JUDGMENT Sudhir Agarwal, J.
1. All these petitions are connected and involve similar questions of facts and law and, therefore, have been heard together as requested and agreed by learned Counsel for the parties and are being decided by this common judgment.
2. An old and stale dispute which attained finality long back, yet can be kept alive by a litigant by filing several writ petitions in a circuitous manner is writ large from this group of writ petitions. It is evident from the facts and dispute raised in all these writ petitions as analysed and discussed hereinbelow.
3. Avinash Gyan Peeth Kanya High School, Tilak Nagar, Kanpur Nagar (hereinafter referred to as the "College") is recognised by the U.P. Board of High School and Intermediate Education (in short "the Board") under U.P. Intermediate Education Act, 1921 (hereinafter referred to as the "1921 Act"). The appointment of teachers in the College is to be made through U.P. Secondary Education Services Selection Board (in short "the Commission), constituted under the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act"). However, it is not disputed between the parties that the College is receiving grant in aid and salary is paid under U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "1971 Act") only upto High School. The then Principal of the College retired on 30.6.1988 as a result whereof one Smt. Shiv Sheel Saxena. L.T. Grade teacher was appointed as ad hoc Principal of the College on 8.7.1988. This resulted in a short term vacancy in L.T. Grade whereupon Smt. Rita Shukla (later on became Smt. Rita Tripathi, after marriage) (hereinafter referred to as the "second petitioner") was appointed as L.T. Grade Teacher purely on ad hoc basis and her appointment was approved by the Regional Inspectress of Girls Schools, IV Region, Allahabad (hereinafter referred to "RIGS") vide order dated 20.12.1989. The said appointment was approved till reversion of Smt. Shiv Sheel Saxena from the post of officiating Principal. Smt. Saxena, however, attained the age of superannuation on 30.6.1990 resulting in substantive vacancy in L.T. Grade, on the post on which the second petitioner was appointed, and, therefore, she continued as such. Subsequently, by order dated 27.1.1994 passed by Regional Deputy Director of Education II, Kanpur Region, Kanpur, she was regularised as Assistant Teacher, L.T. Grade. Smt. Bharti Roy (hereinafter referred to as "the first petitioner") was appointed on purely ad hoc basis in C.T. Grade vide order dated 20.2.1982. Subsequently, in view of Section 33-A of 1982 Act as amended by Ordinance No. 12 of 1985, she was substantively appointed in C.T. Grade w.e.f. 12.6. 1985 by order dated 9.7.1986 passed by RIGS, Allahabad. It appears that a seniority list of teachers was circulated by the management of the College in 1994 wherein the second petitioner was shown at serial No. 3 while the first petitioner was shown at serial No. 4. One Sri Rama Pati Singh was placed at serial No. 1 and Smt. Sheela Mehrotra at serial No. 2.
4. According to the first petitioner the said seniority list was published on 3.7.1996 whereagainst she made several representations to the Management of the College (Anenxures 8 to 13 to writ petition No. 24401 of 1996), claiming seniority over Sri Ramapati Singh, Smt. Rita Tripathi and Km. Sudha Kapoor and thereafter filed writ petition No. 24401 of 1996, impleading Sri Ramapati Singh as respondent No. 4, Joint Director of Education (II), Kanpur, Regional Inspectress of Girls Schools, Kanpur Nagar and the Committee of Management as respondents No. 1 to 3 respectively and sought the following reliefs:
i/- A writ, order or direction in the nature of writ of mandamus commanding the respondents to treat the petitioner as senior to Sri Rama Pati Singh, respondent No. 4, and to forthwith appoint the petitioner as head of the institution, namely, Avinash Gyan Need Kanya High School, by reverting the respondent No. 4 from the aforesaid post;
ii/- a writ, order or direction in the nature of writ of mandamus commanding the respondents to pay the petitioner salary of the post of Head of Institution, in question, month by month, as land when the same falls due;
iii)/a writ, order or direction in the nature of writ of ceritiorari, declaring the impugned seniority list, Annexure (4) to the writ petition as null and void;
iv/- any other writ, order or direction as may be deemed fit and proper on the facts and in the circumstances of the present case ; and v/- award cost of the writ petition to the petitioner.
