1. All these writ petitions have been filed by the same petitioner, Smt. Shashi Lata Jaiswal and are interconnected, involving common question of facts and law and, therefore, have been heard together and are being decided by this common judgment.
2. The facts in brief giving rise to this writ petitions are as under.
3. Yashoda Rastogi Girls Intermediate College, Lucknow (hereinafter referred to as "the College") is imparting education to girls upto intermediate. It is duly recognized by Board of High School & Intermediate Education UP, Allahabad and is governed by the provisions of U.P. Intermediate Education Act 1921 (hereinafter referred to as "the Act 1921"). The college is in grant-in-aid and for the purpose of salary to its teaching and non teaching staff, it is governed by U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act 1971") and for the purpose of recruitment of its teaching staff, it is governed by U.P Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "Act 1982").
4. On 26.09.1988 the petitioner was appointed as Assistant Teacher in C.T. Grade, on ad hoc basis, in the college. She was regularized as Assistant Teacher (LT grade) by Regional Deputy Director of Education (hereinafter referred as to "D.D.E.") vide letter dated 26.08.1996, with effect from 06.04.1991. The petitioner, however, continued to receive salary in CT grade from the date of initial appointment i.e. from 26.09.1988 to September, 1995. She was paid salary in C.T. Grade, i.e. in the pay scale of Rs. 1350-2070, and, after revision of scale with effect from 01.01.1996 she was paid salary in the scale of Rs. 4625-6750.
5. District Inspector of Schools (II) (hereinafter referred as to "DIOS") on completion of 10 years of service in C.T. Grade, vide order dated 20.02.2000 absorbed the petitioner in L.T. Grade w.e.f. 26.09.1998 and her salary was fixed accordingly.
6. A post of Lecturer fell vacant and petitioner claimed promotion thereupon but her claim was rejected by D.I.O.S. vide order dated 03.11.2001. It was challenged in writ petition no. 2787 (SS) of 2001 which was allowed vide judgment dated 14.02.2006. This Court held that D.I.O.S. has no power to consider and reject the claim of promotion of petitioner since the matter of promotion has to be considered by a committee, known as Regional Committee, under Section 12 of 1982, as amended in 1988. Operative part of the order reads as under:
"In view of the above legal position, the order of D.I.O.S dated 3.11.2001 cannot be sustained and is hereby quashed. The writ petition is accordingly allowed and the Regional Committee is directed to consider the case of the petitioner in accordance with Section 12 of the U.P Secondary Education Service Selection Board Act, 1982 and shall also take into consideration the fact that the petitioner was regularised on the post of L.T. Grade teacher on 6.4.1991 vide letter dated 26.8.1996 and in the said letter the date of ad hoc appointment has been shown to be 26.9.1988 which itself goes to indicate that five years experience as required under the Rule 14 was available with the petitioner but that was not taken into consideration.
Without entering into the merits of the case, the Regional Committee shall consider the case of the petitioner in the light of observations made in the judgment and if the petitioner is found fit and eligible then she may be given promotion from the date she has completed five years of service in the L.T. Grade. The petitioner would be entitled to the consequential benefits."
7. Consequent thereto the Regional Committee considered the matter and held that petitioner was not qualified for promotion on the date when vacancy occurred. This decision of Regional Committee was challenged by petitioner in writ petition no. 3538 (S/S) of 2007 (hereinafter referred to as "the first petition"). The petitioner sought a writ of certiorari for quashing order dated 15.05.2007 passed by Regional Committee and also a writ of mandamus commanding respondents to approve her promotion and pay salary with effect from 17.07.2000 on the post of Lecturer (Chemistry). The aforesaid post of Chemistry fell vacant on 01.07.1997 after retirement of Smt. Riyajun Nisha Yavar.
8. In the aforesaid writ petition an interim order was passed on 02.07.2007, as under:
"List on 6.7.2007. In the meantime, the learned Standing Counsel may seek instructions in the matter.
Till the next date of listing, no selected candidate from the Board shall be permitted to join on the post in question."
