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2005 DIGILAW 2269 (ALL)

Sudhakar Upadhyaya v. State of U. P.

2005-11-21

N.K.MEHROTRA

body2005
JUDGMENT : N.K. MEHROTRA, J. 1. This is a writ petition for issuing a writ in the nature of certiorari quashing the impugned order dated 31.3.2003 as contained in Annexure-1 to the writ petition and a writ in the nature of mandamus directing the opposite parties Nos. 1 to 5 to treat the Petitioner senior to the opposite party No. 6. 2. The case of the Petitioner is that he is Lecturer in Gajadhar Intermediate College, Laxamanpur, Pratapgarh (hereinafter referred to as the "College") and being senior-most lecturer is officiating as Principal of the College. The Petitioner was appointed on ad hoc basis by the Committee of Management vide its meeting held on 1.7.1989 and his appointment was approved by the District Inspector of Schools, Pratapgarh, by means of the order dated 8.12.1989 effective from the date of taking over the charge. The post of lecturer had fallen vacant on account of promotion of the then incumbent as Principal of Shree Aasaldeo Ucchattar Madhyamik Vidyalaya, Piparpur, Sultanpur. The incumbent of the post had proceeded on leave and after his confirmation on the post of the Principal, the substantive vacancy had occurred. The Petitioner claimed his regularisation after occurrence of the substantive vacancy. When the services of the Petitioner were not regularised, he filed a writ petition before this Court bearing Writ Petition No. 807(S/S) of 1993 in which, this Court directed the authority to consider for regularisation of the Petitioner vide order dated 28.1.1993. The concerned authorities were directed to consider for regularisation in accordance with the provisions under Ordinance No. 28/1991. The Joint Director (Education) vide order dated 17.8.1991 regularised the services of the Petitioner with effect from 7.8.1993 as Lecturer. Whereas, the services of the opposite party No. 6 were regularised on 27.2.2002 with effect from 7.8.1993. After the regularisation of the services of the Petitioner, he became senior-most lecturer in the College in the year 1989 itself. The Principal of the College Shri Kamla Prasad retired on 30.6.2002 and the Petitioner being senior-most was appointed as officiating Principal on 1.7.2002. The opposite party No. 6 V. K. Pandey has challenged the seniority of the Petitioner by means of Writ Petition No. 5232 (S/S) of 2002. The Petitioner was granted selection grade of Rs. 7,500-12,000 with effect from 1.7.1999. While the opposite party No. 6 is still in the initial grade of Rs. 6,500-10,500. The opposite party No. 6 V. K. Pandey has challenged the seniority of the Petitioner by means of Writ Petition No. 5232 (S/S) of 2002. The Petitioner was granted selection grade of Rs. 7,500-12,000 with effect from 1.7.1999. While the opposite party No. 6 is still in the initial grade of Rs. 6,500-10,500. It is also alleged by the Petitioner that the regularisation of the services of the opposite party No. 6 was untenable because the approval of the ad hoc promotion of the opposite party No. 6 was itself null and void ab initio because he could not have been promoted on 1.7.1993. The incumbent of the post, Shri Kailash Nath Mishra retired on 30.6.1993. The requisition was sent to the Service Selection Board u/s 18 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the "Act"). It is provided u/s 18 of the Act that where the Management has notified a vacancy to the Commission in accordance with the provisions of U.P. Secondary Education Services Selection Board Act, 1982 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner provided in that Section. It is alleged that in the case of the opposite party No. 6, the post fell vacant on 1.7.1993. Thereafter, the requisition was sent to the Selection Board but when no selection was made by the Board/Commission, the opposite party No. 5, the committee of management by means of its letter dated 15.3.1994 recommended the name of the opposite party No. 6 for the appointment by promotion and the District Inspector of Schools gave approval on 6.12.1994 illegally with retrospective effect from 1.7.1993 for which he was not competent to do so. The Petitioner has also filed a Writ Petition No. 1874 (S/S) of 2003 challenging the illegal order of regularisation of the opposite party No. 6 in which a direction was given to the opposite party No. 3 to decide the representation of the Petitioner which is still pending. The Petitioner has also filed a Writ Petition No. 1874 (S/S) of 2003 challenging the illegal order of regularisation of the opposite party No. 6 in which a direction was given to the opposite party No. 3 to decide the representation of the Petitioner which is still pending. Thus, according to the facts of the case, it appears that the Petitioner was promoted to the post of the lecturer on 1.7.1993 on ad hoc basis ; whereas, the opposite party No. 6 was appointed as Lecturer on 1.7.1989 in the same ad hoc capacity and the services of both were regularised with effect from 7.8.1993 but the Petitioner's services were regularised vide order dated 17.7.1998 and the services of the opposite party No. 6 were regularised vide order dated 27.2.2002 and the Petitioner has been granted selection grade on 1.7.1989 and the opposite party No. 6 was working in the initial scale of lecturer. The Petitioner relies on Regulation 3 (1) (c) of Chapter II of the Regulations made under Intermediate Education Act. This rule provides that a teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service. 