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1997 DIGILAW 674 (PAT)

Jyotsna Chatterjee v. State of Bihar

1997-09-12

RADHA MOHAN PRASAD

body1997
ORDER The petitioner in this writ petition is aggrieved by Memo No. 2689 dated 7.11.1996 (Annexure 1) of the Director, Secondary Education (respondent no. 2) which is purported to have been passed pursuant to the order dated 18.11.1995 of this Court passed in CW.J.C. No. 967 of 1995 rejecting the claim for regularising her services in Dwarika Prasad Gourish Charan Project Girls High School, Kalyanpur, in the district of Samastipur. 2. The claim of the petitioner is that she was appointed as Assistant Teacher on 10.10.1982 after due advertisement and selection by the Managing Committee of the said School when it was a private School. The qualification of the petitioner was BA, B.Ed. in Home Science and Psychology. Smt. Anju Singh (respondent no. 5) was also appointed as Assistant Teacher in the same School on the same date, i.e., 10.10.1982. The School in question was made a Project School under the respondents and was taken over in the year 1985. In terms of the letter dated 4th February, 1989, the services of the Teachers of the School in question were to be placed before the Screening Committee and on its recommendation approval of the services of the Teachers were to be accorded in such Project Schools and they were to be treated as Teachers of the School and paid salary from 1st February, 1989. 3. It is stated that on 2.4.1991 the Screening Committee on examination of the records submitted a report (Annexure 10) in which the position of the petitioner in the seniority was placed at serial no. 5 whereas of respondent no. 5 at serial no.7, but, however, the date of regular appointment of the petitioner was shown as 17.4.1983 and that of private respondent no. 5 as 5.4.1983. However, in the impugned order, the Director has treated the date of appointment of respondent no. 5 as 12.10.1984 and that of the petitioner as 27.10.1984 and, accordingly, approved the case or respondent no. 5 and rejected the claim of the petitioner. 4. According to the petitioner, on the date of alleged appointment, respondent no. 5 was not eligible and as such the Screening Committee recommended the case of the petitioner at serial no. 5 and that of respondent no. 5 at serial no. 7 for absorption in the School. 5 and rejected the claim of the petitioner. 4. According to the petitioner, on the date of alleged appointment, respondent no. 5 was not eligible and as such the Screening Committee recommended the case of the petitioner at serial no. 5 and that of respondent no. 5 at serial no. 7 for absorption in the School. I am unable to find any material in support of the alleged date of appointment as mentioned in the impugned order. 5. It is not disputed that the date of passing of Graduation examination of respondent no. 5 is 23.9.1983 when her result was published. 6. The question, thus, for consideration is as to whether respondent no. 5 could be treated senior to the petitioner on the basis of the date of their initial appointment or their seniority is to be determined on the basis of alleged date of appointment mentioned in the report of the Screening Committee on which date the respondent no. 5 admittedly was not qualified and possessed qualification inferior to that of the petitioner. 7. In this regard Mr. Sinha, learned Senior Counsel appearing for respondent no. 5 submitted that the said question stands settled by a Division Bench decision of this Court in the case of Kumud Kumari Srivastava v. The State of Bihar, reported in 1995(2) PLJR 215 . 8. I am unable to accept the said submission of Mr. Sinha. In the said case, this Court held that the out-off date for possessing the minimum qualification must be the date on which the School in question is examined by the Screening committee to consider the cases of its Teachers for recognition/regularisation of their services and not that whether for the inter se seniority of the two teachers the acquisition of qualification would be relevant or not and/or that a person though not qualified could be treated senior by virtue of illegal so called regular appointment before the take over of the school as Project School. 9. In the present case, both, the petitioner and the respondent no. 5 were appointed as Assistant Teacher in the said School on 10.10.1982. The petitioner was Graduate Trained whereas respondent no. 5 acquired the said qualification much later on 23.9.1983. Under the circumstances, respondent no. 9. In the present case, both, the petitioner and the respondent no. 5 were appointed as Assistant Teacher in the said School on 10.10.1982. The petitioner was Graduate Trained whereas respondent no. 5 acquired the said qualification much later on 23.9.1983. Under the circumstances, respondent no. 5, in my opinion, cannot claim seniority over the petitioner by virtue of alleged date of her regular appointment when she admittedly was not qualified and held qualification inferior to that of the petitioner. 10. It is by now well settled that if two persons are appointed at the same time, in the absence of rule, their inter se seniority is to be fixed on the basis of their respective positions as recorded by the competent authority at the time of their first appointment and in case no such criteria is adopted, then their qualification and the date of birth are the relevant consideration for determining their inter se seniority. The State Government in the Education Department letter no. 2060 dated 15th September, 1981 laid down that if the date of appointment of two teachers is the same, the seniority will be decided on the basis of date of birth. 11. It is not the case of respondent no. 5 that she is senior in age to the petitioner. Under such circumstances, the rejection of the claim of the petitioner for regularisation of her service in the School on the ground that respondent no. 5 is senior to her cannot be held to be valid and justified. 12. Accordingly, the writ petition is allowed and the impugned order, contained in Annexure 1, is quashed. Respondent no. 2 is directed to recognise the services of the petitioner in the School in question in the light of the recommendation of the Screening Committee contained in Annexure 10 and thereby give all consequential benefits as is admissible under the scheme.