IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 9628 of 2008. Date of decision: 21.12.2010. Smt. Promila Devi Rana …..Petitioner. Vs. State of H.P. & others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Puneet Rajta, Advocate vice Mr. K.D.Shreedhar, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. Justice Kuldip Singh, J. (Oral). The petitioner has made prayer in the petition to the effect that order dated 3.12.2002 Annexure A-14 may be declared nullity and of no legal consequence in view of order dated 17.11.1990 Annexure A-6 which has already been set aside by the Tribunal vide order dated 9.6.2000 in O.A. No.1521 of 1990. It has also been prayed that respondents may be directed to treat the petitioner at serial No.2014 in the seniority list. The petitioner may be held entitled to further promotion to the post of Deputy Director etc. and petitioner may be directed to be accordingly promoted with effect from the date her juniors namely respondents No.3 and 4 were promoted as Deputy Director. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2. The brief facts of the case are that petitioner had filed OA No.1521 of 1990 challenging the decision of respondent No.2 vide which the petitioner was down graded in the seniority list of Trained Graduate Teachers from seniority No.2014 to 2668-A. The Original Application was allowed on 9.6.2000. The respondents were given liberty to change the seniority position of the petitioner after giving her an opportunity of hearing. It has been alleged that no opportunity of hearing was given to petitioner by respondent No.2 and he had passed the order dated 3.12.2002 reiterating his decision contained in memo dated 17.11.1990. The petitioner would retire in February 2004. 3. The further case of the petitioner is that she was offered appointment as a teacher by the DPI Punjab vide letter dated 13.10.1996, she accepted the offer and joined her duties in Govt. Girls High School, Hamirpur on 21.10.1966. On the re-organization of the States, the services of the petitioner were allocated to the then Union Territory of Himachal Pradesh. The respondent No.1 was pleased to sanction deputation of 150 untrained graduate teachers for the course of B.Ed. training in three different Colleges located within Himachal Pradesh which was to commence from 25.7.1967. The said teachers were treated on duty for the duration of B.Ed. training. The petitioner was one of the teachers so deputed to undergo B.Ed. training and she had successfully completed her B.Ed. training. 4. In the final seniority list of women (mistresses) inherited from Punjab State on 1.11.1968 the petitioner was shown at serial No.121 which shows her regular appointment as on 21.10.1966. In the provisional integrated seniority list of Trained Graduate Teachers ( State cadre) as it stood on 1.11.1966, the petitioner was shown at serial No.1978 with date of appointment on regular basis as 21.10.1966. The department had circulated the final seniority list vide memo dated 23.1.1979 in which the applicant was placed at serial No.2014 showing her date of appointment as 21.10.1966. This seniority list was not circulated to individual teacher. 5. It appears that two Trained Graduate Teachers namely Rajinder Kumar Dogra and M.M. Sethi had submitted some representations against placement of petitioner at serial No.2014. The Director of Education vide memo dated 17.11.1990 had conveyed his decision on the representations of M.M. Sethi and Rajinder Kumar Dogra. The Director of Education has no authority to change the seniority position of employees who were inherited from erstwhile Punjab State. 6. It has been alleged that controversy raised by the petitioner was settled by the Tribunal on 9.6.2000 whereby the order dated 17.11.1990 in OA No.1521 of 1990 Annexure A-6 was set aside. The petitioner during the pendency of the Original Application was promoted as Head Mistress vide notification dated 1.6.1994. In the final seniority list of working Head Masters circulated vide memo dated 17.12.2001, the petitioner has been shown at serial No.9, respondent No.3 Budh Dev has been shown at serial No.11 and respondent No.4 has been shown at serial No.15. On the basis of seniority in the cadre of Head Masters, she was given further promotion as Principal vide notification dated 16.3.1998. The next promotion for Principal is that of Deputy Director. The petitioner being senior most in the cadre of Principals, she was entitled to promotion in the month of April, 2003 when respondent No.3, an officer junior to the petitioner was promoted vide notification dated 5.4.2003 and thereafter respondent No.4 junior to petitioner was promoted vide notification dated 2.5.2003. The controversy qua the petitioner’s seniority was set at rest when the Tribunal allowed her Original Application and her claim to be placed at serial No.2014 was upheld. It appears, the Director of Education by misrepresentation of facts conveyed to the Secretary that the matter had already been decided. The respondents after the decision of the Tribunal in OA No. 1521 of 1990 were bound to follow the seniority position assigned to the petitioner in 1979. The promotion of respondents No.3 and 4 who were junior to the petitioner in the seniority list of Trained Graduate Teachers as also in the seniority list of working Head Masters is illegal and is liable to be quashed and set aside. 