Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ Petition No. 18934 of 1981

Judges

S.P Srivastava, J.

Acts

Section 18(1)(b) of the Secondary Education Service Commission and Selection Board Act, 1982 read with Regulation 2(1)
Education Act and Clause 4 of U.P Secondary Education Service Commission (Removal of Difficulties)
U.P Secondary Education Services Commission and Selection Boards Act, 1981
Section 16(E)(10) of the U.P Intermediate Education Act
Section 16-E(10) of the Intermediate Education Act.
SECTION 11 CIVIL PROCEDURE CODE
Rule 2 Proviso (b) of Chapter 5 of the Rules
Section 18 of the U.P Act No. 5 of 1982.(D)
Section 16-E(10)
Section 18(i)(b)

See more information ...

Smart Summary

Structured Summary of the Opinion (S.P. Srivastava, J.)

Factual and Procedural Background

The petitioner (Kumari Radha Raizada) sought a writ directing the committee of management of Vidyawati Darbari Girls Intermediate College, Allahabad and the Manager to appoint her as ad-hoc officiating Principal and restrain respondents (including the Regional Inspectress of Girls Schools IV Region and Dr. Asha Saxena) from interfering with her duties. She also prayed for payment of principal's salary from 1.7.1991 and quashing of management orders dated 13.6.1991 and 6.7.1991 relating to contemplated disciplinary enquiry.

The central factual matrix: a vacancy in the post of Principal occurred on 1.7.1991 upon retirement of Smt. S.K. Chaudhary (retired 30.6.1991). The petitioner claimed she was the next senior-most Lecturer and entitled to ad-hoc promotion under Section 18(1)(b) of the Secondary Education Service Commission and Selection Board Act, 1982 read with Regulation 2(1) of Chapter 2 of the Regulations under the U.P. Intermediate Education Act and Clause 4 of the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981. The management had installed Dr. Asha Saxena in the office of Principal, which the petitioner challenged as illegal.

The court examined prior litigation between the parties: two writ petitions (Civil Misc. Writ Petition No. 12164 of 1989 and No. 12388 of 1989) decided by a Full Bench on 19.12.1990 concerning inter se seniority and the legality of certain administrative orders. A later Full Bench reference (framed on 31.3.1992 and answered 12.7.1994) set out criteria for ad-hoc appointments and confirmed the continuing operation of the Removal of Difficulties Order.

Legal Issues Presented

Whether the petitioner was entitled to be appointed as ad-hoc officiating Principal of the college (vacancy dated 1.7.1991) under Section 18(1)(b) of the Act and para 4 of the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981.
Whether the Full Bench decision dated 19.12.1990 (in the earlier writ petitions between the same parties) operated as res judicata or constructive res judicata to bar the present contention about seniority under the Removal of Difficulties Order.
Which criterion governs inter se seniority for ad-hoc appointments to Principal: the grade-wise seniority under Regulation 3 of Chapter II of the U.P. Intermediate Education Act regulations, or the "longest continuous service in the Lecturer's grade" as explained in para 4 of the Removal of Difficulties Order?
Whether, on the admitted facts (including irregular service periods), Dr. Asha Saxena or the petitioner is senior for the limited purpose of appointment under para 4 of the Removal of Difficulties Order and consequently entitled to ad-hoc appointment unless properly superseded.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted she was the next senior-most Lecturer and therefore entitled to be appointed as ad-hoc officiating Principal under Section 18(1)(b) read with Regulation 2(1) and Clause 4 of the Removal of Difficulties Order (para 4).
She relied on the Full Bench decision dated 19.12.1990 (in Civil Misc. Writ Petitions No. 12388/89 and 12164/89) which, she argued, had attained finality and determined inter se seniority in her favour (Kumari Radha Raizada senior to Dr. Asha Saxena), and therefore operated as res judicata against the management's appointment of Dr. Asha Saxena.
The petitioner contended the management's action in handing over charge to Dr. Asha Saxena was illegal, arbitrary, collusive and mala fide, and sought consequential reliefs including salary and quashing of disciplinary-related orders.
Reliance was also placed on a Single Judge decision (Smt. Shanti Kunwar Chaudhary v. Vidyawati Darbari Girls Inter College, decided 23.4.1991) said to support implementation of the Full Bench's 19.12.1990 decision.

