JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of Regional Deputy Director of Education. Varanasi, respondent No. 1, whereby he has held that respondent Nos. 5 to 7 are seniors to the petitioner.
2. Briefly stated the facts are that Nagar Palika Inter College, Moghalsarai, district Varanasi (hereinafter referred to as the college) is a recognised college under the provisions of U. P. Intermediate Education Act. 1921. It is run by the Nagar Palika Parishad, Moghalsarai, district Varanasi. Sri S. N. Tiwari, respondent No. 6 was appointed as lecturer in Civics on 20.11.1969. Sri Rajendra Prasad Gupta, respondent No. 7 was appointed as lecturer in Mathematics on 20.7.1970. These posts were created by the Commissioner. Subsequently, State Government issued a Government Order creating post for lecturer in Civics and other subjects on 21.8.1975 with effect from 20.11.1969. On 8.6.1976, the State Government issued another Government Order creating post of lecturer in Mathematics for respondent No. 7 with effect from 20.7.1970.
3. The petitioner was issued appointment letter as lecturer in Physics on 28.6.1971 on a post created by the prescribed authority (Commissioner) Varanasi Division. Varanasi for the period 1.7.1971 to 30.6.1972. The State Government vide order dated 18.5.1972 sanctioned the post of lecturer in Physics with effect from 6.1.1971.
4. The college maintained the seniority list in which the petitioner was shown as junior to respondent Nos. 6 and 7. The petitioner raised an objection that he is senior to them as his appointment was on a substantive vacancy while respondent Nos. 6 and 7 were not appointed on substantive vacancy. The dispute has been decided by respondent No. 1 vide order dated 24.7.1995 holding that the petitioner is junior to them. The core question is whether the appointment of respondent Nos. 6 and 7 shall be treated on substantive vacancy on the date they joined the Institution.
5. The seniority is to be determined of a teacher of an institution recognised under the provision of U. P. Intermediate Education Act, 1921 on the basis of provisions of clause (1) (a), (b), (bb) and (c) which read 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) The seniority list shall be prepared separately for each 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 service is equal, seniority shall be determined on the basis of age.
(c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service ;
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6. The contention of the petitioner is that on the date respondent Nos. 6 and 7 were appointed to the post of lecturer, such posts were not sanctioned by the State Government but were sanctioned later on and if the sanction was granted subsequently even though with retrospective effect, the appointment cannot be treated on a substantive post. In this regard the provisions of para 5 (c) of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Fifth) Order, 1983 may be examined which read as under :
"(5) A teacher or head of institution who is found suitable shall be deemed to be appointed in a substantive capacity-
(c) in case the appointment was initially made on a post, the creation of which was sanctioned subsequently by a competent authority in that behalf from the date of such sanction."
7. Para 2 of U. P. Secondary Education Service Commission (Removal of Difficulties) (Sixth) Order, 1983 provides for regularisation of certain employees. Clause (c) provides that in case the appointment was initially made on a post the creation of which was sanctioned subsequently by a competent authority in that behalf, from the date of such creation. It reads as under :
"2. Regularisation of certain appointments.--A teacher appointed in a High School or Intermediate College, maintained by a Nagar Mahapalika, during the period from April 25, 1978 to July 10, 1981 in accordance with the Uttar Pradesh Nagar Mahapalika Shiksha Sewa Niyamawali, 1971 and the Uttar Pradesh Nagar Mahapalika Educational Services (Designations. Qualifications, Scale of Pay, Method of Recruitment and Conveyance Allowance) Order, 1973 made under the provisions of the U. P.
Nagar Mahapalika Adhiniyam, 1959 shall subject to the condition that such teacher possessed prescribed qualification at the time of appointment, be deemed to have been appointed in a substantive capacity-
(a) in case the appointment was initially made in a clear vacancy from the date of such appointment ;
(b) in case the appointment was initially made in a leave vacancy or a vacancy occurring for a part of the session or otherwise than in clear vacancy, from the date when such vacancy assumed the character of clear vacancy;
(c) in case the appointment was initially made on a post the creation of which was sanctioned subsequently by a competent authority in that behalf, from the date of such creation."
8. The State Government had sanctioned the post with retrospective effect from the date respondent Nos. 6 and 7 were appointed. The post on which respondent Nos. 6 and 7 were appointed was created by the Commissioner and later on it was approved by the State Government with retrospective effect. The petitioner has not challenged the order of the State Government sanctioning the post retrospectively. The petitioner has also not contended that the State Government has no power to create/sanction the post retrospectively. The petitioner himself was appointed to the post of lecturer in Physics created by the Commissioner. Varanasi Division, Varanasi and later on the State Government had sanctioned the post. In case the post has been sanctioned with retrospective effect, the appointment shall be treated on substantive post from the date the respondents had joined the college. It is not the case of the petitioner that they were not eligible or their appointment was otherwise not in accordance with law. These respondents were eligible for appointment.
9. Learned counsel for the petitioner has placed reliance on the decision Smt. S. K. Chaudhari v. Manager, Committee of Management, Vidyawati Darbari Girls Inter College, Lukarganj, Allahabad and another, 1991 (1) UPLBEC 250, wherein it was held that the seniority which has been determined under clause (b) of Regulation 3 of Chapter II of U. P. Intermediate Education Act, cannot be set aside subsequently by Insertion of clause 3 (1) (bb) o f Chapter II which was not retrospective in operation. This case has no application to the facts of this case. The Court in that case found that clause 2 (1) (bb) of Chapter II was not retrospective in operation. Secondly, the State Government was empowered to sanction a post retrospectively and such power may be exercised by the State Government, the appointment shall be treated as substantive from the date the State Government treates the date of creation of the post.
10. The petitioner has also placed reliance upon the decision of the Supreme Court in D. P. Sharma and others v. Union of India and another, AIR 1989 SC 1072, wherein it was held that if seniority was determined on the basis of the length of service in accordance with Rule then existing, it cannot be changed on account of the enforcement of any other rule subsequently made applicable in respect of determination of seniority. It is not the case of the petitioner that the rule has been changed with regard to determination of the seniority and on that basis, the respondents have been treated as senior to the petitioner.
11. The respondent Nos. 6 and 7 were appointed prior to the date of appointment of the petitioner and the posts on which they were appointed were sanctioned retrospectively, hence they will be treated senior to the petitioner.
12. It may further be noted that the seniority list was prepared and the respondent Nos. 6 and 7 were treated as senior to the petitioner. The Full Bench in the case of Smt. S. K. Chaudhari (supra) has held that the Court will not interfere with the seniority list which has remained in existence for a long time.
13. In view of the above, I do not find any merit in this writ petition and it is accordingly dismissed. Considering the facts and circumstances of the case, the parties shall bear their own costs.