Vimlesh Chandra Aghnihotri vs State of U.P. and Others

The present special appeal has been filed against the judgment and order dated 7.2.2011 passed by the learned Single Judge wherein the writ petition preferred by the Appellant has been dismissed.

We have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare on behalf of the Appellant, Sri V.K. Singh, learned Counsel and Sri Anshu Chaudhary on behalf of Respondent No. 5 and the learned Standing Counsel who represents Respondent Nos. 1 to 3 and have perused the impugned judgment and order dated 7th February, 2011 passed by the learned Single Judge giving rise to the present appeal, the grounds taken in the memo of appeal and the documents filed along with it.

Before the learned Single Judge the challenge to the order dated 14.10.2009, filed as Annexure No. 3 to the writ petition, was made whereby the Respondent No. 5 was declared senior to the present Appellant on the post of Lecturer.

Briefly stated the facts giving rise to the present appeal are as follows:

According to the Appellant he was appointed on ad hoc basis as a LT Grade Teacher on 20th September, 1975 and was confirmed on the said post in the year 1977. He was given ad hoc promotion on the basis of the resolution of the Committee of Management dated 7.11.1983 which was accorded approval by the District Inspector of Schools. The Respondent No. 5 was appointed as a Reserve Pool teacher on 30th June, 1986. The Appellant was regularised w.e.f. 6.6.1991 on the post of Lecturer. The case of the Appellant as set up before the learned Single Judge was that the seniority list of Lecturer was prepared in the year 1992 and the Appellant was shown senior to Respondent No. 5. Again another seniority list was prepared in the year 1996 and 2002-03 wherein the same position continued, therefore, at this belated stage in the year 2009 seniority list could not have been redrawn and the Respondent No. 5 could not have been shown as senior to the Appellant. The learned Single Judge after taking into consideration the alleged three seniority lists, claimed to have been prepared long back, came to the conclusion that in all the alleged seniority lists the signature of Respondent No. 5 is missing and, therefore, it cannot be said that the seniority list which is alleged to have been prepared attained finality and could, therefore, be reopened at this stage.

So far as the seniority of Respondent No. 5 is concerned the learned Single Judge came to the conclusion that Respondent No. 5 having been appointed as Lecturer in July, 1986 and the Appellant having been confirmed on the post of Lecturer in the year 1991, the Respondent No. 5 was senior to the Appellant. The learned Single Judge, therefore, had dismissed the writ petition.

Sri Ashok Khare, learned Senior Counsel, submitted that the Appellant was promoted on the post of Lecturer in the year 1983, which was to be filled up by way of promotion as it fell within the 50% promotional quota and merely because the Appellant has been appointed as ad hoc lecturer which was later regularised in the year 1991, cannot be taken adverse to the Appellant as he would be treated as confirmed Lecturer in 1985 itself. The submission is wholly misconceived. It is noteworthy to mention here that ad hoc promotion of the Appellant on the post of Lecturer was made in the year 1983, which were regularised in June, 1991. However, he did not question the same nor put any claim before the authorities for treating him Lecturer on the substantive post from the year 1983. Now, in the year 2009 it is too late for the Appellant to claim to have been appointed on substantive post of Lecturer in the year 1983. We, therefore, do not find any illegality in the impugned judgment and order passed by the learned Single Judge in so far as it relates to seniority of the Appellant vis-a-vis Respondent No. 5.

So far as the question of reopening of the seniority list after a long period of 17 years is concerned suffice is to mention that in the alleged seniority list set up by the Appellant, the signature of the Respondent No. 5 is missing, which shows that the Respondent No. 5 was not informed about the determination of the seniority list. Even otherwise, it appears that there was correspondence between the Committee of Management and the District Inspector of Schools regarding finalization of the seniority list in the year 2005. If that be so, it is an ample proof that the alleged seniority list published in the years 1992, 1996 and 2002-03 had not been finalized In view of the aforementioned discussions, we are of the considered opinion that the impugned judgment and order passed by the learned Single Judge does not suffer from any legal infirmity. The appeal fails and is dismissed.