5. While entertaining the aforesaid writ petition, this Court granted interim order on 17.9.1996, restraining Sri Ramapati Singh from functioning as Principal of the institution and directing the Management to appoint seniormost teacher as Principal as a stop gap arrangement till disposal of the writ petition. Since there were some mistakes in various paragraphs of the writ petition with respect to date etc., the first petitioner filed an amendment application No. 69478 of 1996 which was allowed by this Court on 10.8.2000 permitting the petitioner to file an amended copy of the writ petition, in compliance whereof she filed amended copy of the writ petition. She filed another amendment application No. 14114 of 1999 which was, however, rejected by this Court stating that the amendment sought therein are likely to widen the scope of the dispute in the writ petition and therefore, the petitioner may file a fresh writ petition with respect to such dispute. A perusal of the amendment application shows that it was filed when the Management sought to recommend the name of second petitioner along with another senior teacher to the Commission for considering them for substantive appointment on the post of Principal as per 1982 Act. The first petitioner taking recourse to the order dated 10.08.2000 passed by this Court rejecting her amendment application and permitting to file a fresh writ petition, filed writ petition 38253 of 2000 impleading second petitioner as respondent No. 5 and prayed for the following reliefs:
a) a writ, order or direction in the nature of writ of mandamus commanding respondent School Management (respondents No. 3) to treat the petitioner as senior to Smt Rita Tripathi (respondent No. 5) and also forward the name of the petitioner for consideration to U.P. High Education Commission (respondent No. 5) for the post of Principal;
b) a writ, order or direction in the nature of writ of mandamus commanding respondent No. 4, the Commission to consider the case of the petitioner and to appoint her as Principal, and not to hold any interview for the said post till the pendency of the writ petition;
c) issue any other writ, order or direction as may be deemed fit and proper on the facts and the circumstances of the present case; and
d) award cost of the writ petition to the petitioner.
6. The first petitioner had also stated in the said writ petition that she made representations to the authorities concerned on 1.7.1992, 30.7.1992, 25.9.1993 and 4.7.1996 disputing her seniority qua others but no decision was taken by the authorities. This Court, while entertaining the writ petition and issuing notice to respondents no. 3 and 4, i.e., the Management of the College and the Commission, on 29.8.2000 provided that in the meantime, representation of the petitioner shall be decided and in case the petitioner was within first two seniormost Lecturer, her name should also be sent to the Commission for consideration of appointment on the post of Principal. A perusal of Annexures 8 to 10 would show that the same were the representations wherein the first petitioner disputed her seniority qua Sri Rama Pati Singh and Annexure 11 was the representation dated 14.7.1996 which was said to have been submitted against the seniority list impugned in the aforesaid writ petition disputing her seniority qua Sri Rama Pati Singh, Smt. Rita Tripathi and Km. Sudha Kapoor. Pursuant to the directions of this Court contained in the order dated 29.8.2000, the committee of management passed order dated 29.9.2000 rejecting representations, observing that Smt. Rita Tripathi was senior to the first petitioner. Thereafter, the first petitioner filed an Amendment Application No. 11187 of 2000 challenging order dated 29.9.2000 of the Management.
7. During the pendency of the aforesaid writ petitions, the first petitioner Smt. Bharti Roy filed third writ petition No. 69017 of 2005 wherein following reliefs were sought:
(i) a writ, order or direction in the nature of mandamus directing the respondents to issue the correct seniority list according to seniority placing the petitioner at Serial No. 1.
(ii) issue a writ, order or direction in suitable nature/mandamus directing the respondents to give all benefits to the petitioner according to to her seniority as admissible in accordance with law within a stipulated period as fixed by this Hon'ble Court.
(iii) issue any other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case;
(iv) award cost of the petition in favour of the petitioner.
