Mohan Chandra Kandpal vs Joint Director of Education and Others

Sudhanshu Dhulia, J.—Heard Sri Manoj Tiwari, Senior Advocate assisted by Sri Alok Mehra, Advocate for the Petitioner, Sri N.P. Sah, Standing Counsel for the State Uttarakhand and Sri Rajendra Dobhal, Senior Advocate assisted by Sri Subhash Upadhyay, Advocate for Respondent No. 4.

The Petitioner is a lecturer in a grant in aid intermediate college known as "Adarsh Inter College, Suraikhet (Bitholi), District Almora. There is an inter se seniority dispute between the Petitioner and Respondent No. 4 Sri Anil Kumar Pant. Whereas the Petitioner is a lecturer in Chemistry, Respondent No. 4 is a lecturer in Mathematics in the same college.

From the pleadings it is evident that the admitted facts are as follows:

While the Petitioner was appointed in an ad-hoc capacity on the post of lecturer on 16.8.1990, Respondent No. 4 was appointed as a lecturer again in ad-hoc capacity on 1.8.1986. Subsequently whereas the Petitioner was regularized as a lecturer vide order dated 10.4.1996 but with effect from 7.8.1993, Respondent No. 4 was regularized vide order dated 10.8.1996 though with effect from the same date i.e. 7.8.1993. It is also admitted that in age Respondent No. 4 is elder to the Petitioner inasmuch as whereas the date of birth of the Petitioner is 3.2.1966 the date of birth of Respondent No. 4 is 15.12.1965. The management committee of the said school though issued an inter se seniority list whereby the Petitioner was declared as senior to Respondent No. 4. Respondent No. 4 challenged this seniority list before the Joint Director of Education, Kumaon Region, Nainital who gave an order dated 6.11.2003 (annexure No. 8 to the writ petition) in favour of Respondent No. 4. It is a short order passed by the Joint Director of Education which was made on a representation made before the said education authority by Respondent No. 4 on 1.10.2002. The education authority (i.e. the Joint Director of Education, Kumaon Region, Nainital) states that Respondent No. 4 was appointed in ad-hoc capacity on 1.8.1986 and the Petitioner was appointed on 16.8.1990 though they were regularized with effect from the same date i.e. 7.8.1993. Moreover, Respondent No. 4 is senior in age to the Petitioner, as his date of birth is 15.12.1965 as against the date of birth of the Petitioner which is 3.2.1966. As such, the Joint Director, Education, Kumaon Region, Nainital declared Respondent No. 4 to be senior to the Petitioner. Aggrieved the Petitioner challenged the said order by filing the present writ petition being Writ Petition (S/S) No. 1504 of 2003 before this Court.

Counter affidavits have already been filed by the State as well as Respondent No. 4. Rejoinder affidavit filed by the Petitioner in Court today is taken on record.

From the pleadings available before this Court and from the facts which are admitted by both the parties, Respondent No. 4 is liable to be declared senior to the Petitioner on various counts. First and foremost ground is that Respondent No. 4 was working as a lecturer prior to the Petitioner. While the Petitioner was working since 16.8.1990, Respondent No. 4 was working since 1.8.1986. Admittedly both of them were working on ad-hoc capacities. Learned senior counsel for the Petitioner argued that there would be a difference between the two which is that whereas the Petitioner was working on a substantive vacancy (though in ad-hoc capacity) Respondent No. 4 was only working on a leave vacancy. For our present purposes, whether the two incumbents were working in ad-hoc capacity on a leave vacancy or on a substantive vacancy has little relevance. The fact of the matter is that Respondent No. 4 has an advantage over the Petitioner if we take into consideration their respective continuation in office.

More particularly what again goes in favour of Respondent No. 4 is that he was regularized on same date i.e. on 7.8.1993, as the Petitioner. The fact that the actual date when the Petitioner was regularized was earlier than the date when Respondent No. 4 was regularized has little relevance because what will be relevant is the date on which their regulation was made effective and not the date on which regularization orders were passed.

Third advantage which is in favour of the Petitioner is that his date of birth is earlier to that of the Petitioner, and admittedly he is older to the Petitioner. All these are relevant considerations while determining the inter se seniority, between the two.

The counsel for the Petitioner challenged the order of the Joint Director, Education dated 6.11.2003 on another two grounds as well. The Court must note down these grounds before deciding the case. These are, firstly, the management committee had passed an order declaring the inter se seniority list on 17.3.2000 whereas the appeal was filed by Respondent No. 4 on 1.10.2002. The Petitioner relies upon Regulation 3(1)(f) of Intermediate Regulations which was in operation at the relevant time. Regulation 3 (1) (f) of Intermediate Regulations reads as follows:

(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) ....

(b) ....

(c) ....

(d) ....

(e) ....

(f) Any teacher aggrieved by the decision of the Management Committee under Sub-clause (e) within 15 days of the date of information of such decision to the teacher, may appeal to concerned Regional Deputy Director and on appeal after giving an opportunity of hearing to the concerned parties, Deputy Director will give his decision with reasons, which will be final and executed by the Management Committee.

It is not clear from the records as to when was the appeal filed by Respondent No. 4 against the inter se seniority list dated 17.3.2000. Assuming that it was filed belatedly, these defects are curable. The stringent appreciation of law of limitation as is applicable in a regular Court of law will not be applicable here. The defect being curable it will be deemed that the concerned authority had condoned the delay before passing the said order.

The second objection raised by the Petitioner is that order dated 6.11.2003 was passed without affording any opportunity of hearing to the Petitioner. The order dated 6.11.2003 was passed on admitted facts such as the date of initial appointment of the Petitioner and Respondent No. 4, the date on which they were effectively regularized and the their date of birth. Since the order is passed on the basis of these dates only, it is absolutely irrelevant as to whether personal or reasonable opportunity of hearing was necessary in the matter. The principle of natural justice and fair play is not a "Bull in a China Shop" but in essence it is good conscience in governance. This is what has been said by Justice V. R. Krishna Iyer in the seminal judgment of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, :

...For fairness itself is a flexible, pragmatic and relative concept not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one''s bonnet. Its essence is good conscience in a given situation; nothing more - but nothing less.

This Court finds no anomaly in the order dated 6.11.2003 (Annexure No. 8 to the writ petition) passed by the Joint Director, Education, Kumaon Region, Nainital.

Writ petition is totally devoid of merit and is liable to be dismissed and is hereby dismissed.

No order as to costs.