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Sri Ram Chandra Gupta v. D.D.E. - WRIT - A No. - 18089 of 1999  RD-AH 17620 (12 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 29.10.2007
Delivered on 12.11.2007
Civil Misc. Writ Petition No. 18089 of 1999
Ram Chandra Gupta
Deputy Director of Education & others
Counsel for the Petitioner Sri K.M. Asthana
Counsel for the Respondents Sri Anil Bushan
Hon'ble V.K. Shukla,J.
Ram Chandra Gupta has filed present writ petition for quashing of the order dated 26.03.1999 passed by Deputy Director of Education(Secondary) Kanpur Region Kanpur allowing the claim set up by Rama Shanker Gupta to function as Principal of institution in question namely Sri Ram Ratan Gupta Aaudhyogik Krishi Inter College, Jheenjhak Kanpur Dehat.
Brief background of the case is that in the district of Kanpur Dehat there is an institution known as Sri Ram Ratan Gupta Aaudhyogik Krishi Inter College, Jheenjhak Kanpur Dehat. Said institution in question is duly recognized as per the provisions of U.P. Act No. II of 1921 and as said institution in question is grant-in-aid list of the State Government, as such the provisions as contained under U.P. Act No. 24 of 1971 are fully applicable to the said institution. Petitioner Ram Chandra Gupta was initially appointed on 27.09.1973 at the Inter College Bevar, Mainpuri as Science Demonstrator and was subsequently accorded status of L.T. Grade teacher in accordance with law. Petitioner applied for transfer of his service in the present institution on 16.12.1980 and said approval was accorded and petitioner was transferred on 16.12.1980. Petitioner has been contended that he has validly transferred as such he was entitled to take benefit of the entire earlier services rendered and seniority in the present institution has to be accorded to him after clubbing the services rendered by him at earlier institution. Petitioner has contended that said benefit was extended to him and in the seniority list so prepared he was placed at serial no. 2 and Rama Shanker Gupta has been placed at serial no. 4. In the year 1991 post of Principal fell vacant and at this juncture instead of handing over the charge of the Office of Principal to the petitioner the Managing Committee of the institution gave charge to Rama Shanker Gupta who was much junior to the petitioner in the seniority list. Petitioner has further contended that he as well as as Bal Ram Kushwaha filed Civil Misc. Writ Petition 28827 of 1992. During the pendency of the aforesaid writ petition, the District Inspector of Schools vide orders dated 31.01.1992 and 26.02.2992 disapproved the appointment of Rama Shanker Gupta on the ground that he is much junior. Said order has been subject matter of challenge before this Court in Civil Misc. Writ Petition No. 16634 of 1992 and this Court on 05.05.1992 asked the District Inspector of Schools to decide the matter. Thereafter on 21.09.1993 District Inspector of Schools passed order in favour of the petitioner against which Managing Committee of the institution filed Civil Misc. Writ Petition 33796 of 1993 and Rama Shanker Gupta filed Civil Misc. Writ Petition No. 37372 of 1993 and thereafter on 18.08.1993 Deputy Director of Education was directed to decide the matter. Deputy Director of Education thereafter has passed the order dated 26.03.1999 which is subject matter of challenge before this Court in the present writ petition.
Counter affidavit has been filed by Sri Rama Shanker Gupta and therein it has been contended that petitioner was transferred to institution in question by resolution dated 03.07.1980 passed by Committee of Management and said resolution was duly signed by the petitioner also and in the said resolution petitioner has categorically given undertaking that he will claim seniority from the date of his transfer as such petitioner cannot claim any benefit or advantage of his earlier service. In reference to letter dated 25.06.1976 it has been contended that same has maintained silence in respect of seniority. It has also been contended that petitioner has always been treated junior to respondent no. 4. In this background it has been contended that contesting respondent is senior as his services stood regularized with effect from 21.04.1979 in term of the provisions as contained under section 16GG of U.P. Act No. II of 1921. It has been reiterated that full opportunity has been provided to petitioner and further valid order has been passed.
To the said counter affidavit rejoinder affidavit has been filed disputing the averments mentioned therein and reiterating the averments mentioned in the writ petition .
Counter affidavit has also been filed on behalf of District Inspector of Schools and therein it has been contended that order which has been passed is rightful order.
To the said counter affidavit also rejoinder affidavit has been filed rebutting the statement of fact mentioned therein.
After pleading mentioned above have been exchanged, present writ petition is being taken up for final hearing and disposal with the consent of the parties.
