- (1.) This was a special appeal by the State of Uttar Pradesh and the Director of Education, Uttar Pradesh, against an order of Nigam, J. of the Allahabad High Court allowing the writ petition of Sri Sudarshan Deo, under Article 226 of the Constitution, praying for the issue of a writ of mandamus directing the appellants to fix his seniority in the graded list of special Subordinate Educational Service, U. P., on the basis of the original date of this substantive appointment in that cadre, that is from March I, 1941. The appeal was heard by a Division Bench, consisting of R. Dayal and B. Upadhya, JJ. The Hon'ble Judges having differed in their opinions they referred two questions to a third Judge for his opinion. Thus, the matter came before M. C. Desai, J. who delivered the following opinion : Desai, J. The following two questions have been referred for my opinion : "1. Whether, in the circumstances of the case, this Court should issue a writ under Article 226 of the Constitution directing the appellants to fix the seniority of Sri Sudarshan Deo, in his service and grade, as determined by the Court?
(2.) Whether the respondent's seniority in the Special Subordinate Service, U. P., should be determined on the basis of his substantive appointment as Supervisor, Agricultural Schools, U. P., in the Rs. 120-300 grade on the 1st March, 1941 or on the basis of his confirmation in that appointment and grade from the 1st March 1942 or from the 22nd May 1946 when that post was included in the cadre of the assistant Masters of Government Intermediate Colleges in the Special grade of the Subordinate Educational Service?" 2. The circumstances referred to in the first question are these. The respondent was appointed in July, 1935, as a trained graduate teacher, in the grade of Rs. 75-180, which was a service inferior to the Special Subordinate Educational Service. He was not appointed to the Special Subordinate Educational Service and could not be considered to be a member of it. On 7-1-1938 he was confirmed in that post. On 1-2-1940 he was appointed as a Supervisor, Agricultural Schools, in the grade of Rs. 120-300. This appointment was a temporary one. The previous incumbent of the post was a Deputy Inspector of Schools, of the Special Subordinate Educational Service (hereinafter referred to as S.S.E.S.) in the grade of Rs. 180-360. The letter of appointment of the respondent has not been filed by the respondent ant! it is not known on what terms he was appointed. On 1-3-1941 the appointment was made substantive but on probation for one year. On the expiry of the period of one year on 1-3-1942, he was confirmed as a Supervisor. The post of Supervisor was a special isolated post not borne on any cadre (such as that of Deputy Inspectors of Schools) and created in 1939 as a temporary measure, and was manned in the beginning by an officer of the Agriculture Department. Some sort of a grade was fixed for the post, but it was continually revised, from time to time, in order to make it conformable to the salary that the officer was entitled to get as a member of the Agricultural Service. Subsequently the post was held by a Deputy Inspector of Schools. On 22-5-1946 the Government issued an order merging the post in the cadre of Assistant Masters, Government Higher Secondary Schools, in the S.S.E.S. In the S.S.E.S. there was a cadre of Assistant Masters, Government Higher Secondary Schools, and the post of Supervisor, which was not borne on it previously, was for the first time on 22-5-1946 made a post borne on it. The reason for including the post in this cadre was to enable the incumbent to get promotion as an Assistant Master, G. H. S. Schools. So long as the post was not included in the cadre an incumbent of it could not claim promotion like an Assistant Master, being an isolated post he would always hold it. The respondent admits this fact; it is not his case that previous to 22-5-1946 the post of Supervisor was, or should have been treated as, borne on the cadre of Assistant Masters. The relief that he claims is based upon the order issued by the Government on 22-5-1946 and not independently of it. He does not challenge the order at all. On the inclusion of the Supervisor's post in the cadre of Assistant Masters, there arose the question how his seniority in the cadre of Assistant Masters should be determined. Since he became a member of the cadre on 22-5-1946, the Government decided that he should be placed just after all the Assistant Masters confirmed before 22-5-1946. In other words, though be was confirmed as a Supervisor on 1-3-1942, he was treated as a confirmed member of the cadre of Assistant Masters on 22-5-1946, because it was on that date that he became a member of the cadre. He was not satisfied with the seniority assigned to him; he claimed seniority with effect from the date on which he was confirmed as a Supervisor, i.e. with effect from 1-3-1942. His request for reconsideration of the question of his seniority having been rejected by the Government he filed a petition for a writ of mandamus, or an order or direction in the nature of mandamus "directing opposite-parties to fix the seniority ...... in the graded list of Special Subordinate Educational Service U. P., on the basis of the original date of the substantive appointment of the applicant in that cadre, i.e. from 1-3-1942" and any other writ, order or direction to which he was entitled. The petition was filed against the State of Uttar Pradesh and the Director of Education, Uttar Pradesh. His contention was that his seniority, in the gradation list of the cadre of Assistant Masters, should have been fixed not on the basis of the date on which the post of Supervisor was included in the cadre but on the basis of the date on which he was appointed substantively to the post or the date on which he was confirmed in the post. What he wanted in other words is that though the post was included in the cadre on 22-6-1946, he should be deemed to be a member of a post borne on the cadre with effect from the date on which he was substantively appointed or on which he was confirmed in the post. He stated in paragraph 6 of his rejoinder-affidavit that though he was appointed substantively as a Supervisor on 1-3-1941 and was confirmed on 1-3-1942, the question of his grade was finally decided on 22-5-1946, and that the decision "has to take effect from the date on which the deponent was substantively appointed," because he "could not be confirmed twice in the same grade." The application was opposed by the opposite-parties who claimed that the respondent's seniority was correctly fixed. In the course of arguments before my brother Nigam, counsel for the opposite-parties is said to have stated that the respondent "is entitled to the seniority in the grade of Assistant Master, Government Higher Secondary Schools, U. P. in the Special Subordinate Educational Service grade of Rs. 120-300 and is entitled to seniority in this cadre as if he had been confirmed in that grade on 1-3-1942", The statement of counsel is not recorded in the proceedings and is to be gathered from my learned brother's judgment. He observed that what was conceded was what the respondent was entitled to and that he should not have been treated on 22-5-1946 as a new entrant and should have been allowed seniority "commensurate with his confirmation in an equivalent grade on 1-3-1942 or the date of his first appointment in the grade, i.e. 1-3-1941 as the rules may permit." He pointed out that the S.S.E.S. consists of several cadres, such as cadre of Lecturers of Government Training Colleges, cadre of Assistant Masters of Government Intermediate Colleges and cadre of Assistant Masters of Government Higher Secondary Schools. The respondent belongs to the last cadre. My learned brother allowed the writ petition with the direction that his seniority shall be calculated in the post-1931 scale of Rs. 120-10-300 "as if he had been confirmed in the cadre of Assistant Masters, Government Higher Secondary Schools, U. P. in the Special Subordinate Educational Service grade of Rs. 120-300 on 1-3-1942 or had been appointed to it substantively on 1-34941."
(3.) The special appeal was filed from my learned brother's judgment. It came up for hearing before my brothers Raghubar Dayal and B. Upadhya, who differed from each other about the orders to be passed in the special appeal. Raghubar Dayal, J. was of the view that the special appeal should be allowed and the respondent's petition be dismissed, while B. Upadhya J. was of the opinion that it should be dismissed with costs.;