BAHADUR SINGH GAUR v. D I O S KANPUR — 1994 DIGILAW 808 (ALL)

SUDHIR NARAIN, J. Both these writ petitions are disposed of by a com mon judgment as the common questions of law and facts are involved. Writ Petition No. 318 shall be leading writ petition. Bahadur Singh Gaur shall be referred to as the petitioner and R. K. Shukla as respondent No. 3 in the judgment. 2. The main controversy is regarding seniority in between the petitioner and respondent No. 3 Rama Kant Shukla. The material facts are not in dispute. Sri Ajodhya Singh Intermediate College, Kashipur district Kanpur is a recognised institution under the provisions of U. P. Intermediate Education Act, 1921 (hereinafter referred to as the institution ). The Committee of Man agement of the institution advertised three posts pf lecturers. One post for lecturer in Economics, second for lecturer in Hindi and the third for lecturer in English. The petitioner as well as respondent No. 3 both applied for ap pointment to the posts of lecturers. The Selection Committee interviewed and selected the candidates on 15th July, 1973. The petitioner was selected for the post of lecturer in Economics, respondent No. 3 was selected for the post of lecturer in Hindi and one Jagdish Narain Awasthi was selected for the post of lecturer in English. The Committee of Management sent the papers for grant of approval for appointment of the candidates who were selected. The District Inspector of Schools, respondent No. 1 granted approval of selection on 14th August, 1973. The Committee of Manage ment issued appointment letter to the lecturers on 22nd August, 1973 who were selected and approved by the District Inspector of Schools. Petitioner was issued appointment letter on 22nd August, 1973 and he joined the institution on the same date. 3. Respondent No. 3 was already functioning as assistant teacher in L. T. grade in the institution. He claimed that as he was permitted to function as lecturer in the institution on 1st July, 1973 he is senior to the petitioner who joined the institution on 22nd August, 1973. The relevant date was the date of joining of the institution. 4. There is no dispute that the seniority shall be determined on the basis of the date of grant of approval of the selection by the District Inspector of Schools. The relevant date was the date of joining of the institution. 4. There is no dispute that the seniority shall be determined on the basis of the date of grant of approval of the selection by the District Inspector of Schools. The limited question remains to be decided as to whether a teacher who is issued appointment letter subsequently and joined later on and another teacher who is permitted to function on the date of approval even without issuing any appointment letter, will be treated senior to the person who joins the institution later on. It is relevant to refer to clause (b) of sub-section (1) of Section 16-F of U. P. Intermediate Education Act (prior to the amendment in the year 1975) which leads as under : "16-F. (1) Subject to the provisions hereinafter specified ; no person shall be appointed as a Principal, Headmaster or the teacher in a recognised institution unless he- (a) possesses the prescribed qualifications or has been exempted under sub-section (1) of Section 16-F ; (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 ; 5. After the approval is granted by the District Inspector of Schools, the Committee of Management is bound to issue an appointment letter in accordance with Regulation 16 of Chapter-II of the Regulations framed under the Act (unamended) which reads as under : "16. 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 the receipt of the appointment order. The appointment of a candidate failing 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 16-F (2) read with Section 16-G (5) for information and record to his office. " 6. The appointment of a candidate failing 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 16-F (2) read with Section 16-G (5) for information and record to his office. " 6. From the facts as found by the District Inspector of Schools it is clear that respondent No. 3 was functioning on the date of grant of approval i. e. 14th August, 1973. The petitioner was issued appointment letter on 22nd August, 1973 and on the date he received the appointment letter, he started functioning as lecturer in the institution. 