8. The aforesaid writ petition came up before this Court on 7.11.2005 when private respondents were issued notice and learned Standing Counsel was granted time to file counter affidavit. The aforesaid writ petition was disposed of on 25.4.2006 by this Court passing the following order:
Since no counter affidavit has been filed by the Standing Counsel appearing for the respondents as well as by Sri S.S. Rathore, the learned Counsel appearing for respondent No. 9 and Sri Indra Bhan Singh, the learned Counsel appearing for respondents No. 8 and 9.
'This petition is disposed of with a direction that in the event, the petitioner files an application challenging the seniority list before the Regional Director of Education within six weeks from today, the same shall be adjudicated and decided by a reasoned and speaking order after hearing all the aggrieved parties within three months from the date of the production of a certified copy of this order.
9. Pursuant to the aforesaid order, the Joint Director of Education, Kanpur Region considered the matter and passed order dated 12.7.2006 holding first petitioner senior to the second petitioner. So far as Sri Rama Pati Singh and Smt. Sheela Mehrotra were concerned, the two having already retired, no decision was required in their matter. This resulted in filing of fourth writ petition by the second petitioner Smt. Rita Tripathi being writ petition No. 55197 of 2006, challenging the order dated 12.7.2006 passed by Joint Director of Education, Kanpur.
10. Sri Alok Dwivedi, Advocate has appeared on behalf of the second petitioner Smt. Rita Tripathi (petitioner of writ petition No. 55197/06), and Sri A.K. Singh assisted by Smt. Archna Singh, Advocate and Sri S.C. Dwivedi appeared for the first petitioner in writ petitions No. Civil Misc. Writ Petition No. 24401 of 1996 and 38253 of 2000 and respondent No. 5 in writ petition No. 55197 of 2006. Sri Arvind Upadhyay appeared on behalf of committee of management of the College. Learned Standing Counsel has appeared for State of U.P. and other educational authorities.
11. Heard learned Counsel for the parties and perused the record of the above mentioned writ petitions.
12. Sri Alok Dwivedi, learned Counsel appearing for the second petitioner Smt. Rita Tripathi has raised three submissions. Firstly, that the seniority list was published in 1994 and her seniority was never challenged by the first petitioner either before any appropriate forum or in writ petition No. 24401 of 1996 and, therefore, she could not have been allowed to dispute the same in the subsequent writ petitions. Secondly, that the second petitioner was directly appointed in L.T. Grade and the first petitioner was never appointed in L.T. Grade but was only given pay scale in view of certain Government Orders issued from time to time providing for such grant of scale after rendering a particular length of service in C.T. Grade but that would not result in conferment of benefit of seniority to the incumbent inasmuch as, grant of pay scale in L.T. Grade did not result in appointment of the incumbent in L.T. Grade with benefit of seniority and the educational authorities have clearly erred in law in failing to consider and appreciate this aspect of the matter. Thirdly, he contended that various writ petitions filed by the first petitioner challenging the same seniority list which she has challenged in the very first writ petition without impleading the second petitioner as such is nothing but a serious misuse of process of law and all the subsequent writ petitions challenging the seniority list published in 1994, are liable to be dismissed being second petition.
13. On the contrary, Sri A.K. Singh and Sri S.C. Dwivedi, learned Counsel appearing on behalf of first petitioner contended that the very appointment of second petitioner on the post of Assistant Teacher in L.T. Grade was illegal being contrary to the provisions of 1982 Act and, therefore, it would not result in any benefit of seniority to her. They further contended that in view of the Government Order of 1989, the first petitioner was entitled for L.T. Grade after completion of 5 years' service in C.T. Grade but she was wrongly treated to be in L.T. Grade w.e.f. 1.7.1992, rather she was entitled to be treated in L.T. Grade immediately after completion of five years' service in C.T. Grade with all consequential benefits including seniority.
14. Though long drawn arguments have been advanced by learned Counsel for the parties, involving the issue of maintainability of writ petitions but since the dispute has caused several writ petitions filed by the parties and since already more than 10 years have elapsed, in my view, it would be appropriate, firstly, to consider rival submissions with respect to inter se seniority of the two petitioners on merits, in order to set the controversy at rest once and for all times to come. Thereafter to go for other issues, if necessary.