9. On 10.07.2007 this Court passed another order staying impugned order dated 15.05.2007 and directed respondents to reconsider the petitioner in the light of observation made in the aforesaid order. The said order in its entirety reads as under:
"Heard learned counsel for the petitioner and the learned Standing Counsel.
Learned Standing Counsel on the basis of instructions received submits that the petitioner was appointed in L.T. Grade in the year 1996 and it has rightly been held by the Regional Committee that the petitioner was not qualified on the date when the vacancy has fallen vacant.
Learned counsel for the petitioner has drawn the attention of the Court towards Annexure no.4 to the writ petition, which is regularization order of the petitioner dated 26.8.1996, which indicates that the petitioner shall be deemed to have been appointed on 6.4.1991 on substantive basis. This order has not been challenged and has neither been cancelled by the authorities up till now. Once the authorities have taken a decision to assign the seniority to the petitioner with retrospective date, that seniority is to prevail unless and until the same is annulled or cancelled by the competent forum. Since the petitioner has been regularised and the seniority has been assigned to her with effect from 6.4.1991 on the substantive basis, the petitioner was qualified for promotion on the date when the vacancy has fallen vacant. i.e. 1.7.1997 but ignoring the above factual situation the claim of the petitioner has been rejected. It is note worthy that the promotion was considered in the year 2001 and on the said date two vacancies were existing in the promotee quota.
The other limb of the argument of the learned Standing Counsel is that the post belongs to S.C. Category, therefore, it would be filled from the S.C. Category.
When two vacancies are available and the quota of S.C. Category is only 21%, thus out of two vacancies, on one vacancy the petitioner can be promoted on which he is legally qualified to be promoted. The Committee of Management has misdirected and misinterpreted itself and recorded a perverse finding while deciding the case of the petitioner.
In view of the above, the operation of the impugned order dated 15.5.2007, contained in Annexure no.1 to the writ petition, shall remain stayed and the opposite parties are directed to reconsider the case of the petitioner in the light of the observations made above and send the case of the petitioner for approval for promotion in accordance with law.
Till then the post in question falling in the promotee quota shall not be filled by any other person."
10. In pursuance thereof, Regional Committee again considered petitioner and passed a fresh order dated 26.02.2008, rejecting claim of petitioner for promotion to the post of Lecturer (Chemistry), holding her ineligible.
11. It is this order which has been challenged in writ petition no. 3564(S/S) of 2008 (hereinafter referred to as "the second petition"). This Court while entertaining writ petition and permitting respondents to file counter affidavit, passed an interim order on 04.07.2008 as under:
"Connect and list alongwith writ petition No. 3538(S/S) of 2007 Four weeks time as prayed by learned Standing Counsel is allowed to file counter affidavit.
List in the next month.
In the meantime, the post in question, on which the petitioner is already working, shall not be filled up in any manner."
12. During pendency of both the writ petitions, it appears that D.I.O.S. vide order dated 08.02.2012 found that there was a typing mistake in the order dated 26.08.1996 wherein instead of C.T. Grade, the word "L.T. Grade" was mentioned, though petitioner was never appointed in L.T. Grade, therefore, he modified/corrected order dated 26.08.1996 providing that the petitioner shall stand regularized as Assistant Teacher (C.T. Grade). Writ Petition No. 1307 (S/S) of 2012 (hereinafter referred to as "third writ petition") has been filed assailing the aforesaid order of D.I.O.S. which has also been stayed by an interim order dated 15.03.2012.
13. The basic contention of learned counsel for petitioner is that C.T. Grade was declared dying cadre w.e.f. 14.05.2989. The Government Order also directed that no future appointment shall be made in C.T. Grade and no post shall be created in the said grade. It is urged that in reference thereto, petitioner was regularized in L.T. Grade vide order dated 26.08.1996 with effect from 06.04.1991. It was thus not permissible for D.I.O.S. to make any dent in the aforesaid order of regularization particularly when the order was issued by a superior authority, namely, D.D.E. It was further contended that petitioner, having been regularized w.e.f. 06.04.1991, was entitled to be treated to have worked in L.T. Grade from that date and, therefore, had completed five years of service on the date of vacancy, which is eligibility qualification for promotion to the post of Lecturer. Therefore, the otherwise view taken by respondent educational authorities that five years' experience will commence from the date when order of regularization was actually issued, is patently illegal and erroneous.
