JUDGMENT D.C. Srivastava, J.
1. This is defendant's second appeal.
2. The plaintiff-respondent Rajendra Prasad Saxena filed a suit for declaration that he is senior to Jasmel Singh, defendant No. 3 as Lecturer in Chemistry and is entitled to selection grade in Mahatma Gandhi Memorial Inter College, Baheri, district Bareilly prior to that of defendant No. 3 and the defendants No. 1, 2 and 4 be restrained from giving selection grade to the defendant No. 3 prior to 16.9.1983.
3. In short the material allegations in the plaint are that the plaintiff-respondent was appointed on 28.7.1965 as Lecturer in Chemistry in Mahatma Gandhi Memorial Inter College, Baheri, district Bareilly. He proceeded to complete his post-graduate diploma in Chemistry at the cost of the defendant No. 2 and was granted duty leave for the aforesaid course. After completing the diploma course, the plaintiff-respondent was appointed as Lecturer in Chemistry on 1.7.1967. The defendant No. 3 namely the appellant--Jasmel Singh was appointed to teach Intermediate classes in the absence of the plaintiff. At that time he was only M.Sc. (previous) whereas minimum qualification for appointment of Lecturer in Chemistry at that time was M.Sc. or post-graduate diploma. The appellant was appointed as teacher on 8.7.1966 on temporary basis for one session because he did not possess minimum qualification. His appointment was not approved by the District Inspector of Schools hence he could be considered only as demonstrator. Additional section for Chemistry was opened and the District Inspector of Schools granted approval of the defendant No. 3 vide letter dated 16.9.1967. Since the plaintiff was given Lecturer grade since 1.7.1967 hence the appointment of the defendant No. 3 automatically lapsed from that date. The defendant No. 2 illegally allowed the defendant No. 3 to continue between 1.7.1967 to 16.9.1967 and this period cannot be counted towards seniority. Hence the defendant No. 2 namely, the appellant is junior to the plaintiff-respondent. The defendant No. 2 was going to pass a resolution in favour of defendant No. 3 for giving selection grade prior to that of the plaintiff. Objection was filed by the plaintiff. The seniority list was published on 18.8.1979 in which the plaintiff was shown senior to defendant No. 3 and the list has become final. A resolution was passed by the defendant No. 2 in favour of the appellant on 25.11.1982. The plaintiff filed representation which was illegally rejected by the defendant No. 6 as District Inspector of Schools. This order is also said to be illegal and void.
4. The suit was contested on several grounds. It was pleaded that the suit is not maintainable and is bad for non-joinder of necessary parties. It has been denied that the plaintiff was appointed Lecturer in Chemistry on 28.7.1965. At that time the plaintiff did not possess minimum qualification for appointment of a Lecturer. He was simply B.Sc. and he was appointed demonstrator in Chemistry. It is also denied that the appellant was appointed in the leave vacancy of the plaintiff or that he did not possess minimum qualification for appointment as Lecturer in Chemistry. The appellant had passed M.Sc. (previous) and as per Government Orders, he was entitled to be appointed as Lecturer. He was appointed in a clear vacancy as Lecturer on 8.7.1966 for one year and after completion of one year he was again interviewed before the selection committee on 25.7.1966. The vacancy was advertised and selection committee recommended the name of the appellant in first position in order of merit and was regularly working as Lecturer. He completed 16 years of continuous service on 8.7.1982 when he became entitled to selection grade. It is further said that the appointment of the appellant was approved by fie District Inspector of Schools as Lecturer while that of the plaintiff as demonstrator. Alleging that the appellant was senior to the plaintiff-respondent, it was prayed that the suit be dismissed.
5. The trial court considered the oral and documentary evidence on record and dismissed the suit. Appeal was preferred which was allowed. The judgment and decree of the trial court was set aside and the plaintiff-respondent was declared senior to the defendant No. 3 who is appellant in this second appeal. It is, therefore, this second appeal.