15. Certain dates which are not in dispute are that Smt. Bharti Roy, first petitioner was appointed on ad hoc basis in CT grade on 20.2.1982 which was made substantive w.e.f. 12.6.1985 vide order dated 9.7.1986. She was granted LT grade w.e.f. 1.7.1992 pursuant to the Government Order dated 9.10.1989 read with Government Order dated 2.12.1982. So far as the second petitioner is considered, she was appointed in short term vacancy in LT grade on 8.7.1988. Her appointment was purely ad hoc. The said appointment was however approved by RIGS on 20.12.1989. She was regularised on the post of Assistant Teacher (LT Grade) vide order dated 27.1.1994. The appointment of the second petitioner in L.T. Grade which was regularized on 27.1.1994 has not been challenged in any of these writ petitions, filed by the first petitioner though in arguments it is contended that her appointment was not validly made in accordance with 1982 Act. Further despite repeated queries made from learned Counsels appearing for the first petitioner, they could not place before the Court any order whereby the first petitioner was promoted/appointed in L.T. Grade at any point of time. However, they contended that since she was deemed to be in L.T. Grade after rendering ten years of continuous service in C.T. Grade pursuant to Government Order dated 9.10.1989 read with Government Order dated 2.12.1982, it is July 1, 1992, the date from which she is entitled to be treated as having been appointed in L.T. Grade for the purposes of seniority and other consequential benefits.
16. In my view, the first-question which directly arises and needs adjudication is whether grant of higher scale after rendering a particular length of service pursuant to the aforesaid Government Orders would result in treating the first petitioner as having been appointed in the post of higher grade with benefit of seniority, if answered in favour of the first petitioner, some other questions may also be required to be considered otherwise the entire matter would stand concluded against the first petitioner, if the aforesaid question is answered against her.
17. It appears that a Government Order was issued on 3.6.1989 and para 9 thereof reads as under:
(9) Madhyamik Vidyalayon Ke C.T. grade Ke Aise Adhyapak Jo Prashikshit Snatak Ho Tatha Unke Dwara 10 Varsh Ki Santoshjanak Sewa Puri Ki Ja Chuki Ho Unhe L.T. Grade Diya Jayega Tatha Unka Vetan Nirdharan Uparyukt Prakriya Ke Anusar L.T. Grade Me Kiya Jayega. L.T. Grade Me JaaneVale Aise C.T.Grade Ke Shikshak Vetan Nirdharan Ki Tithi Ko Chahe C.T. Grade Ke Sadharan Vetanman Me Karyarat Rahe Ho Ya Selection Grade Se Unka Vetan Nirdharan L.T. Grade Ke Sadharan Vetanman Me Kiya Jayega.
18. The aforesaid Government Order came up for consideration before this Court in Virendra Pandey v. State of U.P. and Ors. 1994 (24) ALR 19 and in paras 18 and 20 of the judgment, this Court categorically held that grant of pay scale in LT grade after 10 years of satisfactory service in CT grade would not result in appointment of the incumbent in LT grade for the purpose of conferring upon him benefit of seniority from the date his pay is fixed in LT grade. It was also held that the aforesaid Government Order was only for the purpose of pay fixation in higher grade and not for the purpose of making appointment on the post of higher grade and, therefore, benefit of seniority would not be admissible when a CT grade teacher is allowed pay fixation in L.T. grade after completion of 10 years of satisfactory service.
19. A similar Government Order was also issued earlier on 3.10.1974 and the question with respect to seniority in L.T. Grade pursuant to grant of L.T. Grade after rendering a particular length of service in CT. Grade came up for consideration before this Court in Km. Sheela Sanyal v. State of U.P. and Ors. 1995 ALJ 589 and it was held that grant of pay scale does not mean that the incumbent has been appointed on the post having the said scale. For the purpose of seniority, it is not mere fixation of pay in higher grade but appointment on a post of higher grade is relevant. For the said purpose, reference was made to Regulation 3(1)(b) of Chapter-11 of the Regulations framed under 1921 Act which reads as under:
Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age.
