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2019 DIGILAW 27 (ALL)

Satya Prakash v. State Of U. P.

2019-01-03

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : Ashwani Kumar Mishra, J. 1. These two writ petitions essentially raised a dispute with regard to inter se seniority of petitioner Satya Prakash vis-a-vis Smt. Suman Devi respondent no.5. 2. The first Writ Petition No.36980 of 2017 questions an order dated 4.8.2017, passed by the District Inspector of Schools, Agra, contained in Annexure-7 to the writ petition. By this order the District Inspector of Schools, Agra, has issued a direction to the Management of D.A.V. Inter College, Moti Katra, Agra, stating that in respect of issue of seniority since complaints were made at different levels, therefore, the Principal, Government Inter College, Agra was called upon to conduct an enquiry, who has submitted his report, wherein Sri Satya Prakash has been held to be senior to Smt. Suman Devi, and therefore, signatures of Sri Satya Prakash has been attested as Principal of the institution. This order has been challenged by Smt. Suman Devi on the ground that an opportunity of hearing has been denied to her, and that being the senior most Lecturer, she was already offered charge on the post of Officiating Principal and her signatures were also attested, which fact has been completely ignored. The order is also challenged on the ground that the enquiry officer was appointed under an order of the District Magistrate, Agra, who had no jurisdiction in the matter. This order has been stayed by this Court on 18.8.2017, vide following orders:- “The contention of the petitioner is that the District Inspector of Schools, Agra appears to be oblivious of the statutory provision as he has got the seniority dispute decided by the Principal of a Government Inter College, who is completely outsider to the scheme of the Regulations framed under the Intermediate Education Act. The appropriate authority under Regulation 3 of Chapter II of the Regulations is the Committee of Management and an aggrieved party can approach the District Inspector of Schools. From the impugned order it is evident that the dispute of seniority has been considered by a Principal of the Government Inter College and on the basis of the report submitted by the Principal, the District Inspector of Schools has passed the order without application of mind. The matter needs consideration. The petitioner has made out a prima facie case. Learned Standing Counsel has accepted notices on behalf of the first to third respondents. The matter needs consideration. The petitioner has made out a prima facie case. Learned Standing Counsel has accepted notices on behalf of the first to third respondents. Issue notice to the fourth and fifth respondents returnable on 11th October, 2017. Steps be taken within ten days. Counter affidavit be filed by all the respondents on or before the next date fixed. List the case on 11th October, 2017. Till the next date of listing the effect and operation of the order of the District Inspector of Schools, Agra dated 04th August, 2017 is kept in abeyance.” 3. The aforesaid order was challenged by filing Special Appeal No.495 of 2017, which has been allowed vide following orders passed on 18.9.2017:- “After the matter was heard at some length Sri V.K. Singh, Senior Advocate assisted by Sri G.K. Singh, Advocate on behalf of petitioner and Sri Umesh Narayan Sharma, Senior Advocate assisted by Sri B.K. Singh Raghuvanshi, Advocate appearing on behalf of the respondents contended before us that having regard to the facts as borne out from record, the learned Single Judge should have examined in the facts of the case as to whether the petitioner or the appellant who is respondent in the writ petition was liable to be treated as senior irrespective of the order of Deputy Inspector of Schools which in turn was based on the report of the Principal, Government Inter College inasmuch as if an order of the writ court has the effect of restoring an illegal order then the writ court is not required to interfere. It has also been impressed upon us that we may not address ourselves to the merits of the claim as set up by the parties at this stage. In view of the fact that the learned Single Judge has not examined the aforesaid aspect of the matter while granting the interim order dated 18.8.2017, in Writ A No.36980 of 2017 the said order is hereby set aside. The stay application is restored to its original number to be heard and decided by the learned Single Judge afresh in the light of the observations made above, preferably, within four weeks from today. Special appeal stands allowed.” Consequent upon the direction issued by this Court in the aforesaid special appeal, Writ Petition No.36980 of 2017 is required to be heard finally. 4. Special appeal stands allowed.” Consequent upon the direction issued by this Court in the aforesaid special appeal, Writ Petition No.36980 of 2017 is required to be heard finally. 4. The other Writ Petition No.26249 of 2018 has been filed challenging an order dated 13th November, 2018, contained in Annexure-18 to the writ petition, whereby the Joint Director of Education has suspended his previous order passed on 21st August, 2018, holding Sri Satya Prakash to be the Senior Lecturer by exercising his power under Chapter-II Regulation 3(1)(b) under the U.P. Intermediate Education Act, 1921. The order dated 13.11.2018 refers to the order passed in special appeal on 18.9.2017, and it is observed that while Writ Petition No.36980 of 2018 was pending for adjudication, the petitioner Satya Prakash approched this Court by filing Writ Petition No.5281 of 2018, wherein following orders were passed on 8.2.2018:- “Heard Shri Alok Dwivedi, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents. The petitioner is before this Court with request to issue direction to the second respondent i.e. Regional Joint Director of Education, Agra Region, Agra to decide the statutory appeal in respect of inters seniority between the petitioner and the fifth respondent i.e. Smt. Suman Devi within stipulated time. Learned Additional Chief Standing Counsel fairly states that in case the appeal is still pending and has not been disposed of, the same shall be considered and decided expeditiously. No useful purpose would be served in keeping the writ petition pending. In view of the above, without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case and with the consent of parties, this writ petition is disposed of finally with a direction to the Regional Joint Director of Education, Agra Region, Agra to consider and decide petitioner's aforesaid appeal after hearing the fifth respondent by a speaking order within a period of two months from the date of production of a certified copy of this order before him.” 5. The order of the Joint Director records that the issue of seniority was determined by the Joint Director on 21.8.2018 relying upon the aforesaid directions issued by this Court on 8.2.2018, and as the direction issued in special appeal had not been taken note of, as such his previous order of st August, 2018 is liable to be kept in abeyance. 