Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 316 (ALL)

State of U. P. v. Satya Bhama Dubey

2023-01-31

MANOJ MISRA, VIKAS BUDHWAR

body2023
JUDGMENT : 1. Heard Sri Mohan Srivastava, the learned Standing Counsel for the appellants and Sri Siddharth Khare for the petitioner-respondent. 2. This intra-court appeal is against the judgment and order of the learned Single Judge dated 12.11.2014 in Writ-A No.41068 of 1996 whereby the order dated 26.11.1996 passed by the Regional Deputy Director of Education (Secondary), Agra determining the inter se seniority of the writ petitioner, Smt. Satya Bhama Dubey (the first respondent) and Smt. Sushila Sharma (the second respondent -respondent no.5 in the writ petition) has been quashed, holding the writ petitioner Smt. Satya Bhama Dubey senior to Smt. Sushila Sharma. 3. In addition to above, the learned Single Judge upon finding that due to wrong determination of the seniority, the writ petitioner was deprived of her appointment as an ad hoc Principal of the Institution proceeded to award compensation of Rs.2 lacs to be paid by the State Government. Further, the learned Single Judge directed that the salary of the petitioner shall be fixed treating her as officiating Principal of the Institution with effect from 01.07.1996 notionally and based thereon, the post-retiral benefits like pension etc. be revised and re-fixed. 4. As there appeared some confusion with regard to the scope of the appeal as to whether it was limited to the award of compensation or it was to challenge the entire order of the learned Single Judge, we required the learned Standing Counsel to seek instructions in that regard. 5. On instructions, the learned Standing Counsel stated that the appeal be treated as an appeal against the entire judgment and order of the learned Single Judge and not confined to the compensation awarded. 6. The contention of the learned counsel for the appellant is that inter se seniority of Assistant Teachers in an aided institution is to be determined as per the provisions of Regulation 3 of Chapter II of the Regulations framed under U.P. Intermediate Education Act, 1921 (for short 1921 Act). 7. Regulation 3(1)(b) provides that 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 to be appointed on the same date, seniority shall be determined on the basis of age. 8. 7. Regulation 3(1)(b) provides that 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 to be appointed on the same date, seniority shall be determined on the basis of age. 8. The argument of the learned counsel for the appellants is that there is no dispute that the appointment letters to both the writ petitioner and the fifth respondent in the writ petition were issued on the same date and that the writ petitioner was older in age to the fifth respondent but, what is also not in dispute is that, the fifth respondent joined service on 30.11.1972, i.e. on the date of issuance of the letter of appointment whereas the writ petitioner joined the institution on 01.12.1972. In such circumstances, the appointment shall take effect from the date of joining, therefore, the educational authorities were justified in taking the view that the fifth respondent in the writ petition was senior to the writ petitioner. It has also been argued that assuming that the view taken by the educational authorities was not the correct view, there was no justification to award compensation to the writ petitioner, particularly when the writ petitioner had not pleaded any malafides against the educational authorities and, otherwise, the action of the educational authorities was bonafide based on their understanding of the legal position. 9. Per contra, the learned counsel for the contesting first respondent submitted that the inter se seniority is to be determined on the basis of the date of substantive appointment. There is nothing in the regulations or in any document brought on record, or relied upon by the respondents in the writ petition, to indicate that the appointment would take effect from the date of joining. He submitted that under Chapter II Regulation 18 of the Regulations framed under the 1921 Act, the management after selection has to issue an order of appointment by registered post to the candidate in the form given in Appendix 'B' requiring the candidate to join duty within 10 days of the receipt of such order, failing which, the appointment of the candidate will be liable to cancellation. 10. 10. Sri Khare invited our attention towards Appendix 'E' purported to be under Chapter II Regulation 18 (1) (wrongly mentioned as Appendix 'B' in Regulation 18(1)) so as to contend that while issuing an appointment order in favour of a teacher/ head of the institution, the concerned teacher/ head of institution is called upon to report to the head of the institution/ manager within 10 (ten) days of receipt of the letter of appointment and join duty and if the teacher / head of the institution fails to join within time specified above, the appointment would be liable to cancellation. 11. The submission of learned counsel for the writ petitioner (first respondent) is that since a specific timeline for joining is provided in the Regulations, the management on its own cannot confer benefit of seniority on a teacher who joins earlier than the time provided more so, when there is nothing in the Regulation that appointment shall take effect from the date of joining or that the seniority shall be determined from the date of joining. 12. Sri Khare further invited our attention towards Regulation 3(1) (b) so as to contend that the seniority of a teacher in a grade is to be determined on the basis of substantive appointment, and thus the learned Single Judge was fully justified in quashing the order impugned in the writ petition. Reliance has also been placed upon the judgment in the case of Smt. Omi Bala Nigam vs. R.I.G.S., 1986 UPLBEC 69 . 13. Sri Khare next contended that the learned Single Judge did not commit any error in awarding compensation of Rs.2 lacs to the writ petitioner, particularly, when the appellants had committed manifest error in holding second respondent senior to the writ petitioner on the face of the provisions contained under Regulation 3(1)(b) of Chapter II, on account whereof, the writ petitioner was denied her legitimate claim to function as officiating / ad hoc Principal in the institution in question. Accordingly, he prayed that the intra-court appeal be dismissed. 