Aloke Chakrabarti, J.
1. This writ petition was heard alongwith Civil Misc. Writ Petition No. 16333 of 1999, Daya Shanker Shukla v. District Inspector of Schools and Ors..
2. The dispute involved herein relates to seniority between the present petitioner Sri Kamla Singh and respondent No. 4 herein Sri Daya Shanker Shukla.
3. The factual background relevant for the present purpose are that Sri Kamla Singh, the petitioner had been appointed as Lecturer in Botany on 12-7-1966 and Sri Daya Shanker Shukla was initially appointed on 14-7-1966 as Lecturer in Mathematics. The District Inspector of Schools, Ballia accorded approval to the appointment of the petitioner on 12-1-1967. Appointment of Sri Shukla was accorded approval on 28-10-1966. The District Inspector of Schools on 27-6-1979 accorded approval to the appointment of Smt. Kamla Singh with effect from 12-7-1966, i.e., the date of initial appointment of the petitioner. The seniority list of institution showing the petitioner as senior to Sri Shukla was published from time to time on 17-12-1983, 1-6-1984 and 25-6-1984. Service benefites were granted to the petitioner and the respondent No. 4 treating the petitioner as senior to respondent No. 4. The respondent No. 4 raised his grievance against seniority on 16-8-1997 and again on 12-12-1997 and petitioner submitted reply to such representation. By order dated 12-1-1998 the claim regarding seniority made by respondent No. 4 had been rejected. But respondent No. 4 again made representation on 20-1-1998 to which petitioner filed reply. Impugned order dated 8/9-6-1998 was passed by the Regional Joint Director of Education holding respondent No. 4 to be senior to petitioner and thus disturbing the seniority position prevailing for a long time and therefore the petitioner filed the present writ petition.
4. In terms of the aforesaid order dated 8-6-1998 signature of respondent No. 4 was attested on 15-7-1998. A suit was also filed against the order dated 8/9-6-1998, declaring respondent No. 4, senior to the petitioner. In the said civil suit petitioner filed an injunction application and on 22-8-1998 injunction was granted. The respondent No. 4 filed miscellaneous appeal, which was rejected on 23-1-1999.
5. After the master went back to the trial Court, respondent No. 4 filed writ petition challenging the orders dated 22-8-1998 and 23-1-1999 and obtained an interim order staying operation of the orders impugned. Sri Kamla Singh filed a recall application in writ petition No. 5408 of 1999 which was dismissed on 26-2-1999. On the basis of said order, the District Inspector of Schools passed order on 11-3-1999 that Sri Shukla to work as officiating Principal and signature was attested. A further order was passed on 16-3-1999 by the District Inspector of Schools directing Manager of the institution to hand over charge to Mr. Shukla in respect of officiating Principal. Again a further order was passed on 17-3-1999 attesting the signature of petitioner, Sri Kamla Singh as officiating Principal and challenging the same, the writ petition No. 16333 of 1999 was filed.
6. Respondent Nos. 3 and 4 filed separate counter affidavits and contested, the proceeding. Learned Standing Counsel appeared for the respondent Nos. 1 and 2.
7. Preliminary objection was taken on two grounds. First objection was that an alternative remedy of appeal being available, the writ petition is not maintainable. In support of such contention reference was made to the law decided in the case of Indrasen Verma v. District Inspector of Schools, reported in (1989) 1 UPLBEC 16 and Gulab Dutt Tripathi v. Regional Deputy Director of Education, reported in (1997) 2 UPLBEC 1316. Second objection was that the petitioner being a contemner in a contempt proceeding cannot be heard as notices have been issued in the said contempt proceeding. In support of this contention reliance was placed on the judgment in the case of Dr. Madam Gopal Gupta v. Agra University, reported in AIR 1974 All. 39. Relicance was also placed on the case of Ravi S. Naik v. Union of India and Ors., reported in JT 1994(1) SC 551.
8. Learned Counsel for petitioner first replied to the said preliminary objection. It has been contended that alternative, remedy is not an absolute bar and it is the discretion of the Court as to whether the writ petition is to be entertained or not depending on facts and circumstances of the case. With regard to the case of Indrasen Verma (supra), it has been contended that the facts involved therein show that alternative remedy was already availed and therefore the writ petition was not entertained. Reliance was also placed on the judgment of Whirlpool Corporation v. Registrar of Trade Marks, reported in 1999(8) SCC 1, for showing that altertnative remedy is not an absolute bar.
9. With regard to second objection as regards right of hearing of a contemner, reference was made to the facts involved in the present proceeding and the orders passed from time to time in connected writ petitions.
