Jaldeo Singh vs Deputy Director of Education Jhansi and Another

R. B. Mehrotra, J.—The perennial problem of seniority amongst teachers of Intermediate College is involved for consideration in the present writ petition. The contestants in the writ petition are Sri Jaldeo Singh, Lecturer in Agriculture in J. P. Sharma Intermediate College, Baberu, district, Banda (hereinafter referred to as the Institution) who is the petitioner and is claiming seniority over Sri Ram Kripal Sahu, Lecturer in Chemistry in the Institution who has been arrayed as respondent No. 2 in the writ petition. The writ petition is directed against an order of the Deputy Director of Education, Jhansi, dated 1st of June, 1994, determining the inter se seniority amongst teachers of the Institution wherein Ram Kripal Sahu has been shown at Serial No. 2 and his date of appointment in the clear vacancy has been shown to be 871968 whereas the date of appointment of the petitioner, Jaldeo Singh in the clear vacancy has been shown to be 871969.

The contention on behalf of the petitioner is that he was appointed in a clear vacancy on probation as far back as on 771965 and on the aforesaid basis the petitioner claims seniority over respondent No. 2.

The writ petition came up for admission before me on 18111994 and after hearing the learned counsel for the petitioner, I was of the opinion that the version of the respondent may also be heard before admitting the writ petition. Consequent thereto three weeks time was granted to the counsel for the respondent No. 2 who was present as caveator. It was also indicated that the writ petition itself can be decided at the admission stage. The counter and rejoinderaffidavits have been exchanged. At the time of hearing for admission of the case, the counsel for the parties agreed that the case itself may be finally decided at the admission stage itself. Accordingly, the writ petition was finally heard with the consent of the parties as per rules of the Court.

I have heard Sri R. C. Srivastava learned Senior Advocate, duly assisted by Sri M.M. L. Srivastava for the petitioner and Sri Wajahat Hussain, learned counsel for the respondents.

Facts necessary for the decision are as under:

A letter dated 771965 has been filed as Annexure1 to the writ petition wherein the Principal of the Institution has sent information to the petitioner, Sri Jaldeo Singh that with reference to his application, the petitioner has been appointed on one year''s probation, subject to the approval of the District Inspector of Schools. It was also mentioned that the petitioner will be given one advance increment. The service book of the petitioner has been filed which shows that the date of the appointment of the petitioner is 771965. The copy of the letter of the District Inspector of Schools dated 1591965 has been filed as Annexure2 wherein the District Inspector of Schools has made query from the Manager of the Institution that in the list of vacancies on From ''A'' only 8 posts have been shown but approval for appointment of 13 teachers has been sought. The letter further made query that remaining five posts should be shown giving name of the incumbents held by the person last year. Second query was made that approval for temporary appointment of Sarvshri Jaldeo Singh and Gyan Singh has been sought while they are fully qualified for the post, at such, they can be appointed on probation,.

Another letter of the District Inspector of Schools dated 12101965 has been filed as Annexure3 to the writ petition wherein the District Inspector of Schools has approved the appointment of two teachers on probation and the, appointment of seven teachers was approved temporarily. In the list of these seven teachers the name of the petitioner also finds place at Serial No. 1. Another letter of the District Inspector of Schools dated 2631969 has been filed as Annexure4 to the writ petition wherein the subject of the letter is ''approval for the appointment of the teachers appointed in the year 6667, wherein the District Inspector of Schools has informed the Manager of the Institution with reference to his letter dated 2031969 that it is clear from the letter of the Manager dated 1011967 that while selecting the teachers the provisions of Section 16''F'' of U. P. Intermediate Education Act and the Regulations framed thereunder have not been complied with and the teachers have been appointed on their availability and all the concerned papers have also not been submitted in this connection. According to the rules only after completing the formalities under Section 16F of the U, P. Intermediate Education Act the teachers should have been appointed. However, in the special circumstances, the temporary appointment of the following teachers is approved. In this letter the name of the petitioner finds place at Serial No. 1 and in the column manner of appointment it is mentioned that the appointment has been made temporarily for the Session 6667 only. Thereafter a copy of the resolution of the Committee of Management dated 22101967 has been filed as Annexure5 to the writ petition wherein the Committee of Management has passed resolution that the services of the teachers are being made permanent from the date of their appointment and in the list of teachers, the name of the petitioner No. 1 finds place at Serial No. 1 and in the column date of appointment from which the teachers have been made permanent; against the name of the petitioner 771967 is mentioned.

