IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 3576 OF 2001 (SS) Peeyush Kumar Agrawal ……Petitioner. Versus The Joint Director of Education and others. ……….Respondents. Mr. Jitendra Chaudhary, Advocate for petitioner. Mr. N.P. Sah, Standing Counsel for State of Uttarakhand. Mr. S.S. Yadav, Advocate for respondent no. 2. 17th November, 2009 Hon’ble Sudhanshu Dhulia, J. This petition has been filed by the petitioner challenging the order dated 13.03.2000 (Annexure-8 to the writ petition) whereby respondent no. 2 has been declared senior to the present petitioner. Counter affidavit filed on behalf of respondent no. 1 is already on record. A counter affidavit on behalf of respondent no. 2 has been filed today in the Court. The same is taken on record. Heard Mr. Jitendra Chaudhary, learned counsel for the petitioner, Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand and Mr. S.S. Yadav, Advocate for respondent no. 2. Brief facts of this case are that the petitioner as well as respondents no. 2 are both lecturers in an Intermediate College, which is in Jaspur, District Udham Singh Nagar, known as B.S.V. Inter College. The school is under grant-in-aid of the State Government. At the relevant time, the College was governed by the provisions of the U.P. Intermediate Education Act, 1921 and U.P. S.E.S. Selection Board Act, 1982 as well as relevant 2 Removal of Difficulties Orders passed under the 1982 Act. In this B.S.V. Inter College, a short term vacancy of “chemistry” lecturer occurred in the month of July, 1989. The petitioner was appointed on this short term vacancy by the management, and the petitioner joined this post on 1st August, 1989. This short term vacancy had occurred due to leave taken by one of the incumbent namely Mr. Surendra Singh, who during his leave passed away and consequently the said vacancy, which was till now a short term vacancy became a substantive vacancy. Consequently after approval of the District Inspector of School the management committee continued the appointment of the petitioner on this post. Thereafter vide order dated 9.5.1995 passed by the competent Authority, the services of the petitioner were regularised w.e.f. 7.8.1993. On the other hand, respondent no. 2 was appointed as Lecturer (Economics) in the same College in ad hoc capacity vide order dated 27.11.1990, who continued up to 30.4.1991. Thereafter, the ad hoc appointment of respondent no. 2 continued and as in the case of the petitioner, his services were also regularised vide order dated 9.5.1995 w.e.f. 7.8.1993. In short, the services of both the petitioner as well as respondent no. 2 have been regularised from the same date. The Committee of Management of the School vide its resolution dated 7.5.1998 determined the inter se seniority of the teachers, by which the petitioner was declared as senior to respondent no. 2 and this seniority list was sent to the education authorities. The list was challenged by respondent no. 2 by way of filing a representation to the District Inspector of Schools and 3 the District Inspector of Schools vide ex parte order dated 15.9.1998 declared respondent no. 2 as senior on grounds that the regularisation of both the petitioner as well as respondent no. 2 is of the same date, but respondent no. 2 would be senior to the petitioner on the ground that respondent no. 2 is senior in age to the petitioner. This order of the DIOS was challenged by the petitioner before the Joint Director of Education. The Joint Director of Education in its order dated 2.12.1998 stated that the determination of seniority of temporary as well as permanent teachers has to be calculated separately and the seniority as earlier determined by the Management Committee is correct, where petitioner was held to be senior to respondent no. 2. Against this order, respondent no. 2, filed a representation before the Joint Director of Education and the matter was reviewed by the said authority, who came to the conclusion that the correct date from which the seniority of respondent no. 2 has to be determined is the date on which their services were regularised i.e. 7.8.1993. Now since, respondent no. 2 was senior in age to the petitioner, therefore, vide order dated 13.3.2000 (Annexure – 8 to the writ petition) passed by the Joint Director of Education, Kumaon Mandal, Nainital, respondent no. 2 was declared senior to the petitioner. It is this order, which has been challenged by the petitioner before this Court. The petitioner has primarily relied upon Section 33- B of the U.P. S.E.S. Selection Board Act, 1982 (from hereinafter referred to as the Selection Board Act, 1982). Section 33-B reads as follows: 4 “[33-B. Regularisation of certain other appointments.