Arvind Kumar Tripathi vs State Of U.P. & Others
2012 Latest Caselaw 4485 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- WRIT - A No. - 40425 of 2012
 

 
Petitioner :- Arvind Kumar Tripathi
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Radha Kant Ojha,A.K. Tripathi
 
Respondent Counsel :- C.S.C.,K. Shahi
 

 
Hon'ble V.K. Shukla,J.

The petitioner, Arvind Kumar Tripathi, is before this Court questioning the validity of order dated 27.07.2012 passed by Joint Director of Education, VII Region, Gorakhpur, holding that Vijay Shankar Rao is senior vis-a-vis the petitioner and accordingly, the claim of petitioner to function as officiating/ad hoc Principal is without any force.

In the district of Deoria, there is an institution known as Baba Gayadas Technical Inter College, Barhaj, District Deoria. Said institution is recognized under the provisions as contained under U.P. Intermediate Education Act, 1921. Teaching and non-teaching staff of the institution is paid salary in accordance with the provisions of U.P. Act No. 24 of 1971. In the institution concerned, petitioner had been appointed as C. T. Grade teacher on temporary basis under three-language formula scheme on two-third pay scale and Vijay Shankar Rao, respondent No.5 was appointed in the same institution on substantive basis on one year probation as L.T. Grade teacher. Both the petitioner as well as respondent No.5 entered the institution on the same day, as letter of approval is of the same date i.e. 24.07.1973. Petitioner thereafter completed B. Ed. in the year 1985, and thereafter C.T. Grade was declared as dying cadre with effect from 01.01.1986, and accordingly, petitioner was accorded L.T. Grade pay scale after completing 10 years of service in C.T. Grade.

In the institution concerned post of Principal fell vacant and one Ved Vyas Shukla, who was working as Lecturer in Sanskrit, was promoted on the post of Principal on ad hoc basis with effect from 01.07.1988. Petitioner claims that in the vacancy caused on account of promotion of Ved Vyas Shukla, he was promoted on ad hoc basis as Lecturer in Sanskrit and his promotion had been approved and to the contrary at the said point of time an order dated 05.12.1992 was passed by the District Inspector of Schools making recommendation in favour of one Nand Lal by the committee constituted under amended Section 18 of U.P. Act No. 5 of 1982. Against the said order making recommendation in favour of Nand Lal, petitioner preferred writ petition No.4160 of 1993, in which an interim order was passed. The petitioner thereafter on the strength of the interim order got his ad hoc promotion approved by the District Inspector of Schools on 10.10.1994 and the said approval letter forms part of the record, and therein it has been clearly mentioned that pursuant to interim order passed by this Court financial approval had been accorded.

On 30.06.2000 post of lecturer in Civics fell vacant and in the said vacancy the name of Vijay Shankar Rao, who was working on substantive basis as L.T. Grade teacher, had been recommended for being promoted as Lecture in Civics, and on 12.02.2001 Regional Level Committee proceeded to accord approval to the resolution of promotion under Rule 14 of the U.P. Secondary Education Services Selection Board rules, 1998 in favour of Vijay Shankar Rao, and since then Vijay Shankar Rao has been functioning as lecturer in Sanskrit. In reference to petitioner, writ petition No.4160 of 1993 filed by him came to be dismissed by means of following order:

"List revised.

Advocates are agitating on the issue of constitution of a Bench of High Court in Western U.P. This writ petition appears to have been rendered infructuous by passage of time and deserves to be dismissed, apart from being nota fit case for interference by this court in exercise of its extraordinary remedy under Article 226 of the Constitution.

It is made clear that dismissal of the petition shall not prejudice rights, if any, accrued during pendency in question or to seek such remedy for vindication of ours right as may be available under law irrespective of dismissal of this writ petition.

Writ petition is accordingly dismissed. Interim order, if any, shall stand discharged."

