Arun Tandon, J.
1. Heard Sri J.P. Singh, Advocate on behalf of Surya Deo Rai, Sri S.P. Singh, Advocate on behalf of Devendra Nath Chaturvedi, Sri S.P. Pandey, Advocate on behalf of Ram Ashray Singh and learned Standing Counsel on behalf of State.
Since the basic facts, relevant for the dispute and the legal aspects involved are identical in all these writ petitions, they are being decided by this common judgement. The facts on record of Civil Misc. Writ Petition No. 52541 of 2005 are being stated for the purposes of present judgement treating the same to be the leading case.
Civil Misc. Writ Petition No. 52541 of 2005:
2. Smith Inter College Azamgarh is an institution recognised under the provisions of U.P. Intermediate Education Act, 1921. The provisions of the said Act, Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971, and those of U.P. Secondary Education Services Selection Board Act, 1982 are fully applicable to the teachers and staffs of the said institution.
3. On 24th April, 1981, three post of Lecturers were created in the Institution under order of the Deputy Director of Education, VII Region, Gorakhpur. In the letter of creation of posts, in column of special restrictions, it was provided that all three posts shall be filled by way of promotion from qualified L.T. Grade teachers. A note was also appended in the letter to the effect that a ban has been imposed on appointments of Principal and teachers in recognised institutions and therefore, no appointment be made against these posts till ban if lifted. Lastly it was provided that the District Inspector of Schools may himself satisfy about the 40% quota reserved for promotion and after promotion from L.T. Grade to Lecturers Grade, the vacancy caused in LT. Grade shall not be filled.
4. On 26th May, 1981 the ban, which was imposed qua appointment on the post of Principal and teachers in recognised institutions, was lifted. The Management of the institution in exercise of power under Regulation-6 (1) and (2) of Chapter-II of the Regulations framed under the U.P. Inteimediate Education Act, 1921, passed a resolution for promotion of (i) Ram Dulare as Lecturer Hindi, (ii) Surya Deo Rai (petitioner) as Lecturer Art and (iii) Kailashpati Pandey as Lecturer Civics. The relevant papers qua promotion of the petitioner along with two other Lecturers were forwarded to the District Inspector of Schools, Azamgarh. No orders were passed on the papers so forwarded.
5. On 10th July, 1981 the U.P. Secondary Education Services Selection Commission Ordinance, 1981 was promulgated, which conferred a power of ad-hoc appointment/promotions upon the Committee of Management of the institutions in certain contingencies. In exercise of power under the aforesaid ordinance, a fresh resolution was passed by the Committee of Management on 7th September, 1981, granting ad-hoc promotion as Lecturer to the petitioner and other two teachers, referred to above. With reference to the said resolution of the Committee of Management dated 7th September, 1981, the salary of the petitioner and other two teachers was also fixed in Lecturers Grade under an order dated 6th October, 1981.
6. On 19th February, 1986, respondent No. 6 namely, Ram Asrey Singh was appointed as 'Reserved Pool Teacher' (Lecturer in Geography) (Reference Sections 21-A to 21-D of Chapter IV-A of the U.P. Secondary Education Services Selection Board, Allahabad Act, 1982). It is not in dispute that the appointments offered to Reserved Pool Teachers under the aforesaid provisions are substantive in nature and such teachers are entitled for determination of their seniority from the date of such appointment.
7. The Secretary, U.P. Secondary Education Services Selection Board, Allahabad vide letter dated 18th July, 1986 informed the District Inspector of Schools that Surya Deo Rai has been selected for regular promotion against the newly created post of Lecturer and, the District Inspector of Schools may take appropriate action in accordance with Rule-9 (6) of the U.P. Secondary Education Services Selection Commission (First Amendment) Rules, 1983.
