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2024 DIGILAW 1770 (ALL)

Radheshyam v. State of U. P.

2024-07-30

SUBHASH VIDYARTHI

body2024
JUDGMENT : Hon'ble Subhash Vidyarthi, J.-Case called out in the revised list. 2. Heard Sri Kushmondeya Shahi, the learned counsel for the petitioner, Sri Manoj Srivastava, learned Standing Counsel representing respondent Nos. 1 to 3 and Sri Uma Nath Pandey, learned counsel appearing for respondent No. 6. No other counsel is present and no adjournment of the case has been sought. 3. By means of Writ-A No. 18846 of 2018 filed under Article 226 of the Constitution of India, the petitioner - Ravendra Singh, has challenged the validity of an order dated 7.8.2018, passed by the Director of Education (Secondary), U.P. Lucknow, rejecting the petitioner's representation dated 23.3.2018, through which he had claimed to be placed in seniority list above the respondent Nos. 5 to 7, and had claimed payment of salary on the post of Trained Assistant Teacher with effect from 27.10.2004. 4. Writ-A No. 6890 of 2024 has been filed by the petitioner - Radheshyam, who is opposite party No. 6 in Writ-A No. 18846 of 2018, claiming payment of contributory provident fund, pension and other retiral benefits and also arrears of salary for the period 14.11.2005 to 10.9.2018. 5. Writ-A No. 6890 of 2024 has apparently been filed for the reason that an interim order dated 5.9.2018 was passed in Writ-A No. 18846 of 2018 directing that status quo, as is existed of the date of the said order, shall be maintained. 6. Briefly stated facts of the case are that the respondent Nos. 5 to 7 - Brijbhan, Radhey Shyam and Prem Prakash Srivastava, were appointed as Assistant Teachers in Captain M.D. Singh Uchchatar Madhyamik Vidyalaya, Basti on 1.7.1981, whereas the petitioner - Ravendra Singh, was appointed as Assistant Teacher in the aforesaid institution on 5.4.1984. 7. Rule 4 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules 1978, as it stood prior to its amendment by a Notification dated 4.12.2019, provided that the minimum qualification for the post of Assistant Teacher of a recognized school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination with Hindi and a Teacher's Training Course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training. 8. Although, the respondent Nos. 8. Although, the respondent Nos. 5 to 7 were appointed as Assistant Teacher on 1.7.1981, they did not possesses the essential qualification of training, as provided by Rule 4 aforesaid and all of them acquired the requisite qualification of training in the year 1986. 9. On the other hand, the petitioner - Ravendra Singh had acquired the requisite qualification of training in the year 1982 and he possessed the essential qualification on 5.4.1984 - the date of his appointment as Assistant Teacher in Captain M.D. Singh Uchchatar Madhyamik Vidyalaya, Basti. 10. At the time when the petitioner joined as an Assistant Teacher in the Institution in question, it was a junior high school, it was upgraded to High School level with effect from 22.11.1985, and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 became applicable to the institution after the benefit of aid was extended to it on 27.10.2004. 11. A Government Order dated 27.10.2004, specifies that apart from the post of Principal, seven posts of Assistant Teacher, one post of clerk and five posts of peon were sanctioned in the college. The names of respondent Nos. 5 to 7 were included as Assistant Teachers of the college, whereas the name of the petitioner was not included therein. 12. The petitioner filed Writ-A No. 72525 of 2005, stating that although respondent Nos. 5 to 7 had been appointed on 1.7.1981, they did not possess the essential qualification of training on the date of their appointment and also on the date of approval granted to their appointment on 10.1.1986. The petitioner was appointed on 5.4.1984, and the District Basic Education Officer had granted approval to the petitioner's appointment on 7.12.1985. 13. An interim order dated 25.11.2005, was passed in Writ-A No. 72525 of 2005, withholding payment of salary to respondent Nos. 5 to 7 until further orders. On 21.4.2009, this Court passed another order directing that the Director, Madhyamik Education to take a final decision in the pending enquiry in respect of grant of salary to the petitioner as well as the respondents and it was provided that the interim order granted earlier shall continue to operate till final disposal of the Writ Petition. 14. On 21.4.2009, this Court passed another order directing that the Director, Madhyamik Education to take a final decision in the pending enquiry in respect of grant of salary to the petitioner as well as the respondents and it was provided that the interim order granted earlier shall continue to operate till final disposal of the Writ Petition. 14. In furtherance of the aforesaid order dated 21.4.2009 passed in Writ-A No. 72525 of 2005, the Director proceeded to passed an order dated 1.6.2009 holding that the respondent Nos. 5 to 7 were appointed on 1.7.1981, and they were senior to the petitioner, who was appointed on 5.4.1984 and, therefore, they were entitled to get salary. 15. The petitioner challenged the aforesaid order dated 1.6.2009 passed by the Director by filing Writ-A No. 33324 of 2009. 