Thereafter, papers for regularization of petitioner had been sent and on 21.07.2008 an order was passed by the Joint Director of Education, VII Regional, Gorakhpur mentioning that pursuant to the order passed by this Court, the petitioner has been functioning and paid his salary, and this Court has not at all proceeding to pass any order in the matter of regularization, and it was also mentioned that in case in the writ petition any order is passed then the claim of regularization would be considered, but on the basis of interim order claim for regularization cannot be considered. Thereafter, it is reflected that the Committee of Management proceeded to hand over charge of the officiating/ad hoc Principal to the petitioner. An order was passed on 02.08.2008 attesting the signatures of the petitioner to function as officiating/ad hoc Principal till the decision was taken on the seniority status. Thereafter, the petitioner appears to have been extended the benefit of regularization on 04.07.2009. Vijay Shankar Rao had been objecting to the functioning of petitioner as ad hoc Principal on the premises that he was the senior most lecturer in the institution concerned and it was he, who had right to be promoted as Principal on officiating/ad hoc basis in terms of Section 18 of U.P. Act No. 5 of 1982. Vijay Shankar Rao filed an appeal before the Joint Director of Education assailing the validity of seniority list, and therein the Joint Director of Education has proceeded to pass an order on 04.11.2009 mentioning therein that the seniority list prepared was not in consonance with the provisions as contained under Chapter II Regulation 3 of the Regulations framed under U.P. Act No. 2 of 1921, and The Joint Director of Education had given categorical direction to the Committee of Management to take decision. Thereafter the Joint Director of Education stayed the said order on 16.11.2009 and on 07.09.2010 proceeded to pass an order mentioning therein that since the order dated 04.07.2009 has been stayed, the matter has been further examined and as per the same Vijay Shankar Rao is the senior most teacher in Lecturer Grade appointed on substantive basis. The order dated 07.09.2010 has been subject matter of challenge before this Court and this Court in writ petition No.59224 of 2010 proceeded to pass an order holding that since the proceedings were ex parte, the order has been set aside and direction had been issued to the Joint Director of Education to take decision in the matter on the basis of records available and after providing opportunity of hearing to the petitioner as well Vijay Shankar Rao. Pursuant to the said order, matter has been heard by the Joint Director of Education and therein decision has been taken holding Vijay Shankar Rao senior vis-a-vis Arvind Kumar Tripathi. Thereafter, once again the petitioner is before this Court.

Counter affidavit has been filed of behalf of Vijay Shankar Rao mentioning therein that claim of the petitioner is misconceived and devoid of any substance, and on undisputed position, petitioner has to be accepted as senior. To the said counter affidavit, rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit, and apart from this supplementary affidavit has also been filed along with various documentary evidence.

After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri R.K. Ojha, Advocate, assisted by Sri Arun Kumar Tripathi submitted as under:

(1)Petitioner had been promoted as lecturer in Sanskrit on ad hoc basis and in view of this once delay has been caused in considering the matter of regularization, then for the said situation, petitioner should no be penalized and the regularization so made should relate back to the date when ad hoc promotion had been accorded, and in view of the same in all eventuality, the petitioner has to be accepted as senior vis-à-vis respondent No.5.

(2)There has been long drawn seniority list, wherein Vijay Shankar Rao has appended his signatures, as such belated challenge to such long drawn seniority is not at all to be entertained, and in view of this by all means, the petitioner is entitled to be considered for promotion to the post of officiating/ad hoc Principal, and accordingly, writ petition deserves to be allowed.

Countering the said submissions, Sri K. Shahi, Advocate representing respondent No.5, on the other hand, contended that claim of the petitioner is misconceived and without any foundation and basis, and, in fact, at no point of time, he had ever been conferred substantive status in L.T. Grade, and only L.T. Scale of pay had been accorded to him on account of C.T. grade cadre being declared as dying cadre. Coupled with this on the strength of interim order, petitioner continued to function as ad hoc lecturer, and in view of this his claim for regularization was not liable to be considered, and same has been illegally accetped. Further in the facts of the present case, it cannot be said that there existed long drawn seniority, and in view of this, it has been submitted that rightful decision has been taken, which need not be interfered with by this Court.

Learned standing counsel has supported the submissions made by Sri K. Shahi, Advocate.

In order to appreciate the respective arguments advanced on behalf of the parties, factual circumstances have to be noted and respective claims of the parties have to be adverted to. Petitioner had been appointed in C.T. Grade under three-language formula on temporary basis till the end of session on two-third of the scale, and the same had been accepted by the petitioner, as is apparent from the letter of approval dated 24.07.1973. Appointment of Vijay Shankar Rao had been made on the same very date as L.T. Grade teacher on substantive basis and he had been kept on probation for one year, and this fact is also fortified from the same letter of approval dated 24.07.1973.

