Kamla Sharma (Smt.) vs Deputy Director of Education and Others

A.K. Yog, J.—This petition under Article 226, Constitution of India has been filed by one Smt. Kamla Sharma seeking to challenge the impugned order dated November 1/2, 1993 passed by Respondent No. 1/Dcputy Director of Education deciding appeal regarding seniority in favour of Respondent No. 3 (Smt. Usha Varshaney, both working as lecturers in a recognized Intermediate Girls Institution called Chiranji Lal Girls Inter College, Aligarh (called the ''College''), which is, admittedly governed by the provisions of U.P. Intermediate Education Act, 1921 (as amended up to date) and Regulations framed, thereunder. Copy of impugned order has been filed as (Anncxure-1 to the Writ Petition).

For appreciating the controversy raised by the parties, following undisputed dates are being given ;

Sl. Dates Events No. 01 08.07.1966 Smt. Kamla Sharma the Petitioner was appointed as a Lecturer (English) at Agrasen Balika Inter College, Mathura (where the Petitioner worked up to 13th July, 1970). 02 08.07.1969 Smt. Usha Varshaney, Respondent No. 3 was appointed as C.T. Grade Teacher at Chiranji Lal Balika Higher Secondary School, Aligarh. 03 01.09.1969 Respondent No. 3 was given promotion as Lecturer (Sanskrit). 04 10.10.1969 Chiranji Lal Balika Higher Secondary School was upgraded as Inter College. 05 10.02.1970 Regional Inspectress of Girls Schools approved appointment of Respondent No. 3 as C.T. Grade Teacher on one-year probation. 06 16.06.1970 Regional Inspectress of Girls Schools approved Respondent No. 3 as Lecturer (Sanskrit). 07 14.07.1970 Petitioner was appointed and she joined as Lecturer in Chiranji Lal Balika Inter College, Aligarh. 08 24.11.1970 Regional Inspectress of Girls Schools approved the Petitioner''s appointment as Lecturer in Chiranji Lal Balika Inter College, Aligarh. 09 14.08.1983 Resolution was passed by Committee of Management for adding services of Petitioner from 08.07.1963 to 13.07.1970 at Agrasen Inter College, Mathura into services at the institution from 14.07.1970 recommending grant of selection grade to the Petitioner. 10 02.04.1989 Petitioner submitted representation to the Committee of Management to correct determination of seniority and to place her next to Principal as senior-most Lecturer. 11 19.04.1993 Authorised Controller decided the seniority declaring the Petitioner as senior-most Lecturer. Respondent No. 3 held junior to the Petitioner. 12 02.11.1993 Deputy Director of Education, on appeal filed by Respondent No. 3 against order dated 19.04.1993 declared Respondent No. 3 senior to the Petitioner.

Heard learned Counsel for the petitioner Shri Ashok Bhushan, the learned Standing Counsel appearing on behalf of Respondent Nos. 1 and 2 (v/ho had accepted notice for Respondent No. 2 also) and Shri B.B. Paul, Advocate appearing on behalf of Respondent No. 3.

There is no dispute that Smt. Kamla Sharma (Petitioner) did not challenge the seniority of Smt. Usha Varshaney (Respondent No. 3), who was ever-since the appointment of the Petitioner in the College till 1989, was treated senior to the Petitioner. The Petitioner''s Counsel, however, referred to Para 2 of Annexure RA-3 (filled along with the Rejoinder Affidavit) to show that the Petitioner had made representations dated 29th December, 1973, 22nd April, 1974, 25th April, 1978 and 25th July, 1983. It is further alleged that the Petitioner had made representations dated 2nd April, 1989 and 1st June, 1989 also before Authorised Controller but no action was taken. The fact that Petitioner did not pursue her representations and aforementioned dates clearly show that there is gap of about four years between 1974 and 1978 as well as gap of five years between 1978 and 1983. In case. Committee of Management was not circulating seniority, as required under relevant regulations. The Petitioner ought to have raised the issue before higher authorities or proper Court. She approached this Court for a writ of mandamus to command the Respondents to treat the petitioner senior to Respondent No. 3 by allowing long time of more than a decade to run and she contended by filing representations with no decision on them. Long since and passive approach of her disentitle her to reopen long settled old issues.

In reply filed by Respondent No. 3 before the Appellate Authority (Annex"re CA 16 to the counter-affidavit) Respondent No. 3 categorically pleaded that her senior position above the petitioner was never disputed by the Petitioner during 1970-1989 (PP 60, 63 and 66 of the Counter-Affidavit). Respondent No. 3 categorically pleaded that her seniority after 18 years should not be allowed to be disturbed by permitting petitioner to challenge her initial appointment lecturer, which was direct appointment and not by promotion. Respondent No. 3 categorically contended that she could not be promoted from C.T. Grade to Lecturer Graduate to intervening cadre of Assistant Teacher L.T. Grade of Assistant Teachers. Respondent No. 3 claimed that she was duly appointed as Lecturer when College was upgraded to Intermediate level in 1970 and the recommendation in favour of the Petitioner by Committee of Management was approved by the then Regional Inspectress of Girls Schools vide order dated 16th June, 1970 (Annexure 13 to'' the Supplementary Affidavit). This order of ''approval'' has not been challenged by anyone and so long as this order of approval in favour of Respondent No. 3 as Lecturer in the College stands, the Petitioner cannot be permitted to challenge the appointment of Respondent No. 3 at this stage while claiming seniority after long time as it will amount to collateral challenge.

