JUDGMENT Sunil Ambwani, J.
1. By this writ petition, petitioner Dr. Km. Archana Gupta, Lecturer (Civics) and officiating as Principal of Arya Kanya Inter College, Shahjahanpur, has prayed for quashing the order dated 31.1.2000 passed by Joint Director of Education, Bareilly Region, Bareilly; and to command respondents not to interfere in her functioning as officiating Principal. The substance of, challenge to the impugned order is that petitioner is senior to Smt. Bina Rastogi, Lecturer (Hindi), respondent No. 5 and Smt. Sushma Saksena, Lecturer (English) in the said college.
2. I have heard Sri Manish Kumar Nigam, learned counsel for petitioner, Sri Subodh Kumar learned counsel for respondent Nos. 4 and 5 and learned standing counsel.
3. Petitioner was appointed as Assistant Teacher in L.T. Grade on 1.7.1966. Smt. Vimla Mehrotra, a Lecturer in College absented herself from 9.7.1982. Petitioner was given ad hoc promotion on her vacancy, on 9.7.1982, which was approved by the competent authority. District Inspector of Schools, Shahjahanpur sanctioned Lecturer's pay-scale to her w.e.f. 9.7.1982, and selection grade from 9.7.1992, on completing ten years of service. The Committee of Management by its resolution dated 4.8.1994 resolved to terminate services of Smt. Vimla Mehrotra, and appointed an inquiry officer. A charge-sheet was issued to her on 21.4.1992 to which she gave a reply and after giving her an opportunity of hearing, inquiry officer submitted his report to Committee of Management on 4.6.1992. A second show-cause notice was issued on 14.7.1992 and that in meeting dated 31.8.1992, the Committee of Management resolved to terminate her services and forwarded it for approval. Smt. Vimla Mehrotra completed age of superannuation in January, 1994 and she would have retired in ordinary course on 31.6.1994, Disciplinary Committee of U. P. Secondary Education Services Selection Board, recommended to accept the resolution of the Committee of Management to terminate her services w.e.f. 31.8.1992 by its recommendation dated 30.1.1995 which was accepted by the Board in its meeting dated 25.5.1995.
4. In the meantime, the matter regarding regularisation of petitioner's services under Section 33B of the U. P. Secondary Education Services Commission and Selection Board's Act, 1982, came up for consideration, and that by order dated 31.1.1995 petitioner was regularised as Lecturer (Civics) in pursuance of notification dated 9.6.1993 approving the resolution of Committee of Management dated 31.1.1995 promoting petitioner on the vacancy caused: on the post of Lecturer (Civics) on 20.9.1984.
5. The Committee of Management circulated the seniority list of teachers in which petitioner Km. Archana Gupta, Smt. Bina Rastogi and Smt. Sushma Saksena were placed in the said order of seniority. Aggrieved Smt. Sushma Saksena and Smt. Bina Rastogi filed an appeal before the Regional Deputy Director, Bareilly and pending the appeal, Smt. Sushma Saksena filed Writ Petition No. 28623 of 1999 in which this Hon'ble Court by order dated 15.7.1999 directed Joint Director of Education, Bareilly, to decide the issue of seniority initiated on manager's letter dated 4.12.1996.
6. The Joint Director of Education gave opportunity to all the three teachers to submit their written statement and by its order dated 31.1.2000, challenged in this writ petition, held and determined seniority of teachers by the dates of their substantive appointment as follows :
(i) Smt. Bina Rastogi, Lecturer (Hindi) 21.1.1985.
the date when a substantive vacancy became available. Km. Archana Gupta was regularised by order dated 31.3.1995 under notification dated 6.1.1993 and that 7.8.1993 was the appointed date under the notification. The manager's contention that a petitioner was appointed on probation of one year on 21.9.1984 and was confirmed on 21.9.1985 was not accepted by the Joint Director of Education as in the regularisation order, she will be deemed to have been appointed on substantive basis on 7.8.1993.
