Judgment:
Sunil Ambwani, J.
1. Heard Sri Ashok Khare, senior advocate assisted by Sri V.K. Singh for petitioner and Sri R. K. Srivastava for respondent No. 6. Learned standing counsel appears for respondent Nos. 1 to 4.
2. Brief facts, giving rise to this writ petition, are that the petitioner was appointed as Assistant Teacher in C.T. grade on 9.7.1993 in Inter College, Laxmipur, Ekdanga, Maharajganj. On the abolition of C.T. grade, the petitioner was placed in L.T. grade on 1.1.1986. Sri Uma Shanker Lal was the permanent Principal and Sri Jagdamba Lal Srivastava was permanent Lecturer in Economics. Sri Uma Shanker Lal expired on 14.9.1990, after which Sri Jagdamba Lal Srivastava, Lecturer in Economics in the institution was given ad hoc promotion as Principal of the college on 12.11.1990. The ad hoc promotion was approved by District Inspector of Schools and Sri Srivastava was given pay scale applicable to the post of Principal. Consequently it is alleged that the post of Lecturer in Economics fell vacant, and that the petitioner was allowed to teach Economics upto Intermediate Classes w.e.f. 1.1.1991.
3. The Committee of Management of the college, by its resolution dated 13.6.1994, resolved to give ad hoc promotion to the petitioner as Lecturer in Economics w.e.f. 1.1.1991. Sri Prem Narain Chaurasia, respondent No. 6 passed, M.A. Examination in Economics in 1997. He filed a Writ Petition No. 52551 of 1999, which was disposed of on 22.12.1999 with directions to decide his representation. The Director of Education (Secondary) U.P. by his order dated 20.5.2000 directed the District Inspector of Schools, Maharajganj and Joint Director of Education, Gorakhpur to initiate selection proceedings in accordance with U.P. Secondary Education and Services Selection Board Act, 1982, and Intermediate Education Act, 1921 after deciding the seniority between the parties.
4. The District Inspector of Schools recommended the name of Sri Prem Narain Chaurasia for promotion as Lecturer in Economics. Aggrieved the petitioner filed Writ Petition No. 33650 of 2000, which was disposed of on 8.8.2000 with a direction to the Director of Education to independently decide the representations of Sri Prem Narain Chaurasia ignoring the recommendation of District Inspector of Schools.
5. The Director of Education, by his order dated 26.7.2001, decided the representation and found that Sri Prem Narain Chaurasia was eligible and qualified for grant of promotion as Lecturer in Economics. He had passed M.A. in Economics in 1997 after taking permission of District Inspector of Schools. He was found to be senior to petitioner. The Director also found that the post of Lecturer in Economics fell substantially vacant on 30.6.1999 on the retirement of Sri Jagdamba Lal Srivastava. The representation was decided in favour of Sri Prem Narain Chaurasia. The District Inspector of Schools, by his order dated 5.11.2001, directed implementation of the orders. Aggrieved by order passed by the Director of Education dated 26.7.2001 and the order of District Inspector of Schools dated 5.11.2001, the petitioner has filed this writ petition on the grounds that respondent No. 6 was not qualified on the day when the post of Lecturer in Economics fell substantially vacant.
6. Sri Ashok Khare, senior counsel appearing for the petitioner submits that the ad hoc promotion of Sri Jagdamba Lal Srivastava was regularised under Section 33A (1A) of the U.P. Act No. 5 of 1982, w.e.f. 6.4.1991. Under this provision, he submits the regularisation is deemed and does not require any express order. The post of Lecturer in Economics fell substantially vacant on 6.4.1991 and not on 30.6.1999. Sri Jagdamba Lal Srivastava became regular and permanent Principal on 6.4.1991. On that date, the respondent No. 6 was not qualified to be considered for appointment.
7. Sri R. K. Srivastava appearing for the contesting private respondents submits that respondent No. 6 was appointed in L.T. grade on 2.2.1981, whereas the petitioner was appointed in L.T. grade on 1.1.1986, when C.T. grade was declared dying cadre. There was dispute between one Radhey Shyam Srivastava and Jagdamba Lal. Both claimed to be senior to each other. The Management declared Shri Radhey Shyam Srivastava to be senior and sent his signatures for attestation. The District Inspector of Schools did not agree, to the recommendation on which Writ Petition No. 29345 of 1990 was filed by Radhey Shyam Srivastava, in which status quo was directed to be maintained. The writ petition is still pending. Thus, Sri Jagdamba Lal was never appointed as Principal and the post of Lecturer in Economics never fell vacant. The post of Lecturer in Economics fell substantially vacant on the retirement of Sri Jagdamba Lal Srivastava on 30.6.1999. The services of Sri Jagdamba Lal Srivastava were not regularised and that he was only officiating as he was senior-most teacher. On the date of occurrence of vacancy, the respondent No. 6 was qualified and was senior and thus his claim has been rightly accepted by the Director of Education.
8. The only question calls for determination in this case is the date of occurrence of substantive vacancy on the post of Lecturer in Economics. Section 33A provides for regularisation of certain appointments. Sub-section (1A) along with (IB) and (1C) were inserted by U.P. Act No. 26 of 1991, w.e.f. 6.4.1991. Sub-section (1A) provides for deemed appointment in substantive capacity provided such teacher has been continuously serving in the institution from the date of ad hoc appointment to the date of such; commencement. For such regularisation the teacher should be appointed by promotion on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, who possess the qualifications prescribed or is exempted from such qualifications in accordance with the provisions of the U.P. Intermediate Education Act, 1921. The regularisation is, as such, subject to various conditions with regard to manner and method of appointments and qualifications and continuous service. These conditions require consideration and recording of satisfaction by the competent authority. The effect of deeming provision is only with regard to the appointment in substantive capacity, and has no co-relation with the date on which these sub-sections were inserted in U.P. Act No. 5 of 1982.
9. In the present case, the Director has rightly found that the matter of regularisation of the services of Sri Jagdamba Lal Srivastava, officiating Principal, as Principal appointed on substantive capacity, was pending with the District Inspector of Schools, Maharajganj as there was a dispute regarding seniority and that an interim order was operating in Writ Petition No. 29345 of 1990, and since he was not regularised before his retirement, the post of Lecturer in Economics substantively fell vacant only on his retirement on 30.6.1999. On that date, the respondent No. 6 had passed M.A. in Economics and was senior to the petitioner. He was as such eligible and qualified to be appointed as Lecturer and had better claim than the petitioner for promotion.
10. The writ petition is dismissed. No order as to costs.