8. The petitioner claims that he is senior to respondent No. 6, who has been appointed as Lecturer only in the year 1986, while petitioner's date of substantive appointment would be 26th May, 1981, as the resolution forwarded by the Committee of Management dated 26th May, 1981 shall be deemed to be approved, after expiry of requisite period, since no adverse decision was communicated by the District Inspector of Schools, it has been stated that in the seniority lists, which were published in the institution between 1984 to 2000, petitioner was always shown senior to respondent No. 6. Between 2000-2006 whenever the Principal of the institution went on leave, present petitioner was given charge of the office of the principal of the institution. It is submitted that this long sanding seniority was never challenged at any point of time by respondent No. 6.
9. One Satish Kumar Srivastava, who was appointed as Officiating principal on 30th June, 2005 in the institution, refused to work as Officiating Principal for personal reasons. The Sub-Divisional Officer, Sagri, in exercise of power as Prabhari Adhikari of the institution referred the matter to the District Magistrate, who is Ex-Officio President and Manager of the institution for appointment of a new officiating principal. The District Magistrate appointed a three Members Committee, which submitted its report dated 15th July, 2005 recommending respondent No. 6 to be appointed as Officiating Principal in preference to the petitioner on the basis of seniority. The District Magistrate approved the said recommendations by making an endorsement to the following effect 'Yatha Prastavit Sweekrit'. As a consequent thereto, the Sub Divisional Officer has passed the impugned order dated 15th July, 2005 appointing respondent No. 6, Ram Asrey Singh as Officiating Principal of the institution.
10. Feeling aggrieved by the said order petitioner, Surya Deo Rai filed Civil Misc. Writ Petition No. 52541 of 2005. In paragraph-27 of this writ petition reference has been made to the order passed in Civil Misc. Writ Petition No. 13716 of 1985 filed by Hari Shanker Rai dated 24th September, 1996 against the appointment of Sri Ram Asrey Singh (respondent No. 6) as well as to the interim order passed in Special Appeal No. (176) of 1996 dated 16th October, 1996 filed against the order of this Court dated 24th September, 1996 referred to above, whereunder Ram Asrey Singh is continuing in the institution. It is contended that Ram Asrey Singh is working in the institution only under an interim order passed by the Division Bench of this Court dated 16th October, 1996.
Civil Misc. Writ Petition No. 594 of 2005
11. Sri Ram Asrey Singh (respondent No. 6) has filed Civil Misc Writ Petition No. 594 of 2005 seeking a writ of mandamus commanding the respondents to prepare and publish a seniority list of teachers of the institution within a stipulated period. A counter affidavit has been filed on behalf of Kripa Shanker Tiwari, the then principal of the institution in the said petition, stating therein that Surya Deo Rai is senior to Sri Ram Asrey Singh. In paragraph-27 of the counter affidavit, it has been stated that Sri Ram Asrey Singh is aware that the dispute of seniority is pending before the Prabhari Adhikari of the institution and, therefore, the Principal is not in a position to finalise the seniority list.
Civil Misc. Writ Petition No. 23040 of 2006:
12. Ram Asrey Singh has filed this second writ petition No. 23040 of 2006 for quashing the order of the District Magistrate dated 10th April, 2006, whereby four members committee comprising of various officers of the State including the District Inspector of Schools, had been constituted for the purposes of deciding inter se seniority dispute between the parties after affording opportunity of hearing and after examining the records.
Civil Misc. Writ Petition No. 594 of 2005:
13. This writ petition has been filed by Devendra Nath Chaturvedi for quashing the order dated 23th February, 2005 passed by the District Inspector of Schools, whereby he had held that Sri Ram Asrey Singh being senior to Devendra Nath Chaturvedi and Surya Deo Rai, with reference 10 the date of approval of their appointment in Lecturers grade. As also for quashing the order dated 25th February, 2005 passed by the Sub-Divisional Magistrate, Sagri, whereby he has directed that Sri Ram Asrey Singh shall discharge duties as officiating principal of the institution.
14. All the writ petitions have been clubbed together and are being decided by means of this common judgement.
From the facts, as recorded herein above, it is apparently clear that there is a dispute of inter se seniority between the three teachers, who were granted promotion against newly created posts of Lecturers in the institution, as per the letter dated 24th April, 1981, vis-a-vis Sri Ram Asrey Singh, who was offered appointment as Reserved Pool Teacher, in the institution.
