JUDGMENT Tarun Agarwala, J.
1. The petitioner No. 1, Jawahar Lal was appointed as a class IV employee on 10.1.1973. The petitioner No. 2, Udai Narain Singh was appointed as a class IV employee on 24.4.1974. Tara Singh, respondent No. 5 was appointed as a Daftari by an order dated 5.4.1977. At the time of the appointment of respondent No. 5, the pay scale of respondent No. 5 was the same as that of the petitioner Nos. 1 and 2. It transpires that on the basis of a Government Order dated 10.8.1978, the pay scale of a Daftari was increased w.e.f 1.3.1978. On 31.7.2002, the post of an Assistant Clerk fell vacant which was required to be filled up by way of promotion from a class IV employee.
2. Under Chapter III Regulation II of the Regulations framed under the Intermediate Education Act, the criterion for a promotion is seniority subject to the rejection of the unfit. It transpires that the respondent No. 5, Tara Singh made a representation to the District Inspector of Schools, who passed an order dated 15.10.2001 holding that Tara Singh was the senior most class IV employee inasmuch as, he was receiving a higher pay scale and was working on the post of a Daftari. On the basis of the order of the District Inspector of Schools, the Committee of Management by a resolution dated 3.1.2002 resolved to promote Tara Singh as an Assistant Clerk. The petitioner filed an appeal before the Deputy Director of Education who in turn directed the District Inspector of Schools to decide the matter again and further directed that the order dated 15.10.2001 passed by the District Inspector of Schools Would remain in abeyance till the disposal of the matter. The District Inspector of Schools passed an order dated 27.2.2002 holding that the respondent No. 5 was senior to the petitioners. The petitioners preferred an appeal which was rejected on the ground that the respondent No. 5 was senior as he was getting a higher pay scale . Consequently, the present writ petition has been filed by the petitioners for the quashing of the order dated 2.11.2002 passed by the Deputy Director of Education as well as the order dated 27.2.2002 passed by the District Inspector of Schools and further prayed for a writ of mandamus commanding the respondents to promote the petitioner on the post of an Assistant Clerk.
3. In the connected writ petition, Babu Ram, the petitioner contended that he was appointed on 1.12.1989 and that the respondent No. 5, Vijay Pratap Singh was appointed on 1.12.1995 under the provisions relating to Dying in Harness on a supernumerary post as a Class IV employee and as per the seniority list of 2002-03, the petitioner was found at serial No. 7, whereas the respondent No. 5 was placed at serial No. 9. It transpires that a vacancy arose on the post of a Daftari, in which respondent No. 5 was adjusted and appointed as a Daftari on 28.2.1998. It further transpires that on 20.3.2002, the post of an Assistant Clerk become vacant which was required to be filled up by way of promotion. The respondent No. 2, namely, the District Inspector of Schools by an order dated 11.6.2003 held that the respondent No. 5 was entitled to be promoted as an Assistant Clerk, in view of the fact that he was receiving a higher grade and, therefore, was senior to the petitioner. Consequently, the writ petition was tiled by Babu Ram praying for the quashing of the order of the District Inspector of Schools dated 11.6.2003 and further praying for a writ of mandamus commanding the respondents to promote the petitioner on the post of an Assistant Clerk.
4. Since the issue raised in both the writ petitions is common, the same is being decided together.
5. The admitted position in both the writ petition is, that the petitioners and the respondent No. 5 are class IV employees and that the respondent No. 5 is working as a Daftari, who enjoys a higher pay scale. The post of a Daftari has a higher grade than the post of a peon. However, the post of a Daftari and that of a peon comes under a class IV category. A class III post, namely, the post of an-Assistant Clerk is required to be filled up by way of promotion and the relevant Rules, governing the promotion from a Class IV post to a Class III post, is sub clause 2 of Regulation II of Chapter II of the Regulations framed under the U.P. Intermediate Education Act which reads as under:-
(2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employee possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit.
If any employee is aggrieved by any decision or order of the management committee in this respect then he can make representation against it to the Inspector within two weeks from the date of such decision, or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management.
Note- In calculating fifty percent of posts parts less than half would be left and half or more than half post would be deemed as one.
6. From the aforesaid, it is clear that 50% of the total number of sanctioned posts of a Head Clerk or a clerk is required to be filled up by way of promotion from a class IV employee, if the person possesses the requisite qualifications and has served continuously for more than 5 years on a substantive post and, that his service record was good, in that eventuality, the promotion would be made on the basis of seniority subject to the rejection of the unfit.
7. Admittedly, the petitioners, in both the writ petitions, were appointed prior to the appointment of respondent No. 5 and, therefore, on account of the length of service, the petitioners are senior to respondent No. 5. However, the respondent No. 5 is receiving a higher grade and, therefore, the question which arises for consideration is, whether a Daftari, who is working on a higher pay scale, is liable to become senior on the ground that he is drawing a higher pay scale than that of a peon inspite of the fact that a Daftari was appointed after the appointment of the peon.
8. In Surya Nath Ram v. District Inspector of Ballia in writ petition No. 41618 of 2001 decided on 7.2.2002, the learned Single Judge held-
Seniority is a relative concept. If two persons are functioning in the same rank or grade they are similarly circumstanced and the question of determining inter se senioirity amongst them may arise. But, if one is holding a post of higher grade than the other, the two do not belong to the same class and are not similarly circumstanced and in such cases in the absence of any rule to the contra 17 the one in the lower grade cannot claim on length of service right of preferential consideration or equal opportunity in matters of promotion over the one in the higher grade. In the present case it is not disputed that the grade of Daftari is higher to other class IV employees as such the post of Daftari would be a class apart although it would within the general classification of class IV post along with other posts of Peon etc. but being a post of higher grade would certainly be a higher position in Class IV.
