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2009 Supreme(All) 2149
[2009(5) ADJ 39 (DB)]
ALLAHABAD HIGH COURT
BEFORE : C.K. PRASAD, C.J. AND DILIP GUPTA, J.
Smt. VEENA MISHRA .....Appellant
Versus
REGIONAL DEPUTY DIRECTOR OF EDUCATION, VARANASI AND OTHERS .....Respondents
(Special Appeal No. 581 of 2009, decided on 7th May, 2009)
Counsel :
A.N. Tripathi, Arvind Kumar Mishra and R.P. Mishra for the Appellants; M.K. Gupta and S.C. for the Respondents.
Headnote:Seniority—Inter se seniority—Determination of—Dispute between petitioner and one another teacher—Single Judge noticing that in both petitions as to which of those teachers were senior, observed that both had been granted substantive appointments by promotion on post of Assistant teacher in L.T. Grade on same date, dated 6.4.1991—'S' would be senior to petitioner in view of provisions of Regulation 3 (1)(bb), Chapter II of U.P. Intermediate Education Act, 1921, as her length of service in C.T. grade was more than that of petitioner—Question whether ad hoc appointment of two teachers in L.T. grade were made by promotions, or by direct recruitment—Order dated 25.3.1985 passed by Regional Inspectress of Girls Schools, is absolutely clear—It grants approval to ad hoc promotions of both teachers, till such time as a regularly selected candidates from Commission joins post—Even otherwise, an ad hoc appointment has first to be made by promotion—And, it is only when any vacancy, cannot be filled up by promotion that steps have to be taken for filing it by direct recruitment—Those two teachers have been granted ad hoc promotions from C.T. grade to L.T. grade, w.e.f. 25.3.1985—Held, consideration of matter by Single Judge, does not suffer from any error of law, calls for interference in Second Appeal of petitioner—Moreover writ petition filed by 'S' had been allowed—And, she was held senior to petitioner. [Paras 31 to 43]
By the Court.—Veena Misra has filed this Special Appeal under Rule 5 of Chapter VIII of the Allahabad High Court Rules, 1952 for setting aside the judgment and order dated 10th April, 2009 passed by a learned Judge of this Court by which Writ Petition No. 9790 of 1994 filed by her for a direction upon the respondents not to disturb her seniority was dismissed.
2. Savitri Singh, who was respondent No. 3 in the aforesaid writ petition filed by Veena Mishra, had also filed Writ Petition No. 38621 of 1994 for treating her to be senior to Veena Mishra. Both the petitions decided together by the common judgment and order dated 10th April, 2009. The petition filed by Savitri Singh was allowed and it was held that Savitri Singh is senior to Veena Mishra. The appellant who was respondent No. 4 in the writ petition filed by Savitri Singh has not filed any Special Appeal to assail this judgment.
3. The core issue in both the writ petitions, as would be evident from the prayers contained therein and the judgment, is as to which of these two teachers is senior.
4. The prayers contained in the writ petition filed by Veena Mishra are as follows :
“(a) issue a writ, order or direction in the nature of certiorari quashing the order dated 24.1.1994 passed by respondent No. 1 (Annexure 9) to the writ petition.
(b) issue a writ, order or direction in the nature of certiorari quashing the resolution dated 7.10 (sic) appointing the respondent No. 3 on adhoc basis as Assistant Teacher in L.T. Grade and order dated 25.3.1985 approving her adhoc appointment.
(c) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere with the seniority of the petitioner during the pendency of the writ petition.”
5. The prayers contained in the writ petition filed by Savitri Singh are as follows :
“(a) issue a writ, order or direction in the nature of certiorari calling for the record of the case and quash the order dated 11.11.1994 (Annexure 1) passed by the respondent No. 2.
(b) issue a writ, order or direction in the nature of Mandamus commanding the respondents to treat the petitioner as the senior most teacher in L.T. grade, and permit the petitioner to officiate and perform the duties of Principal until substantive appointment of the Principal is done by the U.P. Secondary Education Services Commission.”
6. It is evident that Veena Mishra had not only sought the quashing of the order dated 25th March, 1985 granting approval to the ad hoc promotion of Savitri Singh as Assistant Teacher in the LT Grade as also the subsequent order dated 24th January, 1994 appointing Savitri Singh on probation as Assistant Teacher in the LT Grade w.e.f. 6th April, 1991, but had also sought a mandamus not to interfere with her seniority. Savitri Singh in her petition had sought the quashing of the order dated 11th November, 1994 passed by the Deputy Director of Education holding Veena Mishra to be senior to her and for a direction upon the respondents to treat her as the senior-most teacher in the LT Grade.
7. The learned Judge, after noticing that the dispute in both the petitions was as to which of these two teachers is senior, observed that as both Savitri Singh and Veena Mishra had been granted substantive appointment by promotion on the post of Assistant Teacher in the LT Grade on the same date 6th April, 1991, Savitri Singh would be senior to Veena Mishra in view of the provisions of Regulation 3(1)(bb) contained in Chapter II of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Regulations’) as her length of service in the CT Grade was more than that of Veena Mishra.
8. Sri A.N. Tripathi, learned Senior Counsel for the appellant Veena Mishra submitted that the learned Judge committed an error in holding that the appointments of both the Assistant Teachers on 6th April, 1991 in the LT Grade on substantive basis was by way of promotion. According to him inter se seniority was required to be determined
