JUDGMENT
Arun Tandon, J.
1. Heard Sri R.K. Ojha on behalf of the petitioner and Sri Ashok Khare, Senior counsel assisted by Sri Surendra Kumar Singh, on behalf of respondent No. 6.
2. Learned Counsel for the parties agree that he writ petition be disposed of finally without calling for the counter affidavit.
3. This petition is directed against the recommendation of Regional Selection Committee as per the letter of Regional Joint Director of Education, Kanpur Dehat dated 4-8-2006 as also against the consequential order dated 10-8-2006 passed by District Inspector of Schools Kanpur Dehat according promotion to Vinod Kumar Misra, respondent No. 4 under Rule 14(5) of U.P. Education Service Selection Board Rules 1998 against the vacancy available on the post of Lecturer (Civics).
FACTS;
4. Shri Ram Swaroop Gramodaya Intermediate College, Pukhraya district Kanpur Nagar is an Intermediate college recognized as such under the Intermediate Act, 1921.
5. Sri Madan Lal Mishra, petitioner was appointed as CT Grade teacher in the institution on 21-2-1986,he was absorbed in L.T. grade with effect from 6-4-1991 with reference to Government order dated 19-2-1991. The District Inspector of Schools modified the date of absorption of the petitioner as LT Grade teacher as 23-2-1991 and further provided grant of selection grade with effect from 23-10-1991 with reference to Government Order dated 20-12-2001.
6. Respondent No. 4 Vinod Kumar Mishra is said to have been appointed on adhoc basis against the vacancy caused due to grant of adhoc promotion to Luxmi Narain in LT Grade for the period 25-11-1986 to 30-6*1987, However, he is said to have been regularized with effect from 6-4-1991 as LT Grade teacher.
7. Counsel for the petitioner submits that since the petitioner is senior in age and the date of regularization/ absorption in LT Grade of the petitioner and respondent No. 4 is one and the same, petitioner is entitled to be treated as senior Therefore, promotion granted in favour of respondent No. 4 as lecturer Civics under the impugned order dated 4-8-2006 in supersession of the petitioner is legally not justified.
8. Learned Counsel for the respondent No. 4 Sri Ashok Khare, Senior advocate, submits that the petitioner was appointed as CT Grade teacher on 23-2-1986. His merger in LT Grade on 19-2-1991 is only a conferment of payment of salary in LT Grade and cannot be termed as designation as LT Grade teacher. Reliance has been placed upon the judgment of this Court reported in 1994 Vol (24) Hind-UL. He further points out that on 18-12-1987 State Government declared CT’ cadre as dying cadre. Teachers who had completed ten years service in the CT Grade were merged in LT Grade. This Government order was in the teeth of Section 16 of U.P. Secondary Education Service Selection Board’s Act, 1982 and, therefore on 20-4-1998 amendments were made by adding Section 33-D to the 1982 Act. Even thereafter it was necessary for the legislature to make necessary amendment in Section 16- of the Act of 1982 so as to include the exception in respect of appointments, referable to Section 33-D in the said section The purpose was achieved by Amending U.P. Act No. 5 of 2001 which has been enforced with effect from 30-12-2000.
9. Learned Counsel for the respondent points out that the Government order dated 24-5-2000 relied upon by the petitioner, which provided for grant of LT Grade on completing five years of service in CT Grade run contrary to the specific language of Section 33-D and the only manner available to save the Government order dated 24-4-2004 from being struck down as violative of Section 33-D read with Section 16 of the 1982 Act is to read down the same so as to mean that it provides for payment of salary in LT Grade only and not designation as LT Grade teacher. He therefore submits that petitioner can be designated as L.T Grade teacher only on completing 10 years of service in C.T. Grade i.e. in the year 1996 and not on any date prior to it. He is therefore junior to respondent No. 4 Writ petition is liable to be dismissed.
10. Heard learned Counsel for the petitioner and gone through the record of writ petition.
11. Before addressing on the merit of the claim set up by the parties it is worth while to note certain legislative changes brought about in U.P. Intermediate Education Act as well as in the U.P. Secondary Education Service Selection Board Act, 1982 relevant for the dispute at hand.
12. Under the Government order dated 3-6-1989 CT Grade cadre was declared as dying cadre and it was provided that all those teachers who have completed 10 years of service shall be entitled to LT Grade. This Government order was interpreted by this Court in its judgment reported in 1994 Vol 24 page 19 (Hindi) Vinod Kumar Pandey v. State of U.P. and Ors. as an order confirming benefit of pay scale of LT Grade only and not of designation as LT Grade teacher. A Division Bench of this Court in its judgment reported in Km.Sheela Sanyal v. State of U.P. and Ors. reported in 1995 (1) Alld. Law Journal page 589 and in the case of Vipin Kumar v. District Inspector of Schools Muzaffarnagar and Ors. reported in (1993) 3 UPLBEC 1800 and has clarified that grant of pay scale equivalent to a particular grade is not to be equated as appointment in the Grade. In Paragraphs 9 and 13 has held as under:
9-The word “grade” used in para 4(2) of the Removal of Difficulties Order, 1981, Rule 9 of U.P. Secondary Education Service Commission Rules, 1983 and Regulation 6 of Chapter II of Intermediate Education Act, 1921, must be taken as “post” of lecturer. A teacher who is working in L.T. grade is to be promoted to the post of lecturer’s grade in the sense that he is to be promoted to the post of lecturer in the institution. A teacher may be given lecturer’s pay scale but he may not be given the post. Unless he is given a post the mere fact that he has been given lecturer’s pay scale will not be taken as to have given him the post of lecturer unless he is duly promoted to the said post in accordance with the provisions of a Statute.