Respondents' Arguments

The contesting respondents (including Dr. Asha Saxena and the committee of management) denied the petitioner's entitlement and justified appointing Dr. Asha Saxena as acting/ad-hoc Principal.
They argued the Full Bench decision of 19.12.1990 did not operate as res judicata in respect of the particular question now raised — namely, seniority determined under para 4 of the Removal of Difficulties Order — because that question was not directly and substantially in issue in the earlier Full Bench proceedings (which concerned seniority under Regulation 3 and the legality of the Regional Inspectress's referral under Section 16-E(10)).
The respondents relied on the later Full Bench decision (12.7.1994), and on other authority (including Prem Balika Rai v. Regional Inspectress of Girls Schools), to contend that when irregular service is excluded and the five-years continuous substantive service requirement is applied, Dr. Asha Saxena is senior to Kumari Radha Raizada for purposes of para 4 and thus has preference for ad-hoc appointment unless properly superseded.
They urged that the Committee of Management was bound to act according to the law as declared by the Full Bench decision of 12.7.1994 (i.e., apply the Removal of Difficulties Order criteria and seniority based on continuous service).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Full Bench — Smt. S.K. Chaudhary v. Manager, Committee of Management, Vidyawati Darbari Girls Intermediate College; Dr. Asha Saxena v. Smt. S.K. Chaudhary (common judgment dated 19.12.1990)	Determination of seniority under Regulation 3 of Chapter II; quashing of Regional Inspectress's referral under Section 16-E(10) where challenged after long delay.	The Court noted that this Full Bench confined itself to seniority under Regulation 3 and quashed the Regional Inspectress's referral under Section 16-E(10) as a belated exercise; the present Court held that the 19.12.1990 decision did not determine the para 4 Removal of Difficulties seniority issue relevant to the 1.7.1991 vacancy.
Full Bench decision (reference answered) dated 12.7.1994	Criteria and procedure for ad-hoc appointment under Section 18 and the Removal of Difficulties Order; management must first fill substantive vacancy by promotion on ad-hoc basis from senior-most teachers; Removal of Difficulties Order operative.	The Court applied the 12.7.1994 Full Bench holding that para 4 of the Removal of Difficulties Order is mandatory and seniority (longest continuous service in Lecturer grade) plays a dominant role in ad-hoc appointments to Principal.
Tribhuwan Misra v. District Inspector of Schools	Guidelines for superseding a senior-most teacher when appointing head/Principal.	The Court accepted these guidelines as correct: supersession of a senior-most teacher requires proof of unfitness, typically persistent defaults over 5–10 years.
Prem Balika Rai v. Regional Inspectress of Girls Schools, Varanasi (Division Bench)	Interpretation that the pre-requisite of five years continuous substantive service is required for promotion and that irregular service is to be ignored for determining seniority under para 4.	The Court treated Prem Balika Rai as directly applicable: where irregular service periods are excluded, seniority for para 4 must be computed by continuous substantive service, which affected the ranking between Dr. Asha Saxena and the petitioner.
Shitla (Sheetla) Prasad Shukla v. State of U.P. (Apex Court)	Principle that a late comer to the regular stream cannot claim priority over one who joined the regular stream earlier.	The Court applied this principle to hold that Kumari Radha Raizada (a late comer) cannot be allowed to take precedence over Dr. Asha Saxena who joined the regular stream earlier, once irregular periods are excluded.
Amalgamated Coalfields Ltd. v. Janapada Sabha Chhindwara, A.I.R. 1964 S.C. 1013	Observation that constructive res judicata (Section 11 CPC) should not generally be applied to writ petitions under Articles 32/226.	The Court cited the observation but noted subsequent clarifications; treated the Amalgamated observation as a general rule to be read with later cases.
Devi Lal Modi v. Sales Tax Officer, Ratlam	Clarification that the general observation in Amalgamated must be read in light of whether the subsequent petition relates to the same period or different period.	The Court cited this case to explain limits to the Amalgamated observation and to support nuanced application of constructive res judicata in writ proceedings.
State of U.P. v. Nawab Hussain	Discussion of constructive res judicata and quotation of Greenhalgh v. Mallard; constructive res judicata prevents re-litigation of matters that could and should have been raised earlier.	The Court relied on Nawab Hussain to explain the doctrine of constructive res judicata and the policy reasons for its application to prevent repeated writs on the same cause of action.
Greenhalgh v. Mallard	Principle that res judicata covers issues so clearly part of the subject-matter that it would be an abuse to allow new proceedings on them.	Quoted (via Nawab Hussain) to frame the limits of constructive res judicata; applied to analyze whether the para 4 seniority issue was previously and substantially in issue.
Forwarding Construction Co. v. Municipal Corporation of Greater Bombay, 1986 1 SCC 100	Adjudication is final as to matters that parties might and ought to have litigated; Explanation 4 to Section 11 CPC — matters constructively in issue are treated as decided.	Cited for the proposition that a decision can be conclusive as to matters that ought to have been raised; used in analysing scope of res judicata in the present disputes.
Mysore State Electricity Board v. Bangalore Woollen Cotton & Silk Mills Ltd. (Constitution Bench)	To determine res judicata effect, court must look at issues raised and what was actually decided; res judicata applies to the "matter" actually decided.	The Court relied on this to confirm the test for res judicata — whether the earlier decision actually decided the matter now sought to be raised.
Lonankutty v. Thoman	Interpretation of Section 11 CPC — matter must have been directly and substantially in issue in earlier suit to operate as res judicata.	Used to emphasize that mere tangential or incidental presence of an issue in past litigation is insufficient to invoke res judicata.
Narbadeshwar Upadhyay v. Bhagwan Mani Tripathi	Clarified that for res judicata the matter must have been substantially in issue in earlier litigation between same parties.	The Court cited it to support the requirement that the earlier decision must have been on the same substantial issue to be a bar.
Vithal Yeshwant Jathar v. Shikandar Khan Mukhtumkhan Sardesai	Referenced in the context of res judicata principles (as cited in Narbadeshwar Upadhyay).	Cited among authorities illustrating the settled tests for res judicata and constructive res judicata.
Gondappa Gurupadappa Gurwad v. Rachawwa, 1970 3 SCC 716	Authority on res judicata principles (cited in Narbadeshwar Upadhyay).	Referred to among decisions explaining the doctrine and its limits.
Kishori Lal v. Debi Prasad, A.I.R. 1950 Patna 50	Earlier precedent referred to in the context of principles for res judicata (as discussed in Narbadeshwar Upadhyay).	Quoted in the chain of authorities clarifying when an issue is directly and substantially in issue.
Laxman Shiv Shanker v. Saraswati, A.I.R. 1961 Bom. 218	Authority on res judicata principles cited by this Court.	Relied upon to reinforce tests for res judicata and constructive res judicata.
Smt. Shanti Kunwar Chaudhary v. Vidyawati Darbari Girls Inter College, Allahabad (Single Judge, decided 23.4.1991)	Application of the Full Bench decision dated 19.12.1990 — held that appointment based on interim order could not have independent existence and directed implementation of Full Bench decision.	The Court noted this Single Judge decision had directed implementation of the 19.12.1990 Full Bench decision in that context; cited by petitioner but not treated as determining the para 4 issue in the present matter.

Court's Reasoning and Analysis

The court's analysis proceeds in a structured manner:

Vacancy timing and entitlement: The court reiterated the settled principle that entitlement to promotion is assessed with reference to the time of occurrence of the vacancy (here 1.7.1991). Therefore, eligibility for ad-hoc promotion must be determined with reference to that date.
Two different seniority criteria distinguished: The court observed that the seniority criterion under para 4 of the Removal of Difficulties Order (the "senior most teacher" meaning the teacher with the longest continuous service in the Lecturer's grade) is different from the grade-wise seniority prescribed in Regulation 3 of Chapter II (which depends on date of substantive appointment in the grade, with age tie-breakers and other specific rules).
Scope of earlier Full Bench (19.12.1990): The court examined the earlier Full Bench decision and determined it was confined to issues of seniority as prepared under Regulation 3 of Chapter II and to quashing the Regional Inspectress's referral under Section 16-E(10) as belated. The court held that the earlier Full Bench did not decide the question of inter se seniority under para 4 of the Removal of Difficulties Order and therefore did not resolve the question now before the court for the vacancy dated 1.7.1991.
Res judicata analysis: The court conducted a detailed analysis of res judicata and constructive res judicata, surveying Supreme Court and High Court authorities. It emphasized that res judicata applies only where the matter was directly and substantially in issue earlier, and that constructive res judicata should be applied with caution in writ proceedings. The court concluded that the earlier Full Bench decision did not directly and substantially decide the para 4 seniority question relevant to the present petition; therefore the plea of res judicata did not bar fresh consideration.
Application of continuous service rule and exclusion of irregular service: Applying the principles in Prem Balika Rai and the Apex Court's decision in Shitla Prasad Shukla, the court held that irregular periods of service must be excluded when computing seniority under para 4 and that a person who joined the regular stream earlier cannot be displaced by a late comer. On the admitted facts, Dr. Asha Saxena completed her five years' continuous teaching experience earlier (22.7.1974) than Kumari Radha Raizada (26.7.1976).
Conclusion on entitlement: Consequently, for the limited purpose of seniority under para 4 of the Removal of Difficulties Order (and thus eligibility for ad-hoc appointment to the Principal post for the vacancy dated 1.7.1991), Dr. Asha Saxena must be treated as senior to the petitioner and therefore has the preferential right to be appointed on ad-hoc basis unless she is lawfully superseded following the procedure and guidelines (including those in Tribhuwan Misra and the Full Bench's guidance).
Protective direction for petitioner: The court clarified that any order issued by the Committee of Management without complying with the procedural safeguards laid down in the Full Bench decision dated 12.7.1994 shall not be used to the petitioner's prejudice. Nevertheless, because Dr. Asha Saxena is to be treated as senior for the relevant purpose, the petitioner's challenge failed on merits.

