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Case Number

Civil Misc. Writ Petition No. 12388 of 1989

Judges

K.C Agarwal
A.C.J
U.C Srivastava
R.A Sharma, JJ.

Acts

Section 16-E(10) of the Intermediate Education Act.
clause (b) of Rule 3
Cl. (1) of Rule 4

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Smart Summary

Structured Summary of the Opinion (R.A. Sharma, J.)

Factual and Procedural Background

Three teachers of Vidyawati Darbari Intermediate College, Lukarganj, Allahabad were promoted to the post of lecturer on 8.7.1973: Smt. S.K. Chaudhary (appointed in 1964 as C.T. grade teacher; passed L.T. in 1970), Dr. Asha Saxena (appointed as L.T. grade teacher on 22.7.1969), and Km. Radha Raizada (appointed as L.T. grade teacher in 1971). All three have been working as lecturers since that promotion date.

A seniority list was circulated in 1986-87 under Regulation 3 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act. Dr. Asha Saxena objected to the seniority list before the Committee of Management; the Committee rejected her representation on 11.7.1988. On appeal, the Regional Inspectress of Girls Schools (R.I.G.S) by order dated 5.11.1988 held that the promotions of all three were illegal for want of eligibility and referred the matter to the Director of Education for cancellation of promotions under Section 16-E(10) of the Intermediate Education Act. That referral was pending at the time of this opinion.

When the regular principal was to retire on 30.6.1989, the R.I.G.S by order dated 28.6.1989 directed the management to appoint Smt. S.K. Chaudhary as acting principal; she took charge after 30.6.1989. Dr. Asha Saxena challenged that appointment by Writ Petition No. 12164 of 1989 and obtained an interim stay on 5.7.1989. The management then directed S.K. Chaudhary to hand over charge to Dr. Asha Saxena on 6.7.1989. S.K. Chaudhary filed Writ Petition No. 12388 of 1989 challenging the management order. A Division Bench referred the matter to a Full Bench for decision.

Legal Issues Presented

Whether Regulation 3 of Chapter II (and in particular clause (bb) added later) could be applied to determine seniority for promotions made on 8.7.1973 when Regulation 3 was introduced only on 7.7.1976.
Whether the promotions of the three teachers to the post of lecturer on 8.7.1973 were valid when none of them had completed the requisite five years' substantive service in L.T. grade at that time, and if not, whether and when those promotions became regularised.
If promotions become regularised at different dates, how should gradewise seniority among the concerned teachers be determined under Regulation 3 (clause (b) and clause (bb))?
Whether an earlier common seniority list prepared under Regulation 2 of Chapter I (for the year 1975–1976) can bind or preclude revision of gradewise seniority under Regulation 3.

Arguments of the Parties

Dr. Asha Saxena (petitioner in Writ Petition No. 12164 of 1989) — summarized contentions

Her seniority should be determined under clause (bb) of Regulation 3 because she was appointed in L.T. grade earlier than the other two teachers; clause (bb) fixes inter se seniority where teachers are promoted on the same date by reference to length of service in the grade from which they were promoted.
Relied on a decision reported at 1983 U.P.L.B.E.C. p. 297 which is said to be in her favour (the court noted the decision but also expressed doubts on retrospectivity).
Sought and obtained interim relief against the appointment of S.K. Chaudhary as acting principal (interim stay dated 5.7.1989).

Smt. S.K. Chaudhary (petitioner in Writ Petition No. 12388 of 1989) — summarized contentions

Argued that the seniority list for the year 1975–1976 was prepared and finalized (final on 29.4.1976) and therefore could not be disturbed; relied on the finality of that list for seniority positions.
Contended that she was appointed as L.T. grade teacher in 1964 and had been given two-thirds salary of L.T. grade—an assertion intended to support an earlier substantive standing in L.T grade (the court rejected this submission).