15. Sri J.P. Singh, Advocate on behalf of petitioner Surya Deo Rai, submits that on the date the 3 posts of Lecturers were created in the institution i.e. 24th April, 1981, U.P. Secondary Education Services Selection Commission Ordinance, 1981 had not been promulgated. Therefore, promotions were required to be made in accordance with the provisions of UP. Intermediate Education Act, 1921 and Regulations framed thereunder. The Committee of Management accordingly on 4th June, 1981, with reference to Regulation-5 (1) and (2) of Chapter-II of the Regulations framed under the U.P. Intermediate Education Act, 1921, passed a resolution for the promotion of the petitioner and other two teachers against newly crated posts and forwarded the papers for approval to District inspector of Schools. Since no orders were passed on the papers so submitted within a period of three weeks of the receipt of the papers, it is to be presumed that the promotions granted to Surya Deo Rai and other two teachers stood approved. Such promotion of the petitioner was substantive in nature. Reliance has been placed upon Regulation 6 (6) of Chapter-II of the Regulations framed under the Intermediate Education Act. It is further contended that the subsequent resolution of the Committee of Management dated 7th September, 1981, whereby ad-hoc promotion was granted to the petitioner and two other teachers against substantive vacancy, is of no legal consequence.
16. In the alternative it is contended that the resolution dated 7th September, 1981 granting ad-hoc promotion to the petitioner along with two other teachers, should have necessarily been acted upon by the authorities within reasonable time, and petitioner along with two other teachers, should have granted regular promotions against three newly created posts. If the U.P. Secondary Education Services Selection Board, Allahabad has taken years to consider the papers submitted by the Committee of Management and ultimately passed an order selecting the petitioner for regular promotions on 18th July, 1986, the petitioner and two other promotees cannot be made to suffer nor their right to claim substantive appointment from the date of the resolution of the Committee of Management can be adversely affected. Petitioner along with two teachers claims that they have been substantively appointed in the year 1981. vis-a-vis Ram Asrey Singh, who has been appointed in the year 1986.
17. Therefore, they are entitled to be declared senior. Lastly it is stated that during the period between 1986 to 2005, petitioner was always treated senior to Ram Asrey Singh. This settled seniority cannot be permitted to be upset after decades, when on issue of officiating promotion on the post of Principal arises. It is alleged that the writ petition filed by Ram Asrey Singh being Civil Misc. Writ Petition No. 594 of 2005 is only by way of Peshbandi, so as to obtain an order for re-opening of the settled seniority.
18. Contentions raised on behalf of the petitioner and two promotees are opposed by Sri S.P. Pandey, learned Counsel for Ram Asrey Singh.
It is submitted on his behalf that under the letter creating the three posts of Lecturers dated 24th April, 1981 following restrictions were placed qua appointment against the newly created pots of Lecturers:
(a) there is a ban on appointment and therefore, no appointment be made till the ban is lifted,
(b) the District Inspector of Schools must ensure the fulfilment of 40% quota provided for promotion.
19. To elaborate further it is submitted that the ban on appointment which was earlier imposed, was withdrawn on 22nd May, 1981. No resolution whatsoever was passed by the Committee of Management of the institution for promotion as contemplated by Regulation- 5(1) and (2) of Chapter-II of the Regulations framed under U.P. Intermediate Education Act, 1921. It is stated that from the document filed as Annexure-4 to the writ petition it is apparent that only a proposal was submitted by the Principal of the institution, who had no jurisdiction to grant promotion under the Regulations applicable. In any of the matter since the letter creating the posts itself provided that the District Inspector of Schools must ensure the requirement of 40% quota for promotion, it was but necessary that the regular promotion could have been made only in accordance with Regulation- 5 (1) and (2) of Chapter-II, which at the relevant time provided the quota for promotion as 40% only, of the total posts duly created in the cadre in the institution. At the time of creation of these 3 posts, there were already 12 sanctioned posts of Lecturers out of which 7 were filled by promotion, while 5 posts were filled by direct recruitment. Three additional posts, which were created under letter dated 24th April, 1981, increased the sanctioned strength from 12 to 15 and 40% of the same would work out to 6 only, therefore, these 3 newly created posts fell outside the quota reserved for promotion and were required to be filled by direct recruitment only.