16. Both the Writ Petitions Nos. 72525 of 2005 and 33324 of 2005 filed by the petitioner Ravendra Singh were allowed by means of a common judgment and order dated 13.3.2018 passed by this Court, in which this Court held that it is settled law that benefit of seniority would enure to an Assistant Teacher only after he attains training qualification. The private respondents admittedly were not possessing any training qualification on the date of their appointment. They have obtained such qualification in the year 1986. Their entry into service would be treated only from 1986, and not prior to it for the purposes of seniority. For the aforesaid reason, this Court, allowed the writ petition quashed the impugned order and Director of Education (Secondary) to consider the respective claims of the parties afresh, in light of the aforesaid observations made by this Court in the judgment dated 13.3.2018, and also the law laid down by the Hon'ble Supreme Court in U.P. Basic Shiksha Parishad and another v. Hari Deo Mani Tripathi and others, (1996) 9 SCC 623 . 17. After passing of the aforesaid order, the petitioner - Ravendra Singh submitted a representation dated 23.3.2018, and the Director Education (Secondary) has rejected the same by the impugned order dated 7.8.2018. The Director of Education has stated in the impugned order that respondent Nos. 5 to 7 had acquired the qualification of training in the year 1986 i.e. prior to 1.1.2004, when the college was taken on grant-in-aid list. The Director of Education has stated in the impugned order that respondent Nos. 5 to 7 had acquired the qualification of training in the year 1986 i.e. prior to 1.1.2004, when the college was taken on grant-in-aid list. The petitioner was appointed on 5.4.1984, on probation for a period of one year and the District Basic Education Officer had granted approval to the petitioner's appointment by means of an order dated 7.12.1985. The appointment of petitioner made on 5.4.1984, was not as per rules, as the petitioner had been appointed prior to approval by the District Basis Education Officer. 18. It is relevant to note in this regard that the respondent Nos. 5 to 7 were also appointed on 1.7.1981, and approval for their appointment was granted on 10.1.1986 but the Director Education (Secondary) did not raise such objection against validity of their appointment although, approval of their appointment was granted five years after their actual appointment. 19. The Director of Education proceeded to state in the impugned order that as per the provisions contained in Regulation 3 of Chapter II of the Regulations framed under the Intermediate Education Act, seniority of a teacher shall be fixed from the date of his original appointment. The original appointment of the petitioner was made on 5.4.1984, whereas the respondent Nos. 5 to 7, were appointed on 1.7.1981. He has taken into consideration a report submitted by the District Inspector of Schools, Basti, stating that the institution in question was included in the grant-in-aid list on 27.10.2004, but the list of teachers of the college did not include the name of the petitioner and, therefore, the petitioner was not entitled to payment of salary. The report submitted by the D.I.O.S. also stated that the petitioner had acquired training on 16.7.1982, and he was appointed on 5.4.1984, whereas the respondent Nos. 5 to 7 were appointed on 1.7.1981 and they had acquired training in the years 1986. In compliance of the order dated 25.11.2005, passed by this Court in Writ-A No. 72525 of 2005, the directorate had passed an order dated 1.6.2009, holding the petitioner to be junior to the other three teachers, due to which reason salary was not being paid to him. In compliance of the order dated 25.11.2005, passed by this Court in Writ-A No. 72525 of 2005, the directorate had passed an order dated 1.6.2009, holding the petitioner to be junior to the other three teachers, due to which reason salary was not being paid to him. Regarding the decision of the Hon'ble Supreme Court in Hari Deo Mani Tripathi (supra), the Director held that the Basic Education Service Rules 1981 apply to the Basic Schools, whereas Captain M.D. Singh Higher Secondary Schools is not a Basic School and is not regulated by the aforesaid Rules. It was a Junior High School, which was upgraded to a High School and thereafter it was taken on grant-in-aid list. The appointments of teachers made prior to 1985 were governed by U.P. Recognized Basis Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules 1978. 20. The Director of Education held that the institution in question which is aided and recognized up to intermediate level, is governed by the provisions of U.P. Intermediate Education Act, U.P. Secondary Education Service Selection Board, U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971. The respondent Nos. 5 to 7 were appointed on 1.7.1981, whereas the petitioner was appointed on 5.4.1984, therefore, the petitioner is junior to the other three teachers. The Director categorically stated that the seniority of teachers will be calculated on the basis of their initial appointment and not from the date of their acquiring the eligibility condition of training. 