Other parties or authorities

The Committee of Management had issued orders (including a decision dated 11.7.1988 declaring S.K. Chaudhary senior to Dr. Asha Saxena) which were challenged and later quashed by the court.
The Regional Inspectress of Girls Schools issued orders dated 5.11.1988 (referring the matter to the Director) and 28.6.1989 (appointing S.K. Chaudhary as acting principal), both of which were challenged and later quashed by the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Sarup v. State of Haryana (Supreme Court)	Where an appointee lacked a requisite qualification (experience) at the time of appointment, the appointment is irregular (but not void) and becomes regular from the date when the requisite qualification is acquired (in that case, completion of five years' relevant experience).	The court applied this principle to hold that the promotions made on 8.7.1973 (when none of the three had five years' L.T. service) were irregular but became regularised when each teacher completed the requisite five years: Dr. Asha Saxena in 1974 and S.K. Chaudhary in 1975. Those dates were treated as their substantive appointment dates in lecturer grade for seniority purposes.
Mahendra Pal Singh (referenced by the Division Bench)	Referenced in the context of retrospective application of a newly introduced rule/regulation (the Division Bench noted this case had applied a rule retrospectively).	The Full Bench observed that applying a rule retrospectively raises doubt; it stated that Mahendra Pal Singh's application of a rule to promotions made before the rule's coming into force "needs reconsideration." The court did not adopt a blanket retrospective application.
1983, U.P.L.B.E.C., p. 297 (reported decision)	The Division Bench relied on this decision as being in favour of the petitioner (Dr. Asha Saxena) regarding seniority determination.	The Full Bench noted the decision but expressed doubt about whether a regulation or rule can be applied retrospectively; it therefore did not accept the automatic retrospective application relied upon (and indicated reconsideration was required).

Court's Reasoning and Analysis

The court proceeded in a step-by-step legal analysis strictly on the basis of the text of the Regulations and the facts as recorded:

Temporal application of Regulation 3:
The court emphasized chronology: Regulation 3 of Chapter II (providing for gradewise seniority) was introduced on 7.7.1976; clause (bb) was added later by notification dated 9.12.1976. Since the promotions at issue occurred on 8.7.1973, Regulation 3 did not exist at that time and therefore could not have been used to determine seniority on that date.
Eligibility at time of promotion:
The requisite condition for promotion to lecturer was minimum five years' substantive service in L.T. grade. On 8.7.1973 none of the three teachers satisfied that condition: S.K. Chaudhary had passed L.T. only in 1970 (so could not have completed five years by 1973), Dr. Asha Saxena and Km. Radha Raizada similarly lacked five years' L.T. service. Thus the promotions were irregular.
Effect of irregular promotion and regularisation principle:
Relying on the Supreme Court decision in Ram Sarup, the court held that an irregular appointment for want of required experience is not void but becomes regularised on completion of the requisite period. Applying that principle, the court deemed Dr. Asha Saxena's promotion to have become valid in 1974 (when she completed five years' L.T. service) and S.K. Chaudhary's promotion to have become valid in 1975 (when she completed five years' L.T. service).
Determination of gradewise seniority under Regulation 3:
Once the promotions are deemed to have become regularised on the respective dates, Regulation 3 (clause (b)) governs gradewise seniority: seniority in a grade is determined on the basis of substantive appointment in that grade; if two or more teachers are appointed on the same date then age decides, and clause (bb) applies where teachers of the lower grade were promoted on the same date. Given that Dr. Asha Saxena's deemed substantive appointment date in lecturer grade (1974) is prior to S.K. Chaudhary's deemed substantive appointment date (1975), Dr. Asha Saxena is to be treated as senior to S.K. Chaudhary under Regulation 3.
Effect of earlier common seniority list under Regulation 2:
The court rejected the argument that the common seniority list prepared under Regulation 2 for 1975–1976 (prepared on the basis of substantive service in the institution irrespective of grade and for limited purposes such as selecting ex‑officio Committee members) could determine gradewise seniority under Regulation 3. That common list was not gradewise and was prepared before Regulation 3 came into force; it therefore cannot be the basis for determining seniority under Regulation 3.
Rejection of S.K. Chaudhary's specific factual claim:
The court rejected S.K. Chaudhary's contention that she had been appointed to L.T. grade in 1964 and paid 2/3rd of L.T. salary, noting that she could not have been appointed to L.T. in 1964 because she passed the L.T. examination only in 1970; the two-thirds L.T salary, the court observed, corresponds to the C.T. grade.
Relief and orders to be quashed:
On the above application of law to facts, the court concluded that the Committee of Management's order dated 11.7.1988 (declaring S.K. Chaudhary senior) and the R.I.G.S. orders dated 5.11.1988 and 28.6.1989 were liable to be set aside.