20. Learned Counsel for respondent clarifies that conditions incorporated in the letter creating the posts are to be read in conformity with the Statutory provisions of Regulation-5 (1) and (2) of Chapter-11 and not in derogation thereto. Promotion in-excess of 40% of the total posts created in the institution is legally not permissible. It is in this background that the petitioner and two teachers were not paid salary in lecturer grade, despite the alleged resolution of promotion dated 4th June, 1981 at any point of time. 15 is clarified that it was only under the resolution of the Committee of Management dated 7th September, 1981 that the petitioner was granted ad-hoc promotion in accordance with the provisions of UP. Secondary Education Services Selection Commission Ordinance, 1981 pending regular appointment. Petitioner along with two teachers were approved for promotion under letter of the U.P. Secondary Education Services Selection Commission dated 17th July, 1986 and therefore, from no date prior to 18th July, 1986, petitioner can claim to have been substantively appointed in the institution.
21. Learned Counsel for the respondent further states that the appointment of a Reserved Pool Teacher, is substantive, since its inception and therefore, Ram Asrey Singh (respondent No. 6) who has admittedly been appointed as Reserved Pool Teacher on 19th February, 1986 is entitled to be treated senior to Surya Deo Rai (petitioner) as well as two other teachers, who were similarly promoted. As a matter of fact Ram Asrey Singh challenges the very regularization/selection/appointment of Surya Deo Rai and other two teachers in Lecturer's grade by the U.P. Secondary Education Services Selection Board, Allahabad under letter dated 18th July, 1986, on the ground that their ad-hoc appointment could have been regularised under Section 33-A (1) of U.P. Act No. 5 of 1982 w.e.f. 6th April, 1991 and the order of appointment as lecturers dated 18th July, 1986 as issued by the Secretary of the U.P. Secondary Education Services Selection Board is patently misconceived and contrary to the provisions of the U.P. Secondary Education Services Selection Board Act.
22. In rejoinder Sri J.P. Singh, learned Counsel for Surya Deo Rai petitioner) submits that 40% quota prescribed under Regulation-5 (1) and (2) of Chapter-II, is the minimum, provided and promotion in excess of 40% quota can be granted in given set of facts, therefore, there is no illegality in promotion of three teachers including the petitioner as per the resolution dated 4th June, 1981. He further points out that resolution dated 4th June. 1981 has been signed by the Principal and Prabhan of the institution and therefore, it is deemed to be a valid resolution of the Committee of Management. With regard to the order of the Secretary of the UP. Secondary Education Services Selection Board, Allahabad dated 18th July, 1986, he submits that the said issue cannot be reopened after more than 20 years of the order on the asking of a teacher, who is raising a dispute of seniority only.
23. I have heard learned Counsel for the parties and have gone through the records of the present writ petition.
Inter se dispute of seniority between teachers of recognised institutions is required to be adjudicated upon at the first instance by the Committee of Management of the institution (reference Regulation-3 of Chapter-II of the Regulations framed under the UP. Intermediate Education Act. 1921), and the seniority is liable to be revised every year under Sub-clause-2.
24. It is not in dispute between the parties that seniority is to be determined with reference to the date of appointment on substantive basis. In case, a person feels aggrieved from the decision of the Committee of Management of the institution, he has a right to file an appeal before the Regional Joint Director of Education within 15 days of such determination (Reference Regulation-3 (1) (f) of Chapter-II of the Regulations framed under UP. Intermediate Education Act, 1921.
25. From the records of the present writ petition it is apparently clear that none of the contesting parties have approached the Regional Joint Director of Education Regulation-3 (1) (f) of Chapter-II of the Regulations till date and therefore, there has been complete non-consideration of the dispute of inter se seniority between the parties by the authority provided for under the Act itself.
