Heard Sri Ashwani Kumar Mishra, learned counsel for the petitioner and Sri Mahendra Singh for the respondent no. 6. Learned Standing Counsel has accepted notice for the respondent Nos. 1, 2 and 3.

Issue notice to the respondent nos. 4 and 5, returnable at an early date.

All the respondents shall file a counter affidavit by the next date fixed. The matter shall be taken up again on 30th of May, 2013.

The dispute in the present writ petition relates to the inter-se seniority between the petitioner and the respondent no. 6 who were appointed on compassionate basis in different institutions against a supernumerary post. It is undisputed that the petitioner was appointed on 27th July, 1998 and the respondent no. 6 was appointed on 18th November, 2002.

It is also undisputed that the date of birth of the petitioner is 19th January, 1970 and that of the respondent no. 6 is 7th July, 1981.

Thus the petitioner was appointed earlier to the respondent no. 6 on compassionate basis and he is also senior in age. Both of them continued to work against supernumerary posts awaiting their absorption against a permanent substantive vacancy in any institution as per Regulations 105 and 106 of the Regulations framed under the U.P. Intermediate Education Act, 1921 under Chapter III thereof.

It is also undisputed that both of them were absorbed in Shri Gandhi Smarak Inter College, Hata, Kushinagar by an identical order issued on 16th February, 2006. Consequently, both of them had to join in the same institution against substantive posts. The petitioner joined in the institution on 1st of April, 2006 whereas the respondent no. 6 admittedly joined a month earlier on 1st of March, 2006. Both of them continued to function against Class IV posts on permanent basis and the dispute that has now arisen is in connection with promotion to a Class III post for which both are claimants.

Promotion to a Class III post is made on the basis of seniority subject to the possession of a satisfactory service record. The Principal wrote a letter to the Manager on 29.8.2012 reflecting the interse claim of seniority between the petitioner and respondent no. 6 recommending that the respondent no. 6 would be senior as he has joined earlier than the petitioner. The petitioner represented the matter before the management on 24.9.2012 and before the District Inspector of Schools on 30.10.2012. Thus the dispute of seniority came to the forefront for the first time between the petitioner and the respondent no. 6 on the issue of promotion against a Class III post as is now sought to be raised before this Court.

The District Inspector of Schools has approved the resolution of the Committee of Management dated 11.11.2012 promoting the respondent no. 6. The petitioner filed writ petition no. 1013 of 2013 in which a direction was issued to the District Inspector of Schools to decide the said dispute. Consequently, the District Inspector of Schools by the impugned order dated 11th February, 2013 has proceeded to hold that since the respondent no. 6 Shamshad Ahmad had joined one month earlier, on 1st of March, 2006, therefore, the respondent no. 6 would be senior as against the petitioner for the purpose of such consideration of promotion, and has accordingly accepted the proposal of promotion in favour of respondent no. 6.

Aggrieved, the petitioner is before this Court.

Sri Ashwani Kumar Mishra contends that the criteria adopted by the District Inspector of Schools from the date of joining is nowhere to be found under the rules relating to the service conditions of Class IV and Class III employees contained in the regulations framed under Chapter III of the U.P. Intermediate Education Act, 1921. He therefore submits that since the petitioner is senior in age, the date of joining would not be relevant. He further submits that the petitioner had taken a clear case that he was prevented from joining in the institution earlier on account of the fact that he had not been relieved from hi