JUDGMENT
Arun Tandon, J.
1. The controversy raised in the present petition pertains to determination of the date from which the petitioner Devendra Kumar Srivastava, is entitled to be appointed as lecturer on substantive basis as well as in respect of his right qua of officiating appointment as Principal against a vacancy which has been caused on 1-7-2006 in the institution. The claim of the petitioner is being resisted by respondent No. 5 on the ground of seniority.
2. The contesting respondents have filed their counter affidavit and parties agree that the writ petition be disposed of at this stage itself without any further affidavits is being called for.
3. Petitioner was initially appointed as LT grade teacher in Janta Inter College, Chargawan district Gorakhpur (which is aided and recognized intermediate college) on 1-9-1974. He was granted promotion as LT Grade teacher on 1-1-1981. There are eight sanctioned posts of lecturer in the institution. Two vacancies on the post of lecturer (Economics) and lecturer (Geography) were caused due to retirement of Kamla Sahi and J.P. Yadav on 30-6-1995. The management resolve to fill in the vacancies on the post of Lecturer (Economics) within 50% reserved for promotion while the post of Lecturer (Geography) was requisitioned for direct recruitment. The Committee of management accordingly resolved on 15-9-1996 to promote petitioner, who was senior most LT grade teacher qualified to teach Economics to intermediate classes. The said promotion was recommended against 50% quota for promotion. At the relevant time provisions of U.P. Secondary Education Service Selection Board Rules 1995 were in force Regular promotion therefore required necessary approval of U.P. Secondary Service Selection Board. The District Inspector of Schools by means of his letter dated 14-5-1998 forwarded the papers to the selection Board for considering regular promotion of the petitioner and in the meantime in exercise of powers under Section 16 of 1995 Rules proceeded to accord approval to the adhoc promotion of the petitioner as lecturer (Economics).
4. Petitioner was accordingly appointed as adhoc lecturer from the date vacancy was caused. It is admitted on record that the petitioner has, infact, been paid salary of admissible to the post of lecturer and has been continuously working as such without any break.
5. Respondent No. 5 Govind Mishra was appointed as CT grade Physical Training teacher on 8-6-1969 in the institution. He was permitted salary in LT Grade after completing ten years of service in terms of Government order dated 28-2-1990. On completing further period of 10 years in LT Grade he was granted salary in lecturer grade. The aforesaid fact are not in dispute. In terms of the Government order dated 25-10-2000 it is alleged that designation of lecturer was also conferred upon Sri Govind Mishra. In view of the same Govind Misra treated senior to the petitioner and on 30-6-2005 with the retirement of acting principal of the institution Govind Misra was handed over charge of the officiating Principal. His signatures were attested on 6-7-2006.
6. Feeling aggrieved by the aforesaid order petitioner filed Writ Petition No. 44673 of 2006. This Court by means of order dated 5-9-2006 required Regional Joint Director of Education Gorakhpur to consider the claim of the petitioner for regular promotion in accordance with the rules applicable. In case regular promotion is granted to the petitioner, his claim for being appointed as officiating principal should be considered by the District Inspector of Schools under Section 18 of U.P. Secondary Service Selection Board Act.
7. The Regional Level Committee under Rule 14 of U.P. Secondary Service Selection Board Rules 1998 resolved to approve the promotion granted to the petitioner from the date of said order i.e. 20-11-2006. It is against last part of the order, whereby promotion has been approved from the date of decision of Regional Level Committee that the present petition has been filed with further reliefs.
8. Petitioner submits that his promotion is to be approved on substantive basis from the date such regular promotion was recommended by the committee of management in the year 1995- 96 inordinate delay of 10 years on the part of the State respondents in finally approving the promotion cannot be the basis for denying rightful claim to the petitioner in respect of regular promotion and seniority to be determined accordingly. It is clarified that the petitioner cannot be permitted to suffer for the fault of the State respondents specifically when the same recommendation dated 15-9-1996 has been approved.
9. Lastly it has been contended on behalf of the petitioner that respondent No. 5 cannot be designated as lecturer inasmuch as there is nothing on record to establish that the institution was granted recognition in the subject of Physical Education for to XI and XII Classes. Consequently Government order which forms the basis for grant of such designation of lecturer to the petitioner namely the Government order 25-10-2000 has no application. The order of District Inspector of Schools in that regards dated 20-10-2000 is without jurisdiction.
10. The claim set up by the petitioner is contested by respondent No. 5 on the ground that he has rightly been designated as lecturer under order of District Inspector of Schools dated 20-10-2001 in accordance with Government order dated 25-10-2000. The order of District Inspector of Schools dated 20-10-2001 is not under challenge in the present writ petition. In any view of the matter petitioner can be said to have been appointed as lecturer on substantive basis only with the approval of such promotion by the Regional Level Committee under decision dated 20-11-2006. Therefore in no case petitioner can claim seniority nor he claim a right to be appointed as officiating principal in preference to respondent No. 5. Lastly it is pointed out that even today respondent No. 5 is drawing higher salary than the petitioner and, therefore he is necessarily to be treated senior.