In the facts of the present case it has to be accepted that Respondent No. 3 was validly appointed with the approval of Regional Inspectress of Girls Schools under order dated 16th June, 1970, The argument of the Petitioner, now after several years that Respondent No. 3 could not be promoted from C.T. Grade to Lecturer Grade in the College when the Petitioner has been treated junior to Respondent No. 3 ever since 1970 to 1989, cannot be permitted.

It is not the case of the petitioner that Respondent No. 3 did not possess requisite minimum academic qualification for being appointed as Lecturer in the year 1970. Respondent No. 3 having been allowed without any objection to work and or there being no charge of misrepresentation or fraud being practiced by the said Respondent No. 3 one cannot be permitted and justify challenge to the initial appointment at a belated stage after about 18 years. There is no averment that Petitioner''s had made above referred representations within the knowledge of Respondent No. 3. In absence of any knowledge to Respondent No. 3 about challenge to her initial appointment, nor it was earlier challenged by the Petitioner or anyone else, it is not expedient to allow the Petitioner to challenge the same after several years.

The learned Counsel for the petitioner referred to the case of Shitla Prasad v. State of U.P. AIR 1936 SC 1859. The above mentioned case of Shitla Prasad. is clearly distinguishable on facts inasmuch as in the aforementioned case petitioner did not possess requisite academic qualification. In the instant case, there is no dispute that Respondent No, 3 possessed all the requisite minimum academic qualification prescribed under the relevant Act and the Regulations framed thereunder at the time of appointment.

The argument on which Petitioner seeks to assail appointment of Respondent No. 3 is whether Respondent No. 3 could be validly appointed by way of promotion from C.T. to the post in Lecturer Grade without first being promoted to L.T. Grade and completing five years in L.T. Grade.

Petitioner in support of above submission refer to the use of word ''promotion''. Mere use of expression ''Promotion'' in appointment letter or otherwise under misconception of facts and or ''language'' cannot change the real nature of appointment nor can it be permitted to be used as a pretext to establish illegality/irregularity in the process-particularly when there is no fault or participation of the Respondent No. 3 and also that about decades have passed. Obviously Respondent No. 3 could not be appointed by way of promotion but by direct selection only subject to her possessing prescribed minimum academic qualification at the relevant time.

As the record stands, it cannot be ruled out that Respondent No. 3 was not appointed through regular selection by direct mode. The then Regional lnspectress of Girls Schools to the appointment of Respondent No. 3 accorded approval and it will be deemed, in absence of to the allegation contrary, that she had, after scrutinizing the papers did not find lacuna in this appointment of Respondent No. 3 and consequently accorded approval to the appointment of Respondent No. 3. It cannot be now permitted to be assailed on technical grounds like the above.

The learned Court for the petitioner then referred to the case of Smt. Prem Balika Rai v. Regional Inspectress of ''Girls Schools, Varanasi and Ors. connected with the case of Malti Singh v. Regional Inspectress of Girls Schools (1993) 2 UPLBEC 922. As already mentioned above, fact of the instant case are different to the extent that in the present ease Respondent No. 3 is claiming her appointment by direct selection. The controversy raised in the fact of Prem Balika Rai (supra) was entirely different;

On the other hand, learned Counsel for the Respondent referred to the decision of Dr. Asha Saxena v. S.K. Chaturvedi (1991) 2 UPLBEC 1202 wherein a Full Bench of this Court observed that law is to the fact that law is well settled that Court will not interfere with the seniority which has prevailed and remained final for long time.

Apex Court, in the case of Malcom Lawrence Cecil D''souza Vs. Union of India (UOI) and Others, , has taken a similar view while it observed that before one can seek remedy, one must show having acted with due diligence and promptitude.

It will be noted that Courts do not permit collateral challenge by allowing one to assail initial appoint to disturb ''seniority'', particularly when there is no allegation of fraud or misrepresentation. The above view finds support from the decisions of the Apex Court in :

Gokaraju Rangaraju Vs. State of Andhra Pradesh, ;

2 Sheonandan Paswan Vs. State of Bihar and Others, ;

3 Beopar Sahayak (P) Ltd. and Others Vs. Vishwa Nath and Others, .

Besides what has been argued at the Bar and referred to above, this Court would like to note that Petitioner did not implead Committee of Management of the College. Instead she had impleaded the Authorised Controller, Chiranji Lal Balika Inter College, Aligarh/City Magistrate, Aligarh. Assuming that there was a validly elected Committee of Management, constituted as contemplated under the Scheme of Administration under the "UP. Intermediate Education Act, 1921", the aggrieved party, in case the Petitioner is granted relief, shall be Committee of Management. The Authorised Controller is appointed under the Act only to represent the Committee of Management for time being for day to day function. The Authorised Controller is, in fact, not the Committee of Management as such. Committee of Management ought to have been impleaded in the petition and sought to be served through Authorised Controller instead of Manager. In the absence of Committee of Management, which is not only relevant but also necessary party in the instant case, the Petitioner cannot be granted relief claimed in the Writ Petition.

It may be noted that the whole dispute of seniority between Petitioner and Respondent No. 3 assumed importance and became significant inasmuch as under U.P. Secondary Services Commission Act senior-most teacher is required to take over on ad hoc basis if regular incumbent is not available.

In view of the above, I find no error apparent on the face of record. The Writ Petition lacks merit. It is, accordingly, dismissed.

No costs.