TMI Blog2001 (3) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is situated in Tezi Bazar, district Jaunpur, The college is duly recognized under the provisions of U. P. Intermediate Education Act. 1921 (hereinafter referred to as the Act). It is under the grant-in-aid list of the State Government and the provisions of U. P. High Schools and Intermediate College (Payment of Salaries to the Teachers and other Employees) Act, 1971. (hereinafter referred to as the 1971 Act), is applicable. 3. According to the petitioner. Biology subject in the college was recognized for Intermediate classes by the Secretary, Board of High School and Intermediate Education, U. P., Allahabad vide communication letter dated 20.9.1969. The Committee of Management of the college, proceeded to fill the vacancy on the post of lecturer in Biology, after advertising the post. The Selection Committee considered all the candidates who had applied for appointment on the post in question, and recommended the petitioner to be appointed as lecturer in Biology in the college. The Committee of Management issued the appointment letter on 31.7.1970. The petitioner joined on 1.8.1971, as lecturer in Biology in the college. 4. It appears that the petitioner had gone on leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 whereas the respondent No. 5 was placed at SI. No. 5. The Principal of the college had retired on 30.6.1999. He handed over the charge to the respondent No, 5. Being aggrieved thereby, the petitioner represented the matter before the Joint Director of Education, who directed the District Inspector of Schools to verify the factum of seniority and to see that only senior most teacher of the college should be permitted to function as ad hoc/officiating Principal of the college. The District Inspector of Schools, in his turn, vide order dated 1.12.1999, directed the petitioner to discharge the function of the Principal and issued necessary instruction to the college authorities to permit the petitioner to function as ad hoc /officiating Principal of the college. The order dated 1.12.1999 passed by the District inspector of Schools, was challenged by the respondent No. 5 by filing Civil Misc. Writ Petition No. 5433 of 1999 which was disposed of finally by this Court vide judgment and order dated 28.1.2000 with the following directions : ..... In view of the fact that the District Inspector of Schools had sought clarification from the Joint Director of Education regarding the sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned order dated 27.4.2000 during the pendency of the writ petition, the respondent No. 5 had filed a Special Appeal No. 606 of 2000 which was disposed of vide judgment and order dated 16.10.2000 and direction was issued that the petition shall be listed for final hearing on 15.11.2000 before the learned single Judge. Therefore, the writ petition is decided finally at this stage. 11. Shri V.K. Shukla, learned counsel for the petitioner submitted that the college had surrendered the Agriculture subject taught in Intermediate classes and in its place had sought approval for teaching Biology subject which was granted by the District Inspector of Schools. Thus, he submitted that the post of lecturer was also there in the college. Further the petitioner was appointed on the post of Lecturer in Biology on 31,7.1970 prior to coming into force of the provision of U. P. High School and Intermediate College (Payment of Salaries to the Teachers and Other Employees] Act. 1971. There was no provision either under the U. P. intermediate Education Act or the Rules and Regulations framed thereunder, to obtain sanction of any post. The only provision was that before making any appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the same giving reasons for the decision. (2) The seniority list shall be revised every year and the provisions of clause (1) shall mutatis mutandis apply to such revision. 13. According to him, Rule 3 (b) provides for determining seniority of teachers in a particular grade on the basis of their substantive appointment in that grade. The petitioner having been appointed in the lecturer's grade on 31.7.1970, the petitioner is senior to the respondent No. 5, who admittedly was appointed as lecturer on 1.7.1972. He further submitted that while determining the question of seniority, the validity of the appointment of the petitioner cannot be gone into. In support of this plea, he relied upon the decision rendered by this Court in the case of Vijai Narain Sharma v. District Inspector of Schools, Etawah and others. 1986 UPLBEC 44, wherein this Court has held that the relevant factors for determining the validity of the seniority list in a grade in which a teacher is working are as to whether he is appointed on the substantive post or not, whether the appointment is a permanent or temporary, the date of appointment or promotion and age of the teachers and it is no where c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appointment of the petitioner on the aforesaid post was of no consequence. In support of the aforesaid plea, he relied upon a decision of the Division Bench of this Court rendered in the case of Lalit Mohan Misra and another u. District Inspector of Schools and others 1979 ALJ 1025. He further submitted that mere fact that the payment of salary was being made to the petitioner would not make his appointment legal on the post of lecturer in the absence of sanction of the post. He relied upon the decision of the Full Bench of this Court rendered in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj and another. 1999 (1) VPLBEC 1. He further submitted that admittedly, the petitioner had joined Balrampur Degree College, Gonda on 1.8.1972 and worked there till 30.6.1973, thus, he had lost all lien on the post in question in the college and he cannot become senior to the respondent No. 5 who had been promoted on the post of lecturer on 1.7.1972. In support of this plea, he relied upon a decision of this Court in the case of Chandra Bhal Misra v. District Inspector of Schools, Jaunpur and another 1993 (1) AWC 327. 15. In the case of Vijai Narain Sharma (supra), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion cannot be, subsequently, permitted to raise the dispute. 27. In this view of the matter, I am of the opinion that the contention raised by the learned counsel for the respondent is well founded. In proceedings for determining the validity of the seniority list prepared by the college, it is not open to a teacher of the said college to challenge the appointment or promotion of any other teacher in the same college. 