This much has also come on record and has not been disputed that the petitioner had been awarded L.T. Grade scale with effect from 01.01.1986, and as far as Vijay Shankar Rao is concerned, his basic engagement was as L.T. Grade teacher on substantive basis with effect from 24.07.1973. Thus, even as per admission of the parties, there is gap of more than 12 years in the matter of seniority between Vijay Shankar Rao and the petitioner qua L.T. Grade status, and Vijay Shankar Rao at all point of time has been treated and accepted as senior to the petitioner as regards L.T. Grade status.

In the institution concerned Ved Vyas Shukla, who was working as lecturer in Sanskrit, had been accorded ad hoc promotion to the post of Principal, which fell vacant on 30.06.1988, with effect from 01.07.1988, by virtue of being senior most lecturer in the institution. As far as Ved Vyas Shukla is concerned, in between him and one Indra Sen Singh, also, there was a dispute as to who should function as Principal on the basis of seniority. For the said purpose Ved Vyas Shukla had to rush this Court by preferring writ petition No.12358 of 1983,and this Court on 05.04.1988 had passed an interim order permitting Ved Vyas Sukla to work as officiating Principal of the college, after retirement of regular Principal. Ultimately, the writ petition filed by Ved Vyas Shukla had been allowed on 24.07.1992, wherein he had been declared senior and directives had been issued that his services should be treated as regularized as per U.P. Secondary Education Service Selection Commission (Amendment) Act, 1991. Against said decision of Single Judge Special Appeal Nos.385 and 386 of 1992 were preferred and both the special appeals were finally decided on 08.08.1994, and therein order has been passed directing to consider regularization of the services of Ved Vyas Shukla as Principal of the Coolege, in accordance with law. Thereafter, as far as Ved Vyas Shukla is concerned, his services had been regularized vide order dated 19.05.1998

In between in the vacancy caused on account of promotion of Ved Vyas Shukla, the petitioner had been accorded ad hoc promotion as lecturer in Sanskrit, and thereafter under the amended Section 18 of U.P. Act No. 5 of 1982 one Nand Lal had been recommended on 05.12.1992 for being appointed as Lecturer in Sanskrit. The petitioner in his turn proceeded to question the said recommendation so made before this Court, and this Court on 05.02.1993 proceeded to pass an interim order in favour of the petitioner, and thereafter based on the same, the District Inspector of Schools accorded approval to the ad hoc promotion of the petitioner on the post of lecturer in Sanskrit. However, said writ petition filed by the petitioner came to be dismissed on 24.09.2011. The order passed by this Court has already been quoted and noted above.

On the other hand, this much is clear that the post of lecturer in Civics fell vacant on 30.06.2000 and in consonance with Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998, papers in relation to Vija Shankar Rao were transmitted and the Committee constituted for this purpose considered the matter of his promotion and on 12.02.2001 accorded promotion to Vijay Shankar Rao on substantive basis, and accordingly, he has been accorded promotion as Lecturer in Civics.

The petitioner, on the other hand continued as Lecturer in Sanskrit on ad hoc basis on the strength of the interim order and his papers were transmitted for extending the benefit of regularization. Said papers had been returned back on the ground that continuance of the petitioner on the post in question was based on the strength of the interim order passed by this Court, as such claim of petitioner for regularization could not be accepted.

Apex Court, in the case of Committee of Management of Nagar Inter College vs. Kumar Tiwari AIR 1997 SC 3071 has clearly ruled that continuance of an incumbent pursuant to interim order will not confer any right for regularization. Same view has been reiterated in the case of Harish Chandra Rai vs. State of U.P. and others 2004 (1) UPLBEC 428. View to the similar effect has been expressed by the Apex Court while considering the matter of regularization of daily wagers/ad hoc employees in the case of Secretary, State of Karnataka vs. Uma Devi, 2006 (4) SCC 1. In paragraph 53 thereof it has been ruled that as one time measure scheme be made for extending the benefit of regularization, but the benefit of the same would not be extended to an incumbent who has been continuing on the strength of interim order.

