A.P.Singh - (1.) PETITIONER, S. B. Nath, a lecturer of Biology in Anglo Bangali Inter College, Allahabad, (herain-after referred to as the 'College'), has approached this Court by means of the present writ petition Under Article 226 of the Constitution for the grant of the writ of prohibition so as to restrain the respondents, namely, the Managing Committee of the College through its Manager, Ashish Chandra Misra lecturer of Economics of the College, the Seniority Committee/Sun-Committee of the College and the District Inspector of Schools, Allahabad (herein-after referred to as the 'Inspector'), from considering the question of seniority, as the same has already been settled. A Writ of Mandamus has also been sought for appointing him as officiating Principal of the College in the vacancy which is likely to arise consequent to the retirement of Dr. J. M. Banerjee it's regular Principal. Notice of one Sri M. C. Chattonpadhya, member of the seniority Committee dated 8-1-91 was also sought to be quashed by a writ of Certiorari.
(2.) IN brief, the facts of the case are that the petitioner was appointed as demonstrator in the College on 13-7-1965, This appointment of the petitioner as demonstrator was approved by the INspector by his order dated 16-12-65. Petitioner, thereafter, applied for appointment on the post of lecturer Biology by application dated 20-5-68 whereupon selection was held and the petitioner was selected which resulted in issue of appointment letter dated 13-7-1968 appointing the petitioner in the lecturer's grade subject however to the approval of the INspector. On 24-8-68 petitioner sent his consent for joining the post of lecturer of Biology and he joined the said post on that date. The INspector granted approval to the appointment of the petitioner by order dated 20-1-69 with the stipulation that the order of approval was to take effect from the (Bate of joining. Thereafter, on 15-7-69 the petitioner was confirmed as Biology lecturer with effect from 24-8-69. Consequent to the retirement of Sri J. M. Banerjee regular Principal of the College, vacancy arose for appointment on that post. The petitioner and respondent no. 2 Sri Ashish Chandra Misra, both laid their respective claims for appointment as ad-hoc Principal of the College under section 18 of U. P. Act No. 5 of 1982. On the one hand, petitioner maintained that since he had been appointed as lecturer Biology by way of promotion with effect from 13-7-68, as such, he was senior to respondent no. 2 who was appointed as lecturer of Economics on 1-8-68. On the other hand, respondent no. 2 claimed that he was senior to the petitioner as his 3 date of joining as lecturer was 1-8-68 whereas the date of joining of the petitioner as lecturer was 24-8-68. It was maintained that the seniority was to be determined on the basis of their joining of the post as per the order of approval dated 20-1-69 of the Inspector in which it was specifically mentioned that the approval was being given to the appointment of the petitioner as well as to respondent no. 2 which was to be effective from the date of their joining. The Managing Committee, however, maintained that section 18 of U. P. Act No. 5 of ,1982 is not applicable as the College was a. minority institution under the provisions of Article 31 of the Constitution, as such, the said Act had no application to it and it was free to make appointment of the post of Principal under the provisions of U. P. Intermediate Education Act, 1921 (here-in-after called the '1921 Act') It was also maintained that respondent no. 2 is senior to the petitioner and in any case respondent no. 2 and not the petitioner was entitled for being appointed as ad-hoc Principal of the College, even if U. P. Act No. 5 of 1982 was applicable. It was further alleged on behalf of the Managing Committee that the question of seniority had not been decided ever before, it was on the demand of the teachers' representative in the Managing Committee of the College that the Managing Committee of the College appointed a sub-committee for deciding the question of seniority amongst the teachers of the College grade-wise under Regulation 3 of Chapter II of the Regulations (here-in-after called the Regulations) framed under 1921 Act. The sub-committee thereupon invited objections from concerned teachers in the matter and both petitioner as well as respondent no. 2 submitted their respective representation before the subcommittee on consideration thereof respondent no. 2 has been held to be senior by an order of the managing committee passed on 11-6-93 which has been upheld by the Regional Deputy Director of Education by order dated 4-10-93 on an appeal filed by the petitioner S. B. Nath. These two orders, namely, the order of the Managing Committee holding respondent no, 2 as senior to the petitioner and the order of the Regional Deputy Director of Education dated 4-3-93 dismissing petitioner's appeal against the order of the Managing Committee were passed after this Court modified the stay order by order dated 30-4-93. Both these orders have also been challenged by the petitioner by way of an amendment application in this writ petition. At the Bar, Sri A. P. Sahi, who has appeared as counsel for the petitioner, has made two arguments in support of the writ petition. First argument of Sri Sahi was that seniority between the petitioner and respondent no. 2 had been settled long back by order of the Managing Committee dated 26-2-1976, which is annexure 2 to the writ petition and again by order dated 4-8-79 which is annexure 4 to the writ petition, therefore, according to the learned counsel, it is now not open for the Committee of Management to reopen the long settled question of seniority between petitioner and respondent no. 2. In support of this contention, learned counsel has placed reliance on a Full Bench judgment of this Court in the case of S. K. Chaudhary v. Manager, 1991 (1) UP LB EC 250. In this case, it has been held that the question of seniority which has been finally settled between the parties should not be reopened at the instance of the person who did not challenge the same earlier.
