1. Brief facts giving rise to present writ petition is that in the district of Moradabad, there is a recognized institution known as Lal Bahadur Shastri Smarak Inter College, Sultanpurdost, Thakurdwara, Disrict Moradabad. The said institution is covered by the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder. The institution in question is in the grant-in-aid list of the State Government and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 as well as U.P. Act No. 5 of 1982 are applicable to the said institution. In the institution concerned, Om Prakash Verma was appointed as Assistant Teacher in the institution concerned on 1.7.1968, and at that point of time, his qualification was Intermediate and B.T.C., and subsequently he acquired Post-Graduate qualification. One Ram Swaroop Singh was appointed as Assistant Teacher in the said institution on 1.9.1976, and his educational qualification was M.A., B. Ed. Ram Swaroop Singh claims that his services were approved by District Basic Education Officer on 11.3.1977, whereas service of Om Prakash Verma was approved on 1.7.1979. Institution in question has been upgraded from Junior High School to High School level, and it has been claimed that services of Ram Swaroop Singh were regularized on 31.5.1982 and service of Om Prakash Verma dispensed with, and subsequently, same was regularized on 7.11.1983. In the institution in question, post of Principal fell vacant, then at that point of time. District Inspector of Schools, Moradabad, passed order dated 6.6.2003 to the effect that he had perused seniority of Om Prakash Verma and Ram Swaroop Singh; name of Om Prakash Verma was at Serial No. 1 and that of Ram Swaroop singh at Serial No. 2; on perusal of academic qualification of these two incumbents, it was found that Om Prakash Verma was mere B.T.C. whereas Ram Swaroop Singh was B. Ed. Degree holder, and as such he fulfilled requisite qualification to be appointed as Principal of Intermediate College, as such it was ordered that Ram Swaroop Singh be handed over charge of the office of Principal. After said decision was taken, Om Prakash Verma filed Writ Petition No. 26639 of 2003 for quashing of the order dated 6.6.2003, mentioning therein that he was fully qualified to be appointed as Principal of the institution, and further the order, which has been passed, is totally unwarranted and illegal, and as such he is entitled to function as Principal of the institution. During pendency of aforementioned writ petition, it appears that son of Om Prakash Verma represented the matter before the authorities concerned and thereafter, order dated 18.10.2004 has been passed mentioning that charge of Principal of the institution has to be handed over to senior most Teacher, and further it was not appropriate to hand over the charge to a junior person and further, Om Prakash Verma is qualified to function as Principal. At this juncture, Writ Petition No. 49340 of 2004 has been filed.

2. To this writ petition, initially, short counter-affidavit was filed, and therein it has been contended that pursuant to order date 6.6.2003, Ram Swaroop Singh, who is junior to Om Prakash Verma, has been illegally given charge of Principal. It has been contended that Om Prakash Verma was fully qualified to be appointed as Principal, Further, as no interim order was passed, representation had been moved to the Director of Education as well as Regional Joint Director of Education. Director of Education on 28.8.2004 directed the Regional Joint Director of Education to act in accordance with law and to pass appropriate order taking into account the seniority of Om Prakash Verma. It has also been asserted that prior to passing of the order dated 18.10.2004 notices were issued on 15.6.2004, and the said notices were duly served. After hearing the parties, Joint Director of Education passed order on 18.10.2004, directing the District Inspector of Schools to act in accordance with law and give charge to Om Prakash Verma. In this background, it has been asserted that as seniority was never disputed, order impugned does not warrant any interference by this Court. Detailed counter-affidavit has also been filed, and therein much emphasis has been laid on the fact that Om Pakash Verma was duly qualified, and the order dated 6.6.2003 was wholly illegal. Further, it has been asserted that the date of substantive appointment of Sri Om Prakash Verma in B.T.C. grade is 1.7.1968, and further Ram Swaroop Singh was appointed as Assistant Teacher in B.T.C. grade on 1.9.1976, and he was made permanent on 1.7.1978. Extract of service book in respect to date of initial appointment of both Ram Swaroop Singh and Om Prakash Verma as well as date when C.T. Grade and L.T. Grade had been awarded to them is on record of writ petition. It has also been contended that 1978 Rules came into force in the year 1978 and subsequent approval in no way changes the date of substantive appointment. Date of substantive appointment of Om Prakash Verma is 1.7.1968 and that of Ram swaroop Singh is 1.9.1976. It has also been contended that Ram Swaroop Singh admitted that Om Prakash Verma is senior to him, and in this background, it has been contended that writ petition filed by Ram Swaroop Singh is liable to be dismissed.

3. After pleadings inter se parties have been exchanged, present writ petition has been taken up for final hearing with the concent of parties.

