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Uma Dutt Sharma v. State Of U.P. And Others - WRIT - A No. 27103 of 2004  RD-AH 6177 (4 April 2007)
Court No. 25
Civil Misc. Writ Petition No. 27103 of 2004
State of U.P. and others
Hon'ble Sudhir Agarwal, J.
Heard Sri Sudhir Dixit, learned counsel for the petitioner and learned Standing Counsel for the respondents. Though the case has been called in the revised list and the name of Sri Rajesh Pathik shown in the counter affidavit but he is not present.
This writ petition is directed against the order dated 28.2.2004 passed by the respondent no. 2 whereby the respondent no. 5 has been declared senior to the petitioner on the post of Assistant Teacher, L.T. Grade.
In brief the facts as stated in the writ petition are that Jugal Kishore Barahsaini Inter College, Kazimabad, District Aligarh (hereinafter referred to as the "College") is a recognised College from the Board of High School and Intermediate Education, Allahabad governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act"). The petitioner was appointed as Assistant Teacher in L.T. grade vide appointment letter dated 1.7.1974 pursuant whereto he joined on 8.7.1974. However, the District Inspector of Schools vide order dated 9.8.1979 granted approval to the petitioner's appointment in C.T. grade whereagainst the petitioner filed Writ Petition No. 9305 of 1979 which was allowed by a Division Bench of this Court vide judgment dated 11.9.1984 and the order of the District Inspector of Schools was quashed and the petitioner was directed to be treated in L.T. grade. It is further stated that the respondent no. 5 was appointed in C.T. grade on 1.7.1974 and he also joined on 1.7.1974. It further appears that the institution in question came in grant in aid in February, 1978 and payment of salary was made under the provisions of Payment of Salary Act, 1971 from the state exchequer. The committee of management under Chapter-II Regulation 3 treated respondent no. 5 senior than the petitioner, whereagainst the petitioner filed appeal which has been rejected by the Director of Education, Agra vide order dated 28.2.2004 impugned in the writ petition.
The respondent no. 5 has filed a counter affidavit wherein he has alleged that the petitioner's appointment could have been made only in C.T. grade since he was not qualified to be appointed as L.T. Grade in 1974 and therefore, his seniority has to be determined treating him as having been appointed in C.T. Grade. However regarding the appointment of the respondent no. 5 himself in C.T. grade the facts are not disputed.
I have heard learned counsel for the parties and perused the record.
So far as the appointment of the petitioner is concerned pursuant to judgment of this Court dated 11.9.1984 passed in Writ Petition No. 9305 of 1979, this issue is no more open to be debated by the respondents. This Court clearly observed that the petitioner was appointed in L.T. Grade and he was also qualified to work in the said grade having obtained B.Ed. degree in 1974 as is evident from the following:-
"It is apparent that the petitioner's appointment was made in L.T. grade and he was fully qualified to work in that grade as he had obtained his B.Ed. degree in 1974. There appears to be no justification for denying that he was not appointed in L.T. grade."
It further held that there was no reason to deny approval to the petitioner in L.T. Grade and issued the following directions:-
"In the result, we allow the petition; quash the order dated 9.8.1979 and direct the respondents to treat the petitioner in L.t. grade. Since none has appeared to contest the petition, there will be no order as to costs."
In view of the aforesaid judgment it is evident that the petitioner was entitled to be treated having been appointed in L.T. Grade from the date of his initial appointment. The institution was taken in grant in aid in February, 1978 and thereafter the District Inspector of Schools approved the appointment of respondent no. 5 in L.T. Grade i.e. in the scale of 300-550 and in respect to petitioner pursuant to this Court's order the said approval has been granted. The respondent no. 2 while deciding the issue vide order dated 28.2.2004 has said that the facts regarding appointment of the respondent no. 5 as stated in the earlier judgment have to be taken final and no dispute can be raised thereof ignoring the fact that in the said writ petition there was no adjudication with respect to the pay scale in which the respondent no. 5 was appointed but the dispute was confined with respect to the grant of approval to the petitioner in L.T. Grade. The petitioner has filed a photocopy of the service book of respondent no. 5 showing that in July, 1974 when he was appointed his basic pay was Rs. 100/-. The respondent no. 5 also has filed photocopy of the said service book as Annexure-CA-4 which is the same document as has been filed by the petitioner alongwith the writ petition. On the contrary the petitioner's salary was fixed at Rs. 138/- per month which was in higher scale. The petitioner has stated in para 10 of the writ petition that the respondent no. 5 was paid salary at basic pay of Rs. 100/- in July, 1974 to February, 1975 and this fact has not been disputed in para 10 of the counter affidavit of respondent no. 5 though it is said that subsequently he was paid arrears in L.T. Grade. The respondent no. 5, however, has not placed on record his appointment letter to show whether he was appointed in L.T. Grade or C.T. Grade but from July, 1974 to February, 1975 he was paid salary at the basic pay of Rs. 100/-. It is evident that he was paid salary in a grade lower than the petitioner who was paid salary at the basic pay of Rs. 138/-Moreover, the averments of the respondent no. 5 that he was paid arrears has been denied by the petitioner in para 8 of the rejoinder affidavit and there is no material on record in support of the averment of the respondent no. 5 that he was paid the said arrears or his appointment was made in L.T. Grade from the initial date of appointment. It is no doubt true that the District Inspector of Schools after the institution came in grant in aid list, approved respondent no. 5 in L.T. Grade and pursuant to this Court's judgment dated 11.9.1984, the petitioner was also treated to be in L.T. Grade from his initial date of appointment. In this circumstances, I have no alternative but to accept petitioner's contention that he has to be treated as Assistant Teacher in L.T. Grade from the initial date of appointment i.e. 8.7.1974 though till 1975 the respondent no. 5 was paid salary in lower grade.
Hear comes the question as to the manner in which the seniority has to be determined under regulation. Regulation 3(1) Chapter-II of the Regulations obligates committee of management of every institution to cause seniority list of teachers to be prepared separately for each grade. Moreover, the seniority of teachers in grade has to be determined on the basis of their substantive appointment in that grade. If two or more teachers were appointed on the same date only then the seniority would be determined on the basis of age. Since in July, 1974 the petitioner was appointed and paid salary in higher grade than the respondent no. 5, it cannot be said that the respondent no. 5 would be senior to the petitioner merely because subsequently appointments of both the teachers was approved by the District Inspector of Schools in L.T. Grade.
In the result, the writ petition succeeds and is allowed. The order dated 28.2.2004 (Annexure-10 to the writ petition) is quashed and the petitioner is declared senior to the respondent no. 5. The respondents are directed to revise seniority list in the light of the observations and directions contained hereinabove.
No order as to costs.
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