As far as claim of petitioner is concerned, this much is accepted that he had been appointed on ad hoc basis by way of promotion in the vacancy caused on account of promotion of Ved Vyas Shukla as officiating/ad hoc Principal. In respect of the said post occupied by the petitioner, under the amended Section 18 of U.P. Act No. 5 of 1982 Act, one Nand Lal had been recommended for being appointed as Lecturer in the institution. Against the said recommendation, petitioner preferred writ petition No.4160 of 1993, in which an interim order had been passed and letter dated 10.10.1994 clearly reflects that the claim of the petitioner as ad hoc lecturer had not at all been accepted, and to the contrary in terms of the interim order passed by this Court his ad hoc promotion had been approved and order had been passed in his favour, and on the basis of interim order, the petitioner continued to function. Thereafter, it is true that under U.P. Act No.5 of 1982on various occasions various provisions had been introduced for extending the benefit of regularization, and the incumbents who had been functioning on the respective cut of dates mentioned therein and had been fulfilling the terms and conditions specified therein and who had been appointed in consonance with the aforesaid provisions, in accordance with law, their claims were required to be considered on the basis of records to be transmitted by the Committee of Management by the respective committees constituted in this regard.

The dictum of the Apex Court and this Court is, therefore, clear and categorical that the incumbents who had been continuing on the strength of interim order, their claim did not fall within the zone of consideration. Claim of such incumbents could be considered for extending the benefit of regularization only after the writ petition was allowed and final relief was accorded to them accepting their claim. In the said circumstance if an incumbent continued on the strength of the interim order, then it can be conveniently said that the petitioner had been victim of arbitrary action and the same has been redressed. In such circumstances, continuity has to be accepted on merit and merely not on the basis of interim order, but in cases wherein no relief has been accorded finally by the Court on merits and the claim has not been decided, and only on the strength of the interim order, the incumbent continued to function, and his claim has not at all been adjudicated on merits, then the benefit of regularization in such a situation cannot be extended, as undertaking of such exercise would be clearly in the teeth of the dictum of Apex Court as well as of this Court has been noted above. Claim of regularization has to stand on its own legs, and continuance on the strength of interim order, cannot be construed that incumbent had been continuing by virtue of his own right.

Most surprising feature of the present writ petition is that the papers in relation to petitioner had been sent for regularization, but the same had been returned by clearly mentioning therein that continuance of the petitioner was on the strength of the interim order, as such his claim for regularization could not be considered Thereafter, his claim has been considered and the benefit of regularization has been extended to him with effect from 04.07.2009. This is true that at the point of time when this Court had proceeded to pass order on 24.09.2001 clear cut mention was made that dismissal of writ petition would not prejudice the right, if any, accrued during pendency of writ petition in question or to seek remedy for vindication of right or to seek remedy for vindication of right as may be available under law irrespective of dismissal of this writ petition.

Law on the subject is clear from the very beginning that the incumbents, who have been continuing on the strength interim order, cannot claim the benefit of regularization, and in view of this, as the petitioner's continuance was based on the interim order, as such his right ought to have been adjudicated strictly in accordance with law. During pendency of writ petition, no right had been conferred on ad-hoc appointees, who had been continuing on the strength of the interim order, an at no point of time this Court ever proceeded to decide as to whether claim of petitioner of ad hoc promotion was legally acceptable, and that the District Inspector of Schools had made illegal recommendation, in favour of Nand Lal under Section 18 of U.P. Act No. 5 of 1982. Once the authorities in their wisdom have proceeded to return the papers of the petitioner, then what promoted them to reconsider the matter of regularization is unknown. In view of this, this Court is proceeding to record finding that whenever an incumbent continues on the strength of the interim order, his claim has to be considered only when his claim is accepted on merit by writ court and not in any other contingency his claim can be accepted as valid.

This Court in the facts of the case is not proceeding to disturb the status of the petitioner as Lecturer conferred upon hm since 04.07.2009 as the same is not at all subject matter of challenge. Law on the subject is also clear that at the point of time when seniority matters are to be decided, the validity of appointment should not be gone into.

The question to be answered in the present case is as to whether in the facts of the case petitioner can be treated senior vis-a-vis Vijay Shankar Rao. As far as petitioner is concerned, in consonance with the provisions of U.P. Act No. 5 of 1982, his claim has been considered by a Committee constituted for considering the matter of regularization, and the said committee has proceeded to pass order in favour of the petitioner on 04.07.2009, and as per scheme of things provided for after said Committee has considered the matter and has found candidate suitable for substantive appointment, then a candidate is deemed to be kept on probation for one year, and his candidature has to be accepted as one being on substantive basis. Petitioner is requesting that his substantive appointment should relate back to the date since when he had been functioning on ad hoc basis, and for this purpose he has placed reliance on a judgment in the case of Direct Recruit Class II Engineers Association vs. State of Maharashtra, AIR 1990 SC 1607.

