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RAM PRAKASH MISHRA versus STATE OF U.P. THRU' SECY. MADHYAMIK SHIKSHA & OTHERS

High Court of Judicature at Allahabad

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Ram Prakash Mishra v. State Of U.P. Thru' Secy. Madhyamik Shiksha & Others - WRIT - A No. 22947 of 2005 [2005] RD-AH 5888 (17 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved Judgment

Civil Misc. Writ Petition No. 22947 of 2005

Ram Prakash Mishra Vs. State of U.P. and others

****  

Hon'ble A.P. Sahi, J

The dispute in the present writ petition pertaining to the claim of promotion of the petitioner which has not been considered by the Respondent - Joint Director of Education and the Respondent No.5 - Ram Chandra Gupta has been extended the benefit of promotion even though he is junior to the petitioner as alleged in the writ petition. The grounds of challenge are that the impugned order has been passed without deciding the claim of seniority of the petitioner over and above the Respondent No.5 without considering the claim of promotion of the petitioner and passing the impugned order of promotion in favour of the respondent no.5 in violation of the principle of natural justice. This challenge has been resisted by the Respondent No.5 on the ground that the challenge to the question of seniority is highly belated and cannot be permitted to be raised in collateral proceedings pertaining to claims of promotion. It has further been urged on behalf of the respondent no.5 that this cannot be permitted more so without there being any challenge to the order of regularization in favour of the respondent no.5.

Sri R.K. Ojha has been heard for the petitioner and Sri Ashok Khare, learned Senior Advocate, for the respondent no.5 and learned Standing for the respondent nos. 1 to 3. The respondent no.5 has filed a counter-affidavit to which a rejoinder-affidavit has been filed by the petitioner and written submissions have also been placed before the Court on their behalf.

The undisputed facts are that the petitioner was appointed on ad hoc basis against a leave vacancy which arose on account of the promotion of Sri Shiv Shanker Tiwari, a L.T. grade Teacher, who came to be selected and appointed as Principal in another institution. The said vacancy was converted into a substantive vacancy when Sri Tiwari finally resigned from his post as L.T. grade teacher on 30.6.1987, the appointment of the petitioner against the said vacancy was made on 1.11.1985 after prior approval from the District Inspector of Schools which was granted on 30.10.1985. Thus, the date of appointment of the petitioner is 1.11.1985.

The respondent no.5 - Ram Chandra Gupta was appointed on ad hoc basis against a short term vacancy as a LT grade Teacher which arose on account of the ad hoc promotion of one Sri Raj Narain Gupta and whose promotion on permanent basis was recommended to the Commission under 50 per cent promotion quota. The said vacancy against which the respondent no.5 had been appointed became a substantive vacancy on account of the permanent promotion of Sri Raj Narain Gupta. The appointment of respondent no.5 was acknowledged by the District Inspector of schools w.e.f. 1.10.1988 as is evident from the order of approval dated 27.10.1989, thus, the date of appointment of the respondent no.5 is 1.10.1988.

The petitioner as well as the respondent no.5 were, thus, appointed on the respective dates referred to herein above i.e. 1.11.1985 and 1.10.1988 respectively on ad hoc basis against short term vacancies which were later on converted to substantive vacancies in the circumstances indicated herein above.

From the records which are undisputed it is evident that the case of the petitioner as well as the respondent no.5 were considered for regularization. The order of regularization in favour of the petitioner is dated 2.2.1993 (Annexure-5 to the writ petition). The benefit of regularization to the respondent no.5 was extended by the order dated 25.10.1993 which is Annexure-6 to the writ petition. The provision which would be applicable for extending the benefit of such regularization was brought about by the induction of Section 33-B (U.P. Act No.1 of 1993) in the U.P. Secondary Education Services Selection Board Act 1982 as amended by U.P. Act No. 15 of 1995. Section 33-B contemplates the regularization of such Teachers who were appointed in the LT grade on or before 14.5.1991 either by promotion or by direct recruitment against a short term vacancy in accordance with the second removal of difficulties order and which vacancy was subsequently converted into a substantive vacancy. It also contemplates such cases in which Teachers were appointed on ad hoc basis against the substantive vacancies as well. However, in the instant case, admittedly the vacancies to begin with were short term vacancies and were later on converted to substantive vacancies. Accordingly, the case of the petitioner and the respondent no.5 has to be judged in terms of Section 33-B (1)(a)(i). The teachers falling in such a category have to be recommended for substantive appointment in order of seniority as determined from the date of their appointment as contemplated under Sub-section 3 (a) of Section 33-B.

