Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 124 of 2007 Pan Singh Bisht ….Petitioner. Versus District Education Officer, Almora and others … Respondents. Present : Mr. Dinesh Chauhan, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Mr. S.K. Posti, Advocate for respondent nos. 2 to 4. Hon’ble Sudhanshu Dhulia, J. Heard Mr. Dinesh Chauhan, Advocate for the petitioner, Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand and Mr. S.K. Posti, Advocate for respondent nos. 2 to 4. What is under challenge in the present writ petition is inter se seniority between the petitioner and respondent no. 4. The petitioner as well as respondent no. 4 were appointed on a Group “D” post in a private though grant in aid intermediate college, namely, “Sarvodaya Inter College at Jayanti”, District Almora. Both the petitioner as well as respondent no. 4 were appointed on 6.1.1978. On the date the petitioner was appointed, his date of birth was recorded as 15.6.1955 and he was having high school qualification as well. Respondent no. 4 was also appointed on the same date and his date of birth was recorded as 4.8.1955 and his educational qualification is class VII. These facts are admitted by the respondents who have filed their counter affidavit. Meaning thereby, the petitioner is not only more qualified than respondent no. 4 but he is also older in age vis-à-vis respondent no. 4. The petitioner states that when the appointment order of both the petitioner and respondent no. 4 is of the same date, the seniority must be based on age and since the petitioner is senior in age he should be declared senior to respondent no. 4. 2 Respondent no. 1 is the District Education Officer, Almora, respondent no. 2 is the Committee of Management of the said college, respondent no. 3 is the Principal of the said college and respondent no. 4 is private respondent also working on a class 4 post. Interestingly, all respondent nos. 2, 3 and 4 are being represented by the same counsel and have filed a combined counter affidavit on the grounds that they have a common stand and they are supporting the case of respondent no. 4 as far as his seniority vis-à-vis the petitioner is concerned. It must be stated at this juncture that what is at stake here is a class III post in the same college which has presently become vacant and has to be filled from a class IV employee in the school and the appointment has to be made on the basis of seniority of such class IV employees. Therefore in case the petitioner is senior to respondent no. 4 he will be liable to be promoted to class III post, otherwise it will be respondent no. 4. Hence the present contest. There are no specific rules on which reliance can be made and which can be looked into for determining the inter se seniority of petitioner and respondent no. 4. Nevertheless, the petitioner has relied upon Regulation 3 of Intermediate Education Act, 1921 and has stated that though there are no rules in his case but for teachers the rule of seniority of age prevails. The petitioner has further relied upon a judgment of Allahabad High Court in Sardar Mohammad Ansar Khan v. State of U.P. and others reported in 1993 A.W.C. 589 wherein the learned Single Judge had held that while determining the controversy regarding seniority of such employee (as is the present case) it is both fair and just to take recourse of the aforesaid rules and taking recourse of the said rules the seniority was declared. Respondent no. 4, on the other hand, has relied upon Rule 26 of the Group “D” Employees Service (U.P.) Rules, 1985 and has stated that the seniority between the petitioner and 3 respondent no. 4 will be declared on the basis of their order of appointment and since in the order of appointment respondent no. 4 has been placed above the petitioner, it is respondent no. 4 who is senior to the petitioner. Apart from this fact, respondent no. 4 has also pleaded that long standing seniority should not be disturbed. Learned counsel for respondent no. 4 has further stated that a seniority list was published in the year 1999 and in this seniority list respondent no. 4 was placed above the petitioner and the petitioner has never challenged the said seniority list. Therefore, now it is too late in the day to challenge the seniority of respondent no. 4 who has obviously been declared as a senior to the petitioner by the management committee. The petitioner again rebuts this aspect by saying that earlier there was no occasion for challenging the seniority inasmuch as the occasion has come now where one person between the petitioner and respondent no. 4 is liable to be promoted to the next higher post on the basis of seniority and on the earlier occasion the petitioner had not challenged the seniority list because those persons who were promoted to the class III post were all senior to the petitioner. During the pendency of the writ petition, the petitioner again sought information under Right to Information Act and has placed the letter of Director, School Education, Uttarakhand, Dehradun to the District Education Officer, Almora dated 26.10.2010 which says that in the interview held for class IV post way- back in the year 1978, the petitioner and respondent no. 4 have obtained same marks i.e. 35 marks and since they have joined on the same date everything else between them is equal. Therefore, presently there is no other determining factor between them but of age on which petitioner scores over respondent no. 4. On the last occasion, since counsel for respondent no. 4 had stated that he must be given an opportunity to rebut this submission of the petitioner which has been filed by means of a new affidavit, an opportunity was 4 given to him vide order dated 21.7.2011. In response to the said affidavit, respondent no. 4 has filed another affidavit which is on record. By and large the facts as stated by the petitioner are admitted. On the rival contention of the petitioner and the respondent and on the basis of the evidence led before this Court, the Court is of the considered view that the petitioner is liable to be declared as senior to respondent no. 4 for the following reasons : Both the petitioner and respondent no. 4 were appointed in the same selection process and were given appointment on the same date. Evidently, they have received the equal number of marks by the selection committee i.e. 35 marks. Though admittedly the petitioner was a High School and respondent no. 4 had education qualification only with class VII. Therefore on merit there is no difference between the two. Since there is no specific rule to determine the seniority between the petitioner and respondent no. 4 where all other factors are same, the person who is older in age will be senior appears to be a fair and just rule which must be applicable in this case, where rules applicable to class IV employees regarding seniority in such contingency are silent. This view is further strengthened by the judgment of a learned Single Judge of Allahabad High Court dated 10.11.1992 in Sardar Mohammad Ansar Khan v. State of U.P. and others reported in 1993 A.W.C. 589. For the reasons already stated above, writ petition is allowed. The petitioner is declared as senior to respondent no. 4. No order as to costs. (Sudhanshu Dhulia, J.) 19.08.2011 Avneet