Said judgment cited above has been considered in the case of Dr. M.A. Haque vs Union of India, 1993 (2) SCC 213, and therein it has been mentioned that the case has to be examined on the parameters of the import of statutory Rules and if the appointment has been made without following the procedure prescribed under the Rules, the question of reckoning the officiating period for determination of seniority will not arise. Again, in the case of Mohd. Israil vs. State of West Bengal, AIR 2002 SC 468 Apex Court reiterated the same view and while deciding the said case reliance has been placed upon an earlier judgments in the case of Surya Prakash vs. State of Jammu and Kshmir, AIR 2000 SC 386 and M.K. Shan Mugan vs. Union of India and others, AIR 2000 SC 2704, wherein it has been held that particular statutory Rules governing the service of an employee has to be kept in mind and in case appointment was de hors Rules, the question of reckoning of the period for the purpose of seniority and promotion would not arise.

In Shitala Prasad Shukla v. State of U.P. AIR 1986 SC 1859, the Apex Court in reference of the Rules, which govern the seniority in recognized institution has ruled as follows:

"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."

(emphasis added)

This Court in the case of Vidya Kant Tiwari vs. State of U.P. and others, 2011 (3) ESC 2074. has taken the view that benefit of regularization cannot be extended from retrospective date and such proposition would amount to doing violence with Rules and the said aspect of the matter has to be seen in the light of the context of the relevant provisions. In the said case, it has been clearly mentioned that procedure prescribed for regularization under Section 33-C shall be prospective and not retrospective and there is distinction in the two streams to which the petitioner and respondent No.5 belong. Relevant paragraph 89 of the said judgment is being quoted below:

"89.The distinction of two streams to which petitioner and respondent no. 5 belong up to 2006, was sought to be lifted by respondent no. 2 by giving effect to his order of regularization dated 9.10.2006 from a back date i. e. 1998. Section 33-C does not confer any such power upon the competent authority to make regularization retrospectively. The procedure prescribed for regularization also suggest that the order passed under Section 33-C would be prospective and not retrospective."

This Court in the case of Smt. Bharti Roy v. Deputy Director of Education, 2008 (2) ESC 911, has in reference to the scheme framed under Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998, after taking into account that a time frame has been provided for considering the matter of promotion, and noticing the inaction has accepted 13.07.1998 as the date of substantive appointment, when the matter had been considered by Regional Level Promotional Committee has held as follows:

"In view of the aforesaid, this Court has no hesitation to hold that if a recommendation is made by the Committee of Management for regular promotion of a teacher against a post within the promotion quota on the principle of seniority subject to rejection of unfit and such promotion recommended by the Committee of Management is ultimately approved by the competent authority, and in between approval is granted by the District Inspector of Schools to promotion on ad hoc basis pending regular approval by the Commission (Board) or Regional Level Committee concerned, then such promotion, for all practical purposes, has to be treated as substantive in nature, subject however, to the final approval of the promotion by the Competent Authority.

I am of the considered opinion that petitioners, who were entitled to be promoted in the year 1997 and in fact were recommended for the same by the Committee of Management cannot be denied the benefit of the length of service rendered between 1997 to 1999 only because statutory authorities have taken two years time to approve/select the petitioners for such promotion. This Court may record that it is for the purpose that the teachers may not suffer for the inaction of the authorities, a time frame has been prescribed both under Rule-14 of Rules, 1995 and Rule-14, Rules, 1998.

In any view of the matter having regard to the order of the Regional Joint Director of Education dated 27th January, 1999 referred to above, which specifically mentions the date of selection by the Regional Level Committee qua promotion of the petitioners as 13th July, 1998, this Court sees absolutely no reasons as to why said date be not taken as the date of substantive date of promotion of the petitioners, inasmuch as all other acts, which are required to be performed thereafter, namely, issuance of the appointment letter etc. are ministerial acts and for the delay in execution of the ministerial acts, candidate cannot suffer specifically when ad hoc promotion has already been granted to the promotion by the District Inspector of Schools strictly in accordance with Rule-15 of Rules, 1998."