6. Learned counsel for the appellant contended in the first place that since the lower appellate court has reversed the judgment and decree of the trial court, it should have specifically set aside the findings recorded by the trial court on each material issue and that since this has not been done, interference in second appeal is justified and the decree of the lower appellate court cannot be maintained. Another contention has been that the lower appellate court has placed reliance upon inadmissible evidence, namely, photostat copies and cyclostyled copies of documents which are in the nature of secondary evidence and since these documents have not been proved in accordance with law, the judgment is based on inadmissible evidence and is liable to be set aside. Another contention has been that even if the judgment is based on partly admissible and partly inadmissible evidence, the same is liable to be set aside. The next contention has been that the trial court had an opportunity to watch the demeanour of the witnesses and the lower appellate court was not justified in ignoring the oral evidence. The last contention has been that the computation of seniority by the trial court was correct and that of the lower appellate court was totally incorrect, hence also the judgment of the lower appellate court deserves reversal.
7. Perusal of the judgment of the lower appellate court shows that it has not specifically set aside the findings of the trial court. The trial court has observed that the documents filed by both the parties were inadmissible in evidence inasmuch as photostat, hand-written copies and cyclostyled copies not duly proved in accordance with law cannot be read in evidence. The findings of the trial court on this point was not set aside by the lower appellate court. On the other hand, lower appellate court without exhibiting papers filed by the plaintiff referred the same with reference to paper number and without observing that the observation of the trial court that these documents were inadmissible was incorrect has placed reliance upon the same, Likewise, the lower appellate court has not set aside and reversed the findings of the trial court based upon oral evidence nor has said that the oral evidence is unworthy of reliance. If the documentary evidence was inadmissible, then the lower appellate court should have discussed the oral evidence. Oral evidence has not been discussed by the lower appellate court. The lower appellate court has simply observed in the concluding portion of the judgment that the judgment and order passed by the trial court suffer from factual and legal defects which are liable to be set aside. Those factual and legal defects have not been highlighted by the lower appellate court.
8. The Supreme Court in Smt. Sawami v. Smt. Inder Kaur and others. AIR 1996 SC 2823, held that where the conclusion of the trial court was based on material on record and substantiated by weighty reasons and where the appellate court did not set aside the findings of the trial court, the lower appellate court could not reverse the decree of the trial court merely on the basis of mutation entry in favour of the defendant. It follows from this judgment that on the basis of single evidence, the lower appellate court could not have reversed the findings of the trial court.
9. In J.B. Sharma v. State of Madhya Pradesh and another, AIR 1988 SC 703, it was held that where the appellate court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire document on the basis of which the finding was recorded, the High Court was justified in setting aside the finding of the lower appellate court. On the basis of this case. It can be said that since there was assumption by the lower appellate court, the reversal of finding in this second appeal is justified.
10. The Patna High Court in Smt. Sona Devi v. Nagina Singh and others, AIR 1997 Pat 67, held that where reasons given by the trial court for its findings have not been reversed by the appellate court, the judgment of the appellate court is liable to be set aside in view of the mandatory provisions of Order XLI. Rule 31. C.P.C,
11. Jurisdiction of the appellate court to reverse the finding of the trial court based upon oral evidence was also considered by the Supreme Court in Madhusudan Das v. Smt. Narayani Bai and others, AIR 1983 SC 114. It was laid down that as a matter of law, if the appraisal of evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact otherwise not.
12. Again in S.V.R. Mudaliar v. Mrs. Rajabu F. Buhari, AIR 1995 SC 1607, it was laid down that appellate court has to bear in mind reasons ascribed by the trial court for its finding and the same should be considered before setting aside the judgment.
13. In view of the above authorities and discussions, the judgment of the lower appellate court is liable to be set aside because the reasons for setting aside the judgment of the trial court have not been given. Likewise rejection of inadmissible evidence and reliance on oral evidence has not been given due weight.
14. The next contention of the learned counsel for the appellant has been that the documents filed by the plaintiff-respondent are either cyclostyled copies or hand-written copies or photostat copies and since the originals have not been produced and also because these documents have not been proved in accordance with law, the secondary evidence was not admissible and that the judgment of the lower appellate court based on such evidence is liable to be set aside.
15. Regarding cyclostyled copies of documents, reliance was placed upon case of Union of India v. Nirmal Singh, AIR 1987 All 83, where it was laid down by this Court that cyclostyled copies of Government Rules along with covering letter are not sufficient proof that the original was so issued under the signatures of the competent authority. It was further laid down that a mere cyclostyled covering letter accompanied by a similar copy of rules by itself is not enough and it was necessary that these rules and letter should have been certified.