As far back as on 871968 the seniority list of the teachers of the Institution was prepared by the Committee of Management, wherein the respondent No. 2, namely, Ram Kripai Sahu was shown at Serial No. 5 and bis date of appointment was shown as 871968 whereas the name of the petitioner was shown at Serial No. 9 and his date of appointment was shown as 871969. The petitioner claims that after a lapse of 8 years the petitioner made a representation against the aforesaid seniority list on 2141976. The copy of the representation has been filed as Annexure7. However, the petitioner claims to have filed second representation against the aforesaid seniority list on 591980 after a lapse of 4 years. A copy of this representation has been filed as Annexure8. It is further alleged in the writ petition that when no action was taken by the Committee of Management, the petitioner made a representation to the District Inspector of Schools on 1861992 through proper channel. On the said representation, the Deputy Director of Education referred back the matter to the Committee of Management of the Institution with a direction to determine the seniority of the teachers under the provisions of Regulation 3, Chapter2 of the Regulations framed under U. P. Intermediate Education Act. The Committee of Mahagement, vide its resolution dated 1841993 held that the petitioner has been confirmed on the post of Lecturer by the Committee of Management on 771965 whereas Ram Kripai Shahu was appointed on 87196S and on the aforesaid basis, the Committee of Management decided that the petitioner is senior to Sri Ram Kripai Sahu. Consequent to the resolution of the Committee of Management another list of seniority was amongst the teachers of the Institution wherein Jaldeo Singh was shown senior to Sri Ram Kripal Sahu and the date of appointment of Jaldeo Singh was shown as 771965 whereas the dade of appointment of Ram Kripal Sahu was shown as 871968. Jaldeo Singh was shown in the list at Serial No. 2 while Ram Kripal Sahu has been shown at Serial No. 7.

Aggrieved by the aforesaid resolution and the determination of seniority, Ram Kripal Sabu preferred a representation to the Deputy Director of Education. The Deputy Director of Education called for the comments from the District Inspector of Schools and also called for the comments of the Committee of Management and issued notice to all concerned teachers against whom Ram Kripal Sahu was claiming seniority. Jaldeo Singh, the petitioner was also given notice of the appeal. Sri Jaldeo Singh put in appearance before the Deputy Director of Education and the Committee of Management also placed their point of view in the matter. After hearing all concerned, the Deputy Director of Education has determined the seniority amongst the teachers of the Institution wherein the petitioner has been shown at SI. No. 6, while the respondent No. 2 Sri Ram Kripal Sahu has been shown at Serial No. 2. As already stated, the aforesaid order of the Deputy Director of Education is under challenge in the present writ petition.

Chapter2 Regulation3 of the Regulations framed under U. P. Intermediate Education Act is the concerned regulation, the same is reproduced below :

"3(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 basis of 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.

(c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service ;

(d) If a teacher who is placed under suspension is reinstated on his original post, his original seniority in the grade shall not be affected :

(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 Inspector within fifteen days from the date of communication of such decision to such teacher and the decision of the Inspector in appeal shall be final and shall be given effect to by the Committee of Management.

(2) The seniority list shall be revised every year and the provisions of clause (1) shall mutatis mutandis apply to such revision."