20. It was also held in para 17 that "the grant of pay scale in L.T. grade cannot itself be taken as an appointment on a substantive basis in L.T. Garde".
21. In Vipin Kumar v. District Inspector of Schools, Muzaffar Nagar (1994) 23 All LR 27, it was held that a teacher given a Lecturer's pay scale will not be taken to have been given the post of lecturer unless he is duly promoted according to the statute."
22. Both the aforesaid authorities of this Court have been followed by another Hon'ble Single Judge in Madan Lal Mishra v. State of U.P. and Ors. 2007 (3) ESC 1466 (All).
23. Government Order dated 19.10.1989 vide para 12 provides for fixation of salary in LT grade as under:
Shasnadesh Sankhya 3299/15-7/89-1 (136) 89 Shiksha Anubhag-7, Dinank 11 August, 1989 Dwara C. T. Grade Ko Dying Cadre Ghosit Kar Diya Gaya Hai. Is Prakar Ashaskiya Sahayata Prapt Uchchtar Madhyamik Vidyalayon Mein C.T. Grade Ka Koi Pad Srijit Nahin Kiya Jayega Aur Na Kisi Adhyapak Ki Niyukti Ki Jayegi Shasnadesh Sankhya-Ve.Aa. -2-1239/Das-8-B/89 Vi.Ve. Aa. Anubhag 2, Dinank June 89 Ke Bindu 9 Ke Anusar Madhyamik Vidyalayon Ke C.T. Grade Ke Aise Adhyapak Jo Prashikshit Snatak Upadhi Ke Sath L.T., B.Ed. Ho Tatha Unke Dwara 10 Varsh Ki Santoshjanak Sewa Puri Ki Ja Chuki Ho Unhe L.T. Grade Diya Jayega Tatha Unka Vetan Nirdharan Uprokt Prakriya Ke Anusar L.T. Grade Mein Kiya Jayega. L.T. Grade Mein Jane Wale Aise C.T. Grade Ke Shikshak, Vetan Nirdharan Ki Tithi Ko Chahe Sadharan Vetanman Mein Karyarat Rahe Ho Ya Selection Grade Mein, Unka Vetan Nirdharan L.T. Grade Ke Sadharan Vetanman Mein Kiya Jayega.
24. The aforesaid Order was amended by means of a a subsequent Government Order dated 30.11.1989/2.12.1989 and the amended paragraph 12 reads as under:
Shasnadesh Sankhya 3299/15-7/895 1 (136) 89, Shiksha Anubhag-7, Dinank 11 August, 1989 Dwara C. T. Grade Ko Dying Cadre Ghosit Kar Diya Gaya Hai. Is Prakar Ashaskiya Sahayata Prapt Uchchtar Madhyamik Vidyalayon Mein C.T. Grade Ka Koi Pad Srijit Nahin Kiya Jayega Aur Na Kisi Adhyapak Ki Niyukti Ki Jayegi Shasnadesh Sankhya-Ve.Aa.-2-1239/Das-0-B/89 Vi.Ve. Aa. Anubhag 2, Dinank June 89 Ke Bindu Ke Anusar Madhyamik Vidyalayon Ke C.T. Grade Ke Aise Adhyapak Jo Prashikshit Snatak (Snatak Upadhi Ke Sath L.T./B.Ed. Athwa C.T. Grade Mein Prashikshit Snatak Jnihone Is Vetan Kram Mein Panch Varsh Ki Sewa Purn Kar Li Ho) Tatha Unke Dwara 10 Varsh Ki Santoshjanak Sewa Puri Ki Ja Chuki Ho, Unhe L.T. Grade Diya Jayega Tatha Unka Vetan Nirdharan Uprokt Prakriya Ke Anusar L.T. Grade Mein Kiya Jayega. L. T. Grade Mein Jane Wale Aise C.T. Grade Ke Shikshak, Vetan Nirdharan Ki Tithi Ko Chahe Sadharan Vetanman Mein Karyarat Rahe Ho Ya Selection Grade Mein, Unka Vetan Nirdharan L.T. Grade Ke Sadharan Vetanman Mein Kiya Jayega.
