the Department of Chemistry and Biology respectively in the scale and grade of Rs. 315-550 on 24.10.1971 (Annexure 2). The Petitioner and Respondent No. 5 both Joined on 25.10.1971 (Annexure-3). The approval of the District Inspector of Schools to the said appointments were accorded on 30.10.1972 (Annexure 4). After completion of period of probation of one year the Petitioner and Respondent No. 5 both were confirmed on 25.10.72 in view of clause 9 (b) of Regulations 3 of Chapter II of the Regulation framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the said regulation and the 1921 Act respectively). The Petitioner having been born on 1.1.1947 and the Respondent No. 5 on 17.10.1949, the Petitioner is senior to the Respondent No. 5. Accordingly in the seniority list prepared by the Committee of Management Petitioner''s name was placed above that of Respondent No. 5. In the seniority list prepared on 19.9.92 and 20.3.1995 (Annexures 5 and 6) the Petitioner''s name was shown at serial No. 3 while that of Respondent No. 5 at serial No. 5. The said two lists were prepared after inviting objection. The District Inspector of Schools by order dated 31.3.91 (Annexure-7) declared the Petitioner senior to Respondent No. 5. In the meantime all the teachers senior to the Petitioner having retired on 30.6.1995 and 3.6.1995 respectively the Petitioner had become the senior-most teacher and accordingly he was entitled to officiate as officiating principal In view of Section 16E of the 1921 Act read with Regulation 2(1) of Chapter II of the said regulation. Despite application made by the Petitioner claiming for being given the charge of officiating principal on account of his being senior-most teacher, the Respondent No. 2 attested the signature of Respondent No. 5 in violation of Section 16F of the Act read with Regulation 2 of Chapter II framed under the 1921 Act without disposing of the Petitioner''s representation or claim. It is further contended that no resolution as required u/s 16E of the 1921 Act for appointing Respondent No. 5 as senior-most teacher as principal has ever been taken by the management. The Petitioner had filed writ petition being Writ Petition No. 22698 of 1995 since been disposed of on 21.8.1996 by directing Respondent No. 1 to consider and dispose of the Petitioner''s representation within six weeks by an order dated 21.8.1995 (Annexure 9). Pursuant to the said directions by an order dated 1.1.1996 (Annexure 11) the Respondent No. 1 decided the Petitioner''s representation holding the Petitioner junior to the Respondent No. 5. It is this order which has since been challenged by means of this writ petition.

Mr. Ashok Khare, learned Counsel for the Petitioner contends that since no appointment can be made in a substantive vacancy without approval of the District Inspector of Schools, therefore, the date of approval is the date from which seniority is to be counted, the date of Joining has no relevance for the purposes of counting seniority. According to him the date of approval being one and the same for both the Petitioner and Respondent No. 5 the seniority has to be determined on the basis of the date of birth and Petitioner being senior in age should be treated as senior to Respondent No. 5.

Mr. Ashok Bhushan, learned Counsel for Respondent No. 5 on the other hand, contends that though the Petitioner purported to join on 25.10.1977 but in effect Joined on 1.12.1971. Immediately after joining the Petitioner went on leave and came back to Join on the date mentioned above. In Para 7 of the counter-affidavit he has asserted that the Petitioner has been a teacher and working to a different school till 30.11.1971, therefore, after Joining he had taken leave to complete his service in the said school. The Petitioner came back to join on 1.12.1971 whereas Respondent No. 5 had joined on 25.10.1971, therefore, by reason of his earlier joining Respondent No. 5 is senior to the Petitioner. He contended that time spent on employment in another school cannot be counted for determining seniority in the present school. He further contends that the date of approval is irrelevant. Inasmuch as the date of approval relates back to the date of appointment and/or Joining. The question of seniority is to be determined from the date since when the salary is being paid regularly. Since the Petitioner was in another school till 30.11.1971 and he had not resigned therefrom, therefore, the Petitioner cannot claim payment of salary from the present school for the month of October and November, 1971. Inasmuch as a person cannot hold two employment simultaneously.

After having heard Mr. Ashok Khare, learned Counsel for the Petitioner and Shri Ashok Bhushan, learned Counsel for the Respondents it appears that the facts are not disputed. Both the Petitioner and Respondent No. 5 were appointed on 24.10.1971 and had Joined on 25.10.71 from which date Respondent No. 5 continued to serve as Lecturer while the Petitioner went on leave and resumed his duties only from 1.12.1971. It is not disputed by the Petitioner that he was serving another school till 31.11.1971. it is also not disputed that the approval to both appointment were accorded on 30.3.1972 while both of them were confirmed on 25.10.72. It is also not disputed that Petitioner was shown senior to Respondent No. 5 by reason of his being born on 1.1.1947 compared to that of Respondent No. 5 being born on 17.10.1949. It is also not disputed that Petitioner was shown senior in the list prepared on 19.9.92 and 29.3.1995. On account of retirement of the other senior teachers, now the Petitioner and Respondent No. 5 are two senior-most teachers. Signature of Respondent No. 5 has been attested by Respondent No. 2. a senior-most teacher to officiate as principal by the order dated 10.7.1995 (Annexure I) and the question of seniority was determined by an order dated 1.1.1996 (Annexure-II) by the Respondent No. 1 pursuant to the order passed in Writ Petition No. 22698 of 1995. On these background the question of seniority is required to be determined.