8. Sri Manish Kumar Nigam submits that petitioner's seniority should be counted with effect from 9.7.1982, when she was appointed on promotion on ad hoc basis, on the vacancy caused by Smt. Vimla Mehrotra. According to him, approval given by Commission under Rule 21 will relate back her seniority with effect from the date of her initial appointment, and that even if petitioner is treated to be appointed on ad hoc basis, the regularisation of her service will reckon her seniority w.e.f. 21.9.1984, when she was appointed by Management Committee on probation. He submits that after the order of termination is approved, it will relate back to the date when Smt. Vimla Mehrotra was terminated. Smt. Vimla Mehrotra did not turn up in college after 8.7.1982. The defect in the order terminating her services, if any, was not attributable to petitioner. The matter of approval of terminating her services remained pending with Regional Inspectors of Girls School and that thereafter the papers were sent which was approved by Commission on 30.4.1991 and that due to certain defects, these papers were returned for removal of defects on 24.6.1991. The delay in approval by the Commission was caused by negligence, if any, of the Committee of Management and that such delay will not affect petitioner's seniority. Smt. Vimla Mehrotra had left college on 9.7.1982 and was serving in other college in district Hardoi and in any case, her services could not have been extended beyond the date of her superannuation in January, 1994. Petitioner was promoted against 50% promotion quota and placed on probation, under the Second Removal of Difficulties Order, and that the period should be counted for fixation of her seniority as her appointment was made strictly in accordance with rules. Seniority has to be counted from the date of substantive appointment, which means that the date when the vacancy became available to petitioner. Petitioner has relied upon the decision of Supreme Court in Direct Recruits Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors., AIR 1990 SC 1607, in which Supreme Court laid down that if the appointment is made after considering the claims of all eligible candidates, and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments. In paragraph 44 by summing up the ratio of the judgment, Supreme Court held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is, that where the initial appointment is only ad hoc and not in according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. If the initial appointment is made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules ; the period of officiating service will be counted. The rest of the conclusion were with respect to appointment made from different sources.
9. In Food Corporation of India v. Thaneswar Kalita and Ors., AIR 1996 SC 644 by following the aforesaid judgment in the Direct Recruit Class-II Engineer Officers' Association v. State of Maharashtra. AIR 1990 SC 1607, the Supreme Court held that if the appointments are made according to rules, though initially on ad hoc basis, and are continued for long time, or regularising the service, the entire period of temporary service would be counted for seniority. If such appointments are in excess of quota, the officiating period would not be treated for seniority, as the appointments then become fortuitous, and the persons appointed in excess of the quota are not entitled to count the entire period of service for seniority. Para 4 of this judgment is quoted as below :
"In this case admittedly, the promotion of the respondents was not in accordance with rules; but they were delayed on ad hoc basis due to the exigencies of non-availability of the direct candidates. Thereby, it is clear that the respondents were not promoted according to rules. In other words, they were promoted de hors the rules. Though they have continued for a long time, the entire length of service should be considered as fortuitous and should not be counted towards their seniority. The High Court, therefore, was clearly in error in directing to treat their entire services as regular basis."
10. In V.K. Yadav and Ors. v. State of U.P. and Ors., (1990) 1 UPLBEC 409. cited by petitioner for the proposition of principles of relating back, it was held, that relating back to the year of vacancy is a concept in service law associated with promotee as they are promoted temporary, officiating or ad hoc subject to approval by the departmental selection committee of the Commission. Once they are approved, the appointment relates back to avoid any prejudice from different sources. Ignoring the services rendered but by being just and fair as that injustice may not take place to those who may suffer not for any fault of their but because of procedural delay either in the department or the authority empowered to grant approval. In Ajit Kumar Rath v. State of Orissa and Ors., AIR 2000 SC 85, the appellant was promoted to the post of Assistant Engineer in accordance with the rules against a permanent vacancy and was given promotion. The Court found that in view of Rule 26 of the Rules applicable to the service, the appellant will rank senior to the respondents. The rule provides that where officers were recruited by promotion and direct recruitment in the same year, the promoted officer shall be considered senior to the officer recruited Irrespective of their dates of joining the post. Following the decision of O.P. Srivastava v. Union of India, AIR 1984 SC 1595, Supreme Court held that decision about nature of appointment for determining whether it is made against an existing vacancy not limited to a fixed period of term or purpose by appointment order Itself and Is made subject to some procedural requirement prescribed by the rules for adjudicating suitability of the appointee for the post being cured at the time of regularisation has to be made on the basis of terms of initiating appointment Itself and the provisions of the rules. The efficiency in the procedural requirement laid down by the rules has to be cured, at the first available opportunity, without any fault of the employee and for appointment continues in the post uninterruptedly till the regularisation of his service in accordance with rules. In such case, the appointee is not to blame for the deficiency in procedural requirement under the rules at the time of his initial appointment and the appointment not being limited to a fixed period of time is intended to be a regular requirement subject to the remaining procedural recruitment of the rules being fulfilled at the earliest.
11. In Rudra Kumar Sain v. Union of India and another, 2000 (4) AWC 2.39 (SC) (NOC) : AIR 2000 SC 2808, the Constitution Bench of Supreme Court held that the term 'stop gap' and 'fortuitous' have to be combined, the meaning while interpreting the provisions of service rule will depend on the provisions of that rule and the context in and in the purposes for which the expressions are used.
