- (1.) D. P. Singh, J. Heard Counsel for the parties.
(2.) THIS petition is directed against an order dated 4-2-2002 passed by Joint Director of Education, 7th Region, Gorakhpur whereby he has held that the respondent No. 6 was the senior most teacher in the institution entitled for ad hoc appointment on the post of Principal. The facts alleged in the writ petition are as follows: Pandit Jawahar Lal Krishna Inter College is a duly recognized and aided institution where a temporary vacancy was caused on the post of English Lecturer due to the grant of leave to the incumbent Mohammad Yasin Khan on 1-7-1970. It is alleged that Sri Khan resigned and therefore, the Committee of Management appointed the petitioner vide order dated 18-7-1972 on the said vacancy on probation for one year. Nevertheless, the Management terminated his service by an order dated 21-6-1976 with effect from 30-6-1976 treating the appointment of the petitioner on leave vacancy. The petitioner challenged the said order in writ petition No. 1021 of 1976, but it was dismissed as not pressed on 27-7- 1976. Subsequently, on 3-11-1977 the Committee of Management passed a resolution cancelling the termination order of the petitioner dated 21-6-1976 holding that the petitioner was a permanent teacher in the institution. The petitioner rejoined the institution on the strength of a resultant appointment letter on 4-11-1977. The post of Principal fell vacant in 1980 and since the two senior most teachers did not want to function as principal, the petitioner was allowed to function as officiating Principal and which arrangement was also approved by the District Inspector of Schools vide his order dated 23-7-1980 on which post he continued till January, 1984. When again vacancy on the post of Principal occurred in 1990, the Management sought to appoint one Murlidhar Singh but the petitioner challenged the said appointment before this Court which petition was disposed off on 22-8-1991 with a direction to the District Inspector of Schools to decide the claim of the petitioner. This claim was decided vide order dated 18-2- 1992 holding that the petitioner was the senior most teacher in the institution. However, again when the post of Principal became vacant on the death of the permanent incumbent on 13-6-1999, the management appointed the respondent No. 6 as officiating Principal and forwarded the papers but the District Inspector of Schools did not attest the signatures of the respondent No. 6 who filed writ petition No. 39747 of 1999 for attestation of his signatures. This petition was disposed off on 15-9-1999 with a direction to the District Inspector of Schools to pass suitable orders thereon. In pursuance thereof the District Inspector of Schools passed an order dated 21-10-1999 holding the petitioner to be the senior most teacher, this order was challenged by respondent No. 6 in writ petition No. 4618 of 1999. Against this very order, the respondent No. 5 raising his individual claim of being the senior most, filed an appeal before the Joint Director of Education which has been disposed off by the impugned order holding the respondent No. 6 to be the senior most Lecturer in the institution. The respondent No. 6 has denied the substantial allegations of the petitioner and has stated that the petitioner was appointed as untrained teacher on 8-7-1970. Later he was appointed on a leave vacancy of Mohammad Yasin Khan on the post of Lecturer in English, on 8-7-1971 till the end of the session. As Sri Khan extended his leave, the temporary appointment of the petitioner on the leave vacancy was extended uptill 30-6-1973 which was approved by the District Inspector of Schools on 1-8-1972 till the end of session. This vacancy continued till 30-6-1976, however, in between the Management wrote to the District Inspector of Schools for converting the appointment of the petitioner into a substantive one as Sri Khan was not returning. Nevertheless, the District Inspector of Schools vide his order dated 11-8- 1975 rejected the move of the Management holding that the appointment of the petitioner was only on a leave vacancy and any substantive appointment could only be made after following the procedure prescribed. Therefore, on the expiry of the leave vacancy the service of the. petitioner was terminated vide order dated 21-6-1976 whereafter the petitioner ceased to work or draw salary for the said post. The petitioner challenged the aforesaid order before this Court but the petition was dismissed. Thereafter, on the aforesaid vacancy, one Harish Chand Pandey was appointed as English Lecturer on 16-8-1976 on which he continued to work and receive salary till October, 1977 but when he was appointed in a substantive capacity in Swami Devanand Inter College, Sri Pandey left the institution. In the meantime, the petitioner had approached the State Government for a direction to the Management to grant him appointment, but the State Government vide its order dated 17-10-1977, after finding that the service of the petitioner had been terminated and against which a writ petition had already been dismissed, refused to give any direction to the Committee of Management. After exit of Harish Chand Pandey, the post became substantially vacant on which the petitioner was granted fresh appointment on 4-11-1977 which was approved on probation for one year vide order of the District Inspector of Schools dated 23- 10-1978.
(3.) THE respondent has further stated that he was appointed on a substantive vacancy on 11-11-1971 on temporary basis but on 15-2- 1972 he was given substantive appointment, therefore, he contends that he is senior to the petitioner. The learned Counsel for the petitioner has firstly urged that the impugned order by the Joint Director of Education was passed while deciding the appeal of Vishnu Saran Pandey, and once he rejected his appeal he could not have gone on to hold that the respondent No. 6 was the senior most lecturer, especially when the petitioner was not put to notice that his claim would also be considered inspite of the fact that respondent No. 6 had already challenged the order of the District Inspector of Schools dated 21-10-1999 before this Court in Writ Petition No. 48618 of 1999. Thus, it is contended, that the Joint Director of Education exceeded his jurisdiction rendering that part of the order illegal through which respondent No. 6 has been declared to be senior to him.;