14. Three questions have cropped up, which need be answered in this case :
(1)Whether petitioner was regularized w.e.f. 06.04.1991 as Assistant Teacher (L.T. Grade)?
(2)What would be the date from which petitioner can be treated to have functioned as Assistant Teacher (L.T. Grade) for acquiring qualification/experience for promotion to the post of Lecturer ?
(3) In view of the undisputed fact that petitioner was appointed as Assistant Teacher (C.T. Grade) on 26.9.1988, whether C.T. Grade ceased to exist on and after 14.5.1989 and whether petitioner became entitled or could have been treated Assistant Teacher (L.T. Grade) immediately thereafter, though, never appointed in the said grade.
15. The sheet anchor of petitioner is the alleged Government Order dated 20.6.1989, a copy whereof has been filed as Annexure -5 to the first writ petition. A bare perusal thereof would show that it is not a Government Order at all. It is a letter issued by Additional Director of Eduction (Secondary) to all Regional Deputy Directors and Regional Inspectress of Schools, U.P. requesting them as under:
^^vr% vki ls vuqjks/k gS fd rkRdkfyd izHkko ls v'kkldh; ekU;rk izkIr mPprj ek/;fed fo|ky;ksa esa izf'kf{kr vfHkLukrd ¼lh0Vh0½ osrudze esa fdlh v/;kid dks fu;qDr u fd;k tk; vkSj xSj lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa uohu in l`ftr u djsA** "Hence, you are requested that, with immediate effect, no teacher be appointed in non-government recognised Higher Secondary Schools in the pay-scale of trained Abhisnatak (CT Grade) and no new post be created in unaided Higher Secondary Schools." (English translation by Court)
16. The reason assigned for the said request is that Pay Revision Committee has made its recommendation for prescribing single cadre for teachers of Secondary Institutions, imparting education from Class VI to X and, therefore, C.T. Grade be made a dying cadre and no appointment be made therein. Besides, the fact that it is not a Government Order, I find that it nowhere says that the appointees in C.T. Grade will automatically become Assistant Teachers in L.T. Grade.
17. At the time when petitioner was appointed in C.T. Grade in 1988, the provision for appointment was regulated by Regulation 7, Chapter II of the Regulations framed under Act 1921 and it contemplates direct recruitment in C.T. Grade except to the extent promotion was to be made, of teachers appointed in JTC/BTC grade and liable for promotion under Regulation 7(2), as it was, in 1988.
18. Regulation 7, Chapter-II before its amendment in 1992, read as under:
"7. (1) Every vacancy in the post of teachers in the C.T. grade or in the J.T.C./B.T.C. grade shall except as provided in clause (2) be filled by direct recruitment.
(2) Where in an institution any teacher working in the J.T.C./B.T.C. grade has passed Intermediate or an equivalent examination or is a trained graduate and has completed five years' service in that grade he shall be promoted in the C.T. grade by the Committee of Management and information of such promotion shall be immediately conveyed to the Inspector.
(3) If the Inspector has reason to believe that any promotion under clause (2) has been made in contravention of the Act and the regulation then without prejudice to any other action that may be taken in this behalf, he may refer the case to the Director whose decision in the matter shall be final."