21. While assailing validity of the aforesaid order, the learned counsel for the petitioner has drawn attention of the Court to the judgment of the Hon'ble Supreme Court in U.P. Basic Shiksha Parishad and another v. Hari Deo Mani Tripathi and others, (1996) 9 SCC 623 , wherein the Hon'ble Supreme Court had propounded the following principals : ''23. Historically, as we have noticed earlier, untrained Assistant Teachers used to be employed when trained teachers were not available and the untrained Assistant Teachers became trained Assistant Teachers only on their getting requisite certificate of training and from that date only they were treated as regular Assistant Teachers getting the proper scale of pay meant for them. It is the trained Assistant Teacher who alone was eligible for promotion to the post of Headmaster. It is the trained Assistant Teacher who alone was eligible for promotion to the post of Headmaster. There were three scales even for trained Assistant Teachers and it was trained Assistant Teacher in the Higher scale who was eligible for being promoted as Headmaster. When the 1981 Rules came into force the writ petitioners had by then become trained Assistant Teachers and as such under Rule 22 only the date of appointment as trained Assistant Teacher in substantive capacity is to be seen and not the date of appointment as untrained Assistant Teacher. 24. Reliance by the High Court on the case of Jagdish Narain Shastri (supra) is not proper as that case related to Assistant Teacher of Sanskrit employed under Rule 13.A of the Manual for whom no qualification of trained teacher was required and thus the judgment in that case was of no avail to the learned Judge in the present case. In the past also the seniority lists were being maintained separately for trained Assistant Teachers and untrained Assistant Teachers. 25. Thus the respondents, untrained teachers, are of a different class and cannot rely upon the service as untrained Assistant Teachers in the lower grade with the trained Assistant Teachers drawing higher grade of pay.'' (Emphasis added) 22. Regulation 3, Chapter II of the Regulation framed under the U.P. Intermediate Education Act, 1921 provides as follows : ''For the purposes of this case relevant provision of Regulation 3 of Chapter-II, which reads as follows, is also being looked into: ''3. The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions- (a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post; (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;......................'' (Emphasis added) 23. In Shitla Prasad Shukla v. State of U.P. and others, 1986 UPLBEC 473 , wherein a distinction was made between teachers who were regularly and properly appointed and those whose appointment became regular subsequently. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age;......................'' (Emphasis added) 23. In Shitla Prasad Shukla v. State of U.P. and others, 1986 UPLBEC 473 , wherein a distinction was made between teachers who were regularly and properly appointed and those whose appointment became regular subsequently. It was held that these two sets of teachers would belong to different streams and a teacher whose appointment became regular at some point of time after this appointment could not be permitted to steal a march over a teacher who was regularly appointed earlier. 24. In Panchami Singh and others v. Joint Director of Education Gorakhpur and others, 2003(1) ESC 363 (All), this Court held that : ''where the petitioner acquired the requisite training qualification subsequent to his appointment, he became a qualified trained teacher, only from the date he acquired the training qualification.'' 25. A Co-ordinate Bench of this Court held in Arvind Kumar Tripathi v. State of U.P. and others, 2013 (1) UPLBEC 419 , that : ''On the parameters of the aforesaid regulation quote above, it is apparent that ad-hoc service has hardly relevance and inter se seniority is dependent totally from the date of substantive appointment.'' 26. Per contra, Sri Uma Nath Pandey, learned counsel for the respondent No. 6 has submitted that in the case of Hari Deo Mani Tripathi (Supra), the Hon'ble Supreme Court had referred to a judgment of this Court in the case of Jagdish Narain Shastri v. Basic Shiksha Parishad, Etawah, 1986 UPLBEC 1058 (Civil Misc. Writ No. 10920 of 1986, decided on 7.8.1986), in which this High Court held that : ''Eligibility for promotion Under Rule 18 of U.P. Basic Education (Teachers) Service Rules is seniority alone. Therefore, Petitioner or any other teacher who was appointed as teacher in 1962 or onwards was eligible to be called for interview, when opposite parties who were appointed later and were junior to Petitioner were not only called but selected. Exclusion of Petitioner because they received training later than opposite parties is not supported by any rule or Government order. Training for the post of head master of Junior High School may be imperative. But that in absence of any rule could not be basis of seniority. Requirement is training and not the period or length of training. Exclusion of Petitioner because they received training later than opposite parties is not supported by any rule or Government order. Training for the post of head master of Junior High School may be imperative. But that in absence of any rule could not be basis of seniority. Requirement is training and not the period or length of training. Although even if that would have been necessary Petitioner took training in 1972-73 is more than ten years before selection. In any case the scope of any ambiguity has been ruled out as the Government by its order issued in 1981 clarified that training shall not result in break of service and all those appointed prior to 1968 shall be entitled to be treated as in continuous service. Exclusion of Petitioner, therefore, was not justified. This Court directed the authorities to treat all those teachers of Junior Basic Schools who were appointed prior to 1968 but received their training later on as senior in order of their appointment and call them for interview for the post of head master. 