Aloke Chakrabarti, J. - (1.) ORDER dated 21/23.4.1994 deciding the representation of the respondent No. 5 and allowing his claim for seniority over and above the petitioner, this writ petition was filed. Facts disclosed in the writ petition are that the petitioner and the respondent No. 5 both were appointed as Assistant Teachers in Shri Ram Jan Higher Secondary School, Uncha Gaon, District Gorakhpur when it was a junior high school. The Petitioner was appointed in C.T. grade on 7.8.1966 and the respondent was appointed on 1.12.1965 as an untrained teacher in 2/3rd of C.T. grade pay -scale. After passing his Bachelor of Education in year 1967 the respondent No. 5 was placed in C.T. grade pay -scale on 1.7.1967. After upgradation of institution as High School, the petitioner was appointed as Assistant Teacher in L.T. grade on 1.7.1970 by direct recruitment and the respondent No. 5 was appointed as Assistant Teacher in L.T. grade on 1.8.1970. Both such appointments were approved by the District Inspector of Schools, Gorakhpur by order dated 19.11.1970. The seniority list circulated on 31.8.1979 showed the petitioner as senior to the respondent No. 5. The petitioner was given the charge of Principal on 21.3.1979 when the then incumbent was placed under suspension. After the petitioner moved Civil Misc. Writ Petition No. 9671 of 1984 and the same was allowed, the District Inspector of Schools, Gorakhpur (hereinafter referred to as 'D.I.O.S.') sanctioned the pay -scale of the petitioner to the post of Principal. On some objection raised in year 1984 as regards seniority, the District Inspector of Schools passed an order on 2.9.1995 affirming the earlier order relating to sanction of pay -scale to the post of Principal to the petitioner. Against the aforesaid order the respondent No. 5 filed Civil Misc. Writ Petition No. 15318 of 1985 which was finally decided on 11.11.1993 directing consideration of the matter by the Deputy Director of Education on a representation by the respondent No. 5. The impugned order was passed on such representation made in terms of the aforesaid order.
(2.) THE respondent No. 5 filed a counter affidavit contending that he is elder in age than the petitioner and as the date of approval in respect of appointment of both the petitioner and the respondent No. 5 is same, the respondent No. 5 claimed his seniority by virtue of his age. The petitioner filed his rejoinder affidavit. Heard the learned counsel for the respective parties and perused the materials available on record. Learned counsel for the petitioner contended that in view of the facts stated herein above, the petitioner was senior to the respondent No. 5 as he was appointed on 1.7.1970 in the post of Assistant Teacher in L.T. grade whereas the respondent No. 5 was appointed in the; said post on 1.8.1970 and therefore, following the provisions of Regulation 3(1) of Chapter -II of the Regulations framed under the U.P. Intermediate Education Act, the petitioner is entitled to be declared as senior. The second contention of the petitioner is that the seniority has been decided in year 1979 as stated in paragraph Nos. 9 and 10 of the writ petition. Therefore, the same could not be disputed by the respondent No. 5 after a long time when he did not prefer any appeal or objection immediately. In support of such contention reliance was placed on the document at Annexure Nos. 3 and 4 to the writ petition. Moreover, the petitioner contended as his third objection that even the respondent No. 1 while deciding the question of seniority could not appoint the respondent No. 5 as Principal as the appointment of Principal is to be done by the committee of management and the seniority is not the only criterion as decided by Full Bench in the case of Radha Raizada v. Committee of Management and others : 1995 (25) ALR 383. Law has also been referred to by the learned counsel for the petitioner as decided in the case of Shitla Prasad v. State of U.P. and others : 1986 (12) ALR 73 (Sum.) : AIR 1986 S.C. 1859.
(3.) LEARNED counsel for the respondents contended that the first contention of the petitioner is not tenable as though appointments were made on the post of Assistant Teacher in L.T. grade on different dates but the date of appointment is to be considered for the purpose of seniority from the date of approval as only on approval the appointment becomes liable to be recognised. Therefore it has been contended that when approval of appointment of both was on the same date, the law requires seniority to be decided on the basis of age. In support of such contention reference was made to the cases of S.B. Nath v. Committee of Management : (1994) 2 UPLBEC 761, Shanti Kunwar Choudhary v. Manager : (1990) 1 UPLBEC 516 and the case of Sudama Singh v. Nath Saran Singh : 1988 (14) ALR 26 (SC) as also Regulation 3 in Chapter -II of the aforesaid Regulation.;