19. Though not necessary for the present writ petitions but to keep the record straight, it may be pointed out that Sub-Regulation (2) of Regulation 7, Chapter II was deleted vide Government Order dated 19.09.1992. For the purpose of giving L.T. Grade to teachers appointed in C.T. Grade, a Government Order was issued on 03.06.1989. It provided that those teachers who are working in C.T. Grade in Secondary Schools and have completed ten years of satisfactory service, shall be given L.T. Grade. This Government Order has been considered in Smt. Shail Kapoor and others Vs. State of U.P. and others 2011(6) ADJ 30=2011(4) ESC 2545 and in para 20, this Court said:
"20. The Government Order dated 03.06.1989, while receiving pay scales of teachers of recognised aided educational institutions vis a vis teachers working in C.T. Grade in secondary schools, provided that those who have completed 10 years satisfactory service shall be given L.T. Grade as is evident from the following:
^^¼9½ ek/;fed fo|ky;ksa ds lh0Vh0 xzsM ds ,sls v/;kid dks izf'kf{kr Lukrd gksa rFkk muds }kjk 10 o"kZ dh larks"ktud lsok iwjh dh tk pqdh gks mUgsa ,y0Vh0 xzsM fn;k tk;sxk rFkk mudk osru fu/kkZj.k mi;qZDr izfdz;k ds vuqlkj ,y0Vh0xzsM esa fd;k tk;sxkA ,y0Vh0 xzsM esa tkus okys ,sls lh0Vh0 xzsM ds f'k{kd osru fu/kkZj.k dh frfFk dks pkgs lh0Vh0 xzsM ds lk/kkj.k osrueku esa dk;Zjr jgs gksa ;k lsysD'ku xzsM esa] mudk osru fu/kkZj.k ,y0Vh0 xzsM ds lk/kkj.k osrueku esa fd;k tk;sxkA** "(9) Those CT grade teachers of Secondary Schools who are Trained Graduates and have completed 10 years' satisfactory service shall be awarded LT grade and their salary shall be fixed in LT grade in accordance with the aforesaid procedure. Irrespective of the fact whether such CT grade teachers taken into LT grade, have been in the ordinary pay scale or in the selection grade of CT grade on the date of pay fixation, their pay shall be fixed in the ordinary pay scale of LT grade." (English translation by Court)
20. The aforesaid Government Order was considered as if the grant of L.T. Grade after years, amounts to promotion in L.T. Grade from C.T. Grade. In Virendra Pandey Vs. State of U.P. and others 1994(24) ALR 19, in paras 18 and 20 of the judgment this Court categorically held that grant of pay scale in L.T. Grade after ten years of satisfactory service in C.T. Grade would not result in appointment of incumbent in L.T. Grade for the purpose of conferring upon him benefit of seniority from the date his pay is fixed in L.T. 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 C.T. Grade teacher is allowed pay fixation in L.T. Grade after completion of ten years of satisfactory service.
21. In another decision in Km. Sheela Sanyal Vs. State of U.P. and others, 1995 ALJ 589 this Court 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 the post of higher grade is relevant. The Court relied on Regulation 3(1) (b) of Chapter-II 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."
22. 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".
23. In Vipin Kumar Vs. 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.
24. Both the aforesaid authorities of this Court have been followed by another Hon'ble Single Judge in Madan Lal Mishra Vs. State of U.P. and others, 2007 (3) ESC 1466 (All).
