PETITIONER:
SUDAMA SINGH
Vs.
RESPONDENT:
NATH SARAN SINGH & ORS.
DATE OF JUDGMENT13/11/1987
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SINGH, K.N. (J)
CITATION:
1988 AIR 84 1988 SCR (1)1049
1988 SCC (1) 57 JT 1987 (4) 338
1987 SCALE (2)1050
ACT:
Uttar Pradesh Intermediate Education Act, 1921: s. 16
GG/Regulations, Chapter II, Regulation 3(1)(b)-Seniority-Ad
hoc Lecturers deemed to be appointed as such on substantive
basis from same date-Held seniority to be determined on the
basis of age.
HEADNOTE:
%
large number of teachers working in the educational
institutions governed by the Uttar Pradesh Intermediate
Education Act, 1921, were appointed or promoted on an ad hoc
basis. The question of regularisation of their services
engaged the attention of the State Government and it was
decided to amend the Act by an Ordinance. Section 16-GG was
accordingly introduced on April, 21, 1977. The Ordinance was
replaced by the Uttar Pradesh Education Laws Amendment Act,
1977.
The appellant and respondent No. 1 were both appionted
as Assistant Teachers in an Intermediate College with effect
from July 8, 1967. Respondent No. 1 was promoted by the
management as Lecturer in Hindi on an ad hoc basis with
effect from March 1, 1976. The District Inspector of Schools
approved of it on October 5, 1976. Subsequently on November
20, 1976 he again made an order promoting both the appellant
and respondent No. 1 as Lecturers in Civics and Hindi
respectively on an ad hoc basis. Their services came to be
regularised by virtue of the new provision. s. 16 GG, with
effect from April 21, 1977. After their services were so
regularised, dispute arose regarding the seniority.
While the first respondent claimed seniority over the
appellant on the basis of his appointment/promotion made on
March 1, 1976, the appellant claimed that he being older
than the first respondent was entitled to be treated as
senior by virtue of the second part of clause (b) of
regulation 3(1) of the Regulations framed under the Act.
The District Inspector of Schools came to the
conclusion that the fortuitous appointment/promotion of the
first respondent on March 1, 1976 could not have any effect
on the question of seniority between
1050
them, and held that since the appellant and the first
respondent had been accepted to be promoted in substantive
capacity on the same day, and since the appellant was older
than respondent No. 1, the appellant should be considered as
senior by virtue of the second sentence in clause (b) of
regulation 3(1) of the Regulations.
Aggrieved by the aforesaid decision the first
respondent filed a writ petition before the High Court,
which was allowed, the order of the Disctrict Inspector of
Schools was set aside and it was declared that the first
respondent was senior to the appellant on the ground that
the first respondent had been promoted to the post of
lecturer on March 1, 1976, pursuant to certain orders issued
under the Act which continued to be in operation until
section 16GG was brought into force.
Allowing the appeal by Special Leave.
^
HELD: 1. The appellant is senior to the first
respondent. [1056E]
2.1 What is crucial for the purposes of the case is the
date from which the appellant and the first respondent
should be deemed to be holding their posts in substantive
capacity. Section 16GG of the Act clearly lays down that any
teacher whose services are regularised should be deemed to
have been appointed in a substantive capacity with effect
from the date of its commencement. It does any say that the
services of such teachers should be deemed to have been
regularised with effect from the date from which they were
continuously officiating in the post in question. The date
of commencement of the section being April, 21, 1977 both
the appellant and the first respondent, who were by then
holding the posts of Lecturers on an ad hoc basis are to be
deemed to have been appointed in a substantive capacity on
the same date, that is, April 21, 1977. [1055G-H; 1056A]
2.2 On the question of seniority, cl. (b) of Regulation
(3)(1) of the Regulations provides that the seniority of
teachers in a grade shall be determined on the basis of
their substantive appointment in that grade and if two or
more teachers were so appointed on the same date seniorty
should be determined on the basis of age. [1056C]
In the instant case, the appellant is older in age than
the first respondent. He should, therefore, be treated as
senior to the first respondent by reason of the second
sentence in cl. (b) of Regulations 3(1).[1056E-F]
1051
3. The High Court omitted to consider the effect on the
words 'with effect from the date of the commencement of this
section' in subs. (1) of s. 16GG of the Act and also sub-s.