Interpreting the Delhi Higher Judicial Service rules, Supreme Court held that for the purpose of interpreting the provisions of the Rules and the context in and in the purpose for which expressions are used will depend upon the facts and circumstances upon which appointment has to be made, it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the said order, then the appointment to such post can be described as 'ad hoc' or 'stop gap arrangement'. If the post is created to meet the situation which has suddenly arisen on account of happenings of some event of a temporary nature, then the appointment of such post can be described as fortuitous in nature. If the appointment is made to meet the contingency arisen on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency, an appointment is made, then it can appropriately be said as stop gap arrangement and appointment in the post as ad hoc appointment. It is not possible to lay down any straitjacket formula nor give an exhaustive list of circumstances and situation in which the ad hoc fortuitous or stop gap appointment can be made. Supreme Court concluded that if the person who possessed requisite qualification for being appointed to a particular post and is appointed with consultation of appropriate authority and continues in the post for long period, then such appointment cannot be held to be stop gap arrangement, and the exclusion of such appointee to have their continuous length in seniority is erroneous.
12. To apply the aforesaid principles of determining the seniority in service law, it is necessary to state the facts and rules applicable in the present case :
(i) A short term vacancy was caused due to absence of Smt. Vimla Mehrotra a lecturer in college on 9.7.1982.
(ii) Petitioner was qualified and eligible. She was as such promoted by the Committee of Management in 50% quota on ad hoc basis under U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, until Smt. Vimla Mehrotra joins the post or other wise short term vacancy ceases to exist.
(iii) The Committee of Management passed resolution on 1.8.1984 to terminate the services of Smt. Vimla Mehrotra and that a copy of resolution was sent for approval to the Regional Inspector of Girls Schools on 20.9.1984.
(iv) On the same date 20.9.1984, petitioner's services were kept on probation for one year on the alleged substantive vacancy created on termination of services of Smt. Vimla Mehrotra.
(v) Petitioner's services have been confirmed after probation period of one year on 21.9.1985.
(vi) On the papers being sent back by the U. P. Secondary Education Services Commission for removal of objections to the termination of services of Smt. Vimla Mehrotra, the Committee of Management passed a fresh resolution dated 31.8.1992, terminating her services.
(vii) Smt. Vimla Mehrotra attained the age of super annuation in January, 1994.
(viii) On 31.3.1995, Regional Deputy Director of Education passed order regularising petitioner's services under Section 33B of the Act effective from 7.8.1993 and ;
(ix) On 16.10.1995 the Commission approved the proposal of Committee of Management dated 13.1.1992 to terminate services of Smt. Vimla Mehrotra.
13. Regulation 3 of Chapter II of the regulations made under the U. P. Intermediate Education Act. 1921, regulate the seniority of teachers in a educational institution. Regulation 3 is quoted as below :.
"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, or 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 dale, 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.
(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 ;
(d) If a teacher who is placed under suspension is reinstated on his original post, his original seniority in the grade shall not be affected :
(e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision :
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14. In order to find out the date of substantive appointment for the purpose of determining the seniority on the principles laid down by Supreme Court. I find that petitioner was qualified and eligible to be appointed in the quota of promotion to the post of lecturer (Civics) for which a valid resolution was passed by the Committee of Management on 21.9.1984. Petitioner has worked uninterruptedly on the said post and was regularised under Section 33B of the Act by order of the Joint Director of Education on 31.3.1995 effective from 7.8.1993. The resolution to terminate the services of Smt. Vimla Mehrotra dated 1.8.1984 was not approved as such the Committee of Management passed a fresh resolution on 31.8.1992, which was approved by the Commission on 16.10.1995, before which she was regularised. In the meantime Smt. Bina Rastogi, respondent No. 5 w.e.f. 21.1.1985 and Smt. Sushma Saksena, respondent No. 4 w.e.f. 12.6.1985 came to be appointed. Smt. Vimla Mehrotra did not return after 9.7.1982 and thus the vacancy became substantive. The resolution could not be approved on account of procedural requirements of law. It was ultimately reiterated on 31.8.1992 and came to be approved on 16.10.1995. The vacancy thus became available for occupation by petitioner, which was created by the termination of Smt. Vimla Mehrotra in accordance with rules on 21.9.1984, and thus petitioner will be treated to have been substantively appointed on 21.9.1984, and thus she is senior to respondent Nos. 4 and 5.
15. The writ petition is accordingly allowed. The order passed by the Joint Director of Education, Bareilly, dated 31.1.2000 is set aside. Petitioner is declared senior, to respondents 4 and 5, and for all consequential benefits. In the facts and circumstances of the case there will be no orders as to costs.