4. Smt. Kamla Singh, learned Counsel, appearing for Ram Swaroop Singh contended with vehemence that services of Om Prakash Verma had been dispensed with, and he was re-employed, and as such by no means he could have been treated senior to Ram Swaroop Singh, and further approval of Ram Swaroop Singh is prior in time qua Om Prakash Verma, as such in all eventuality, Ram Swaroop Singh has to be treated senior to Om Prakash Verma, Further, it has been submitted by her that entire proceedings are exparte and once validity of order dated 6.6.2003 was pending adjudication before this Court, then it was wholly unwarranted exercise on the part of respondents to have undertaken aforementioned process and proceeded to pass adverse order. Sri Irshad Ali, learned Counsel appearing on behalf of Om Prakash Verma, contended that order dated 6.6.2003 clearly mentions that Om Prakash Verma is senior qua Ram Swaroop Singh, and the said observation, at no point of time, has been challenged, and further as Om Prakash Verma had been divested from the charge of Principal on unsustainable grounds, and as such ground which has been found unsustainable, and there being no dispute in respect of which aforementioned order has been passed became exception of the seniority list, and said status not being disputed, Om Prakash Verma by all means is entitled to function as Principal.

5. In Civil Misc. Writ Petition No. 26639 of 2003 order dated 6.6.2003 is subject matter of challenge. While passing the aforementioned order it has been mentioned that Om Prakash Verma is senior, but as he has to this credit only B.T.C. certificate, as such he is not qualified to be appointed as Principal of the institution, In order to appreciate whether the ground, which has been made foundation and basis in the order impugned, is valid or invalid, Appendix A of Chapter II of U.P. Intermediate Education Act, 1921 is to be seen, which is quoted below :

"APPENDIX A (In reference to Regulation 1 of Chapter 2) Minimum qualification for appointment of Head Master and Teachers to Private Recognized Higher Secondary Schools.

1. Degree and diploma in the concerned subject of any University established or regulated by or under any Central Act, Provincial Act or State Act which is considered to be a University under Section 3 of the University Grant Commission Act, 1956 or of any such institution especially empowered by any Act of Parliament shall be recognized for the purpose of minimum qualification prescribed under it.

2. Under it in reference to prescribed qualifications the word "trained" means post graduate training qualification such as L.T., B.T., B. Ed., S.C. or M.Ed of any University or institution as specified in earlier para or any equivalent (Degree or Diploma). It also includes departmental A.T.C. and C.T. with minimum teaching experience of five years. J.T.C./B.T.C. grade Teacher shall also be considered to be C.T. if he has worked in C.T. Grade at least for five years.

Note.--(1) Assistant Teachers having at least second class post graduate degree arid specialized teaching experience of ten years in Intermediate classes of a recognized institution may be exempted from training qualifications (as per the provisions contained in the Act).

(2) Teaching experience includes teaching prior or after teaching or both.

(3). Higher classes means classes from 9 to 12 and experience of teaching these classes is admissible for the post of Head Master of Intermediate College."

6. A perusal of Appendix A afore-quoted would go to show that for being appointed Head Master of the institution requisite eligibility criteria is Trained M.A or M.Sc. or M.Com or M.Sc. (Agri.) or any equivalent post gradate or any other degree with four years teaching experience. Under Regulation 2 of Chapter II the word "trained" has been defined to be post-graduate training qualification such as LT., B.T., B. Ed., S.C. or M. Ed. of any University or institution as specified in earlier para or any equivalent Degree or Diploma. It has been provided that same includes departmental A.T.C and C.T. with minimum teaching experience of five years. Further, J.T.C./B.T.C. grade Teachers are also to be considered C.T. if he has worked in C.T. Grade at least for five years.

7. Now, here undisputed position is that Om Prakash Verma had been appointed as J.T.C. grade Teacher in the year 1968, and thereafter C.T. grade was provided to him on 1.7.1979 and L.T. Grade on 26.7.1987. Thus, as per the provisions Contained in Chapter II, Regulation 2, as Om Prakash Verma has to his credit J.T.C. and has worked in C.T. grade for five years, then he was to be treated as C.T. Certificate holder and further after he was treated as C.T. Certificate holder then with further experience of five years, he was to be treated at par with L.T./ B. Ed./ Sc./M. Ed. Degree/Certificate holder. Thus, Om Prakash Verma was qualified to be appointed as Principal in terms of the provisions as contained in Chapter II, Regulation 2 of Appendix A of U.P. Intermediate Education Act, 1921, and the order dated 6.6.2003 disqualifying Om Prakash Verma was totally unwarranted and illegal order, as such said order is liable to be quashed and set aside.

8. In Writ Petition No. 49340 of 2004, the charge of the office of Principal has been asked to be handed over to Om Prakash Verma on the ground that he is senior qua Ram Swaroop Singh and is qualified. Seniority has to be determined in terms of Chapter II, Regulation 3 of the U.P. Intermediate Education Act, 1921, which is quoted below :

"3.(1) The Committee of Management of every institution shall cause a seniority list of Teachers to be prepared in accordance with the following provisions :--

(a) The seniority list shall be prepared separately for each grade of Teachers whether permanent or temporary, on any substantive post;

(b) Seniority of Teachers is 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;

(bb) Where two or more Teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted;

Provided that if such length of service is equal, seniority shall be determined on the basis of age.

