- (1.) BY means of this petition, moved under Article 226 of the Constitution of India, the petitioner has sought quash ing of the orders dated 12-09-2003, 24-09-2003 and 29-10-2003, passed by re spondents No 1,2 and 3, respectively, whereby the seniority to respondent No. 4 is given by the authorities over the pe titioner.
(2.) HEARD learned counsel for the parties and perused the record. Brief facts of the case are that petitioner was appointed as ad hoc lec turer in Sociology on 01-01- 1982 in In termediate College, Yamkeshwar, District Pauri Garhwal. A copy of said order of appointment is Annexure-1 to the writ petition. Respondent No. 4 was ap pointed ad hoc lecturer in Sanskrit in the same College on 10-12-1981 (i. e. before the ad hoc appointment of the peti tioner ). The petitioner's case is that the services of both petitioner and respond ent No. 4 were regularized vide order dated 03- 09-1985 (copy Annexure-2 to the writ petition), w. e. f. 12-06-1985. According to the petitioner, the District Inspector of Schools prepared seniority list on 16-06-1988, in which the name of the petitioner was shown over re spondent No. 4, as the petitioner was older to respondent No. 4. On 24-09-2003, the District Inspector of Schools sent a letter (copy Annexure -4 to the writ petition) to the Manager of the College enclosing order dated dated 12-09-2003 (copy Annexure -5 to the writ pe tition), passed by the Regional Joint Di rector of Education, Pauri Garhwal, in forming that the seniority has been re-fixed, and respondent No. 4 has now been placed above the petitioner. The petitioner made a representation dated 05-11-2003 (copy Annexure -7 to the writ petition) for restoration of his sen iority to the Joint Director of Education, but to no avail. Hence, the petition. 5. A joint counter affidavit has been filed on behalf of respondents No. 1 and 2 in which it is admitted that ad hoc ap pointment of respondent No. 4 is prior to that of the petitioner. It is also ad mitted that both of them were given sub stantive appointment with effect from the same date i. e. 12-06-1985. It is fur ther stated in the counter affidavit that the inter se seniority between the lectur ers is determined under Regulation 3 (5) of Regulations framed under the U. P In termediate Education Act, 1921. 6. Respondent No. 4 filed his sepa rate counter affidavit in which he admit ted having been appointed on ad hoc basis earlier to the petitioner. It is also admitted that both of them were given substantive appointment from the same date. Claiming that length of ad hoc service of respondent No. 4 was more than that of the petitioner, the seniority list in which the name of the petitioner figured above the respondent No. 4, was corrected on his representation. Defend ing the impugned seniority list respond ent No. 4 has stated that the same is in accordance with law. 7. It is admitted between the par ties that respondent No. 4 was ap pointed on ad hoc basis prior to the petitioner, and both of them were ap pointed against the substantive vacan cies w. e. f. 12-06-1985 vide order dated 03-09-1985. It is pertinent to mention here that the regularization of appoint ment of ad hoc teachers is made under Section 16-GG of the U. P Intermediate Education Act, 1921. As far as the sen iority is concerned, the same is governed by Regulation 3 of Chapter-II of the Regulations framed under the U. P Inter mediate Education Act, 1921. Said Regulation reads as under : "3 (1 ). The Committee of Management of every institution shall cause a seniority list of teacher to be pre pared in accordance with the fol lowing provisions - (a) The seniority list shall be pre pared separately for each grade of teachers whether permanent or temporary, on any substantive post; (b) Seniority of teachers in a grade shall be determined on the ba sis of their substantive appoint ment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age; (bb) Where two or more teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their serv ice to be reckoned from the date of their substantive appointment in the grade from which they are promoted. Provided that if such length of service is equal, seniority shall be determined on the basis of age. (c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irre spective of the length of service; (d) If a teacher who is placed under suspension is reinstated on his original post, his original senior ity in the grade shall not be af fected. (e) Every dispute above the senior ity of the teacher shall be re ferred to the Committee of Management which shall decide the same giving reasons for the decision; (2) The seniority list shall be revised every year and the provisions of Clause (1) shall mutates mutandis apply to such revi sion. " 8. Sub Clause (b) of aforesaid Regu lations 3 (1) shows that the seniority of teachers in a grade is required to be de termined on the basis of their substan tive appointment in that grade. If two or more teachers were so appointed on the same date, seniority is required to be determined on the basis of age. How ever, said provision is silent as to the fact