14. We have considered the rival submissions and perused the records carefully. 15. It is not in dispute that the seniority of teachers of an institution governed by the provisions of 1921 Act is determined as per the provisions of Regulation 3 of Chapter II of the Regulations framed under the 1921 Act. 14. We have considered the rival submissions and perused the records carefully. 15. It is not in dispute that the seniority of teachers of an institution governed by the provisions of 1921 Act is determined as per the provisions of Regulation 3 of Chapter II of the Regulations framed under the 1921 Act. Parties are also in agreement that sub-clause (b) of Clause (1) of Regulation 3 is applicable, as determination of seniority is in respect of teachers in the same grade. The question which falls for consideration in the present appeal is whether seniority of a teacher appointed on substantive basis is to be determined with reference to the date of joining. It is admitted by the parties before us that the writ petitioner as well as the second respondent in the appeal were issued appointment letters on the same date. It is not disputed that the writ petitioner is older in age. Records reveal that the appointment orders were issued to the writ petitioner and the fifth respondent on 30.11.1972. The writ petitioner joined the institution on 01.12.1972 whereas the fifth respondent joined on 30.11.1972. A division bench of this Court in Smt. Omi Bala's case (supra), had the occasion to consider the impact of the date of joining on seniority where two or more persons were appointed on the same date. In that context it was observed: "8. After hearing counsel for the parties, we find that the Committee of Management had considered the entire circumstance and found that the petitioner was senior to respondent No. 4. In arriving at that conclusion no error has been committed which required interference at the appellate stage. The Committee of Management had taken into consideration the aforesaid two dates. The first being subsequent to the other of the petitioner and respondent No. 4 of joining their services. But on the basis of clause (b) of Regulation 3 of Chapter II, it was found by the Committee of Management that since the petitioner was older in age, she was to be treated as senior to respondent No. 4. We find that in both the cases appointment letters were issued on the same date. Appointment letters clearly indicated that the service could be joined either on 1-7-1964 or immediately thereafter. It did not mention that the petitioner was required to join on 1-7-1964 itself. We find that in both the cases appointment letters were issued on the same date. Appointment letters clearly indicated that the service could be joined either on 1-7-1964 or immediately thereafter. It did not mention that the petitioner was required to join on 1-7-1964 itself. It was on account of this fact that the petitioner joined on 6-7-1964. It appears to us that merely because the petitioner joined the service on 6-7-1964 she would not loose her right of seniority, particularly when the date of approval in both the events was the same i.e 15-9-1964. Joining of service had to be considered in the light of the approval also." 16. From above, it is clear that merely because one joins late, he/ she would not lose her right of seniority, particularly, when the date of approval is the same. In the instant case, the learned Standing Counsel has not demonstrated that the date of approval was different for both the teachers or that, despite issuance of the appointment order, the writ petitioner did not join the post in question within 10 days as stipulated in Appendix 'E' with reference to Regulation 18 of Chapter II of the Regulations. 17. Notably, in paragraph-13 of the writ petition, a specific averment has been made that approval to the appointment of the writ petitioner and the fifth respondent was granted by R.I.G.S., Agra sometimes in the month of December 1972 itself. The said fact has not been denied in paragraph-8 of the counter affidavit of the Deputy Director of Education (Madhyamik), Agra Mandal, Agra. Once the position is so, the learned Single Judge did not commit any error in allowing the writ petition while quashing the order impugned therein. 18. So far as challenge to the direction for payment of compensation of Rs.2 lacs to the writ petitioner is concerned, we notice that the writ petitioner for no fault of her was prevented from functioning as an officiating / ad hoc principal in the institution in question, inasmuch as, as a matter of course, on basis of being senior, she would have been entitled to serve as officiating/ ad hoc Principal. The interpretation assigned to Regulation 3 of Chapter II of the Regulations by the appellants is not only erroneous but also against the law governing the field. The interpretation assigned to Regulation 3 of Chapter II of the Regulations by the appellants is not only erroneous but also against the law governing the field. However, we find that in the entire writ petition no malafide has been alleged against the officer who passed the order impugned in the writ petition. Further, the said officer was not impleaded in his personal capacity. Moreover, while passing the order impugned in the writ petition the appellants only misinterpreted the provisions governing seniority which cannot be said to be actuated by malafides. 19. No doubt, the writ petitioner has been denied of her legitimate claim to function as an officiating / ad hoc Principal on the basis of wrong determination of seniority, as a result whereof, the fifth respondent officiated as Principal of the institution and was also paid salary, but it would be inappropriate to fasten liability upon the State to fully compensate the writ petitioner while the other side, namely, the fifth respondent, availed the benefit from State for officiating as Principal. Therefore, looking to the peculiar facts of the case and to do complete justice to the parties, we are of the opinion that the judgment and order of the learned Single Judge needs to be modified only to the extent below. That is, the compensation awarded is reduced to Rs.50,000/-from Rs. 2 lacs. Other than above, the judgment and order of the learned Single Judge is affirmed. 20. The special appeal stands disposed off in terms above.