JUDGMENT
Sunanda Bhandare, J.
(1) The petitioner was appointed as Assistant Teacher in the Middle J.V. Grade in school run by Respondent No. 3 on 25th October 1950in the pay scale of Rs. 55-3-85-5-130. Respondent No. 4 Shri ML. Gupta was appointed as teacher in the Matric J.BT. Grade w.e.f. 15th July 1952 in the scale of Rs. 68-170. Since the petitioner was no matriculate at the time of his appointment, he was given the Middle JV. Grade pay scale whereas since Respondent No. 4 was a Matriculate be was given a higher rate and Matriculate J.B.T. Grade. Later on in the year 1952, the petitioner passed his matriculation and therefore, he was fixed in the higher grade, the same as of Respondent No. 4 i.e. Rs. 68-170 w.e.f. 15th July 1954. The pay scales were revised from time to time from 1959 onwards and since the pay of the petitioner and Respondent No. 4 was fixed in the revised pay scale, though they were in the same Grade and scale there was difference in their pay because of the initial lower scale of the petitioner, Thus though in the year 1972. both the petitioner and the Respondent No. 4 were in the scale of Rs. 165-350, the petitioner was drawing basic pay of Rs. 230.00 whereas the Respondent was drawing basic pay of Rs. 245.00 . In April 1973, a post of Headmaster fell vacant and it was decided by the school to fill up this vacancy by selecticn. A Selection Committee was appointed which interviewed the candidates. Apart from other candidates, the Selection Committee interviewed the petitioner and the Respondent No. 4 for appointment to this post.
(2) However, the Selection Committee could not come to a final decision and, therefore, the petitioner was asked to officiate as Headmaster of the school w.e.f. 1-5-73. Respondent No. 4 felt aggrieved by this officiating promotion to the petitioner as an Acting Headmaster and, therefore, made a representation to the Education Officer of the Municipal Corporation of Delhi, that since he was appointed in a higher grade before the petitioner, he was senior to the petitioner in the higher grade and therefore be was entitled to a promotion as Headmaster and not the petitioner.
(3) In view of the representation of Respondent No. 4, the Municipal Corporation of Delhi, wrote back to Respondent No. 3 that senior most person is to be appointed as Headmaster under the rules and directed them to take immediate action to appoint Respondent No. 4 as Headmaster, failing which they threatened to stop the aid that was being granted to the School. The Respondent No. 3 therefore, appointed him Headmaster in place of the petitioner.
(4) This order of Respondent No. 3 was challenged in this writ petition under Article 226 of the Constitution of India.
(5) Though the petitioner had filed the petition through the Advocate, at the hearing of the case, the petitioner commenced arguments in person and stated that since he could not afford to engage an advocate, he be permitted to argue the matter.
(6) However, later on it was felt that in order to do justice in the case, it would be proper for the petitioner to get legal assistance. Therefore, Shri R.L. Tandon, Sr. Advocate who was present in the court in some other case, was requested to appear for the petitioner and assist the court, which he very kindly agreed to do.
(7) It was contended by Shri Tandon that since the petitioner was appointed earlier than the Respondent No. 4 he had to be considered senior to Respondent No. 4. Learned counsel submitted that the petitioner was given lower scale at the time when he was appointed as he was a non Matriculate and since he completed his Matriculation he was given the higher scale. It was submitted that the pay scale did not determine the grade.
(8) Learned Counsel further submitted that assuming that that was in different grade at the time of their initial appointment, even then in the year 1972, when the vacancy of a Headmaster arose, both of them were in the same pay scale, and in the same grade and therefore, the petitioner who was elder in age, should have been considered for promotion before Respondent No. 4, who was younger to him. It was further submitted that in fact the petitioner was always considered to be senior and therefore, he was given the officiating appointment of Headmaster by the Selection Committee. It was contended that once the petitioner was appointed as the Headmaster even an officiating basis, he could not be reverted without complying with the principles of natural justice. It was submitted that no notice of or hearing whatsoever was given to the petitioner, before be was reverted back to his original post and order of reversion of a petitioner and the appointment of Respondent No. 4 in his place should be set aside on that ground alone.
(9) On the other hand, the learned counsel for Respondent No. 3 submitted that Respondent No. 4 was always senior to the petitioner in the Grade of Assistant Teacher, because though the petitioner was appointed earlier than Respondent No. 4, he was appointed in a lower grade of Middle J.V. and Respondent No. 4 being a Matriculate was appointed in a higher grade of Matric J.B.F. The petitioner got the Matric J.B.T. grade only in the year 1954 which was later than Respondent No. 4 and therefore, the petitioner was junior to Respondent No. 4 in the Matriculate J.B.T. Grade Learned counsel submitted that the pay scale determined the grade of teacher. The petitioner was appointed in October 1950 in the scale of Rs. 55-130 whereas the Respondent No. 4 was appointed in the scale of Rs. 68-110 (It should be 170 as given above) only in the year 1954. Thus though both of them worked in the same grade in the year 1954, Respondent No 4 having been appointed in the higher grade of Rs. 68-110 earlier than the petitioner, he was senior to the petitioner. Thus though he was elder in age was immaterial.