25. In respect of grant of L.T. Grade to teachers of C.T. Rade there was another Government Order issued on 19.10.1989 and para 12 thereof reads as under:
"'kklukns'k la[;k [email protected]&[email protected]&1 ¼136½ 89 f'k{kk vuqHkkx&7] fnukad 11 vxLr] 1989 }kjk lh0Vh0 xzsM dks Mkbax dSMj ?kksf"kr dj fn;k x;k gSA bl izdkj v'kkldh; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa lh0Vh0 xzsM dk dksbZ in l`ftr ugha fd;k tk;sxk vkSj u fdlh v/;kid dh fu;qfDr dh tk;sxhA 'kklukns'k la[;k os0vk0 &2&[email protected]&8 [email protected] fo0os0vk0 vuqHkkx 2] fnukad twu 89 ds fcUnq 9 ds vuqlkj ek/;fed fo|ky;ksa ds lh0Vh0 xzsM ds ,sls v/;kid tks izf'kf{kr Lukrd mikf/k ds lkFk ,y0Vh0] ch0,M0 gks rFkk muds }kjk 10 o"kZ dh larks"ktud lsok iwjh dh tk pqdh gks mUgsa ,y0Vh0 xzsM fn;k tk;sxk rFkk mudk osru fu/kkZj.k mijksDr izfdz;k ds vuqlkj ,y0Vh0 xzsM esa fd;k tk;sxkA ,y0Vh0 xzsM esa tkus okys ,sls lh0Vh0 xzsM ds f'k{kd] osru fu/kkZj.k dh frfFk dks pkgs lk/kkj.k osrueku esa dk;Zjr jgs gksa ;k lsysD'ku xzsM esa] mudk osru fu/kkZj.k ,y0Vh0 xzsM ds lk/kkj.k osrueku esa fd;k tk;sxkA** (Emphasis added) "C.T. Cadre has been declared a Dying Cadre vide Government Order No. 3299/15-7/89-1 (136) 89 Shiksha Anubhag-7, dated 11.08.1989. In this way, neither any post of C.T. Cadre shall be created in Non-Government aided Higher Secondary Schools nor shall any teacher be appointed therein. In view of Point 9 of the Government Order No. Ve.Aa.-2-1239/Das-8-B/89 Vi.Ve.Aa. Anubhag 2, dated June 1989, such teachers who are in C.T. Grade of the Secondary Schools and possess qualification of L.T., B.Ed along with Trained Guaduate Degree and have completed 10 years of satisfactory service shall be granted L.T. Grade and their pay fixation shall be made in L.T. Grade in accordance with the above procedure. The pay fixation of such C.T. Grade teachers granted L.T. Grade, shall be made in ordinary pay scale of L.T. Grade, irrespective of their being in the ordinary pay scale or in the selection grade on the date of pay fixation." (English translation by Court) (Emphasis added)
26. The aforesaid Order was amended by a subsequent Government Order dated 30.11.1989/2.12.1989 and the amended paragraph 12 reads as under:
"'kklukns'k la[;k [email protected]&[email protected]&1 ¼136½ 89 f'k{kk vuqHkkx&7] fnukad 11 vxLr] 1989 }kjk lh0Vh0 xzsM dks Mkbax dSMj ?kksf"kr dj fn;k x;k gSA bl izdkj v'kkldh; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa lh0Vh0 xzsM dk dksbZ in l`ftr ugha fd;k tk;sxk vkSj u fdlh v/;kid dh fu;qfDr dh tk;sxhA 'kklukns'k la[;k os0vk0 &2&[email protected]&8 [email protected] fo0os0vk0 vuqHkkx 2] fnukad twu 89 ds fcUnq 9 ds vuqlkj ek/;fed fo|ky;ksa ds lh0Vh0 xzsM ds ,sls v/;kid tks izf'kf{kr Lukrd ¼ Lukrd mikf/k ds lkFk ,[email protected],M0 vFkok lh0Vh0 xzsM esa izf'kf{kr Lukrd ftUgksaus bl osrudze esa ikap o"kZ dh lsok iw.kZ dj yh gks ½ rFkk muds }kjk 10 o"kZ dh larks"ktud lsok iwjh dh tk pqdh gks] mUgsa ,y0Vh0 xzsM fn;k tk;sxk rFkk mudk osru fu/kkZj.k mijksDr izfdz;k ds vuqlkj ,y0Vh0 xzsM esa fd;k tk;sxkA ,y0Vh0 xzsM esa tkus okys ,sls lh0Vh0 xzsM ds f'k{kd] osru fu/kkZj.k dh frfFk dks pkgs lk/kkj.k osrueku esa dk;Zjr jgs gksa ;k lsysD'ku xzsM esa] mudk osru fu/kkZj.k ,y0Vh0 xzsM ds lk/kkj.k osrueku esa fd;k tk;sxkA** "C.T. Cadre has been declared a Dying Cadre vide Government Order No. 3299/15-7/895 1 (136) 89, Shiksha Anubhag-7, dated 11.08.1989. Thus, neither any post of C.T. Cadre shall be created in Non-Government aided Higher Secondary Schools nor shall any Teacher be appointed therein. In view of Point No. 9 of the Government Order No. Ve.Aa.-2-1239/Das-0-B/89 Vi.Ve.Aa. Anubhag 2, dated June 1989, such teachers of Secondary Schools working in C.T. Grade and are Trained Graduates (L.T., B.Ed along with Guaduate Degree or are Trained Graduates in C.T. Grade and have completed 5 years of satisfactory service in this scale) and have completed 10 years of satisfactory service shall be granted L.T. Grade and their pay fixation shall be made in L.T. Grade in accordance with aforesaid procedure. The pay fixation of such C.T. Grade teachers granted L.T. Grade shall be made in ordinary pay scale of the L.T. Grade, irrespective of their being in the ordinary pay scale or in the selection grade on the date of pay fixation." (English translation by Court)
27. Both these Government Orders came up for consideration in Smt. Aruna Ghosh Vs. State of U.P. and others, (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 Vs. Deputy Director of Education and others 1995 AWC 893.
