Civil Appeal No 2609 of 1984 From the Judgment and Order dated 12th April 1984 of the Allahabad High Court in Civil Misc
Writ Petition No 713 of 1980
VM Tarkunde and Pramod Swarup for the Appellant
SN Kacker and RB Mehrotra for the Respondents
The Judgment of the Court was delivered by THAKKAR J
Seniority is the bone of contention
The dispute centres round the question as to whether the High Court was right in affirming the view taken by the District Inspector of Schools that Respondents Nos 5 and 6 were senior to the appellant in the lecturer s grade in the Kashiraj Maha Vidyalaya Inter College Orai District Varanasi
The dispute regarding inter se seniority having arisen amongst the aforesaid three persons the District Inspector of Schools examined the issue and rendered a decision dated January 8 holding that Respondent Nos 5 and 6 were senior to the appellant in the lecturer s Grade having regard to the fact that their appointment in the grade became effective from 19 12 62 1 7 63 and 23 7 1963 respectively
The appellant challanged the decision by way of a Writ Petition to the High Court
The High Court affirmed the decision of the District Inspector of Schools and dismissed the Writ Petition
Thereupon the Writ Petitioner in the High Court has approached this Court by way of the present appeal by special leave
The appellant was initially working as an Assistant Teacher in the aforesaid institution which was upgraded into an Intermediate College under the provisions of the Intermediate Education Act
The appellant started teaching Hindi in the Intermediate classes upon the institution being upgraded though he was not qualified to be appointed as a lecturer in Hindi as per the relevant regulations which en 1
Under Regulation 31f of Chapter II of the Regulations framed under the UP Intermediate Education Act
Vide Appendix A  to the Regulations read with Regulation 1 of Chapter II read with section 16E of the Act 109 joined that the minimum educational qualification for being appointed as a lecuturer in Hindi was MA in Hindi and BA with Sanskrit whereas the appellant did not possess the requisite qualification of BA in Sanskrit
It is not in dispute that the appellant did not possess the requisite qualification viz BA degree in Sanskrit and was therefore not entitled to be appointed in the lecturer s grade as lecturer Hindi having regard to the prohibition contained in Section 16 F of the Intermediate Education Act
The appellant however could have been appointed as a lecturer in Hindi if he was exempted from possessing such qualifications in exercise of powers under sub section i of Section 16 E of the Act
The appellant made an application for exemption as envisaged by Section 16 E of the Act
This application was granted by the Board of High School and Intermediate Education UP by its order dated July 23 1963
The contention of the appellant is that though the Board had actually granted exemption only on July 23 1963 he must be deemed to have been exempted from November 4 1960 the date on which he made the application for exemption
If the appellant is right in his submission that although he was factually exempted by the order of July 23 1963 he must be deemed to have been exempted with retrospective effect from November 4 1960 the appellant must succeed
If this contention is considered to be untenable the appellant must fail
The High Court has taken the view that the appellant is entitled to be treated as having become duly qualified with the actual date of the grant of exemption on July 23 1963 and that he cannot be treated as having been granted exemption with retrospective effect
In this view of the matter the appellant s seniority vis a vis Respondents 5 and 6 has been computed on the basis that the appellant was appointed on July 23 1963 when he became qualified for being appointed to the lecturers  grade
The appellant has contended that the High Court has committed an error in not accepting his plea and has reiterated the same submissions before this Court
The first question which must be answered is as to whether the Subject to the provisions hereinafter specified no person shall be appointed as a Principal Head Master or teacher in a recognized institution unless he a possesses the prescribed qualifications or has been exempted under sub section1 of Section 16 E 4
Section 16 E 1 Qualifications for appointment as Principals Head Masters and teachers of different subjects at different stage of the course shall be as prescribed by regulations Provided that the Board may after considering the report of the Director exempt any person from the requirements of minimum qualifications having regard to his experience education and other attainments
 110 plea of the appellant that he must be treated as having been exempted from possessing the qualification with retrospective effect is well founded
We are of the opinion that the District Inspector of Schools was right in taking the view that the appellant was absorbed as a lecturer with effect from the date on which the appellant had actually secured the exemption
Developments in regard to the application for exemption took the following course 4 11 1960 The appellant filed an application for exemption before the Board of High School and Intermediate Education UP Board
6 1 1962 The Board had informed the appellant that his application for exemption was not in the proper form and that he should submit his application in the proper form
15 1 1962 The appellant filed the application in the proper form
10 4 1962 The Deputy Director of Education requested the appellant to obtain the minimum educational qualification BA Degree in Sanskrit by appearing in examination either from Varanasi Sanskrit Vishwavidyalaya or from Gorakhpur University
12 9 1962 The appellant replied to this communication and stated therein that he was not in a position to pass the BA Examination in Sanskrit in the University mentioned by the Board
23 7 1963 After prolonged correspondence the Board granted the exemption
Thus it is clear that the Board was not inclined to grant the exemption to the appellant and had insisted on the appellant securing the requisite qualification by appearing in an examination from an appropriate institution
The Board was disinclined to grant the request till late 1962
When this is the factual position how can the appellant contend that the Board must be deemed to have granted the exemp 5
As per facts stated on oath by Respondent No 5 in his counter affidavit of July 1984 p 50 of the Appeal Paper book which have not been specifically controverted by the appellant in the Rejoinder affidavit p 73 of the Appeal Paper book
111 tion from the date of his application ie November 4 1960 In this factual backdrop it is futile to contend that the Board had granted exemption with restropective effect or that the exemption must relate back to the date of the making of the application
Besides the language of Section 16 E of the Act does not admit of the construction canvassed on behalf of the appellant viz that the Board can grant exemption with retrospective effect
It is in terms provided that the exemption may be granted by the Board only after considering the report of the Director having regard to the experience education and other attainments of the person sought to be appointed
It would be reasonable to construe the Section as enabling the Board to exercise the power to grant exemption prospectively after considering the report and taking into account the relevant circumstances which would by the very nature of things be with prospective effect and not with retrospective effect
