JUDGMENT Arun Tandon, J.
1. Heard counsel for the parties.
2. Four posts of Lecturers in the subject of English, Sanskrit, Hindi and Civics were created in the institution on 17.1.1985. It is claimed that the petitioner was appointed by direct recruitment on ad hoc basis against the aforesaid newly created post of Lecturer Sanskrit by the Committee of Management on 10th July, 1985. The ad hoc appointment of the petitioner was also approved under order of the District Inspector of Schools dated 19.8.1985, which was limited till 30th June, 1986.
3. The petitioner, therefore, filed Writ Petition No. 12014 of 1986 wherein an interim order was passed on 23.7.1986 permitting the petitioner to continue till regular appointment is made. The petitioner as such claims to have continued as ad hoc Lecturer. On the strength of amendments made to the U.P. Act No. 5 of 1982, whereby Section 33-A(1-c) was added, petitioner has set up a claim for regularization. However, his Writ Petition No. 12014 of 1986 was disposed of vide judgment and order dated 7.8.2002, which provided that the petitioner would continue in employment as ad hoc Lecturer till a candidate dully recommended by the Commission joins the post. The said order has became final between the parties and has not been challenged. On 3rd October, 2002 an order is said to have been |passed by the District Inspector of Schools with reference to amendments enforced on 6.4.1991 regularizing the appointment of the petitioner as Lecturer Sanskrit.
4. The petitioner challenges the order passed by the Joint Director of Education, whereby his seniority as Lecturer has been determined with reference to the date of regularization i. e. 3.10.2002. One Sri Onkar Nath Tiwari and Sri Ram Sahai Tiwari have been placed above the petitioner in the said order determining the seniority.
5. With regard to Sri Onkar Nath Tiwari it is pointed out that he is the son of out going Principal Sri Jawahar Lal Tiwari. Said Onkar Nath Tiwari (respondent No. 4) is said to have been appointed as C.T. Grade Teacher (untrained) on 1.12.1985 on ad hoc basis, during the period when his father was working as Principal. His appointment was approved on 18th July, 1986 for a period up to 30th June, 1986. Respondent No. 4 filed Writ Petition No. 12371 of 1986 in which an interim order was granted, permitting his continuance as C.T. Grade Teacher, on 18.7.1986. The writ petition was finally allowed vide order dated 16.12.1986 on terms stated therein.
6. Sri Onkar Nath Tiwari passed his M.A. Examination as a private student in the year, 1989 and thereafter obtained a degree of B. Ed. in the year, 2001. On 8.1.2000 a resolution was passed by the Committee of Management granting promotion to Sri Onkar Nath Tiwari as Lecturer English against the newly created post under the letter dated 10.7.1985 only on the ground that he has been teaching English to Class-11th and 12th for last 5 years. The promotion is also said' to have been approved by the Selection Committee on 21.7.2000.
7. Sri Jawahar Lal Tiwari, on attaining the age of superannuation on 30th June, 2006, handed over the charge of Principal to Sri Onkar Nath Tiwari (his son) on 4th July, 2006. Sri Onkar Nath Tiwari, in order to justify the said handing over the charge, made an appeal before the Joint Director of Education, which resulted in passing of the impugned order dated 17th August, 2006, wherein he has been declared as senior most teacher of the institution and which is subject matter of challenge in the present writ petition.
8. Sri Ram Sahai Tiwari, who has been placed at serial No. 2 in the seniority under the impugned order of the Joint Director of Education, has filed Writ Petition No. 45965 of 2006. Sri Ram Sahai Tiwari claims that he was appointed as C.T. Grade Teacher in the institution on 13.9.1977. He was granted promotion as L.T. Grade Teacher on 28.5.1983. He was thereafter granted ad hoc promotion as Lecturer Hindi against a vacancy of Lecturer created under the letter dated 10.7.1985. The said ad hoc appointment of Sri Ram Sahai Tiwari is said to have been approved by the District Inspector of Schools vide order dated 23rd July, 1985, which was limited up to 30th June, 1986. He also filed Writ Petition No. 11557 of 1986, wherein an interim order was passed permitting his continuance. The writ petition was finally decided along with the bunch of writ petitions on 16.12.1986.
