- (1.) D. K. Seth, J. In this case the fixation of seniority of respondent No. S, above that of the petitioner, in service has been challenged. The same dispute was involved in writ petition No. 7659 of 1986, in which the parties appeared in changed position, namely the respondent No. 5 as the petitioner therein and the petitioner herein as respondent No. 2 therein. I shall refer to the said case shortly afterwards.
(2.) THE facts of the present case, in short compass is that the concerned School was established as Junior High School in July 1968 and was subse quently upgraded with effect from the academic session 1971- 72- THE petitioner was appointed as assistant teacher in B. T. C. grade on 1-8-1968 in the said School before upgradation. THE petitioner was then appointed as officiating Head Master of the said School on 19th October 1970, by a resolu tion of the Managing Committee, which is Annexure 1 to the writ petition. THE petitioner continued to function as Head Master till up-gradation. THE petitioner thereafter continued to discharge the function of Head Master even after the up-gradation. Consequently, he is entitled to be appointed as Head Master of the said School in view of Regulation 2 (2) of Chapter II of the Regulations framed under U. P. Intermediate Education Act. Alternatively, according to the petitioner without any break since 1st July, 1971, ha worked as Hindi teacher in L. T. Grade after having been appointed on 1st November, 1970, as has been recorded in his service book. The respondent No. 5, Sri Ranjeet Singh was appointed as Assistant teacher in L T, Grade after the School was up-graded. On the requisition of the District Inspector of Schools, for specific resolution, the Manas Com mittee resolved on 7th March, 1973 that the petitioner was ; retained as Assistant Teacher in L. T. Grade in the institution since the up-gradation being Annexure 2 to the writ petition. The papers pertaining to the said resolution was duly forwarded to the District Inspector of Schools on 8th March 1973 No objection was received from the District Inspector of Schools' end' The petitioner had all along been treated as Assistant Teacher in L. T. Grade since 1st November 1970 and was paid his salary accordingly, which is apparent from the certificate granted by tha Head Master of the School, being Annxure 3 to the writ petition. The petitioner, as such, was being treated as senior-most teacher in the institution until it was disputed in the year 1985 by the respondent No. 5 before the District Inspector of Schools, claiming himself to be senior than the petitioner. Without affording opportunity to the petitioner the District Inspector of Schools held on 25th November, 1985, that Sri Ranji Singh was senior to the petitioner in L. T. Grade. On the representation being made by the petitioner the District Inspector of Schools by an order dated 23-6-1986 recalled the order dated 25th November, 1985. The said order dated 23rd June 1986 was the subject-matter of challenge in the writ petition No 7659 of 1986 indicated earlier. The said writ petition was dismissed on 28th July 1986 with a direction that the respondent No. 5 should prefer an appeal before the Director of Education, U. P. Upon such representation being made the Director of Education by order dated 7th July, P1987 held that tt5i5djx No. 5 was senior to the petitioner in L. T. Grade. In the said order a direction was issued for recovery of the excess amount, already paid to the petitioner, being Annexure 7 to the writ petition. The said order dated 7th July 1987 has been impugned in the present writ petition, where in. prayer for quashing the said order contained in Annexure 7 to the writ petition, has been made
(3.) THE respondent No. 5 is contesting the case by filing a counter-affidavit, alleging, inter alia, that one Sri Kripa Shanker Srivastava, was functioning as Head Master of the said School since 9th October, 1968, who continued as such, at the time of up-gradation of the School. THE petitioner was temporarily looking after the working of Head Master. He was never appointed permanently. THE said Kripa Shanker Srivastava continued to function as Head Master even after up-gradation till June 1986, which is apparent from the service book of Sri Kripa Shanker Srivastava, copy whereof is Annexure 1 to the counter-affidavit, together with a certificate, issued by the Manager of the School, enclosed as Annexure 2 to the counter-affidavit. THE petitioner was appointed in B. T C. Grade, therefore, he would not be promoted in C. T. Grade in the year 1969 before expiry of five years nor could be promoted from B. T. C. Grade to L. T. Grade in the year 1971. THE petitioner had never applied for being selected as L. T. Grade teacher. At the time of approval the name of respondent No. 6 was shown at serial No. T and the petitioner was shown at serial No. '2'. THE respondent No. 6 was born on 30-10-1939, whereas the petitioner was born on 1-1-1943. Even assuming that the petitioner was actually appointed in L. T. Grade in the year 1973 even then the respondent No. 5 would be senior to the petitioner, by reason of age. No post of L. T. Grade teacher was sanctioned in the Junior High School. THErefore, the petitioner could not have been appointed in L. T. Grade in Junior High School. THE payment of salary unauthorisedly does not confer any benefit on the petitioner. In the supplementary counter-affidavit the respondent No. 5 con tended that the resolution dated 7- 3-1973 promoting the petitioner from B. T. C. Grade to L. T. Grade was turned down by the District Inspector of Schools, with a direction to furnish some more instruction which were not submitted. The petitioner in collusion with the concerned clerk in the office of District Inspector of Schools got his name included in the list of recom mended candidates by the Selection Committee, which had held its meeting on 27th July, 1972. Pursuant to the result of interview held on 26-7-1972 the petitioner got his name included in the list of recommended candidates at serial No. '2' and thereby got approval in L. T. Grade from the District Inspector of Schools by committing fraud. As soon as the said fraud was detected the Director of Education, has exercised its power conferred upon him under Section 16-E (10) of the U P. Intermediate Education Act.;