The question appears to be a question of law pure and simple depending on the interpretation of relevant provision determining seniority. Mr. Ashok Khare, learned Counsel for the Petitioner relied upon the decision in the case of Smt. Omi Bala Nigam v. Regional Inspectress of Girls'' Schools, Jhansi Region, Jhansi and Ors. 1986 UPLBEC 69, in order to support his contention that if the date of approval is same then the seniority is to be determined on the basis of the age factor. He further relies upon the decision in the case of Bahadur Singh Gaur v. D.I.O.S., Kanpur and Anr. in Writ Petition No. 318 of 1983 disposed of by his Lordship the Hon''ble Mr. Justice Sudhir Narain on 14.11.1994 in support of his contention that the seniority is to be determined on the basis of the date of approval of appointment and the date of Joining is irrelevant for such purpose. The question of seniority is dependant on the date of initial entry either on the date of appointment or on the date of Joining or on the date of approval or confirmation as the case may be. The same is to be determined on the basis of the rules and regulation governing the service conditions if there be any. The same has to be determined on the basis of the rules and regulations as was existing at the relevant material point of time. It is not dependent on subsequent rules that might be framed unless the same specifies by express provision or by implication of retrospective operation of the provision governing seniority. Admittedly, in the present case there are no rules governing seniority on the date material for determining the same. The subsequent amendment admittedly, have not been given retrospective operation. These questions are not disputed.

Prior to 1976 amendment the Regulation framed under U.P. Intermediate Education Act did not contain any provision similar to Regulation 3, Chapter II for the purposes of determination of seniority. The only provision contained in 1921 Act was in Section 16A that two teachers to be selected by rotation, according to the seniority, be included n the Committee of Management. So far as Chapter II of the Regulation is concerned, there was nothing mentioned about the seniority. Whereas Chapter III in Regulations 19 provided for promotion of a teacher from one grade to other in the order of seniority having satisfactory record of service for filling up leave vacancy or the vacancy for part of the Session. Apart from the said provision neither 1921 Act nor the Regulations framed thereunder consisted any provision by which seniority can be fixed or in case of any dispute the same can be determined. Now the fact remains that the concept of seniority was present both in the Act and in the Regulations. In fact the Committee of Management normally maintained seniority.

Therefore, a system is required to be evolved for the purposes basing the reasoning on the situation existing upon reconciling the: provisions in good sense of justice and well administered process flowing from the principles of equity in the true sense of Justice. The system sought to be evolved hereafter, in any view satisfies the above test.

In absence of any specific provision until 1976 Amendment of the Regulations substituting Chapter II the seniority determined by the Committee of Management and not disputed by the parties till 1976 shall be held to be valid. In case of any dispute, if not raised prior to 1976, the same shall become subject to 1976 amendment as soon as the same became operative. Inasmuch as in absence of specific provisions, it cannot be left to the whims of the Committee of Management since the Legislature has intended to lay down the procedure for determining the seniority in 1976 substituted Regulations. Similar principle may be applied in respect of cases of seniority of teachers appointed prior to 1976 provided a dispute is raised after 1976. Inasmuch as the provision of 1976 amendment has not been made retrospective. Therefore, the same being prospective the dispute raised after 1976 can be determined on the basis of the said rule. For the purposes of filling up void principle akin to 1976 amended Regulations may be borrowed or applied in the case of determination of such dispute raised after 1976 though the appointment might have been made prior to 1976. However, in case such a dispute has not been raised within reasonable time after 1976 amendment has come into force and the parties have allowed the determination made by the Committee of Management prior to 1976 to continue, in that event it will be presumed that the parties had accepted the position and had waived their right. The question can never be allowed to be reopened at the belated stage long afterwards when the same position has been accepted by the parties by reason of the conduct of the parties in not questioning the position and lapse of a very long period results into waiver of the right and estoppel of the claim and acquiescence, except in cases where there are sufficient explanation explaining the delay or in a case where substantial injustice is being inflicted exception in the exceptional cases the question cannot be allowed to be reopened at a belated stage when it was never disputed so long. The provisions contained in the amended regulation in Chapter II as substituted are basically simple and rational which fact cannot be denied. Therefore, there would be no injustice if the same principle is applied while deciding such dispute after 1976.