3. The opposite parties have filed two counter-affidavits. One counter-affidavit has been filed by the opposite parties Nos. 1, 2 and 4 and another counter-affidavit has been filed by the opposite party No. 6. 4. In the impugned order, the Joint Director (Education) has decided the seniority of the Petitioner and the opposite party No. 6 in accordance with the provisions in Regulation 3(1) (b) and (bb) of Chapter II of the Regulations made under the Intermediate Education Act. These two provisions are as follows: 3(1)(b). 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 date, seniority shall be determined on the basis of age ; 3(1)(bb). These two provisions are as follows: 3(1)(b). 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 date, seniority shall be determined on the basis of age ; 3(1)(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. 5. It is in the counter-affidavit of the opposite parties Nos. 1, 2 and 4 that the Petitioner was appointed on 1.7.1989 in a short term leave vacancy created by absence of Sri Triveni Prasad Misra, Lecturer in Education who was on leave without pay with effect from 1.7.1989 to 30.1.1993. This appointment was purely temporary liable to be terminated on the conversion of short term leave vacancy to substantive vacancy on 30.6.1993. However, the Petitioner continued on the post of ad hoc Lecturer in Education by the Committee of Management. The Petitioner then filed a Writ Petition No. 807 (S/S) of 1993 for his regularisation on the post of Lecturer in Education on the basis of insertion of Section 33B in the U.P. Secondary Education Services Selection Board Act, 1982, by U.P. Act No. 1 of 1993, w.e.f. 7.8.1993. Section 33B of the U.P. Secondary Education Services Selection Board Act, 1982 is as follows: 33B. Section 33B of the U.P. Secondary Education Services Selection Board Act, 1982 is as follows: 33B. Regularisation of certain other appointments.- (1) Any teacher, other than the Principal or Headmaster, who: (a)(i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989, against a short term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy ; or (ii) was appointed by direct recruitment on or after July 14, 1981, but not later than July 12, 1985 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector ; or (iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but not later than May 14,1991 on ad hoc basis against a substantive vacancy in accordance with Section 18, (as it stood before its substitution by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Second Amendment) Act, 1992 ;) (b) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921 ; (c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Act referred to in Sub-clause (iii) of Clause (a) ; (d) is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the Explanation to Sub-section (3) of Section 33A ; (e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under Sub-section (2), shall be given substantive appointment by the management. 6. It is alleged by the opposite parties Nos. 1, 2 and 4 that in compliance of the order of this Court in Writ Petition No. 807 (S/S) of 1993 filed by the Petitioner, the Regional Deputy Director (Education) vide order dated 17.7.1998, regularised the services of the Petitioner on the post of the Lecturer with effect from 7.8.1993, the date, the said amendment came into effect. 1, 2 and 4 that in compliance of the order of this Court in Writ Petition No. 807 (S/S) of 1993 filed by the Petitioner, the Regional Deputy Director (Education) vide order dated 17.7.1998, regularised the services of the Petitioner on the post of the Lecturer with effect from 7.8.1993, the date, the said amendment came into effect. The grant of selection grade to the Petitioner was against the directions issued in the Government orders dated 3.6.1989 and 2.4.1991 which require ten years regular and satisfactory service in a grade for grant of selection grade. It was not a higher grade but it was a higher pay scale in the same grade of lecturer. It is also alleged by the opposite parties Nos. 1, 2 and 4 that opposite party No. 6 Vinod Kumar Pandey was working in the said College since 2.8.1974 and when one post of Lecturer in History fell vacant on 30.6.1993, the opposite party No. 6 was promoted on ad hoc basis in the said substantive vacancy on 1.7.1993 and in accordance with the provisions u/s 33B of the U.P. Secondary Education Services Selection Board Act, 1982 , the opposite party No. 6 was also granted the status of lecturer from 7.8.1993. Thus, the Petitioner and the opposite party No. 6 both were granted the status of lecturer with effect from 7.8.1993 and Regulation 3 (1) (b) of Chapter II of the Regulations referred to above will be applicable and the inter se seniority between the two would be determined on the basis of the age. The learned Counsel for the opposite parties has referred certain earlier decisions of this Court as well as Apex Court in the following cases: (a) Sudama Singh v. Nath Saran Singh, 1988 UPLBEC 31 (SC). (b) Smt. Om Bala Nigam v. R.I.G.S., Jhansi and others, 1986 UPLBEC 69 All-DB. (c) Jagat Narain Dwivedi v. D.D.E. IV Region Allahabad, (1998) 11 UPLBEC 181. (d) Asha Saxena Vs. S.K. Chaudhari and Others, (1995) 3 LLJ 182 . (e) Bahadur Singh Gaur v. D.I.O.S., Kanpur and others, 1995 LCD 564. 7. It is also alleged that the appointment of the Principal as officiating Principal was also against the Regulations framed under Chapter II of the Regulations. It is also alleged that the grant of selection pay scale does not mean that the Petitioner's services belong to a higher grade. 