13- The seniority of a teacher of a lecturer’s grade is also to be considered from the date of appointment to the post in lecturer’s grade and not from the date of payment of lecturer’s pay scale. Regulation 3 of Chapter-II of Regulations of the Intermediate Education Act contemplates seniority from the date of appointment and the same principle has to be made applicable in case of persons appointed on adhoc basis. The seniority cannot be fixed on the basis of grant of pay scale given by the Government under its own orders.
13. On 18-12-1997 amendment in Regulation Rule 6(1) of Chapter-2 of the Regulations framed under Intermediate Education Act were incorporated and it was provided that all such CT Grade teachers who have completed 10 years of service on 1-1-1986 or on any date prior to it or who may complete 10 years of service on any date thereafter shall be treated to have been appointed in LT Grade on substantive basis from 1-1-1986 or from the date they complete 10 years of service ,as the case may be.
14. This Government order was in the teeth of Section 16 of Secondary Education Service Selection Board Act, 1982 inasmuch as any appointment on the post of Assistant teacher in a recognized Intermediate College (except minority institution) has to be made in accordance with the said Act of 1982. The section further declares that any appointment made dehors the Act of 1982 would be void. There being no corresponding change in the provisions of the 1982 Act the Government order is liable to be struck down.
15. At this stage it is worthwhile to refer to the judgment of this Court as the legal proposition laid therein would be squarely applicable in the facts of the present case also; namely Narendra Kumar Singh and Ors. v. State of U.P. and Ors. Writ Petition No. 7529 of 2004 decided on 19-7-2005 wherein this Court has held as follows:
The issue of inter- se seniority and the claim of promotion will arise only when the promotion can be legally made. Regulation 7(2)(a) was amended vide notification dated 26-2-2003. It however can apply only to the minority institutions, which are exempted from the provisions of U.P. Secondary Education and Selection Board Act, 1982. After the enforcement of the Act of 1982. the appointment by direct recruitment and promotion can only be made in any recognized and aided educational institution imparting secondary education. under the provisions of the U.P. Secondary Education Selection Board Act. 1982 and Rules and Regulations made under it. Section 16 of the Act of 1982 has not been amended so far, nor there is anything in the Rules of 1998 made under the Act of 1982 permitting the committee of management to promote the teachers of the primary sections. The amendment of Regulation 7(2)(a), therefore, does not give any right to the petitioners in either of the writ petitions to claim promotions and salary on the promoted post. The Committee of management did not have a authority promote the petitioners and thus the District Inspector of Schools Moradabad has rightly cancelled his orders if approval passed without any authority in law.
Both the writ petitions are consequently dismissed.
16. Reference may also be had to the judgment of the Supreme Court in the case of Om Prakash Rana v. Udai Pratap wherein the Hon. Supreme Court has held that after the enforcement of U.P. Act No. 5 of 1982 appointments in recognized Intermediate institution have necessarily to be made in accordance with Act of 1982 only.
17. Under Section 33-D as it stands today a person can be appointed in LT Grade only on completing 10 years of service in CT Grade The provision of Selection Boards Act, 1982 have over- riding effect in case of conflict between the provision of U.P. Intermediate Education Act, which includes Section 9(4) of U.P. Intermediate Education Act where under the State Government has power to issue direction in certain situation.
18. Consequently the Government order dated 24-5-2004 which is the sheet anchor of the petitioner claiming for absorption as LT. Grade teacher on completing five years of service as C.T. Grade teacher run contrary to the provision of Section 33-D of the Commission’s Act and, therefore is inoperative to that extent.
19. The Government order can be saved by reading down the same so as to mean that a teacher on completing five years of service would be entitled to salary equivalent to LT Grade only and such grant of salary in LT Grade cannot be equated to the appointment in LT Grade.
20. In view of the aforesaid legal conclusion arrived at the Government order dated 24-5-2004 cannot confer any status of L.T. Grade teacher upon the petitioner. He can be treated to have been conferred status of L.T. Grade teacher only on completing ten years of service in C.T. Grade as per the provision of Section 33-D of U.P. Secondary Education Service Selection Board’s Act, 1982. Since admittedly, petitioner has been appointed as C.T. Grade teacher on 23-2-1986 he would be entitled to be treated as L.T. Grade teacher under Section 33-D only with effect from 22-2-1996 and not any date prior to the said date.
21. The appointment of respondent No. 4 on substantive basis as L.T. Grade teacher with effect from 6-4-1991 is not disputed and, is prior in point of time.
22. Accordingly it is held that the petitioner cannot claim seniority over respondent No. 4 in any manner. Petitioner is not entitled any relief. Writ petition lacks merit and is accordingly dismissed.