28. Same view was taken by another Hon'ble Single Judge (Dr. B.S. Chauhan, J.) in Madan Gopal Agrawal and others Vs. The District Inspector of Schools, Bijnor and others, 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 Versus University AIR 1995 SC 1694, Virendra Pandey versus State of U.P., 1994 (24) ALR (H) 19, Writ Petition No. 30754 of 1991 Madhuri Devi Vs. Regional Inspectress of Girls Schools, decided on 20.3.1995 and Vipin Kumar Vs. 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."
29. 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 Vs. District Inspector of Schools and others decided on 13.2.2006.
30. A pari materia 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 Vs. 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."
31. This Court has referred to the aforesaid Government Order and relied on the aforesaid authorities in Smt. Bharti Roy Vs. Deputy Director of Education II, Kanpur and others 2008(2) ADJ 134. It is thus evident that the matter is governed by Government Order dated 11.8.1989 whereby C.T. Grade was declared a dying cadre. This Government Order has been referred to and considered in Smt. Shail Kapoor (supra) and in para 21 this Court has said as under:
"Vide Government Order No. 3299/15-7/89-11(1361)/89 Shiksha Anubhag dated 11.08.1989 C.T. Grade was declared a dying cadre. It said that neither any post of Assistant Teacher (C.T. Grade) shall be created nor any appointment shall be made. The teachers working in C.T. Grade in secondary schools having training qualification, i.e., L.T./ B.Ed and completed 10 years satisfactory service shall be given L.T. Grade and their salary shall be fixed in L.T. Grade (ordinary)."
32. Vide Government Order dated 09.01.1992 the Assistant Teachers (C.T. Grade) in Government Secondary Schools were sought to be absorbed in L.T. Grade. It was however, clarified therein that service rendered by C.T. Grade teachers in B.T.C., J.T.C. and H.T.C. Grade shall be counted for and future vacancies in C.T. Grade shall be treated to have occurred in L.T. Grade. This is also not relevant for this case.