7. The seniority of the teachers has to be determined in accordance with Regulation 3 of Chapter-II of the Regulations framed under the Act. Regulation 3 was amended with effect from 7th July, 1976. The criteria for determining the seniority has been given in Regulation 3 (l) (bb) which reads as under; "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 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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 ; 8. The date of birth of the petitioner is 1-1-1937 and date of birth of respondent No. 3 is 26-9-1945. The date of birth of the petitioner is 1-1-1937 and date of birth of respondent No. 3 is 26-9-1945. Admittedly, the petitioner is senior to respon dent No. 3. The relevant date is the date of approval of appointment by the District Inspector of Schools. The date of joining is not the determining factor for deciding the seniority unless it is shown that the candidate did not join the institution within the time prescribed for joining as given in the appointment letter. The Committee of Management under Regulation 16 is bound to issue appointment letter within two weeks of the receipt of approval to selected candidates for appointment. 9. In case the date of joining is relevant date it will be on the dis cretion of the Committee of Management to issue an appointment letter to some candidate earlier and to some other candidate later on with the result, to whom the appointment letter has been issued earlier will start functioning and the other may join later on and will become junior to the other candidate though the date of selection and the date of approval is the same. So far as the time prescribed under Regulation 16 is concerned, the candidate who is living at nearest place may come and join the institution immediately. 10. Learned counsel for the respondent urged that he had started functioning on 14th August, 1973 i. e. the date of which approval was granted and, therefore, he was entitled to function from the said date even though the letter of appointment was issued to him subsequently i. e. , on 22nd August, 1973 as the same was ministerial act. It may be that the appointment letter was issued subsequently and the candidate before issuance of the appointment letter himself presents before the Committee of Management on coming to know that the approval has been granted and the Committee of Management permits him to function from the date, the approval has been granted but it will not deprive the right of another candidate merely because the other can didate was not issued appointment letter or joined subsequently within the prescribed time. The mere fact that respondent No. 3 joined the institution on 22nd August, 1973 will not confer any right of seniority against the petitioner. 11. The mere fact that respondent No. 3 joined the institution on 22nd August, 1973 will not confer any right of seniority against the petitioner. 11. In Prabhu Narain Singh v. Deputy Director of Education, Varanasi, 1977 ALR 391, 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. 12. In Smt, Omi Bala Nigam v. Regional Inspectress of Girls Schools, Jhansi Region, Jhansi, 1986 UPLBEC 69, it was held that the date of approval was the same the age factor will be the determining factor and the date of joining becomes irrelevant. 13. In I. S. Tome v. District Inspector of Schools, Meerut, 1993 AWC 1752, it was 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. 14. Learned counsel for the petitioner has placed reliance upon the deci sion in Lalil Mohan Misra v. District Inspector of Schools, 1979 ALJ 1025, in support of his connection that a person gets status of a teacher only from the date of approval order. This case does not lay down that the relevant date is only the date of joining. The date of approval of selection the by the District seniority of the Inspector of Schools is the relevant date for determining candidates. 15. In view of the discussions made above, the writ petition No. 318 of 1993 is hereby allowed. The order passed by the District Inspector of Schools dated 30th October, 1992 is quashed. 16. Respondent No. 3 has filed Writ Petition No. 6117 of 1981. He has claimed that he is entitled to salary to the post of lecturer w. e. f. Nth August, 1973. It is not disputed that the respondent started functioning as lecturer with effect from 14th August, 1973. In case the institution had permitted respondent No. 3 to function from the date of approval, he is entitled to the salary for the period he had actually worked as lecturer. He is thus entitled to get his salary from 14th August, 1973. It is not disputed that the respondent started functioning as lecturer with effect from 14th August, 1973. In case the institution had permitted respondent No. 3 to function from the date of approval, he is entitled to the salary for the period he had actually worked as lecturer. He is thus entitled to get his salary from 14th August, 1973. It will, however, not affect the right of the petitioner regarding seniority which is to be determined on the principle laid down under Regulation 3 (b) of the Regulations framed under the Act. The Writ Petition No. 6117 of 1981, is allowed to the extent that the respondent No. 3 shall be paid salary with effect from 14th August, 1973. 17. In the circumstances of the case, the parties shall bear their own costs. Petition allowed. SANJAY .