26. Normally this Court would have insisted upon the paries to have availed the statutory remedy by way of appeal before the Regional Joint Director of Education as contemplated by Regulation- 3 (1) (f) of Chapter-II of the Regulations. However, since the petitions are pending before this Court since 2005, it is proper that the controversy raised between the parties may be examined by the Court without insisting upon them to avail the alternative remedy.
27. The facts between the parties are not in dispute. It is clear that three posts in Lecturers grade were created in the institution under an order of the Deputy Director of Education dated 24th April, 1981, which provided that all the three posts may be filled by promotion, however two restrictions had been placed, (a) ban on appointment, is enforced therefore, till the ban is lifted no appointment be made, (b) District Inspector of Schools may examine and take care of the 40% quota prescribed for promotion.
28. On behalf of respondent it has been stated that on the. relevant there were 12 sanctioned posts of Lecturer in the institution, out of which 7 posts had been filled by way of promotion, and 5 had been filled by way of direct recruitment. Quota prescribed for promotion under the statutory Regulations on the relevant date was 40%. It is thus apparent that on an addition of 3 new posts, total number of posts of Lecturers would work out to 15. On simple calculation 40% of the same would work out to 6 only. Therefore, all the three posts well outside the 40% quota reserved for promotion and therefore, could be filled by direct recruitment.
29. The Submission of Sri J.P. Singh, Advocate that Regulation 5 (1) and (2) of Chapter-II only lays down the minimum quota as 40% for promotion and therefore, if promotions in excess of 40% are granted there shall be no illegality, is based on misreading of the provisions. For ready reference Regulation-5 (1) and (2), as it stood at the relevant time, reads as follows:
5- 1 fdlh ekU;rk izkIr laLFkk eas v/;kid ds in dh izR;sd fjfDr [k.M+ 2 esa fd, x, vU;Fkk micU/k ds flok; lh/kh HkrhZ }kjk Hkjh tk;sxh A
2d izoDrk Js.kh esa ;k ,y-Vh- Js.kh esa Lohd`r inksa dh dqy la[;k dk ipkl izfr'kr laLFkk esa dze'k% ,y-Vh- vkSj lh-Vh- Js.kh es dk;Zjr v/;kidksa esa ls dsoy inksUufr }kjk Hkjk tk;sxk vkSj inksUufr ,sls v/;kidks dh inksUufr ds fy, miyC/krk rFkk ik=rk ds v/khu jgrs gq, dh tk;sxh A----
30. From the language of the regulation it follows that only 40% of the total sanctioned posts can be filled by promotion and remaining by direct recruitment. The maximum, therefore, provided for promotion is 40% and any promotion in excess thereof will be illegal and without authority.
31. In the opinion of the Court, learned Counsel for the respondent is justified in contending that any conditions incorporated in the letter by the Deputy Director of Education qua the mode and manner of appointment on the newly created posts cannot over ride the statutory provisions of Regulation-5 (1) and (2) of Chapter-II of the regulations framed under the U.P. Intermediate Education Act, 1921. The Deputy Director of Education has no authority of law to direct, promotion beyond the maximum of 40% prescribed for the purpose. This 40% has necessarily to be worked out with reference to the number of posts duly created in institution in the grade and with further reference to the mode and manner of the teachers already appointed.
32. On the aforesaid issue is dependent the issue as to whether the promotion, which was granted in favour of petitioner and two other teachers on 4th June, 1981 under a resolution said to have been signed by the Principal and the Authorised Controller of the institution was in accordance with law or not. This Court may record that under Regulation 3 (1) (f) of Chapter-II of the Regulations framed under the U.P. Intermediate Education Act, 1921, if any decision is communicated with regard to the promotion granted by the Committee of Management, as per the provisions applicable, prior to the enforcement of the U.P. Secondary Education Services Selection Board Act, 1982, the promotion is deemed to have been approved, if no decision is communicated within the time frame provided there-for. However, if the promotion effected is in teeth of the quota statutorily fixed, such deeming provision cannot be invoked inasmuch as a legal fiction cannot be the source of violation of statutory condition imposed.