After substitution of Chapter II in the Regulation in 1976, the position becomes clear. In Clause (b) of Regulation 3 of Chapter II of the Regulations framed under the 1921 Act providing that seniority of teachers in a grade shall be determined on the basis of their substantive appointments in that grade. If two or more teachers were appointed on the same date, the seniority shall be determined on the basis of age.

In the case of Smt. Omi Bala Nigam (supra), the Division Bench has observed as under:

We find that in both the cases appointment letters were Issued on the same date. Appointment letters clearly indicated that the service could be joined either on 1.7.64 or immediately thereafter. It did not mention that the Petitioner was required to join on 1.7.64 itself. It was on account of this fact that the Petitioner Joined the service on 6.7.64 she would not loose her right of seniority, particularly when the date of approval in both the events was the same, i.e., 15.9.64. Joining of service had to be considered in the light of the approval also.

After the said observation in the said case, it was held as under:

the date of substantive appointment spoken of in Clause (b) of Regulation 3, Chapter II of the Act should be construed as the date after approval has been accorded by the District Inspector of Schools u/s 16G. Inasmuch as requirement is to obtain prior approval to the appointment, a date on which a teacher Joins 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 or 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.

Upon such observation the seniority determined by the Committee of Management, in the said case, on the basis of age, was accepted as correct.

In the case of Bahadur Singh Gaur (supra), it has been held that the date of approval is relevant. The date of joining is not the determining factor for deciding the seniority unless it is shown that candidate did not join the institution within the same time prescribed for joining as given in the appointment letter. The said proposition was laid down on the ground that if such interpretation is given in that event the Committee may manipulate the seniority issuing appointment letter according to their choice to one candidate earlier than the other. It was also considered that such interpretation would work injustice inasmuch as the candidate living at nearest place would be able to join earlier than the candidate living at a distant place. Another ground akin to those mentioned on the judgment may also be added for consideration namely that by reason of delay on postal delivery a letter may be delivered earlier to one candidate and later to other. This being unpredictable the same cannot be determining factor.

In case of Smt. Omi Bala (supra), it was also pointed out that unless the appointment letter mentions the particular date for joining, the date of Joining is irrelevant. In order to appreciate the position it is necessary to refer to the relevant provision for determination of seniority.

Section 16E so far it is relevant for our present purpose provides that:

16E. Procedure for selection of teachers and head of institutions. -- (1) Subject to the provisions of this Act, the Head of Institution and teachers of an institution shall be appointed by the Committee of Management in the manner hereinafter provided.

(2) Every post of Head of Institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct recruitment after intimation of the vacancy to the Inspector and advertisement of the vacancy containing such particulars as may be prescribed, in at least two newspapers having adequate circulation in the State.

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(10) Where the State Government, in case of the appointment of Head of institution, and the Director in the case of the appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary.

In terms of Regulation 16, Chapter II as it stood prior to the substitution of Chapter II in 1976 an appointment letter is to be issued by the Committee of Management after the approval of the District Inspector of Schools is obtained. The said Regulation 16 prior to its amendment provides as under:

Order of appointment. -- Within two weeks of receipt of approval of the selected candidate for appointment as Principal, Headmaster or Teacher, the Manager shall, on authorization under a resolution of the Committee of Management, issue an order of appointment to the candidate mentioning therein among other particulars, the salary, scale of pay and period of probation and with instructions to Join duty within a fortnight of receipt of the appointment order. The appointment of a candidate falling to report for duty within this period will be liable to termination. A copy of the order of appointment shall be sent to the authority prescribed in Section 16F (2) read with Section 16F (5) for information and record to his office.

The seniority of the teacher has to be determined according to Regulation 3 of Chapter II of the said Regulations stood amended w.e.f. 7.7.1976 which provides as under:

(1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions:

(a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post;

(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;

(bb) Where two or more teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted;

Provided that if such length of service is equal, seniority shall be determined on the basis of age.

A combined reading of the said provision indicates that person can only be appointed when he is recommended by the selection committee constituted under Sub-sections (2) and (3) of Section 16E and approved. After such approval, the management has to issue the appointment letter in terms of Regulation 16, Chapter II of the said Regulations which specifically mentions that after the approval, the Head Master or the Manager is to be authorised under the resolution of the Committee of Management to issue an order of appointment to the candidate with the instruction to join duty within the fortnight of the receipt of the appointment order and if the candidate fails to report for duty within a period would be liable to termination. The seniority is to be prepared if the substantive appointment is on the same date on the basis of the age. It is not a case of promotion as contemplated in Clause (bb) of Regulation 3(1), here the Petitioner is in the same grade right from beginning, therefore, the question falls within the purview of Clause (b) which provides determination of seniority.

