Court No. - 37
Case :- WRIT - A No. - 12247 of 2019 Petitioner :- Smt. Ram Kumari Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shivendu Ojha,Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C.,Adarsh Singh,Indra Raj Singh Hon'ble Abhinava Upadhya,J.
Supplementary counter affidavit filed today is taken on record.
By means of this writ petition, the petitioner has come up to this Court challenging the orders dated 22.06.2019, 22,07.2019 and 26.07.2019 passed by Joint Director of Education as well as District Inspector of Schools.
The dispute raised in this writ petition is with regard to seniority of assistant teacher for the purpose of appointment of Ad-hoc Head Master in an High School which is aided up to Junior High School and recognized up to High School.
Learned counsel for the petitioner submits that conditions of service of teachers etc. of Junior High School are governed by U.P. recognized Basic Schools (Junior High Schools) Recruitment and Conditions of Service of Teachers Rules, 1978 but after the institution having been upgraded to High School, now the Intermediate Education Act, 1921 would be applicable.
The dispute raised in the writ petition is with regard to seniority amongst the petitioner and respondent no. 5 Hemant Kumar. It is submitted that following the procedure prescribed under 1978 Rules, the petitioner as well as respondent no. 5 applied for being appointed as teacher in the institution and the then Basic Education Officer by order dated 02.02.1999 granted approval upon the resolution of the Committee of Management. The document indicates that the petitioner is at serial no. 3 and respondent no. 5 at serial no. 4.
It is to be noted that the Committee of Management of the institution has been superseded and Authorized Controller is running the institution who at the present moment, is the Chief Development Officer of the area.
When a vacancy arose on the post of Principal on 31.03.2019, the senior most teacher, one Virendra Singh, was appointed as Incharge/ Officiating Principal, which was objected by the Respondent no. 5 by filing a representation that he does not possess the requisite qualification for being considered to officiate as the Head Master of the institution.
It appears that petitioner also disputed the claim of the Respondent no. 5, and therefore, the Chief Development Officer, who was the Authorized Controller, constituted a committee of three members; Basic Shiksha Adhikari of the area, District Inspector of Schools and Principal DIET to consider seniority of the petitioner viz-a-viz respondent no. 5. The committee vie order dated 29.03.2019 held that since both the petitioner and Respondent no. 5 were appointed on the same day and the petitioner being older in age than Respondent no. 5, the petitioner was held to be senior. It is submitted even before passing of any order by the Authorized Controller, respondent no. 5 approached the Joint Director of Education and the Joint Director of Education while passing the impugned order dated 27.06.2019 has held that determination of seniority between the petitioner and respondent no. 5 should be considered according to procedure prescribed under U.P. Basic Education (Teachers) Service Rules, 1981 according to the quality point marks given to the petitioner and respondent no. 5 at the time of their initial appointment in the year 1999.
Sri R.K. Ojha, learned Senior Advocate assisted by Sri Shivendu Ojha submits that the Joint Director has misdirected itself in relying on the aforesaid Rules of 1981 which are applicable only to the institution run and maintained by Basic Education Board and not to the institutions run and maintained by private Committee of Management. The U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Rule 10 provides as under:-
10. Procedure for selection. - (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment. (2) The list prepared under clause (1) shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee. (3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management. (4) The Manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer. (5) (i) If the District Basic Education Officer is satisfied that -
(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;
(b) the procedure laid down in these rules for the selection of Headmaster or Assistant Teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the Management within two weeks from the date of receipt of the papers under clause (4).
(ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the Management with the direction that the matter shall be reconsidered by the Selection Committee.
(iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee.
It is to be noted that following the aforesaid selection procedure, approval was granted by the District Basic Education Officer vide order dated 02.02.1999 and in this order the petitioner has been shown to be senior to respondent no. 5.
