Court No. - 39
Case :- WRIT - A No. - 67487 of 2013 Petitioner :- Devesh Vats Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- N.L. Pandey,S.P.Pandey,Suyash Pandey Counsel for Respondent :- C.S.C.,Y.S. Bohra
Hon'ble Ashwani Kumar Mishra,J.
1. Dispute in the present petition relates to seniority of the writ petitioner viz-a-viz respondent nos. 5, 6 & 7 as also their consequential right to officiate as the Principal of Mahatma Gandhi Inter College, Gesupur, District Bulandshahar (hereinafter referred to as 'the Institution').
2. Facts which are relevant for the present controversy lie in a narrow compass and have been noticed in detail in the order impugned. It would thus be appropriate to refer to them, at the outset.
3. Petitioner has been appointed as Vyayam Shikshak on adhoc basis on 8th July, 1991 in the Institution. His services have been regularized under Section 33-C of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'the Act of 1982') in the year 2005, w.e.f. 20th April, 1998, when the enabling provision itself was introduced in the Act of 1982. Respondent no. 5 Haridutt Sharma was also appointed as a teacher in L.T. Grade on 1st July, 1991 and his services have also been regularized under Section 33-C of the Act of 1982, w.e.f. 20th April, 1998. Respondent no. 7 – Shashi Kant Sharma was also appointed as an adhoc teacher in the Institution on 18.7.1991 and his services have been regularized under Section 33-C of the Act of 1982 w.e.f. 20th April, 1998. Petitioner as also respondent nos. 5 & 7, therefore, have been appointed substantively on the same date i.e. 20th April, 1998. Their inter se seniority has been determined with reference to their age and accordingly respondent no. 5 has been treated senior amongst the three persons, who have regularized on the same date, with Shashi Kant Sharma being placed next and the petitioner at the bottom. The date of birth of the three persons as also their placement in the order of seniority for such reasons is not in issue.
4. The authority concerned has found respondent no. 6 - Ram Dutt Sharma to be the senior most teacher. It is admitted that Ram Dutt Sharma was appointed as C.T. Grade Teacher on 26.7.1987 and under the relevant statutory scheme after completion of ten years service he is held entitled to be treated as confirmed L.T. Grade Teacher from 26.7.1997, which is prior to the date of regularization of other three teachers i.e. 20th April, 1998. Respondent no. 6, therefore, is placed at the top of the seniority list and also held entitled to officiate as the Principal.
5. Challenge to the determination of inter se seniority is primarily made on the ground that respondent no. 6 was facing criminal prosecution at the time when the vacancy fell on the post of Principal and, therefore, he was not eligible and entitled to be considered for being permitted to officiate as the Principal. The other ground of challenge to the order impugned is that the adhoc services rendered by the petitioner could not be discarded while determining the seniority and consequential right of the teacher concerned to officiate as the Principal.
6. Per contra, Sri Y.S. Bohra, who has entered appearance on behalf of the respondent nos. 5, 6 and 7 submits that the criminal trial faced by the respondent no. 6 has resulted in his acquittal by the Additional District & Sessions Judge, Mainpuri, Court No. 4 in Session Trial No. 1 of 2001, vide judgment dated 6.5.2017. It is stated that even otherwise respondent no. 6 had been falsely implicated and once the competent criminal court has exonerated him of the charges levelled against him, the pendency of criminal case cannot be relied upon to discredit his entitlement to officiate as the Principal. So far as the officiating work of petitioner is concerned, it is stated that in case officiating working is to be counted for determining the seniority, then also the petitioner would not be senior to other teachers, as he had been appointed on a date after the adhoc appointment of respondent nos. 5 & 7. Learned counsel submits that seniority of a teacher in the recognized Intermediate Institution has to be with reference to his substantive appointment and the working on adhoc basis would not be relevant for such purposes.
7. I have heard Sri N.L. Pandey, learned counsel for the petitioner, Sri Y.S. Bohra, learned counsel for the private respondents as well as learned Standing Counsel for the State authorities.