The contention of the petitioner is that the respondent no.5 after the order of regularization was incorrectly placed in the seniority list above the petitioner even though he was almost 3 years junior to the petitioner. This seniority list which was published on 1.7.1996 gave rise to the dispute of seniority in respect whereof the petitioner contends that a representation was filed by him on 8.7.1996 which remains unattended so far and no orders have been passed by any competent authority. The petitioner contends that in the absence of any adjudication in this respect, the respondents could not have proceeded to consider the claim of promotion of respondent no.5 over and above the claim of the petitioner.

This dispute gained proportion when a chance of promotion to the post of Lecturer in Sociology was sighted by the petitioner and the respondent no.5 on the post of Lecturer in Sociology which fell vacant in the year 2000. The authorities were apprised of this claim and the District Inspector of schools wrote a letter on 20.6.2001 to the Joint Director of Education (Annexure-21 to the writ petition) stating therein that the respondent no.5 had obtained his order of regularization on the basis of incorrect facts and, as such, appropriate action deserves to be taken. The claim of promotion of the respondent no.5 was returned back by the District Inspector of Schools to the Management of the institution on 18.6.2003 wherein it has been stated that since the seniority as reflected in the claim is not acceptable, therefore, the claim of promotion cannot be considered; this letter is Annexure-22 to the writ petition. The Joint Director of Education issued another direction on 4.11.2004 to the District Inspector of Schools to examine the claims and submit an appropriate report for taking action against erring officials. This was followed by another order of the Joint Director of Education dated 24.12.2004 (Annexure-24 to the writ petition) to the District Inspector of Schools whereby the said authority was directed to decide the claim as represented by the petitioner before the Additional Director of Education.

The petitioner contends that without deciding the said issue and putting the petitioner to notice in this respect, the Joint Director of Education appears, to have relying on the same report dated 26.8.2004 of the District Inspector of Schools, proceeded to accept the claim of promotion of the respondent no.5 as Lecturer in Sociology. It is urged that once the Joint Director of Education himself had issued directions to the District Inspector of Schools for taking a decision in the matter and submitting his report, there was no occasion for the Joint Director of Education to have proceeded to pass the impugned order on the basis of an earlier report. According to the petitioner, the impugned order is in violation of principle of natural justice, in violation of the provisions of Section 33-B of 1982 Act referred to herein above and contrary to the earlier reports of the District Inspector of Schools submitted in the year 2001 and 2003 referred to herein above. It has also been submitted that the impugned order does not contain any reason for either accepting the claim of the respondent no.5 nor does it disclose any consideration or any reason for rejecting the claim of the petitioner.

I have heard the learned counsels on the issues raised and have also perused the written submissions placed before the Court.

The first question which is required to be determined is the applicability of the Rules to the controversy at hand. From the facts that have been placed on the record, the question of regularization of the petitioner and the respondent no.5 has to be determined on the basis of their nature and date of appointment. From the undisputed facts referred to herein above, it is evident that both the petitioner and respondent no.5 were appointed on ad hoc basis initially against short term vacancies which were later on converted to substantive vacancies. The only provision under which the parties to the litigation could have claimed regularization is Section 33-B(1)(a)(i). It is further provided in the said Section that a Selection Committee constituted therein shall consider the case of every teacher and then recommend the names to the Committee of Management for appointing such a candidate on a substantive basis. While doing so, the recommendations shall be made for appointment on substantive basis in order of seniority as determined from the date of their appointment. Thus, the seniority inter se between Teachers who are being extended the benefit of regularization has to be determined from the date of their appointment. The date of appointment, therefore, referred to in the aforesaid provision would be the date of their appointment on ad hoc basis. In the instant case it is undisputed that the petitioner was appointed on 1.11.1985 and the respondent no.5 was appointed on 1.10.1988. Thus, the placement of the petitioner, who was appointed almost 3 years prior to the respondent no.5 has to be over and above the respondent no.5. This question was not determined by the Joint Director of Education and the contention of the petitioner to this extent is correct. The Rule which requires the determination of seniority from the date of appointment, thus, supports the petitioner. Apart from this, the petitioner was approved as an adhoc appointee by the District Inspector of Schools on 30.10.1985 whereas such an approval in favour of the respondent no.5 is of 27.10.1989. In this view of the matter also, the petitioner stands senior to the respondent no.5. The Apex Court in the case of K.R. Agnihotri Vs. District Inspector of Schools, 1998 (4) SCC 72, has upheld the claim of seniority in some what similar circumstances which decision also comes to the aid of the petitioner.