(10) Counsel submitted that the appointment of the petitioner as Headmaster was purely ad hoc and officiating temporary arrangement and there was no reversion as contended by the petitioner, therefore, there was no question of giving notice or hearing. It was submitted that as per Rule 207 of Delhi Education Code 1965. seniority has to be determined on the basis of length of continuous service rendered in a particular grade. Since the length of Respondent No. 4 in the grade was more than the petitioner, he was rightly appointed as Headmaster.
(11) Respondent No. 4 contended that the non-matriculate and qualified teachers were placed in separate categories and separate grades as per the Central Pay Commission and directions were given to the Management of the school for regularizing their appointment only after they had improved their qualification. Since the petitioner was non-matriculate at the time of initial appointment in the year 1950, he was appointed in the lower grade, when he improved his qualification, and passed the Matriculation he was also regularised in the Matric JB.T. Grade. Thus Respondent No. 4 was always senior to the petitioner. It was submitted that by the merger of pay scale, the petitioner who was getting lower scale, could not seek fixation of seniority and on the basis of mere length of service in the lower grade could become senior to Respondent No. 4. who was getting higher scale of pay before the merger of two pay scales. Reference was made, in this regard to the Judgment of this court in Shri Brat Pal Mandal & Others v. Lt. Governor Delhi & Others I L R 1980 (1) Delhi 394 and C.W. 503/74 (Suresh Chander Gupta v. Lt. Governor of Delhi & Others) decided on 27-5-83. It was further submitted that Respondent No. 4 has been working as Headmaster from 1-10-75 till date on the basis of the impugned decision and petitioner is likely to retire In a couple of months’ time and, therefore, it would be unfair and unjustified if Respondent No. 4 is asked to revert back as teacher now.
(12) After coming into force of School Education Act, 1973 and rules made there under recruitment to the post of Headmaster had to be made by Selection Committee on the basis of Seniority-cum-fitness. In the present case, the Selection Committee appears to have been appointed for selecting the candidate for the post of Headmaster which fell vacant in the year 1973. However, it also appears from the record that Selection Committee invited some candidates, but they could not take final decision and the petitioner was asked to officiate as a Headmaster. This seems to have happened because there was no uniform policy followed by the various institutions aided and recognised by the Education Department in filling up the post of Headmaster/ Headmistresses in the schools.
(13) Therefore, on 17th Dec. 1976 decision was taken by the Education Deptt. that these posts should be filled up strictly on seniority basis subject to rejection of unfit on the same basis as is done in Corporation’s own schools. A circular in this regard had been sent to all the Recognised and Aided Schools on 17th December i974. Thus main point which has to be determined is whether Respondent No. 4 could be considered senior to the petitioner in the same grade or was he junior to the petitioner because the petitioner wag appointed in the year 1950 and Respondent No. 4 was appointed in the year 1952 i.e. after 2 years
(14) As per Rule 207 of Delhi Education Code 1965- Seniority has to be determined on the basis of length of continued service rendered in a particular grade. Thus, the scale of pay is not the only criteria for deciding the Grade. It appears that in the present case, pay scale was the main factor for determining the Grade of the teacher By circular No. F-13/23/65BSE-5 dated Junes 1966, by Under Secretary Ministry of Education. New Delhi it was clarified the the Pay Scale would determine the grade because whenever a person was pat in a higher scale, it was considered as a promotion. Thus though the petitioner was appointed earlier than the Respondent No. 4 because of his Lesser qualification. he was appointed inthe lower scale and, therefore, he was in lower grade than Respondent No 4. It was only in the year 1954, the petitioner joined the same grade as of Respondent No. 4. Precisely the case is this, though later on they continued to be in the same scale, and petitioner got lesser salary than Respondent No. 4. It also appeared that no seniority list of Assistant Teacher was prepared in the year 1974 and it was for the first time that seniority of assistant teachers was to be considered with the question of promotion to the post of Headmaster arose.
(15) I find no substance in the contention of Shri Tandon that since the petitioner and Respondent No. 4 were in the same pay scale in the year 1972, a person elder in age was entitled to the appointment. Since the petitioner joined the J.B.T. Grade in 1954 he was junior to Respondent No. 4 in J.B.T. Grade and continued to be junior even later. The question of age, therefore, does not arise at all, even though the petitioner was elder in age to Respondent No. 4. Since be was junior in service to Respondent No. 4 he could not seek the claim to promotion on the basis of age.
(16) I also find no substance in the contention of the Learned Counsel for the petitioner that since the petitioner was being reverted, he could have been given notice before the decision to revert him was taken. The petitioner was appointed only on officiating basis for a very short period as an ad hoc arrangement and it was always made clear to him that he was officiating till the final decision was taken. Thus there was no reversion and as such no notice could have been given to the petitioner.
(17) For the aforesaid reasons, I find no infirmity in the impugned order. The petition is therefore, dismissed. Parties will bear their own costs.