It may be mentioned that later on Regulation (f) has been amended and now the appeal liest to the Deputy Director of Education instead of District Inspector of Schools. As such, the appeal was decided by the Deputy Director of Education. The parties do not dispute this position.

The crucial question for determination is as to on what date the petitioner was appointed on substantive basis as Lecturer. The appointment on substantive basis can be made if there is a clear vacancy for the post. In this connection the representation of the petitioner filed before the Deputy Director of Education which has been filed as Annexure15 to the writ petition is relevant to be mentioned. In Paragrapa2 of this representation it is mentioned that initially Sri Kedar Nath Singh Yadav was appointed on the post of Lecturer in Agriculture whose appointment was approved on 1891965. After his death a clear vacancy arose for the post on which the petitioner was appointed on 771965. This statement clearly shows that the appointment of regular incumbent Sri Kedar Nath Singh was approved on 1891965. Subsequent thereto, he died, so on /71965 there was no vacancy on the post of Lecturer in Agriculture and the petitioner''s appointment on the said date could not have been made in a clear vacancy. In this background it is clear that the District Inspector of Schools has throughout been saying that the petitioner was not appointed in accordance with the Act and Rules, however, in the special circumstance the approval for the appointment of the petitioner was given only on temporary basis. It is not disputed by the petitioner that the advertisement for the post of Lecturer in Agriculture in the Institution was published on 461969 whereas the respondent No. 2 was already appointed on the post of Lecturer in Chemistry in the year 1968. On the basis of the service book of Sri Ram Kripal Sahu and Sri Jaldeo Singh, the District Inspector of Schools in his comments, sent in appeal has submitted that Sri Jaldeo Siagh the petitioner is continuing in his post since 771965 but he has been permitted to be included in the provident fund from 22/231270 and he has been shown to have been made permanent on the basis of the resolution of the Committee of Management dated 1471970 i.e., after completion of one year''s probation whereas Sri Ram Kripal Sahu respondent No : was included in the scheme of provident fund on 131969. His date ''of appointment is showed as 871968 and he is also shown to be working in the Institution from 871966.

From the entire record, it is clear that the petitioner has not been able to demonstrate that there was clear vacancy for the post of Lecturer in Agriculture in the Institution before 1969 and his appointment before 1969 was made on substantive vacancy, as such, the petitioner''s contention that he was appointed in the year 1965 on substantive vacancy cannot be accepted. The letters of the District Inspector of Schools, which have been referred to earlier in this judgment, clearly show that the petitioner''s appointment in the year 1965 was not made in accordance with the provisions of the Act and Rules and there was no substantive vacancy wherein the petitioner could have been appointed.

Learned counsel for the petitioner has laid stress on two points Firstly, the learned counsel for the petitioner has placed reliance on the resolution of the Committee of Management filed as Anoexure5 to the writ petition wherein th? Committee of Management passed a resolution that the petitioner is being made permanent from 771967. There is nothing on record to show that this resolution was ever forwarded to the District Inspector of Schools or the District Inspector of Schools approved the aforesaid resolution. What was the occasion for passing the aforesaid resolution is not clear. On the other hand, the Committee of Management while determining the seniority of the Lecturers of the College, as far back as in the year 1968 has shown Sri Ram Kripal Sahu as senior to the petitioner and shown the date of appointment of Sri Sahu as 871968 whereas the date of appointment of the petitioner was shown to be 871969. There is nothing on record to show that the petitioner protested against the aforesaid seniority list. The first representation which has been filed is of year 1976 i.e., after 8 years. Thereafter the petitioner again remained silent for 4 years and filed second representation in the year 1980 and again for 12 years, the petitioner remained silent and the third representation was made only in the year 1992 when perhaps the petitioner realised that with the connivance of the Management he can claim seniority over Ram Kripal Sahu and thereby become acting Principal of the college. These facts itself show that the petitioner acquiesced to the seniority list published by the Committee of Management and did not effectively pursue his remedy against the aforesid seniority list.

