JUDGMENT
R.B. Misra, J.
1. Heard Sri C.K. Rai, learned counsel for the petitioner, Sri Raj Kumar learned standing counsel for the State and Sri Manish Goyal, learned counsel for the respondent No. 3.
2. In this petition, the prayer has been made to quash the order dated 21.2.1990 (Annexure-6 to the writ petition) whereby the D.I.O.S., Ballia, has declared Sri Kapil Dev Upadhaya as senior to the respondent No. 4 Shri Sambhu Nath Shukla, and the petitioner Sri Suresh Dubey. According to the petitioner he was appointed as Assistant Teacher in Laxmi Rajdevi Intermediate College, Ballia (in short called the ‘college’) prior to the respondent and got approval on 28.10.1970 in respect of the petitioner and respondent Nos. 3 and 4 and D.I.O.S., Ballia, declaring respondent Nos. 3 and 4 senior to the petitioner by virtue of their age Is illegal and the decision to this effect taken by the D.I.O.S., Ballia, on 21.2.1990 is erroneous and was challenged before this Court and this Court was pleased to pass an order dated 10.4.1990 staying the operation of the Impugned order dated 21.2.1990. According to the standing counsel, Regulation 3 (1) (b), Chapter II, Regulations under Intermediate Education Act provides as below :
“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) ………………………………..
(b) Seniority of teacher 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 :
3. It is clear that the committee of management of every institution shall prepare the seniority list in respect of every teacher where the teachers shall be declared senior in a grade on the basis of their substantive appointment and if two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age. It has been contended by Sri Manish Goyal, learned counsel for the respondent No. 3 that the approval of petitioner as well as respondent Nos. 3 and 4 on the substantive post was made on 28.10.1970, however, the age of Suresh Dubey, the petitioner. Sri Kapil Dev Upadhayay respondent No. 3 and Sri Sambhu Nath Shukla, respondent No. 4 are 4.7.1941, 31.1.1934 and 1.9.1938 and treating the same date of substantive appointment as 28.10.1970 on the basis of the age the respondent No. 3 was rightly declared as senior by the impugned order dated 21.2.1990 in view of Regulation 3 (1) (b) of Chapter II of Regulation under Intermediate Education Act, 1921. Sri Manish Goyal, learned counsel for the respondent No. 3 has referred and relied upon Smt. Omi Bala Nigam v. Regional Inspectress of Girls Schools, Jhansi Region, Jhansi and Ors., 1986 UPLBEC 69, where it was held that if date of approval Is the same among the teachers to a particular cadre shall be taken to be the date of substantive appointment even if irrespective of the fact the teacher was appointed prior to such date of approval. In this respect it is necessary to mention here paragraphs 8 and 9 of the aforesaid judgment :
“8. After hearing counsel for the parties, we find that the committee of management had considered the entire circumstance and found that the petitioner was senior to respondent No. 4. In arriving at that conclusion no error has been committed which required interference at the appellate stage. The committee of management had taken into consideration the aforesaid two dates. The first being subsequent to the other of the petitioner and respondent No. 4 of joining services. But on the basis of Clause (b) of Regulation 3 of Chapter II, it was found by the committee of management that since the petitioner was older in age, she was to be treated as senior to respondent No. 4. We find that in both the cases appointment letters were issued on the same date. Appointment letters clearly Indicated that the service could be joined either on 1.7.1964 or immediately thereafter. It did not mention that the petitioner was required to join on 1.7.1964 itself. It was on account of this fact that the petitioner Joined on 6.7.1964. It appears to us that merely because the petitioner joined the service on 6.7.1964 she would not loose her right of seniority, particularly when the date of approval in both the events was the same, i.e., 15.9.1964. Joining of service had to be considered in the light of the approval also.
9. The date of substantive appointment spoken of in clause (b) of Regulation 3 of Chapter II of the Act should be construed as the date after approval has been accorded by the District Inspector of Schools under Section 16G. Inasmuch as requirement is to obtain prior approval to the appointment, a date on which a teacher joins before approval would not be considered a date of substantive appointment. As stated above, approval is a condition precedent to appointment. Without approval, there could be no appointment and joining of service would be in contravention of the provisions of the Act and Regulations framed thereunder. Accordingly, seniority could not be counted with effect from that date.”
