1. Writ Petition No. 51876 of 2008 has been filed by Sri Munshi Lal Verma, (hereinafter referred to as he petitioner) a teacher of Uttam Inter College, Jirauli Dhoom Singh, Aligarh (hereinafter referred to as the "College") challenging order dated 19.09.2008 (Annexure-22 to writ petition) passed by District Inspector of Schools, Aligarh (hereinafter referred to as the "D.I.O.S.") referring to this Court's order dated 14.12.2005 passed in writ petition 75357 of 2005 filed by Sri Babu Singh Raj (hereinafter referred to as "the contesting respondent"), suspending his own order dated 30.08.2008 whereby he had approved signature of petitioner.
2. The facts, in brief, stated in the writ petition are that the petitioner was appointed as Assistant Teacher in BTC grade on 21.07.1972 while Sri Babu Singh Raj, respondent no.4 (the contesting respondent) was appointed in the same grade on 01.11.1977. Both of them thereafter were given higher grade on the same dates namely, C.T. grade on 01.07.1979, L.T. Grade on 11.04.1990 and Selection Grade on 11.04.2000. The date of birth of petitioner is 08.12.1950 while that of contesting respondent is 01.01.1951. The petitioner, therefore, claims that he is much senior to contesting respondent in view of Chapter II, Regulation 3(1) (bb) of the Regulations framed under Intermediate Education Act, 1921 (hereinafter referred to as "the Regulations").
3. It is pointed out that a seniority list was circulated by Principal of the College on 15.07.1992 showing inter se seniority of teachers as on 01.07.1989 wherein petitioner was shown at serial No. 5 while the contesting respondent was shown at serial No. 7. The date of appointment of both were mentioned as 21.07.1972 and 01.11.1977 respectively. However without disclosing correct facts the contesting respondent filed writ petition No. 17178 of 1992. It was disposed of on 14.05.1992 directing D.I.O.S. to decide his representation. Pursuant thereto, D.I.O.S. passed an order on 06.11.1992 in favour of contesting respondent who had claimed that he had served for two years in another institution and, therefore, service rendered thereat, i.e. Adarsh Bharti Inter College, Kalwa, Aligarh from 01.07.1971 to 30.06.1973 in C.T. grade be credited towards his experience to hold him eligible for C.T. grade having completed five years on 11.04.1983. The D.I.O.S. accepted this claim. This order dated 6.11.1992 was challenged by one Kunwar Pal Singh in a writ petition which was decided vide judgement dated 10.02.1993 relegating him to avail alternative remedy before Deputy Regional Director of Education (hereinafter referred to as 'DDE') under Rule 3(1)(f), Chapter-II of the Regulations. The said order dated 10.02.1993 was also affirmed in Special Appeal No. 203 of 1993 which was dismissed on 18.08.1994 though directed DDE to decide the appeal, if filed, within three months after affording opportunity of hearing to all concerned parties. While aforesaid appeal was pending the contesting respondent was allowed promotion by D.I.O.S. in L.T. grade w.e.f. 11.04.1983 vide order dated 05.11.1996 modifying its earlier order dated 06.11.1992. However, this order dated 05.11.1996 was revoked when D.I.O.S. was informed about appeal pending against his order dated 6.11.1992.
4. The contesting respondent challenged order dated 17/18.12.1996 in writ petition No. 768 of 1997 wherein an interim order was passed staying operation of order dated 17/18.12.1996. The Deputy Director of Education vide order dated 03.07.1997 decided appeal of Kunwar Pal Singh Tomar. Promotion of the contesting respondent i.e. Babu Sing Raj was approved and recognised with effect from the date of resolution conveyed by committee of management for direct recruitment of Sri Santosh Kumar Pundir. Writ Petition No. 768 of 1997 was later on dismissed as infructuous vide order dated 08.08.2005.
5. Although the contesting respondent did not challenge said order dated 03.07.1997 of DDE but it was assailed by one Sri Shiv Dan Singh, another Teacher of the College, appointed in BTC grade on 01.07.1976 in Writ Petition No. 16796 of 1998 which was disposed of on 15.5.1998 on the ground of alternative remedy of appeal before Director of Education under clause 7 of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended by U.P. Secondary Education Services Commission (Four) (Removal of Difficulties) Order, 1982. Sri Shiv Dan Singh filed appeal before Director of Education against order dated 03.07.1997 who decided the same on 15.12.1998 setting aside the order dated 03.07.1997 whereby promotion of the contesting respondent was recognised with effect from the date of resolution submitted for direct recruitment of Santosh Kumar Pundir for the reason that there was no vacancy and hence appointment of Santosh Kumar Pundir was not recognised by department. This order of Director of Education was challenged by the contesting respondent in writ petition no. 1954 of 1999.