Holding and Implications

Holding: The writ petition is dismissed.

Implications and direct effects:

The court held that for the purpose of filling the vacancy on 1.7.1991 under para 4 of the Removal of Difficulties Order, 1981, Dr. Asha Saxena is to be treated as senior to Kumari Radha Raizada because irregular service periods are to be excluded and Dr. Asha Saxena joined the regular stream earlier.
Consequently, Dr. Asha Saxena has a preferential right to be appointed as ad-hoc Principal against the vacancy dated 1.7.1991 unless she is superseded in accordance with law and the procedure laid down by the Full Bench (including the guidelines for supersession).
The court directed that any committee order passed without following the procedure mandated by the Full Bench decision dated 12.7.1994 shall not be used to the prejudice of the petitioner.
The petition was dismissed subject to the above protective observation; there was no order as to costs.
No broader new precedent or novel rule beyond the application of existing Full Bench and Supreme Court authorities was announced; the decision resolves the parties' dispute on the facts and law as discussed.

Disposition: Petition dismissed.

Show full summary ...

Km. Radha Raizada v. Committee Of Management, Vidyawati Darbari Girls Inter College, Lukerganj, Allahabad And Others

S.P Srivastava, J.:— The petitioner seeks a direction requiring the committee of management, Vidyawati Darbari Girls Intermediate College, Allahabad and its Manager arrayed as respondents No. 1 and 4 to appoint her as ad-hoc officiating Principal of the aforesaid college and to restrain all the respondents which include the Regional Inspectress of Girls Schools IV Region, Allahabad and Dr. Asha Saxena, a Lecturer in the same college from interfering with the discharging of the duties by her as Principal of the institution.

2. The petitioner has also prayed for another direction requiring the respondents No. 1, 2 and 4 to pay the salary to her in the time scale of pay admissible to a Principal with effect from 1.7.1991 Apart from the aforesaid reliefs, the petitioner has also sought for the quashing of the orders dated 13th June, 1991 and 6.7.1991 issued by the Management of the College in connection with the contemplated disciplinary enquiry against her.

3. The real issue in the writ petition relates to the filling up of the vacancy in the post of the Principal of Intermediate college in question by promotion on ad-hoc basis in accordance with the provisions contained in U.P Secondary Education Service Commission and Selection Board, 1982 and the Rules framed thereunder.

4. The vacancy in question had occurred on 1.7.1991

5. The claims for any promotion are to be decided upon with reference to the time of occurrence of vacancy and not the time for making the appointment. It is therefore, obvious that the entitlement/eligibility of the person to be considered for promotion has to be determined with reference to this definite date of occurrence of vacancy.

6. It appears that Smt. S.K Chaudhary, the Acting Principal of the institution had retired on 30.6.1991 The petitioner asserts that she being the next senior most Lecturer is entitled to officiate and be promoted and handed over the charge of the post of the Principal of the college as ad-hoc officiating Principal under Section 18(1)(b) of the Secondary Education Service Commission and Selection Board Act, 1982 read with Regulation 2(1) of Chapter 2 of the Regulations framed under the U.P Intermediate Education Act and Clause 4 of U.P Secondary Education Service Commission (Removal of Difficulties) Order, 1981. It is alleged that on the date of the occurrence of vacancy the petitioner found that the management had installed Dr. Asha Saxena, the respondent No. 3 in the office of the Principal of the college for which there could be absolutely no justification. It is claimed that in view of the Full Bench decision of this Court dated 19.12.1990 which had attained finality between the parties, the committee of management was bound to implement and enforce the said judgment and its action to hand over charge of the office of the Principal to Dr. Asha Saxena, respondent No. 3 was manifestly illegal. It is further claimed that Dr. Asha Saxena lost her right finally as against the petitioner for being promoted as officiating/ad-hoc Principal of the institution and the impugned action of the management of the institution was not only illegal, arbitrary and without jurisdiction but also stood vitiated being collusive and malafide. The petitioner asserts that after the retirement of Smt. S.K Chaudhary, she being the senior most Lecturer of the institution is alone entitled to be promoted/appointed to the post of Principal as contemplated under Section 18(i)(b) of the Act.

7. The writ petition is being contested by Dr. Asha Sexena, respondent No. 3 as well as the committee of management and the Manager, respondent Nos. 1 and 4 denying the claim of the petitioner and justifying the impugned action appointing Smt. Asha Saxena as the ad-hoc Principal of the college.

8. Since the petitioner had heavily relied upon the decision of the Full Bench in Civil Misc. Writ Petition No. 12388 of 1989 Smt. S.K Chaudhary v. Manager, Committee of Management, Vidyawati Darbari Girls Intermediate College, Allahabad, as well as in Civil Misc. Writ Petition No. 12164 of 1989, Dr. Asha Saxena v. Smt. S.K Chaudhary both of which had been disposed of by a Full Bench of this Court vide a common judgment and order dated 19.12.1990 and it was urged that the said decision operated as res-judicata, the records of the aforesaid cases were called for at the time of hearing the present writ petition in order to appreciate the submission of the Counsel for the petitioner in this regard.