4. In Ishwar Sinvh Tome v. District Inspector of Schools, Meerut and Ors., 1993 (3) AWC 1752, where in paragraphs 16, 18 and 19 this Court has observed as below :
“16. What then should be the basis of determining seniority when the petitioner and respondent Nos. 2 and 3 are appointed in substantive service as lecturer of the college on the same date. Admittedly, after the order of approval was passed by the Inspector on 3rd November, 1970, no appointment order was issued for appointing the petitioner. Therefore, it has to be treated that the petitioner and respondent Nos. 2 and 3 were appointed after 3rd November, 1970 on the same date. In the Regulations, as they stood prior to 1976, there was no guideline for determining seniority in case where appointment of more than one teacher on substantive basis is made on the same date. In the circumstances, resort will have to be taken to the general principles which should normally apply for determining seniority in such cases. First principle is that the seniority may be determined on the basis of the order in which the names of the petitioner and respondent Nos. 2 and 3 appear in the order of the Inspector granting approval for their appointment. In the order dated 3rd November, 1970, petitioner’s name appears at serial No. 2 whereas the name of respondent No. 2 appears at serial No. 1. On this basis also, petitioner will be junior to respondent No. 2 but shall be senior to respondent No. 3 whose name appears in the order at serial No. 16. The other alternative is to take guidance from Regulation 3 (1) (b) of Chapter II which has been inserted in the year 1976. The amendments made in 1976 may or may not apply to this case but the same can certainly be treated by way of explanation to the Rules of seniority which were in existence prior to the enforcement of Rule 3 (1) (b) of Chapter II. On that basis too, the petitioner, being youngest in age to both respondent Nos. 2 and 3 is certainly Junior to them. Even in the absence of Rule 3 (1) (b) of Chapter II of the Regulations the accepted practice in service jurisprudence is that when two or more persons are appointed on the same date oldest amongst them is treated seniormost and youngest is treated as junior most.
18. It is, therefore, futile for the petitioner to argue that Rule 3 (1) (b) of Chapter II introduced on 7th July, 1976, in the Regulations cannot be applied for determining seniority of the petitioner and respondent Nos. 2 and 3. Even without taking the aid of Rule 3(1) (b), respondent No. 2 is to be treated senior to the petitioner for the reason, firstly that his name occurs in the order of the Inspector dated 3.11.1970 prior to the name of the petitioner. It is wrong to say that the age factor became relevant for determining seniority for the first time with the introduction of Rule 3 (1) (b) of Chapter II in the Regulations. Age has always been considered as relevant factor for determining seniority when every other things, namely, the date of appointment, date of Joining were the same.
19. It does not at all stand to reason to accept that a teacher appointed in the same grade on the same date should be treated junior to the other person who is junior to him in age specially when the appointment is made on different posts and there is no common merit list between them. In the present case petitioner and respondent Nos. 2 and 3 were appointed in lecturer’s grade, while petitioner was appointed as Chemistry lecturer, respondent No. 2 was appointed as Hindi lecturer and respondent No. 3 was appointed as Maths lecturer. Thus there was no common merit list amongst the petitioner and respondent Nos. 2 and 3 as they are appointed on different posts of lecturer of Chemistry, Hindi and Maths respectively. Since the petitioner’s contention regarding his seniority over respondent Nos. 2 and 3 on the basis of continuous officiation prior to 3rd November, 1970, has already been rejected, it is not possible under the facts and circumstances of the case to hold that the petitioner is senior to respondent Nos. 2 and 3. In my opinion, the Inspector has rightly held respondent Nos. 2 and 3 as senior to the petitioner.”