16. In Deputy Commissioner v. Universal Film Co. (India) Ltd.. AIR 1950 All 696, it was again held with reference to Sections 67 and 63 of the Evidence Act and laid down that where a document is no more than secondary evidence of the contents of the original in order to show that it is an exact copy of the original, it is necessary to prove that either it was prepared by an uniform process or it was compared with the original by some witness, who can give evidence to that effect. The mere proof of the signature on the alleged copy cannot amount to proof of the contents of the original.
17. In Ashok Dulichand v. Madhavlal Dube and another, AIR 1975 SC 1748, where the photostat copy was not found beyond suspicion it was held that such photostat copy cannot be admitted as secondary evidence.
18. In Satish Mohan Bindal v. State of U. P., AIR 1986 All 176, it was laid down that a document which is not a public document or not admitted cannot be exhibited and looked into unless it is proved by oral evidence or otherwise.
19. In Abdul Sakur and others v. Kotwaleshwar Prasad and others, AIR 1958 AH 54, it was laid down that where a finding of fact is based partly on admissible and partly on inadmissible evidence, there would be good ground for interference by the High Court in second appeal. The earlier case in AIR 1922 All 439, was relied upon in this case.
20. Learned counsel for the respondent, on the other hand, contended that the photostat copies and cyclostyled copies have been proved, hence the same are admissible and that it is not open to a party to object to the admissibility of documents which are marked as exhibits without any objection from such party. Reference was made to the case of P.C. Purushothama Reddiar v. S. Perumal AIR 1972 SC 608, in which reliance was placed on the case of Bhagat Ram v. Khetu 'Ram, AIR 1929 PC 110. This case to my mind is distinguishable on facts because, the documents which have been relied upon by the lower appellate court were not admitted nor exhibited. On the other hand, there was endorsement from the side of the appellant that these documents were not admitted. As such this case does not help the respondent.
21. Learned counsel for the respondent also relied upon the case of Mst. Bibi Aisha and others v. Bihar Subai Sunni Majlis Avaqaf and others, AIR 1969 SC 253. In this case, the Apex Court interpreted Section 65(a) and (f) of the Evidence Act and held that clause (a) of Section 65 is not controlled by clause (f), When the case falls under clause (a) any secondary evidence (a plain copy of the document) and not necessarily certified copy of document is admissible, though the case may also fall under clause (f). This case is also distinguishable on facts.
22. In the light of the above discussion, it has to be seen whether the papers filed by the parties have been proved and are admissible in evidence.
23. The appellant filed several papers. Paper No. 37C is hand-written attested copy. No witness has proved this document. Paper No. 38C is typed attested copy which is also not proved so also paper No. 38C and 45C. Paper No. 45C is hand-written copy which is also not proved. As such papers filed by the appellant are neither proved nor can be admitted in evidence as secondary evidence.
24. The plaintiff filed several papers per list 15C. Paper No. 16C the list of candidates who were interviewed on 18.7.1965. It is hand-written document. P.W. 1 Ramesh Chandra Jaundra Jauhari hag simply proved few signatures on this document but has not stated that this is the correct copy of the original. He brought the original and should have stated that this copy was correct copy of the original. Mere proving the note of attestation by the principal and his signature will not amount the proving the correctness of the contents of this document. It is, therefore, hardly admissible in evidence.
25. Paper No. 17C is photostat copy of cyclostyled letter. It is neither attested nor proved as has been discussed in one of the cases (supra) paper No. 18C is likewise neither attested nor its correctness has been proved from the original though the original was brought by Ramesh Chandra Jauhari, P.W. 1. He has simply proved the signature of P.D. Bhatia but failed to State that it is correct copy of the original. Likewise paper 19C whose original was before this witness was not proved in accordance with law. This is also photostat copy and for the reasons stated above, mere proving of signature of Atar Singh will not prove the contents of this document and correctness of the same. Paper No. 20C is handwritten attested copy which is also not proved in accordance with law. Likewise hand-written copies of paper Nos. 21C, 22C, 23C and 24C are also not proved in accordance with law. Paper Nos. 25C to 27C are photostat copies which have also not been proved by Ramesh Chandra Jauhari as required by law. Paper No. 28C is hand-written copy which is also not proved. Paper No. 29C is photostat copy of seniority list which was not proved in accordance with law. However, P.W. 1, Ramesh Chandra Jauhari was summoned in appeal and was again examined. In his statement recorded in first appeal, he has proved seniority list from the original seniority list. Thus the seniority list paper No. 29C stands proved. Paper Nos. 30C to 32C are hand-written copies which are also not proved in accordance with law. Likewise the documents filed in appeal were not proved in accordance with law. The result, therefore, is that the lower appellate court fell in error in referring these documents which were never exhibited nor these documents are admissible in evidence. The judgments based on inadmissible evidence or partly admissible evidence, namely, seniority list has to be interfered in the second appeal.