10. Learned Counsel for petitioner contended on merit that though the petitioner's appointment was accorded approval initially on 12-1-1967 but by a subsequent order of the District Inspector of Schools passed on 27-6-1979 the appointment of the petitioner was approved with effect from 12-7-1966 and therefore the petitioner is senior to the respondent No. 4 whose appointment was on 14-7-1966. It is further stated that since then seniority list has been published from time to time showing the petitioner as senior to respondent No. 4. It is further stated that the respondent No. 4 made representation raising his claim of seniority over the petitioner and by order dated 12-1-1998 the said representation was rejected. Therefore, the further representation of the respondent No. 4 dated 20-1-1998 could not have been entertained as there was no power of review of the said authority. Further contention has been made on behalf of the petitioner that the Deputy Director of Education is the appellate authority in respect of a decision by the committee of management regarding seniority and when there is no decision of the committee of management, a direct representation before the said Deputy Director of Education is not permissible.
11. In support of the contention that such authority is not having any inherent power of review, reliance has been placed on behalf of the petitioner on the law decided in the case of P.N. Thakershi v. Pradyuman Singhji, reported in AIR 1970 SC 1273 and Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, reported in AIR 1987 SC 2186.
12. With regard to mode of determination of seniority on behalf of the petitioner reference was made to Regulation 3 of Chapter II and Regulations 2, 4 and 5 of Chapter I of the Regulations framed under the U.P. Intermidiate Education Act, 1921. It is contended that the power has been vested in the committee of management and the Joint Director of Education has no authority to decide seniority. It is contended that the power is to be exercised by statutory authorities in the manner it has been provided and not otherwise. Contention has also been made that settled position should not be disturbed after a long lapse of time. Law has been relied on by the learned Counsel for petitioner as decided in the case of State of Gujarat v. Shantilal, reported in AIR 1969 SC 634, Ramchandra v. Govind, reported in AIR 1975 SC 915, J.N. Ganatra v. Morvi Municipality, reported in AIR 1996 SC 2520, Dr. Asha Saxena v. Smt. S.K. Chaudhary, reported in (1991)2 UPLBEC 1202, Director General of Police v. G. Dassyan, reported in AIR 1998 SC 2265 and the case of Keshav Ram Agnihotri v. District Inspector of Schools, reported in (1998) 4 SCC 72.
13. Learned Counsel for the respondent No. 4 contended that the order dated 12-1-1998 is a back dated order and officer concerned having been already relieved from the post on 3-1-1998, could not pass the said order.
14. Apart from the preliminary objection raised, on merit also the learned Counsel for respondent No. 4 contended that Regulation 4 of Chapter I of the Regulations framed under the U.P. Intermediate Education Act came into force subsequently and therefore does not help in deciding the present decision.
15. Reference was made to paragraph No. 32 of the counter affidavit to show that the document dated 13-3-1981 (Annexure No. 20 to the writ petition) was not an admitted document cannot be utilised for deciding knowledge of the respondent No. 4. Contention has also been made that para 7 of U.P. Secondary Education (Removal of Difficulties) Order, 1981 as amended by U.P. Secondary Education Services Commission (Removal of Difficulties) (Fourth) Order, 1982 entitles the Deputy Director of Education to decide any dispute connected with promotion or direct recruitment.
16. With regard to the contention that the seniority is to be decided from the date of approval, reliance was placed on the law decided in the case of Smt. Omi Bala Nigam v. Regional Inspectress of Girls Schools and Ors., reported in 1986 UPLBEC 69, Mahendra Prakash Kulshrestha v. District Inspector of Schools and Ors., reported in 1984 UPLBEC 1342 ad the case of Avadhesh Bahadur Singh v. District Inspector of Schools and Ors., reported in (1987) 2 UPLBEC 1382.
17. The order passed in year 1979 granting approval to the petitioner's appointment with effect from his date of appointment, has also been disputed as illegal and it is stated that such illegal order should not be revived. Reference was made to the case of G.V. Rao v. Government of Andhra Pradesh and Ors., reported in AIR 1966 SC 828, Dr. Kaushal Pal Singh v. Director of Higher Education and Ors., reported in 1996(3) ESC 138 and the case of D.P. Sharma v. Union of India and Anr., reported in AIR 1989 SC 1071.
18. Sri I.R. Singh, the learned Counsel for committee of management contended that seniority list under Regulation 3 of the Regulations framed under the U.P. Intermediate Education Act is appealable under Regulation 3(1)(f). Having not preferred any such appeal when a decision was taken by a committee of management as regards seniority, the petitioner is not entitled to file belated representation challenging such seniority. It is stated further that benefits are being given to the concerned persons all the time treating the petitioner as senior and therefore this dispute cannot be reopened at this stage.
19. After hearing learned Counsel for parties, I find that in the present facts involving dispute regarding seniority, the writ petition should not be dismissed on the ground of availability to alternative remedy of appeal, particularly when affidavits have been exchanged and parties have argued the matter at length. The law is settled that alternative remedy is not an absolute bar and in the present facts I do not feel that discretion should be exercised for dismissing the writ petition on this ground.
