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Judgment
1.In this writ petition, Counter and Rejoinder affidavits have been exchanged between the main contesting parties, i,e. petitioner and respondents Nos. 1 and 2. Respondents Nos. 3 and 4 appear to be proforma parties so far as the dispute which is subject matter of this petition is concerned. Learned counsel for parties have agreed that the petition may be decided finally at this stage.
The dispute in this writ petition is with regard to the seniority between petitioner and respondent No. 2. However, there does not appear to be much controversy so far as the facts of the case are concerned. It is admitted that petitioner initially joined the institution Raja Sharda Mahesh Inter College, Robertsganj, district Sonbhadra (hereinafter referred to as the College) on 2121958 as lecturer in English. Similarly, respondent No.2 joined on 6121958 as lecturer in Economics. Petitioner claims seniority over respondent No.2 on the basis of the aforesaid fact that he joined the College earlier as lecturer. However, both petitioner and respondent No. 2 were shown to have been reappointed on 971959 and an entry to this effect was made in their service record. It has been claimed by the petitioner that there was no break in service and as petitioner and respondent No. 2 both were appointed after 31st October, they were not paid salary for the period the College remained closed on account of summer vacation in view of the provisions contained in para 143 H of Chapter IV of the Education Code. However, the petitioner as well as respondent No. 2 continued in service on reopening of the College in the month of July, 1959. It has been further submitted on behalf of petitioner that both petitioner as well as respondent No. 2 applied for correction of their service record and on their application, the date of appointment was corrected and in the service book of the petitioner the date of joining was mentioned as 2121958, whereas in case of respondent No.2 it was mentioned as 6121958. Petitioner has filed extract of the service record as Annexures 3 and 4 to the writ petition to substantiate this fact. It has been further submitted that all along the petitioner was being shown senior to respondent No.2 and this position was not disputed. The seniority list has been filed as Annexure 5 to the writ petition. A list of seniority determined by the Committee of Management dated 791986 has also been filed by petitioner as Annexure 8 to the writ petition in which petitioner has been shown as senior to respondent No.2 and in this document 971959 has also been shown as the date of appointment against petitioner as well as respondent No.2. It has also been argued on behalf of petitioner that as seniority was not disputed by respondent No.2 for such a long time, he is estopped under law from disputing the same at this late stage. Petitioner also claimed that even if there was some illegality at the time of appointment that stood rectified subsequently and the illegality in the appointment cannot be considered in these collateral proceedings for determining seniority. Learned counsel for petitioner has assailed the order of the District Inspector of Schools dated 2191991, Annexure 12 to the writ petition, on the basis of the aforesaid submission. Learned counsel has also placed reliance on certain judgments which shall be discussed at the relevant place.
The case of the respondent No.2, on the other hand, is that the order of appointment was issued on 1121958 to petitioner as well as to respondent No.2, but as petitioner was a local candidate, he joined the service on the next day. However, respondent No. 2 on receipt of the appointment order could join the college on 6121958. It has been further submitted that this appointment was purely temporary and was done without reference to any selection committee and the appointment came to an end on 1451959 and in the month of July, petitioner as well as respondent No.2 were again appointed and this date of appointment was 971959 in case of petitioner as well as respondent No.2. It has been submitted that by resolution of the committee of management both were put on probation of one year from this date and both completed the period of probation on 971960 which has been shown in their service record. Learned counsel for respondent No. 2 has placed reliance on the resolutions dated 481959, 2751960 and 271960, filed as Annexures CA1, CA2 and CA3 to the counter affidavit. They have also placed reliance on the letter of appointment filed as Annexure CA3 to the counter affidavit filed on behalf of respondent No. 1. Learned counsel has also placed reliance on the document filed as Annexure CA2 to the supplementary counter affidavit which is the copy of the order of the District Inspector of Schools, Mirzapur dated 6111965 according approval to the appointment of petitioner and respondent No.2 along with other teachers. Learned counsel for respondents has submitted that there was no approval of the appointment of petitioner as well as respondent No.2 before this date and in view of the provisions contained in Section 16 F of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act), appointments could not be made without prior approval and in view of this legal position, petitioner and respondent No.2 though worked in the College, they could not get the status of teacher. Learned counsel has placed reliance on several decisions of this court in which the aforesaid view has been taken. On behalf of the respondents, relying on the option submitted in Form Ka, it has been further submitted that both petitioner and respondent No.2 submitted the options and they have mentioned the date of appointment in this vital document as 971959. As the date of appointment of petitioner as well as respondent No. 2 is the same, it has been submitted that respondent No.2 has rightly been held 16 be senior on the basis of date of birth as he is elder than petitioner. The date of birth of petitioner is 7121940 and date of birth of respondent No.2 is 21111936. Learned counsel for respondent has submitted that impugred order of the District Inspector of Schools dated 2191991 is perfectly justified and does not suffer from any error of law.
