Heard Sri Syed Wajid Ali, learned Counsel for the petitioners and Learned
Standing Counsel for respondent nos. 1, 3, 4 and 5 and Sri Chandra Nayayan
Tripathi for respondent no. 2.
The petitioners were selected as Assistant Teacher (Urdu) in the year 1995.
However, the said selection was ordered to be cancelled vide order dated
11.10.1995. The order of cancellation of the selection was challenged by the
petitioners in Writ Petition No. 30762 of 1996 (Fatma Praveen and others Vs.
State of U.P. & others). The said writ petition was decided by this Court vide
judgment and order dated 25.05.2000 and impugned order cancelling the
selection was quashed with a further direction to respondents to issue
appointment letters to petitioners. The aforesaid judgment and order of the
High Court was affirmed in Special Appeal as well as in S. L. P. before the
Supreme Court. The review application filed against the said order was also
rejected vide order dated 24.03.2003. Thereafter petitioners were given
appointments w. e. f. 31.07.2004.
The petitioners made representation before the U.P. Basik Shiksha Parishad,
Allahabad on 11.06.2008 claiming seniority and all consequential benefits
w. e. f. 1995 i. e. the date on which they were declared to be selected. When
the aforesaid representation was not decided, they filed another Writ Petition
No. 33749 of 2008 ( Masroor Ahmad & others Vs. State of U.P. & others).
The said writ petition was disposed of this Court vide order dated 16.07.2008
with the direction to the Secretary of the U.P. Basic Shiksha Parishad,
Allahabad to decide the representation of petitioners by a reasoned and a
speaking order within a time bound period. In pursuance of the above order
the representation of the petitioners has been rejected by order dated
18.08.2009 which is impugned in this writ petition.
The submission of learned Counsel for the petitioners is that as the petitioners
were selected in the year 1995 but were not allowed to join on account of
litigation for which they cannot be blamed and as such their seniority ought
to be counted from the date of their selection and not from the date of joining.
The submission is wholly devoid of merit and has no substance. Admittedly,
the petitioners have joined service on 31.07.2004. The general rule is that an
employee cannot be given seniority from the date prior to his birth i. e. joining
service. Therefore, petitioners cannot be given any seniority from any date
earlier to the date of their joining. The date of selection of the petitioners is
not at all relevant for the purposes of giving seniority to the petitioners.
Even Rule 22 of U.P. Basic Education (Teachers) Service Rules, 1981 also
provides that seniority has to be determined from the date of substantiative
appointment. In view of the aforesaid Rule there cannot be two opinions that
the petitioners are entitled for seniority from the date of their appointment
which in the present case happens to be 31.07.2004.
Learned Counsel for the petitioners next urged that though by the impugned
order the representation of the petitioners for claiming seniority w.e.f. date of
selection has been rejected but in the body of the order it has been mentioned
that untrained teachers shall be entitled to seniority on completion of their
training. This aspect of the matter does not require any adjudication in view of
the clear language of Rule-22 of the aforesaid rules and the fact that there is
no specific direction in this regard in the final order which has been impugned
in the writ petition. Any observations in this regard in the order impugned is
of no consequence and is not be treated as binding upon the petitioners.
The writ petition has no merit and as such is dismissed summarily with the
observation above.
Order Date :- 21.1.2010
RS.