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KM.IQBAL HAIDAR versus REGIONAL JOINT DIRECTOR OF EDUCATION & OTHERS

High Court of Judicature at Allahabad

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Km.Iqbal Haidar v. Regional Joint Director Of Education & Others - WRIT - A No. - 1458 of 2001 [2007] RD-AH 17950 (16 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No.1458 of 2001

Km. Iqbal Haider Vs. Regional Joint Director of Education,

Agra Region, Agra and others

*****

Hon'ble V.C. Misra, J.

Ms. Rashmi Tripathi, Advocate holding brief of Sri Anil Bhushan, learned counsel for the petitioner, learned standing counsel on behalf of respondents 1 and 2 and Sri R.S. Mishra learned counsel for the respondent no.4 are present. No one is present on behalf of respondent no.3-Committee of management and respondent no.5. Counter and rejoinder affidavits have been exchanged on behalf of respondents 4 and 5. On the joint request of learned counsel for the parties, this writ petition is being decided finally at the admission stage itself in terms of the Rules of the Court.

This writ petition has been filed challenging the impugned order dated 26.12.2000 (Annexure-8 to the writ petition) passed by the Regional Director of Education, Agra Region, Agra-respondent No.1 by which the name of the petitioner has been deleted from the list dated 29.12.1999 (Payment of salary list) and in her place the name of Sri Ram Autar Sankhwar has been added.

The facts of the case in brief are that the petitioner was appointed on the post of Assistant teacher in C.T. Grade (Urdu) on 17.7.1981 in the institution run by respondent no.3 which was subsequently upgraded up to High School in 1984. Respondent No.5-Hari Om Gupta was also appointed in C.T. Grade in the institution w.e.f. 8.7.1981. On 19.7.1984, the approval was granted to the petitioner as well as respondent No.5 under the 'three language formula' on C.T. Grade. On 20.1.1986, the Director of Education passed an order to the extent that when the post for High School would be created the teachers already working under the 'three language formula' will be included in the sanction. On 24.2.1988, the petitioner was paid salary out of the grant release for the years 1987-1983 under the 'three language formula'. On 4.6.1991, the Director of Education passed an order creating three posts of Assistant Teachers in L.T. Grade, four posts in C.T. Grade and one post of Principal in the institution. When the grant of payment of salary for the year 1989-90 was not released to the petitioner under the 'three language formula' she filed Writ Petition No.14297 of 1990 wherein an interim order dated 6.12.1993 was passed for releasing the salary. On 2.8.1991 the petitioner was promoted on the post of Assistant Teacher L.T. Grade. It is alleged that Sri Ram Autar Sankhwar-respondent no.4 a Scheduled Caste candidate was appointed in the institution in C.T. Grade teacher on 3.11.1980 and his appointment was approved on 22.5.1992 and thereafter on 11.5.1992 he was granted approval in L.T. Grade. Thereafter the institution in question was taken in grant in aid by the State Government w.e.f. 1.12.1998 and the name of the petitioner was shown at serial no.8 to which an objection was filed by the petitioner on 23.12.1999 before the Director of Education and the Regional Joint Director approved the payment of salary to the institution. Since then the petitioner is being continuously paid salary showing her name at Serial No.7 (Annexure-12 to the writ petition).

On the ground that there were only seven sanctioned posts respondent no.1 included the name of respondent no.4 and removed the name of petitioner retaining the name of Sri Hari Om Gupta-respondent no.5 who is the junior to the petitioner on the basis of wrong facts that the petitioner was appointed on 17.7.1981 and was approved on 11.5.1992 in C.T. Grade whereas Sri Hari om Gupta-respondent no.5 was appointed on 8.7.1981 and approved on 19.7.1984 though the petitioner was approved on 19.7.1984 in C.T. Grade along with Sri Hari Om Gupta and was subsequently promoted and approved on 11.5.1992 in the L.T. Grade and not C.T. Grade.

Learned counsel for the respondent No.4 has referred to the decision in the case of Keshav Ram Agnihotri Vs. District Inspector of Schools, and others reported in (1998) 4 SCC 72, wherein it has been held that seniority inter se would be determined on the basis of date of appointment and not on the date of approval. From the perusal of the said Judgment, I find that the same is not applicable in the present case and is distinguishable on the facts and circumstances of the case.