9. The relevant facts, shorn of details and necessary for the disposal of this writ petition as evident from the record of the present writ petition and the two writ petitions referred to hereinbefore, lie in a narrow compass. Vidyawati Darbari Girls Intermediate College, Allahabad which was previously a High School was raised to the standard of an Intermediate College on 8th July, 1973. On the same date Smt. S.K Chaudhary, Kumari Radha Raizada and Dr. Asha Saxena who were teachers in the next below L.T grade were promoted as Lecturers. The petitioner Kumari Radha Raizada had been appointed as a Teacher in L.T grade on 26.7.1971 whereas Dr. Asha Saxena the respondent No. 2 had been appointed as a Teacher in the L.T Grade on 22.7.1969 In the seniority list maintained under Chapter 2 of the Regulations framed under the U.P Intermediate Education Act, Smt. S.K Chaudhary was placed at serial No. 1. The petitioner Kumari Radha Raizada was placed at serial No. 2 and Dr. Asha Saxena, respondent No. 3 was placed at serial No. 3. Dr. Asha Saxena, felt aggrieved by the fixation of seniority and challenged the same vide her application dated 26.12.1985 which was rejected by the Management on 11.1.1988 Whereafter an appeal was filed by her before the Regional Inspectress of Girls Schools, who vide the order dated 5.11.1988 held that the promotion of Smt. S.K Chaudhary in the Lecturer Grade directly from C.T grade was irregular and it was also held that Dr. Asha Saxena and Kumari Radha Raizada did not have the requisite five years substantive service on the date of promotion and consequently their promotion were also irregular. The Regional Inspectress of Girls Schools under the aforesaid order referred the matter under Section 16(E)(10) of the U.P Intermediate Education Act for the cancellation of the aforesaid appointments indicating that in the circumstances, taking of any decision in the appeal was not found to be appropriate. Thereafter on 28.6.1989, the Regional Inspectress of Girls Schools issued a direction vide her letter dated 28.6.1989 requiring the management to hand over the charge of the office of the Principal to Smt. S.K Chaudhary who had been held by the Management to be senior to Kumari Radha Raizada and Dr. Asha Saxena.

10. It appears that pursuant to the aforesaid direction, the management appointed Smt. S.K Chaudhary as officiating Principal of the college. In the aforesaid circumstances, Civil Misc. Writ Petition No. 12164 of 1989 was filed by Dr. Asha Saxena wherein Smt. Shanti Kunwar Chaudhary, Kumari Radha Raizada and Regional Inspectress of Girls Schools and the committee of management were impleaded as respondents No. 1 to 4 In the aforesaid writ petition, the petitioner prayed for a direction requiring the respondents to appoint her as the officiating Principal of the college and further to continue to pay her the salary of officiating Principal with all consequential benefits. The petitioner also sought for the quashing of the order appointing respondent No. 1, Smt. S.K Chaudhary as officiating Principal of the institution as also the direction contained in the letter of Regional Inspectress of Girls Schools dated 28.6.1989 From the assertions made in the writ petition No. 12164 of 1989 it is clear that the petitioner in that case had challenged the correctness of the inierse seniority of the three promotees referred to hereinbefore as determined and reflected in the seniority list prepared under Chapter 2 of the Regulations framed under the U.P Intermediate Education Act. The petitioner further contested the eligibility of Smt. S.K Chaudhary for being considered for appointment on the post of Principal claiming that she could not be held to be senior to the petitioner in any case and her appointment as a Lecturer was liable to be ignored and she could never have been treated as Lecturer having never been appointed in the L.T grade which was the next below grade. This writ petition was filed on 5.7.1989 and on the stay application accompanying the writ petition this Court directed that until further orders, the committee of management, the respondent No. 4 shall make an appointment of an acting Principal of the institution concerned on merits and in accordance with the law and in disregard of the direction dated 26.6.1989 issued by the Regional Inspectress of Girls Schools IV Region, Allahabad.

11. It appears that taking into consideration the implications arising under the interim order passed by this Court referred to above, the management issued an order dated 6.7.1989 appointing Dr. Asha Saxena as acting Principal of the College requiring Smt. S.K Chaudhary to hand over charge of the office of the Principal to her.

12. In the aforesaid circumstances, Smt. S.K Chaudhary filed writ petition No. 12388 of 1989 impleading the Manager, Committee of Management Vidyawati Darbari Girls Inter College, Allahabad, the Committee of Management of the aforesaid college, Dr. Asha Saxena and Regional Inspectress of Girls Schools, Allahabad as respondents therein seeking the quashing of the order dated 6.7.1989, passed by the committee of management and further seeking a direction requiring the respondents not to interfere in her functioning as the ad-hoc Principal of the college till some teacher selected by the Commission took over the charge.

13. Smt. S.K Chaudhary in her aforesaid writ petition claimed that the seniority list prepared in accordance with the provisions contained in Chapter 2 of the Regulations framed under the U.P Intermediate Education Act showing Smt. S.K Chaudhary at serial No. 1, Kumari Radha Raizada at serial No. 2 and Dr. Asha Saxena at serial No. 3 was correct and the objection filed against the said determination of the seniority by Dr. Asha Saxena in the year 1985 had been rightly rejected by the committee of management on 11.7.1988 It was further claimed that the committee of management had already implemented the order of the Regional Inspectress of Girls Schools dated 26.6.1989 vide its order dated 30.6.1989 and she had taken over charge of the office of the Principal in the evening of 30.6.1989 itself. It was further claimed that the petitioner having been once appointed on the post of Principal could not be removed from that office except according to the procedure prescribed under the law.

14. The writ petitions filed by Dr. Asha Saxena and Smt. S.K Chaudhary referred to hereinbefore were heard together and were disposed of by a common judgment and order rendered by a Full Bench of this Court on 19.12.1990 The Full Bench in its decision referred to above clearly observed that the seniority list contained in Annexure CA-2 was the seniority list which had been prepared in accordance with the clause 3 of Chapter 2 which gave grade, wise seniority. It was further observed that “We are thus of the opinion that seniority lists were prepared under Chapter I which is borne out from the provisions of Chapter 1 and also from the document which have now been filed by Kumari Radha Raizada.” It was further observed “we are thus of the opinion that the provisions of Clause 3(1)(bb) of Chapter 2 are not retrospective in operation and the seniority which had been prepared under Chapter 1 and which had been repeated under Chapter 2 in so far as the three Lecturers are concerned was not liable to be changed in view of the provisions of clause 3(1)(bb) and under Chapter 2.”

15. The Full Bench concluded that on the objections of Dr. Asha Saxena filed against the seniority determined by the Managing Committee on 29.4.1976 which had been filed after a lapse of nearly 15 years, the said seniority was not liable to be interfered with and observed “the seniority list has been existing since the year 1975-1976 and we are not prepared to quash the seniority list after a lapse of nearly 15 years.” In the aforesaid decision the Full Bench also held that “in any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period………………..The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16-E(10) on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time.” The Full Bench further expressed the view that “In our opinion the order of the Regional Inspectress of Girls Schools referring the matter to the Director of Education under Section 16-E(10) is thus, liable to be quashed.”

16. In view of the aforesaid conclusions, the Full Bench vide its decision dated 19.12.1990 dismissed the writ petition filed by Dr. Asha Saxena and allowed the writ petition of Smt. S.K Chaudhary to the extent indicated in the body of the judgment. The stay order granted in the case of Dr. Asha Saxena to which a reference has been made above was vacated.

