S.K.Singh, J. - (1.) By means of this writ petition the petitioner has prayed for quashing the order dated 8.3.1999 (Annexure-1 to the writ petition) by which the appeal filed by the opposite party No. 3 regarding infer se seniority dispute between the petitioner and respondent No. 3 came to be decided in favour of the opposite party No. 3.
(2.) Petitioner and the respondent No. 3 both were given appointment as Lecturer on 2.9.1974. Petitioner claims that he was initially appointed as Assistant Teacher in L.T. Grade on 1.3.1973 and was approved on that post. It is claimed that in the year. 1979 a seniority list was published by the Manager of the Institution where the petitioner was placed at S. No. 3 and the opposite party No. 3 was placed at S. No. 4, which was not objected by the opposite party No. 3. It has been further stated that in the year 1994 another seniority list was published in which also the same sequence was shown. It is in the year 1994 an objection was filed by the opposite party No. 3 on 12.11.1994 against the seniority list. The said objection was filed by the opposite party No. 3 before the Manager and not before the Committee of Management, which was rejected by the letter as was written by the Manager on 21.1.1995. It is against the letter of the Manager dated 21.1.1995 by which the claim of the opposite party No. 3 was rejected, respondent No. 3 filed appeal which subsequently came to be placed before the Joint Director of Education, Bastl Region, who has allowed the same by his order dated 8th March, 1999 (Annexure-1 to the writ petitioner) which made the petitioner aggrieved to come up to this Court.
(3.) Learned counsel for the petitioner Shri Arvind Srlvastava. advocate assailed the order of the respondent No. 1 dated 8.3.1999 mainly on the following grounds : (i) The order of the respondent No. 1 besides being illegal, is in clear violation of Principles of Natural Justice as petitioner has not been afforded any opportunity of hearing on the merits of the matter. In this connection it has been pointed out that on 11.2.1999 the date fixed before the respondent No. 1 parties were asked to file their written submission and 17.2.1999 was fixed. On 17.2.1999 petitioner moved application/objection (Annexure-9 to the writ petition) In which it was specifically stated that appeal filed by the respondent No. 3 is not maintainable for various reasons stated in this objection and, therefore, first the question of maintainability of the appeal may be decided and it is only then, on the merits of the controversy the written submission and documents can be filed. On 17.2.1999 it is the Manager who also filed an objection (Annexure-9 to the writ petition) in which also it has been stated that the appeal filed before the respondent No. 3 is not maintainable as there Is no decision by the Committee of Management in respect to the grievance of the respondent No. 3. Learned counsel submits that thereafter the matter was never heard and no date was fixed and it is by the order dated 8.3.1999 the appeal has been allowed on the merits which clearly shows that petitioner has never been given opportunity of being heard on merits and he was never apprised that appeal will be decided on merits irrespective of petitioner's objection about maintainability and his plea of deciding the appeal firstly on the question of maintainability. It has been further submitted that on 11.2.1999 Sri G. P. Dinkar. Joint Director of Education heard the matter and he asked to file written submission by 17.2.1999. Thereafter he was transferred and one Sri Dwarika Prasad became the officiating Joint Director who never heard the matter and thus decision given by him is absolutely in violation of Principles of Natural Justice. The specific averment in this respect has been made in para 22A and 22B of the writ petition. (ii) The appeal as filed by the respondent No. 3 against the order/letter of the Manager dated 21.1.1995 was legally not maintainable as Regulation 3 (e) of Chapter II under the Intermediate Education Act stipulates that every dispute about the seniority shall be referred to the Committee of Management who shall decide the same after giving reasons. In the present case the objection as has been filed by the respondent No. 3 clearly shows that it was addressed to the Manager who passed the order dated 21.1.1995 and thus passing of the order by the Manager cannot be said to be an exercise by the Committee of Management and thus as the Committee of Management has not taken any decision determining the seniority between the parties the remedy of appeal cannot be invoked. (iii) It has been submitted that the material as exists on the record demonstrate that respondent No. 3 has been accepting the seniority of the petitioner since last about 20 years and therefore, after lapse of considerable long time even though it may be an incorrect arrangement, respondent No. 3 cannot be permitted to raise up the issue for unsettling the position which was continuing for the last more than 20 years. Learned counsel submits that in the attendance register from very beginning. that is, 1975 throughout the name of the petitioner finds place at S. No. 3 and the name of the respondent No. 3 at S. No. 4 and thereafter, petitioner at S. No. 2 and respondent No. 3 at S. No. 3. Learned counsel submits that respondent No. 3 never objected for any change of his position and therefore, by his conduct he has accepted the petitioner to be senior and therefore, by his act of acquisition he is estopped from challenging the petitioner's seniority. Learned counsel in support of his submission placed reliance on the decision in Keshau Ram Agnihotri v. District Inspector of Schools, 1998 (3) AWC 1917 (SCI: 1998 (4) SCC 72 ; Kamla Sharma v. Director of Education, Agra and Ors., 2000 (4) AWC 2.40 (NOC) : 2000 (4) ESC 2489 and Surendra Pratap Singh v. District Inspector of Schools. Varanasi and Ors., 1990 (1) AWC 538 : 1991 ID UPLBEC 474. (iv) Lastly it has been submitted that at the time of determination of seniority between the parties the criteria of age was not in existence as at the time of appointment of the petitioner and the opposite party No. 3 as Lecturer the Rules/ Regulations were silent on this point. Learned counsel points out that on the date of appointment and approval of the petitioner and respondent No. 3 Regulation 3 (b) was not in existence and the criteria of determination of seniority was governed by the Regulation 4 of the Old Chapter I under the Intermediate Education Act which only stipulates that seniority was to be maintained between the teachers by the Manager of the Institution. As the petitioner was trained lecturer he was put above to respondent No. 3 who was untrained lecturer. Learned counsel emphasise that seniority is to be determined as per Rule prevalent at the time of appointment and it cannot be effected by amendment in regulations with retrospective effect. In this connection, learned counsel refers the decision as has been given by the Apex Court in P. Mohan Reddy v. P.A.A. Charles. 2001 (2) ST 10 and Kamla Sharma v. Deputy Director of Education, 2000 (4) AWC 2.40 (NOC) : 2000 (4) ESC 2489.;