I have perused the record and heard learned counsel for the parties and find that the petitioner was appointed in L.T. Grade on 2.8.1991 and approved on 11.5.1992 whereas respondents 4 and 5 both were only appointed against C.T. Grade and approved as such on C.T. Grade whereas the respondent no.4-Sri Ram Autar Sankhwar was approved on 22.5.1992 in C.T. Grade. The petitioner was senior to both of them on being promoted to L.T. Grade, whereas respondents no.4 and 5 continued as teachers in the C.T. Grade. It was only subsequently that C.T. Grade was declared a dying cadre and the respondents 4 and 5 were absorbed in the L.T. Grade.

Even if seniority inter se the petitioner and respondent no.5 is considered at the C.T. Grade level then both the respondent no.5 and the petitioner were approved as C.T. Grade teachers on 19.7.1984.

Section 16-G of U.P. Intermediate Education Act, 1921 quoted below :-

16-G, Conditions of service of Heads of Institutions, teachers and other employee.- (1) Every person employed in a recognized institution shall be governed by such conditions of service as may be prescribed by regulations and any agreement between the management and such employee in so far as it is inconsistent with the provisions of this Act or with the regulations shall be void.

In my view, a combined reading of the aforesaid provisions of Section 16-G of the Act and Regulation 3 (1) (bb) of the Act, contemplates that the seniority of a teacher would be determined from the date of the approval granted by the Inspector and cannot be taken from the date of the appointment or from the date of joining since a person does not acquire the status of a teacher unless the approval of his appointment is granted by the Inspector. It is settled law that the appointment even if made prior to the grant of approval or deemed approval in accordance with law, would become effective only from the date of approval or deemed approval.

In support of his case, learned counsel for the petitioner has relied upon the following decisions:

- Bir Bahadur Singh Vs. Shyam Sunder Shukla and others, reported in {(2004) 3 UPLBEC 2348};

- Suresh Dubey Vs. District Inspector of Schools, Ballia and others, reported in {(2004) 2 UPLBEC 1876};

- Smt. Omi Bala Nigam Vs. Regional Inspectress or Girls Schools, Jhansi Region, Jhansi and others, reported in 1986 UPLBEC 69;

- Lalit Mohan Misra and another Vs. District Inspector of Schools and others, reported in 1976 A. L.J.-1025, and

- Bahadur Singh Gaur Vs. District Inspector of Schools, Kanpur and others, reported in {(1995) 3 UPLBEC 1751}.

In Prabhu Narain Singh Vs. Deputy Director of Education, Varanasi, 1977 ALR 381, it was held that the person does not acquire the status of a teacher unless the approval of his appointment was granted by the Inspector and the mere fact that he was working in the institution would not confer the status of a teacher could not be conferred on the person. In Lalit Mohan Mishra Vs. District Inspector of Schools, 1979 ALJ 1025, it was held that a person gets a status of a teacher only from the date of the approval other. In Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad (1998) 3 UPLBEC 1722, a Division Bench of this Court held "appointment if made prior to approval or deemed approval, would become effective from the date of approval".

In Smt. Omi Bala Nigam Vs. Regional Inspectress of Girls Schools, Jhansi Region, Jhansi, (1986) 1 UPLBEC 69, the Court held that where the date of approval was the same, the age factor would be the determining factor and the date of joining became irrelevant. The said Judgment squarely applies to the present facts and circumstances of the case.

In Bahadur Singh Gaur Vs. District Inspector of Schools, Kanpur and others (1995) 3 UPLBEC 1751, it was held that the date of joining is not the determining factor for deciding the seniority and that the age is relevant factor for determining the seniority where the appointment of two persons had been approved on the same date.

Regulation 3 of Chapter (II) of the Regulations framed under the Act provides for determination of the seniority of the teachers. Regulation 3 (1)(bb) reads as under:-

"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) ........

(b) .......

(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 be reckoned form 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".

The Regulations framed under Chapter II of the Regulations 3 (1)(bb) of U.P. Intermediate Education Act, 1921 clearly provides the determination of the seniority of the teachers in the event the approval of the appointment of the teachers is of the same date the inter se seniority would be determined on the basis of age whosoever is older. In the present case the respondent no.5 was born on 5.5.1956 whereas the petitioner was born on 2.10.1952. Thus, even then the petitioner is senior to respondent no.5. The respondent no.1 has wrongly deleted the name of the petitioner from the list of the seven Assistant Teachers retaining Sri Hari Om Gupta holding him to be senior to the petitioner and has thus committed an error apparent on the face of the record.

Under the above said facts and circumstances of the case, the impugned order dated 26.12.2000 (Annexure-8 to the writ petition) is hereby quashed. The petitioner's name shall be placed at Serial No.7 senior to respondent No.5-Hari Om Gupta.

The writ petition is allowed. No order as to costs.

November 16, 2007

Hasnain


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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