17. During the pendency of the present writ petition on 31.3.1992, a reference under Rule 2 Proviso (b) of Chapter 5 of the Rules of the Court was made framing certain questions which required to be answered by a Full Bench.

18. The Full Bench vide its order dated 12.7.1994 reframed the questions and answered the reference. Reframed questions Nos. C and D were to the following effect:

“(C) What would be the criteria and procedure for ad-hoc appointment of a teacher or Principal either under the Removal of Difficulties Order or under” Section 18 of the U.P Act No. 5 of 1982.”

“(D) Whether any approval or prior approval of the District Inspector of Schools or Regional Inspectress of Girls Schools as the case may be is necessary for making the ad-hoc appointment of a teacher or Principal either under the Removal of Difficulties Order or under Section 18 of the Act.”

19. The Full Bench in its aforesaid decision, while considering the power and procedure of ad-hoc appointment of a teacher and Principal either by promotion or by direct recruitment during the period beginning from 31st July, 1981 till 13th July, 1992 held that in case the precondition contemplated Under Section 18 of the Act is found to be present, the management is first required to fill up the substantive vacancy by promotion on ad-hoc basis from amongst senior most teachers of the institution. It was further observed that paragraph 4 of the First Removal of Difficulties Order provided that every vacancy in the post of teacher in Lecturer's grade shall be filled up by senior most teacher of the institution in the next below grade. It was also observed that it was mandatory on the part of management to first fill up the vacancy by promotion on the basis of seniority alone.

20. So far as the filling up of the substantive vacancy in the office of the Principal was concerned the Full Bench observed that the seniority played a dominant role in the matter of ad-hoc appointment to the post of Principal/Head Master in the institution and ordinarily a senior most teacher in the Lecturer grade is to be appointed by promotion to the post of Principal on the criteria of seniority subject to the rejection of unfit. It was clarified that the guidelines laid down in the case of Tribhuwan Misra v. District Inspector of Schools,1 for supreseding a senior most teacher were correct guidelines. It was added that a senior most teacher could be found unfit only when persistent defaults were reflected in his character roll in a span of five to ten years.

21. In its aforesaid decision the Full Bench clearly held that the Removal of Difficulties Order issued under the U.P Secondary Education Services Commission and Selection Boards Act, 1981 are still continuing to be in force and were operative as there was a difficulty which is still continuing.

22. The provisions contained in para 4 of the U.P Secondary Education Services Commission (Removal of Difficulties) Order, 1981 is to the following effect:—

“4. Ad-hoc appointment by promotion—

(1) Every vacancy in the post of the Head of an Institution may be filled by promotion:

(a) in the case of an Intermediate College by the senior most teacher of the institution in Lecturer's grade;

(b) in the case of a High School raised to the level of an Intermediate College, by the Head Master of such High School;

(c) in the case of a Junior High School raised to the level of a High School, by the Head Master of such Junior High School;

(2) Every vacancy in the post of a teacher in lecturer's grade may be filled by promotion by the senior most teacher of the institution in the trained graduate (L.T) grade.

(3) Every vacancy in the post of a teacher in the trained graduate (L.T) grade shall be filled by promotion by the senior most teacher of the institution in the trained under graduate (C.T) grade.

(4) Every vacancy in the post of a teacher in the trained under graduate (C.T) grade shall be filled by promotion by the senior most teacher of the institution in the J.T.C grade or B.T.C grade.

Explanation—For the purpose of clauses (1) to (4) of this paragraph, the expression “senior most teacher” means the teacher having longest continuous service in the Lecturer's grade or the trained graduate (L.T) grade, or trained under graduate (C.T) grade or J.T.C or B.T.C grade as the case may be.”

23. From the explanation added to para 4 of the Removal of Difficulties Order referred to above, which according to the decision of the Full Bench referred to hereinbefore is continuing to be operative throughout and still continues to be in force, the expression ‘senior most teacher’ contemplated therein means the teacher having longest continuous service in the lecturer's grade so far as the filling up of a vacancy in the post of the Head of the Institution is concerned.

24. It may be noticed that the aforesaid criterion for determining the seniority of teachers in the lecturer's grade is quite different from the criterion prescribed for determining such seniority which stands prescribed under regulation 3 of Chapter II of the Regulations framed under the U.P Intermediate Education Act which is to the following effect:—

“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 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 day, 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 justification;

(f) any teacher aggrieved from the decision of the Committee of Management under sub-clause (e) may prefer an appeal to the Inspector within 15 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 Committee of Management.

(g) ………………….

(2) ………………….”

25. The difference in the criterion for determining seniority of teachers in the lecturer's grade in the aforesaid provisions is quite obvious. While the criterion for determining the seniority for the purposes of para 4 of the U.P Secondary Education Service Commission (Removal of Difficulties) Order, 1981 is the longest continuous service in the lecturer's grade, the criterion for seniority for the purpose of regulation 3 of Chapter II of regulations framed under the U.P Intermediate Education Act for such persons is the date of substantive appointment on any substantive post in that grade and if two or more teachers were so appointed on the same date, the seniority has to be determined on the basis of age and subsequent to 10.9.76 where two or more teachers working in a grade are promoted to the next higher grade on the same date their seniority inter se had to 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 has to be determined on the basis of age.

26. I have heard Dr. Rama Shanker Dwivedi, Learned Senior Advocate as well as Sri Shyam Narain Advocate for the petitioners and Sri R.N Singh, learned counsel for the respondents and have carefully perused the recording.

27. Learned counsel for the petitioner has strenuously contended that in view of the decision of the Full Bench in Civil Misc. Writ Petition No. 12164 of 1989 dated 19.12.90, the question relating to the inter se seniority between the petitioner and Dr. Asha Saxena, the present respondent No. 3 stood finally determined holding Kumari Radha Raizada to be senior to Dr. Asha Saxena and in view of this decision the Committee of Management, respondent No. 1 was bound to appoint the petitioner on the post of Principal of the Institution on ad-hoc basis treating her to be senior to Dr. Asha Saxena and could not supersede her without complying with the procedure and the guidelines laid down by the latter Full Bench in its decision dated 12.7.94, which the Committee of Management has failed to follow. It was further urged that the decision of the Full Bench in Civil Misc. Writ Petitions No. 12388 of 1989 and 12164 of 1989 decided on 19.12.90 operate as res-judicata in the matter. The learned counsel also placed reliance on the decision of a learned Single Judge in Civil Misc. Writ Petition No. 8349 of 1991. Smt. Shanti Kunwar Chaudhary v. Vidyawati Darbari Girls Inter College, Allahabad in which Dr. Asha Saxena had been impleaded as respondent No. 2, decided on 23.4.91 whereunder, it is asserted that the Full Bench decision dated 19.12.90 was directed to be implemented by ousting Dr. Asha Saxena from the office of the Principal of the College and holding that her appointment as acting Principal was based on an interim order passed by this Court on 5.7.89 which could not have any independent existence and consequently in view of the decision of the Full Bench on 19.12.90 the promotion of Smt. S.K Chaudhary as acting Principal with effect from 1.7.79 stood and she was entitled to be restored to the office of the acting Principal.