Sri K.M. Asthana, learned counsel for the petitioner contended with vehemence that petitioner was appointed as Science Demonstrator and in view of the Government Order dated 25.03.1974 had acquired substantive status of L.T. Grade teachers w.e.f. The said date and his date of substantive appointment being prior to the date of substantive appointment of Rama Shanker Gupta, respondent no. 4 in all eventuality has to be accepted as senior and coupled with this petitioner has been validly transferred in consonance with the provisions as contained under Regulation 55 to 62 of Chapter III of U.P. Act No. II of 1921 as such services rendered by the petitioner at earlier institution are liable to be clubbed while computing seniority as such petitioner is undisputedly senior and entitled to function as Principal of the institution as such order passed by Deputy Director of Education based on mere surmises and conjecture is liable to be quashed by this Court.
Sri Anil Bhushan, Advocate appearing alongwith Ms. Rashmi Tripathi on the other hand contended that petitioner has taken transfer in the institution in question on the strength of resolution dated 03.07.1980 and petitioner was one of signatory of the said resolution as such petitioner is estopped in claiming benefits of his earlier service, as such writ petition deserves to be dismissed as rightful view has been taken by the Deputy Director of Education.
After respective arguments have been advanced, factual position which is emerging in the present case is that petitioner has been appointed as Demonstrator in Physics on 27.09.1973. State Government issued Government Order dated 25.03.1974 wherein it was specifically mentioned that L.T. Grade is being given to the trained Demonstrators with effect from 01.03.1969 and said Demonstrator on being accorded T.G.T Scale would be entitled for benefits in the matter of appointment, promotion and confirmation as provided under U.P. Act No. II of 1921. Said Government order has been subject matter of interpretation in the case of Smt. Reena Sarkar Vs. Regional Inspectress of Schools, Lucknow and others, reported in 1993 (3) UPLBEC 1748 and therein view has been taken that once grade has been accorded, then seniority is to be determined with reference to a particular grade, and the grade of the petitioner being L.T. Grade she will be entitled to the seniority from the date of her appointment in the Grade . Relevant paragraph-7 of the aforesaid judgment is being extracted below:
"7. The second submission of the learned counsel for the opposite party no. 3 to the effect that the petitioner was not senior most teacher in L.T. Grade must also be rejected, for the simple reason that the post of the Demonstrator is in the same grade as the post of teacher in L.T. Grade. This is evident from the Government No. 1469/XV-8-3002 (26) 1969 dated 25.03.1974 which is referred to in the letter No. 39781 76-77 dated 25.06.1976 issued by the Director of Education, Annexure CA-9. In this letter of the Director, it is also specifically, mentioned that in consequence of this L.T. Grade being given to the Demonstrators these persons will be entitled to the same benefits including the benefit of promotion etc. under the Intermediate Education Act. Therefore, the learned counsel for the petitioner is right in his submission that seniority being determined with reference to a particular grade, and the grade of the petitioner being L.T. Grade she will be entitled to the seniority from the date of her appointment in the Grade. This is borne out from Rule 9 (supra) also. According to this rule " all teachers working in the L.T. Grade shall be considered for promotion." It is not disputed that the petitioner was appointed as Demonstrator on 20.08.1973. As such she will be senior to the opposite party no. 3 who was appointed on the post of L.T. Grade teacher with effect from 01.11.1974. The petitioner has filed a seniority list alongwith her rejoinder affidavit wherein the petitioner has been shown at serial no. 3 while opposite party no. 3 has been shown at serial no. 4. In view of these facts the petitioner must be held to be senior to the opposite party no. 3."
In this background status of petitioner in consonance with the Government Order dated 25.03.1974 is of L.T. Grade teacher with effect from 27.09.1973, i.e. from the date of his initial appointment and qua the same no dispute is there. Petitioner in the present case sought for transfer under the provision as contained in Regulation 55 to 62 of Chapter-III of U.P. Act No. II of 1921. Said transfer order was passed on 16.12.1980. Under Chapter III Regulation 59-A seniority of an employee transferred from one institution to the other are also to be counted for the purposes of seniority in the institution where he is transferred. Said regulation also provides for re fixation of seniority of transferred employee in relation to other employees in the case cadre and grade. This aspect of the matter has also been answered by Division Bench of this Court in the case of Shri Deo Darbar Ashram Inter College Vs. Deputy Director of Education and others reported in 1986 UPLBEC 857. Relevant paragraph 11 of the aforesaid judgment is being quoted below:
" 11. Under Regulation 59-A of Chapter III of the Regulation the services of an employee transferred from one institution to the other are also to be counted for the purposes of seniority in the institution where he is transferred. The said regulation also provides for refixation of seniority of transferred employee in relation to other employees in the same cadre and grade. It appears that the seniority of Dr. Barister Singh vis-a-vis other Lecturers and Dr. Hazari Lal Varma yas not yet been decided in the light of Regulation 59-A. The Deputy Director of Education while deciding the appeal/representation was to consider the question of seniority which could not have been decided without taking the same in the light of Regulation 59-A and he omitted to do so. The Deputy Director of Education committed manifest error of law in omitting to consider the correct legal factual position in deciding the question of seniority. As necessary material has not been placed on the record it is not possible to decide the question in this writ petition. The writ petition thus, deserves to be allowed and the order dated 2.6.1983 passed by the Deputy Director of Education a copy of which has been annexed to the writ petition as Annexure-8 is quashed. The Deputy Director of Education is directed to restore back the said reference and decide the same again but in accordance with law in the light of observations made above expeditiously. As Annexure-6 to this writ petition dated 2.4.83 that is the interim order was without jurisdiction, the same is also quashed."