6. One Ram Sewak Sharma, Assistant Teacher was officiating as Principal whose officiation was revoked by D.I.O.S. by means of order dated 4.3.1999. Hence, writ petition no. 27181 of 1999 was filed by committee of management challenging D.I.O.S.'s order dated 4.3.1999. In this writ petition, Sri Ram Sewak Sharma was petitioner no.2. Following reliefs were sought in this writ petition:
"A. to issue a writ, order or direction in the nature of certiorari quashing the orders of respondent no. 1 dated 28.6.1999 and 4.3.1999 (Annexures XIV and XIII respectively to the writ petition);
B. to issue a writ, order or direction in the nature of mandamus directing respondent no.1 to attest signature of petitioner no.2 as officiating Principal of the institution;"
No interim order was passed therein and the matter remained pending.
7. Since the interim order passed in writ petition 768 of 1997 (which was dismissed on 8.8.2005) was continuing , the D.I.O.S. by order dated 3.5.1999 on purely temporary basis allowed the contesting respondent to function as Officiating Principal, treating him seniormost teacher in the College and approved his signature.
8. During pendency of the writ petition no. 27181 of 1999, it appears, the matter was agitated again before D.I.O.S., probably on the change of officer concerned, who by order dated 20.6.2002 approved and recognised Sri Ram Sewak Sharma as Officiating Principal of the College. The contesting respondent made a representation dated 15.9.2003 against order dated 20.6.2002. The D.I.O.S. considered the same and vide order dated 16.1.2004 held that order dated 20.6.2002 was obtained concealing pendency of writ petition no. 27181 of 1999, hence recalled the said order dated 20.4.2002 and continued earlier order dated 4.3.1999, and, approved signature of Babu Singh Raj as Officiating Principal till writ petitions no. 27181 of 1999 and 768 of 1997 are decided.
9. As already said, writ petition no. 768 of 1997 wherein an interim order was passed on 10.1.1997 was dismissed on 8.8.2005. The D.I.O.S. therefore, vide order dated 3.12.2005 cancelled/revoked his orders dated 4.3.1999 and 6.1.2004 and recognised signature of Ram Sewak Sharma as Officiating Principal. Aggrieved, the contesting respondent preferred writ petition no. 75357 of 2005 seeking following reliefs:
10. Sri Ram Sewak Sharma was impleaded as respondent no.5 therein. The contesting respondent contended that Sri Ram Sewak Sharma has attained the age of superannuation on 19.7.2005 whereafter he may continue as a teacher till the end of session but cannot officiate as Principal in view of the decision in Raja Ram Chaudhary Vs. Satya Narayan Gupta 2003(2) ESC 596. This Court passed interim order on 14.12.2005 staying operation of order dated 03.12.2005.
11. The petitioner Munshi Lal Verma claimed himself senior to the contesting respondent thus after retirement of Sri Ram Sewak Sharma on attaining age of superannuation on 19.07.2005, staked his claim to officiate as Principal. He filed a representation to District Magistrate which was forwarded to D.I.O.S. by District Magistrate's letter dated 22.08.2003 whereupon D.I.O.S. required the College (Principal as well as committee of management) to place relevant records so as to determine seniority of petitioner and respondent no.4 vide his letter dated 27.9.2003 and 7.10.2003. In this regard, a report dated 21.9.2007 was submitted by Assistant District Inspector of Schools Aligarh stating that petitioner is senior to the contesting respondent. The Assistant District Inspector of Schools was working as Authorised Controller in the College. His report dated 21.9.2007 was challenged by the contesting respondent in writ petition no. 57356 of 2007 which was disposed of vide judgment dated 27.11.2007 directing D.I.O.S. to decide the dispute of seniority objectively after giving opportunity of hearing to all concerned parties. The relevant extract of the order reads as under:
"In these circumstances and in this background, as order, which is impugned is the report submitted to the D.I.O.S., Aligarh, D.I.O.S., Aligarh is directed to take objective consideration on the same in accordance with law, preferably within period of six week from the date of production of certified copy of this after affording opportunity of hearing to both the parties by reasoned order. This Court at this interim stage as such refused to interference with the same.
With these observations, writ petition is disposed of."
