R. A. Sharma, J. - (1.) (for self, K. C. Agarwal, A.C.J, and U. C. Srivastava, J.)- Smt. S. K. Chaudhary, the petitioner in Writ Petition No. 12388 of 1989 was appointed as and C. T. grade teacher in 1964 in Vidyawati Darbari Intermediate College, Lukarganj, Allahabad (hereinafter referred to as College), and continued to work in that capacity in the College till her promotion to the post of lecturer on 8-7-1973. However, in the meantime she also passed L. T. in the year 1970. Dr. Asha Saxena, petitioner in connected writ petition no. 12164 of 1989 was appointed in the college on 22-7-1969 as L. T. grade teacher and continued on that post till her promotion as lecturer on 8-7-1973. Km. Radha Raizada, who was appointed as L. T. grade teacher in the college in the year 1971 was also promoted to the post of lecturer on 8-7-1973. In this manner all the three were promoted to the post of lecturer in the college on the same date i.e. 8-7-1973 and have been working since then as lecturer.
(2.) IT appears that the seniority list in accordance with Regulation 3 of Chapter II of the Regulations framed under U. P. Intermediate Education Act (hereinafter referred to as Regulation), was circulated in the year 1986-87. Dr. Asha Saxena filed objection against it before Committee of Management. Her representation was rejected on 11-7-1988 by management. Against this decision of management Dr. Asha Saxena filed appeal before Regional Inspectress of Girls Schools, IV Region, Allahabad (hereinafter referred to as R. I. G. S). R. I. G. S. vide order dated 5-11-1988 held that promotions of all the three as lecturer were illegal as none of them was eligible for being promoted at that time and accordingly without deciding the appeal, referred the matter to the Director of Education for cancelling promotions of the three ladies under Section 16-E (10) of the Intermediate Education Act. Matter is still pending before Director and no decision has been taken by him so far. In the meantime regular principal of the college was to retire from 30-6-1989 and R. I. G. S. vide its order dated 28-6-1989 directed the management of the college to appoint Smt. S. K. Chaudhary as acting principal. She accordingly took over charge as acting principal after 30-6-1989. This decision was challenged by Dr. Asha Saxena by means of writ petition no. 12164 of 1989 and this court granted interim stay order in her favour on 5-7-1989. In view of the interim order granted by this court the management of the college passed order on 6-7-1989 directing Smt. S. K. Chaudhary to hand over charge of the office of acting principal to Dr. Asha Saxena. Against this order of management Smt. S. K. Chaudhary filed writ petition no. 12388 of 1989 before this court. When this writ petition of Smt. S. K. Chaudhary was presented before this court a Division Bench referred the whole case to Full Bench for decision. The relevant extract of the order of reference is quoted below :- "Dispute about seniority has been raised in these petitions. Dr. Asha Saxena, Km. Radha Raizada and Smt. Shanti Kunwar Chaudhary are the three, who admittedly were promoted in lecturer's grade in 1974. On that date the seniority could be determined under clause (b) of Rule 3 of Chapter III on age. In 1976 Clause (bb) was added and it provided that in promotions seniority shall be decided on seniority in the grade from which the person is promoted. It was urged on behalf of Dr. Saxena that she having been appointed in L. T. grade earlier than the other two, her seniority should be determined under this clause. Reliance has also been placed on last subclause of this paragraph which provides that seniority will have to be revised every year. Reliance has also been placed on 1983 U. P. L. B. E. C. page 297. The decision is in favour of the petitioner but we have our doubts whether a rule or regulation can be applied retrospectively. In absence of any provision in the Regulation or in the Rule ' itself, it has normally to be taken as prospectively. Since in Mahendra Pal Singh's case it was applied to the promotions which have been made before coming into force of clause (bb), we are of the opinion that it needs reconsiderations." Before 7-7-1976 there was no provision in the Regulation providing for grade wise fixation of the seniority of the teachers. Regulation 2 of Chapter I laid down for preparation of common seniority list of all the teachers in substantive service of the institution for purposes of selection, by rotation, of two senior most teachers as ex-officio members of the Committee of Management. This common seniority list is prepared on the basis of substantive service in the institution irrespective of grade or the post. A new Chapter II of the Regulation was substituted which was published in U. P. Gazette, Extra Ordinary dated 7-7-1976 in which Regulation 3 for the first time provided for preparation of grade wise seniority list of the teachers by Committee of Management in accordance with principle laid down therein. Clause (bb) was subsequently added to Reg. 3 by notification dated 9-12-1976. Regulation 3 is quoted below : "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) 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; (bb) Where two or more teachers working in 'A' grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted; Provided that if such length of service is equal, seniority shall be determined on the basis of age. (c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service. (d) If a teacher who is placed under suspension is reinstated on his original post, his original seniority in the grade shall not be affected; (e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision. (f) Any teacher aggrieved from the decision of the Committee of Management under sub-clause (e) may prefer an appeal to the Inspector within fifteen days from the date of communication of such decision to such teacher and the decision of the Inspector in appeal shall be final and shall be given effect to by the Committee of Management. (2) The seniorty list shall be revised every year and the provisions of clause (1) shall mutatis mutandis apply to such revision"
(3.) REGULATION 3 as introduced on 7-7-1976 provided for fixation of seniority on the basis of substantive appointment in a grade and teacher in higher grade was declared to be senior to teacher in lower grade, irrespective of length of service. REGULATION 3 further provide for representation to the Committee of Management against fixation of seniority and thereafter an appeal before District Inspector of Schools. It appears that it was not brought to the notice of Division Bench that Rugulation 3 of Chapter II was enacted for the first time on 7-7-1976 and the promotions to the post of lecturer of the three ladies was made in 1973 and as such on that date seniority could not have been determined on the basis of Regulation 3 as it was not in existence at that time.;