—(1) Any teacher other than the Principal or Headmaster, who,-- (a) (i) was appointed by promotion or by direct recruitment in the lecturer grade or Trained grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short-term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, and such vacancy was subsequently converted into a substantive vacancy, or (ii) was appointed by direct recruitment on or after July 14, 1981 but not later than June 12, 1985 on ad hoc basis against substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector, or (iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but later than May 14, 1991 on ad hoc basis against a substantive vacancy in accordance with Section 18, [as it stood before its substitution by the Uttar Pradesh Secondary Education Services Commission and Selection Boards Second (Amendment) Act, 1992]; (b) possesses the qualifications prescribed under, or is exempted from such qualification in accordance with, the provisions of the Intermediate Education Act, 1921; (c) has been continuously serving the Institution from the date of such appointment 5 up to the date of the commencement of the Act referred to in sub-clause (iii) of clause (a); (d) is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the explanation to sub-section (3) of Section 33-A; (e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2), shall be given substantive appointment by the Management. (2) (a) For each region, there shall be a Selection Committee comprising – (i) Regional Deputy Director of Education of that region, who shall be the Chairman, (ii) One officer holding a Group “A” post (specified as such by the State Government from time to time) in any department other than Education Department, to be nominated by the State Government, (iii) Regional Inspectress of Girls School of that region: Provided that the Inspector of the district shall be co-opted as a member while considering the case for regularisation of that district. (b) The Selection Committee constituted under clause (a) shall consider the case of every such teacher and on being satisfied about his eligibility and suitability in view of the provisions of sub-section (1) shall, subject to the provisions of sub-section (3) recommend his name to the management for appointment under sub-section (1) in a substantive vacancy. 6 (3) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as seniority from the date of their appointment. (b) If two or more such teachers are appointed on the same date, the teacher who is older in age shall be recommended first. (4) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment. (5) A teacher who is not found suitable under section (1) and a teacher who is not eligible to get a substantive appointment under that sub- section shall cease to hold the appointment on such date as the State Government may by order specify. (6) Nothing in this section shall be construed to entitle any teacher to substantive appointment if on the date of commencement of the Act referred to in sub-clause (iii) of clause (a) of sub-section (1), such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act.].” Relying upon Section 33-B (1) (a) (i), the petitioner contends that since the petitioner was appointed by way of direct recruitment in lecturer grade, prior to May 14, 1991 as contemplated under the aforesaid provisions, he is liable to be substantively appointed by the Management. In other words, a right has accrued to the petitioner for being given a substantive appointment. 7 Consequently, the name of the petitioner was liable to be sent by the Selection Committee to the Board in order of seniority, as seniority from the date of his appointment as contemplated under Section 33 B (3) (a), which in the case of the petitioner would be his initial appointment i.e. 1st August, 1989, in which case he would be senior to respondent no. 2 as the initial date of appointment of respondent no. 2 is 27.11.1990. Learned counsel for the petitioner contends that since the petitioner was senior to respondent no. 2, his name was liable to be sent earlier to that of respondent no. 2. The main contention of respondent no. 2, on the other hand, is that the benefit of the period of service, which the petitioner has put in in an ad hoc capacity from 1989 to 1993 cannot be given to him as the appointment of the petitioner was on short term vacancy where due process was not followed and therefore, this benefit cannot be given to him. Mr. S.S. Yadav, learned counsel for respondent no. 2 is relying upon the observations made by the Supreme Court in Radha Raizada Vs. Committee of Management reported in [(1994) 3 UPLBEC 1551]. Learned counsel for the respondent No. 2 Sri Yadav has then relied upon Clause (5) of the U.P. Secondary Education Services Commission (First Removal of Difficulties) Order, 1981, whereby there was a requirement for publication of advertisement in two newspapers. Clause 5 reads as under: “5. Ad hoc appointment by direct recruitment.—(1) Where any vacancy cannot be filed by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5). 8 (2) The Management shall as soon as may be, inform the District Inspect or Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. (3) Every application referred to in Clause (2) shall, be address to the District Inspector of Schools and shall be accompanied— (a) by a crossed postal order worth ten rupee payable to such inspector; (b) by a self-addressed envelop bearing postal stamp for purposes of registration. (4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality point specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspectors. (5) If more than one teacher of the same subject or category is to be recruited or more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution. This process shall be repeated till both the lists are exhausted.” The aforesaid provision shows that this was a requirement while filling a substantive vacancy though in an ad hoc capacity. The learned counsel for the petitioner contends that this provision will not have any effect in the present case as the vacancy was initially a short term vacancy on which petitioner was appointed. The initial