To accede to the construction canvassed on behalf of the appellant would be to hold that any unqualified person can be appointed even without the minimum qualifications subject to postfacto exemption being granted
Till the exemption is granted the person is not qualified to be appointed
In other words he would be lacking in the basic qualification for being appointed
This deficiency cannot be made good with retroactive exemption unless the provision itself expressly or by necessary implication contemplates such a course of action
Section 16 E does not satisfy this test
Thus it would appear that retrospective exemption could not have been granted and in point of fact was not granted in the present case
Even otherwise it is not sufficient to show that retropective exemption could have been granted
It must also be shown that retrospective exemption was in fact granted
In the present case the factual background clearly shows that the Board had not granted retrospective exemption
In fact the Board was not inclined to grant the exemption at all and was insisting that the appellant should obtain the requisite qualification
And the Board finally made up its mind to grant exemption only on July 23 1963
Unless the view is taken that whenever exemption is granted it must be treated as having been granted with retrospective effect if there is such power the appellant cannot succeed
There is no warrant in law or logic for taking such a view
The High Court was therefore perfectly justified in repelling the contention urged on behalf of the appellant and in dismissing the Writ Petition
There is also one more dimension of the matter
Though the appellant was working as a lecturer it was not under any authority of law for there is no provision which empowers the college to allow any 112 unqualified person to teach or to appoint him as such in anticipation of his disqualification being removed in future
Till the exemption was granted appellant was not even a teacher in the eye of law though he was allowed to teach by the indulgence of the college authorities
The disqualification was removed only on July 23 1963 when the Board granted the exemption
How could he have claimed seniority vis a vis respondents nos
5 and 6 who possessd the requisite qualifications and became regularly and lawfully appointed teachers much prior thereto An employee must belong to the same stream before he can claim seniority vis a vis others
One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream they having been appointed in an irregular manner
Those who have been irregularly appointed belong to a different stream and cannot claim seniority vis a vis those who have been regularly and properly appointed till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream
At that point of confluence with the regular stream from the point of time they join the stream by virtue of the regularization they can claim seniority vis a vis those who join the same stream later
The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue
On principle the appellant cannot therefore succeed
What is more in matters of seniroty the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority so long as the competent authority has acted bonafide and acted on principles of fairness and fairplay
In a matter where there is no rule or regulation governing the situation or where there is one but is not violated the Court will not overturn the determination unless it would be unfair not to do so
In any view of the matter the appellant who did not even belong to the stream of regularly he was allowed to teach only in an irregular and unauthorized manner and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself
The view taken by the High Court is unexceptionable
This appeal must accordingly fail and be dismissed with no order as to costs
SR Appeal dismissed


Summary:
The appellant who was initially working as an Assistant Teacher started teaching Hindi in the Intermediate classes upon the institution being upgraded though he was not qualified to be appointed as a Lecturer in Hindi
As he did not possess the requisite qualification of BA in Sanakrit he applied for an exemption under section 16E though originially refused was however sanctioned by an order of the Board dated 2371963
While fixing the inter se seniority his appointment date was taken as 2371963 and respondents 5 and 6 were treated as Seniors as they joined on 191262 and 1763 respectively
The appellant challanged it by moving a writ petition in the Allahabad High Court with a prayer that the exemption related back to his initial appointment
The High Court dismissed the Writ Petition and hence the appeal by special leave
Dismissing the appeal the Court  HELD 1
The Language of section 16E of the Uttar Pradesh Intermediate Education Act does not admit of the construction that the exemption granted by the Board must relate back to the date of making the application seeking exemption
Section 16E could be construed as enabling the Board to exercise the power to grant exemption prospectively after considering the report and taking into account the relevant circumstances which would by the very nature of things be with prospective effect and not with retropsective effect
Otherwise it would be to hold that any unqualified person can be appointd even without the minimum qualifications subject to post facto expemption being granted
Till the exemption is granted the person is not qualified to be appointed
107 In other words he would be lacking in the basic qualification for being appointed
This deficiency cannot be made good with retroactive exemption unless the provision itself expressly or by necessary implication contemplates such a course of action
Section 16E does not satisfy this test
Thus it would appear that retrospective exemption could not have been granted and in point of fact was not granted in the present case
Even otherwise it is not sufficient to show that retrospective exemption could have been granted
111 B F Further though the appellant was working as a lecturer it was not under any authority of law for there is no provision which empowers the college to allow any unqualified person to teach or to appoint him as such in anticipation of his disqualification being removed in future
Till the exemption was granted appellant was not even a teacher in the eye of law though he was allowed to teach by the indulgence of the college authorities
The disqualification was removed only on July 23 1963 when the Board granted the exemption
111H 112A B 2
An employee must belong to the same stream before he can claim seniority vis a vis others
One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream they having been appointed in an irregular manner
Those who have been irregularly appointed belong to a different stream and cannot claim seniority vis a vis those who have been regularly and properly appointed till their appointments became regular or are regularised by the appointing authority as a result of which their stream joins the regular stream
At that point of confluence with the regular stream from the point of time they join the stream by virtue of the regularisation they can claim seniority vis a vis those who join the same stream later
The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue
112C E 3
In matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority so long as the competent authority has acted bonafide and acted on principles of fairness and fairplay
In a matter where there is no rule or regulation governing the situation or where there is one but is not violated the Court will not overturn the determination unless it would be unfair not to do so
112E F 108