26. In view of the above discussions, documentary evidence of the parties cannot be referred in evidence except the seniority list. Seniority list prepared by the Management Committee alone cannot be the basis of determining the seniority. For this, the oral evidence has to be taken into consideration along with seniority list and also various cases laying down guidelines on which seniority in such matters is to be determined. It is, therefore, to be discussed whether computation of seniority by the lower appellate court was correct or that computed by the trial court was correct. For this except oral evidence of the parties and their witnesses and the seniority list, there remains no other evidence which can be said to be admissible evidence.
27. P.W. 1, Ramesh Chandra Jauhari has proved certain documents, but for the reasons stated above those documents whose photostat, typed and handwritten or cyclostyled copies are on record have not been proved in accordance with law. This witness is an employee in the college. He stated that Rajendra Prasad was appointed in the year 1965 on a salary of Rs. 80 p.m. in temporary capacity. He further stated that at that time Lecturer's grade was beginning from Rs. 175 p.m. According to him, the plaintiff, Rajendra Prasad was untrained teacher hence Lecturer grade was not given to him and that because he was B.Sc. and not M.Sc., he could not be appointed on the post of Lecturer. Thus from his statement, it appears that Rajendra Prasad was appointed in 1965 in the scale of Rs. 80 p.m. At another place he stated that Rajendra Prasad was appointed as demonstrator. The statement of this witness examined by the plaintiff, therefore, demolishes plaintiffs case that he was appointed Lecturer right from the beginning. The plaintiffs stand in the plaint was that he was appointed Lecturer. The appointment letter though in possession of the plaintiff was not filed. Service Book was not summoned by him nor its copy was obtained which would have revealed in what capacity he was initially appointed. The appellant stated that Rajendra Prasad was appointed demonstrator w.e.f. 28.7.1965.
28. Ramesh Chandra Jauhari further stated that the appellant Jasmel Singh was appointed w.e.f. 8.7.1966 as Lecturer and he was M.Sc. (previous) at that time. He stated that the District Inspector of Schools approved the appointment of the appellant in the Lecturer grade and the appellant was given the scale of Rs. 175 p.m. and was appointed as Lecturer. Again he stated that Rajendra Prasad was only demonstrator. Likewise he stated that the only vacant post the advertised and interview was held in which the appellant was placed in first position. This statement was given with reference to record. According to him Jasmel Singh was placed on probation for one year with effect from 8.7.1967. He also stated that Jasmel Singh-appellant was appointed Lecturer in Chemistry prior to the appointment of Rajendra Prasad as Lecturer, and is now permanent Lecturer and that the appellant continued to work as Lecturer without any break. P.W. 2, Bal Govind Misra was a formal witness who was unable to prove the documents filed by the plaintiff.