In the present case, this much is clear that as far as Vijay Shankar Rao is concerned, he is in regular stream of lecturer's grade as far back as when order had been passed in his favour by the committee constituted to consider the promotion on papers being transmitted under Rule 14 of the U.P. Secondary Education Services Selection Board, 1998 on 12.02.2001 As far as petitioner is concerned, he continued to function as ad hoc lecturer and that too on the strength of the interim order passed by this Court, and in such circumstances to say that the petitioner's claim is at par with the claim of Vijay Shankar Rao cannot be accepted. In the matter of regularization, there is no authorityvested to pass order of regularization from retrospective date and the order of regularization, under the scheme of things provided for has to operate prospectively. In case there is inaction on the part of the authorities, in not taking up the matter, then the matter can always be complained of before the higher official or alternatively complaining inaction the incumbent can approach this Court, for issuing direction to decide the matter, and merely on account of delay. Under the scheme of things, regularization being prospective in nature, will not at all relate back to the date of ad-hoc appointment.

For the purposes of this case relevant provision of Regulation 3 of Chapter-II, which reads as follows, is also being looked into:

"3. 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;......................"

On the parameters of the Regulation quoted above, it is apparent that ad-hoc service has hardly any relevance and inter se seniority is dependent totally on the date of substantive appointment. The date of substantive appointment is the crucial determinative factor, for deciding seniority. Date of substantive appointment of the petitioner is 04.07.2009, whereas the date of substantive appointment of Vijay Shankar Rao is 12.02.2011, then by no stretch of imagination petitioner can claim that he is senior vis-a-vis Vijay Shankar Rao, tested on the touchstone of statutory regulations.

This is true that in the present case seniority list had been published and as far as Vijay Shankar Rao is concerned, he has not disputed the seniority list for the year 2003-04, 2006-07, but for the year 2007-08, he objected to the said seniority list on the premises that the same was incorrect being against the statutory provisions. Vijay Shankar Rao objected to the same before the Joint Director of Education and the Joint Director of Education fiound seniority list prepared on earlier occasion to be incorrect and against statutory provisions and initially proceeded to ask the Committee of Management to take decision, and petitioner never questioned the validity of the said order dated 04.11.2009, and thereafter, said order in question had been withdrawn, and then in writ petition filed before this Court, this Court asked the Joint Director of Education to take decision after setting aside the aforementioned order. In the facts of the present case judged from any angle and from any point of view, the two seniority list on which reliance has been placed, same has not at all been prepared as per statutory provision, and as seniority list has to be published every year, on the third occasion, objection had been filed, then it cannot be said that there had been such long drawn seniority and respondent No.5 having acquiesced to the same, as such challenge is not permissible. Sequence of events clearly demonstrates that as far as Vijay Shankar Rao is concerned, his claim for being promoted on substantive basis has been accepted on 12.02.2001, and as far as petitioner is concerned even at the said point of time he had been continuing on ad hoc basis and that too on the strength of the interim order passed by this Court, he has been shown senior. In such circumstances, both the incumbents are not at all from the same stream, and even Chapter III Regulation 2 of the Regulations framed under U.P. Act No. 2 of 1921 treats the same as different stream, inasmuch as, seniority has to be determined on the basis of substantive appointment in the particular cadre and as far as rendering of ad hoc service is concerned, same can not at all been clubbed at the point of time when seniority is to be determined. The order dated 04.11.2009, clearly noted the illegality committed in preparation of seniority list.

In view of this once it has been case of respondent No.5 that the Committee of Management had been preparing incorrect seniority list and was drawing seniority list contrary to the statutory provisions, though it may be true that the said seniority had been published on two occasions and respondent No.5 had not objected to the same, but thereafter matter had been represented before the Joint Director of Education and the Joint Director of Education had clearly taken the view that the Committee of Management was totally in error in drawing such seniority list, and consequently, the Committee of Management was asked to take decision afresh on 04.07.2009, and the said order had never been challenged by the petitioner. Said order had been withdrawn on 07.09.2011 and the same was subject matter of challenge before this Court and this Court had asked the Joint Director of Education to take decision. In view of this delay is not at all fatal, specially when delay is not of such high duration and this Court will not at all subscribe to the seniority of the petitioner, for the simple reason that even in L.T. Grade, he was more than 12 years junior to respondent No.5, and thereafter whatever life has been acquired by him, same has been on the strength of the interim order passed by this Court. Claim of seniority has to be amongst equal, and in view of this request of the petitioner that he ought to be accepted as senior cannot be accepted, looking into the way and manner in which he has continued in the institution as adhoc Lecturer, and has been thereafter substantively appointed as Lecturer in the year 2009, whereas respondent Vijay Shankar Rao stood promoted on substantive basis from the year 2001.

In view of the discussions made above, writ petition sans merit is dismissed.

Order Date :- 26.9.2012

SRY