Learned counsel for respondents have referred to several other documents filed along with the writ petition, counter affidavit, supplementary counter and supplementary rejoinder affidavits but in my opinion for determining the controversy involved in the present writ petition, it is really not necessary to mention all these documents.
For appreciating the legal position with regard to the appointment of teachers, it would be appropriate to reproduce the relevant provisions of the Act which were applicable at the time of appointment of petitioner and respondent No.2. The provisions of the Act were amended by U.P. Act no. XXXV of 1958 which was published in the U.P. Gazette on 16101958. By this amending Act section 16 F was inserted which is being extracted below :
"16 F (1) Subject to the provisions hereinafter specified, no person shall be appointed as a Principal, Headmaster or teacher in a recognized institution unless he
(a) Possesses the prescribed qualifications or has been exempted under sub section (1) of section 16F.
(b) has been recommended by selection committee constituted under sub section (2) or (3), as the case may be, of the said section and approved, in the case of Principal or Headmaster by the Regional Deputy Director, Education, and in the case of a teacher by the Inspector :
Provided that if the Inspector is satisfied that for any institution no candidate, who possesses all the prescribed qualifications, is available for appointment he may permit the institution to employ as a temporary measure any suitable person for a period not exceeding one year. Such period may be extended with the prior approval of the Inspector :
Provided also that in the case of leave vacancy or of a vacancy occurring for a part of the session of the institution it shall be lawful for the Committee of Management to appoint a Principal, Headmaster or teacher if information of such an appointment is immediately conveyed to the Inspector.
(2) The name of the selected candidate shall be forwarded for approval, in the case of a teacher, by the principal or Headmaster to the Inspector, and, in the case of Principal or Headmaster, by the Chairman of the selection committee to the Regional Deputy Director, Education. A statement showing the names, qualifications and other particulars as may be prescribed, of all candidates who may have applied for selection shall also be sent along with the name of the selected candidate. The Inspector or Regional Deputy Director, Education, as the case may be, shall give his decision within two weeks of the receipt of the relevant papers, failing which approval shall be deemed to have been accorded.
(3) � � � � � � � �
(4) � � � � � � � �
From a perusal of section 16F(1) there remains no doubt that prior approval of the District Inspector of Schools was mandatory for appointment of a teacher. This court has taken consistent view that without approval of the District Inspector of Schools the appointee will not get the status of teacher. The earliest decision of this court on the point is incase of Arya Kanya Path shala and another v. Smt. Manarama Devi Agnihotri and others reported in 1971 ALJ 983 (DB). The same view was expressed by another bench in case of Lalit Mohan Mishra and another v. District Inspector of Schools and others reported in 1979 ALJ 1025 (DB). Thus, the requirement of approval of the District Inspector of Schools was a sine qua non for a valid appointment. In the present case it is not disputed that for the first time approval with regard to appointment of petitioner and respondent No.2 was accorded by the District Inspector of Schools by his order dated 6111965. It would be appropriate to reproduce this letter :
�From
The District Inspector of Schools,
Mirzapur.
To,
The Principal,
R.S.N. Inter College,
Robertsganj, Mirzapur
No. CC/2723/XII4(10) 6566, Dated Nov. 61965
Subject : Approval for appointment of teachers.
Sir,
With reference to the correspondence posting with your letter No 12/6465 dated 3041964, and the circumstances stated therein, I have to approve the appointment of teachers on the scale as approved by the department. Sarv Sri :
Vimlesh Kumar Singh, M.A. in Lecturer''s grade on one year''s probation.
Shiv Dhari Sharan Roy, M.A. in Lecturer''s grade on one year''s probation.
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Formal orders of appointment may please be issued to the teachers concerned under intimation to this office".