(2) of that section which provides that every teacher deemed
to have been appointed in a substantive capacity under sub-
s.(1) should be deemed to be on probation from the date of
the commencement of the section. [1056B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3004 of
1987.
From the Judgment and Order dated 18.2.1986 of the
Allahabad High Court in C.M.W.A. No. 9895 of 1985.
R.K. Jain and Mrs. Shobha Dixit for the Appellant.
B.D. Agarwal, L.R. Singh and Pradeep Misra for the
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. Special leave granted. The appeal is
heard.
The appellant, Sudama Singh, and Respondent No. 1, Nath
Saran Singh, were both appointed as Assistant Teachers in
L.T. Grade in the Gandhi Inter College, Chilkahar, District
Ballia with effect from the same date, i.e., July 8, 1967
and were placed on probation for one year. Respondent No. 1
was promoted as Lecturer in Hindi on ad hoc basis with
effect from March 1, 1976 by the Committee of Management and
this action of the Committee of Management received the
approval of the District Inspector of Schools on October 5,
1976. On November 20, 1976 the District Inspector of Schools
again made an order promoting both the appellant and
Respondent No. 1 as Lecturers in Civics and Hindi
respectively. The promotions, referred to above, had been
made on an ad hoc basis. Likewise a large number of
teachers, who were working in the educational institutions
which were governed by the Uttar Pradesh Intermediate
Education Act, 1921 (hereinafter referred to as ‘the Act’)
had been appointed or promoted on an ad hoc basis and the
question of regularisation of their services was engaging
the attention of the State Government during the relevant
time. As a consequence of the decision of the State
Government an ordinance entitled the Uttar Pradesh Education
Laws Amendment Ordinance, 1977 (U.P. Ordinance No. 5 of
1977) was pro
1052
mulgated on April 21, 1977. By the said Ordinance a large
number of provisions in four of the laws in force in the
State of Uttar Pradesh concerning education were amended.
One of the laws which was amended by the said Ordinance was
the Act. By the Ordinance a new provision, namely, section
16GG was introduced into the Act. The Ordinance was replaced
by the Uttar Pradesh Education Laws Amendment Act, 1977.
Section 16GG, which was introduced into the Act by the
Ordinance, was allowed to remain in operation by the Uttar
Pradesh Education Laws Amendment Act, 1977. The relevant
part of section 16GG of the Act reads as follows:-
“16GG, Regularization of appointment of ad hoc
teachers-(1) Notwithstanding anything contained in
Sections 16E, 16F and 16FF every teacher of an
institution appointed between August 18, 1975 and
September 30, 1976 (both dates inclusive) on ad
hoc basis against a clear vacancy and possessing
prescribed qualifications or having been exempted
from such qualifications in accordance with the
provisions of this Act, shall, with effect from
the date of commencement of this Section, be
deemed to have been appointed in a substantive
capacity, provided such teacher has been
continuously serving the institution from the date
of his appointment up to the commencement of this
section.
………………………………………….
(2) Every teacher deemed to have been
appointed in a substantive capacity under sub-
section (1) shall be deemed to be on probation
from the date of commencement of this section.
…………………………………………..
(underlining by us)
Section 16GG of the Act, which is reproduced above,
provided that notwithstanding anything contained in sections
16E, 16F and 16FF, every teacher of an institution appointed
between August 18, 1975 and September 30, 1976 (both dates
inclusive) on ad hoc basis against a clear vacancy and
possessing prescribed qualifications or having been exempted
from such qualifications in accordance with the provisions
of the Act, should, with effect from the date of
commencement of the said section, be deemed to have been
appointed in a substantive capacity, provided such teacher
has been continuously serving the institution from the date
of his appointment up to the
1053
commencement of the said section. Sub-section (2) of section
16GG of the Act provided that every teacher deemed to have
been appointed in a substantive capacity under sub-section
(1) should be deemed to be on probation from the date of
commencement of the section.