12. Pursuant thereto, the D.I.O.S. vide order dated 7.3.2008 held the petitioner senior to the contesting respondent. This order was assailed in writ petition no. 15178 of 2008. This writ petition was disposed of vide judgment dated 31.3.2008 and the relevant extract of the order reads as under:
"..... Under such circumstances no interference is required in the impugned order in so far as officiating charge on the post of Headmaster is to be given to the senior most qualified teacher. The petitioner should approach the Joint Director of Education and pursue his appeal relating to the dispute raised by him of his seniority over the respondent no. 5.
In case the petitioner files a suitable application along with a certified copy of this order before the Joint Director of Education (respondent no.2) within a period of 10 days from today the Joint Director of Education, Agra Region, Agra shall after giving opportunity to the authorised controller Uttam Inter College, Jirauli Dhoom Singh, District Aligarh and also Sri Munshi Lal Verma respondent No. 5 take a decision in accordance with law within a period of three weeks thereafter.
The writ petition stands disposed of with the aforesaid directions. No order is passed as to costs."
13. Consequent thereto the contesting respondent pursued his appeal before the Joint Director of Education (hereinafter referred to as 'JDE') which he had already filed against the order dated 21.5.2007. The said appeal was decided by JDE vide order dated 18.8.2008 affirming seniority of petitioner over the contesting respondent. Consequently, the D.I.O.S. vide order dated 30.8.2008 recognized the petitioner as seniormost teacher in the College, allowed him to officiate as Principal, and approved his signature.
14. Aggrieved by appellate order dated 18.8.2008 and the consequential order dated 30.8.2008, the contesting respondent filed writ petition 46558 of 2008 challenging the two orders and also sought a writ of mandamus commanding the respondents not to interfere in his functioning as Officiating Principal. No interim order was passed in the aforesaid writ petition. Initially when matter came up on 8.9.2008, the counsel for the petitioner sought adjournment whereupon the Court while adjourning the matter directed it to be listed along with writ petition 75357 of 2005 and later on vide order dated 17.2.2010 other writ petitions pertaining the said institution and relating to similar dispute, namely, 1954 of 1999, 46558 of 2008, 51876 of 2008, 62159 of 2008, 14363 of 2008 were connected.
15. However, the D.I.O.S. himself revoked his order dated 30.08.2008 referring to interim order dated 14.12.2005 passed by this Court in writ petition no. 75357 of 2005. The petitioner Munshi Lal Verma challenged order dated 19.09.2008 in writ petition no. 51876 of 2008, (the leading case) seeking following reliefs:
" (i) to issue a writ, order or direction in the nature of certiorari quashing the order of respondent no.2 dated 19.9.2008 (Annexure -22 to the instant writ petition. (ii) to issue a writ, order or direction in the nature of mandamus, restraining the respondent no. 4 from interfering in the functioning of the petitioner as officiating Principal." This Court directed the parties to maintain status quo by interim order dated 1.10.2008 and the writ petition was connected with writ petition no. 75357 of 2005.
16. In the light of the aforesaid interim order, the D.I.O.S. sent a letter dated 18.11.2008 informing the Authorised Controller of the college that the petitioner Munshi Lal Verma shall continue to function as Officiating Principal. Accordingly an order to the same effect was passed on 20.11.2008 by the authorised Controller of the of the college. The contesting respondent challenged both these orders dated 18.11.2008 and 20.11.2008 in writ petition no. 62159 of 2008 wherein no interim order was passed. Presently this writ petition has been dismissed as withdrawn vide order dated 13.04.2010 of this Court. The interim order dated 1.10.2008 of status quo created more complication than solving the problem inasmuch as, both the parties claimed to have charge of Officiating Principal causing a lot of obstructions and hindrances in smooth functioning of the college. It is in these circumstances, the D.I.O.S. passed an order on 04.03.2009 observing that petitioner shall continue to officiate as Principal. This order was also communicated to Deputy Collector, Atrauli, Aligarh vide D.I.O.S.'s letter dated 20.04.2009.