Second submission of the learned counsel for the petitioner is that in view of the 5th Removal of Difficulty Order 1976, issued under Section 22 of U. P. Intermediate Education Act, the petitioner should be deemed to have been permanently appointed even in case where the appointment was made as a temporary measure. The counsel for petitioner has placed reliance on Paragraph3 of the aforesaid Removal of Difficulties Order which is reproduced as under :

"(3) Where any person was appointed by the Committee of Management as a teacher on or before June 30, 1975 for any period as a temporary measure with the approval or permission of the Inspector and such person has worked thereafter upto November 15, 1976, he shall be deemed to have been appointed in a susbstantive capacity

(a) in case t**e appointment was initially made in a clear vacancy, from the date of appointment;

(b) in case .the appointment was initially made in a leave vacancy or a vacancy occurring for a part of the session or otherwise than in a clear vacancy, from the date when such vacancy assumed the character of clear vacancy ;

(c) in case the appointment was initially made on a post, the creation of which was sanctioned subsequently by a competent authority in that behalf, fro a the date of such sanction ;

(d) in case he did not possess the prescribed qualifications at the time of initial appointment from the date of acquisition of such training qualification ;

Provided that in cases referred to in subclause* (a), (b) and (c), such person possesses the prescribed qualification or has been exempted from the requirements of minimum qualifications and was duly selected and appointed in accordance with law for the tile being inforce.

Explanation.The period during which any such teacher has, between the date of his appointment and November 15, 1976, ceased to work for any reason not arising out of his misconduct or his own request shall not continue a break into service for purposes of this clause."

Clause (a) of the aforesaid paragraph is relevant which provides that deeming clause will be applicable only if the appointment was initially made in a clear vacancy on the date of the appointment. It is thus clear, that since the appointment of the petitioner was not made in a clear vacancy, the petitioner cannot be given the benefit of the aforesaid deeming provisions. It is being stated at the cost of repetition that the petitioner has completely failed to demonstrate that the petitioner''s initial appointment in the year 1965 was made in a clear vacancy. On the other hand the documents filed by the petitioner himself demonstrate that the appointment of the petitioner was made in the year 1965 contrary to the provisions of the Act and Rules. However, as a special measure, the appointment of the petitioner was approved on temporary basis so that the petitioner may not suffer salary which he has received.

Learned counsel for the petitioner has also submitted that while determining the seniority, the question of the validity of the appointment of the teachers cannot be looked into and has placed reliance on some decisions in support of the aforesaid proposition. The aforesaid submission is out of context, as under the relevant Regulation, the seniority is to be determined, only on the basis when the petitioner''s appointment has been made on substantive basis. The appointment on substantive basis can be made only when there is a substantive vacancy. The petitioner having failed to prove that there was a substantive vacancy in the college for the post of Lecturer in Agriculture in the year 1965, the petitioner cannot be given the benefit of his temporary appointment on the post of Lecturer in the college. The counsel for the petitioner has also laid stress on casual observation of the District Inspector of Schools in his letter dated 1591965 wherein the District Inspector of Schools made a query as to why the petitioner has not been appointed on probation. However, in the same letter another query was made as to why 13 teachers have been recommended whereas there are only 8 posts. The petitioner has not been able to show that the petitioner was appointed in 8 posts available. On the contrary it is demonstrated from the record that the petitioner''s appointment was made, though there was no vacant post of Lecturer in Agriculture. The validity of the appointment of the petitioner is not being looked into, neither the same is relevant. The petitioner continue as Lecturer. The only question is regarding his seniority which is to be determined from the date the petitioner has been appointed on substantive basis.

On analysing the entire situation, 1 am clearly of the view that the order of the Deputy Director of Education dated 161994 does not suffer from any error of law or of fact which calls for any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. The writ petition accordingly fails and is dismissed.

The parties will, however, bear their own costs.