The services of the appellant and the 1st respondent,
who were working as teachers on ad hoc basis during the
relevant period, also came to be regularised by virtue of
section 16GG of the Act. After their services were so
regularised dispute arose regarding the seniority between
them. The question of seniority between two or more teachers
working in an institution governed by the Act is governed by
regulation 3 in Chapter II of the Regulations made under the
Act, the relevant part of which reads thus:-
“3(1). The Committee of Management of every
institution shall cause a seniority list of
teachers to be prepared in accordance with the
following provisions:-
(a) The seniority list shall be prepared
separately for each grade of teachers whether
permanent or temporary, on any substantive post;
(b) Seniority of teachers in a grade shall be
determined on the basis of their substantive
appointment in that grade. If two or more teachers
were so appointed on the same date, seniority
shall be determined on the basis of age;
………………………… “
While the 1st respondent claimed seniority over the
appellant on the basis of his appointment or promotion made
on March 1, 1976, the appellant claimed that he being older
than the 1st respondent was entitled to be treated as senior
to the 1st respondent by virtue of the second part of clause
(b) of regulation 3(1) of the Regulations framed under the
Act which provided that if two or more teachers were so
appointed on the same date, seniority should be determined
on the basis of age.
The above dispute regarding the seniority between the
appellant and the 1st respondent was first considered by the
District Inspector of Schools, Ballia. After considering the
history of the services of these two teachers, the District
Inspector of Schools came to the conclusion that the
fortuitous appointment or promotion of the 1st respondent on
1.3.1976 could not have any effect on the question of
seniority bet-
1054
ween the appellant and the 1st respondent. He further
observed that the promotions of the appellant and the 1st
respondent had actually been made as per his letter dated
November 20, 1976 which read as under:-
“Office of the District
Inspector of Schools, Ballia
Order No. 15993-94/76/76
Date 20.11.76.
PROMOTION
Following Assistant Teachers of L.T. Grade
are promoted to the Lecturer’s Grade on the posts
mentioned against their names. Promotions have
been made under Para 5 of Regulations No.
Secondary/5183/15/7/76/2(18)75 Lucknow date.
7.7.76 made for the appointment of Principals for
Govt. aided Private Secondary Schools.
____________________________________________________________
Sl Teacher’s Pay PromotionPost Remarks
No. Name Scale in the Lecturer
pay scale
____________________________________________________________
1. Sh. Nath L.T. Rs.400-750Lecturer On the post
Saran Singh Rs.300-550 Hindi vacated by Order
No. Ordinance
1849/651 dt.
7.2.76 issued
by Director
of Education,
U.P.,
Allahabad
2. Sh. Sudama L.T. Rs.400-750Lecturer
Singh Rs.300-550 Civics
Sd/-Illegible
Tulsi Ram Jatar
D.I.O.S.Ballia”
He further observed that since the appellant and the
1st respondent had been accepted ‘to be promoted in
substantive capacity vide letter dated 20.11.1976 issued by
the District Inspector of
1055
Schools, i.e., on the same date and since the appellant,
whose date of birth was 1.4.1937 was older than Respondent
No. 1, whose date of birth was 1.7.1942, the appellant
should be considered as senior to the 1st respondent by
virtue of the second sentence in clause (b) of regulation
3(1) of the Regulations made under the Act. The above
decision of the District Inspector of Schools was conveyed
to the parties by his Letter No. 2858-60/85-86 dated
13.6.1985. Aggrieved by the decision of the District
Inspector of Schools, the 1st respondent filed a writ
petition in Civil Miscellaneous Writ Petition No. 9895 of
1985 before the High Court of Allahabad. The learned Judge,
who heard the writ petition, allowed the writ petition and
set aside the order of the District Inspector of Schools and
declared that the 1st respondent was senior to the appellant
on the ground that the 1st respondent had been promoted to
the post of Lecturer on March 1, 1976 pursuant to certain
orders which had been issued under the Act and which
continued to be in operation until section 16GG brought into
force. This appeal by special leave is filed by the
appellant against the decision of the High Court.