17. The salary bill of the contesting respondent consequently was prepared by the lower post and the amount paid in excess treating him on the post of Officiating Principal sought to be deducted. Against this deduction the contesting respondent filed writ petition no. 21385 of 2009 seeking following reliefs:
" (i) Issue a suitable writ, order or direction in the nature of mandamus, commanding the respondents to forthwith confer the payment of salary to the petitioner which is admissible to an Officiating Principal without any sort of deduction. (ii) Issue any other suitable writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case." 18. No interim order was passed therein also. The contesting respondent noticing some further discrepancies in his salary bill filed another writ petition no. 36094 of 2009 seeking following reliefs: "i. Issue a suitable writ, order or direction in the nature of certiorari to quash the salary bill for the month of March, 2009(Annexure No. 34 to the writ petition) which has been sent to the office of District Inspector of Schools whereby the petitioner has been relegated to the lowest pay scale which is admissible to the Assistant Teacher. ii. Issue a suitable writ, order or direction in the nature of mandamus, commanding the respondents to forthwith confer the payment of salary to the petitioner which is admissible to an Officiating Principal without any sort of deduction. iii Issue a suitable writ, order or direction in the nature of mandamus commanding the respondents to forthwith confer the financial power to the petitioner for the reasons that as of today the signatures of Munshi Lal Verma has not been attested by the District Inspector of Schools which a mandatory exercise of power." 19. This petition was disposed of vide judgment dated 30.7.2009 with the following order:
"Heard learned counsel for the parties. Petitioner seeks quashing of the salary bill of March, 2009 and a mandamus commanding the respondents to pay salary to the petitioner as is admissible to officiating Principal without any deduction. However, after some submissions counsel for the petitioner has confined the prayer only to re-fixation of salary as per the enforcement of Sixth Pay Commission's recommendation.
It has specifically been stated by the counsel for the petitioner that he is not claiming the salary of officiating Principal in the present writ petition, inasmuch as for the purpose earlier writ petitions have been filed.
Consequently, the present writ petition is disposed of by providing that the prayer of the petitioner for re-fixation of the salary in accordance with the Sixth Pay Commission, irrespective of the fact whether he is entitled to the grade of Principal or not, be determined by the District Inspector of Schools within four weeks from the date a certified copy of this order is filed before him. Arrears, if any, in that regard may be paid within a further period of four weeks.
It is clarified that this Court has not adjudicated upon the claim of the petitioner for salary qua the post of officiating Principal. "
20. Pursuant to the order dated 30.7.2009, the D.I.O.S. passed an order on 31.12.2009 reiterating that the petitioner is senior to the contesting respondent and, therefore, latter is not entitled to payment of salary on the post of Officiating Principal. It also passed another order dated 1/1/2010 for fixation of salary of the contesting respondent as Assistant Teacher in the revised pay scale as per VI Pay Commission directing the Authorised Controller/Principal of the College to prepare salary bill accordingly and submit. These two orders dated 31.12.2009 and 1.1.2010 were challenged by contesting respondent claiming that he is entitled to payment of salary as Officiating Principal, in writ petition 8336 of 2010 seeking following reliefs:
" i Issue a writ, order or direction in the nature of certiorari calling for records and to quash the orders dated 31.12.2009 and 1.01.2010 passed by the respondents (Annexure No. 21 and 22 to the writ petition. ii. Issue a suitable writ, order or direction in the nature of mandamus, commanding the respondents to treat the petitioner to be the officiating Principal of the institution and to re-fix his salary on the post of Officiating Principal while granting him all consequential benefits attached thereto. iii. Issue any other suitable writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case." No interim order in this writ petition has been passed. 21. Therefore, in all these writ petitions the cardinal question up for consideration is the seniority of petitioner Munshi Lal Verma vis a vis the contesting respondent Babu Singh Raj.
22. Besides, some incidental issues have also been raised. The contesting respondent in his capacity as Officiating Principal of the College filed writ petition 14363 of 2008 seeking mandamus to D.I.O.S. to take immediate steps by initiating disciplinary proceedings against Munshi Lal Verma for alleged violation of the provisions relating to bigamy and take action as per Rule 7 of U.P. Secondary Education Services Selection Board Rules, 1998.
23. The two parties continued to create disturbances as both were claiming actual control of the office of Officiating Principal. The D.I.O.S. passed an order dated 27.7.2010 requesting both the parties to work in coordination in the interest of institution. The contesting respondent was directed to function in the supervision of petitioner. Challenging this order also the contesting respondent filed writ petition 47104 of 2010 wherein also no interim order was passed. Here he has also challenged the qualification of petitioner to function as Principal of the College. The case of the contesting respondent is that qualification for Principal of the College is M.A., B.Ed. though the petitioner is only M.A., B.T.C.
24. In nutshell six writ petitions with which this Court is concerned presently include one writ petition filed by Sri Munshi Lal Verma, four writ petitions filed by Sri Babu Singh Raj and one by committee of management of the College.