It is also almost evident that the proceedings for promoting the respondent no.5 have been taken behind the back of the petitioner and, as such, finalization of the same without any notice or opportunity to the petitioner by the Joint Director of Education is clearly in violation of the principle of natural justice.

Another notable feature of this case is that the Committee of Management itself had put in abeyance the claim of promotion of the respondent no.5. It is not understood as to why the Joint Director of Education proceeded to accept the claim of respondent no.5 without putting the Committee to notice as well. The action of the Joint Director of Education is, therefore, vitiated on this score also.

The argument that the respondent no.5 being senior in age deserves to be accepted as senior to the petitioner cannot be accepted in view of the findings recorded herein above and herein after. Seniority has to be determined in accordance with the Rules and not otherwise. It is only in absence of Rules that seniority can be determined on the basis of the law as understood generally in such matter. However, in the instant case, the respondent no.5 contends that seniority can only be determined under Regulation 3 of Chapter II of the U.P. Intermediate Education Act and not otherwise. According to the respondents, there cannot be 2 Rules for governing seniority and that the provisions of Section 33-B (3)(a) is not at all applicable and the written submissions further add that there does not exist any discernable purpose for introducing the aforesaid provision relied on behalf of the petitioner. The aforesaid argument on behalf of the respondents cannot be countenanced as there is no challenge to the said Rule. Even otherwise it is the respondent no.5, who would stand to loose in case he challenges the very provision under which he can claim regularization. The purpose to introduce the aforesaid Rule pertaining to determination of seniority was to resolve any doubt in this regard. The petitioner and the respondent no.5 are entitled for regularization under Section 33-B as already held herein above. Their inter se seniority has to be determined under Section 33-B in order to fix their respective places as between themselves. In the instant case, there is no dispute between candidates, who have been recruited from different sources. To illustrate the same in case there was a dispute of seniority between a candidate appointed through the Commission/ Board and a candidate who has entered the main-stream cadre by regularization, then in that event such a dispute would be referable to regulation 3 of Chapter II of the Regulation framed under the U.P. Intermediate Education Act, 1921 because in such cases both the candidates will be permitted to claim seniority from their date of substantive appointment. The period of officiation or period of ad hoc appointment in such matters would be of no relevance as Regulation 3 of Chapter II does not contemplate the counting of such services. The composite seniority list of all the Teachers of the institution, therefore, have to be determined in accordance with the Chapter II Regulation 3.

However, in the instant case, the dispute is only between the petitioner and the respondent no.5 about their placement in accordance with the recommendations as between themselves only and, as such, their order of seniority as between themselves has to be determined from the date of their appointment as contemplated under Section 33-B. There is no scope or even necessity of applying Regulation 3 of Chapter II of the Regulation framed under the U.P. Intermediate Education Act 1921 which provisions are not at all attracted.

From the illustration given herein above, it can also be safely concluded that there is absolutely no conflict between the 2 provisions of seniority and both operate in different fields. There is no question of any implied repeal or supercession of the aforesaid 2 provisions by each other at least in the facts of the present case. It is also not a case of overlapping at all of the provisions as suggested on behalf of the respondents.