33. Vide Government Order dated 18.12.1997, Regulation 6 (1) was amended by substitution and amended provision reads as under:
^^6 ¼1½ tgkWa fofu;e 5 ds v/khu ;Fkk vo/kkfjr izoDrk Js.kh esa ;k ,y0Vh0 Js.kh esa dksbZ fjfDr inksUufr }kjk Hkjh tkuh gks] ogkWa ;FkkfLFkfr ,y0Vh0;k lh0Vh0 Js.kh esa dk;Zjr ,sls lHkh v/;kidksa ds lEcU/k esa ftudh mDr fjfDr gksus ds fnukad dks U;wure ikWap o"kZ dh yxkrkj ekSfyd lsok gks] izcU/k lfefr }kjk inksUufr ds fy;s mlds fufeRr muds vkosnu fd;s fcuk gh fopkj fd;k tk;sxk] izfrcU/k ;g gS fd os ml fo"k; esa ftlesa izoDrk Js.kh esa ,y0Vh0 Js.kh esa v/;kid dh vko';drk gks] v/;kiu ds fy, fofgr U;wure vgZrk j[krs gksaA ijUrq lh0Vh0 xzsM ds ,sls v/;kid tks izf'kf{kr Lukrd gSa vkSj 1-1-86 ds iwoZ 10 o"kZ dh lUrks"ktud lsok iwjh dj pqds gks ;k ml frfFk ds ckn ftl frfFk dks 10 o"kZ dh lUrks"ktud lsok iwjh dj ysrs gSa] 1-1-86 ls ;k mlds ckn lh0Vh0 xzsM esa 10 o"kZ dh lsok iwjh djus dh frfFk ls tSlh Hkh fLFkfr gks] ,y0Vh0 xzsM esa lafoyhu le>s tk;saxs vkSj lafofy;u dh mDr frfFk ls os ,y0Vh0xzsM esa ekSfyd :i ls fu;qDr ekus tk;saxsA** "6 (1) Where any vacancy in L.T. Grade or in Lecturer Grade, as may be prescribed under Regulation 5, is to be filled through promotion, all the teachers working in L.T. or C.T. Grade, as the case may be, who have completed 5 years of continuous substantive service on the date of occurance of such vacancy shall be considered by the Management Committee for promotion even without applications from them provided they possess minimum prescribed qualification for teaching in Lecturer Grade or L.T. Grade for which teacher is required. But the teachers in C.T. Grade who are Trained Graduates and have completed 10 years of satisfactory service prior to 01.01.1986 or those having completed 10 years of service in C.T. Grade subsequent to that date shall be treated as merged in the L.T. Grade with effect from 01.01.86 or from a later date, as the case may be; and they shall be treated substantially appointed in L.T. Grade from the date of the said merger." (English translation by Court)
34. All these Government Orders were considered in Smt. Shail Kapoor (Supra) and in paras 25 and 26 this Court said as under:
"25. Regulation 6(1) makes it very clear that such C.T. Grade teachers who are trained graduates and completed 10 years of service prior to 01.01.1986 or thereafter, on the date they so complete 10 years satisfactory service, shall be deemed to have been absorbed in L.T. Grade and shall be treated to be substantively appointed in L.T. Grade from the date of such absorption.
26. Some confusion arose in this regard which was clarified by Director of Education vide order dated 16.01.2002 that on such absorption and deeming substantive appointment, incumbent would be entitled for seniority and other benefits."
35. I find that the Government Order dated 3.6.1989 was also considered in Laxmi Narain Gangwar and another Vs. State of U.P. and others, 2009(9) ADJ 635 and in para 32 said:
"Therefore, this Clause required completion of 10 years' satisfactory service in C.T. Grade by a teacher before he could be granted L.T. Grade."
36. The same thing has been reiterated by referring to Director of Education's letter dated 19.10.1989 in para 36 and 38 of the judgment. The Court, emphasizing its conclusion in para 39, said:
"In other words, on completion of total length of 10 years' satisfactory service with 5 years' service in C.T. Grade, a teacher became entitled to placement/absorption in L.T. Grade provided such teacher fulfilled the requirements of training and academic qualifications as provided in the above-noted paragraph 12."
37. Counsel for the petitioner could not show that there was any otherwise provision by means of a Government Order or in the form of Regulation or otherwise so as to provide that after C.T. Grade became dying cadre, the persons appointed in C.T. Grade will be treated to be teachers in L.T. Grade and would be entitled for all benefits including salary etc. therein. On the contrary, it could not be disputed by learned counsel for petitioner that despite issuance of order dated 26.8.1996 wherein post of petitioner was mentioned as L.T. Grade, he continued to receive salary in C.T. Grade. I repeat, the petitioner continued to receive salary in C.T. Grade throughout and never claimed higher salary of L.T. Grade at any point of time till 1998. Thus the petitioner herself was aware that her regularization is in C.T. Grade. It is only by mistake, it has been mentioned in L.T. Grade though was never appointed in L.T. Grade. The ad hoc appointment of petitioner in C.T. Grade was regularized by the aforesaid order and regularization always contemplates that it shall be on the post on which the incumbent has been appointed and not something which the incumbent has never held.