25. The basic facts which are not disputed are that Munshi Lal Verma was appointed as Assistant Teacher (B.T.C.) on 21st July 1972 while Babu Singh Raj was appointed as Assistant Teacher (B.T.C.) on 1.11.1977 in the College. Ex facie, on the post of Assistant Teacher (B.T.C.) in the College, Munshi Lal Verma would be senior to Babu Singh Raj. The problem arose in fact later on. It is not disputed by the parties that both were appointed as Assistant Teacher C.T. Grade on the same date, i.e., on 1st July 1979. Babu Singh Raj claimed that he had worked as Assistant Teacher, C.T. Grade at Adarsh Bharti Inter College, Kalwa, Aligarh from 1.7.1971 to 30.6.1973 and this period should count for the purpose of computing his five years service in C.T. Grade for considering him eligible for promotion as Assistant Teacher, (L.T. Grade) and in that view of the matter, he was entitled for promotion in L.T. Grade w.e.f. 11.4.1983 and thereby would become senior to Munshi Lal Verma who was promoted as Assistant Teacher (L.T. Grade) on 11.4.1990. If this claim of Babu Singh is correct, there should be something in his favour and not otherwise.
26. Promotion to the post of Assistant Teacher, L.T. Grade at the relevant time is governed by Regulation 6(1) of Chapter II of the Regulations which reads as under:
"6(1): Where any vacancy in the lecturer's grade or in the L.T. grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. grade, as the case may be, having a minimum of five years' continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer's grade or in the L.T. grade is required.
Note- For purposes of this clause, service rendered by a teacher in the L.T. or the C.T. grade in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post."
27. It talks of five years continuous service. Note appended to sub-regulation (1) provides that service rendered by a teacher in any other recognised institution shall count for eligibility unless interrupted by removal, dismissal or reduction to a lower post. A suggestion is made that the note does not talk of any interrupted service and therefore, irrespective of the period of interruption the service rendered in another institution shall count to determine five years' continuous service towards determining eligibility under Regulation 6(1).
28. The submission is thoroughly misconceived.
29. Statutory provision is to be read in its entirety and it would mean that to claim eligibility for promotion as Assistant Teacher, L.T. Grade one has to work for five years' continuously in substantive service. In respect of Babu Singh Raj though there is some dispute as to whether he worked actually as Assistant Teacher (C.T. Grade) at Adarsh Bharti Inter College but assuming what he says is correct, the aforesaid service confers no benefit upon him in the case in hand for the reason that he worked according to him at Adarsh Bharti Inter College from 1.7.1971 to 30.7.1973 and thereafter for about 4½ years there is an interruption. On 1.11.1977 he was appointed as Assistant Teacher (B.T.C. Grade) and thereafter was promoted as Assistant Teacher (C.T. Grade) 1.7.1979. By no stretch of imagination the service rendered at Adarsh Bharti Inter College would therefore, qualify to count for considering him eligible for promotion as Assistant Teacher (L.T. Grade) in the college in question. No benefit can be assigned to him for the said service. That being the position Sri Munshi Lal Verma is clearly senior to Babu Singh Raj and in my view, this state of affairs attracts no confusion at all.
30. In writ petition no. 75357 of 2005 Sri Babu Singh Raj has challenged order dated 3.12.2005 (Annexure 9 to writ petition) whereby the D.I.O.S. has revoked his orders dated 4.3.1999 and 6.1.2004. The order dated 4.3.1999 is one whereby D.I.O.S., in purported compliance of interim order dated 10.1.1997 passed in writ petition no. 768 of 1997, treated Babu Singh Raj's promotion in L.T. Grade w.e.f 11.4.1983 and as a consequence thereof approved his signature as Officiating Principal till regularly selected candidate is available and simultaneously revoked his order dated 15.7.1998 whereby signature of Ram Sewak Sharma as Officiating Principal was approved. Without going into anything further, suffice it to mention that writ petition no. 768 of 1997 has been dismissed by this Court on 8.8.2005. Dismissal of writ petition no.768 of 1997 results as if no interim order was passed therein. Therefore, the interim order dated 10.1.1999 disappears from its very inception. The effect of dismissal of the writ petition has been considered by a Division Bench of this Court ( of which I was also a Member) in Smt. Sunita Singh and ohters Vs. The Bal Vikas Pariyojana Adhikari Mau and others (Special Appeal No. (491) of 2003 decided on 18.8.2006 wherein it has been observed:
"Further a person who has continued under the interim order of the Court cannot be allowed to retain the benefit when the writ petition is dismissed. The interim order passed merges with the final order of dismissal as if it was never passed. As long back as in 1968, in Shyam Lal Vs State of U.P., AIR 1968 Alld 139, a Division Bench of this Court held that the interim order merges in final order and once the writ petition is dismissed it would take effect as if no order was passed in favour of the litigant. The same view was reiterated in Sri Ram Charan Das Vs. Pyare Lal- AIR 1974 Alld 280, Shyam Manohar Shukla vs. State of U.P.-1986 (4) LCD 196 and M/s Kanoria Chemicals and India Limited Vs. U.P.S.E.B. and others-AIR 1994 Alld 273. The aforesaid view has also been approved by a Full Bench of this Court in Surya Deo Mishra Vs. State of U.P. and others, 2006 All. C.J.117.