From a perusal of the aforesaid letter it is established that the approval was granted with respect to appointment of petitioner and respondent No.2 on 611 1965. The order also contained a direction to issue formal appointment letters to the teachers concerned and this appointment was to be for one year''s probation. As the petitioner and respondent No.2 both were serving in the College from before the said approval, it shall be assumed that they joined on the date of the order itself and, in my opinion, as the legal position then stood, they got the status of teacher on this date and for reckoning their seniority 6111965 shall be the relevant date. Regulation 3(1)(b) of chapter II provides that 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 day, the seniority shall be determined on the basis of the age. In my opinion, the substantive appointment of petitioner as well as respondent No.2 could not come in existence before 6111965 and since taking the aforesaid dale as the valid date of appointment of petitioner and respondent No.2, the seniority shall be determined on the basis of age. There is no dispute that respondent No.2 is older than the petitioner and thus has rightly been determined as senior. This Court in case of Smt. Om Bala Nigam v. Regional Inspectress of Girls Schools, Jhansi Region, Jhansi and others reported in 1986 UPLBEC 69 took the view that if the date of approval is the same among them, the age factor becomes relevant for determining seniority The date of joining in such cases becomes irrelevant. Para 9 of the aforesaid judgment is very relevant for the present case which is being reproduced below :
"The date of substantive appointment spoken of in clause (b) of Regulation 3 of Chapter II of the Act should be construed as the date after approval has been accorded by the District Inspector of Schools under Section 16F. Unless requirement is to obtain prior approval to the appointment, the date on which the teacher joins before approval could 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 of service would be in contravention of the provisions of the Act and the Regulations framed thereunder. Accordingly, seniority could not be counted with effect from that date."
The aforesaid view is further fortified by the view expressed by Hon''ble the Supreme Court in Sudama Singh v. Nath Saran Singh and others reported in (1988) 1 SCC 57. In this case the two teachers were promoted as lecturers on adhoc basis on different dates. The adhoc appointments were regularised and the appointments were made on substantive basis from a particular date by inserting section 16 GG in the Act. The Hon''ble Supreme Court took the view that in case both the teachers shall be deemed to have been appointed on substantive basis on the same date, the seniority shall be determined on the basis of the age as provided in Regulation 3 (1) (b) of Chapter II of the Regulations.
In the present case the District Inspector of Schools has found on the face of the record that petitioner as well as respondent No.2 were appointed no 971959 and from this date their appointment was made on probation and the period of one year probation stood completed on 971960 which is mentioned in the Service Record of both the petitioner and respondent No.2. From a perusal of the service record and the resolutions of the committee of management dated 481959/2751960 and 271960, filed as Annexure CA 1, C. A. 2, and C. A. 3 to the counter affidavit of respondent No.2, the finding of the District Inspector of Schools is perfectly justified. However, in absence of approval, this appointment and the completion of the period of probation by petitioner and respondent No.2 was of no consequence. The date of appointment prior to the approval of the District Inspector of Schools could not be treated as appointment on substantive basis and could not be reckoned for the purpose of seniority. The mistake committed by respondent No.1 is, however, of no consequence in the present case as the date of approval in respect of petitioner and respondent No.2 is the same and the seniority has to be determined on the basis of the age. In identical circumstances a learned Single Judge of this court in Civil Misc. Writ Petition No. 23643 of 1991 Nand Kumar Srivastava versus the District Inspector of Schools, Deoria and others has taken the same view with which I am in respectful agreement.
From the aforesaid discussion it appears that the respondent No.1 has rightly held respondent No. 2 senior than petitioner and the order does not suffer from any errors of law and requires no interference by this court. However, learned counsel for petitioner placed strong reliance on certain decisions of this court and Hon''ble Supreme Court which are being mentioned below.
The first submission of learned counsel for petitioner is that in writ petition challenging the seniority, the alleged illegalities committed in appointment or promotion could not be taken into account. The learned counsel has placed reliance incase of Vijai Narain Sharma vs. District Inspector of Schools, Etawah and others reportedin 1986 UPLBEC 44 and the case of Direct Recruit class II Engineering Officers Association and others versus State of Maharashtra and others reported in 1990(16) ALR 623 (SC).