25. Both these Government Orders came up for consideration in Smt. Aruna Ghosh v. State of U.P. and Ors. (1995) 2 UPLBEC 763 and it was held that mere completion of five years service in CT grade is not sufficient to give LT grade but it also requires 10 years satisfactory service as a teacher and possession of other requisite training and qualification. Therefore, the LT grade would be given to the teacher when both the conditions are satisfied. The view taken in Smt. Aruna Ghosh (supra) was followed in Smt. Shakuntala Tripathi v. Deputy Director of Education and Ors. 1995 AWC 893.
26. Same view was taken by another Hon'ble Single Judge (Dr. B.S. Chauhan, J.) in Madan Gopal Agrawal and Ors. v. The District Inspector of Schools, Bijnor and Ors. 1996 (3) ESC 202 (All). However, this Court also held that grant of LT grade under the aforesaid Government Orders is personal and it does not mean posting in LT grade, inasmuch as, when such a person would retire, it would result in a vacancy in CT grade and not in LT grade since the incumbent cannot be said to hold the post of Assistant Teacher in LT grade. The observations of this Court are as under:
7. ...under the different Government Orders issued from time to time the teachers working in C.T. Grade become eligible to be considered for L.T. Grade as a personal pay scale. This does not mean the posting in L.T. Grade and the post which becomes vacant after the retirement of such a teacher would not be deemed to be a vacant post in L.T. Cadre nor such a person can take benefit on the post of the L.T. Grade for promotion and seniority as he is not holding the post in Grade in L.T. Grade vide Rashmi Srivastava v. University , Virendra Pandey v. State of U.P. 1994 (24) ALR (H) 19, Writ Petition No. 30754 of 1991 Madljuri Devi v. Regional Inspectress of Girls Schools, decided on 20.3.1995 and Vipin Kumar v. District Inspectress of Schools 1993(2) Educational and Service Cases 456.
8. It is not to be treated as their promotion in L. T. Grade till they are promoted to the post in L.T. Grade strictly in accordance with law.
27. Same view has been expressed by another Hon'ble Single Judge (Hon. Ashok Bhushan, J.) in Civil Misc. Writ Petition No. 39731 of 2000, Ansan Lal Jha v. District Inspector of Schools and Ors. decided on 13.2.2006.
28. A pari material Government Order was issued on 28.2.1990 for grant of Lecturer Grade to those teachers who were working in L.T. Grade and had completed ten years of service and were imparting education to the students of XI and XII class continuously for ten years. The incumbent was granted Lecturer's Grade pursuant to the Government Order dated 28.2.1990 and he raised a similar contention which came up for adjudication before a Division Bench of this Court in Vipin Kumar v. District Inspector of Schools (1993) 3 UPLBEC 1900 and in paragraphs No. 6, 9 and 13 the Court held:
6. ...A teacher may be given lecturer's pay scale even though there is no vacancy to the post of lecturer. The grant of lecturer's pay scale is not correlated with the filling of vacancy in a particular post. In a college where teachers are appointed in L. T. grade and they are given lecturer's pay scale, then in that situation there would not occur any vacancy to the post of lecturer and on the other hand the post may not exist but the teachers are given lecturer's pay scale. The word "grade" has different connotations in the context of a particular statute.
9. The word "grade" used in Para 4(2) of the Removal of Difficulties Order, 1981, Rule 9 of U.P. Secondary Education Service Commission Rules, 1983 and Regulation 6 of Chapter II of Intermediate Education Act, 1921 must be taken as "post" of lecturer. A teacher, who is working in L T. Grade is to be promoted to the post of lecturer's grade in the sense that he is to be promoted to the post of lecturer in an institution. A teacher may be given lecturer's pay scale but he may not be given the post. Unless he is given a post the mere fact that he has been given lecturer's pay scale will not be taken as to have given him the post of lecturer unless he is duly promoted to the said post in accordance with the provisions of a Statute.