One of the submissions that has been advanced on behalf of the respondents is that the question of seniority cannot be taken to a device for questioning the validity of regularization of the respondent no.5. To this, the learned counsel for the petitioner urged that even assuming for the sake of argument that the question of appointment/  regularization cannot be gone into yet the claim of seniority of the petitioner has to be adjudicated and which admittedly has not been adjudicated in spite of protest by the petitioner before the authorities concerned who have not yet decided the matter. The aforesaid contention of the learned counsel for the petitioner is correct as is evident from the facts brought out on record. It is not a matter of collateral challenge but it is a clear case where no determination has been made in accordance with law in spite of the issue having been raised before the authorities concerned. The Joint Director of Education in particular, who has proceeded to favour the respondent no.5 by the impugned order, did not determine the question himself even though he had remitted the same to the District Inspector of Schools. The Joint Director of Education ought to have either obtained a determination in this regard or should have decided the matter himself as he happens to be the Chairman of the Selection Committee entitled to make recommendations for regularization as well as considering the claim of promotion which is presently involved in the instant case. The Joint Director of Education, having failed to exercise the jurisdiction vested in him, cannot be a ground for the respondent no.5 to urge that the matter cannot be challenged and considered. Even otherwise, the delay is on the part of the authorities and is not referable to the conduct of the petitioner. This would also be evident from the correspondence dated 20.6.2001 and 18.6.2003 (Annexure-21 & 22 of the writ petition). The reference to the case of V.N. Sharma Vs. District Inspector of Schools, Etawah, and others, (1986) UPLBEC 44, by the learned counsel for the respondent on this issue is, therefore, misplaced and is not at all applicable on the facts of this case.

The contention on behalf of the respondents that the petitioner cannot be permitted to refer to Section 33-B as the relevant Section for regularization when the benefit has been given under Section 33-A, is a misconceived argument. There cannot be any estoppel against Statute on the facts of this case. It is evident that the benefit of Regularization was referable only to Section 33-B and not to Section 33-A. In such circumstances, it is only the date of regularization which would stand altered and which would not prejudice either the claim of the petitioner or the respondent no.5 as both of them were entitled to be regularized only under Section 33-B  and not 33-A.

The last submission on behalf of the respondents that in view of the ratio of the decision in Sudama Singh Vs. Nath Saran Singh and others, (1998) 1 SCC 57, the respondent is entitled to be treated senior is also an argument in futility. The provisions under consideration in the said case was a provision of regularization introduced about 30 years hence incorporated in the U.P. Intermediate Education Act 1921 as Section 16-GG. The said provision is firstly not attracted in the present case and, as such, the ratio therein is absolutely foreign to the present controversy. Secondly, there was no such similar rule of seniority involved in that case as is involved in the present controversy. In view of this also the said decision is of no avail to the respondents. Since there was no separate rule for determining the inter se seniority of candidates claiming regularization under Section 16-GG in that case, therefore, the Apex Court held that the Rules of seniority as already contained in the U.P. Intermediate Education Act in Chapter II Regulation 3 would be applicable and which provided for counting of seniority only from the date of substantive appointment which according to the Apex Court was the date of regularization. The judgment of the High Court which had extended the benefit of ad hoc appointment also was reversed in the absence of any such Rule.

Thus, the aforesaid decision is clearly not attracted either on facts or in law in the present controversy. Needless to say that a case is an authority on what it actually decides and not what logically follows from it. Reference may be had to para 42 of the decision in the case of K.C. Sarkar Vs. Rajesh Ranjan, (2005) 2 SCC 42, which is quoted herein below:

"42. While deciding the cases on facts, more so in criminal cases the Court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case. (See Pandurang V. State of Hyderabad (1955)1 SCR 1083) It is also a well-established principle that while considering the ratio laid down in one case, the court will have to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. See: (1) Quinn v. Leathem, 1901 AC 495, State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647,  (3) Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213."

Accordingly, in view of the conclusions and findings recorded herein above, the impugned order dated 15.3.2005 in so far as it relates to the promotion of the respondent no.5 is quashed. The Regional Joint Director of Education - Respondent No.2 shall proceed to pass appropriate orders in accordance with law and in the light of the observations and findings recorded herein above as expeditiously as possible preferably within a period of 6 weeks from the date of presentation of a certified copy of this order before him after providing opportunity to the concerned parties.

The writ petition is allowed with no order as to cost.

Dt. Nov.       2005

Irshad


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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