In such circumstance, any extension of sympathy to such petitioner would negate not only the rule of law but would also cause a permanent prejudice to other side if one party is permitted to continue enjoy and retain a benefit under the interim order. The act of Court shall prejudice none is well recognized principle of law. Therefore, the petitioner-appellants cannot claim any benefit merely for continuing on the post on the basis of interim order obtained from this Court. The Apex Court in the Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur and another Vs. Sree Kumar Tiwary & another- AIR 1997 SC 3071, held that a person who has obtained stay order and continued in service, is not serving by virtue of any order of appointment, but continuing in the office under the direction of the Court and in case he fails in the writ petition, his continuance under the order of the Court would not result in any benefit to him. A similar contention has already been negated by this Court in Special Appeal No. 32 of 2006 Lalla Prasad Vs. State of U.P. and other decided on 12.1.2006."
31. Recently in Shiv Kumar Dwivedi Vs. State of U.P. and others (Writ Petition No. 32826 of 1993) decided on 23.02.2011 in paragraphs no. 19 to 23 this Court while taking into account several authorities of the Apex Court has considered the effect of dismissal of writ petition in detail and has expressed the same view as above.
32. In the instant case, the order dated 4.3.1997 having been passed in purported compliance of interim order dated 10.1.1997 in writ petition no. 768 of 1997, as soon as the writ petition stands dismissed on 8.8.2005, it would result as if no interim order was passed ever, and therefore order dated 4.3.1999 also vanishes. In the circumstances, the D.I.O.S. after dismissal of writ petition on 8.8.2005 has not committed any error in revoking his order dated 4.3.1999.
33. Now the second order which has been revoked by the impugned order dated 3.12.2005 is dated 16.1.2004 which is on record as Annexure 7 to the said writ petition. This order dated 16.1.2004 was also issued by D.I.O.S. subject to final decision in writ petition no. 768 of 1997 and 27181 of 1999. As already discussed above writ petition no. 768 of 1997 was dismissed on 8.8.2005 resulting in extinguishing the interim order dated 10.1.1997 from its very inception. That being so, order dated 16.1.2004 which was subject to the result of writ petition no. 768 of 1997 also deserves to be set aside. The D.I.O.S. in giving effect to this natural consequence has not committed any error apparent on the face of record. I, therefore, find no error apparent on the face of the order dated 3.12.2005 in writ petition no. 75357 of 2005. The writ petition is devoid of merit and deserves to be dismissed.
34. In writ petition 27181 of 1999 two orders have been assailed i.e. dated 4.3.1999 and 28.6.1999. The former one having already been revoked by D.I.O.S. vide order dated 3.12.2005 which has been upheld in writ petition no. 75357 of 2005, as discussed above, the relief to this extent in this writ petition is rendered infructuous.
35. The second order is dated 28.6.1999. A copy of this order is Annexure 14 to the writ petition no. 27181 of 1999. This order has been passed by D.I.O.S. in purported compliance of interim order dated 10.1.1997 stating that since signatures of Sri Babu Singh Raj as Officiating Principal were approved in purported compliance of interim order dated 10.1.1997 by D.I.O.S.'s order dated 4.3.1999 and since at that time that interim order was continuing, hence it was not possible to approve signature of Sri Ram Sewak Sharma as Officiating Principal. Since the order dated 4.3.1999 as already stated above has been revoked by D.I.O.S. himself later on 3.12..2005 which order has been upheld by this Court in writ petition no. 75357 of 2005, the impugned order dated 28.6.1999 also does not survive. So far as further relief sought in writ petition no. 27181 of 1999 that D.I.O.S. should not attest signature of Sri Ram Sewak Sharma as Officiating Principal is concerned, the relief can not be granted since admittedly Sri Ram Sewak Sharma has retired long back rendering it now infructuous. Writ petition No. 27181 of 1999 in its entirety is rendered infructuous and deserves to be dismissed.