(c) A Teacher in a higher grade shall be deemed to be senior to a Teacher in the lower grade irrespective of the length of service;

(d) If a Teacher who is placed under suspension is reinstated on his original post, his original seniority in the grade shall not be affected;

(e) Every dispute about the seniority of the Teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision;

(f) Any Teacher aggrieved by the decision of the Committee of Management under Sub-clause (e) within fifteen days from the date of notice of such decision can appeal to the Regional Deputy Director of Education, and on such appeal, the Regional Deputy Director of Education shall give his decision with reasons after hearing the parties concerned, and his decision would be final and implemented, by the Committee of Management;

(g) If two or more Teachers working in a grade are promoted to the next higher grade on the same date, their seniority infer se shall be determined on the basis of the length of their service of the grade from which they are promoted, but if such length of service is equal, seniority shall be determined on the basis of age.

(2) The seniority list shall be revised every year and the provisions of Clause (1) shall mutatis mutandis apply to such revision,"

9. A bare perusal of these provisions would go to show that the seniority list has to be prepared separately for each grade of Teachers whether permanent or temporary, on any substantive post; and seniority of Teachers in a grade has to be determined on the basis of their substantive appointment in that grade, and if two or more Teachers are appointed on the same date, seniority has to be determined on the basis of age; when two or more Teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se has be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment. Guiding factors have also been provided that if such length of service is equal, seniority shall be determined on the basis of age. Said Regulation provides that every dispute about the seniority of the Teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision. Chapter II, Regulation 3 (2) provides that seniority list shall be revised every year and the provisions of Clause (1) shall mutatis mutandis apply to such revision.

10. This fact at the point of time when writ petition has been taken up, has not been disputed by either of the parties that no seniority list, whatsoever, has been prepared in terms of Chapter II, Regulation 3(1) of U.P. Intermediate Education Act, 1921, but much emphasis has been laid by Sri Irshad Ali, learned Counsel representing Om Prakash Verma, that at each point of time, name of his client was shown over and above the name of Ram Swaroop Singh, and further at no point of time Ram Swaroop Singh had over objected to the aforementioned seniority position and in fact he had acquiesced to the aforementioned seniority, and even as per service book, date of substantive appointment is apparent, as such in all eventuality Om Prakash Verma is liable to be treated as senior. Smt, Kamla Singh countered said submission, by submitting that after institution in question was upgraded from Junior High School to High School, then there was break in service of Om Prakash Verma, as his appointment was earlier disapproved, and date of approval of Ram Swaroop Singh was prior to the date of approval of Om Prakash Verma, as such in all eventuality, her client Ram Swaroop Singh has to be treated senior. Sri Irshad Ali submitted that collateral challenge in not permissible in respect to the appointment, which has already attained finality, and further while dealing with the matter of seniority, it has been pointed out that alleged termination is of no consequence, as the said order has been set aside, and the benefits have already been accorded with retrospective effect.

11. As far as this Court is concerned, certainly, it is not its task to go into the question of seniority, as authority to determine seniority at the first instance is with the Managing Committee of the institution, and thereafter appeal lies against the same before the Joint Director of Education.

12. Here, in the present case, as this is an undisputed position that till date no seniority list has been circulated, as such cause of justice would be more served in case authorities are called upon to decide the seniority in terms of Chapter II, Regulation 3 of the Regulations framed under U.P. Intermediate Education Act, 1921. As the order dated 18.10.2004 does not indicate that any adjudication has been done on this front, and further the impugned order does not indicate that any opportunity of hearing had been afforded to petitioner. Petitioner has brought on record, copy of notice dated 15.6.2004 (Annexure-6), by means of which both Ram Swaroop Singh and Om Prakash Verma were called upon, Petitioner has made categorical statement that said notice was never served. Impugned order reflects that proceedings have been finalised pursuant to letter of Director of Education dated 28.8.2004. Impugned order, nowhere records, that in spite of service, of notice, Ram Swaroop Singh, he has not turned up. Thus undisputed position is that order dated 18.10.2004 is exparte, and as such the same is also quashed and set aside. Prabandh Sanchalak of the institution in question is directed to circulate seniority list of Teachers in terms of Regulation 3 of chapter II of the Regulations framed under U.P. Intermediate Education Act, 1921, within two weeks from the date of production of certified copy of this judgment. After the seniority list is circulated, both Ram Swaroop Singh as well as Om Prakash Verma as well as other Teachers will be at liberty to file their objections, if any, and thereafter, Prabandh Sanchalak shall proceed to decide seniority dispute by means of reasoned and speaking order, and whatever, decision is taken, the same be communicated to both the parties i.e. Ram Swaroop Singh as well as Om Prakash Verma and other Teachers, who have filed objections, and till seniority dispute is decided afresh by Prabandh Sanchalak, status quo as it exists in respect to office of the Principal, shall be maintained, and the status quo shall abide the order, which will be passed by the Prabandh Sanchalak.

13. In view of what has been discussed above, both the writ petitions are allowed and disposed of.