28. The learned counsel for the contesting respondents has on the other hand asserted that the decision of the Full Bench in the Civil Misc. Writ Petitions No. 12388/89 and 12164/89 dated 19.12.90 could not operate as res-judicata. The contention is that in the aforesaid case the issue relating to the determination of the seniority vis-a-vis the present petitioner and Dr. Asha Saxena for the purposes of the explanation to paragraph 4 of the U.P Secondary Education Services Commission (Removal of Difficulties) Order, 1981 could not be deemed to have been directly and substantially in issue. It is also contended that the real issue involved in the present case about the eligibility of the petitioner or respondent No. 3 for appointment on the post of Principal of the College on ad-hoc basis which has to be determined in accordance with the provisions contained in the U.P Secondary Education Services Commission (Removal of Difficulties) Order, 1981 was not in issue at all in the case culminating in the decision of the Full Bench dated 19.12.90 In any case, it is urged that, considering the controversy raised in that case and the subject matter of dispute and the decision thereon this plea relating to the determination of seniority vis-a-vis Kumari Radha Raizada and Dr. Asha Saxena in accordance with the provisions contained in the removal of difficulties order referred to hereinabove could neither, be raised nor was required to be raised and consequently even the principles of constructive res-judicata could not be deemed to have been attracted in the present proceedings and the determination thereof by this Court now.

29. Learned counsel in support of his submission, has heavily relied upon a decision of this Court rendered by a Division Bench in the case of Smt. Prem Balika Rai v. Regional Inspectress of Girls Schools, Varanasi, and has contended on the basis of this decision that on the facts admitted and established on record, if the period of irregular service in the lecturers grade to the credit of Kumari Radha Raizada and Dr. Asha Saxena is excluded from consideration, there could be no manner of doubt that on the criterion laid down in the relevant removal of difficulties order for determining the seniority there could be no escape from the conclusion that Dr. Asha Saxena was senior to Kumari Radha Raizada and consequently, she alone could be entitled to the appointment on ad-hoc basis on the post of the Principal of the College as against the vacancy which had come into existence on 1.7.91 unless superseded. It is urged that the decision of the Full Bench dated 19.12.90 cannot by any stretch of imagination come in the way of such course of action by the Committee of Management as it is bound to act in accordance with law as declared under the decision of the latter Full Bench of this Court dated 12.7.94 which has held that the promotions to the post as in question have to be made strictlies complying with the provisions of the removal of difficulty orders issued under the U.P Secondary Education Services Commission and Selection Boards Act, 1981 which continue to be operative.

30. I have given my thoughtful consideration to the rival contentions of the learned counsel.

31. Ordinarily the bar of res-judicata is applicable only when it is pleaded and established. The jurisdiction of the Court to try an issue is always there and the principle of res-judicata only bars investigation and decision on matters finally decided inter-parties earlier. If a party omits to plead and prove res-judicata and the court investigates and decides a matter already concluded between the parties without knowing such a decision it is not void for want of jurisdiction. Plea of res-judicata is one which might and ought to have been raised as a defence and established in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise, there can be no manner of doubt, that the latter decision will prevail and the plea of res-judicata itself will be barred by constructive res-judicata and the latter decision over-looking the bar of res-judicata alone will prevail. The plea is one which could be waived.

32. It may further be emphasised that a matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res-judicata (see Gangabai v. Chhabubai . 1982 1 SCR 117.)

33. The Apex Court in its decision in the case of Amalgamated Coalfields Limited v. Janapada Sabha Chhindwara . A.I.R 1964 S.C 1013. had made a general observation to the effect that “in our opinion constructive res-judicata which is a special and artificial form of res-judicata enacted by Section 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Article 32 or Article 226.”

34. However, in its decision in the case of Devi Lal Modi v. Sales Tax Officer, Ratlam, the Apex Court had clarified that “in our opinion, the said general observations must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition”.

35. The implications arising under the aforesaid decisions was considered in detail by the Apex Court in its decision in the case of State Of U.P v. Nawab Hussain . In this decision the Apex Court quoted with approval an observation made in the decision in the case of Greenhalgh v. Mallard to the effect that it will be accurate to say that res-judicata is not confined to the issues which the court is actually asked to decide but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. Taking into account the observation to the aforesaid effect made in the case of Greenhalgh (supra), the Apex Court proceeded to indicate that it was another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res-judicata by suitably construing the general principle of subduing a cantankerous litigant. It was indicated that it is why this other rule has some times been referred to as constructive res-judicata which in reality, is an aspect or amplification of the general principle. In para 5 of the said judgment the Apex Court observed that the general principles of res-judicata and constructive res-judicata have, however, been acted upon in cases of renewed applications for a writ. It was noticed in this decision that this rule postulates that if a plea could have been taken by a party in proceeding between him and his opponent he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically even this view is founded on the same considerations of public policy because if the doctrine of constructive res-judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy.

36. In yet another decision of the Apex Court in the case of Forwarding Construction Company v. Municipal Corporation of Greater Bombay . 1986 1 SCC 100, it was observed by the Apex Court that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. It was further observed that the principle underlying explanation 4 of Section 11 of the Civil Procedure Code is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It was emphasised that it is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.

37. In its decision of a Constitution Bench of the Apex Court in the case of Mysore State Electricity Board v. Bangalore Woollen Cotton and Silk Mills Limited, it was observed on page 1134 that “it is well settled that in order to decide whether a decision in an earlier litigation operates as res judicata, the Court must look at the nature of litigation, what were the issues raised therein and what was actually decided in it……. It is indeed true that what becomes res-judicata is the ‘matter’ which is actually decided and not the reason Which leads the court to decide the ‘matter’…….”

38. In yet another decision of the Apex Court in the case of Lonankutty v. Thoman it was observed that by Section 11 of the Civil Procedure Code in so far as relevant, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. It was emphasised by the Apex Court that it must be borne in mind that it is not enough to constitute a matter res-judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially. It was observed that ‘a matter cannot be said to have been “directly and substantially” in issue in a suit unless it was alleged by one party and denied or admitted either expressly or by necessary implication by the other.’

