R.B.Misra, J. - (1.) Heard Sri C.K. Rai, learned counsel for the petitioner, Sri Raj Kumar learned standing counsel for the State and Sri Manish Goyal, learned counsel for the respondent No. 3.
(2.) In this petition, the prayer has been made to quash the order dated 21.2.1990 (Annexure-6 to the writ petition) whereby the D.I.O.S., Ballia, has declared Sri Kapil Dev Upadhaya as senior to the respondent No. 4 Shri Sambhu Nath Shukla, and the petitioner Sri Suresh Dubey. According to the petitioner he was appointed as Assistant Teacher in Laxmi Rajdevi Intermediate College, Ballia (in short called the 'college') prior to the respondent and got approval on 28.10.1970 in respect of the petitioner and respondent Nos. 3 and 4 and D.I.O.S., Ballia, declaring respondent Nos. 3 and 4 senior to the petitioner by virtue of their age Is illegal and the decision to this effect taken by the D.I.O.S., Ballia, on 21.2.1990 is erroneous and was challenged before this Court and this Court was pleased to pass an order dated 10.4.1990 staying the operation of the Impugned order dated 21.2.1990. According to the standing counsel, Regulation 3 (1) (b), Chapter II, Regulations under Intermediate Education Act provides as 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) ...................................... (b) Seniority of teacher 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"
(3.) It is clear that the committee of management of every institution shall prepare the seniority list in respect of every teacher where the teachers shall be declared senior in a grade on the basis of their substantive appointment and if two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age. It has been contended by Sri Manish Goyal, learned counsel for the respondent No. 3 that the approval of petitioner as well as respondent Nos. 3 and 4 on the substantive post was made on 28.10.1970, however, the age of Suresh Dubey, the petitioner. Sri Kapil Dev Upadhayay respondent No. 3 and Sri Sambhu Nath Shukla, respondent No. 4 are 4.7.1941, 31.1.1934 and 1.9.1938 and treating the same date of substantive appointment as 28.10.1970 on the basis of the age the respondent No. 3 was rightly declared as senior by the impugned order dated 21.2.1990 in view of Regulation 3 (1) (b) of Chapter II of Regulation under Intermediate Education Act, 1921. Sri Manish Goyal, learned counsel for the respondent No. 3 has referred and relied upon Smt. Omi Bala Nigam v. Regional Inspectress of Girls Schools, Jhansi Region, Jhansi and Ors., 1986 UPLBEC 69, where it was held that if date of approval Is the same among the teachers to a particular cadre shall be taken to be the date of substantive appointment even if irrespective of the fact the teacher was appointed prior to such date of approval. In this respect it is necessary to mention here paragraphs 8 and 9 of the aforesaid judgment : "8. After hearing counsel for the parties, we find that the committee of management had considered the entire circumstance and found that the petitioner was senior to respondent No. 4. In arriving at that conclusion no error has been committed which required interference at the appellate stage. The committee of management had taken into consideration the aforesaid two dates. The first being subsequent to the other of the petitioner and respondent No. 4 of joining services. But on the basis of Clause (b) of Regulation 3 of Chapter II, it was found by the committee of management that since the petitioner was older in age, she was to be treated as senior to respondent No. 4. We find that in both the cases appointment letters were issued on the same date. Appointment letters clearly Indicated that the service could be joined either on 1.7.1964 or immediately thereafter. It did not mention that the petitioner was required to join on 1.7.1964 itself. It was on account of this fact that the petitioner Joined on 6.7.1964. It appears to us that merely because the petitioner joined the service on 6.7.1964 she would not loose her right of seniority, particularly when the date of approval in both the events was the same, i.e., 15.9.1964. Joining of service had to be considered in the light of the approval also." " 9. The date of substantive appointment spoken of in clause (b) of Regulation 3 of Chapter II of the Act should be construed as the date after approval has been accorded by the District Inspector of Schools under Section 16G. Inasmuch as requirement is to obtain prior approval to the appointment, a date on which a teacher joins before approval would not be considered a date of substantive appointment. As stated above, approval is a condition precedent to appointment. Without approval, there could be no appointment and joining of service would be in contravention of the provisions of the Act and Regulations framed thereunder. Accordingly, seniority could not be counted with effect from that date.";