38. Learned Counsel for the petitioner did not dispute that she was never appointed as Assistant Teacher (L.T. Grade) at point of time till 1998. Prior to issuance of impugned order by D.I.O.S the petitioner was given C.T. Grade salary but vide order dated 20.02.2000, with effect from the date she completed ten years of service in C.T. Grade, i.e. 26.09.1998 she was given L.T. Grade and salary was fixed accordingly.
39. I have no manner of doubt that the order dated 26.08.1996 in so far as it mentions the post of Assistant Teacher as L.T. Grade, is nothing but a typographical error. It was actually in C.T. Grade, wherein petitioner was appointed on ad hoc basis and that is how, a corrigendum/rectification letter has been issued by D.I.O.S. on 08.02.2012.
40. The only question needs be answered is whether such an order could be issued by D.I.O.S. or not when the earlier order was issued on 26.08.1996 by D.D.E. an authority higher in rank. Normally rectification ought to have been issued by the same officer but since vide order dated 08.02.2012 only a typographical error has been rectified, I do not find it necessary to interfere therewith in order to revive the same error again though it will not make any substantial change in the situation. Question no. 1 is thus answered in negative and against the petitioner.
41. It is sell settled, where some authority has passed an order which is without jurisdiction, the Court is not bound to intervene by setting aside such order of the authority, it would result in revival of an illegal order.
42. A Division Bench of this Court (of which I was also a member) in Amarendra Singh Vs. State of U.P. 2008(1) ADJ 397 (DB)=2008(1)ESC 734 has held that since the petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution., the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.
43. In Champalal Binani v. The Commissioner of Income Tax west Bengal and others AIR 1970 SC 645, the Apex Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
44. In Durga Prasad v. The Chief Controller of Imports and Exports and others AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13) it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
45. It would be appropriate to refer the view expressed by the Apex Court in Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and 1982(3) SCC 331 which reads as under:
"...this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136."
46. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in my view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the fact and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival lot another illegal order, the Court would be justified in refusing to interfere.
47. In Employees' State Insurance Corporation and others vs. Jardine Henderson Staff Association and others AIR 2006 SC 2767, the Apex Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment the Court clearly held that the High Court under Article 226 and the Apex Court under Article 136 read with 142 of the Constitution has the power to mould the relief in the facts of the case.
48. In Ramnik Lal N. Bhutta and Anr. v. State of Maharashtra, AIR 1997 SC 1236, the Apex Court observed:
"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point."
49. In State of H.P. v. Raja Mahendra Pal and Ors. (1999) 4 SCC 43, in para 6 of the judgment the Apex Court held:
"...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article...."
50. Similarly, in Director of Settlement v. M.R. Apparao (2002) SCC 638 in para 17 the Apex Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.
51. Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including R.K. Shukla VS. Chairman Town Area Committee & Another (Writ A No. - 19889 of 1991 decided on 17.1.2013). Suffice it to say that this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous.
52. The doctrine of equality in employment being public servant under Article 14 and 16 of the Constitution applies positively. No person has fundamental right in the matter of extension of benefit which is illegal. It is well settled law that two wrongs will not make one right. (See State of Haryana & others Vs. Ram Kumar Mann, 1997 (3) SCC 321, M/S Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 565 and Kastha Niwarak G.S.S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142.).
53. To the same effect is the view taken by a Division Bench of this Court (of which I was also a member) in Shiv Raj Singh Yadav Vs. State of U.P. and others 2011(10)ADJ 699.
54. The above discussion leaves no manner of doubt that upto 1998 petitioner continued to be a C.T. Grade Teacher and got L.T. Grade thereafter, therefore, when the vacancy on the post of Lecturer (Chemistry) occurred in 1997, the petitioner was not at all even in feeder cadre i.e. Assistant Teacher (L.T. Grade), so as to claim promotion thereupon. The second and third question also, therefore, stand answered against petitioner.
55. In view of what has been said above, all these writ petitions are wholly devoid of merit and are dismissed accordingly.
56. There shall be no order as to cost.
Dated: November 25, 2014 AK/Akn