In the present case as it appears from the appointment letter, no specific date for Joining was mentioned. It is also admitted that the said appointment letter was issued without obtaining the approval. Since the appointment is made under old Regulation 16, Chapter II in view of the expression used in the said Regulation, the appointment denotes, appointment made after receipt the approval and a resolution taken by the Committee of Management in terms of Regulation 16, Chapter II of the ''old'' Regulation. The regulation prescribes that a resolution has to be adopted authorising the Head Master or the Manager after the approval as contemplated u/s 16F (10) read with Regulation 16, Chapter II (old). Only after such resolution is adopted the appointment letter could be issued. This clearly indicates that the appointment would follow the approval. In case the appointment is made on the same date pursuant to such approval, the date of joining, admittedly, becomes immaterial. It is more so even If appointment is issued prior to approval and the incumbents join pursuant to such appointment before approval, in case no approval is forthcoming, the appointment becomes non est therefore, the date of joining prior to the approval cannot have any relevance. The date of joining can be relevant only in exceptional cases when despite receipt of the appointment the incumbent deliberately delays to Join for an indefinite or long period. However, in the facts and circumstances of the present case, this Court is not called upon to decide the question as to what would happen if the Joining is beyond 15 days from the date of receipt of the appointment letter because the said question does not call for consideration In the facts and circumstances of the present case.

In the present case, admittedly, both the candidates had joined before the approval, therefore, the date of joining In the present case is wholly irrelevant.

Similar view has been expressed in the case of Prabhu Narain Singh v. Deputy Director of Education, Varanasi and Anr. 1977 ALR 191. wherein it has been held that a person does not acquire the status of a teacher unless the approval of his appointment is granted by the District Inspector of Schools and the mere fact that he was working in the institution will not confer the status of a teacher.

In the case of I.S. Tome v. District Inspector of Schools, Meerut and Ors. 1993 AWC 1752, it has been held that unless the approval is granted the status of a teacher cannot be conferred. The principle for determining the seniority shall be taken from Regulation 3(1)(b) of Chapter II as inserted in the year 1976.

In the case of Lalit Mohan Mishra v. District Inspector of Schools and Ors. 1979 ALJ 1025, it has been held that a person gets status of a teacher only from the date of order of approval.

Therefore, in the facts and circumstances of the case, it is not necessary to go into the question as to whether the Petitioner could be given benefit of his Joining on 25.10.1971 because he was employed in another school till 30.11.1971. No material, however, is forthcoming to state that the Petitioner''s employment in the other school was also an appointment with the approval of the District Inspector of Schools conferring upon him the status of a teacher. However. In the facts and circumstances of the case it is not necessary to embark upon the determination of the said question.

In view of the ratio decided in the cases, referred to above, that the date of approval is the relevant date and the date of Joining particularly prior to the date of approval has no significance or relevance as the determining factor of seniority. Here in the present case the date of approval being the same the seniority is to be determined on the basis of the age of candidates.

The same was rightly done by the Committee of Management which is the authority to decide the seniority. All disputes relating to seniority is to be determined by the Committee of Management. The decision of the Committee of Management had been accepted by Respondent No. 5 right from 1971. even in the order of approval, the Petitioner was shown senior to the Respondent No. 5. The seniority list prepared by the Committee of Management also had shown the Petitioner to be senior to Respondent No. 5. The said seniority list was also prepared after inviting objection. At no material point of time, Respondent No. 5 had challenged the said fixation of seniority. By reason of his conduct, he had acquiesced and waived his right if there be any (though there was none), therefore, at this late stage, he is estopped from claiming the same.

In that view of the matter, the impugned order, contained in Annexure II. determining the seniority of Respondent No. 5 above that of the Petitioner, therefore, cannot be sustained and is liable to be quashed. By reason of above observation, the Petitioner is senior to Respondent No. 5. Since it is the senior-most teacher who Is entitled to officiate as principal, therefore, the order, contained in Annexure 1, also cannot be sustained in view of the findings that Respondent No. 5 is junior to the Petitioner. Therefore, the said order also cannot be sustained and is liable to be quashed.

In the result, the writ petition succeeds and the impugned orders, contained in Annexures I and II respectively, are quashed. Accordingly, a writ of certiorari do issue. Since the Petitioner is senior-most teacher the Respondent No. 2 is to pass appropriate orders for attesting the signatures of the Petitioner for the purposes of appointing him as officiating Principal for the period until a regularly selected Principal is available. Accordingly a writ of mandamus do issue. The writ petition, thus, is allowed. There will, however, be no order as to costs.