29. P.W. 3. Rajendra Prasad Saxena is plaintiff. His statement that he was appointed Lecturer in Chemistry on 28.7.1965 is incorrect. The best evidence, namely, appointment letter is admittedly with him and he did not file the same. Admittedly he proceeded to receive training in post-graduate diploma in Chemistry and according to him since 1.7.1967, he was appointed as Lecturer in Chemistry. He proceeded for training in 1966. His statement that the appellant was appointed in his leave vacancy is not supported by any documentary evidence on record. He also did not know if any exemption was granted to the appellant regarding his educational qualification for appointment as Lecturer. His statement that on 1.7.1967 after return from training, he joined on his original post is incorrect and it is also incorrect that the appointment of the appellant stood automatically cancelled. There is neither automatic cancellation of appointment of the appellant nor is there any express cancellation of appointment of the appellant. It was also stated by P.W. 1 that the appointment of the appellant was for one session only but subsequently the post was advertised and the appellant in the interview was placed at serial No. 1, it is further clear from the statement of Ramesh Chandra Jauhari P.W. 1, that the appellant worked continuously right from his initial appointment. He has, therefore, not supported the case of the plaintiff rather has supported the case of the defendant-appellant Jasmel Singh. Advertisement for vacant post in 1967 and interview of candidates is admitted by the plaintiff. He too was a candidate in " the interview. If he was given to join on his initial post of Lecturer, there was no reason for him to apply for interview or to appear before the selection committee. He does not remember the grade which was given to him from 1965 to 1967. He also did not remember the grade which was given to him after his return from training in condensed course. He has admitted that in the interview, he was placed at second position.
30. As against this, the defend ant-appellant has examined himself and has stated in support of his case taken in the written statement. His admission in the end of the cross-examination that paper Nos. 16C to 32C bear the signature of principal will not amount to proof of these documents or proof of contents of these documents. His statement that between 1965 to 1970, educational qualification for Lecturer in Chemistry was only M.Sc. (previous) has not been rebutted by the plaintiff. His further statement is that his appointment was approved by the District Inspector of Schools in 1966. If his appointment was approved in the year 1966 and there was no break in service, fresh approval if delayed by few days will not amount to break in his service. From the evidence on record, it is clear that he worked continuously without any break since 1966. He has admitted that his first appointment was temporary for one year and his second appointment on probation w.e.f. 8.7.1967 on the same post which was vacant.
31. Thus from the above oral evidence, it is clear that initial appointment of the plaintiff was on the post of demonstrator whereas initial appointment of the appellant was on the post of Lecturer for a period of one year and then it was extended under the recommendation of selection committee and the appellant was placed on probation for one year under the orders of the District Inspector of Schools. There was no break in his service. On these facts, seniority has to be computed in accordance with the above facts and also in accordance with various cases cited on the point.
32. The seniority list alone is not determining factor. In the seniority list paper No. 29C which was proved in appeal, the plaintiff was shown senior to the appellant. But mere seniority list is not conclusive because the appellant stated in cross-examination that he filed objections against the seniority list a month before when his signature was obtained thereon. There is no evidence that no objection to the seniority list was filed by the appellant. There is again no evidence that the said objection has been rejected. The seniority list was not circulated nor its copy was given in time to the appellant. When his signature was obtained on the seniority list, he filed objection.
33. The last question for determination in this appeal is whether the seniority computed by the lower appellate court is correct or that by the trial court is correct. For determining the seniority in the absence of specific guidelines in the rules and statute, the following principles have to be kept in mind, (i) If the two candidates were appointed in the same grade but on different dates, seniority is to be computed from the date of initial appointment of the candidate. (ii) If the appointment is on different dates, then the person appointed earlier wilt be treated as senior. (iii) If the two candidates were appointed on different posts under different scales as has been in the instant case, seniority is to be determined from the date when the two candidates were appointed in one grade, namely, Lecturers grade. Irregular appointment or the appointment in some other grade is to be excluded, (iv) A person appointed on ad hoc or temporary basis is also entitled to claim seniority from the date of his initial appointment provided there has been no break in service, (v) The period of temporary or officiating appointment is also to be taken into consideration for determining the seniority. Confirmation is not relevant for seniority, (vi) Seniority list is also to be taken note of provided it has become final and has not been challenged for long time. (vii) The person appointed on a post not possessing the minimum qualification for appointment cannot claim seniority from the date of his initial appointment but can claim seniority only from the date when he gets minimum qualification, (viii) In case of educational institutions like a teacher of the intermediate college, he gets status of a teacher from the date his appointment is approved by the District Inspector of Schools.