36. In writ petition no. 46558 of 2008 Sri Babu Singh Raj has assailed order dated 18.8.2008 (Anenxure 26 to the writ petition) passed by JDE and consequential order dated 30.8.2008 passed by D.I.O.S. The JDE has declared petitioner senior to the contesting respondent. Here also the fact discussed by him and referred to in para 4 internal page 6 and page 136 of paper book of the writ petition, it makes clear that Munshi Lal Verma was appointed as Assistant Teacher (BTC) much earlier to Sri Babu Singh Raj and the date of further appointment of both are same. It is also evident therefrom that the College was in grant-in-aid upto Primary School when both these teachers were appointed as Assistant Teacher, (BTC). At the time of such appointment, Munshi Lal Verma possessed the qualification of High School, BTC while Babu Singh Raj was M.A., B.Ed. Both were absorbed in C.T. Grade on 1.7.1979, L.T. Grade on 11.4.1990 and were granted selection grade of L.T. Grade on 11.4.2000. Sri Babu Singh Raj claimed that he should actually be promoted in L.T. Grade in 1983. This claim of Babu Singh Raj was examined by JDE. He noted that the College was upgraded upto High School on 11.4.1980. On 28.2.1981 two posts of Assistant Teachers (L.T. Grade) were created out of which one was in promotion quota and one for direct recruitment. Sri Babu Singh Raj claimed that he was the sole eligible candidate for promotion on the basis that he had served in C.T. Grade though for less than five years in the college but two years service was rendered in Adarsh Bharti Inter College and if added, he may become eligible. However, no order of promotion was available on record. For the first time, in 1992 Babu Singh Raj filed writ petition no. 17178 of 1992 which was disposed of on 29.5.1992 wherein Babu Singh Raj raised a dispute of his promotion with effect from 1983. No dispute was raised at that time. Even appointment in L.T. Grade on 11.4.1990 was never challenged. The D.I.O.S. in purported compliance of order dated 29.5.1992 of this Court decided representation of Sri Babu Singh Raj recommending his promotion on the post of Assistant Teacher (L.T. Grade) retrospectively but this order of D.I.O.S. was challenged in appeal before DDE who decided the matter on 3.7.1997 holding that Babu Singh Raj could be treated to have been promoted as Assistant Teacher, L.T. Grade from the date appointment of Sri Santosh Kumar Pundir was proposed by the management. The D.I.O.S. passed an order recommending promotion w.e.f. 11.4.1983. The matter was taken before Director of Education pursuant to this Court's order dated 15.5.1998. in writ petition no. 16796 of 1998 and the Director of Education vide its order dated 15.12.1998 held that alleged claim of promotion of the contesting respondent in LT Grade w.e.f. 11.4.1983 was not valid.
37. Even before this Court Babu Singh Raj did not place any order of his promotion promoting him as Assistant Teacher LT Grade in 1983. The order of D.I.O.S. disappears after the order dated 15.5.1998 of Director of Education. As already discussed under Regulation 6(1) Chapter 2 of the Regulations Babu Singh Raj could not have taken advantage of two years' service in Adarsh Bharti Inter College since the requirement is five years continuous substantive service. In the circumstances, and as also discussed above since this Court has found Sri Munshi Lal Verma senior to Babu Singh Raj, I find no error apparent on the face of record in the order dated 18.8.2008 (Annexure 26 to the writ petition) and consequential order dated 30.8.2008. The writ petition No. 46558 of 2008 also deserves to be dismissed.
38. In writ petition no. 47104 of 2010 Babu Singh Raj has challenged the order dated 27th July 2010 of D.I.O.S. whereby he was directed to coordinate with Sri Munshi Lal Verma for smooth running of the College with further direction that the institution shall run under the control of Munshi Lal Verma. Since this Court is of the view that the petitioner is senior to contesting respondent and, therefore, was entitled to hold the charge as Officiating Principal, in absence of any candidate appointed on regular basis on the said post, I find no irregularity or illegality in the order impugned in this writ petition. Consequently, further reliefs sought by the contesting respondent that none should disturb his peaceful functioning as Officiating Principal and to pay salary on the said post fall lacking any ground to stand. Writ petition No. 47104 of 2010 also deserves to be dismissed.