I have considered the submissions of learned counsel and the cases relied on and, in my opinion, both the aforesaid judgments are clearly distinguishable on facts and cannot be of any help so far as the present case is concerned. In case before Hon''ble Supreme court the breach was with respect to the Rules prescribing the percentage of appointments in the cadre of deputy engineers for direct recruits and promotees. The argument was that the appointments made beyond the quota fixed by Rule 9 should not be recognized for purpose of fixing seniority. The submission was repelled by Hon''ble Supreme Court on the ground that quota rule was never followed and in such circumstances seniority has to be reckoned on the basis of continuous officiation. Similarly the learned single Judge of this court in case of Vijai Narain Sharma was dealing with different facts and circumstances. Here in the case in hand, the position is entirely different, as the appointment itself could not come in existence without there being approval of the Inspector.
Second submission of learned counsel for petitioner was about the break in the service. Learned counsel submitted that the appointment of the petitioner should be treated as on 2121958 and the alleged break on account of nonpayment of salary in view of para 143(h) of Education Code should be ignored, The learned counsel has placed reliance in case of Banaras Hindu University, Varanasi versus Dr. Indra Pratap Singh reported in AIR 199, SC 780 (sic), Karnataka State Private College Staff gap Lecturers Association versus State of Karnataka and others reported in AIR 1992 SC 677 and Manjuwati versus State of U.P. and others reported in (1991) 2 UPLBEC 980.
I have considered the submissions of the learned counsel for petitioner and in my opinion the analogy adopted in the aforesaid cases cannot be applied in the present case as in absence of necessary approval, the petitioner could not get the status of a teacher. The provisions of Section 16F, as it then stood, contained a prohibition against appointment without prior approval of the District Inspector of Schools. The petitioner has not been able to mention any other date of approval or deemed approval under Section 16 F on which basis his date of appointment could be taken to be earlier than that of respondent No.2, and in absence of this the only conclusion is that his appointment on a substantive basis took place on 6111965 along with respondent No.2. The aforesaid cases have no application to the facts of the present case.
The last submission of the learned counsel for the petitioner is that the seniority between the petitioner and respondent No.2 was determined long back and the petitioner was being treated as senior. However, it was not disputed by respondent No.2 and applying the principles of estoppel by conduct, he cannot be allowed to dispute the seniority at this stage. Reliance has been placed in a Full Bench case of this court in case of Dr. Asha Saxena versus Smt. S.K. Chaudhary and others reported in (1991) 2 UPLBEC 1202. However, this submission of the learned counsel for petitioner cannot be accepted for variety of reasons. Firstly, before this court the order of the District Inspector of Schools has been challenged by which the seniority has been determined. As on examination of the law and facts this court has found that the respondent No.2 has rightly been held senior, the order passed by the respondent No.1 cannot be set aside on the aforesaid grounds. This court has only been called upon to examine the validity of the said order :
The second very important aspect of the case is that respondent No. 2 was disputing the seniority list from the very beginning. In paras, 18, 19 and 20 of his counter affidavit he has alleged to have made several representations disputing the determination of seniority and showing petitioner senior to him. He has also filed copies of various representations as Annexures CA 15 to CA 19. This fact has been disputed by the petitioner in rejoinder affidavit and it has been alleged that after having made certain forgeries in the official record, the answering respondent changed his stand and started claiming seniority on the basis of his being older in age in comparison to petitioner. However, the allegations with regard to forgery are wholly vague and unwarranted. It has not been alleged as to how respondent No.2 could have access to change the record as alleged. Further a very noticeable fact in this regard is the observation of the District Inspector of Schools in the order :
It appears that there was no validly selected committee of management in the College. Even in 1960 Collector of the District functioned as president. The SubDivisional Officer was functioning as secretary. The scheme of administration was subject of discussion in the resolution dated 2751960 which is clear from resolution No.1. The District Inspector of Schools has observed that there is no approved scheme of administration and the committee of management has not been constituted in accordance with the same. In these circumstances, in my opinion, as there was no committee of management, respondent No.2 could not be blamed for not challenging the alleged seniority. The facts of the case before the Full Bench were entirely different from the facts of the present case and the ratio of the Full Bench cannot be applied to the present case: Further, as already observed, since after considering all the facts and circumstances it has been found that respondent No.2 is senior to petitioner, it will not be proper for this court to deny the respondent No.2 his genuine claim for which he is legally entitled in law.
For the reasons recorded, above, this writ, petition has force and is accordingly dismissed. No. order as to costs.