7. It is also alleged that the appointment of the Principal as officiating Principal was also against the Regulations framed under Chapter II of the Regulations. It is also alleged that the grant of selection pay scale does not mean that the Petitioner's services belong to a higher grade. It is alleged that there are two Grades of teachers namely ; the first is a lecturer grade and another is L.T. grade and the selection pay scale is granted as time bound scale in a initial grade. 8. The opposite party No. 6 in his counter-affidavit has taken a plea that the appointment of the Petitioner was against a leave vacancy and is ceased to remain operative with effect from 30.7.1993 as per Full Bench decision of this Court in Smt. Pramila Mishra v. Dy. Director of Education and others, 1997 AWC 466 (FB): (1997) 2 UPLBEC 1329 . The regularisation of the Petitioner was illegal. According to the opposite party No. 6, the inter se seniority between the Petitioner and the opposite party No. 6 shall be decided in accordance with the provisions under Regulation 3 (1) (b) of Chapter II of the Regulations referred to above. The word 'grade' used in Regulation 3 refers to the status where the selection grade which was illegally granted to the Petitioner refers to a higher pay scale and this position would be clear from a reading of Regulations 5 and 6 in the same Chapter II of the Regulations. Any one who is given a selection grade does not become a person of higher status/grade. The lecturer remains lecturer even after granting the selection pay scale. It is also alleged that the inter se seniority was never determined in the college before the impugned order. 9. After hearing the learned Counsel for the parties and perusal of the impugned order, it appears that the impugned order deciding inter se seniority between the Petitioner and the opposite party No. 6 has been decided in compliance of the interim order dated 24.9.2002 in Writ Petition No. 5232 (S/S) of 2002, Vinod Kumar Pandey v. State of U.P. and others, without taking into consideration another interim order dated 3.4.2003, passed in Writ Petition No. 1874 (S/S) of 2003, Sudhakar Upadhyaya v. State of U.P. and others, in which the Petitioner had challenged the regularisation of the opposite party No. 6. In this writ petition, the following order was passed by this Court: In the meantime, the representation preferred by the Petitioner as contained in Annexure-1 to the writ petition, shall be dealt with by a speaking and reasoned order. 10. The impugned order was passed on 31.3.2003. The Writ Petition No. 1874(S/S) of 2003 in which the regularization of the opposite party No. 6 is challenged, is still pending and the opposite parties are bound to decide the representation of the Petitioner in which the regularization of the opposite party No. 6 has been challenged. The inter se seniority has been decided after presuming that the relevant date of regularization of both, the Petitioner and the opposite party No. 6 is 7.8.1993. It appears from the impugned order that the Petitioner has challenged the regularization of the opposite party No. 6, Vinod Kumar Pandey on the post of Lecturer in History. This issue has not been dealt with by the Joint Director of Education and without deciding the validity of the regularization of the opposite party No. 6, the Joint Director (Education) has taken it to be granted that the date of regularization of both, the Petitioner and the opposite party No. 6 is the same. With this assumption in mind, the Joint Director (Education) has proceeded to decide the seniority in accordance with Regulation 3 (1) (b) of Chapter II of the Regulations. The question as to whether the regularization of the opposite party No. 6 with effect from 7.8.1993 is legal or not? is very material before coming to the conclusion that the date of regularization in both the cases is the same. 11. I am of the view that the matter of inter se seniority between the Petitioner and the opposite party No. 6 could not be decided without deciding the validity of the regularization of the opposite party No. 6 because this contention has been raised by the Petitioner before the Joint Director (Education) in his representation and the writ petition filed by the opposite party No. 6 is still pending. Therefore, the impugned order dated 31.3.2003 is to be quashed for deciding the issue of inter se seniority between the Petitioner and the opposite party No. 6 afresh by the Joint Director (Education) after deciding the representation of the Petitioner challenging the regularization of the opposite party No. 6 as directed by this Court on 30.4.2003 in Writ Petition No. 1874 (S/S) of 2003, Sudhakar Upadhyaya v. State of U.P. and others. Since the matter is still open for decision by the Joint Director (Education), no other issue as raised by the parties as referred to above need be decided in this writ petition. 12. In view of the above, the writ petition is allowed. The impugned order dated 31.3.2003, as contained in Annexure-1 to the writ petition is quashed with the direction to the Joint Director (Education) concerned to decide the dispute of seniority along with the representation of the Petitioner challenging the regularization of the opposite party No. 6 on the post of Lecturer in History as directed by this Court by interim order dated 3.4.2003 in Writ Petition No. 1874 (S/S) of 2003, Sudhakar Upadhyaya v. State of U.P. and others, filed by the Petitioner, within a period of three months.