33. The applicability of this 40% of quota has to be determined with reference to the date on which 3 new pots were created with reference to the lecturers already appointed and working. For this purpose facts as existing on record of the institution have to be examined by the authorities. On examination of records, it is found that the promotion as granted in favour of petitioner and two other teachers is outside the 40% quota, it would logically follow that such promotion is illegal and then the only conclusion legally possible would be that the petitioner along two teachers were rightly granted ad-hoc promotion under resolution dated 7th September, 1981 and this ad-hoc promotion of the petitioner and other two teachers, which was in accordance with the U.P. Secondary Education Services Selection Commission Ordinance, 1981 enforced w.e.f. 14th July, 1981 would result in ad-hoc appointment only and cannot be the basis for treating the appointment of the petitioner as substantive, for the purposes of fixation of their seniority.
34. Linked with the aforesaid is the issue as to whether the letter of the Secretary of the U.P. Secondary Education Services Selection Board, Allahabad dated 18th July, 1986 is in accordance with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 and Rules framed thereunder or not. Absolutely no provisions could be referred by the learned Counsel for Surya Deo Rai and other two teachers, who had been granted such promotion, whereby their ad-hoc appointment in the year 1981 could have been directed to be converted into the substantive appointment under Rule 9(6) of the U.P. Secondary Education Services Selection Board Rules, 1983, as has been done under the order dated 18th July, 1986, inasmuch as if the vacancy was required to be filled by direct recruitment, there could not have been any substantive promotion as has been directed in favour of petitioner and other two teachers under order dated 18th July, 1986 of the Secretary of the U.P. Secondary Education Services Selection Board, Allahabad. The only provisions under which such ad-hoc appointment of the petitioner could be converted into a substantive appointment would be under the provisions of Section 33-A (1) (1) of U.P. Act No. 5 of 1982 wherein regularization could be directed with effect from 6th April, 1991 only. It is needless to emphasize that Section-16 of the U.P. Secondary Education Services Selection Board, Allahabad Act 1982 declares that any appointment made contrary tot he provisions of the Act would be void.
35. So far as respondent No. 6, Ram Asrey Singh is concerned, it is not in dispute that he has been offered appointment under Sections 21-A to D of the U.P. Secondary Education Services Selection Board Act, such appointments have been held to be substantive from their inception and therefore, so far as the substantive appointment of Ram Asrey Singh is concerned, there can be no dispute.
36. This Court may also examine, the other issue raised on behalf of the petitioner, namely, previous seniority list as published being never objected to by Ram Asrey Singh.
37. Affidavit filed by the then Principal of the institution, in Civil Misc. Writ Petition No. 594 of 2005 specifically records that no seniority list can be published as the matter in that regard was pending before the Prabhari Adhikari. No orders of the Prabhari Adhikari determining the seniority of Lecturers has been brought on record and therefore, there was no occasion for the party to seek redressal of his grievance by way of statutory appeals.
38. The factual issue qua seniority list of teachers having been published in the institution in accordance with Regulation-3 of Chapter-II of the Regulations framed under the U.P. Intermediate Education Act, U.P. Intermediate Education Act, 1921 in previous years and the same being not disputed also requires examination of records of the institution.
39. In the totality of the circumstances, as noticed herein above, let the records of the institution be examined by the Committee of Management/the institution afresh in light of the observations made above and fresh order determining the inter se seniority be issued in accordance with law preferably within 6 weeks from the date a certified copy of this order is filed before the Prabhari Adhikari after affording opportunity of hearing to the parties, and thereafter officiating appointment on the post of Principal shall be made strictly in accordance with provisions of Section-18 of the U.P. Secondary Education Services Selection Board, Allahabad Act, 1982. Till then status quo as of date qua functioning on the post of Principal of the institution shall be maintained.
40. With the aforesaid observations/directions the present writ petition is disposed of finally, Civil Misc. Writ Petition Nos. 52541 of 2005, 42834 of 2005, 594 of 2005 and 23040 of 2006 are disposed of finally.