8. Seniority of teachers in an institution recognized under the U.P. Intermediate Education Act, 1921, would be determined with reference to Chapter II, Regulation 3, relevant part of which is reproduced hereinafter:-
"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) The seniority list shall be prepared separately for such grade of teachers whether permanent or temporary, on any substantive post;
(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age;
[(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 from 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.] . "
9. Regulation 3 clearly provides that seniority of teachers would be prepared separately for each grade of teachers, whether permanent or temporary, on any substantive post. Clause 3(1)(b) clearly provides that seniority of teachers of any grade shall be determined on the basis of their substantive appointment in that grade. The substantive appointment of petitioner as also respondent nos. 5 & 7 is of the same date i.e. 20th April, 1998. Regulation further provides that where two or more teachers are appointed on the same date, seniority will be determined on the basis of age.
10. Admittedly petitioner is junior most amongst all teachers substantively appointed on the same date i.e. 20th April, 1998. The determination of seniority as well as consequential placement of petitioner at the bottom, with respondent no. 7 being placed at serial no. 3, and respondent no. 5 being placed at serial no. 2, therefore, is found to be strictly in accordance with the regulations applicable. The challenge laid to the order in that regard, therefore, lacks merit and is rejected.
11. So far as the claim of the respondent no. 6 is concerned, it is submitted that on the relevant date when the matter was being considered, the concerned respondent was facing criminal trial. Learned counsel for the petitioner has placed reliance upon the observation of this Court in petitioner's earlier writ petition no. 7350 of 2013, which refers to a judgment of the Division Bench of this Court in Brij Raj Swaroop Bhatnagar Vs. District Inspector of Schools Ghaziabad and another reported in 2001 (45) ALR Pg. 307 as also the judgment of the Apex Court in the case of Dr. Mahak Singh Vs. Chancellor, Ch. Charan Singh University, Meerut & Ors., (1996) 11 SCC 760.
12. Implication of a teacher in a criminal case would be relevant factor to be examined by the appointing authority when officiating charge on the post of Principal is to be given to him. This is necessary as the Principal is an administrative head and is responsible for the efficient and effective running of the Institution itself. His implication in a criminal case, therefore, would be viewed with care and caution.
13. What exactly is the nature of charge and the materials that may have been collected in that regard would be an input for the appointing authority to examine the candidature of the teacher concerned. It is, however, not in issue that the investigation has concluded in the criminal case in question where-after trial proceeded. The respondent no. 6 ultimately has been acquitted on 6.5.2017 by the competent Sessions Court. It is observed that prosecution has failed to prove offence under Sections 168, 171, 200, 218, 419, 420, 467, 468, 471, 120B IPC and 7/8 Prevention of Corruption Act and 3/10 of the Examination Act, against respondent no. 6 beyond reasonable doubt. This judgment has been delivered way back on 6.5.2017 and was brought on record of this writ petition by way of a supplementary counter affidavit filed on 27.10.2017. It's copy has also been served upon the learned counsel for the petitioner on 27.10.2017 itself but no reply to it is filed, so far.
14. Petitioner has not brought on record any material to show that either this order has been reversed or has been stayed by any higher competent court. Once the acquittal of respondent no. 6 has attained finality, this Court would not be inclined to examine the question, as to whether appointment of respondent no. 6 was valid at the time when officiating charge was proposed to be given to him. This exercise would at best be an academic exercise in the facts of the present case. Law is otherwise settled that Courts would not enter into academic issues unless the same is required for a just adjudication of the cause. In view of the fact that respondent no. 6 has already been acquitted and the order of acquittal has attained finality, the pendency of criminal case against him would not be a relevant material, nor can be relied upon to non-suit his candidature for appointment to the post of officiating Principal, once his seniority is otherwise found to be correct.
15. The argument of Sri Pandey that because the question of counting adhoc services is pending consideration before the larger bench, therefore, determination of seniority may await the pending reference, is also fallacious, inasmuch as, in case adhoc seniority is counted, even then petitioner would not be senior to the other persons. Reliance placed on the Division Bench Judgment in Ram Pal Singh vs. State of UP, 2013 (4) ESC 2132, would also not be material for such reason. No other question has been urged. This Court, therefore, finds no good ground to interfere with the order of Joint Director of Education, dated 27.11.2013. The writ petition fails and is dismissed. Interim order stands discharged.
Order Date :- 27.11.2019 Ranjeet Sahu