(3.) NEXT argument of the learned counsel for the petitioner is that under the provisions of section 16--F of 1921 Act, as it -stood in 1968, no appointment on substantive basis of a teacher: of a recognized institution could be made by the Managing Committee without approval of the Inspector. The date of substantive appointment, therefore, according to the learned counsel, cannot be a date earlier to the date cm which the approval is given by the Inspector for the appointment. The date of appointment, therefore, has to be a date either the date on which the approval is given or some other date subsequent thereto when actual appointment is made and since appointment of the petitioner as well as of respondent no. 2 was approved by the Inspector by a common order dated 20-1-69, as such, the date of substantive appointment both of petitioner and respondent no. 2 for the purpose of Regulation 3 of Chapter II of the Regulations has to be 20-1-69 and since the petitioner is older in age as compared to respondent no. 2, as such, under Regulation 2, he has to be treated as senior. It was further contended that the Inspector had no power or authority under law (under section 16-F of 1921 Act) to grant approval with retrospective effect so as to validate the appointment from the date of joining as the Committee of Management possesses no power, whatsoever, under the law to make appointment and allow the joining on the post of a (teacher of a recognised educational institution without first obtaining approval from the Inspector. To substantiate his above argument, Sri A. P. Sahi, learned counsel for the petitioner has placed reliance on three judgments of this Court-first being Ram Chandra Sharma v. State of U. P., 1980 UP LB EC 245 in which this Court has held that the approval order of the Inspector will not relate back to the date of appointment in case the appointment of the incumbent was made earlier to the date of the order when the approval was granted by the Inspector. NEXT case relied on was Lalit Mohan Misra v. D.I.O.S., 1979 ALJ 1025, in which it has been held by a Division Bench of this Court that the appointment of a teacher cannot relate back to a date earlier to the date of approval Order passed by the Inspector. The last case on which reliance has been placed by the learned counsel for the petitioner is Smt. Omi Bala Nigam v. R.I.G.S, 1986 OP LB EC 69, in which this Court has ruled that appointment of a teacher must follow the order of approval granted by the Inspector and appointment if made prior to the order of approval cannot be counted for the purposes of seniority. In his rebuttal submission, Sri A. K. Yog, learned counsel for respondent no. 2 argued that at no stage whatsoever the seniority between the petitioner and respondent no. 2 was ever determined under Regulation 3 of Chapter II. According to the learned counsel the orders dated 26-2-76 and 4-8-79, which respectively are annexures 2 and 4 to the writ petition, on which petitioner has placed reliance to show that the seniority question had long back been determined, are not the orders for the purposes of determining seniority under Regulation 3 of Chapter II, but are the orders passed for determining seniority of teachers of the College under Regulations 1, 2 and 4 of Chapter I of the Regulations for the purpose of rotational representation of teachers in the Committee of Management of the College. Learned counsel has drawn distinction between the seniority list prepared under Regulations 1, 2 and 4 of Chapter I and seniority list prepared under Regulation 3 of Chapter II of the Regulations. According to him, while seniority list under Regulations 1, 2 and 4 of Chapter I is prepared from the date of initial appointment of the teachers of any grade in the College whereas seniority under Regulation 3 of Chapter II is determined on the basis of the appointment of a teacher on substantive post in a particular grade. It was argued that institutional seniority referred to in Chapter I for the purpose of rotational representation of teachers in the Managing Committee is quite different than the gradewise seniority of teachers prepared for the purpose of promotions which is done under Regulation 3 of Chapter II of the Regulations. According to the learned counsel, seniority relevant for the purposes of ad-hoc appointment as Principal under section 18 of U. P. Act No. 5 of 1982 is not the seniority determined under Rules I, 2 and 4 of Chapter I but under Regulation 3 of Chapter II of the Regulations and since seniority under Regulation 3 of Chapter II was never prepared earlier as such the Managing Committee or the sub-committee thereof cannot be prevented from completing the exercise undertaken by them in this regard nor orders dated 11-6-93 and 4-10-93 passed respectively by the Committee of Management and the Regional Deputy Director of Education holding respondent no. 2 senior to the petitioner which is under challenge by way of amendment application can, therefore, be quashed., The present exercise which has been undertaken by the Managing Committee is for determination and preparation of grade-wise seniority of teachers cf the College under Regulation 3 of Chapter II which, according to the learned counsel, was never done before and the petitioner is obviously wrong in relying on the Full Bench judgment of this Court.;