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2015 DIGILAW 180 (UTT)

NAVEEN SHARAN NISCHAL v. STATE OF UTTARAKHAND

2015-03-27

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J Present petition is filed assailing the order dated 03.10.2006 passed by Additional Director, Education, Garhwal whereby respondent no. 4 was declared senior to the petitioner. 2. Brief facts of the present case, inter alia, are that petitioner was appointed as Assistant Teacher (LT Grade) purely on ad hoc basis in RNI Inter College, Bhagwanpur, District Haridwar vide order dated 13.11.1989; petitioner gave his joining on 15.11.1989; respondent no. 4 was appointed as Assistant Teacher (LT Grade) purely on ad hoc basis vide order dated 05.02.1990; in the year 1995, names of the petitioner and respondent no. 4 along with Mr. Braham Pal Singh, Mr. Amrish Kumar Rastogi, Mr. Ashok Kumar Saini, Mr. Jyoti Prasad Kala and Mr. Rajesh Kumar were sent for substantive appointment / regularization, as per Section 33 B of the U.P. Secondary Education (Services Selection Boards) Act, 1982; vide order dated 24.04.1995, petitioner and respondent no. 4 were given substantive appointment or in other words, their services were regularized; petitioner was shown as senior to respondent no. 4 in the seniority list; however, all of a sudden, respondent no. 4 made representation in the year 2006 to the effect that he was senior to the petitioner, therefore, his name should be placed above the petitioner in the seniority list; thereafter, respondent no. 4 filed WPSS No. 1061 of 2006 (Sudesh Pal Singh Vs. State of Uttarakhand and others) before this Court; WPSS No. 1061 of 2006 was disposed of by this Court vide judgment dated 03.08.2006 directing the Joint Director, Intermediate Education, Garhwal Division, Pauri to take decision on the representation of respondent no. 4 claiming seniority over the petitioner in accordance with law; in compliance of the order passed by this Court, petitioner and respondent no. 4 were heard and thereafter, impugned order dated 03.10.2006 was passed declaring respondent no. 4 senior to the petitioner. Feeling aggrieved, petitioner has filed present writ petition. 3. I have heard Mr. C. K. Sharma, Advocate for the petitioner, Mr. Anil Kumar Joshi, Addl. Chief Standing Counsel for State of Uttarakhand, Mr. V.S. Rawat, Advocate holding brief of Mr. A.V. Pundir, Advocate for respondent no. 4 and have carefully perused the record. 4. Undisputedly, petitioner was appointed on the post of Assistant Teacher (LT Grade) on ad hoc basis vide appointment letter dated 13.11.1989 while respondent no. Anil Kumar Joshi, Addl. Chief Standing Counsel for State of Uttarakhand, Mr. V.S. Rawat, Advocate holding brief of Mr. A.V. Pundir, Advocate for respondent no. 4 and have carefully perused the record. 4. Undisputedly, petitioner was appointed on the post of Assistant Teacher (LT Grade) on ad hoc basis vide appointment letter dated 13.11.1989 while respondent no. 4 was appointed on the post of Assistant Teacher (LT Grade) on ad hoc basis vide appointment letter dated 05.02.1990. Section 33B of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 reads as under: “33-B Regularization 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 33-A; (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. (2)(a) For each region, there shall be a Selection Committee comprising- (i) Regional Deputy Director of Education of that region, who shall be the Chairman. (ii) One officer holding a Group ‘A’ post (specified as such by the State Government from time to time) in any department other than Education Department, to be nominated by the State Government. (iii) Regional Inspectors of Girls School of that region: Provided that the Inspector of the district shall be co-opted as a member while considering the cases for regularization of that district. (b) The Selection Committee constituted under Clause (a) shall consider the case of every such teacher and on being satisfied about his eligibility and suitability in view of the provisions of sub-section (1) shall, subject to the provisions of sub-section (3) recommend his name to the Management for appointment under sub-section (1) in a substantive vacancy. (3)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment. (b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first. (4) Every Teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment. (5) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may be order specify. (6) Nothing in this section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Act referred to in sub-clause (iii) of Clause (a) of sub-section (1), such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act.” 6. A bare perusal of sub Section 3 (a) of Section 33B would reveal that names of the teachers shall be recommended for substantive appointment in order of seniority, as determined from the date of their appointment. Meaning thereby, before substantive appointment on the post, seniority of ad hoc teacher shall be considered, as per date of initial appointment on ad hoc basis and names shall be referred for substantive appointment, as per seniority of the teachers, who are working on ad hoc basis. Meaning thereby, before substantive appointment on the post, seniority of ad hoc teacher shall be considered, as per date of initial appointment on ad hoc basis and names shall be referred for substantive appointment, as per seniority of the teachers, who are working on ad hoc basis. 7. Since undisputedly, petitioner was appointed as Assistant Teacher (LT Grade) on ad hoc basis vide appointment letter dated 13.11.1989 and respondent no. 4 was appointed as Assistant Teacher (LT Grade) on ad hoc basis vide appointment letter dated 05.02.1999, therefore, petitioner was senior to respondent no. 4 at the time of making recommendation for giving substantive appointment or regularization, as per Section 33-B (supra). 8. Regulation 3 (b) of the Intermediate Education Act, 1921 reads as under: “3(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 their age.” 9. As per clause (b) of Regulation 3 of the Act, 1921, 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 their age. 10. If Regulation 3 (b) of the Intermediate Act, 1921 is read along with Section 33B of the Act, 1982, the only interpretation would be that at the time of recommending the names of teachers for giving substantive appointment, teacher, who was appointed on ad hoc basis prior in time shall be treated as senior. Teacher, who was senior, at the time of giving substantive appointment, shall be treated senior, even after date of giving substantive appointment. 11. Since petitioner was appointed prior in time vide appointment letter 13.11.1989 and respondent no. 4 was given appointment vide appointment letter dated 05.02.1990, therefore, petitioner was senior at the time of recommending the names for giving substantive appointment. Likewise, since both of them were given substantive appointment on the same day i.e. 24.04.1995, therefore, seniority of the petitioner is not disturbed. 12. In my considered opinion, merely because name of respondent no. 4 was wrongly shown above the petitioner in the recommendation letter for giving substantive appointment, petitioner will not lose his seniority. Likewise, since both of them were given substantive appointment on the same day i.e. 24.04.1995, therefore, seniority of the petitioner is not disturbed. 12. In my considered opinion, merely because name of respondent no. 4 was wrongly shown above the petitioner in the recommendation letter for giving substantive appointment, petitioner will not lose his seniority. In other words, if seniority has been conferred on the petitioner prior to giving substantive appointment that cannot be undone in view of recommendation made. 13. My view stands fortified by the view taken by learned Single Judge of this Court vide judgment dated 17.11.2009 in WPSS No. 3576 of 2001 (Peeyush Kumar Agarwal Vs. Joint Director of Education and others), which was upheld by the Division Bench of this Court vide judgment dated 27.08.2013 rendered in Special Appeal No. 244 of 2009. 14. In view of the discussion made hereinbefore, writ petition succeeds and is hereby allowed. Impugned order (Annexure 1 to the writ petition) is hereby quashed. Petitioner shall be placed above respondent no. 4 in the seniority list, as per initial appointment. In the peculiar facts and circumstances of the case, no order as to costs.