16. In the case of Smt. Rani Srivastava (supra), this Court in para 5 of the judgment held as under : 5. Principal infirmity in appointment of petitioner, that could be pointed out, was that it was made without issuing any advertisement and recommendation by Selection Committee. May be but could the management which appointed petitioner in 1984 and the Basic Shiksha Adhikari who did not raise any objection to payment of salary for five years raise this objection in 1989. The appointing authority under rules is the Committee of Management. And the approving authority is the Basic Shiksha Adhikari, who under U. P. Act No. 6 of 1979 is also to supervise the payment of salary and is empowered to inspect and check. For five years no objection was raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lapse of 17 years by the Director of Education under Section 16E (1), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable lime. 18. In the case of Smt. Zaitoon Fatima (supra) in paras 4 and 5 of the judgment, this Court has held as under: 4. The next question that begs consideration is whether the Regional Inspectress of Girls Schools was justified in making reference under Section 16E (1) of the Act to the Director of Education for cancellation of the initial appointment of the appellant by promotion to C.T. grade and later, to L.T. grade after a lapse of about 23 years. The counsel for the appellant / propounded with the vehemence that it would be unjust to allow the appointment to be cancelled after a lapse of nearly 23 years of the appointment of the appellant to L.T. grade. The submission made by the learned counsel is laded with substance. In Smt. S. K. Chaudhary v. Manager. Committee of Management Vidyawati Darbari Girls Inter College, Lookerganj, Allahabad and others. (1991) 1 UPLBEC 250, the validity of appointment of a teacher was sought to be challenged after lapse of 17 years. The Full Bench held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter to the Director Education under Section 16E (1) is thus liable to be quashed. 19. 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 a long period, it should not be disturbed or set aside on some technicalities or procedural irregularities. 20. In the case of Lalit Mohan Misra (supra) in para 11 of the judgment, this Court has held as under : The provisions of the U. P. Intermediate Education Act make it clear that no person can be appointed as Principal or teacher of the institution unless he is approved by the District Inspector of Schools, or the Deputy Director of Education, as the case may be. Without approval the person does not get the status of a teacher, even though the approval is to be followed by a formal letter, but in the absence of formal letter the person gets the status of a teacher after approval to the appointment is given by the District Inspector of Schools. The appointment of a person as a teacher becomes effective only from the date approval is given and even if a person as allowed to work before that the same has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n connection with a new subject, which it has been permitted to open, the management has to obtain prior approval of the Director as required under Section 9 of the Payment of Salaries Act. This statutory mandate cannot be said to have been satisfied by raising a presumption on the basis of recognition granted for that subject. 22. In the case of Chandra Bhal Misra (supra) in relevant portion of para 7 of the judgment it has been held as under : 7. .....Firstly, the petitioner Chandra Bhal Mishra had taken leave from the institution to join a Municipal Higher Secondary School a chance of serving another institution sought voluntarily. Secondly, while working for two years at the Higher Secondary School between the period 1st October, 1963 to 5th August, 1965, Chandra Bhal Mishra settled himself on a substantive post and an available substantive vacancy implying that he was waiving his lien at the institution from where he came. Thirdly, the Committee of Management had not been consistent in accepting Chandra Bhal Mishra as the senior most lecturer and that on this point the committee had several times wavered in its decision by holding at times that Chandra Bhal Mishra is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The only requirement was that no person shall be appointed as teacher in a recognized institution unless he possesses the requisite qualification and has been recommended by the selection committee constituted for the said post and approved by the Inspector as provided in Section 16F of the Act as it stood at the relevant time. The District Inspector of Schools had declined to grant approval only on the ground that the post was not sanctioned. The said order appears to have been set aside by Deputy Director of Education under Section 16F (3) of the Act on the representation made by the Committee of Management otherwise there was no reason as to why the payment of salary was made to the petitioner w.e.f, 1.4.1971 under the 1971 Act. The irresistible inference is that the appointment of the petitioner was approved by the authorities and there was no dispute regarding his date of appointment. Even otherwise, as held by this Court in the case of Vijai Narain Sharma (supra), the question of validity of the appointment cannot be gone into in any proceedings for determination of seniority. Further after about 30 years, the validity of appointment of the petitioner on the post of lecturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the post already held by such person. The sanctioning of extraordinary leave was well within the powers of the Committee of Management and thus, the petitioner did not lose his lien on the post of lecturer in the college. The decision of this Court in the case of Chandra Bhal Misra (supra) relied by the learned counsel for the respondent No. 5 would not be applicable to the facts of the present case inasmuch as in the case of Chandra Bhal Misra the petitioner had gone on substantive post of lecturer in another institution and after lapse of two years his re-transfer was permitted. In the present case, the petitioner had not left the institution after selection in another institution on substantive post. The nature of appointment in Balrampur Degree College, Gonda, in respect of the petitioner, is not on record. The extraordinary leave had been sanctioned by the college and, thus, there was no question of any break in service. 27. In view of foregoing discussions, the irresistible conclusion is that the petitioner was appointed on the post of lecturer (Biology) on 31.7.1970 and there has been no break in his service and on other hand, the respondent No. 5 had been promoted o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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