- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 26-5-1997, passed by the Regional Deputy Direc tor of Education (Secondary) Vth Region, Gorakhpur, respondent No. 1, holding that Indra Dev Shahi, respondent No. 6 is senior to the petitioner and is entitled to function as ad hoc Principal of Janta Uchchattar Madhyamik Vidyalaya, Batulihai, District Deoria ("hereinafter referred to as the In stitution ).
(2.) THE Institution was initially estab lished as a Junior High School and was granted recognition in the year 1970. Sub-sequently, the institution was upgraded and was granted recognition as High School in the year 1977. It came into the grant-in-aid list of the State Government in the year 1983. Shri Shiv Shankar Lal, Principal of the Institution retired on 30th June 1993. THE petitioner claimed that he should be ap pointed as the Principal being senior-most teacher in the institution. Respondent No. 5 claimed that the petitioner is junior to him and he should be appointed as Principal of the Institution. On 13-7-1994, the Deputy Director of Education directed respondent No. 5 to make representation to the Committee of Management for redressal of his grievance. Respondent No. 5 made representation to the Committee of Management on 14-7-1994 claiming that he was senior to the petitioner and was entitled to ad hoc promotion to the post of Principal of the institution. The Committee of Management passed resolution on 11th September 1997. The Committee of Management by resolu tion held that respondent No. 5 is senior to the petitioner and is entitled to function as ad hoc Principal. Respondent No. 5 made representation to the District Inspector of Schools to approve his appointment as ad hoc Principal. The District Inspector of Schools did not pass any order. Respondent No. 5 filed Writ Petition No. 2493 of 1996, seeking mandamus against the respondents to permit him to function as Principal. In the said writ petition an order dated 22-1-1997 was passed directing the Deputy Direc tor of Education to pass appropriate order on the representation of respondent No. 5. Respondent No. 1 has decided the said rep resentation by the impugned order dated 26-5-97, holding that respondent No. 5 is senior to the petitioner and is entitled to function as principal. Sri R. S. Misra, learned counsel for the respondent raised a preliminary objec tion that the petitioner has alternative remedy of filing appeal before the Director of Education and this Court could not, in these circumstances, exercise the jurisdic tion under Article 226 of the Constitution of India.
(3.) SRI Ashok Khare, learned Counsel for the petitioner contended that the order passed by the Regional Deputy Director of Education is final in respect of his decision relating to the seniority of the teachers and no appeal lies against this order. He has placed reliance upon clauses (e) and (f) of Regulation 3 of Chapter II framed under the U. P. Intermediate Education Act, as amended, read as under: " (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 from the decision of the Committee of Management under sub-clause (e) may prefer an appeal to the Deputy Director of Education of the Region concerned within fifteen days from the date of communica tion of such decision to such teacher. The Regional Deputy Director of Education shall decide the appeal by a reasoned order after af fording opportunity of hearing to the parties con cerned. The decision of the Deputy Director of Education of the Region concerned in appeal shall be final and shall be given effect to by the Committee of Management. " (As translated from Hindi) Clause (7) of U. P. Secondary Education Services Commission (Removal of Difficulties) Order 1981 provides for deciding a dispute in relation to the promotion and direct recruitment. Clause (7) was amended by U. P. Secondary Education Services Commission (Removal of Difficulties) IVth Order 1982 which reads as under: "3. Amendment of para 7.-In the said Order, in paragraph 7, for sub-paragraph (1) the following sub- paragraph (1) and (1-A) shall be substituted, namely- (1) Every dispute connected with the promotion or direct recruitment under this Order shall be referred to the Deputy Director of Educa tion of the region concerned for decision. (1-A) An appeal against the decision of the Deputy Director of Education may be made to the Director whose decision thereon shall be final. " The contention of learned counsel for the Respondent is that the dispute was, in fact, regarding ad hoc promotion to the post of Principal. The dispute involves the question of determination of seniority but the order which purports to decide the ques tion of promotion is appealable to the Director of Education. Learned Counsel for the petitioner contended that the dispute is regarding seniority and in respect of the seniority the matter can be decided by the Committee of Management and against its decision the appeal lies to the Regional Deputy Director of Education. This order is final under clause (f) of Regulation 3 of Chapter II. The provision of clause (7) of U. P. Secondary Education Services Com mission (Removal of Difficulties) Order 1981 (hereinafter referred to as the Order) is not applicable. The Deputy Director of Education has power to decide as to who can be promoted on a dispute being referred to him. The dispute regarding promotion may involve determination of the seniority by the Regional Deputy Director of Educa tion. This power is being exercised under. Clause (7) of the Order. The Regional Deputy Director of Education will decide the dispute regarding seniority under clause (T) of Regulation 3 of Chapter-II of the Regulations but on a dispute being raised regarding promotion, he can exercise the power under clause (7) of the Order. Once the matter relating to promotion is decided the order is appealable under sub-clause (ii) of clause (7) to the Director of Education.;