what would happen if the person senior in age had lesser number of years in his ad hoc service before his services were regularized. Similar controversy appears to have been arisen in Sudama Singh Vs. Nath Saran Singh and others; re ported in (1988) 1 Supreme Court Cases Pg. 57, in which the Apex Court held that if two persons were appointed ini tially on ad hoc basis on two different dates and got substantively appointed together, their seniority is required to be determined directly in accordance with Regulation 3 (1 ) (b) ignoring their length of service in ad hoc capacity. Paragraph 2 of Sudama Singh Vs. Nath Saran Singh and others; reported in (1988) 1 Supreme Court Cases Pg. 57, is repro duced as under: "it is not disputed that until Section 16-GG of the Act came into effect the appellant and respondent No. 1 were both functioning on an ad hoc basis as teachers and it was only by virtue of Section 16-GG of the Act that they came to be appointed as teachers in substantive capacity. Sec tion 16-GG of the Act came into ef fect from April 21,1977. It provided that the teachers who were working on an ad hoc basis between August 18, 1975 and September 30, 1976 (both dates inclusive) against clear vacancies and possessing prescribed qualifications should 'with effect from the date of commencement of this section' be deemed to have been appointed in a substantive capacity provided such teacher had been continuously serving the institution from the date of his appointment up to the commencement of this section. There is no dispute that both the appellant and respondent 1 satisfied the conditions prescribed by Section 16-GG of the Act for regularizing their appointment in a substantive capacity but what is crucial for pur poses of this case is the date from which the appellant and respondent 1 should be deemed to be holding their posts in a substantive capacity. Section 16-GG of the Act clearly lays down that any teacher whose services are regularized should be deemed to have been appointed in a substantive capacity with effect from the date of the commencement of that section. It does not say that the services of such teachers should be deemed to have been regularized with effect from the date from which they were continuously officiating in the posts in question. The date of commencement of the section in the instant case being April 21, 1977 it should be held that both the appel lant and respondent 1, who were by then holding the posts of Lecturers on an ad hoc basis were appointed in a substantive capacity on the same date, i. e. April 21, 1977. The High Court omitted to consider the effect of the words 'with effect from the date of the commencement of this section in sub-section (1) of Section 16-GG of the Act and also sub section (2) 'of that section which pro-" vided that every teacher deemed to have been appointed in a substantive capacity under sub-section (1) should be deemed to be on probation from the date of the commencement of the section. On the question of seniority between the appellant and re spondent 1 clause (b) of Regulation 3 (1) of the Regulations made under the Act, as already stated, provides ' that the seniority of teachers in a grade shall be determined on the basis of their substantive appoint ment in that grade and if two or more teachers were so appointed on the same date seniority should be de termined on the basis of age. Since, it is admitted that both the appellant and respondent 1 had been appointed in a substantive capacity by virtue of Section 16-GG of the Act they must be deemed to be holding their respective posts in the substan tive capacity only from April 21,1977 on which date Section 16-GG of the Act came into force. Both of them should be deemed to be on proba tion from April 21, 1977 [vide Sec tion 16-GG (2)]. Any earlier appoint ment or promotion on ad hoc basis has no bearing on the question of seniority. The appellant and respond ent 1 should be deemed to have been appointed on a substantive ba sis on the same date for purposes of seniority and, therefore, the appel lant who is older than respondent 1, should be treated as senior to re spondent 1 by reason of the second sentence in clause (b) of Regulation 3 (1) of the Regulations framed un der the Act. . We are, therefore, of the view that the High Court erred in declaring that respondent 1 was senior to the appellant on the basis of the fortuitous promotion of re spondent 1 said to have been made on March 1, 1976. The judgment of the High Court is, therefore, liable to be set aside and the decision of the District Inspector of Schools has to be restored. " 9. In view of above law. laid down by the Apex Court, the petitioner being older to respondent No. 4 and substan tive appointee of the same date with one that of respondent No. 4, is entitled to the seniority. As such, the writ peti tion deserves to be allowed. The writ petition is allowed. Impugned orders dated 12-09-2003, 24-09-2003 and 29-10-2003, to the extent affecting senior ity of the petitioner over respondent No. 4, challenged in this petition, are hereby quashed. No order as to costs. .;