B. L. Yadav, J. - (1.) WHETHER the petitioner Indra Sen Verma or the respondent no, 3 Ram Swaroop Mathur, was the senior most lecturer so as to be appointed as ad hoc Principal in Kali Prasad Intermediate College, Allahabad, (for short the College), whether the provisions of Regulation 2 framed under Chapter II under sections 16-E and 16-F etc. of the U. P. Intermediate Education Act, (for short the Act), or the provisions of U. P. Secondary Education Service Commission (1st) Removal of Difficulties Order, 1981, (for short the Removal of Difficulties Order), would be applicable, and in case of dispute about the seniority, whether matter can be referred to the Deputy Director of Education and thereafter appeal would lie to the Director, and whether the petitioner was entitled to the writ of Mandamus prayed for, are the short questions for our determination in. the present petition filed under Article 226 of the Constitution of India.
(2.) THE portrayal of essential facts are these. According to the petitioner he was appointed in lecturer's grade in the clear vacancy and on substantive basis on 2nd August, 1956 and respondent nos. 2, 3 and 4 were appointed as lecturer on substantive basis on the dates subsequent to the date of appointment of the petitioner, therefore, he was senior most lecturer in the college on the basis of substantive appointment and length of service. On the other hand, according to respondent no. 3, he was appointed in L. T. Grade on 22-7-1952, and, thereafter, he was promoted as Lecturer on 18-8-1956 (vide para 29, annexure-16 of the counter affidavit), whereas the petitioner was confirmed as Lecturer since 31-7-1*59 and not since 1-9-1958 or 11-2-1959, therefore the petitioner was not senior most lecturer in the college on the basis of substantive appointment and longest period of continuous service in lecturer's grade. A provisional seniority list was prepared on 10-6 87 by the Additional Secretary of the Committee of Management to which tne petitioner objected. But lateron seniority list of all the Assistant Teachers including lecturer's grade was circulated and objections were invited by the Additional secretary The petitioner having seen that seniority list and finding it erroneous, made a representation on 2-2-84, which was recommended as such by the Principal and Manager (vide Annexure-3). The District Inspector of Schools passed an order on 5-3-84 correcting the date of appointment of the petitioner and fixed the petitioner's pay in selection grade of lecturer and accepted the date of appointment as 2-8-56. One Chandra Mohan the Principal of the college retired on 30-6-88 and a clear vacancy arose for the post of Principal The petitioner oemg senior most Lecturer was entitled to be appointed under regulation 2 framed under chopier II under sections 16-E and 16-F of tie Act, Out illegally an Ram Swaroop Mathur, respondent no. 3 has been appointed by the Committee of Management as Principal.
(3.) COUNTER affidavits have been filed on behalf of respondent nos. 2 and 6 and the allegations contained in the writ petition have been denied. It was averred in para 4 of the counter affidavit that the petitioner stands at serial no. 4 in the seniority list, whereas Ram Swaroop Mathur, respondent no. 3, Ram Chandra Srivastava and Sbamsher Bahadur Singh, respondent no. 5, stand at serial no. 1, 2 and 3. The petitioner could not, therefore, be senior most lecturer and was not entitled to be appointed as ad hoc Principal on the vacancy caused by the retirement of Sri Chandra Mohan. It was further averred that the petitioner was appointed as Lecturer in Hindi on purely ad hoc basis on 2-8-56 and continued to function as such only till 15 days. This substantive vacancy was filled up by selection of respondent no. 4 Ram Chandra Srivastava, who joined the post as Lecturer on 18-8-56 and the petitioner's appointment on ad hoc basis came to an end on 17-8-56. Just on compassionate ground the petitioner was offered part time job as Lecturer on a fixed salary of Rs.80/- per month and Rs.12/- as D. A. The petitioner worked on this part time job till 31-8-56. He was not given any grade or designation of lecturer. A copy of the letter of appointment dated 18-8-56 has been filed as Annexure CA 1 (vide para 5 of the counter affidavit). The petitioner was again appointed in leave vacancy from 1-9-56 to 31-7-57, as one Sri Ganpat Verma, Lecturer in Hindi, proceeded on leave with effect from 1-9-56 to 31-7-57. But was later permitted to continue for a year more. As Sri Ganpat Verma resigned, as alleged, on 31-7-58, a substantive vacancy was created and the petitioner