Sri R.K. Ojha, learned Senior Advocate appearing for the petitioner has drawn my attention to Rule 3 of U.P. Basic Education Teachers Service Rule, 1981 which provides the application of the Rules to all the teachers of local bodies transferred to the Board under Section 9 of the Act and all the teachers employed in the Basic and Nursery school established by the Board. He submits that the institution in question prior to its up-gradation to High School was only Junior High School and the condition of service and procedure for appointment as mentioned above is governed by U.P. Recognized Basic Schools Junior High School (Recruitment and Conditions of Service Teachers) Rule, 1978. The basic difference between two Rules with regard to procedure of selection and appointment of teachers is that for the institutions run by the Board, at the time of selection, the teachers are given quality point marks according to their educational qualification whereas in the institutions run by private Committee of Management the condition of Service of Teachers and procedure of selection under 78 Rules provides for minimum qualification and interview to be held and on the basis of marks given in the interview, selection is made. The Joint Director vide the impugned order relying upon 1981 Rules has directed re-determination of seniority of petitioner viz-a-viz respondent no. 5 upon quality point mark which is not the procedure contemplated under the applicable 1978 Rules and such determination of seniority is per se illegal.
Sri Indra Raj Singh on the other hand submits that respondent no. 5 was initially appointed under Rule 20 of 1978 Rules for a period of about six months, in 1997 which was extended twice. The said Rule provides that for the period of six months appointment should be made by Committee of Management requiring the same be extended up to the end of the academic session. It is further submitted that taking in to consideration services rendered by the petitioner since 1997, the respondent no. 5 is to be treated to be senior to petitioner. He further submits that he was merely regularized in the year 1999, therefore, his seniority is to be counted from 1997 which has rightly been done, therefore, he is entitled to function as officiating Principal. He further submits that the petitioner has never disputed the seniority of respondent no. 5 and has been signing the attendance register wherein the petitioner's name falls below the name of respondent no. 5 and at this belated stage for the first time the dispute of seniority has been raised.
It is not disputed by Sri Indra Raj Singh that the petitioner as well as respondent no. 5 were both given substantive appointment in the year 1999 and both the appointments were approved by the authority then competent to do so i.e. Basic Education Officer by order dated 02.02.1999. It is further not disputed that seniority is to be counted from the date of substantive appointment which is in the present case undisputedly 02.02.1999 Annexure-9 of the writ petition. In the said order of approval petitioner has been shown to be senior to respondent no. 5. No other material has been shown except one leaf of attendance register of 1999 as a conclusive proof with regard to seniority of respondent no. 5. So far as the argument of Sri Singh with regard to dispute being raised at belated stage, it is to be noted that initially the institution in question was established aided as Junior High School under the jurisdiction of Basic Education Officer and no material has been shown that at any point of time there was any occasion where seniority was a question. It is only for the first time when the respondent no. 5 raised objection with regard to appointment of Virendra Singh as officiating Principal, who admittedly did not have requisite qualification and undisputedly a senior most that question of seniority arose between petitioner and respondent no. 5 in the year 2019. It is not disputed by Sri Singh that at the time of substantive appointment in the year 1999, the petitioner's date of birth is 04.06.1960 whereas the date of birth of respondent no. 5 is 20.09.1964. Therefore, if both the substantive appointments are on the same date then the seniority is to be considered by their date of birth and on that score the petitioner's appears to be the senior to respondent no. 5.
It is to be noted that question of seniority is a question of fact and can be dealt with only by the competent authority. However, the Joint Director by the order impugned has directed consideration of seniority according to the Rules applicable to institution run and managed by Basic Education Board i.e. 1981 Rules is apparently erroneous, as the Rule according to Rule 3 of 1981 Rules would not be applicable to institutions run and managed by private Committee of Management. As such order of the Joint Director and the District Inspector of Schools impugned in this writ petition being orders dated 22.06.2019, 22.07.2019 and 26.07.2019 can not be sustained and are hereby quashed and the issue is remanded back to the Joint Director to pass a fresh order keeping in mind the Rules applicable at the time of substantive appointments i.e. in the year 1999 i.e. The U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 as well as the regulations framed under the U.P. Intermediate Education Act 1921 and pass a fresh order. Till such a decision is taken by the competent authority, the arrangement made by the Authorized Controller with regard to officiating Principal will continue. The Joint Director will decide the aforesaid dispute after giving opportunity to the petitioner as well as respondent no. 5 within a month from the date a certified copy of this order is presented before it.
Subject to aforesaid observations, writ petition is allowed.
Order Date :- 26.8.2019 RPD