2001 (3) TMI 1084 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the petitioner's appointment as lecturer.
2. Seniority determination between the petitioner and respondent No. 5.
3. Validity of the petitioner's service break and its impact on seniority.
4. Legality of the Joint Director of Education's order dated 27.4.2000.

Issue-wise Detailed Analysis:

1. Legality of the Petitioner's Appointment as Lecturer:
The petitioner was appointed as a lecturer in Biology on 31.7.1970, prior to the enactment of the U.P. High Schools and Intermediate College (Payment of Salaries to the Teachers and Other Employees) Act, 1971, which came into force on 1.4.1971. At the time of his appointment, there was no requirement for post sanction under the U.P. Intermediate Education Act, 1921. The District Inspector of Schools initially declined approval on the grounds that the post was not sanctioned. However, the Deputy Director of Education later directed the payment of salary to the petitioner from 1.4.1971, indicating implicit approval of the appointment. This decision aligns with the court's consistent view that appointments, if continued for a long period, should not be disturbed on technical grounds.

2. Seniority Determination Between the Petitioner and Respondent No. 5:
Regulation 3 of Chapter II of the U.P. Intermediate Education Act stipulates that seniority is determined based on the date of substantive appointment. The petitioner was appointed on 31.7.1970, while respondent No. 5 was promoted to the post of lecturer on 1.7.1972. Therefore, the petitioner is senior to respondent No. 5. The court emphasized that the validity of the appointment cannot be questioned while determining seniority, as established in the case of Vijai Narain Sharma v. District Inspector of Schools, Etawah.

3. Validity of the Petitioner's Service Break and Its Impact on Seniority:
The petitioner took extraordinary leave from 1.9.1972 to 30.6.1973 to join another institution temporarily. The Committee of Management sanctioned this leave, and there was no provision stating that such leave would result in loss of lien on the original post. The court found that the petitioner's service break did not affect his seniority, as his appointment at the other institution was not substantive. This aligns with the principle that extraordinary leave does not break service continuity unless the new appointment is substantive.

4. Legality of the Joint Director of Education's Order Dated 27.4.2000:
The Joint Director of Education's order dated 27.4.2000, which declared respondent No. 5 senior to the petitioner, was challenged. The court found that the order was unsustainable as it incorrectly assessed the seniority based on the petitioner's service break and the initial non-sanction of the post. The court set aside the order, reaffirming the petitioner's seniority based on his substantive appointment date.

Conclusion:
The court concluded that the petitioner was legally appointed as a lecturer on 31.7.1970, and his seniority over respondent No. 5, who was promoted on 1.7.1972, remains intact. The petitioner's service break did not affect his seniority, and the Joint Director of Education's order dated 27.4.2000 was set aside. The writ petition was allowed, and the petitioner was recognized as the senior-most teacher entitled to function as the ad hoc/officiating Principal of the college.