9. In view of the addition of Section 33-A(1-C) vide U.P. Act No. 26 of 1981 to U.P. Secondary Education Services Selection Board Act, 1982, it is claimed that the District Inspector of Schools passed an order dated 30th June, 2002 regularizing the appointment of Ram Sahai Tiwari as Lecturer Hindi. Under the order of the regularization it has been provided that the same would take effect from the date the order has been issued, while according to Sri Ram Sahai Tiwari he is entitled for regularization w.e.f. 6.4.1991 and his seniority is liable to be determined with the said date only. He, therefore, submits that he should be placed at serial No. 1 of the seniority list.
10. Sri Onkar Nath Tiwari has filed an other Writ Petition No. 35705 of 2002 for quashing the order dated 30th June, 2002 passed by the District Inspector of Schools, Deoria, whereby the ad hoc appointment of Sri Ram Sahai Tiwari as Lecturer Hindi has been regularized.
11. According to Sri Onkar Nath Tiwari the order had the effect of interfering with his seniority. It is alleged that Sri Ram Sahai Tiwari could not have been granted ad hoc promotion as Lecturer against a vacancy created in the year, 1985 inasmuch as on the date of occurrence of vacancy, according to rules as applicable, he was not possessed of prescribed minimum qualification, as a result whereof his appointment as Lecturer Hindi itself was illegal.
12. From the facts as have been noticed herein above, dispute in the present writ petition is about the determination of seniority amongst three teachers depending upon their promotion as Lecturer, as claimed by them. Under the impugned order the Joint Director of Education has determined the seniority of the aforesaid teachers as foliows:
13. This Court may first deal with the facts pertaining to the appointment of Sri Vinod Kumar Pandey. As already noticed herein above, Sri Vinod Kumar Pandey claims appointment by direct recruitment as Lecturer on ad hoc basis against a newly created vacancy on the post of Lecturer under the letter of the District Inspector of Schools dated 17.1.1985 Sanskrit by direct recruitment on 10.7.1985, which is said to have been approved by the District Inspector of Schools on 19.8.1985. His appointment is further said to have been regularized under Section 33-A(1-C) as brought on the Statute Book w.e.f. 6.4.1991 under an order of the District Inspector of Schools dated 3.10.2002. The order of the District Inspector of Schools granting such regularization was never questioned by Sri Vinod Kumar Pandey at any point of time and therefore the relevant date for determination of his seniority cannot be permitted to be questioned on the ground that such regularization should have been offered from a date prior to the date of order of the District Inspector of Schools. The condition incorporated under the order dated 3.10.2002 with regard to substantive appointment being offered to Sri Vinod Kumar Pandey has not been challenged in the present writ petition. Therefore, this Court is satisfied that no interference is warranted so far as the date of substantive appointment of Sri Vinod Kumar Pandey as Lecturer Sanskrit is concerned i. e. 3.10.2002. However, the exact place in the seniority list, to which he would be entitled, shall be determined having regard to the substantive appointment of other two teachers, placed above to him as herein above.
Ram Sahai Tiwari
14. So far as Sri Ram Sahai Tiwari is concerned, it is admitted to Sri Ram Sahai Tiwari that he was promoted as L.T. Grade Teacher on 28.5.1983. He claims to have been granted ad hoc promotion as Lecturer on 10.7.1985.
15. In the opinion of the Court such ad hoc promotion granted to Sri Ram Sahai Tiwari is patently illegal inasmuch as on the date of occurrence of vacancy, in accordance with the rules applicable, he was not possessed of the prescribed minimum experience of 5 years as L.T. Grade Teacher and therefore could not have been granted such promotion. Since the promotion granted to Sri Ram Sahai Tiwari on ad hoc basis on 10.7.1985 (approved by the District Inspector of Schools on 23.7.1985) was patently illegal and contrary to the rules, such ad hoc appointment could not have been regularized under Section 33-A(1-C) inasmuch as 33-A(1-C) specifically contemplates as follows:
33-A(1-C) Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance with Section 18, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991 be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.