6. 6. I have heard Sri Alok Dwivedi for petitioner Sri Satya Prakash, while Sri R.K. Ojha, learned Senior Counsel assisted by Sri Vashishtha Tiwari has appeared for Smt. Suman Devi. Sri B.K.Singh Raghuvanshi has also appeared for Smt. Suman Devi in the connected petition. 7. The issue that requires determination in the writ petition is regarding inter se seniority between petitioner Satya Prakash and respondent no.5 Smt. Suman Devi. A chart has been prepared containing relevant dates with regard to selection and appointment of the two persons, which is reproduced hereinafter:- PETITIONER SATYA PRAKASH RESPONDENT NO.5 SUNITA DEVI Date of Birth 20.09.1967 04.09.1976 Panel Issued by U.P. Secondary Education Service Selection Board for Selection and Appointment of the petitioner and respondent no.5 on the post of Lecturer. 21.03.2005 Lecturer Geography. 21.03.2005 Lecturer Sanskrit. Appointment issued by the Management/Authorized Controller appointed at that point of time in the Institution. 25.04.2005 25.04.2005 Date of Joining 26.04.2005 26.04.2005 Date of confirmation of Service. 25.04.2006 25.04.2006 Date of grant of Selection Grade 26.04.2015 26.04.2015 8. The facts placed before the Court in the form of aforesaid chart are not disputed by either of the sides. As per the chart, it is apparent that petitioner Satya Prakash is elder in age as he was born on 20.9.1967, while respondent no.5 was born on 4.9.1976. It is admitted that both the persons have been selected in the same select panel drawn by the Secondary Education Service Selection Board on 21st March, 2005. They have been issued appointment on the same date i.e. on 25.4.2005. They have also joined on 26.4.2005. Incidentally they have been confirmed on the same date i.e. 25.4.2006. Selection grade has also been granted to both persons on 26.4.2015. 9. From the facts noticed above, this Court finds that both the candidates are identically placed so far as their seniority is concerned vis-a-vis date of drawing of select panel; issuance of appointment; date of joining; date of confirmation and date of grant of selection grade. In view of the facts that have been noticed above, the issue of seniority would have to be determined in accordance with Regulation 3 framed under Chapter-II to the Act of 1921. In view of the facts that have been noticed above, the issue of seniority would have to be determined in accordance with Regulation 3 framed under Chapter-II to the Act of 1921. Regulation 3(1)(b) is relevant in the facts of the present case and is reproduced hereinafter:- “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) 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;” 10. By virtue of aforesaid provision, it is clear that seniority of teachers in a grade has to be determined on the basis of their substantive appointment in that grade and when two or more teachers are appointed on the same date, their seniority would be determined on the basis of age. In the facts of the present case, it has already been noticed that appointment of both teachers were made on the same date, and therefore, their inter se seniority has to be determined with reference to their respective age. Admittedly petitioner Satya Prakash is senior to Smt. Suman Devi, as he was born prior in point of time. The Joint Director of Education by his order dated 21st August, 2018 has, therefore, correctly held that petitioner Satya Prakash is senior to respondent no.5 Smt. Suman Devi. 11. The aforesaid order is challenged primarily on the ground that in School records, Smt. Suman Devi was treated senior to petitioner Satya Prakash, and that long standing seniority ought not to be interfered with after expiry of substantially long period of time. 12. The plea set up by respondent no.5 in that regard has been examined at length. It is admitted that no final seniority list has yet been published by the Committee of Management of the institution. It is on the basis of placement of respective name in the attendance register that respondent no.5 is claiming herself to be senior. Mere placing of name in the attendance register cannot be construed as an act of determination of seniority of petitioner vis-a-vis respondent no.5. It is on the basis of placement of respective name in the attendance register that respondent no.5 is claiming herself to be senior. Mere placing of name in the attendance register cannot be construed as an act of determination of seniority of petitioner vis-a-vis respondent no.5. A seniority list issued by the Authorized Controller dated 18.1.2008 has otherwise been brought on record by petitioner in which he is shown senior to respondent no.5. No other seniority list is on record. According to counsel for the respondent no.5, this seniority list has not attained finality. However, the fact remains that no seniority list has been determined except the one which has been brought on record by the petitioner. In such circumstances, the plea of noninterference with the long standing seniority cannot be pressed by respondent no.5, when such seniority is yet to be determined. The plea urged on behalf of respondent no.5 is found to be non-existent on the facts of the case. The determination made by Joint Director with regard to inter se seniority of petitioner and respondent no.5, vide his order dated 21st August, 2018, has been found to be based on correct appreciation of applicable provision i.e. Regulation 3(1)(b) of Chapter-II of the Act of 1921. In such view of the matter, the Joint Director of Education would not be justified in staying his order dated 21st August, 2018 by passing the subsequent order on 13.11.2018. 13. Consequently, both the writ petitions stand disposed of, by holding as under:- (i). Order dated 13.11.2018 passed by the Joint Director of Education stands quashed. The determination of seniority under the order of Joint Director of Education dated 21st August, 2018 stands affirmed. (ii). In view of the aforesaid orders passed, the District Inspector of Schools, as also the Committee of Management of the institution, shall pass appropriate consequential orders, within a period of six weeks from the date of presentation of certified copy of this order. (iii). The order of the District Inspector of Schools dated 4.8.2017 shall abide by the orders to be passed, afresh, in terms of the orders aforesaid.