Holding and Implications

Holding:

The court allowed Writ Petition No. 12164 of 1989 (Dr. Asha Saxena v. Smt. S.K. Chaudhary) and quashed the Committee of Management order dated 11.7.1988 and the Regional Inspectress of Girls Schools' orders dated 5.11.1988 and 28.6.1989. The Writ Petition No. 12388 of 1989 (Smt. S.K. Chaudhary v. Manager, Committee of Management) was dismissed.

Implications / Consequences:

Direct consequence for parties: Dr. Asha Saxena is to be regarded as senior to Smt. S.K. Chaudhary in lecturer grade because her deemed substantive appointment date (1974) precedes that of S.K. Chaudhary (1975), following regularisation of promotions upon completion of the requisite five years' L.T. service.
The management order declaring S.K. Chaudhary senior and the two R.I.G.S. orders (one referring the matter to the Director and another appointing S.K. Chaudhary as acting principal) are set aside.
No order as to costs was made: the court expressly recorded that in view of the facts and circumstances there would be no order as to costs.
On precedent and broader law: the court applied the existing Supreme Court authority (Ram Sarup) to resolve the eligibility/regularisation question. The Full Bench expressed hesitation about applying Regulation 3 retrospectively and indicated that previous applications (for example in Mahendra Pal Singh) that applied rules retrospectively "need reconsideration." The court did not purport to lay down a novel general rule beyond this application to the facts before it.

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Smt. Shanti Kumar Chaudhary v. The Manager, Committee Of Management, Vidyawati Darbari Girls Inter College, Allahabad And Others

R.A Sharma, J.:— Smt. S.K Chaudhary, the petitioner in Writ Petition No. 12388 of 1989 was appointed as a C.T grade teacher in 1964 in Vidyawati Darbari Intermediate College, Lukarganj, Allahabad (hereinafter referred to as college), and continued to work in that capacity in the College till her promotion to the post of lecturer on 8.7.1973 However, in the meantime she also passed L.T in the year 1970. Dr. Asha Saxena, petitioner in connected writ petition No. 12164 of 1989 was appointed in the college on 22.7.1969 as L.T grade teacher and continued on that post till her promotion as lecturer on 8.7.1973 Km. Radha Raizada, who was appointed as L.T grade teacher in the college in the year 1971 was also promoted to the post of lecturer on 8.7.1973 In this manner all the three were promoted to the post of lecturer in the college on the same date i.e 8.7.1973 and have been working since then as lecturer.

2. It appears that the seniority list in accordance with Regulation 3 of Chapter II of the Regulations framed under U.P Intermediate Education Act (hereinafter referred to as Regulation), was circulated in the year 1986-1987. Dr. Asha Saxena filed objection against it before Committee of Management. Her representation was rejected on 11.7.1988 by management. Against this decision of management Dr. Asha Saxena filed appeal before Regional Inspectress of Girls Schools IV Region, Allahabad (hereinafter referred to as G.I.G.S) R.I.G.S vide order dated 5.11.1988 held that promotions of all the three as lecturer were illegal as none of them was eligible for being promoted at that time and accordingly without deciding the appeal, referred the matter to the Director of Education for cancelling promotions of the three ladies under Section 16-E(10) of the Intermediate Education Act. Matter is still pending before Director and no decision has been taken by him so far. In the meantime regular principal of the college was to retire from 30.6.1989 and R.I.G.S vide its order dated 28.6.1989 directed the management of the college to appoint Smt. S.K Chaudhary as acting principal. She accordingly took over charge as acting principal after 30.6.1989 This decision was challenged by Dr. Asha Saxena by means of writ petition No. 12164 of 1989 and this court granted interim stay order in her favour on 5.7.1989 In view of the interim order granted by this court the management of the college passed order on 6.7.1989 directing Smt. S.K Chaudhary to hand over charge of the office of acting principal to Dr. Asha Saxena. Against this order of management Smt. S.R Chaudhary filed writ petition No. 12388 of 1989 before this court. When this writ petition of Smt. S.K Chaudhary was presented before this court a Division Bench referred the whole case to Full Bench for decision. The relevant extract of the order of reference is quoted below:—

