- (1.) ASHOK Bhushan, J. Heard learned Counsel for the appellant and Sri K. P. Shukla, appearing for the contesting respondent.
(2.) THIS is an appeal against the judgment and order dated 13-11- 2006 passed the learned Single Judge dismissing the writ petition filed by the appellant. The appellant has filed the writ petition challenging the order dated 4-7-2001 passed by the Joint Director (Education) by which the representation of respondent No. 4 was allowed, and he was held to be senior most Lecturer. Sri K. P. Shukla has raised a preliminary objection regarding maintainability of the appeal. He has submitted that the order of the Joint Director of Education was passed in exercise of appellate jurisdiction under Chapter II Regulation 3 of the Intermediate Education Act, hence the special appeal is barred under Chapter VIII Rule 5 of the High Court Rules. Shri Shukla has also filed a supplementary affidavit today bringing on the record the representation of respondent No. 4, on the basis of which the order was passed by the Joint Director of Education. He submits that the said representation although termed as a representation, but in essence is an appeal under Chapter II Regulation 3 (1) (f) of the U. P. Intermediate Education Act. Regulation 3 of Chapter II deals with the seniority to be maintained by the Committee of Management of every Institution. Regulation 3 (1) Clauses (e) and (f), which are relevant in the present case, are extracted 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: (e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision. (f) Any teacher aggrieved by the decision of the Management Committee under sub-clause (e) within 15 days of the date of information of such decision to the teacher, may appeal to concerned Regional Deputy Director and on appeal after giving an opportunity of hearing to the concerned parties, Deputy Director will give his decision with reasons, which will be final and executed by the Management Committee. " According to Regulation 3 (1) sub-clause (e) every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision. Under sub-clause (f), the person aggrieved by the decision of the Committee of Management is entitled to prefer an appeal within 15 days from the date he is communicated the decision of the Committee of Management. The submission of Shri Shukla that mere mention of representation is of no consequence is correct. For determining as to whether the representation submitted by respondent No. 4 on 30-10- 2000 was in fact an appeal under the Regulation, we have perused the said representation. The subject of the representation is determination of seniority of the working Lecturers of the Institution. In the prayer clause also, there is also no prayer for setting aside any decision of the Committee of Management determining the seniority, nor in fact, in whole of the representation, there is any mention regarding decision of dispute of seniority by the Committee of Management, which is condition precedent for filing of appeal. There is no order of the Committee of Management determining the seniority, hence the appeal cannot be filed as contemplated under Regulation 3 (1) (f ). In the representation, the case of respondent No. 4 is that the seniority is disputed and the order in which the names of Lecturer are recorded in the attendance register is not correct. He further submits that several representations have been given for amendment of the order of recording of the names of the Lecturers of the Institution, but no decision has yet been taken. The above statement in the representation in fact recognizes the situation that there is no decision of the Committee of Management on the complaint of respondent No. 4. Thus, the representation, which has been filed by the respondent No. 4 dated 30-10- 2000 cannot be treated as an appeal within the meaning of Regulation 3 (1) (f ). Consequently, the order of the Joint Director of Education passed on the representation is not referable to exercise of appellate jurisdiction; hence the bar of Chapter VIII Rule 5 will not come into play.
(3.) COMING to the merits of the case, learned Counsel for the appellant submits that the appellant was promoted in the year 1982 and his promotion has already been declared valid by a Civil Court in Suit No. 158 of 1986. He submits that specific issues were framed and issue No. 1 with regard to promotion of the appellant, was answered in affirmative, a decree was passed by the Civil Court directing for payment of salary on the post of promotion. He submits that the said decree remain unchallenged and belatedly a writ petition has been filed by the respondent No. 4 against the said decree in this Court, but there is no interim order passed in favour of respondent No. 4. Sri K. P. Shukla appearing for the respondent has submitted that the promotion of the appellant was rejected by letter dated 5-12-1985, hence he cannot claim promotion. He further submits that the Suit of the appellant in the Civil Court was barred, the Suit No. 158 of 1986 being not maintainable, the decree is ineffective and inconsequential.;