- (1.) THIS Special Appeal has been filed challenging the judg ment and order dated February 14, 1994 of a learned Single Judge dismissing Writ Petition No. 14245 of 1991 preferred by the appellant.
(2.) LEARNED counsel for respondents Nos. 1 and 2 have raised a preli minary objection regarding the maintainability of the appeal. In terms of Chapter VIII, Rule 5 of the Allahabad High Court Rules (hereinafter referred to as the Rules), a special appeal against the judgment of a learned Single Judge rendered in exercise of jurisdiction conferred by Articles 226 or 227 of the Constitution is not maintainable, if the same had been exercised against an appellate or revisional order of the Government or any officer or authority under any Uttar Pradesh Act or any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution. Sri R. N. Singh, learned counsel for the appel lant, in his usual fairness, has conceded the legal position that if the writ petition is treated to be one which had been filed against an appellate order, the present appeal would not be maintainable. The question which requires consideration, therefore, is whether the writ petition had been filed against an original order or against an appellate order. The appellant claims that he was appointed as a teacher in L. T. grade in Anglo Bengali Inter College, Allahabad (hereinafter referred to as the College) in the year 1965, was promoted as lecturer on July 13, 1968 and his promotion was approved by the District Inspector of Schools on January 20, 1969. A seniority list was circulated on February 16, 1976 in which the appellant was shown at Serial No. 10 and Ashish Chandra Misra (respondent No. 2) at SI. No. 12 and thus appellant was shown senior to him. The regular Principal of the College was scheduled to retire on July 31, 1991 and sometime before that, respondent No. 2 sent a letter to the Manager of the College for reopening the question of seniority. The appellant objected to it but he received a notice from the convener of the Seniority Committee of the College to appear before the Seniority Committee. Feeling aggrieved by the action of the Committee of Management and Seniority Committee of the College; the appellant filed the writ petition claiming several reliefs and relief Nos. (i), (ii) and (iii) are quoted below : (i) issue a writ order or direction including a writ in the nature of Mandamus prohibition, restraining the respondents from proceeding to reconsider the question of seniority which has already been determined long ago specially in view of the recent full bench judgment of the Hon'ble Court ; (ii) issue a writ, order or direction Including a writ in the nature of mandamus directing the respondents to appoint the petitioner as officiating Principal of the Institution in the vacancy likely to arise after 30th June, 1991 on the retirement of Dr. J. M. Banerjee as Principal of the Institution in question, and (iii) issue a writ order or direction in the nature of certiorari quashing the notice dated 8-1-1991 issued by Sri M. C. Chattopadhya member of the Seniority Committee of the Institution. . In the writ petition, an interim order was passed on May 4, 1991 and relevant part thereof reads as under : "until further orders of this court, the respondents are restrained from proceeding to reconsider the question of seniority which has already been decided in 1976 and the operation of the order dated 20-4- 1991 (annexure-1 to the affidavit filed along with impleadment application) shall remain stayed. " Subsequently after hearing counsel for the parties, the aforesaid order was modified on April 30, 1993 and it was left open to the managing committee of the college to finally decide the question of seniority and the aggrieved party was also allowed to prefer an appeal before the Regional Deputy Director of Education. Regulation 3 (1 Xe) of Chapter 11 of the Regulations, framed under the LI. P. Intermediate Education Act (hereinafter referred to as the Act) provides that dispute about seniority of teachers shall be referred to the Com mittee of Management which shall decide the same giving reasons.
(3.) REGULATION 3 (l) (f) provides for an appeal against the decision of the Committee of Management before the Deputy Director Education. The Com mittee of Management of the College issued notice to the appellant and after hearing the parties passed an order on June 11, 1993 holding that respondent No. 2 was senior to the appellant. The appellant preferred an appeal against this decision before the Deputy Director of Education, Allahabad, but the same was dismissed on October 4, 1993. The appellant then filed a stay application and an amendment application dated October 14, 1993 in the writ petition. The applications were supported by the affidavit of the petitioner himself and copies of the orders dated June 11, 1993 and October 4, 1993 passed by the Committee of Manage ment and Deputy Director of Education, respectively, were also filed. In the amendment application, it was prayed that the relief mentioned in para 28 of the affidavit may be added to the writ petition and the same reads as follows : "that a suitable writ, order or direction in the nature of certiorari be issued quashing the impugned order dated 4-10-1993 and 11-6-1993 passed by the Deputy Director of Education and the Committee of Management respectively, (Annexures-1 and 6 to this affidavit ). " Though the amendment application was brought on record but a formal order either allowing or rejecting the same was not passed.;