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1997 Supreme(All) 1154
IN THE HIGH COURT OF ALLAHABAD
D. C. Srivastava, J.
JASMEL SINGH - Appellant
Versus
RAJENDRA PRASAD SAXENA - Respondents
Second Appeal 355 Of 1991
Decided On : 09/24/1997
Anil Hajela, K.M.L.Hajela, NAVIN SINHA, PRAKASH KRISHNA
In the absence of specific guidelines in the rules and statute, for determining the seniority, the following principles have to be kept in mind: (i) If the two candidates were appointed in the same grade but on different dates, seniority is to be computed from the date of initial appointment of the candidate. (ii) If the appointment is on different dates, then the person appointed earlier wilt be treated as senior. (iii)If the two candidates were appointed on different posts under different scales as has been in the instant case, seniority is to be determined from the date when the two candidates were appointed in one grade, namely, Lecturers grade. Irregular appointment or the appointment in some other grade is to be excluded, (iv) A person appointed on ad hoc or temporary basis is also entitled to claim seniority from the date of his initial appointment provided there has been no break in service, (v) The period of temporary or officiating appointment is also to be taken into consideration for determining the seniority. Confirmation is not relevant for seniority, (vi)Seniority list is also to be taken note of provided it has become final and has not been challenged for long time. (vii) The person appointed on a post not possessing the minimum qualification for appointment cannot claim seniority from the date of his initial appointment but can claim seniority only from the date when he gets minimum qualification, (viii) In case of educational institutions like a teacher of the intermediate college, he gets status of a teacher from the date his appointment is approved by the District Inspector of Schools.
Headnote:
SENIORITY - LECTURER IN CHEMISTRY - COMPUTATION - PRINCIPLES - U. P. INTERMEDIATE EDUCATION ACT, 1921 - SECTION 16F(1).
Fact of the Case:
The plaintiff-respondent, Rajendra Prasad Saxena, filed a suit for declaration that he is senior to Jasmel Singh, defendant No. 3, as Lecturer in Chemistry and is entitled to selection grade in Mahatma Gandhi Memorial Inter College, Baheri, district Bareilly prior to that of defendant No. 3 and the defendants No. 1, 2 and 4 be restrained from giving selection grade to the defendant no. 3 prior to 16. 9. 1983.
Finding of the Court:
The trial court dismissed the suit. Appeal was preferred which was allowed. The judgment and decree of the trial court was set aside and the plaintiff-respondent was declared senior to the defendant No. 3 who is appellant in this second appeal.
Issues: 1. Whether the lower appellate court was justified in reversing the findings of the trial court without specifically setting aside the findings recorded by the trial court on each material issue? 2. Whether the lower appellate court was justified in placing reliance upon inadmissible evidence, namely, photostat copies and cyclostyled copies of documents which are in the nature of secondary evidence and since these documents have not been proved in accordance with law? 3. Whether the lower appellate court was justified in ignoring the oral evidence? 4. Whether the computation of seniority by the trial court was correct and that of the lower appellate court was totally incorrect?
Ratio Decidendi: 1. The lower appellate court was not justified in reversing the findings of the trial court without specifically setting aside the findings recorded by the trial court on each material issue. 2. The lower appellate court was not justified in placing reliance upon inadmissible evidence, namely, photostat copies and cyclostyled copies of documents which are in the nature of secondary evidence and since these documents have not been proved in accordance with law. 3. The lower appellate court was not justified in ignoring the oral evidence. 4. The computation of seniority by the trial court was correct and that of the lower appellate court was totally incorrect.
Final Decision: The appeal succeeds and is allowed with cost. The judgment and decree of the lower appellate court dated 15. 12. 1990 are set aside and that of the trial court dated 31. 1. 1987 are restored.
( 1 ) THIS is defendants second appeal.
( 2 ) THE plaintiff-respondent Rajendra Prasad Saxena filed a suit for declaration that he is senior to jasmel Singh, defendant No. 3 as Lecturer in Chemistry and is entitled to selection grade in mahatma Gandhi Memorial Inter College, Baheri, district Bareilly prior to that of defendant No. 3 and the defendants No. 1, 2 and 4 be restrained from giving selection grade to the defendant no. 3 prior to 16. 9. 1983.
( 3 ) IN short the material allegations in the plaint are that the plaintiff-respondent was appointed on 28. 7. 1965 as Lecturer in Chemistry in Mahatma Gandhi Memorial Inter College, Baheri, district bareilly. He proceeded to complete his post-graduate diploma in Chemistry at the cost of the defendant No. 2 and was granted duty leave for the aforesaid course. After completing the diploma course, the plaintiff-respondent was appointed as Lecturer in Chemistry on 1. 7. 1967. The defendant No. 3 namely the appellant--Jasmel Singh was appointed to teach Intermediate classes in the absence of the plaintiff. At that time he was only M. Sc. (previous) whereas minimum qualification for appointment of Lecturer in Chemistry at that time was M. Sc. or post-graduate diploma. The appellant was appointed as teacher on 8. 7. 1966 on temporary basis for one session because he did not possess minimum qualification. His appointment was not approved by the District Inspector of Schools hence he could be considered only as demonstrator. Additional section for Chemistry was opened and the District Inspector of Schools granted approval of the defendant No. 3 vide letter dated 16. 9. 1967. Since the plaintiff was given lecturer grade since 1. 7. 1967 hence the appointment of the defendant No. 3 automatically lapsed from that date. The defendant No. 2 illegally allowed the defendant No. 3 to continue between 1. 7. 1967 to 16. 9. 1967 and this period cannot be counted towards seniority. Hence the defendant no. 2 namely, the appellant is junior to the plaintiff-respondent. The defendant No. 2 was going to pass a resolution in favour of defendant No. 3 for giving selection grade prior to that of the plaintiff. Objection was filed by the plaintiff. The seniority list was published on 18. 8. 1979 in which the plaintiff was shown senior to defendant No. 3 and the list has become final. A resolution was passed by the defendant No. 2 in favour of the appellant on 25. 11. 1982. The plaintiff filed representation which was illegally rejected by the defendant No. 6 as District inspector of Schools. This order is also said to be illegal and void.
( 4 ) THE suit was contested on several grounds. It was pleaded that the suit is not maintainable and is bad for non-joinder of necessary parties. It has been denied that the plaintiff was appointed lecturer in Chemistry on 28. 7. 1965. At that time the plaintiff did not possess minimum qualification for appointment of a Lecturer. He was simply B. Sc. and he was appointed demonstrator in Chemistry. It is also denied that the appellant was appointed in the leave vacancy of the plaintiff or that he did not possess minimum qualification for appointment as lecturer in Chemistry. The appellant had passed M. Sc. (previous) and as per Government orders, he was entitled to be appointed as Lecturer. He was appointed in a clear vacancy as lecturer on 8. 7. 1966 for one year and after completion of one year he was again interviewed before the selection committee on 25. 7. 1966. The vacancy was advertised and selection committee recommended the name of the appellant in first position in order of merit and was regularly working as Lecturer. He completed 16 years of continuous service on 8. 7. 1982 when he became entitled to selection grade. It is further said that the appointment of the appellant was approved by fie District Inspector of Schools as Lecturer while that of the plaintiff as demonstrator. Alleging that the appellant was senior to the plaintiff-respond