11. Heard learned Counsel for the petitioner and perused the records.
12. From the facts which are not in dispute between parties, it is clear that the claim of the petitioner for regular promotion was recommended within 50% quota reserved for the purposes under resolution of the Committee of management dated 15-9-2006 with effect from 1-7-1995. Papers were transmitted to the District Inspector of Schools under covering letter dated 17- 10-1996 for being placed before U.P. Secondary Service Selection Board as per the Rules of 1995 and pending such consideration by Selection Board the District Inspector of Schools granted adhoc promotion in favour of the petitioner under Section 16 of 1995 Rules.
13. Before any decision could be taken by the Selection Board under 1995 Rules, same were superseded and substituted by U.P. Secondary Service Selection Board Rules of 1998. Under the new rule matter of regular promotion under 50% quota was required to be considered by the Regional Level Committee of which Regional Joint Director of Education is the Chairman. For the reasons best known to Secretary, Regional Committee it took eight years and any order of this Court to consider the papers qua promotion of the petitioner under 50% quota. Ultimately promotion has been approved on 20-11-2006 with reference to the resolution of management dated 17-10-1986, referred to above.
14. It is established that delay of more than eleven years in consideration of claim of promotion for regular promotion has been caused only behalf of fault of the respondent authorities such delay on the part of authorities cannot be permitted to jeopardise the rights of the petitioner. It may be pointed out that absolutely no infirmity/ irregularity has been noticed or pointed out by any of the respondents in the present writ petition qua promotion of the petitioner, as recommended by the Committee of management in the year 1996.
15. This Court has, therefore, no hesitation to hold that in the facts and circumstances of the case fairness and equity requires that decision of the Regional Level Committee dated 20-11-2006 in it so accorded approval to the petitioner’s promotion must take effect from the date of the decision of District Inspector of Schools to approve the provision of the petitioner on adhoc basis pending final approval from the authority concerned i.e. 17-10-1996.
16. In any view of the matter length of service rendered by the petitioner from the date of adhoc approval of his promotion by District Inspector of Schools i.e. 17-10-1986 till its final approval under decision of Regional Level Committee dated 20-11-2006 cannot be ignored for the purposes of determination of his seniority in the cadre of lecturer In more so when during this his promotion as lecturer was approved on adhoc basis by the District Inspector of Schools in conformity with statutory Rule 16 of 1995 Rules. Such adhoc promotion in accordance with Rules followed by regular promotion necessarily results in entire length of service rendered to be reconsidered for determination of seniority in that regard has been explained in the judgment reported in 2006 SCC 445 ( Hindustan Zinc Ltd v. Friends Coal Carbonisation)
17. Consequently this Court held that seniority of the petitioner in lecturer’s grade is liable to be determined from the date he was accorded adhoc approval qua promotion on the post of lecturer i.e. 12-10-1996.
18. This leads to this Court to the issue as to whether grant of designation to respondent No. 5 as lecturer under the order of DjIOS dated 20-10-2006 is in accordance with the Government order dated 25-10-2000 or not. Clause 3 of the said Government order provides as follows:
MAHODAYA,
UPROKT VISHAYAK NIEESHALAY KE PTRANK No. (1) Shi/8744/2000-2001 dated 4-9-2000 KE SANDARBH ME MUJHE YAH KAHNE KA NIRDESH HUA HAI KI ASHASKIYA HAYATA PRAPT AISE MADHYAMIK VIDLAYON (INTER COLLEGES) JO KALA VEYAYAM BHASHA SHILP AADI VISHYON SE INTER STAR TAK MANYATA PRAPT HAI MEN KARYARAT UKT VISHYON KE AISE ADHYAPKON JO NIRANTAR TEN VARSHSE INTER ME PARHA RAHE HAIN TATHA PRAVAKTA VETANMAN PRAPT KAR RAHE HAIN KO NIMN SHARTON EVAM PRATIBANDHON KE ADHIN PRAVAKTA PAD NAAM DIYE NAJE KI SHRI RAJYAPAL SAHARSH SWIKRIT PRADAN KARTE HAINS.
19. From the aforesaid clause of the Government order it is clear that designation of lecturer can be conferred on a Physical Training Teacher only if the institution had been granted recognition in the said subject for intermediate classes i.e. XI and XII on the date the Government order had been issued. There is nothing on record to establish that the institution in question was ever granted recognition in the subject of Physical education for intermediate classes on any date prior to the date of the Government order i.e. 25-10-2000 therefore in absence of any such fact being brought on record this Court can not record any conclusive finding qua conferment of designation as lecturer’ upon the petitioner.
20. Accordingly writ petition is allowed to the extent that seniority of the petitioner in lecturer’s grade shall to be determined from the date his promotion as lecturer was approved on adhoc basis by the District Inspector of Schools i.e. With effect from 17-10-1996. The District Inspector of Schools shall accordingly re- fix the seniority of the petitioner and shall make appointment on the post of adhoc Principal in accordance with Section 18 of U.P. Secondary Service Selection Board Act preferably within one month from the date a certified copy of this order is served on him without being influenced by his earlier order attesting signatures of respondent No. 5 as officiating principal. The District Inspector of Schools shall also examine grant of designation of Lecturer’s grade to respondent No. 5 in the light of provision of Government order dated 25-10-2000, referred to above and shall pass reasoned speaking order in respect thereto after affording opportunity to respondent No. 5. He shall record specific finding with regard to date on which recognition for Physical Training Education for Intermediate Classes i.e. XI and XII had been granted to the institution.