- (1.) Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Ashish Kumar, for the petitioner-appellant and Sri J.B. Singh, learned counsel for the respondents. This special appeal is directed against an order of the learned Single Judge dated 31.5.2016 wherein the learned Single Judge has refused to grant an interim order for the reason recorded therein. Parties before us agreed that instead of looking into the merits of the order of refusal to grant interim protection this Court may summon the records of the writ petition itself and decide the appeal as well as the writ petition. Accordingly the records of the writ petition have been summoned and examined by us. The relevant facts in brief of the matter are as follows:- Janta Inter College, Madapar, Kusumi Bazar, Gorakhpur (herein after refereed as institution) is a recognized and aided Intermediate College. The provision of the Intermediate Education Act and Regulations framed thereunder as also of the U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred as Act) Rules and Regulation framed thereunder are fully applicable to the teachers of the said institution. The post of Principal in the institution fell vacant due to requirement of Sri Lal Bachan Gupta. Pending regular selection on the said post appointment is required to be made in accordance with Section 18 of the Act. Section 18 of the Act contemplates that the Senior most teacher who possess the prescribed qualification and is otherwise suitable may be appointed on the post of officiating Principal. According to the petitioner Sri Sant Raj, he was appointed on 21.4.1976 as L.T. grade teacher in the institution. Two posts of lecturers had been created in the institution, one of which was required to be filled by promotion. It is the case of the petitioner that he possess all the essential qualifications for the post of lecturer of Economics and being the senior most teacher, he was entitled for regular promotion against the said vacancy which fell under the promotion quota. Since regular promotion is to take effect only on the recommendation of the Regional Level Committee, the Committee of Management decided to grant ad-hoc promotion to the petitioner on 19.5.1998. The ad-hoc promotion of the petitioner was approved by the District Inspector of Schools. It is not in dispute that the petitioner has been drawing salary as admissible to the post of lecturer since 19.5.1998.
(2.) According to the petitioner his regular promotion was later approved by Regional Level Committee vide order dated 25.10.2011 as per the resolution of its meeting held on 22.10.2011. According to Sri R.K. Ojha learned counsel for the appellant the regular promotion of the petitioner would relate back to the date on which he was offered ad-hoc appointment for all practical purposes including the issue of determination of inter-se seniority between the lecturers of the same institution. In support of this proposition, he has relied upon the judgments of this Court in the case of Santosh Kumar Dubey and others Vs. State of U.P. and others, 2010 1 ESC 341 (All) and Narendra Singh Solanki Vs. State of U.P. and others, 2010 1 ESC 388 . Sri R.K. Ojha learned counsel also placed reliance upon the judgment of the Apex Court in the case of Sudama Singh Versus Nath Saran Singh, 1988 1 SCC 57. According to the petitioner Sri Sant Raj, if his seniority is counted from the date of his initial appointment on the post of lecturer he would be senior to respondent no.5 who has been directly appointed as lecturer only on 9.1.2009 on the recommendation of the U.P. Secondary Education Selection Board. We may record that there is no dispute with regard to the date of substantive appointment of respondent no.5.
(3.) According to the petitioner Sant Raj, the Committee of Management of the institution had published the seniority list in the year 2016-2017 wherein he was shown senior to respondent no.5. It is also stated that in the staff statement as well as in the attendance register of the institution, name of Sri Sant Raj, the petitioner was always placed above respondent no.5. It is, therefore, contended that by no stretch of imagination, respondent no.5 can have any claim in preference over the petitioner for appointment on the post of officiating Principal. So far as the respondent no.5 is concerned, it is his case that the date of substantive appointment of Sant Raj would be the date on which the Regional Level Committee had decided to accord approval to his promotion, i.e. in the year 2011. According to respondent no.5 if the seniority of Sant Raj is determined from the said date he would not be entitled to be appointed as officiating Principal being Junior to respondent no. 5. We find that there is a dispute between the petitioner and respondent no.5 with regard to their inter-se seniority, ultimately reflecting upon the right of appointment as officiating principal. The Committee of Management of the institution vide resolution dated 1.5.2016 found it fit and proper to refer the matter to the District Inspector of Schools.;