B. L. Yadav, J. - (1.) BOTH these petitions, Writ Petition No. 11718 of 1984 (Bashishth Pandey v. District Inspector of Schools) (for short the first petition) and Writ Petition No. 5938 of 1987 (Bashishth Pandey v. District Inspector of Schools), (for short the second petition) involve similar questions of law and fact. Consequently it is convenient to dispose them of by a common judgment.
(2.) BY the first petition filed under Article 226 of the Constitution of India the petitioner has prayed for a writ of Certiorari quashing the order dated 19-5-84 (Annexure 8 to the first petition) holding respondent no. 3 to be senior teacher in L. T. Grade in the institution known as L. D. Intermediate College, Ballia whereas by the second petition a prayer has been made for a writ of Certiorari quashing the order dated 19-5-84 (Annexure 2 to second petition) and the order dated 26-8-86 (Annexure 7 to second writ petition). A portrayal of essential facts are these. The institution is governed by U. P. Intermediate Education Act, 1921, (for short the Act) and the, regulations framed thereunder. The petitioner was appointed on 23-7-1965 in the aforesaid College in L. T. Grade, whereas respondent no. 3 Shambhu Nath Upadhyaya was appointed in the beginning as C. T. Grade teacher on 23-7-65 and was appointed in L. T. grade teacher in History and both of them were accorded approval by the District Inspector of Schools on 4-8-65. One Sri Balram Tewari retired as Lecturer in Hindi on 30-6-84, but he was given extension for one year and he continued to work as Lecturer upto 30-6-85. Thereafter the vacancy of a Lecturer in Hindi arose in the institution. This vacancy was v/ithin 40% quota in lecturer's grade and was to be filled by promotion from amongst the teachers working in the institution in L. T. Grade as provided under Regulation 5 (2) of Chapter II of the Regulations framed under the Act, (for short the Regulations;. As by the time vacancy arose in 1985 U. P. Secondary Education Service Commission and Selection Boards Act, 1982 (for short the Service Commission Act) has come into force. Hence the appointment could have been made only through the Secondary Education Service Commission, (for short the Commission). But the ad hoc appointment by promoting L. T. Grade teachers to lecturer's grade was to be made by the Committee of Management as required under section 18 of the Service Commission Act. As there was only one vacancy of Lecturer, hence the senior most teacher in L. T. Grade was to be promoted. The seniority of respondent no. 3, Sri Shambhu Nath Upadhyaya in L. T. Grade was decided much earlier under Regulation 3 (1) of Chapter II. The petitioner if he was feeling aggrieved, must have preferred an appeal within 15 days. But he did not prefer any appeal. Respondent no. 3 Shambhu Nath Upadhyaya was appointed on ad hoc basis as Lecturer under section 18 of the Service Commission Act and the recommendation to fill up vacancy was made to the Service Commission. The petitioner filed a representation before the District Inspector of Schools alleging that he was senior to respondent no. 3, but the District Inspector of Schools held by the impugned order dated 19-5-84 that respondent no. 3 was senior in L. T. Grade to the petitioner. The petitioner did not file any appeal against the order determining seniority much earlier, and that the petitioner was appointed on 23-7-65 whereas respondent no. 3 was appointed on 10-7-63 and made permanent on 12-7-65 whereas petitioner was confirmed on 23-7-65. On the basis of these two dates G. P. F. etc. was sanctioned to petitioner and respondent no. 3 and even the selection grade was also granted to them on the basis of these dates of confirmation and they have accepted their pay scale by taking these dates as date of confirmation. Learned counsel for the petitioner urged that the petitioner was senior as he was senior in age. Even assuming the date of confirmation to be 23-7-65 and confirmation was made by the order of District Inspector of Schools dated 4-6-65, that there was no order of Distt. Inspector of Schools approving L. T. Grade to respondent no. 3 since 12-7-65 and that the petitioner being senior to respondent no. 3 deserves to be promoted as Lecturer under 40% quota and deserves to be selected by the Service Commission.
(3.) LEARNED counsel for the respondents on the other hand, urged that the petitioner was not senior to respondent no. 3 as the petitioner was appointed on 23-7-65 and respondent no. 3 was appointed on 10-7-65. Respondent no. 3 was, however, confirmed on 12-7-65 whereas the petitioner was confirmed on 23-7-65 and these dates have been taken to be final even by the parties and G.P.F. and selection grade etc. were sanctioned to petitioner and respondent no. 3 on the basis of these dates. It was further urged that earlier the petitioner has filed a writ petition (being Writ Petition No. 3829-87) which was withdrawn by the petitioner as not pressed. The present petition has been filed on the same cause of action, whereas the order of Division Bench of this Court dismissing earlier writ petition as not pressed has become final and the subsequent writ petition was not maintainable on the analogy of provisions of Order 23 Rule 1 (3) and (4) CPC that the petitioner did not file any appeal when earlier seniority was determined between the petitioner and respondent no. 3. The appeal must have been filed within 15 days under Regulation 3 (8) (f) of Chapter II of Regulations framed under the Act. But he did not file any appeal and now he cannot challenge the question of seniority. Nevertheless the petitioner has made several representations, the seniority has finally been determined by the District Inspector of Schools considering all the facts and circumstances of the case by the impugned order dated 19-5-84. Reliance was placed on Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88. Having heard the learned counsel for the parties there are three questions which fall for our determination in the present petition. The first is as to what was the effect of order of withdrawal passed on the earlier writ petition filed by the petitioner against the same cause of action The second question is as to what was the effect of non-filing of appeal by the petitioner within 15 days as contemplated by Regulation 3 (8) (f) of Chapter II of the Regulations framed under the Act, and the third is even though urged half heartedly on behalf of petitioner, that as the matter has been referred to Service Commission for order of appointment on the post of Lecturer in Hindi in the institution and the petitioner being second to respondent no. 3, at present just on ad hoc basis under section 18 of the Service Commission Act, respondent no. 3 has been appointed, hence it would be obligatory on the part of Service Commission to consider the case of petitioner also.;