R. M. Sahai, J. - (1.) Bandana Banerji and Smt. Chandrika Singh, undisputedly born in 1937 and 1945 respectively were appointed as Lecturer in Arya Kanya Pathshala Intermediate College, Mirzapur on 1st July, 1965, same day, and their appointment was approved by Regional Inspectress of Girls School, V Region, Varanasi also on same day, that is, 7th October, 1965. On 30th June, 1989 the permanent principal retired and a substantive vacancy arose, Smt. Singh appears to have been appointed as Principal. Regional Inspectress, however, directed Administrator on 7th July, 1988 to appoint Miss. Banerji. She was appointed on 9th July, 1988. Against her appointment Smt. Singh made representation. And after notice the Administrator decided that Smt. Singh was senior to Miss. Banerji. But, the R. I. G. S. on her representation observed that it was Miss. Banerji who was senior and entitled to continue. Both these orders were challenged in this Court, and the two petitions filed by Miss. Banerji and Smt. Singh, being numbered 23007 and 23008 of 1988 respectively were heard and decided by this Court on 24th October, 1989. Both the orders were held without jurisdiction. A direction was issued to the authorised Controller to make immediate appointment of ad hoc principal on merits. The bench further made it clear if controversy of seniority of Miss. Banerji and Smt. Chandraka Singh arose before any competent authority the same shall be disposed of by it on merits in accordance with law.
(2.) Since one of arguments advanced was that promotion or appointment as ad hoc principal does not involve or necessitate determination of seniority of the teacher the question of seniority cannot be said to have been an issue which could have been gone into by the Authorised Controller and this very determination earlier, by the two authorities having been quashed principally because they had gone into question of seniority the claim of petitioner that the authorised Controller acted erroneously much less palpably illegally was misconceived. In the alternative it was submitted that the Bench was satisfied on arguments and on material on record that Smt. Singh was senior in view of earlier resolution and circumstances, therefore, it did not permit issue of seniority to be raised and directed the authorised Controller to make immediate appointment of ad hoc principal in accordance with law and the same having been done under Section 18 of U. P. Act V of 1982 the occasion to interfere with the order was non-existant.
(3.) What has been adjudicated upon by the Bench was that permanent vacancy of Principal having arisen the exercise of power either by Authorised Controller or R. I. G. S. under Chapter 11 Regulation 2(3) was illegal. And an ad hoc principal could be appointed only either under Act V of 1982 or the Removal of Difficulties Order issued under it. It is not disputed that for appointment as ad hoc principal by promotion under paragraph-4 of the 1st Removal of Difficulties Order seniority amongst the teachers is the criteria. But for ad hoc appointment under Section 18 of Act V of 1982 clause (b) reads as under : (b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder." Therefore, it was urged that what was necessary to be seen was qualification and not seniority. Literally speaking, the argument may be correct. But can the provision be construed or understood in this manner. Under Chapter II of Regulations framed under U. P. Intermediate Education Act, an ad hoc or officiating principal either against a permanent or temporary vacancy could be appointed on seniority. Same scheme has been continued, under Removal of Difficulties Order and any ad hoc appointment either under paragraph 4 or paragraph 5 by promotion has to be made of the senior most teacher. Can this scheme be deemed to be given up for appointments under Section 18. In our opinion it cannot. Reasons are two fold, one that the clause purported to lay down qualification only, not only for promotion but ad hoc appointment by direct recruit also. It could not, therefore, provide that for promotion seniority should be criteria. In fact it was not necessary as Section 32 of the Act provides as under : "The provisions of Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provision of this Act or the rules or regulations made thereunder, shall continue to be in force for the purpose of selection, appointment promotion, dismissal, removal, termination or reduction in rank of a teacher." In absence of any provision to the contrary the provisions under Chapter II of Regulation framed under U. P. Intermediate Education Act for promotion which includes the provisions for fulfilling the post of head of Institution due to retirement temporarily by promoting the senior-most qualified teacher has to be read as part of Section I8(l)(b) of Act V of 1982.;