It is not disputed that until section 16GG of the Act
came into effect the appellant and the 1st respondent were
both functioning on an ad hoc basis as teachers and it was
only by virtue of section 16GG of the Act that they came to
be appointed as teachers in substantive capacity. Section
16GG of the Act came into effect from 21.4.1977. It provided
that the teachers who were working on an ad hoc basis
between August 18, 1975 and September 30, 1976 (both dates
inclusive) against clear vacancies and possessing prescribed
qualifications should ‘with effect from the date of
commencement of this section’ be deemed to have been
appointed in a substantive capacity provided such teacher
had been continuously serving the institution from the date
of his appointment upto the commencement of this section.
There is no dispute that both the appellant and the 1st
respondent satisfied the conditions prescribed by section
16GG of the Act for regularising their appointment in a
substantive capacity but what is crucial for purposes of
this case is the date from which the appellant and the 1st
respondent should be deemed to be holding their posts in a
substantive capacity. Section 16GG of the Act clearly lays
down that any teacher whose services are regularised should
be deemed to have been appointed in a substantive capacity
with effect from the date of the commencement of that
section. It does not say that the services of such teachers
should be deemed to have been regularised with effect from
the date from which they were continuously officiating in
the posts in question. The date of commencement of the
section in the instant case being 21.4.1977 it
1056
should be held that both the appellant and the 1st
respondent, who were by then holding the posts of Lecturers
on an ad hoc basis were appointed in a substantive capacity
of the same date, i.e., 21.4.1977. The High Court omitted to
consider the effect of the words ‘with effect from the date
of the commencement of this section’ in sub-section (1) of
section 16GG of the Act and also sub-section (2) of that
section which provided that every teacher deemed to have
been appointed in a substantive capacity under sub-section
(1) should be deemed to be on probation from the date of the
commencement of the section. On the question of seniority
between the appellant and the 1st respondent clause (b) of
regulation 3(1) of the Regulations made under the Act, as
already stated, provides that the seniority of teachers in a
grade shall be determined on the basis of their substantive
appointment in that grade and if two or more teachers were
so appointed on the same date seniority should be determined
on the basis of age. Since it is admitted that both the
appellant and the 1st respondent had been appointed in a
substantive capacity by virtue of section 16GG of the Act
they must be deemed to be holding their respective posts in
the substantive capacity only from 21.4.1977 on which date
section 16GG of the Act came into force. Both of them should
be deemed to be on probation from 21.4.1977 [Vide section
16GG(2)]. Any earlier appointment or promotion on an ad hoc
basis has no bearing on the question of seniority. The
appellant and the 1st respondent should be deemed to have
been appointed on a substantive basis on the same date for
purpose of seniority and, therefore, the appellant, who is
older than the 1st respondent, should be treated as senior
to the 1st respondent by reason of the second sentence in
clause (b) of regulation 3(1) of the Regulations framed
under the Act. We are, therefore, of the view that the High
Court erred in declaring that the 1st respondent was senior
to the appellant on the basis of the fortuitous promotion of
the 1st respondent said to have been made on March 1, 1976.
The Judgment of the High Court is, therefore, liable to be
set aside and the decision of the District Inspector of
Schools has to be restored.
We accordingly allow the appeal, set aside the judgment
of the High Court and make a declaration that the appellant
is senior to the 1st respondent. The appeal is accordingly
disposed of. No costs.
P.S.S. Appeal allowed.
1057