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Subhash Chandra Jain v. State Of U.P. And Others - WRIT - A No. 21107 of 2007  RD-AH 7970 (27 April 2007)
Court No. 39
Civil Misc. Writ Petition No. 21107 of 2007
Subhash Chandra Iain
State of U.P. and others
Hon'ble V.K. Shukla, J.
Petitioner has approached this Court questioning the validity of order dated 09.05.1997 passed by Deputy Director of Education, Agra Region, Agra.
Petitioner claims that he had been appointed as C.T. Grade teacher in P.D. Jain Inter College, Firozabad on 01.08.1977. Thereafter with effect from 01.01.1986, he was absorbed as Assistant Teacher in L.T. Grade, and thereafter, he was promoted as Lecturer on 01.08.1992. In respect of respondent No. 8, Aditya Prakash Gupta, it has been contended that he was appointed as Lecturer at Girdhari Inter College, Sirsaganj, District Firozabad. Petitioner has contended that appointment of Aditya Prakash Gupta was subject matter of challenge in writ petition No.4185 of 1980, which was dismissed in default. Petitioner has contended that Aditya Prakash Gupta manipulated order dated 09.05.1997 and got himself absorbed on the substantive post of Lecturer in P.D. Jain Inter College without fulfilling the pre-requisite terms and conditions as provided under Section 16-EE of U.P. Intermediate Education Act, 1921, as Mr. Gupta was not retrenched employee. Petitioner has further contended that after absorption at P.D. Jain Inter College, Aditya Prakash Gupta was accorded placement over and above petitioner, against which petitioner has been making representations on 15.03.2000, 01.07.2006 and 14.11.2006. It has been contended that one Girish Chand Jain, who occupied the post of Principal, has attained the age of superannuation on 01.12.2006 and session benefit had been extended to him up to 30.06.2007. Petitioner has contended that he is the senior most lecturer in the college and is entitled to be absorbed as ad hoc Principal, but on account of no action being taken by the authorities concerned and there being apprehension that Aditya Prakash Gupta would be given charge of officiating Principal, petitioner preferred Civil Misc. Writ Petition No.65881 of 2006, which was decided on 14.12.2006 and the District Inspector of Schools, Firozabad was directed to decide the representation of petitioner in the event of same being moved. Petitioner has contended that he moved representation on 18.12.2006, which is still pending consideration before the District Inspector of Schools. Petitioner submits that entire claim of Aditya Prakash Gupta with regard to ad hoc or officiating promotion to the post of Principal is based on order dated 09.05.1997, as such petitioner has represented the matter before the Joint Director of Education on 16.01.2007, praying for its revocation, and as no action has been taken thereon, present writ petition has been filed.
Sri Ashok Khare, learned Senior Advocate, assisted by Sri Mukul Dubey, Advocate, has contended with vehemence, that in the present case, order dated 09.05.1997 is totally void and without jurisdiction, as such said order in all eventuality is liable to be quashed.
From the side of respondents, it has been contended that writ petition is grossly barred by latches, and further it is well settled that while deciding the matter of seniority, collaterally appointment cannot be challenged.
After respective arguments have been advanced, the factual position, which emerges is to the effect that petitioner had been functioning as Lecturer in the institution since 01.08.1992. Sri Aditya Prakash Gupta was absorbed in the present institution on 09.05.1997 in purported exercise of of powers vested under Section 16-EE of U.P. Intermediate Education Act, 1921. Petitioner at no point of time questioned the validity of the said appointment within reasonable time. From perusal of representation moved by petitioner on 15.03.2000, it is apparent that in the seniority list which had been circulated, therein petitioner had put in his signature, and thereafter on 15.03.2000, petitioner tried to raise dispute about seniority. After representation dated 15.03.2000, representations are purported to have been moved by petitioner on 01.07.2006 and 14.11.2006. These representations clearly reflect that petitioner had earlier acquiesced to the seniority, and thereafter, he was endeavouring to question the validity of the seniority list. This is well settled that while deciding seniority, collaterally, validity of appointment cannot be questioned, as has been held by Full Bench of this Court in case of Smt. Asha Saxena v. S.K. Chaudhary (F.B.) 1991 (2) UPLBEC 1202. Here, in the present case nature of representations, which have been moved, are clearly suggestive of the fact that petitioner has been questioning the seniority, and after realising that perhaps he would sustain on saidfront, he has challenged the appointment of Aditya Prakash Guptra. After 10 years, challenge to the order of adjustment is not at all sustainable, and that too when from own showing, petitioner in past had acquiesced to the seniority list, and at present he is challenging the appointment of Aditya Prakash Gupta in the name of seniority, when post of Principal in the institution is liable to fall vacant.
Consequently, writ petition lacks substance and the same is dismissed.
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