16. As noticed herein above Sri Ram Sahai Tiwari was not possessed of requisite prescribed qualification for being appointed as Lecturer on 10.7.1985 against the vacancy, which became available in the institution on 17.1.1985. Consequently, no benefits can be conferred upon Sri Ram Sahai Tiwari on the basis of such illegal promotion and regularization thereof. Accordingly, this Court has no hesitation to hold that grant of promotion on ad hoc basis to Sri Ram Sahai Tiwari as well as regularization as Lecturer under the order dated 3rd June, 2002 are patently illegal and of no legal consequence.
Onkar Nath Tiwari
17. So far as Sri Onkar Nath Tiwari is concerned, it is admitted from the records that he was appointed as C.T. Grade Teacher (untrained) in the institution on 1.12.1985, which was approved by the District Inspector of Schools on 1.4.1986. He claims to have been regularized as C.T. Grade Teacher under the provisions of Section 33-A(1-b) He further claims that since in the year 1989 C.T. grade has been declared to be a dying cadre, he liable to be treated as L.T. Grade Teacher. When as a matter of fact no such order placing Sri Onkar Nath Tiwari in L.T. Grade is on record. On record is an order of Joint Director of Education dated 21.7.2000 granting promotion to Sri Onkar Nath Tiwari as Lecturer English. Such order of the Joint Director of Education is a nullity in view of Section 16 of the U.P. Secondary Education Services Selection Board Act. It is admitted to Sri Onkar Nath Tiwari that he has also been granted promotion as Lecturer against a newly created post of Lecturer English, which was created on 17.1.1985. On the date of creation of said vacancy, which would also be the date of occurrence of the vacancy, in the facts of the present case Sri Onkar Nath Tiwari was not even borne in the institution as teacher. He was, therefore, not possessed of the prescribed minimum qualification for being granted ad hoc promotion as Lecturer against the said vacancy. Such orders of promotion are virtually a fraud upon the Statute and result in unauthorized public money being deciphered from the public exchequer because of the collusion of the Committee of Management, Principal and the educational authorities. Section 16 of the Act declares such appointment as null and void.
18. In view of the facts as noticed herein above, this Court has no hesitation to record that the promotion granted to Sri Ram Sahai Tiwari as well as Onkar Nath Tiwari are contrary to the statutory rules applicable. Such manifest violation of the provisions of U.P. Secondary Education Services Selection Board Act and Rules framed there under render the order of promotion and regularization a nullity in view of Section 16 of the Act. Such a practice must be brought to an end and the public money should be recovered from the educational authorities concerned along with Manager and Principal of the institution. It is, therefore, directed that Director of Education shall conduct a detail enquiry into the matter, pertaining to (a) appointment of Onkar Nath Tiwari as teacher in the institution as well as grant of promotion as Lecturer (b) Promotion granted to Vinod Kumar Pandey as Lecturer in the institution, within one month from today and shall take all appropriate action against the educational authorities as well as the management and then Principal of the institution. He shall ensure that unauthorized payment received by the aforesaid two teachers as Lecturers is recovered back from all responsible, preferably within three months, and for the said purpose appropriate action must be taken and reported to the Court through the Registrar General. The Director of Education shall also ensure that the officer involved in approval of such fraudulent appointment/regularization are also proceeded with departmental and are shown no leniency whatsoever. If the collusion and fraud are found, criminal action should also be initiated against all.
19. In view of the aforesaid, the order of the Joint Director of Education dated 17th August, 2006 is hereby set aside. The Joint Director of Education is directed to re-determine the seniority of the Lecturers of the institution in accordance with law.
20. With the above observations/directions, present writ petitions are disposed of.