39. However, at this stage, I may also consider one more aspect raised on behalf of Sri Babu Singh Raj that Sri Munshi Lal Verma did not possess requisite qualification for holding the post of Principal. It is contended that he is only B.T.C. certificate holder and, therefore, cannot be appointed as Principal. In my view, this issue is concluded by a decision of this Court in Om Prakash Verma Vs. State of U.P. (2005) 1 UPLBEC 774, wherein also a similar issue was raised that one Om Prakash Verma though senior but possessed only B.T.C. Certificate, hence was not qualified to be appointed as Principal of the College which was upgraded from Junior High School to Intermediate College. In para 7 this Court held as under:
"7. Now, here undisputed position is that Om Prakash Verma had been appointed as J.T.C. Grade Teacher in the year 1968, and thereafter C.T. grade was provided to him on 1.7.1979 and L.T. Grade on 26.7.1987. Thus, as per the provisions contained in Chapter II, Regulation 2, as Om Prakash Verma has to his credit J.T.C. and has worked in C.T. grade for five years, then he was to be treated as C.T. Certificate holder and further after he was treated as C.T. Certificate holder then with further experience of five years, he was to be treated at par with L.T./B.Ed./Sc./M.Ed. Degree/ Certificate holder. Thus, Om Prakash Verma was qualified to be appointed as Principal in terms of the provisions as contained in Chapter II, Regulation 2 of Appendix A of U.P. Intermediate Education Act, 1921, and the order dated 6.6.2003 disqualifying Om Prakash Verma was totally unwarranted and illegal order, as such said order is liable to be quashed and set aside."
40. Here also, the same reasoning applies for Sri Munshi Lal Verma who was admittedly appointed as Assistant Teacher (BTC) on 21.7.1972, C.T. Grade on 1.7.1979 and L.T. Grade in 1990. As discussed by this Court in Om Prakash Verma (Supra), experience as Assistant Teacher (C.T. Grade) with experience of more than five years would have to be treated at par with L.T./B.Ed./Sc./M.Ed. Degree/Certificate holder and therefore, Sri Munshi Lal Verma cannot be held unqualified for appointment to the post of Principal of the College.
41. In writ petition no. 8336 of 2010 Sri Babu Singh Raj has challenged orders dated 31.12.2009 issued by D.I.O.S. holding that he is not entitled to payment of salary on the post of Principal and consequential order dated 1.1.2010 directing management to submit his salary bill on the post of Assistant Teacher in revised pay scale. In view of the discussions made above, since this Court is of the view that Munshi Lal Verma is senior to Babu Singh Raj and, therefore, he was entitled to officiate as Principal of the College, it is evident that neither Babu Singh Raj was entitled to officiate as Principal nor to claim salaryn on that post. Therefore, order dated 31.12.2009 passed by D.I.O.S. warrants no interference. So far as order dated 1.1.2010 is concerned, since he was a regular appointee on the post of Assistant Teacher (L.T. Grade), the D.I.O.S. has rightly directed management to pay salary to the contesting respondent on the post of Assistant Teacher (L.T. Grade) and, therefore, the said order also warrants no interference. The writ petition No. 8336 of 2010 also lacks merit and deserves to be dismissed.
42. Now comes writ petition no. 51876 of 2008 of Sri Munshi Lal Verma whereby order dated 19.9.2008 of D.I.O.S. has been challenged whereby it has postponed its order dated 30.8.2008 recognizing signature of Munshi Lal Verma as Officiating Principal. The order impugned in this writ petition has been issued in purported compliance of the judgment dated 31.3.2008 in writ petition 15178 of 2008 filed by Sri Babu Singh Raj wherein this Court observed :
"Under such circumstances no interference is required in the impugned order in so far as officiating charge on the post of Headmaster is to be given to the senior most qualified teacher."
43. The order of the Authorised Controller dated 21.5.2007 holding petitioner senior to contesting respondent and directing for his officiation as Principal was challenged in above writ petition. The said order was not interfered by the Court. This Court only permitted Sri Babu Singh Raj to pursue his appeal pending before JDE. Therefore, there was no occasion for D.I.O.S. to recall his order recognising signature of Munshi Lal Verma as Principal. The order dated 19.9.2008 was neither consistent with the judgment dated 31.3.2008 in writ petition no. 15357 of 2008 nor in accordance with findings recorded herein holding Sri Munshi Lal Verma senior to Sri Babu Singh Raj. The impugned order dated 19.9.2008 therefore, cannot sustain. The writ petition No. 51876 of 2008 thus deserves to be allowed.
44. In the result writ petitions no. 46558 of 2008, 75357 of 2005, 8336 of 2010, 47104 of 2010 and 27181 of 1999 are dismissed.
45. Writ petition no. 51876 of 2008 is allowed. Impugned order dated 19.9.2008 is hereby quashed.
46. There shall be no order as to costs.
Dated: 23rd May 2011.
Akn