7. The petition has been contested by respondents No.1 and 2 by filing reply. It has been stated that petitioner was appointed as an untrained Maths teacher in erstwhile State of Punjab on 21.10.1966. She had passed her B.Ed. examination on 12.8.1968. The seniority No.2014 was assigned to her in the seniority list of Trained Graduate Teachers during the year 1979. The seniority assigned to the petitioner was objected by some other teachers. The record was perused and it was found that the petitioner was wrongly allotted the seniority/placement as Trained Graduate Teacher from the date of her appointment when she was actually an untrained graduate teacher at the time of appointment. In these circumstances, the seniority No.2014 assigned to the petitioner was corrected to 2668-A vide letter dated 17.11.1990 of Director of Education. The letter dated 17.11.1990 was quashed by the Tribunal by observing that the letter was issued without affording any hearing to the petitioner. The Tribunal gave liberty to pass any order in accordance with the Rules after hearing the petitioner. 8. The petitioner after judgment dated 9.6.2000 of the Tribunal was directed to appear before Financial Commissioner-cum- Secretary (Education) to the Govt. of H.P. on 12.12.2000. She did not appear before Financial Commissioner-cum-Secretary (Education). She was again asked to appear before Director of Education on 15.7.2003 regarding her seniority, she submitted her case vide representation dated 28.7.2003. The representation of the petitioner alongwith record was perused and a detailed speaking order dated 16.9.2003 Annexure R-1 was passed by the Director of Education. The post of Deputy Director of Education is filled up by placement from amongst the regular Principals (Schools), as per seniority. The petitioner at the time of filing of the reply by respondents No.1 and 2 was working as Principal (Schools) on ad- hoc basis, hence her claim for promotion/placement to the post of Deputy Director of Education was neither valid nor justified. The post of Deputy Director of Education is filled up by way of placement and seniority from amongst the Principals working on regular basis whereas the petitioner is working as Principal on ad-hoc basis. The respondents No.1 and 2 have prayed for dismissal of the petition. The petitioner had filed rejoinder to the reply of respondents No.1 and 2 and has reiterated her case. 9. I have heard learned counsel for the parties. The case of the petitioner in short is that the Tribunal in OA No.1521 of 1990 decided on 9.6.2000 has already quashed the letter dated 17.11.1990 of the Director of Education whereby the seniority/placement of petitioner from serial No.2014 was brought down to 2668-A. In view of order dated 9.6.2000 of Tribunal the respondents have erred in again placing the petitioner at serial No.2668-A in the seniority list of Trained Graduate Teachers. It has also been contended that petitioner is senior to respondents No.3 and 4 as Trained Graduate Teacher as well as Head Master and Principal, therefore, she is entitled to promotion as Deputy Director of Education since respondents No.3 and 4 junior to petitioner have been promoted as Deputy Director of Education. 10. The Tribunal in the order dated 9.6.2000 had quashed the letter dated 17.11.1990 (11.12.1990) Annexure A-6 on the ground that principle of nature justice has not been followed. The respondents in that petition were given liberty to pass any order in accordance with the Rules and law changing the seniority assigned to the petitioner but after hearing the petitioner. The respondents have taken the stand that after the order dated 9.6.2000 the petitioner was heard. She even submitted a representation, which was considered alongwith the record and thereafter a detailed speaking order dated 16.9.2003 Annexure R-1 was passed by the Director of Education assigning the petitioner seniority at serial No.2668-A in the seniority of Trained Graduate Teachers. 11. It is not the case of the petitioner that after 9.6.2000 the petitioner was not heard. There is no force in the contention of the petitioner that after the order dated 9.6.2000 the seniority position of the petitioner could not be changed by the respondents. The petitioner has not prayed for quashing of order dated 16.9.2003 Annexure R-1, she is simply insisting her seniority/placement at serial No.2014 which has already been changed vide order dated 16.9.2003 Annexure R-1. Hence, in absence of challenge to order dated 16.9.2003 Annexure R-1, the petition is not maintainable. 12. The respondents have pleaded that petitioner was ad- hoc Principal whereas for promotion to the post of Deputy Director requirement is of regular Principal. The petitioner is claiming seniority over respondents No.3 and 4 on the basis of her earlier seniority/placement at serial No.2014 in the Trained Graduate Teachers which has already been changed vide order dated 16.9.2003 Annexure R-1. There is no other material on record to show how petitioner is senior to respondents No.3 and 4 as Principal. There is no merit in the petition which is accordingly dismissed. ( Kuldip Singh) Judge December 21, 2010 (sks)