appointment of the petitioner was on a short term vacancy. Now the appointments on the short term vacancies, at the relevant time were governed by Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981. According to which, the Management shall intimate the vacancies to 9 the District Inspector of Schools and shall also immediately notify the same on the Notice Board of the Institution requiring the candidates to apply to the Manager of the Institution along with the particulars and the selection was to be made on the quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (First Removal of Difficulties) Order, 1981. In this second removal of difficulties order, which has been passed under Section 33-B of the Selection Board Act, 1982, there is no provision for publishing the vacancy in two newspapers. However, according to the Full Bench decision of the Allahabad High Court, which had dealt in detail on this aspect, it has been laid down that even though there is no provision for advertising the vacancy in two newspapers, yet even for making a short term appointment procedure which has to be followed in making an ad hoc appointment by direct recruitment as contemplated in Removal of Difficulties First Order shall be followed, which requires that the vacancy shall be advertised in two newspapers. In short, Allahabad High Court in Radha Raizada (supra) has stated that even for a short term vacancy, advertisement has to be made. Clearly this has not been done by the Management and this is what the counsel for respondent no. 2 has pointed out repeatedly in his argument. In Smt. Uma Rani Misra Vs. Committee of Management, Vaidik Kanya Pathshala Inter College, Ganeshgaj, Lucknow and others reported in 1997(1) A.W.C. 481 (L.B.), the learned Single Judge of Allahabad High Court, while deciding the validity of an appointment made on a short term vacancy which became a substantive vacancy has held that there was no 10 requirement at the relevant time (as in the present case) of advertisement in two newspapers in the Second Removal of Difficulties Order in case of a short term vacancy and the judgment of the Full Bench of Allahabad High Court in Radha Raizada’s case, which prescribes such a requirement even for short term vacancies will operate prospectively and not to those appointments, on short term vacancy which have preceded the judgment of Full Bench in Radha Raizada’s case. Incidentally the judgment of Radha Raizada’s case is of 12th July, 1994, where the fresh appointment of petitioner is of the year, 1989. Moreover, it has also been held in the case of Chandra Bhan Singh Vs. DIOS Bijnor 1950-1991 EEIC 293 (as referred to in the case of Smt. Uma Rani Misra) that the appointment against a short term vacancy shall be permitted to continue till the post is not filled up by a regular selection and the incumbent will not cease from working on this vacancy once it is converted into substantive vacancy and a short term vacancy if converted into a substantive vacancy will not make any difference so far as the right of ad hoc appointee on the said post is concerned and he is liable to continue till a regular selection is made by the Board. Therefore, there is no anomaly as far as the appointment of the petitioner was concerned and the contention of respondent no. 2 on this aspect is, therefore, not correct. Moreover, in the case of Smt. Uma Rani Mishra (supra), it has been held that the directions contained in Radha Raizada will operate prospectively and not retrospectively. Moreover, what is there before this Court is not the validity of the appointment of the petitioner or that of respondent no.2. Both these appointments stand regularised by orders of the competent authority. The 11 appointment orders are not under challenge before this Court. What has to be seen by this Court is only the inter se seniority between the petitioner and respondent no. 2. What is relevant in the present case is that both appointments of the petitioner as well as respondent no. 2 were made on a substantive vacancy. In a similar case while adjudicating upon this controversy, a learned Single Judge of the Allahabad High Court in Dr. (Km.) Archana Gupta Vs. Joint Director of Education, Bareilly and others reported in 2002 (3) AWC 2100 has held that the seniority of a person, who is appointed on a substantive post, though in an ad hoc capacity will be calculated from the date of his initial appointment viz. a viz. a person who is appointed substantially though on a later date. As per the doctrine of continuous officiation, the service put in by the petitioner though in ad hoc capacity prior to his regularisation is liable to be considered in order to determine his seniority. In view of what has been laid down by the Apex Court in Direct Recruits Class-II Engineering Officers’ Association and others V. State of Maharashtra and others, AIR 1990 SC 1607 that there is no reason to exclude even the officiating service if the initial appointment is made in accordance with the rules. In the present case, we have seen that there is no anomaly in the initial appointment of the petitioner and therefore, the period of the service put in by him prior to his regularisation was also to be considered, while calculating his seniority. The Apex Court in the case of Food Corporation of India Vs. Thaneswar Kalita and others, AIR 1996 SC 644 has held that if the appointments are made in accordance with the rules though initially on ad hoc 12 basis, and continue for long time then while regularising the appointment, the entire period of temporary service shall be counted for the purposes of seniority. There is, however, a counter affidavit on record of the State which says that the seniority has to be calculated in the present case under Regulation 3 Chapter II of the U.P. Intermediate Education Act, 1921 which reads as follows: “3.