39. This Court in its decision in the case of Narbadeshwar Upadhyay v. Bhagwan Mani Tripathi, after noticing the implications arising under the decision of the Hon'ble Supreme Court in the case of Vithal Yeshwant Jathar v. Shikandar Khan Mukhtumkhan Sardesai, and the decision of the Hon'ble Supreme Court in the case of Gondappa Gurupadappa Gurwad v. Rachawwa . 1970 3 SCC 716 as well as the Full Bench decision in the case of Kishori Lal v. Debi Prasad . A.I.R 1950 Patna 50. and in the case of Laxman Shiv Shanker v. Saraswati . A.I.R 1961 Bom. 218. had clarified that in order that the decision on an issue may operate as res-judicata, it much have been substantially in issue in the previous litigation between the same parties. It was further observed that the matter cannot be said to be directly and substantially in issue unless the decision thereon by itself has the effect of sealing the fate of the suit either way. It was indicated that the requirement of law is that the matter must be directly and substantially in issue and the decision on the point should be sufficient by itself for the ultimate result of the suit.

40. It can also not be lost sight of that the plea of res-judicata being one of restraint of the right of the litigant to have his case fully tried and determined, the plea must be clearly established and the judgment which is pleaded as a bar strictly construed. Further it is the matter in issue directly and substantially either actually or constructively and not the subject matter that forms the test for applying the principle of res-judicata. The expression ‘directly’ has to be understood in contradistinction to the expression collaterally or incidentally. The expression ‘substantially’ lays empahsis on the necessity to decide the issue in order to grant relief to the petitioner. It also indicates that the issue was of importance and value for the decision of the case. A question not in issue at all and neither pleaded nor raised cannot be said to attract the principle of res-judicata.

41. It is in this background and in the light of the aforesaid well established principles that the present controversy has to be examined and the correctness of the contention relating to the applicability of the bar of res-judicata in the facts and circumstances of the present case has to be considered.

42. From the facts as they emerge from the relevant records referred to hereinbefore and noticed hereinabove, it is apparent that in Civil Misc. Writ Petition No. 12388 of 1989 in which Kumari Radha Raizada had not been impleaded as respondent and Dr. Asha Saxena had been impleaded as respondent No. 3, the subject matter in dispute was the legality and propriety of the order dated 6.7.89 passed by the Committee of Management of Vidyawati Darbari Inter College whereunder Smt. S.K Chaudhary, the petitioner in that case was ousted from the office of the Principal of that College wherein she had been installed on 30.6.89 pursuant to the order passed by the Regional Inspectress of Girls School on 28.6.1989 The vacancy which was sought to be filled up by appointing Smt. S.K Chaudhary had come into existence on 1.7.89 In that case Smt. S.K Chaudhary claimed to be senior on the basis of the determination of seniority in accordance with the criterion prescribed under Regulation 3 of Chapter II of the Regulations framed under U.P Intermediate Education Act. Smt. S.K Chaudhary, the petitioner in that case had based her claim solely on the gradewise seniority list prepared by the management in accordance with the aforesaid provision. The contest was between Smt. S.K Chaudhary and Dr. Asha Saxena. Dr. Asha Saxena had contested the claim of Smt. S.K Chaudhary challenging the decision of the Committee of Management whereunder while determining the seniority in accordance with the criterion envisaged under regulation 3 of Chapter II of the regulations framed under the Intermediate Education Act it had held Smt. S.K Chaudhary to be senior to Dr. Asha Saxena. Dr. Asha Saxena had asserted that her appeal against the decision of the Committee of Management had not been decided on merits.

43. It is, therefore, obvious that vis-a-vis Smt. S.K Chaudhary and Dr. Asha Saxena, the matter in issue in the aforesaid writ petition was only with regard to the legality and propriety and the correctness of the seniority list prepared by the Committee of Management in accordance with the regulation 3 of Chapter II of the regulations framed under the Act. The plea in regaid to the eligibility of Smt. S.K Chaudhary for being considered for promotion in accordance with para 4 of the removal of difficulties order, 1981 was neither urged nor raised and in fact could not have been raised as it was not available for being raised inasmuch as there is no dispute that Smt. S.K Chaudhary was senior to Dr. Asha Saxena even according to the criterion laid down in para 4 of the removal of difficulties Order, 1981.

44. In the other writ petition i.e Civil Misc. Writ Petition No. 12164 of 1989 filed by Dr. Asha Saxena, the subject matter was the legality and propriety of the order passed by the Regional Inspectress of Girls School dated 28.6.89 The Regional Inspectress of Girls School had, reiterating her decision dated 5.11.88 indicated that the promotion of all the three teachers viz. Smt. S.K Chaudhary, Kumari Radha Raizada and Dr. Asha Saxena was irregular and the matter had been referred to the Director for action under Section 16-E(10) of the Intermediate Education Act. It is under this order that the Regional Inspectress of Girls School had sought to implement the seniority as determined by the Committee of Management in accordance with the provisions contained in regulation 3 of Chapter II of the regulations framed under the U.P Intermediate Education Act.

45. The contest in Civil Misc. Writ Petition No. 12164 of 1989 was between Dr. Asha Saxena and Smt. Shanti Kunwar Chaudhary. However, since under the decision of the Committee of Management, Kumari Radha Raizada had been held to be senior to Dr. Asha Saxena and the decision of the Committee of Management in this regard had been challenged, the petitioner in that case had impleaded Kumari Radha Raizada also as respondent No. 2.

46. However, it is apparent that in the presence of Smt. Shanti Kunwar Chaudhary neither Kumari Radha Raizada nor Dr. Asha Saxena could claim any right, on the sheer dint of seniority even as contemplated under para 4 of the Removal of Difficulties Order, 1981, for being considered for promotion on the post of Principal on ad-hoc basis.

47. As has already been noticed above even the Full Bench in its decision dated 19.12.90 had confined the same to the questions relating to the determination of seniority by the Committee of Management in accordance with the provisions contained in regulation 3 of Chapter II of the regulations framed under the U.P Intermediate Education Act and the question relating to the legality and propriety of the order passed by the Regional Inspectress of Girls School wherein she had held the appointments of Smt. S.K Chaudhary, Kumari Radha Raizada and Dr. Asha Saxena to be irregular and had referred the matter for action under Section 16-E (10) of the Act. This Court had finally disposed of both the writ petitions by a common order and had refused to interfere by disturbing the seniority determined by the Committee of Management in accordance with regulation 3 of Chapter II of the regulations on the ground that no interference was called for after expiry of about 17 years specially when the seniority had been determined after notice to the parties concerned. This Court had further found ample justification for interfering in the order passed by the Regional Inspectress of Girls Schools whereunder proceedings had been initiated for the cancellation of the appointments holding them to be irregular and observing that no such action will be allowed to be taken after an expiry of more than 15 years. The order of the Regional Inspectress of Girls School passed in this connection was quashed. The Full Bench had upheld the claim of Smt. S.K Chaudhary to the extent indicated above. Consequently, the writ petition filed by Dr. Asha Saxena had been dismissed.