13. The seniority of a teacher of a lecturer's grade is also to be considered from the date of appointment to the post in lecturer's grade and not from the date of payment of lecturer's pay scale. Regulation 3 of Chapter II of Regulations of the Intermediate Education Act contemplates seniority from the date of appointment and the same principle has to be made applicable in case of persons appointed on ad hoc basis. The seniority cannot be fixed on the basis of grant of pay scale given by the Government under its own orders.
29. In view of the aforesaid authorities which are binding on this Court as well and even otherwise, I am also in respectful agreement with the law laid down therein, it is evident that the first petitioner even if treated to have been granted L.T. grade w.e.f. 1.7.1992 after completion of ten years of service in C.T. Grade, that would not entitle her to claim seniority on the post of Assistant Teacher (L.T. Grade) unless she is appointed or promoted in accordance with the Regulations and 1982 Act on the said post. Neither there is any averment in any of the petitions filed by the first petitioner nor any order is available on record to show that the first petitioner was ever promoted on the post of Assistant Teacher (L.T. Grade) in accordance with 1982 Act read with Regulations framed under 1921 Act. In these circumstances, I am clearly of the view that she could not have been granted benefit of seniority on the post of Assistant Teacher (L.T. Grade) and could not have been placed above the second petitioner who admittedly was appointed directly as Assistant Teacher (L.T. Grade) and was regularised on the said post on 27.1.1994. Thus, the entire claim and dispute raised by the first petitioner loses its ground resulting in vitiating the order dated 12.7.2006 passed by Joint Director of Education, Kanpur Region whereby she has been declared first petitioner senior to the second petitioner ignoring the exposition of law on the subject in its entirety.
30. Now I come to the other aspect of the matter. It is evident from the record that the first petitioner filed writ petition No. 24401 of 1996 wherein she sought a writ of certiorari for quashing the seniority list in which she was placed at serial No. 4 while the second petitioner was placed at serial No. 3. In the array of parties in the said writ petition, only the incumbent placed at serial No. 1 being seniormost, was impleaded as respondent and the other two teachers who were shown senior to the first petitioner were not made party therein. The first petitioner knowing it well that there were two other teachers senior to her did not challenge their seniority as determined by the impugned seniority list published in 1994 and chose not to challenge the same in the very first petition filed in 1996. That being so, in my view, it was not open to her to rake up that issue after a long time, by way of filing an amendment application in the year 1999 or a fresh Writ Petition in the year 2000 ( numbered as W.P. 38253 of 2000). In the third writ petition, i.e., Civil Misc. Writ Petition No. 69017 of 2005, though in the middle paragraphs, the first petitioner has referred to about earlier two writ petitions she filed in 1996 and 2000 but in the very first paragraph where declaration has been given, she has stated that with respect to correction of seniority list she has not filed any earlier writ petition and it is the first writ petition. In my view, the manner in which the writ petition was drafted and declaration made, was misleading, inasmuch as, when the first petitioner had already challenged the seniority list in the first writ petition, all subsequent writ petitions challenging the same seniority list were not maintainable at all and in any case, she cannot take advantage out of the fact that certain innocuous sort of orders were passed in subsequent writ petitions without noticing the fact that the first petitioner was guilty of filing successive writ petitions and seeking relief against the same seniority list.
31. Now I come to the submission vehemently urged on behalf of the first petitioner that the appointment of the second petitioner, right from its inception, was illegal and void ab initio, resulting in her dis-entitlement to the claim of seniority over the first petitioner on the basis of such illegal appointment. Though no such relief has been sought in any of the writ petitions, but as agreed by learned Counsel for the parties, they have been permitted to address the Court on the said issue based on the materials already on record and, therefore, the Court proceeded to consider this issue on merits also.
