B.M.Lal, J. - (1.) By means of this petition under Article 226 of the Constitution, the petitioner, Aditya Narain Tripathi, challenges the order dated 27-8-1988 passed by Uppar Shiksha Nideshak, Madhyamik, U.P., Allahabad (annexure 17 to the petition) and prays for issue of a writ or certiorari quashing the same.
(2.) In short the petitioner's case is that he and Gorakh Nath Verrna, respondent No. 2 were appointed teachers in L. T. Grade in Deyanand Inter College, Khorabar, Gorakhpur, by order dated 23-7-1973. However, despite the fact that the petitioner was shown above in the list, his seniority was not considered by respondent No. 1 and respondent No. 2, was given seniority. The record shows that the petitioner was appointed on 23-7-1973 but his appointment was on ad-hoc basis for a limited period ending on 30-6-1974 whereas respondent No. 2 was appointed on a clear vacancy as a probationer However, it is contended on behalf of the petitioner that by subsequent resolutions passed by the Management Committee of the College the petitioner's services were regularised with effect from the date of his original appointment, therefore, as his name appeared in the earlier list above the name of respondent No. 2, the petitioner's seniority had to be maintained. No doubt if the appointment of the petitioner is taken info consideration as regular from the initial stage he becomes senior to respondent No. 2, but that is not the correct position. After completing the ad-hoc period the petitioner was appointed in the institution on the basis of a fresh selection in 1974 and not on the basis of his earlier appointment which expired on 30-6-1974. Besides this there is no provision either in the U. P. Intermediate Education Act or the Regulations framed thereunder to convert a temporary or ad-hoc appointment into a permanent appointment or to treat the period during which a teacher has not worked as a continuous period of service. It is, therefore, clear that respondent No. 1 has rightly not taken into account the period from 23-7-1973 to 30-6-1974 while fixing the seniority of the petitioner. It might be observed that in the circumstances the subsequent approval granted by the Management Committee of the College and the order of the District Inspector of Schools dated 4-9-1974 could not revive the earlier list where respondent No 2 has been shown senior to the petitioner. Learned counsel for the petitioner also could not lay his hands to point out any provision either in the Act or the Regulations framed under the Act according to which the earlier list could ^be presumed to have revived. In the opinion of the court, therefore, respondent No. 1 reached the conclusion that the order dated 19-10-1979 of the District Inspector of Schools could not give seniority to the petitioner.
(3.) Learned counsel for the petitioner laid much emphasis on the fact that there is no provision in the Act or the Regulations for amending the nature of appointment and issuing a fresh letter of appointment (annexure 6 to the petition). Suffice it to say that this letter of appointment dated 28-1-1990 (annexure 6 to the petition) is totally without jurisdiction and does not affect the seniority of respondent No. 2. In this regard it is pertinent to refer Rule 3 (1) Chapter II of the Regulations framed under the Act which reads : "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." Relying upon the above rule the learned counsel for the petitioner contended that once the seniority was fixed it could not be re-opened. He strongly relied upon the decision rendered in Vijai Narain Sharma v. District Inspector of Schools Etowah and others, 1986 UPLBEC 44. No doubt if the seniority had been fixed in consonance with Rule 3 of Chapter II, in that circumstance, the same was not liable to be re-opened save only where the factors which are required to be considered in fixing the inter se seniority have been wrongly decided. In this case the petitioner was admittedly appointed on ad-hoc basis at the initial stage and subsequently after a lapse of a few months his appointment was regularised. In such a circumstance if his seniority was reckoned from the very beginning, that is, from the date of his initial appointment in 1973, the same was in violation of clause (b) of Rule 3. Thus, the District Inspector of Schools acted contrary to Rule 3 of the Regulations framed under the Act and his order dated 28-1-19S0 is liable to interference and the dictum in Vijai Narain's case (supra) is of no avail to the petitioner.;