was absorbed as lecturer on 1-9-58 and the Committee of Management resolved to confirm the petitioner on the said post since 1-9-58, the date when he joined on the, substantive post. The District Inspector of Schools, however, rejected the proposal of the Committee of Management and directed the petitioner to continue on probation since 1-9-58, and he was to be confirmed on 31-7-59 and from that date he was entitled to join Provident Fund Scheme (vide Annexure CAs. 2, 3, 4, 5 and 6 to the COUNTER Affidavit). It was further stated in the counter affidavit that Sri Ram Swaroop Mathur was senior most lecturer in the College and he was at serial no. 1, hence, he was appointed in view of Clause 4 of the (First) Secondary Education Service Commission Removal of Difficulties Order, 1981, as he was senior most lecturer having put in longest continuous service. It was urged by the learned counsel for the petitioner that the petitioner being senior most lecturer, was entitled to be appointed as ad hoc Principal, even though the seniority list prepared by the Committee of Management did not reflect that, and the petitioner has preferred an appeal before the District Inspector of Schools and the same was pending. It was further urged that respondent no. 3 Sri Ram Swaroop Mathur being junior to the petitioner, could not be appointed as ad hoc Principal by the Committee of Management nor he could have been appointed as such under the First Secondary Education Service Commission Removal of Difficulties Order, 1981 and the appointment of respondent no. 3 was manifestly erroneous. Learned counsel for the respondents, on the other hand, urged that as indicated above, as the petitioner was not the senior most nor his name finds place as such in the seniority list prepared by the Committee of Management (vide Annexure-10 to the petition), where the petitioner was shown at serial no. 4. Against that the petitioner himself preferred a representation to the Manager/ President of the College (vide Annexure-11 to the petition), and after considering the petitioner's objection, a final seniority list was prepared by the Committee of Management, in which the petitioner stands at serial no. 4 and respondent no. 3, 4 and 5 are at serial nos. 1, 2 and 3 respectively (vide Annexure-15 to the petition). Against the final seniority list the petitioner preferred an appeal under Regulation 3 (1) under Chapter II framed under sections 16-A, 16-B, 16-C, 16- E and 16-F of the Act (vide Annexure-16 to the petition) and, that appeal is still pending. Hence it could not be said that the petitioner was senior most, as he was neither shown in the seniority list, either provisional or final, nor he was as such by any decision of the District Inspector of Schools. The petitioner cannot, therefore, be entitled to be appointed as ad.hoc Principal. The substantive appointment has to be made by the Commission as constituted under the U. P. Secondary Education Service Commission and Selection Boards Act, 1981. But as yet no such decision has been taken by the Commission, by that time the senior most lecturer, respondent no. 3 as appointed by the Committee of Management, should be permitted to continue. However, it was a disputed question of fact as to whether the petitioner was senior most lecturer as even his date of appointment as lecturer was not correct and just for 15 days, since 2-8-56 to 17- 8-56, he has worked as ad hoc lecturer, but was appointed on 18-8-56 as a part time teacher on a fixed salary of Rs.80/- per month and Rs.12/- as D. A. This was not certainly salary of a lecturer. Whereas Sri Ram Swaroop Mathur, respondent no. 3 was working on substantive post since 18-8-56 (vide Annexure-16). Even though the appointment of Sri Ram Swaroop Mathur could be disputed by the petitioner, in that event the proper procedure was to have referred the matter to Deputy Director of Education, who could have decided the controversy and, thereafter, the appeal, if any, could have been disposed of by the Director of Education in view of the relevant provisions of para 7 of U. P. Secondary Education Service Commission First (Removal of Difficulties) Order, 1981, as amended by para 3 of the U. P. Secondary Education Service Commission Removal of Difficulties (Fourth) Order, 1982. But the petitioner did not avail of this alternative remedy, which he must have availed. Under these circumstances, the petitioner is not entitled to any relief. Reliance was placed on Ramji Tripathi v. Additional Director of Education (Madhyamik), 1985 UP LB EC 645 and Km. Nishi Bhargava v. Dy. Director of Education, 1987 Education Cases 131.;