Hari Shankar Prasad vs State Of U.P. And Others
2013 Latest Caselaw 7260 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Delivery in Chamber
 
RESERVED
 
Civil Misc.Writ Petition No. 41386 of 2011
 
Hari Shankar Prasad
 
v.
 
State of U.P. And others.
 
..

Hon'ble P.K.S.Baghel, J

Challenge in this writ petition is the order of the Director of Education dated 29.6.2011 whereby he has declared the respondent no. 5 and 6 senior to the petitioner.

The essential facts of the case are that Pt. Jawahar Lal Nehru Inter College, Tilaura, Gorakhpur is a recognized institution. The education is imparted upto the level of Standard XII. It receives grant in aid from the State Government. The affairs of the institution is managed by the respondent no. 4 committee of management. The provisions of the U.P. Intermediate Education Act, 1921, the regulations framed thereunder, the U.P.High School and Intermediate College (Payment of Salaries of the Teachers and other Employees) Act, 1971 and the U.P. Secondary Education Services Selection Board Act, 1982 (for short Act No. 5 of 1982) are applicable to the institution.

It is stated that the petitioner was initially appointed as a CT grade teacher in the said institution on 8.7.1975 on ad hoc basis. He was regularized on 21.4.1977. He earned his promotion in the next grade viz L.T.grade. The grievance of the petitioner is that the respondent no.5 Kalapati Tripathi was appointed on ad hoc basis on 12.7.1977 . It is averred by the petitioner that respondent no.6 Ram Narayan Jaiswal was initially appointed on 8.7.1974 in another institution namely Jawahar Lal Inter College, Naugarh, Basti. He was also regularized on the same date i.e. 21.4.1977. Later on he was transferred in the present institution on 19.9.1985.

The management circulated a tentative seniority list wherein the respondent no. 6 was shown at serial number 6 and the petitioner was at serial no. 7 and respondent no. 5 was shown at serial no. 8 . The petitioner filed his objection before the management committee on 21.10.2010. As regards the respondent no. 6 the petitioner objected that he was transferred from another institution on 19.9.1985 to the present institution therefore service rendered by him in another institution prior to his transfer shall not be reckon for the seniority purposes.

With regard to the respondent no.5 the petitioner stated in his objection that in terms of Section 33 D of the U.P. Secondary Education Services Selection Board Act, 1982, the petitioner was entitled for promotion in L.T. grade after his completion of 10 years in C.T.grade. As the petitioner was appointed on 8.7.1975 he would had completed 10 years on 8.7.1985 whereas the respondent no.5 had completed his 10 years on 12.7.1986, thus he is junior to the petitioner. On 13.11.2010 list was finalized and no change was made in tentative list as far as the petitioner is concerned.

Feeling aggrieved by the said seniority list the petitioner preferred an appeal before the Joint Director of Education on 26.11.2010. The Joint Director of Education. The Joint Director of Education held that the petitioner , respondent no. 5 and 6 were not promoted from CT grade to LT grade but in compliance of the various Government Orders issued from time to time the CT grade was declared dying cadre and the teachers who have completed 10 years of service were treated to be absorbed in L.T. grade from 1.1.1986 or from the date of completion of their 10 years after 1.1.1986. He also found that their pay fixation was also made from 1.1.1986 therefore the regulation 3 (1) (b) of Chapter III of the Regulations which provides that if the date of substantive appointment is the same the teacher who is senior in the age shall be senior. The Joint Director of Education has set aside the order of the management dated 13.11.2010 and matter was remitted to the committee of management to consider the matter afresh.

The respondent no. 5 has filed his counter affidavit the stand taken therein is that initially he was appointed in July, 1974 and from March, 1975 he was paid his salary. However, as the appointment itself was ad hoc and till the end of Session fresh appointment was made in the next Session i.e. from July, 1976. It is further averred by the respondent no.5 that his 10 years shall be counted from July, 1974 and as such on 1.1.1986 he had completed 10 years of service, his services were regularized under section 33 -D of the Act, w.e.f. 1.1.1986 and the order of regularization has attained finality as it was not challenged by the petitioner or respondent no.6. It is further averred in the counter affidavit that with the order under section 33 D of the Act the petitioner and the respondent no.5 have been sanctioned L.T. Grade w.e.f. 1.1.1986, therefore, all consequential benefit of seniority etc. would be admissible from the said date.