5. In Bahadur Singh Gaur v. D.I.O.S., Kanpur and Ors., 1995 All LJ 1292, where earlier two judgments were referred and relied upon and similar view was reiterated Indicating that the approval was given by the D.I.O.S. determining seniority, issuance of appointment letter or joining date by the claimant teacher and the approval date of the appointment to the substantive post is to be taken seniority if the approval date is the same then the seniority is to be determined on the basis of age irrespective of the fact that particular teacher was allowed and started working as lecturer before joining such persons whose date of birth approved on substantive post is elder in age. The relevant paragraphs 4, 8, 9, 10, 11 and 15 are reproduced below :
“4. There is no dispute that the seniority shall be determined on basis of the grant of approval of the selection by the District Inspector of Schools. The limited question remains to be decided as to whether a teacher who is issued appointment letter subsequently and joined later on and another teacher who is permitted to function on the date of approval even without issuing any appointment letter, will be treated senior to the person who Joins the institution later on. It is relevant to refer to Clause (b) of Sub-section (1) of Section 16F of U.P. Intermediate Education Act (prior to the amendment in the year 1975) which reads as under :
“16F. (1) Subject to the provisions hereinafter specified, no person shall be appointed as a Principal, Headmaster or the teacher in a recognised institution unless he:
(a) possesses the prescribed qualifications or has been exempted under Sub-section (1) of Section 16E.
(b) h a s been recommended by
selection committee
constituted under Sub-section (2) or (3),
as the case may be of
the said section and
approved, in the case
of Principal or
Headmaster by the
Regional Deputy
Director, Education,
and in the case of a
teacher by the
Inspector……………..”
8. The date of birth of the petitioner is 1.1.1937 and date of birth of respondent No. 3 is 26.9.1945. Admitted, the petitioner is senior to respondent No. 3. The relevant date is the date of approval of appointment by the District Inspector of Schools. The date of Joining is not the determining factor for deciding the seniority unless it is shown that the candidate did not join the institution within the time prescribed for joining as given in the appointment letter. The committee of management under Regulation 16 is bound to issue appointment letter within two weeks of the receipt of approval to selected candidates for appointment.
9. In case the date of joining is relevant date it will be on the discretion of the committee of management to issue an appointment letter to some candidate earlier and to some other candidate later on with the result, to whom the appointment letter has been issued earlier will start functioning and the other may join later on and will become junior to the other candidate though the date of selection and the date of approval is the same. So far as the time prescribed under Regulation 16 is concerned, the candidate who is living in nearest place may come and join the institution earlier but the candidate who is living at distant place may not come and join the institution immediately.
10. Learned counsel for the respondent urged that he has started functioning on 14th August, 1973, i.e., the date on which approval was granted and, therefore, he was entitled to function from the said date even though the letter of appointment was issued to him subsequently, i.e., on 22nd August, 1973, as the same was ministerial act. It may be that the appointment letter was issued subsequently and the candidate before issuance of the appointment letter himself presents before the committee of management on coming to know that the approval has been granted and the committee of management permits him to function from the date, the approval has been granted but it will not deprive the right of another candidate merely because the other candidate was not Issued appointment letter or joined subsequently within the prescribed time. The mere fact that respondent No. 3 joined the institution on 22nd August, 1973, will not confer any right of seniority against the petitioner.
11. In Prabhu Narain Singh v. Deputy Director of Education, Varanasi, 1977 ALR 391, it has been held that a person does not acquire the status of a teacher unless the approval of his appointment is granted by the District Inspector of Schools and the mere fact that he was working in the institution will not confer the status of a teacher.
15. In view of the discussions made above, the Writ Petition No. 318 of 1993 is hereby allowed. The order passed by the District
Inspector of Schools dated 30th October, 1992, is quashed.”
6. Heard learned counsel for the
parties, I find even undisputedly the
petitioner is younger in age from
respondent No. 4 and the date of
substantive post 28.10.1970, i.e., the
condition, in view of the above Rule 3
(1) (b) of Regulation 3 Chapter III of U.P. Intermediate Education Act. The
respondent No. 3 has rightly been
declared as a senior to the petitioner
by the D.I.O.S., Ballia, in its
impugned order dated 21.2.1990. I do
not find any illegality or impropriety in
the order therefore, the petitioner
cannot be treated as senior to
respondent No. 3 and the respondent
No. 3 is the seniormost teacher. In the
present context, the writ petition is
dismissed.