9. The learned Judge held that the post of a Daftari is a higher grade than that of a peon and, therefore, is a class apart from other class IV posts" and, therefore, a person in a higher grade even if he was junior by virtue of the length of service would still rank senior by virtue of being given a higher grade. The aforesaid judgment was relied upon in another decision dated 6.2.2004 passed in writ petition No, 56751 of 2003 in the case of Ram Bhajan Singh v. State of U.P. and Ors.
10. On the other hand in Hari Krishna Yadav v. Deputy Director of Education, Meerut and Ors. in writ petition No. 28699 of 1995 decided on 8.12.1997, a learned Single Judge held-
This payment of salary in a higher time scale of pay is wholly irrelevant to the question relating to the inter se seniority of the employees falling in the same Class IV cadre.
11. Heard Sri G.K. Singh, the learned Counsel for the petitioner in writ petition No. 1199 of 2003, Sri K.C. Vishwakarma for the respondent No. 5 and the learned Standing Counsel for the educational authorities and Sri Shashi Kumar, the learned .counsel for the petitioner in the connected writ petition and Sri P.N. Saxena, the learned Senior Counsel for the respondent No. 5.
12. One decision states that the entire Intermediate Education Act does not envisage a distinction between a Daftari and a Peon in so far as interse seniority is concerned and that the payment of salary in a higher pay scale is wholly irrelevant to the question relating to the inter se seniority of the employees falling in a Class IV cadre. On the other hind, another decision indicates that the post of a Daftari being a class apart within the general classification of a Class IV post and being in a higher grade, would be senior to other class IV employee and therefore entitled for promotion on a Class III post.
13. Regulation II of Chapter III of the Regulations framed under the Intermediate Education Act provides for a promotion of a Class IV employee to a Class III post who possesses the requisite proscribed qualifications, who had served continuously for five years on a substantive post and whose service record was good and, if all the three conditions are found to be existing, in that eventuality, the promotion shall be made on the basis of the seniority subject to the rejection of the unfit. The word " shall" is mandatory and is dependent upon the fulfilment of the conditions prescribed under Clause 2 of Regulation II of Chapter III of the Regulations framed under the Intermediate Education Act. The promotion is required to be made on the basis of seniority subject to the rejection of the unfit.
14. From the aforesaid, it is clear that the feeding cadre of a class III post is from" a class IV employee and within a class IV employee, there is no interse classification amongst class IV employee for the purpose of promotion. Clause 2 of Regulation II of Chapter III of the Regulations framed under the Intermediate Education Act clearly indicates that the promotion "shall" be made on the basis of seniority subject to the rejection of unfit. Therefore, a class IV employee, who has put in a greater length of service is to be considered first for the promotion, since he is the senior most. The regulation does not envisage a distinction between a Daftari and a peon in so far as the inter se seniority is concerned. In my opinion, the mere fact that the Daftari gets a higher salary could not be taken to be a factor to make a Daftari senior to a peon.
15. In my opinion, I am inclined to agree with the reasoning given in the decision dated 8.12.1997 passed in the case of Hari Krishna Yadav v. Deputy Director of Education, Meerut and Ors. in writ petition No. 28699 of 1995. Clause 2 of Regulation II of Chapter III of Intermediate Education Act clearly indicates that a promotion shall be made on' the basis of seniority subject to the rejection of the unfit and the said provision does not envisage that a person receiving a higher salary would become senior to a person receiving a lower salary in a class IV category. The payment of higher salary is wholly irrelevant to the question relating to the interse seniority as contemplated under the said Regulation.
16. In A.K. Bhatnagar and Ors. v. Union of India and Ors. 1991 (1) SCC 5414, it has been held that the length of service ordinarily should be taken into account. The Supreme Court held-
The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely , governed by such rules. In the absence of a provision ordinarily the length of service is taken into account.
17. From the aforesaid, it is clear that the Clause 2 of Regulation II of Chapter III of the Intermediate Education Act clearly provides that the promotion shall be made on the basis of the seniority, the same has to be strictly followed. The question that a person receiving a higher pay scale would become senior automatically to a person receiving lower pay scale does not arise. There is another aspect which is required to be considered . As per the counter affidavit of the educational authorities, the post of a Daftari is required to be filled up by way of promotion or by direct recruitment. No provision has been shown by the learned Standing Counsel providing promotion of a class IV employee to the post of a Daftari. In my opinion, the post of Daftari can only be filled up by way of a direct recruitment. Therefore, as and when a person is appointed on the post of a Daftari he would automatically become senior. If the concept of making a person receiving a higher pay scale becoming senior is taken into consideration, in such an eventuality, whenever a class III post becomes vacant, in that event, a Daftari would always be promoted as he would be deemed to be senior to other class IV employees on the basis of receiving a higher pay scale. In my opinion, this was not envisaged under the Regulations. The criterion for determining the seniority amongst class IV employee should always be the length of service.
18. Since there is a conflict of opinions given by this Court in the aforesaid decisions, in my opinion, the matter is required to be decided b} a larger bench in order to decide this controversy once and for all. Consequently, I direct the registry to place the papers before the Hon'ble Chief Justice to refer the matter to a larger bench to decide the aforesaid controversy.
19. The writ petitions shall be listed for admission and for final disposal after the opinion is given by a larger Bench.