JUDGMENT A.P. Sahi, J.
1. The petitioner claiming himself to be senior to respondent no. 5 has challenged the impugned order dated 30.5.2005, whereby the claim of the petitioner for being appointed as head master of the institution on ad hoc basis has been rejected, by holding that the petitioner's representation is not worth consideration, as he is even otherwise junior to the respondent no. 5 and is not working in the institution, for which reliance has been placed by the respondent the District Inspector of Schools on the inspection report dated 13.8.2003.
2. Learned counsel for the petitioner Sri Y.K. Saxena has raised three principle objections for declaring the order to be unsustainable in the eyes of law, namely, that the impugned order is in violation of principles of natural justice inasmuch, the petitioner was not given any opportunity of hearing and that the impugned order has been passed on the basis of a report about which the petitioner was never put to notice and further, the assumptions drawn against the petitioner about his non functioning in the institution are non existent, secondly, that the dispute of seniority has been decided without taking note of the provisions of law, and thirdly, there was no justification in law to have accepted the claim of respondent no. 5.
3. A counter affidavit has been filed on behalf of respondent no.5 and Sri P.C. Mishra has been heard on behalf of the said respondent. Rejoinder affidavit has also been filed by the petitioner to demonstrate that he is continuously functioning in the institution. Learned Standing Counsel has also advanced his argument in support of the impugned order and contends that the order does not deserve interference.
4. It is admitted to the parties that the institution was established as Appeal allowed Junior High School and was accorded permanent recognition on 2.2.1998. The petitioner, as well as the respondent no. 5, both claimed to have been appointed prior to the said date. The petitioner claims to have been appointed on 12.7.1992 and his date of birth, as recorded in the High School certificate is 1.7.1960. The respondent no. 5 claims to have been appointed in the year 1994 and his date of birth is 10.1.1967. The approval to the appointment of the petitioner and respondent no. 5 were granted by the District Basic Education Officer, Etah on 14.11.1996. A perusal of the said approval letter , which is Annexure-1 to the writ petition, indicates that the respondent no. 5 is at serial no. 4 whereas petitioner's name is at serial no. 5. The appointment of the teachers and other employees referred to thereunder have been approved with effect from the date they take charge.
5. Admittedly, the institution was upgraded and recognised as a High School with effect from 17.4.2001,The post of head master was to be filled up on officiating/ad hoc basis on account of the fact that the earlier incumbent to the post stood relieved. The committee of management proceeded to appoint one Sri Ram Das. The respondent no. 5 challenged the aforesaid action of the committee of management by filing Writ Petition No. 56596 of 2003, which writ petition was disposed of on 8.12.2004 with a direction to the D1OS to decide the dispute in the light of Section 18 of U.P. Act No. 5 of 1982 and the decision of this Court in the case of Samsuala Zaman Versus District Inspector of Schools Chandauli and others reported in 2001 (3) UPLBEC 2118. A copy of the said judgment has been appended as Annexure-4 to the writ petition. When the matter was taken up by the District Inspector of Schools, the petitioner also moved an application on 12.5.2005 requesting the District Inspector of Schools to consider the claim of the petitioner as well, on the ground that the petitioner is also an approved employee of the institution, and that he is senior to the respondent no. 5 and as such he should be permitted to take charge of the office of the head master of the institution.
6. The District Inspector of Schools by the impugned order has rejected the claim of the petitioner on the ground s referred to in the opening paragraphs of this judgment.
