Deen Bandhu Singh Rawat vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. C.K. Sharma, learned counsel for the appellant, Mr. S.S. Chaudhary, learned Brief Holder for the State of Uttarakhand, and Mr. Navnish Negi, learned counsel for respondent no.5.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No.427 of 2011 dated 22.05.2013. The appellant herein filed the said writ petition seeking a writ of certiorari to quash the orders dated 07.08.2010 and 03.02.2011; and a writ of mandamus commanding the 3rd respondent to allow him to work in the post of the Principal of the College.

Facts, to the limited extent necessary, are that both the petitioner and 5th respondent were appointed as ad-hoc lecturers by order dated 26.09.1991. While the appellant writ petitioner joined duty as an ad-hoc lecturer on 30.09.1991, the 5th respondent joined a day later on 1.10.1991. Both the appellant and the 5th respondent were regularized as lecturers on the same day i.e. 27.07.1998. Contending that he was senior to the 5th respondent, since he had joined duty as an ad-hoc lecturer, a day earlier than the 5th respondent, the appellant invoked the jurisdiction of this Court.

The learned Single Judge rejected his contention and held that, in terms of Rule 33-C (3)(b), the 5th respondent, being older in age than the petitioner, was entitled to be treated as senior to him. Aggrieved thereby, the present appeal.

The submission of Mr. C.K. Sharma, learned counsel appearing on behalf of the appellant writ petitioner, is that, while both the appellant writ petitioner and the 5th respondent were no doubt appointed on the same day i.e. 26.09.1991, the fact remained that the appellant-writ petitioner had joined duty on 30.09.1991, a day earlier to the 5th respondent who joined duty only on 01.10.1991; and since the appellant-writ petitioner had joined duty a day before the 5th respondent, it is the appellant who should be held to be senior to the 5th respondent, and not the other way.

This contention, urged on behalf of the appellant-writ petitioner, by Mr. C.K. Sharma, learned counsel, necessitates rejection on two counts. Firstly, in cases where the order of appointment itself stipulates a particular period before which an employee is required to join duty, and the employee does not join by that date, the fortutious circumstance, of the date of joining of an employee, cannot result in his being treated as senior to another who was also appointed on the same day. In the present case, the order of appointment dated 26.09.1991 stipulated that the selected candidates should join duty on or before 4.11.1991, and since both the appellant and the 5th respondent joined duty well before the cut off date of 04.11.1991, their seniority can only be reckoned treating them as having been appointed on the same day.

Further Rule 33(C) of the Uttar Pradesh Secondary Education Service Commission (Amendment Act), 1998, which relates to regularization of certain appointments, stipulates, in Sub Section 3(a) thereof, that the names of teachers shall be recommended for substantive appointment in the order of seniority as determined from the date of their appointment. The word used, in Clause (a) of Section 33-C (3), is "appointment" and not "joining". Consequently, both the appellant and

5 th respondent, having been appointed on the same day i.e. 26.09.1991, would be entitled to have their inter-se seniority determined only in terms of Clause (b) of Section 33-C (3) which stipulates that, if two or more such teachers are appointed on the same date, the teacher, who is older in age, shall be recommended first. It is not in dispute that the 5th respondent is older in age than the appellant writ petitioner. Consequently, in terms of Section 33-C (3)(b), it is the 5th respondent who has rightly been reckoned as senior to the appellant writ petitioner.

We see no error in the order passed by the learned Single Judge holding that the 5th respondent is senior to the appellant herein. Mr. C.K. Sharma, learned counsel appearing on behalf of the appellant, would submit that the direction issued by the learned Single Judge in the order under appeal, that appropriate action should be taken against the petitioner, should at least be deleted.

The learned Single Judge has, in the order under appeal, observed that there was prima-facie evidence to the effect that the petitioner had deliberately kept the educational authorities in dark about the interim order of the High Court; the educational authorities were at liberty to initiate proceedings against the petitioner; and, in case they find that there was no such order as claimed by the petitioner, appropriate action, in accordance with law, be taken against the petitioner. As a copy of the interim order passed by the Allahabad High Court has now been filed in appeal, we are satisfied that, while the learned Single Judge had rightly dismissed the writ petition, the observations made thereafter necessitates being set aside. Subject to the observations, in para 9 of the order under appeal having been set aside, the appeal fails and is, accordingly, dismissed. No costs.