32. It is contended that the second petitioner was appointed against a short term vacancy on 8.7.1988 in accordance with Second Removal of Difficulties Order (hereinafter referred to as the Second Order). The vacancy became substantive in 1990 after retirement of the incumbent in whose resultant vacancy, the second petitioner was appointed and that would not have resulted in automatic conversion of second petitioner's appointment as a valid appointment, inasmuch as, it would have required to make a fresh appointment in accordance with the procedure prescribed under First Removal of Difficulties Order and since the said procedure was not followed, her appointment became illegal on and after the date the vacancy became substantive in 1990. It is thus contended that the order dated 27.1.1994 whereby the appointment of second petitioner was regularized is also a nullity in the eyes of law and has to be ignored for all purposes. The argument, though attractive, but on a closer scrutiny is liable to be rejected. The very first obstacle that comes in the way of first petitioner is that in none of the writ petitions she has challenged the very appointment of second petitioner and there is no prayer for quashing the appointment order of second petitioner on the post of Teacher in L.T. Grade or to declare the said appointment illegal. In absence of any prayer in any of the writ petitions, in my view the first petitioner cannot be allowed to raise a dispute with respect to legality of the appointment of second petitioner.
33. Moreover, it is not disputed that appointment of the second petitioner was made substantive, and she was regularized on the post of Assistant Teacher (L.T. Grade) vide order dated 27.1.1994 passed pursuant to Section 33A of 1982 Act. Section 33-A was inserted by U.P. Act No. 19 of 1985 and Sub-section (1-A) was inserted in Section 33-A by U.P. Act No. 26 of 1991 with effect from 6.4.1991. We may reproduce Section 33-A (1 -A) as under:
Section 33-A. Regularisation of certain appointment-
(1-A) Every teacher appointed by promotion on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under or, is exempted from such qualification 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 commencement.
34. A bare reading of Section 33A(1-A) of the Act shows that a teacher appointed by promotion on ad hoc basis against substantive vacancy in accordance with Paragraph 2 of the Removal of Difficulties Order as amended from time to time, possessing qualification or exempted therefrom under the Act and continuously serving the institution from the date of such ad hoc appointment to the date of commencement of U.P. Amendment Act 26 of 1991 shall be deemed to have been appointed in substantive capacity. There is no material on record to show that the appointment of the second petitioner was not made in accordance with paragraph 2 of Removal of Difficulties Order. Moreover, in the absence of any challenge to the order, the first petitioner cannot be permitted to dispute the appointment of the second petitioner, particularly, when no relief has been sought in this regard.
35. Thirdly, while disputing seniority list, it has been held that an incumbent cannot challenge the appointment and promotion which has already been made and has never been challenged by the said incumbent. In Vijay Narain Sharma v. District Inspector of Schools, Etawah and Ors. 1986 UPLBEC 44, this Court in paragraphs 25 and 26 of the judgment held as under:
25. On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute.
36. Similar View was taken in Smt. Manju Keshi Dixit v. State of U.P. and Ors. 2004(5) ESC(AII) 234 and in paragraph 13 it was held as under:
13. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities.
37. Even otherwise, having considered the provision of Section 33-A of 1991 Act, I am clearly of the view that regularisation of second petitioner on the post of teacher in L.T. Grade was neither irregular nor illegal and, therefore, the entire edifice of the contentions of the first petitioner vanishes.
38. In view of the aforesaid discussion, it is evident, that the impugned order dated 12.7.2006 passed by Joint Director of Education, Kanpur, declaring the first petitioner senior to second petitioner is illegal and contrary to law and is liable to be quashed.
39. In the result, writ petition No. 55197 of 2006 is hereby allowed. The impugned order dated 12.7.2006 passed by Joint Director of Education, Kanpur, is quashed and it is made clear that second petitioner Smt. Rita Tripathi having been appointed directly on the post of Assistant Teacher (L.T. Grade), is senior to the first petitioner Mrs. Bharti Roy.
40. Civil Misc. Writ Petitions No. 24401 of 1996 and 38253 of 2000 filed by the first petitioner, namely, Smt. Bharti Roy are devoid of merit and are dismissed. No order as to costs.