(1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions: (a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post; (b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age; [(bb) Where two or more teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to the reckoned from the date of their substantive appointment in the grade from which they are promoted: Provided that if such length of service is equal, seniority shall be determined on the basis of age.] 13 (c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service; (d) If a teacher who is placed under suspension is reinstated on his original post, his original seniority in the grade shall not be affected; (e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision; [(f) Any teacher aggrieved by the decision of the Management Committee under sub-clause (e) within 15 days of the date of information of such decision to the teacher, may appeal to concerned Regional Deputy Director and on appeal after giving an opportunity of hearing to the concerned parties, Deputy Director will give his decision with reasons, which will be final and executed by the Management Committee.] [(g) Where two or more teachers working in the same grade are promoted on the same date, their inter se seniority shall be the length of service in that grade in which they were working, but, if the length of service is equal, then in the event of promotion seniority shall be determined on the basis of the age.] (2) The seniority list shall be revised every year and the provisions of clause (1) shall mutatis mutandis apply to such revision.” Relying upon the said provision, respondent no. 2, also contends that if two or more teachers are appointed substantially on the same date, the seniority shall be 14 calculated on the basis of their age, and as such it has been rightly decided that respondent no. 2 is senior to the petitioner since he is elder in age as compared to the petitioner. All the same, section 33-B (3) (a) of the Selection Board Act, 1982 shows that the names of the teachers shall be recommended for substantive appointment in order of seniority as seniority from the date of their appointment. A perusal of the said section shows that here what is meant actually is “date of appointment” is the initial date of appointment. Moreover, even if one has to find out the seniority of substantive appointment for the purpose of determining the seniority of the petitioner and respondent no. 2 on the basis of principles laid down, this Court finds that since the petitioner was qualified and eligible to be appointed as a direct recruit for the post of Lecturer for which a valid resolution was passed by the Committee of Management and the petitioner has worked interrupted on the post till his services and consequently regularised under Section 33- B of the Selection Board Act, 1982 vide order dated 9.5.1995 passed by the Joint Director of Education (effective from 7.8.1993), the petitioner would be treated to be substantially appointed on the date the vacancy itself became substantive i.e. on 18.8.1989, which would be a date earlier to the appointment of the respondent 15 no. 2, hence the petitioner is senior to respondent no. 2. This is what precisely has been held by the learned Single Judge of Allahabad High Court in Dr. (Km.) Archana Gupta (supra). In such an eventuality, the period of service, which has been put in though in an ad hoc capacity by the petitioner and respondent no. 2 would have to be considered. Since these have not been considered by the Joint Director of Education, the order dated 13.3.2000 is hereby quashed and the petitioner is declared as senior to respondent no. 2 in the grade of lecturer in the School/College. The writ petition is allowed. No order as to costs. (Sudhanshu Dhulia, J.) 17.11.2009 Rathour 16 In view of this Court, however, at the time when these appointments were being made, there were no such requirements in the Removal of Difficulties Order or in the statute and such a requirement has been read into in the order and statute by a decision of the Full Bench and to that extent there is a fault in the appointment of the petitioner. However, it is not the appointment of the petitioner, which is under challenge before this Court but it is the inter se seniority between the petitioner and respondent no. 2 as the appointment of both the petitioner and respondent no. 2 stands regularised by orders of the competent authorities. The question before this Court is also inter se seniority between the petitioner and respondent no. 2. The Joint Director of Education, Kumaon Mandal vide his order dated 13.3.2000 has held respondent no. 2 to be senior to the petitioner on the ground that since the services of both the petitioner and respondent no. 2 were regularised on the same date, their seniority will be determined on the basis of age between the two teachers and since respondent no. 2 is senior in age to the petitioner, he will be considered to be senior to the petitioner. The Joint Director of Education has, however,