R.R.K. Trivedi, J. - (1.) IN this writ petition, counter and rejoinder affidavits have been exchanged and both the learned counsels have agreed that this writ petition may be decided finally at this stage. In this writ petition, there is no controversy with regard to the factual aspects. The dispute is with regard to seniority between the petitioner and respondent No. 2. However the facts, in brief, are being mentioned to appreciate the controversy. Petitioner Smt. Otima Gautam was appointed as an Assistant Teacher in L.T. grade in G.D.A.V. Kanya Inter College, Anupshahr, District Bulandshahr on 12th July, 1971. She was confirmed on this post on 12th July, 1972. Subsequently, petitioner was transferred from G.D.A.V. Kanya Inter College, Anupshahr, District Bulandshahr to Kanohar Lal Saket Kanya High School, Saket. Meerut under Regulation 59 of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921 which was duly approved by the Regional Inspectress of Girls Schools vide order dated 24th August, 1982. This order has been filed as Annexure -1 to the writ petition. Both the managements had already given their consent for this transfer. On basis of the order dated 24th August, 1982 petitioner was relieved on 26th August, 1982 and she joined at transferred college on 27th August, 1982. respondent No. 2 was appointed as Assistant Teacher in L.T. Grade in Kanohar Lal Saket Kanya High School, here -in -after referred to as 'school', on 7th September, 1972. The committee of management published the seniority list on 25th November, 1982 showing petitioner as senior to respondent No. 2. The seniority list is Annexure -3 to the writ petition. Aggrieved by this determination of the seniority by the committee of management, respondent No. 2 filed an appeal under clause (f) of Regulation 3(1) of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, here -in -after referred to as 'Act', before the respondent No. 1 who by her order dated 30th January, 1989 allowed the appeal and declared respondent No. 2 senior to petitioner. Aggrieved by this order, petitioner has approached this court under Article 226 of the Constitution. The impugned order has been filed as Annexure -8 to the writ petition.
(2.) I have heard learned counsel for the parties. Learned counsel for the petitioner has submitted that the petitioner's transfer was not challenged by anybody. She was allowed to continue in the present college on basis of transfer and in these circumstances she cannot be deprived of the benefit of the services already rendered in computing the seniority for which she was legitimately entitled under Regulation 59 A of chapter III. Learned counsel has further submitted that respondent No. 1 based her decision mainly on judgment of Hon'ble Supreme Court in case of Om Prakash Rana v. Swarup Singh Tomar : 1986 U.P.L.B.E.C. 444. However after this judgment State Legislature passed the Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment and Validation) Act, 1991 (U.P. Act No. 8 of 1991) which came in force on 19th March, 1991 and by this amendment all the transfers made under Regulations 59 and 59A were validated, respondent No. 1 on basis of the extraneous considerations which were not incorporated in the order dated 24.8.1982, has illegally deprived petitioner of her seniority. It has been further submitted that as petitioner was not sent back to the college from where she was transferred, she was entitled for the past services under Regulation 59A. It has also been submitted that the appeal of respondent No. 2 before the respondent No. 1 was highly time barred. The question of limitation was specifically raised by petitioner in her objection and was pressed before the respondent No. 1, however, no finding has been recorded and the appeal has been allowed without deciding question of limitation. The order of respondent No. 1 suffers from manifest illegality and in view of the Validating Act, 1991, which has been given retrospective effect, it cannot be sustained.
(3.) LEARNED counsel for the respondent No. 2, on the other hand, has submitted that the impugned order is perfectly justified and valid in the facts and circumstances of the case. Petitioner cannot claim double benefits namely the transfer to desired place and institution and also the seniority adversely affecting the interest of teachers of the institution where she has been transferred. Learned counsel has seriously challenged the legality of U.P. Act No. 8 of 1991 on the ground that the U.P. Act No. 5 of 1982 after having been reserved for consideration was assented to by the President, whereas the Validating Act has been assented by the Governor and its provisions being inconsistent to the Act No. 5 of 1982 cannot be legally allowed to prevail. It has also been submitted that U.P. Intermediate Education Act, 1921 (U.P. Act No. 2 of 1921) which is existing law was assented to by the Governor General of India and as the U.P. Act No. 5 of 1982, contained provisions inconsistent to U.P. Act No. 2 of 1921, it was reserved for consideration of the President. The effect of U.P. Act No. 8 of 1991 is to incorporate the inconsistent provisions of existing law in U.P. Act No. 5 of 1982, which could not be done except in accordance with the provisions contained in Article 254(2) of the Constitution of India. Learned counsel has submitted that in this way the U.P. Act No. 8 of 1991 is illegal and void. In continuation of the aforesaid submissions, it is further submitted that the subject Education which was earlier in List II of the VII Schedule of the Constitution was placed as item No. 25 of List III i.e. Concurrent list, by Forty Second Amendment of the Constitution with effect from 3.1.1977. It was for this reason that the U.P. Act No. 5 of 1982 was reserved for the consideration of the President and it could not be legally amended by an Act of State Legislature assented to by the Governor of the State. Learned counsel has submitted that the judgment of Hon'ble Supreme Court in O.P. Rana's case (supra) is still effective and the order of the respondent No. 1 is perfectly justified and the writ petition has no merit and is liable to be dismissed.;