7. Having heard learned counsel for the parties, coming to the first question raised by the petitioner, that the impugned order is in violation of principles of natural justice, which fact has been stated in paragraph 14 of the writ petition, it is evident that no satisfactory reply has been given to the same in paragraph 15 of the counter affidavit filed by the respondent and a bald statement has been made that the petitioner had full opportunity of hearing without disclosing as to when that opportunity was given and further that the objection raised by the petitioner was duly considered by the District Inspector of Schools. As recorded in the impugned order, the District inspector of Schools has not found the representation of the petitioner worth consideration, on the ground that the petitioner does not appear to be an employee of the institution and secondly, to support the aforesaid conclusion, the District Inspector of Schools has relied upon the report dated 13.8.2003. The said finding is also in violation of principles of natural justice inasmuch the petitioner was never put to notice about the reliance placed on the alleged report dated 13.8.2003. A perusal of the said report which has been appended as Annexure-4 to the counter affidavit simply indicates the presence of the teachers as recorded in the attendance register. The said report no where indicates that the petitioner was not found to be a teacher of the institution. Even otherwise, it was incumbent upon the District Inspector of Schools, to at least put the petitioner to notice and allow him to demonstrate that he was functioning in the institution. The petitioner in his rejoinder affidavit has filed several documents to support his claim that he did function in the institution, and as such the conclusion drawn by the District Inspector of Schools is patently erroneous. It is settled principle of law, that in case the authority concerned is proceeding to rely on material which is to be utilized against the aggrieved person, and which material is likely to cause prejudice, then such material should be made available to the person concerned so that he may be able to contest the same. In the event of failure to adopt such a procedure, the order would stand vitiated as being violative of principles of natural justice. The same is the situation in the present case and as such applying the aforesaid principles this Court is of the opinion that the order stands vitiated on this count. The District Inspector of Schools was under an obligation to have at least given an opportunity to the petitioner to meet the aforesaid presumptions sought to be drawn against the petitioner .
8. The other question raised, is the non functioning of the petitioner in the institution. Counter affidavit of the respondent no. 5 admits in paragraph 5 that the petitioner has functioned from September 1996 up to March 1998. It is further suggested that the petitioner thereafter abandoned his post. In these circumstances,it was necessary for the District Inspector of Schools to have intimated the petitioner about this objection being taken against him. Abandonment of a post does not automatically result in cessation of service, moreso, where continuance is being specifically claimed. There is no finding recorded by the District Inspector of Schools that the petitioner has abandoned his services voluntarily and no particulars to this effect have been disclosed except the conclusion recored by him on the basis of the report dated 13.8.2003 indicated herein above. The report no where records the abandonment of his service by the petitioner as claimed by the respondent no. 5. The assumption drawn by the respondent no. 5 that the petitioner will be deemed to have abandoned his post, as he is not there in the institution, is unsustainable because of the reason that the petitioner was admittedly an employee of the then Junior High School duly approved by the Basic Education Officer who is the authority competent to do so. Upon the upgradation of the institution from a Junior High School to a High School the existing employees of such an institution automatically become the employee of the upgraded institution in the grade for which they hold qualification under the provisions contained in Regulation 4 of Chapter II of the Regulations framed under the Intermediate Education Act. The services of a teacher in a Junior High School are governed by the U.P. Recognised Basic Schools (Junior High School) (Appointment of Teachers and Condition of Services) Rule 1978. Rule 15 of the said Rules, provides that the services of an employee cannot be dispensed with except with the prior approval of the Basic Education Officer. There is nothing on record to demonstrate that the services of the petitioner were treated to have been dispensed with or abandoned for which there was an approval by the Basic Education Officer.
9. The next question is that in case the petitioner is an approved employee of the institution, then what would be the position of the petitioner in respect of his claim of seniority. Admittedly, the petitioner and respondent no. 5 were appointed and approved when the institution was a Junior High School and was governed by the provisions of 1978 Rules referred to herein above. A perusal of the aforesaid Rules, demonstrates, that the appointment could only take place after the approval was granted by the Basic Education Officer under Rule 10 read with Rule 11 of the aforesaid Rules. There is no provision for determining the seniority of a teacher appointed in Junior High School under the said Rules. The contention of respondent no. 5 is that since his name appears above that of the petitioner in the order of approval, therefore, respondent no. 5 is senior to the petitioner. This question has to be determined by first ascertaining the date of substantive appointment of the petitioner and the respondent no. 5 and then applying the principles contained under Chapter III of Regulation 2 of the Regulations framed under the U.P. Intermediate Education Act. The claim of seniority has to be determined now under the provisions of U.P. Intermediation Education Act, as the institution stands upgraded.