34. Keeping in view the above points, it has to be seen whether the plaintiff or defendant No. 3 is the senior.
35. Since the plaintiff was initially appointed as demonstrator and not as Lecturer in Chemistry and which fact is established from the evidence on record, the period during which he remained appointed as demonstrator cannot be counted towards his seniority. Completion of diploma course known as condensed course will waive the minimum qualification but only when it is shown that the appellant's services were terminated and the plaintiff was given appointment. He cannot claim automatic appointment in Lecturer grade after return from successful completion of diploma course training. There is nothing on record that the services of appellant were terminated after the return of plaintiff from training. The plaintiff failed to disclose in what grade he was placed after return from the training. There is nothing like automatic appointment. If the plaintiff was appointed as demonstrator and was only B.Sc. at the time of initial appointment, he was required to be appointed as teacher after completion of training. There is no appointment letter in favour of the plaintiff as Assistant Teacher after completion of training. Service Book was neither summoned nor brought before the court to establish this fact. Consequently the period during which the plaintiff remained appointed demonstrator or remained busy in receiving training cannot be counted towards his seniority.
36. The appellant, on the other hand, worked continuously right from the date of his initial appointment. It could not be established from the record that the appointment of the appellant was in leave vacancy. Even if this appointment was for one session and it continued and was extended and this appointment was with the approval of the District Inspector of Schools, fresh approval was not needed and if fresh approval was given few days after the appointment which was reasonable time consumed during the correspondence, it cannot be said that the appointment of the appellant became irregular,
37. So far as minimum qualification of the appellant is concerned, he was M.Sc. (previous), M.Sc. (Final) was the minimum qualification for appointment of Assistant Teacher. However, during the period between 31.7.1965 to 30.7.1967 there were special circumstances and question arose whether the teachers having M.Sc. (previous) qualification could be given Lecturers grade who were teaching Intermediate classes. G.O. No. E-11/1545/10, dated 24.4.1972 was issued with approval of the Governor of U. P. and Joint Secretary, U. P. Government Education, VIII-Section issued directions in accordance with sanction and approval of the Governor that the teachers having M.Sc. (previous) qualification appointed during the aforesaid period and teaching Intermediate classes are entitled to Lecturers grade. This, therefore, implied that the teachers appointed during 31.7.1965 to 30.7.1967 having M.Sc. (previous) qualification were entitled to be appointed and the exemption so granted shall be deemed to be retrospective. The appellant was appointed during the aforesaid period, hence it cannot be said that his appointment was irregular.
38. Seniority list, as stated, has not become final. According to unrebutted statement of the appellant he filed objection when seniority list was given to him and his signatures were obtained. It was not a long gap when seniority list was challenged by the appellant. Moreover, the appellant did not file any suit challenging seniority list. On the other hand, as a defendant he challenged the correctness of seniority list. The case of Km. Nirmla Gupta v. Smt. Vidyottama Gupta, 1996 AWC 1399, is distinguishable on facts. In this case, the seniority was determined long back say about 20 years back which remained unchallenged. On this ground, it was held that the writ court will not interfere with as the seniority settled long back was not challenged earlier.
39. The Supreme Court in State of U. P. v. Jagdish Narain Rai. 1993 (3) UPLBEC 1611, held that the date of initial appointment of the candidate in service is to be treated as starting point for determining his seniority.
40. Learned counsel for the respondent relied upon few cases. In Ishwar Singh Toma v. District Inspector of Schools, Meerut, 1993 AWC 1752, placing reliance upon the cases of Arya Kanya Pathshala and others v. Smt. Manorama Devi Agnihotri and others, 1971 ALJ 983 ; Prabhu Narain Singh v. District Inspector of Schools, 1977 AWC 358 and Lalit Mohan Misra v. District Inspector of Schools. 1979 ALJ 1025, it held that in the absence of approval granted by the District Inspector of Schools as required under Section 16F (1) of U. P. Intermediate Education Act, the petitioner did not acquire status of teacher prior to the date of approval granted by the District Inspector of Schools.
41. However, as stated earlier, since the appointment of the appellant at the initial stage was made with the approval of the District Inspector of Schools, the initial appointment cannot be said to be invalid. No doubt, it was temporary appointment for a fixed period but after expiry of that period, his appointment was not expressly or impliedly terminated rather he continued in service and thereafter advertisement of post was made, interview was held, the appellant appeared in the interview and was placed at serial No. 1. He was appointed and placed on probation for one year. Both the appointments were in substantive vacancy. Temporary appointment in these circumstances cannot be ignored specially when there was no break in service.
