R. M. Sahai, J. - (1.) IN this petition directed against orders of Director of Education and Regional INspectress of Girls Schools the short and the only question that arises for consideration is if the opposite parties committed any error of law in taking the view that amongst candidates with equal quality point mark the one elder in age was entitled to be appointed.
(2.) PRIOR to IVth Removal of Difficulties Order issued under section 33 of U. P. Act no. 5 of 1982 in April 1982 there was no guideline in first three orders issued by the Government as to on what principle appointment should be made from amongst candidates obtaining equal quality point mark. It was in this order that it was provided that where two or more candidates obtain equal quality point mark the candidates obtaining higher percentage of marks in all the examination essential for particular grade shall be placed higher. But under clause (h) of regulation 10 of Chapter II framed under U. P. Intermediate Education Act ii was provided that : "Notwithstanding anything contained in clause (g) if the total marks awarded to two or more candidates are equal then the senior most in age shall be preferred." Therefore, prior to enforcement of Act 5 of 1982 and the Fourth Removal of Difficulties Order issued under it age was the criteria. In absence of any provision to the contrary this provision applied as Section 32 of the Act reads as under :- "The provision of the Intermediate Education Act 1921 and the regulations made thereunder in so far as they are not inconsistent with the provisions of the Act or the rules or regulations made thereunder shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher." The Inspectress and the Director appear to have acted on it. What is argued, however, is that petitioner having secured better percentage, the opposite parties acted erroneously in appointing opposite party no. 6. The argument cannot be accepted in view of what has been stated earlier. It is submitted that selections were held in March 1982 and the appointment order was issued on 6th March, 1982 but before opposite party took over, the petitioner approached the State Government which issued a telegram on 16th March 1982 staying appointment of opposite party no. 6. Although this was served in office of Inspectress on 18th March, 1982 and affidavit was filed in office (?) Committee of Management on 20th March, 1982 and the telegram was also received by the Manager on 20th March, 1982 yet they in violation of the interim order handed over charge to opposite party on 20th March, 1982. It is urged that since the Government was contemplating to issue IVth Order, the action of the opposite parties in appointing opposite party no. 6 and handing over charge to her was illegal. It is true that stay order had been granted but its knowledge prior to giving of charge by the Committee of Management is not established. So far the legality is concerned the appointment of opposite party no. 6 did not suffer from any error of law in view of the fact that she admittedly is older than petitioner. Learned counsel submitted that the State Government vacated its order in May, 1982 and directed the Inspectress to act in accordance with IVth Order yet she did not pass any order in her favour. The argument has no substance. Even assuming that such a direction was issued by the State Government it cannot so construe to mean that Inspectress was directed to act in contravention of the order. Since the order became applicable from April 1982, it could not apply to appointment made prior to it.
(3.) THE learned counsel then submitted that the order of Director passed in appeal in pursuance of order passed by this court on 16th February, 1984 is manifestly erroneous as apart from noticing arguments no decision has been given. Even this argument has no substance as even assuming that the Director has not based his decision on regulation 10 and his reasoning that since petitioner on the basis of percentage was at no. 2 therefore, she could not claim that appointment of opposite party who was at serial no. 3 may not be very sound but in view of the legal position discussed above the order is not liable to be set aside. Apart from all this the petitioner was appointed as ad hoc teacher under Removal of Difficulties Order in 1982, she has been continuing since then and was working as such from June 1985 the date on which the Ordinance no. 9 was issued, she stood regularised under section 33-A of the Ordinance.;