“Dispute about seniority has been raised in these petitions. Dr. Asha Saxena, Km. Radha Raizada and Smt. Shanti Kunwar Chaudhary are the three, who admittedly were promoted in lecturer's grade in 1974. On that date the seniority could be determined under clause (b) of Rule 3 of Chapter III on age. In 1976 Clause (bb) was added and it provided that in promotions seniority shall be decided on seniority in the grade from which the person is promoted. It was urged on behalf of Dr. Saxena that she having been appointed in L.T grade earlier than the other two, her seniority should be determined under this clause. Reliance has also been placed on last sub-clause of this paragraph which provides that seniority will have to be revised every year. Reliance has also been placed on 1983, U.P.L.B.E.C page 297. The decision is in favour of the petitioner but we have out doubts whether a rule or regulation can be applied retrospectively. In absence of any provision in the Regulation or in the Rule itself, it has normally to be taken as prospectively. Since in Mahendra Pal Singh's case it was applied to the promotions which have been made before coming into force of clause (bb), we are of the opinion that it needs reconsiderations.

3. Before 7.7.1976 there was no provision in the Regulation providing for gradewise fixation of the seniority of the teachers. Regulation 2 of Chapter I laid down for preparation of common seniority list of all the teachers in substantive service of the institution for purposes of selection, by rotation, of two senior most teachers as ex-officio members of the Committee of Management. This common seniority list is prepared on the basis of substantive service in the institution irrespective of grade or the post. A new Chapter II of the Regulation was substituted which was published in U.P Gazette, Extra Ordinary dated 7.7.1976 in which Regulation 3 for the first time provided for preparation of gradewise seniority list of the teachers by Committee of Management in accordance with principle laid down therein. Clause (bb) was subsequently added to Reg. 3 by notification dated 9.12.1976 Regulation 3 is quoted below:

“3. (1) The Committee of Management of every institution shall cause a seniority list of the 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 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;

(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 from the decision of the Committee of Management under sub-clause (e) may prefer an appeal to the Inspector within fifteen days from the date of communication of such decision to such teacher and the decision of the Inspector in appeal shall be final and shall be given effect to by the Committee of Management.

(2) The seniority list shall be revised every year and the provisions of clause (1) shall mutatis mutandis apply to such revision.”

4. Regulation 3 as introduced on 7.7.1976 provided for fixation of seniority on the basis of substantive appointment in a grade and teacher in higher grade was declared to be senior to teacher in lower grade, irrespective of length of service. Regulation 3 further provide for representation to the Committee of Management against fixation of seniority and thereafter an appeal before District Inspector of Schools.

5. It appears that it was not brought to the notice of Division Bench that Regulation 3 of Chapter II was enacted for the first time on 7.7.1976 and the promotion to the post of lecturer of the three ladies was made in 1973 and as such on that date seniority could not have been determined on the basis of Regulation 3 as it was not in existence at that time.

6. For promotion to the post of lecturer in intermediate college minimum five-years substantive service in L.T Grade is one of the conditions of eligibility. On 8.7.1973 when promotions to the post of lecturer were made none of the three ladies were eligible. Smt. S.K Chaudhary was directjy promoted from the post of C.T grade to the post of lecturer without having 5 years L.T grade experience. Dr. Asha Saxena and Km. Radha Raizada had also not completed five years' L.T grade service upto 8.7.1973 On the date of promotion on 8.7.1973 all the three ladies were not eligible and their appointments were irregular. However, as these three ladies are working as lecturer for the last about 16 years, the question of their reversion does not arise. Their promotions should be deemed to have become regularised on the expiry of period of five years calculated from the date when they were appointed or could have been appointed as L.T grade teacher. Supreme Court in Ram Sarup v. State of Haryana,1 considered the question about the effect of the appointment if the appointee does not possess the requisite qualification. In Ram Sarup's case, for appointment to the post of Labour-Cum-Conciliation Officer, experience of five years as Labour Inspector or Deputy Chief Inspector of Shops of Wage Inspector was one of the conditions of eligibility. However, appointment of a person as Labour-Cum-Conciliation Officer was made although he did not possess requisite five years' experience. The Supreme Court held that appointment when made was irregular and not void on account of not possessing one of the three requiste qualifications of eligibility and appointment shall be deemed to have become regular on expiry of period of tive years. Relevant passage from the judgment of Supreme Court is extracted below:

“We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years, experience of the working of labour laws in any one of the three capacities, mentioned in Cl. (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised”……….

