Back
1997 Supreme(All) 1568
IN THE HIGH COURT OF ALLAHABAD
O.P. GARG, J.
Jagdish Prasad Sharma and Others - Appellant
Versus
Director of Education, Allahabad and Others - Respondent
C.M.W.P. No. 5642 of 1988
Decided On : 21-10-1997
Advocate Appeared:
For the Appellant : Navin Sinha and Vipin Sinha
The seniority of an employee is to be counted from the date of their initial appointment, not from the date of their confirmation, if they have been holding the post in a substantive capacity uninterruptedly.
Headnote:
SENIORITIY - LECTURERS - COMBINED SENIORITY LIST - Petitioners, lecturers in Engineering, challenged their placement in the combined seniority list, arguing they should have been given seniority from the date of their initial appointment, not from the date of confirmation by the U.P. Public Service Commission (U.P.P.S.C.).
Fact of the Case:
Petitioners were appointed as lecturers in Engineering in Government Inter Colleges in U.P. in 1963. Their posts were initially temporary but were made permanent in 1965. In 1992, a combined seniority list was prepared, which placed the petitioners below lecturers in other subjects who had joined service later. The petitioners challenged this placement, arguing that they should have been given seniority from the date of their initial appointment.
Finding of the Court:
The court held that the petitioners were entitled to seniority from the date of their initial appointment, as they had been holding substantive posts in a substantive capacity from that date. The court found that the respondents had erred in treating the petitioners' appointments as ad hoc and in excluding the period of their officiation from the calculation of their seniority.
Issues: 1. Whether the petitioners were entitled to seniority from the date of their initial appointment or from the date of their confirmation by the U.P.P.S.C.? 2. Whether the respondents had erred in treating the petitioners' appointments as ad hoc and in excluding the period of their officiation from the calculation of their seniority?
Ratio Decidendi: The court relied on the following principles in reaching its decision: * Once an incumbent is appointed to a post according to rule, their seniority has to be counted from the date of their appointment, not from the date of their confirmation. * If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of their service in accordance with the rules, the period of officiating service will be counted. * Continuous officiation in substantive capacity may be as against permanent or temporary post. The vacancy, however, should not be adventitious, fortuitous casual or stop-gap.
Final Decision: The court allowed the writ petition, quashed the impugned order dated 9.6.1992, and directed the respondents to prepare and issue a fresh combined seniority list within three months, giving the petitioners seniority from the date of their initial appointment.
O.P. GARG, J.
1. By means of this writ petition under Article 226 of the Constitution of India, the petitioners are seeking to challenge the correctness, legality and validity of the action and omission, on the part of the respondents in excluding the petitioners from the combined seniority list of lecturers serving in the Government Inter Colleges in the State of U. P.
2. During the pendency of the writ petition, ad interim order was passed by Hon'ble B. M. Lal, J., (as His Lordship then was) on 24.8.1991, which runs as follows :
"Heard learned counsel for the parties on stay.
Vide order dated 7.5.1991 this Court directed to the respondents, the State, that they shall take decision within a month and communicate the same to the petitioners. However, still the standing counsel is not in a position to make any statement as to whether the Government has taken decision in this regard or not. Under these circumstances, this Court is constrained to pass an ad interim stay order in favour of the petitioners as sought for.
The interim relief is granted in the following terms :
The respondents are directed to include the petitioners' name in the combined seniority list of lecturers serving in the Government Inter Colleges in the State of U. P. and to treat them at par with lecturers in any other subjects. Further it is directed that the petitioners will also be given selection grade in terms of relevant G.Os. Issued by the Government from time to time.
Dt. 24.8.1991
Sd./-B. M. Lal, J."
In pursuance of the aforesaid order, a combined seniority list has been prepared in which the names of the petitioners have been reflected and the facility of selection grade has also been allowed to them. The petitioners have challenged their placement in the combined seniority list on the primary ground that they have not been given their due seniority from the date they were appointed and that some of the lecturers, particularly, respondent Nos. 4 to 9 who joined service later on, rank senior to the petitioners. The petition has been drastically amended and now a prayer has been made that the impugned order dated 9.6.1992, Annexure-2 to the writ petition be quashed and that the respondents be commanded to determine the infer se seniority right from the date of the appointment of the petitioners and to grant consequential benefits.
3. Counter and rejoinder affidavits have been exchanged. After having heard learned counsel for the parties, this writ petition is being finally disposed of with their consent.
4. For appreciating the controversy, which has to be resolved in the present case, it is necessary to refer to the brief summary of the facts. Initially the subject of Engineering at Intermediate level was introduced on an experimental basis, temporarily under Scheme No. 24 of the Second Five Year Plan and thereunder certain Government Inter Colleges were chosen as multipurpose schools. These schools known as Government Inter Colleges are located at Meerut, Jhansi, Moradabad, Pilibhit, Allahabad, Kanpur, Gyanpur. Deoria, Falzabad and Lucknow. To implement the said scheme. 40 temporary posts of lecturers were created in the year 1957. As against 40 posts, 30 persons were appointed as Lecturers (Engineering) and on the remaining 10 posts. Lecturers (Physics) were appointed. The subject of Engineering as introduced under the aforesaid scheme, comprised of two courses, namely, (i) Elements of Electrical Engineering and (ii) Elements of Mechanical Engineering. These subjects were duly recognised by the Board of High School and Intermediate Education with Physics, Chemistry and Mathematics, constituted the technical group in the syllabus of the Board of High School and Intermediate Education. The minimum qualification for Lecturer (Engineering) was B.Tech/B.Sc. Technical (Education) or Diploma in Mechanical /Electrical Engineering and one year workshop