42. The plaintiff has not filed appointment letter dated 1.7.1967, hence it cannot be accepted that he was appointed as Lecturer on this date. Moreover, on that date only one post of Lecturer in Chemistry was available in the college. On that appellant was already serving as Lecturer. His services were not terminated. Thus there could not be two appointments on one post. Moreover, the plaintiff was only demonstrator as per his initial appointment and if he was appointed as Lecturer in service on 1.7.1967, this could be done by issuing fresh appointment letter and terminating the employment of the appellant. If he was appointed Lecturer on 1.7.1967, there was no occasion for him to appear for interview for the same post in view of advertisement made by the college. If he was placed in second position and the appellant was placed in first position and since the appellant was working on the post, his claim could not be turned down by the department. For the reasons given earlier, even if substantive permanent appointment (on probation) of the appellant in pursuance of the interview was confirmed by the District Inspector of Schools vide his letter dated 16.9.1967, by no imagination the period between 1.7.1967 to 16.9.1967 during which the appellant worked as Assistant Teacher in Chemistry could be treated as break in service and could not be counted as continuous service.
43. The case of Shitla Prasad Shukla v. State of U. P. and others, 1984 UPLBEC 461, does not help the respondent. In this case, the petitioner was appointed as Assistant Teacher. He did not possess requisite qualification for Lecturers grade though he was entrusted with teaching work in Lecturers grade. He applied for exemption of requirement of minimum qualification which was granted with effect from a particular date. On these facts, ft was held that the seniority is to be computed from the date the petitioner was granted exemption in the Lecturers grade and not from the date of initial appointment. In the case before me, the facts are otherwise. In view of the Government Order mentioned in the foregoing portion of this judgment, it will be deemed that the minimum qualification during the relevant period stood exempted under the orders of the Governor of Uttar Pradesh and thus the order will have retrospective effect during relevant period. If this was not so, then the teachers appointed prior and after the relevant period could also have been granted the same scale.
44. For the same reason the case of U. P. Basic Shiksha Parishad and another v. Hari Deo Mani Tripathi and others connected with another case in 1993 (2) UPLBEC 1497 can be distinguished.
45. In U. P. Basic Shiksha Parishad and another v. Hari Deo Mani Tripathi and others connected with another case in 1993 (2) UPLBEC 1497, the Assistant Teacher in Lecturer Grade was appointed on ad hoc basis till regularly selected candidate by the Commission joined the post. Regional Inspectress of Girls Schools accorded approval of such appointment. She continued in service. It was held that no fresh sanction of the Regional Inspectress of Girls Schools was needed and any fresh approval given by mistake cannot affect legal status of the appointee. Subsequent appointment or subsequent approval by Regional Inspectress of Girls Schools for such ad hoc employee was not insisted upon in this case which helps the appellant and not the respondent,
46. The Committee of Management while considering grant of selection grade to the appellant and the plaintiff after considering the relevant material found that the appellant was entitled to receive selection grade earlier than the plaintiff-respondent. The plaintiff moved a representation before the District Inspector of Schools who after considering service book of the plaintiff and other record rejected his representation. This order of rejection does not suffer from any illegality.
47. Applying above conclusions to the tests enumerated at serial Nos. 1 to 8 at page 16 of this judgment, it can safely be concluded and summarized that the period during which the plaintiff remained demonstrator in Chemistry cannot be counted for the purposes of his seniority nor the period during which he remained out in connection with receiving diploma course training. Since the defendant No. 3 appellant was appointed temporary Lecturer on a date earlier than the date on which the plaintiff was appointed, the appellant is to be treated as senior. Appointment of the appellant did not suffer from any irregularity. The seniority list not having become final is not conclusive on the point of seniority. The order determining inter se seniority by the District Inspector of Schools is also not illegal. The appellant was entitled to claim exemption from minimum qualification in view of the Government Order dated 24.4.1972 mentioned in this judgment. Consequently, the appellant was senior to the plaintiff-respondent and the seniority was rightly computed by the trial court. It was wrongly computed by the lower appellate court. The judgment of the lower appellate court, inter alia, on technical grounds and also on grounds of wrong calculation of seniority cannot be maintained.
48. The appeal, therefore, succeeds and is allowed with cost. The judgment and decree of the lower appellate court dated 15.12.1990 are set aside and that of the trial court dated 31.1.1987 are restored.