27. While dealing with the judgment in the case of Jagdish Narain Shastri (Supra), the Hon'ble Supreme Court noted in Hari Deo Mani Tripathi (Supra) that the High Court has recorded a concession given on behalf of the petitioner that they were interested in getting their promotion and having their seniority fixed and, therefore, they did not want to disturb the headmasters already selected. Consequently, the High Court had directed that seniority of the petitioners be fixed afresh and thereafter, they be considered for promotion. An order passed on concession of the parties, without recording any finding or reasons of the Court, does not lay down any ratio decidendi, which would be binding on subsequent cases. Moreover, in para 24 of the judgment in Hari Deo Mani Tripathi (supra), the Hon'ble Supreme Court has held that reliance by the High Court in the case of Jagdish Narain Shastri (supra) is not proper. 28. The learned counsel for the respondent No. 6 has next submitted that the case of Hari Deo Mani Tripathi (supra), dealt with a question of seniority of a teacher in basic school and not with a teacher of an intermediate college. 29. 28. The learned counsel for the respondent No. 6 has next submitted that the case of Hari Deo Mani Tripathi (supra), dealt with a question of seniority of a teacher in basic school and not with a teacher of an intermediate college. 29. In this regard, suffice it to say that the judgment in Hari Deo Mani Tripathi (supra) lays down a principle of law regarding fixation of seniority, that if an untrained Assistant Teachers was employed when trained teachers were not available, he can be treated as a regular Assistant Teacher only after he acquires the requisite certificate of training. Only the date of appointment as trained Assistant Teacher in substantive capacity is to be seen and not the date of appointment as untrained Assistant Teacher. Untrained teachers are of a different class and the service rendered as untrained teacher cannot be equated with the services of the trained Assistant Teachers. Therefore, separate seniority lists of trained Assistant Teachers and untrained Assistant Teachers should be maintained. This principle is not limited is applicable to the teachers of basic schools and the principle would apply to the teachers of High Schools and Intermediate colleges as well. 30. In the judgment and order dated 13.3.2018, passed by this Court in Writ-A Nos. 72525 of 2005 and 33324 of 2009 this Court had categorically held that the respondent Nos. 5 to 7, admittedly were not possessing any training qualification on the date of their appointment and they obtained such qualification in the year 1986. Their entry into service would be treated only from 1986 and not prior to it for the purposes of seniority. After recording the aforesaid finding, this Court had directed the Director of Education (Secondary) to accord consideration to the respective claims of the parties afresh keeping in view the observation made above. The Director of Education has passed the impugned order, without taking into consideration the aforesaid observation made by this Court in the judgment and order dated 13.3.2018, that the entry of the respondent Nos. 5 to 7 into service would be treated only from 1986 and not prior to it. 31. As the Director of Education has passed the impugned order dated 7.8.2018 against the findings recorded by this Court in the judgment and order dated 13.3.2018 passed in Writ-A Nos. 5 to 7 into service would be treated only from 1986 and not prior to it. 31. As the Director of Education has passed the impugned order dated 7.8.2018 against the findings recorded by this Court in the judgment and order dated 13.3.2018 passed in Writ-A Nos. 72525 of 2005 and 33324 of 2009, and also against the principle of law laid down by the Hon'ble Supreme Court in the case of Hari Deo Mani Tripathi (supra), the order passed by the Director of Education (Secondary) is unsustainable in law. 32. The claim of the petitioner in Writ A No. 6890 of 2024 is consequential to the order to be passed by this Court in Writ A No. 18846 of 2018 and the learned Counsel for the petitioner in Writ A No. 6890 of 2024 has advanced submissions in opposition of Writ A No. 18846 of 2018 only. 33. Accordingly Writ A No. 18846 is allowed and the impugned order dated 7.8.2018, passed by the Director of Education (Secondary) is quashed and Writ A No. 6890 of 2024 is dismissed. 34. The matter is remanded to the Director of Education (Secondary) to pass a fresh order regarding the claim of seniority of the petitioner and the respondent Nos. 5 to 7, within a period of two months from the date of receipt of a certified copy of this order, after giving adequate opportunity of hearing to the affected persons and keeping in view the observations made by this Court in the earlier judgment and order dated 13.3.2018 passed by this Court in passed in Writ-A Nos. 72525 of 2005 and 33324 of 2009 as well as the observations made in this judgment.