The respondent no.6 in his counter affidavit has started that he was initially appointed on the post of Assistant Teacher in CT grade in Pt. Jawahar Lal Nehru Smarak Intermediate College, Basti on 1.10.1974. He was on probation for a year and he was substantially appointed on 8.10.1975 in CT grade.

At the request he was transferred from the said institution on 19th September 1985 to the present institution were he has joined on 30th September, 1985. Thus the respondent no.6 is senior to the petitioner. He has relied on a Government Order dated 14 August, 1982 wherein according to Clause 29 any teacher who has been transferred to another institution between 14.7.1981 to 19.3.1991, his earlier service will be counted in his seniority.

I have heard Sri G.K.Singh, learned counsel for the petitioner; learned Standing Counsel; Sri Narendra Pratap Singh who has put in appearance on behalf of respondent no.4; Sri A.K.Mishra, learned counsel for the respondent no.5 and Sri Balwant Singh learned counsel for the respondent no.6.

Learned counsel for the petitioner submits that respondent no.5 was appointed on 12.7.1976 thus on 1.1.1986 he had not completed 10 years of service in L.T.grade as he completed 10 years only on 12.7.1986. Therefore, the petitioner is senior to the respondent no.5. He further urged that the service rendered by the respondent no. 6 in another institution could not be taken into consideration for determining his seniority.

Sri A.K.Mishra, learned counsel for the respondent no.5 submits that no interference under Article 226 of the Constitution warranted in the present case as all the three teachers became L.T.grade teachers w.e.f. 1.1.1986.

I have considered the submission of learned counsel for the parties.

Section 33-D of Act No. 5 of 1982, provides special provision of certificate of teaching grade teachers. It reads as under :-

"33-D. Special provision for Certificate of Teaching grade teachers: Every teacher in the Certificate of Teaching grade, who is a trained graduate and-

(a) has completed ten years continuous satisfactory service in the said grade on or before January 1,1986 shall, with effect from January 1, 1986 ; or

(b) completes the said service of ten years after January1, 1986 shall, with effect from the date of completion of the said service of ten years;

be deemed to have appointed in the Trained Graduate grade."

The date of appointment of the petitioner is indisputably 8.7.1975 and his date of regularization is 21.4.1977. The Joint Director of Education has reckoned the seniority from the date of their regularization i.e. 21.4.1977. In fact the petitioner, respondent no.5 and 6 have been regularized on the same date i.e. 21.4.1977.

The Joint Director of Education has referred the Regulation 6 (1) of Chapter II and has treated their appointment in LT grade from 1.1.1986. From perusal of the impugned order of the Joint Director of Education it is manifestly clear that he has not adverted to the issue raised by the respective parties before him. He has only referred the Regulation 6 (1) Chapter II of the Intermediate Education Act, 1921. The order of the Joint Director of Education is skeletal in nature without adverting to the issues raised by the petitioner and respondent no.5 and 6 in their objections.

The Joint Director of Education has not considered the effect of Section 33 -D of the Act No. 5 of 1982. He has not considered the Regulation 3 and Regulation 6 of Chapter II of the Regulations in proper prospective. He has also failed to consider the effect of deletion of Regulation 62 vide Notification No. 22292.

For the aforestated reasons the order of the Director of Education dated 29.6.2011 is liable to be set aside and is accordingly it is set aside.

The matter is remitted to the Joint Director of Education to consider the matter afresh regarding dispute of seniority between the parties. The petitioners are at liberty to file their fresh representation before the Joint Director of Education within three weeks from the date of receipt of this order. In the event, the Joint Director of Education shall complete the said exercise within three months from the date of communication of this order.

With the aforesaid observations and order, the writ petition is finally disposed of.

No order as to costs.

Dated:3.12.2013

ssm/41386/2011