20. With regard to other objection as regards right of hearing of a contemner, I find that the petitioner is to explain by counter affidavit as to why contempt proceeding should not be initiated. Therefore, contempt proceeding has not been yet initiated. In such circumstances, disposal of writ petitions should not be delayed on the plea of absence of right of hearing of contemner. Order dated 20-2-1999 and 26-2-1999 passed in Writ Petition No. 5408 of 1999, Daya Shanker Shukla v. 1st Addl. District Judge, Ballia and Ors., clearly indicates that the circumstances are prevailing in the present case which requires resolving of the present dispute.
21. With regard to question of seniority, I find that Regulations 2 and 4 of Chapter I of Regulations framed under the U.P. Intermidiate Education Act, 1921 deals with preparation of seniority list for the purpose of selection by rotation by the committee of management. Such seniority list is a common seniority list of all the teachers in substantive service of an institution. Regulation 3 of Chapter II provides for a seniority list to be prepared by the committee of management separetely for each grade of teachers whether permanent or temporary on any substantive post and such seniority is to be determined on the basis of their substantive appointment in that grade. Sub-clause (a) of para 1 of Regulation 3 provides that every dispute regarding seniority shall be referred to committee of management for a decision and Sub-clause (f) provides for a right of appeal within fifteen days.
22. In the present case in couse of hearing, learned Counsel for respondent No. 4 though disputed supply of a copy of seniority list upon him but did not dispute preparation of the seniority list from time to time. Therefore, it appears that seniority list had been published in the year 1983 and 1984 showing the petitioner as senior to the respondent No. 4. Admittedly, it is not the case of the respondent No. 4 that he ever preferred an appeal against any such seniority list. With regard to approval of the petitioner by order 27-6-1979, the respondent No. 4 has not disputed the existence of such order nor he has disputed has knowledge about the same. Argument of the learned Counsel for respondent No. 4 with regard to this order is that the order is illegal and therefore should not be revived. In view of aforesaid, it is apparent that the petitioner was appointed and in the year 1979 his appointment was approved with effect from 12-7-1966 and approval of appointment of respondent No. 4 was with effect from his date of appointment on 14-7-1966. Admittedly, the seniority lists were being published from time to time and never it was challenged. Therefore, I am of the opinion that at this stage, the respondent No. 4 cannot challenge the approval granted by the appropriate authority in respect of petitioner's appointment long back in year 1979, particularly when neither existence thereof nor his knowledge is disputed by the respondent No. 4.
23. In the aforesaid factual background, seniority position, which is remaining settled for a long time, should not be disturbed and the impugned order suffers on this ground.
24. With regard to power of Joint Director of Education under paragraph 7 of Fourth Removal of Difficulties Order, I find that the scope of the said provision relates to dispute connected with promotion or direct recruitment under the said Order. Therefore, in the present fact the seniority question settled long time back could not have been reopened exercising the said power. This is more justified as respondent No. 4, admittedly, never preferred an appeal although an appeal was provided.
25. With regard to contention of the respondent No. 4 that the document dated 12-1-1998 is disputed or is back dated, I find that the same cannot be decided in this writ proceeding and need not be decided also here as the seniority position of the contesting parties has been decided long time back and the said document need not be looked into for the purpose of resolving the present dispute.
26. With regard to law that the seniority is to be decided from the date of grant of approval, I find that the same has no relevance here when petitioner's appointment had been approved with effect from a date which is prior to the date of approval of appointment of respondent No.
4. As regards contention of no circulation of seniority list, as found in the impugned order, it appears that the same is not relevant as existence of seniority list and knowledge of the respondent No. 4 about the same have neither been disputed nor have been found in favour of respondent No. 4.
27. In view of aforesaid, the writ petition is allowed. The impugned order dated 8/9-6-1998 at Annexure No. 19 to the writ petition is hereby quashed. The respondents authorities are directed to pass appropriate order in respect of office of Principal in view of the findings herein above.
28. With regard to writ petition No. 16333 of 1999, I find that the main order under challenge is one dated 17-3-1999 at Annexure No. 11 to the writ petition. The said order was passed permitting Sri Kamla Singh to hold the office of Principal in view of suspension of Sri Shukla by order dated 16-2-1999 which is also under challenge.
29. In view of findings arrived at herein above with regard to seniority as appropriate order has already been directed to be passed by the appropriate authority considering the finding relating to seniority, the impugned order dated 17-3-1999 at Annexure No. 11 to the writ petition need not be disturbed and the same is subject to any order to be passed on the basis of seniority position found herein.
30. With regard to suspension of Sri Shukla, it appears that the said order of suspension at Annexure No. 12 to the writ petition was passed neither in contemplation of a disciplinary proceeding nor pending a disciplinary proceeding. The language of the impugned order amounts to imposition of penalty of suspension in view of charges levelled and that too without giving Sri Shukla any opportunity. Therefore, the said order of suspension dated 16-2-1999 at Annexure No. 12 to the writ petition is hereby quashed. The writ Petition No. 16333 of 1999 is allowed to the aforesaid extent. In any event, this order will not prevent the respondents from initiating and completing any disciplinary proceeding in respect of Sri Shukla in accordance with law.