In the present case as far as Rama Shanker Gupta is concerned he has been appointed on adhoc basis on 01.04.1976 and thereafter under the provisions of Section 16-GG of U.P. Act No. II of 1921 his services were regularized w.e.f. 21.04.1977 and as such he has acquired substantive status of L.T. Grade teacher on 21.04.1977. Dispute has arisen when the post of Principal has fallen vacant on 18.08.1991. Petitioner claims that he was shown to be senior in the seniority list whereas Rama Shanker Gupta claims that he was shown senior in the seniority list. Deputy Director of Education in the present case has not at all tried to find out as to whether there existed any undisputed seniority list inter se parties circulated by the Management in consonance with the provisions as contained under Chapter II Regulation 3 of the U.P. Act No. II of 1921, to which both the parties had acquiesced. Before this Court as both the side are claiming that seniority list was supplied to them showing them as senior then this aspect of the matter requires examination on the basis of evidence available on record and in case it is found that there existed list, where both the persons have signed, then action be taken accordingly as per seniority status. Deputy Director of Education in the present case has totally misdirected himself as seniority is to be determined keeping in view the provision as contained in Chapter-II of Regulation 3, of U.P. Act No. II of 1921 wherein various guidelines have been provided for determining seniority of a particular incumbent in particular grade on the basis of his date of substantive appointment in the said grade.
Here from the record which has been produced in case if earlier services of the petitioner are to be clubbed then petitioner certainly will have a march in seniority over and above Rama Shanker Gupta as date of substantive appointment of petitioner is undisputedly prior to the date of substantive appointment of Rama Shanker Gupta in L.T. Grade. However here specific case has been set up by Management as well as Ram Shanker Gupta that petitioner at the point of time when he applied for transfer, he had agreed that seniority will be given up. Application filed on behalf of the petitioner does not mention any such fact. Resolution passed on 03.07.1980 does mention this fact that petitioner would not claim seniority. It has been specifically stated that petitioner is one of the signatory of the resolution. This specific statement has been mentioned by the Management before the Deputy Director of Education. As far as petitioner is concerned he is disputing this statement of fact by contending that he is not signatory on resolution dated 03.07.1980. This is essentially question of fact. Petitioner has contended that in term of regulation 59-A he was entitled for clubbing of earlier service and determination of seniority. It is true that statutory provisions do provide for conferment of benefit of being clubbed, the earlier service rendered and redetermination of seniority, but once said right has been given up by signing on resolution dated 03.07.1980 then certainly petitioner cannot claim to get benefit of earlier service rendered. Transfer is feasible only when there is resolution of Managing Committee of the institution. Once you get yourself transferred on the explicit understanding that you will not disturb of seniority of others in the institution, and on said condition you enter the institution, then you can not be permitted to turn your back, and state that law confers such right, and benefit of same be extended. Principle of estoppel is clearly attracted, once finding is returned that petitioner was signatory on resolution dated 03.07.1980. But once petitioner is not signatory to the said resolution then as per Regulation 59-A of Chapter III, benefit of earlier service is liable to be extended. Deputy Director of Education in the present case has not given finding on this aspect of the matter while this aspect of the matter went to the root of the matter, inasmuch as, on other score it was petitioner who was to be treated senior unless seniority was determined inter se parties as mentioned in earlier part of judgment. In this background as no objective consideration has been done on this aspect of the matter and Deputy Director of Education has totally misdirected himself while dealing with the matter and has not considered the dispute in its correct prospective. Consequently, order dated 26.09.1999 passed by Deputy Director of Education is quashed and set aside. Writ petition is allowed. Matter is remitted back to the Joint Director of Education for being decided afresh after affording opportunity of hearing to the petitioner as well as Rama Shanker Gupta within next two months from the date of presentation of certified copy of this order. Till the matter is not decided, interim arrangement which is continuing of the post of Principal shall remain to continue and same shall abide by fresh decision which would be taken by the Joint Director of Education.
No orders as to cost.
Dated: 12th November, 2007
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