Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 and 6 and Sri Krishna Kumar Chand, learned counsel for respondent nos. 2 to 4.
Learned counsel for the petitioner submitted that vide appointment letter dated 11.3.2002 issued by respondent no. 3, petitioner has been appointed as Assistant Teacher. The said appointment letter is having 38 names in accordance with seniority and name of petitioner find place at serial no. 15 whereas name of respondent no. 5 find place at serial no. 19, therefore, petitioner is senior to respondent no. 5. Vide order dated 24.7.2020, after merger of more than one primary school in one campus, Head Master/ Officiating Head Master was appointed on the basis of seniority. Accordingly, vide order dated 24.7.2020, petitioner was appointed as Head Master at Kanya Prathmik Vidyalaya, Shahjadpur, but vide impugned order dated 28.7.2020 passed by respondent no. 4, order dated 24.7.2020 has wrongly been amended and in place of petitioner, respondent no. 5 has been given charge of Officiating Head Master on the basis of seniority. He next submitted that as per Regulation 22 of U.P. Basic Shiksha (Teachers) Service Rule, 1981, seniority shall be determined on the basis of basic appointment and in case of two or more than persons have been appointed on one date, seniority shall be determined on the basis of seniority list mentioned in the appointment letter. Undisputedly, in the present case, petitioner is senior to respondent no. 5. In support of his contention, he has placed reliance upon the judgement of this Court in the matter of Sunil Kumar Dubey and 46 others Vs. State of U.P. and 13 others passed in Writ C No. 69714 of 2015 vide order dated 6.11.2019 in which the Court has taken the same view.
Pursuant to order of this Court dated 9.9.2021, learned counsel for respondent nos. 2 to 4 has produced instruction dated 13.9.2021 signed by respondent no. 3, which is taken on record. On the basis of instruction, he submitted that petitioner has submitted his joining on 15.3.2002 whereas respondent no. 5 has submitted his joining on 13.3.2002, therefore, she has been treated senior than petitioner.
I have considered the rival submissions made by the parties and also perused the instruction produced by respondent no. 5. From the perusal of instruction, it is absolutely clear that the instruction is contrary to the regulation as well as law laid down by this Court in the matter of Sunil Kumar Dubey (Supra), therefore, matter requires consideration.
Issue notice to respondent no. 5 returnable within six weeks.
Learned Standing Counsel as well as learned counsel for respondent nos. 2 to 4 may file their counter affidavits within four weeks. Rejoinder affidavit may be filed within one week thereafter.
List this case on 8.11.2021 before appropriate Bench.
Until further order of this Court, effect and operation of the impugned order dated 28.7.2020 passed by respondent no. 4 shall remain stayed.
Petitioner is permitted to perform his duty in accordance with order dated 24.7.2020 in case he has not been given charge pursuant to impugned order dated 28.7.2020.
Order Date :- 20.9.2021 Arvind