10. In order to ascertain the date of substantive appointment, the said question need not detain this Court for any discussion, in view of the law laid down by this Court in the of R.C. Sharma Versus State of U.P. and others reported in 1980 UPLBEC 245. While construing similar provisions of the U.P. Intermediate Education Act the said Division Bench Judgment rules that "Whenever the statute require prior approval for any appointment, approval on subsequent date, would not relate back to initial date of appointment or validate appointment with retrospective effect.". Applying the aforesaid principles it is evident that the appointment of the petitioner and the respondent No. 5 on substantive basis could be counted only from the date of their approval and not from any other date prior to that. The reason has already been indicated in the ratio of the Division Bench quoted herein above. The teachers of a Junior High School can be appointed only if there is an approval of the Basic Education Officer in respect of their selection under Rule 10 of Rule 1978. Thus, prior approval is sine qua non for appointment on substantive basis. Any service rendered prior to that, therefore, can not be termed to be in a substantive capacity and the appointee obviously gets the status of a teacher as defined under the Act, only after approval is granted.
11. The aforesaid view has been followed also in respect of the appointment made under the U.P. Intermediate Education Act and the date of approval has been held to be the date of substantive appointment for the purpose of computing seniority. Reference may be had to the decision of this Court referred to herein above and in the decision reported in 1979 ALJ 1025.
12. Having concluded that the date of substantive appointment would be the date of approval even in the case of teachers of Junior High Schools, this Court now proceeds to consider the claim of seniority in the light of the provisions as applicable on the date when the dispute arose. The institution already stood upgraded as a High School in the year 2001. The question of appointment arose on the post of head master on officiating basis in the year 2003 as is evident from the facts narrated herein above. Thus, the provisions of Chapter 11 of Regulation 3 of Intermediate Education Act, 1921 are clearly attracted for the purpose of computing seniority. According to the aforesaid provisions the seniority has not to be determined in the order of preference given in the approval order. In the event of approval having been granted on the same date, the person who is senior in age has to be treated as senior. Admittedly, the date of birth of the petitioner is 1.7.1960 and that of the respondent No. 5 is 10.1.1967. Applying the aforesaid provisions the petitioner can be safely presumed to be to be senior than the respondent. The assumption of the District Inspector of Schools that since the name of the petitioner finds below that of the respondent No. 5, and, therefore, the petitioner is junior to the said respondent, is merely an erroneous assumption and conclusions have been drawn without taking notice of the provisions referred to herein above. The impugned order, therefore, cannot be sustained on this count as Well.
13. The third issue as to whether the respondent No. 5 was liable to be appointed or not, need not be gone into in view of the fact that the matter requires reconsideration by the District Inspector of Schools afresh in the light of the observations made herein above. Learned counsel for the respondent urged that in view of the several decision of this Court the services rendered prior to the date of approval, i.e., the date of initial appointment should also be counted. In view of the discussions and conclusions drawn herein above it is obvious that the District Inspector of Schools did not go into any of these questions and as such the decision referred to by the learned counsel for the respondent cannot be of any avail. Since the matter is being remitted back to the District Inspector of Schools, therefore, it shall be open to the District Inspector of Schools to decide the controversy again after considering every material that may be placed before him by the concerned parties and keeping in view the law laid down by this Court and referred to herein above.
14. Accordingly, the writ petition succeeds and is allowed. The impugned order dated 30.5.2005 is quashed with a direction to the District Inspector of School, Etah to decide the matter afresh. However, since the order dated 30.5.2005 had been allowed to operate for almost four months, then keeping in view the interest of the institution and also the fact that there might not be any confusion on the spot, the status quo as on today with regard to the office of the head master of the institution shall be maintained till the matter is decided again by the District Inspector of Schools as per the directions contained in this judgment. The District Inspector of Schools is directed to complete this exercise and take adecision in the matter as expeditiously as possible preferably within six weeks from the date of presentation of a certified copy of this order before him, after giving an opportunity to the concerned parties.
15. The writ petition is accordingly disposed of.