Umesh Chandra Awasthi vs State Of U.P. & Others
2017 Latest Caselaw 2906 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - A No. - 65381 of 2009
 

 
Petitioner :- Umesh Chandra Awasthi
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Alok Dwivedi
 
Counsel for Respondent :- C.S.C.,Lal Ji Yadav,Neeraj Tripathi,Rajesh Yadav,V.B. Mishra
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri Alok Dwivedi, learned counsel for the petitioner and the learned Standing Counsel for the respondent nos. 1, 5, 6 and 7, Sri Ved Vyas Mishra, learned counsel for the respondent nos. 3 and 4. Notice has been accepted on behalf of respondent no. 2 by Sri Jainendra Pandey, holding brief of Sri Neeraj Tripathi. Sri Rajesh Yadav, Advocate has filed counter affidavit on behalf of respondent no. 9. However, no one is present on behalf of the said respondent.

This writ petition assails the order of the Chancellor deciding a dispute of seniority by the impugned order dated 19th February, 2009 whereby the respondent no. 9 has been declared to be senior as against the petitioner on account of his being senior in age as they had been appointed substantively on the same date i.e. 1st December, 1980.

Learned counsel for the petitioner contends that the aforesaid finding by the Chancellor is against record and is perverse inasmuch as the date of substantive appointment of the petitioner is 1st December, 1980 as approved vide order dated 23rd December, 1981 for which reliance has been placed, copy of which is Annexure-2 to the writ petition whereas the appointment of the respondent no. 9 was on ad-hoc basis with effect from 14th February, 1982 as per the approval order dated 24th March, 1982. He was further given the benefit of substantive appointment after relaxation in his qualification with effect from 5th April, 1983. The contention is that it is only from the date of grant of relaxation or exemption from qualification that the respondent no. 9 would have an accrued right of substantive appointment and not from any date prior to that which was only on ad hoc basis.

A Division Bench of this Court entertained the writ petition and relying on Hon'ble the Apex Court judgment in the case of Shitla Prasad Shukla Vs. State of Uttar Pradesh, 1986 Supreme Court Cases (Supplementary) page-185 granted an interim relief on 3rd December, 2009, which is extracted hereinbelow:-

"Sri Lalji Yadav Advocate has put in appearance for respondent no.8 and Sri Rajesh Yadav for respondent no.9. Mr.Neeraj Tripathi has put in appearance on behalf of respondent no.2. Sri V.B.Mishra has appeared for respondents no.3 and 4. Learned Standing counsel has accepted notice on behalf of respondents no.1,5,6 and 7. The respondents are allowed three weeks time to file counter affidavit. Rejoinder affidavit be filed by the date fixed.

Learned counsel for the petitioner challenging the order of Chancellor dated 19.11.2009 deciding the dispute of seniority between the petitioner and respondent no.9 contended that although the Chancellor had returned a finding that no representation had been submitted by respondent no.9 but even after recording the said finding proceeded to decide on merit. It is further contended that the petitioner and respondent no.9 were appointed after advertisement dated 1.12.80 but the appointment of respondent no.9 was not approved which could be approved only on 5.4.1983 when exemption was granted to him. It is contended that substantive appointment of the petitioner was earlier and respondent no.9 cannot be treated substantially appointment earlier than 5.4.1983. It is submitted that Statute 18.11(III) is not relevant since the said Statute shall be applicable only when the substantive appointment of two teachers is same. The reliance has been placed of the decision of the Hon'ble Supreme Court reported in 1986 SCC-Supp-185 Shitla Prasad shukla Vs. State of Uttar Pradesh for the proposition that the respondent no.9 is entitled to claim the seniority only from date of grant of exemption. Learned counsel for the Chancellor submitted that appointment of both the persons was on the same day i.e.1.12.80. Hence the Chancellor has rightly referred statute 18.11(III) and Sri Rajesh Yadav counsel for the respondent no.9 has also supported the order of Chancellor that appointment is to be treated on same date i.e.1.12.1980 and subsequent approval was also granted to the respondent no.9 on 5.4.83. Both the persons claimed seniority from the date of initial appointment i.e.1.12.80. The substantive appointment of respondent no.9, is only from the date when the approval was granted by the Executive Council of the University w.e.f. 5.4.1983 copy of which has been brought on record as Annexure-6 to the writ petition approving the appointment of the respondent no.9 on 5.4.1983. We are satisfied that The Chancellor had not decided the said issue, although it was noticed by the Chancellor that approval was granted to the respondent no.9 on 5.4.1983. thus the petitioner prima facie has made out a case for grant of interim relief.

List this petition on 5.1.2010. Looking to the nature of dispute raised in the case the writ petition may itself be decided on the next date.

Till the next date of listing the impugned order dated 19.11.2009 passed by Chancellor respondent no.2, shall remain stayed."

The University has filed a counter affidavit and so has the contesting respondent no. 9. We have heard Sri Ved Vyas Mishra for the University who contends that keeping in view the date of initial appointment and in view of the provisions of Statute 18.11(III), the respondent no. 9 was treated to be senior being senior in age. No one is present on behalf of respondent no. 9 but the counter affidavit filed on his behalf alleges that the respondent no. 9 had been appointed with effect from 1st December, 1980 and in such circumstances, the said date of appointment should be the substantive date of appointment.

We have gone through the pleadings as well as the decision relied on by the learned counsel for the petitioner and the relevant Statutes.

It is evident that as per the Statute 18.11, the date from which seniority is to be counted is the date of appointment in substantive capacity as is evident from Statute 18.10 and 18.11. This remains undisputed by the respondents. The question is as to what would be the date of substantive appointment.

Under the facts and circumstances that emerge in the present case, it is evident that the appointment of the petitioner was approved on substantive basis with effect from 1st December, 1980. The order of approval dated 24th December, 1980 is Annexure-2 to the writ petition. The respondent no. 9 was granted approval on 24th March, 1982 with a clear rider stipulated in the said approval order that in terms of the Resolution of the Executive Council dated 14th February, 1982, the respondent no. 9 is granted an approval against his ad-hoc appointment for the session 1981-82 only. The aforesaid document which has been filed as Annexure-4 to the writ petition could not be successfully disputed by any of the respondents including the University. It is, thus, evident that the respondent no. 9 was not appointed in substantive capacity with effect from 1st December, 1980 as alleged by him. The Chancellor while proceeding, erroneously construed the order and arrived at a conclusion treating the appointment of the petitioner and respondent no. 9 of the same date i.e. 1st December, 1980 in spite of the fact that he has noted the relaxation granted to the respondent no. 9 with effect from 5th April, 1983. The said relaxation order which is Annexure-6 to the writ petition clearly records that the respondent no. 9 shall be treated appointed in substantive capacity on regular basis with effect from 5th April, 1983 only. It is, thus, evident that the order of the Chancellor cannot be sustained. The writ petition, therefore, deserves to be allowed.

The order dated 19th February, 2009, Annexure-15 to the writ petition is quashed. It is held that the petitioner on account of his earlier appointment in substantive capacity would stand senior to the respondent no. 9 as observed hereinabove.

The writ petition is accordingly allowed.

Order Date :- 2.8.2017

Sumit S