48. In the facts and circumstances indicated hereinbefore, there can be no manner of doubt that in the list which was the subject matter of the Civil Misc. Writ Petitions No. 12388 and 12164 of 1989 and was confined to the correctness of the seniority list prepared under regulation 3 of Chapter II of the regulations and the correctness of the order passed by the Regional Inspectress of Girls School referred to hereinbefore and the filling up of the vacancy in the post of Principal which had occurred on 1.7.89 there could be no occasion to raise a dispute in regard to the inter-se seniority between Kumari Radha Raizada and Dr. Asha Saxena seeking its determination in accordance with the provisions contained in para 4 of the U.P Secondary Education Services Commission (Removal of Difficulties) Order, 1981, for defeating the claim of Smt. S.K Chaudhary.

49. In the circumstances, therefore, the plea now sought to be raised by Dr. Asha Saxena to defeat the claim of Kumari Radha Raizada based on the provisions contained in para 4 of the Removal of Difficulties Order, 1981 could not be deemed to be directly and substantially in issue either actually or constructively in the earlier writ petitions. It was not necessary for this court to decide the issue now sought to be raised in order to grant relief to either Smt. Asha Saxena or to Smt. S.K Chaudhary in the earlier writ petitions. This issue was not of any importance or value for the decision in the aforesaid two writ petitions which were confined to the filling up of the vacancy on ad-hoc basis in the post of Principal which had occurred on 1.7.89 The vacancy in question which is sought to be filled up now by ad-hoc promotion is the vacancy which came into existence on 1.7.91 when Smt. S.K Chaudhary was no longer on the scene. The decision in the aforesaid two writ petitions decided in the year 1990 has absolutely no bearing on the issue relating to the filling up of the vacancy in the post of Principal in question which vacancy has occurred on 1.7.91 and which vacancy has to be filled up as held by the latter Full Bench, vide its decision dated 12.7.94 in accordance with the provisions contained in the Removal of Difficulties Order, 1981.

50. In the facts and circumstances, therefore, I find absolutely no merit in the contention raised by the learned counsel for the petitioner that the decision of the Full Bench in the case of Civil Misc. Writ Petitions No. 12388 of 1989 and 12164 of 1989 operates as res-judicata. I am clearly of the opinion that in the facts and circumstances of the case the plea sought to be urged by the learned counsel for the contesting respondent cannot be deemed to be barred by constructive res-judicata as stressed by the learned counsel for the petitioner.

51. This Court in its decision in the case of Prem Balika Rai v. Regional Inspectress of Girls School rendered by a Division Bench had observed that the pre-requisite condition of “five years continuous substantive service” for promotion to Lecturer's grade envisaged under regulation 6(1) of Chapter II of the Regulations framed under the U.P Intermediate Education Act laid emphasis on continuous five years teaching experience. It was further emphasised that the legislative intent was, therefore, obvious that a minimum period of continuous five years teaching experience to the credit of a candidate for promotion was contemplated under para 4 of the Difficulties Removal Order, 1981 which could not be deemed to have been dispensed with. It was also observed that the requirement of having to the credit of a candidate for promotion the minimum of five years continuous service in the lower grade had not been dispensed with under the scheme of U.P Act No. 5 of 1982 or the rules framed thereunder or the difficulties removal orders issued thereunder.

52. In the aforesaid decision this Court had observed that the entire period of service in the Lecturer's grade which remained irregular was liable to be ignored for the purpose, of determining the inter-se seniority as contemplated under the explanation to para 4 of the Difficulties Removal Order, 1981.

53. In the present case, as has been noticed herein above Dr. Asha Saxena had completed the period of five years teaching experience on 22.7.74 as she had been appointed in the L.T grade on 22.7.69, however, Kumari Radha Raizada had completed the period of five years teaching experience on 26.7.76 having been appointed in the L.T grade on 26.7.71 In view of the implications arising under the decision of the Apex Court in the case of Shitla Prasad Shukla v. State of U.P, Kumari Radha Raizada who was a late comer to the regular stream as compared to Dr. Asha Saxena cannot be allowed to steal a march over Dr. Asha Saxena who had joined the regular stream earlier.

54. In this case, on the facts admitted and established on the record the ratio of the decision of this Court rendered by Division Bench in the case of Smt. Prem Balika Rai v. Regional Inspectress of Girls School Varanasi (supra), it seems to be, is clearly attracted and applies on all fours.

55. Taking into consideration the implications arising under the ratio of the decisions in the cases of Prem Balika Rai and Sheetla Prasad Shukla (supra) there can be no escape from the conclusion that the irregular period of service of Kumari Radha Raizada as well as Smt. Asha Saxena has to be excluded while determining their inter-se seniority as envisaged under para 4 of the Removal of Difficulties Order, 1981 in accordance whereof the vacancy in question has to be filled up. There is no dispute that if this period is so excluded following the decision of the Apex Court in the case of Shitla Prasad Shukla v. State of U.P and the decision of this Court in the case of Smt. Prem Balika Rai v. Regional Inspectress of Girls School, Varanasi (supra), Dr. Asha Saxena will have to be held as senior to Kumari Radha Raizada, only for the purpose of the seniority as envisaged under para 4 of the Removal of Difficulties Order, 1981. Consequently, she will have a preferential right to be appointed as against the vacancy in question on ad-hoc basis unless she is superseded in accordance with law after following the procedure laid down in the decision of the Full Bench dated 12.7.90

56. The petitioner has urged that the entire proceedings initiated against her by the Committee of Management whereunder she has been superseded is without jurisdiction being in violation of the law as declared by the Full Bench of this Court in its decision dated 12.7.90 referred to hereinbefore. In this connection suffice it to say that since Dr. Asha Saxena, respondent No. 3 is to be treated as senior to the petitioner Kumari Radha Raizada for the purpose of appointment to the post of Principal in question as against the vacancy dated 1.7.91 the question of supersession has lost all its significance. However, it is made clear that any order passed by the Committee of Management which has been issued without complying with the procedure laid down in the decision of this Court dated 12.7.90 shall not be utilised against the petitioner in any manner what-so-ever to her prejudice. In the result, in view of my conclusions indicated hereinbefore, this writ petition is dismissed subject to the observation and the direction contained in the foregoing paragraph.

57. There shall, however, be no order as to costs.

58. Petition Dismissed.

Km. Radha Raizada v. Committee Of Managem...