“The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years”, and “must be deemed to have become regular and he must be deemed to have been appointed to that post only on the expiry of a period of five years calculated from the date when he was appointed Chief Inspector of Shops”.

7. Smt. S.K Chaudhary who passed L.T examination 1970 will complete five years in 1975 whereas Dr. Asha Saxena will complete five years L.T grade experience in 1974. In view of law laid down by Supreme Court in Ram Sarup's case Dr. Asha Saxena shall be deemed to have been validly promoted to the post of lecturer in 1974 whereas Smt. S.I Chaudhary shall be deemed to have been validly promoted to the post of lecturer in 1975.

8. In common seniority list prepared under Regulation 2 of Chapter I of the Regulations Smt. S.K Chaudhary may have been shown as senior to Dr. Asha Saxena as common seniority list is prepared on the basis of substantive service in the institution irrespective of the grade, for limitd purpose of selection of two senior most teachers as ex-officio member of the Committee of Management. After introduction of Regulation 3 in Chapter II with effect fiom 7.7.1976 a seniority list is required to be prepared gradewise on the basis of the substantive appointment in that grade. Date of substantive appointment in lecturer grade of Dr. Asha Saxena, according to law laid down by Supreme Court would be 1974, whereas Smt. S.K Chaudhary shall be deemed to have been promoted in lecturer grade in 1975. In accordance with clause (b) of Regulation 3 of Chapter II Dr. Asha Saxena shall be deemed to be senior to Smt. S.K Chaudhary as the date of substantive appointment of Dr. Asha Saxena would be prior to the substantive appointment of Smt. S.K Chaudhary.

9. Learned counsel for Smt. S.K Chaudhary has argued that seniority list for the year 1975-1976 was prepared against which Dr. Asha Saxena filed objection which was rejected and seniority list has become final on 29.4.1976 As such it is not open to Dr. Asha Saxena or to respondent to disturb final seniority list. We are afraid we cannot agree with the submission of learned counsel. Seniority list of the year 1975-1976 was prepared in accordance with Regulation 2 of Chapter I of the Regulations on the basis of substantive service in the institution for limited purposes of selection of two senior most teachers as ex officio members of the Committee of Management. As Smt. S.K Chaudhary has joined college in 1964 as C.T grade teacher she must have been shown senior to Dr. Asha Saxena who was appointed in L.T grade in 1969. It was not gradewise seniority and this seniority list was prepared before enforcement of Regulation 3 of Chapter II in 1976. This seniority list cannot be basis for determining seniority under Regulation 3.

10. It was further contended by learned counsel for Smt. S.K Chaudhary that Smt. S.K Chaudhary was appointed as L.T grade teacher in 1964 and was given 2/3rd salary of L.T grade. This submission cannot be accepted, because in 1964 Smt. S.K Chaudhary could not have been appointed in L.T grade as she passed L.T examination in 1970. That apart 2/3rd salary of L.T grade is C.T grade and her appointment in 1964 was in C.T grade. The impugned orders passed by Committee of Management dated 11.7.1988 declaring Smt S.K Chaudhary as senior to Dr. Asha Saxena and dated 28.6.1989 passed by Regional Inspectress of Girls Schools appointing Smt. S.K Chaudhary as acting principal as well as the other order of Regional Inspectress of Girls Schools dated 5.11.1988 are liable to be set-aside.

11. We accordingly allow writ petition No. 12164 of 1989, Dr. Asha Saxena v. Smt. S.K Chaudhary and quash the order of Committee of Management dated 11.7.1988 and orders dated 5.11.1988 and 28.6.1989 passed by Regional Inspectress of Girls Schools. The Writ Petition No. 12388 of 1989 Smt. S.K Chaudhary v. Manager Committee of Management is dismissed. In view of facts and circumstances of the case there will no order as to costs.

Smt. Shanti Kumar Ch... v. The Manager, Committ...