# C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 1193
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** Writ-A No. 7096 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-vaidik-kanya-inter-college-dadri-distt-gautam-buddh-nagar-anr-v-state-of-u-50504
- **Pages:** 19

## Headnote

C.S.C., Sri Jagannath Singh, Sri Sunil
Kumar Srivastava

The core dispute revolved around the seniority
between Smt. Ratan Prabha and Smt. Anupama,
lecturers at Vaidik Kanya Inter College, to
determine who should serve as the officiating
Principal. Committee of Management and
Anupama: Quash the Regional Joint Director's
order and uphold Anupama's appointment as
officiating Principal. Ratan Prabha: Enforce her
seniority, appoint her as officiating Principal,
and grant salary arrears from 26.07.2006.The
court applied actus curiae neminem gravabit,
holding that Ratan Prabha's seniority and pay
protection could not be denied due to litigation
delays. Her status was revived by the Division
Bench, treating her 2006 joining as continuous
for seniority purposes.The absence of a formal
appointment letter was immaterial, as the
Director's order under Regulation 17 and her
joining established her substantive appointment.

Precedents cited:

## Text

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7 All. C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr. Vs. State of
 U.P. & Ors.
1193
thus, is clearly distinguishable and does not
apply
to
the
present
facts
and
circumstances of the case.

40. In the supplementary affidavit
filed on 12.3.2021, there is a categorical
statement
of
fact
on
the
basis
of
information furnished under Right to
Information Act, 2005 that there are four
vacancies lying vacant. This information
was furnished vide letter dated 6.8.2019.

41. In view of the above, to meet out
the substantial justice and in order to
balance equities, in case the candidature of
the
petitioner
be
considered
under
dependents of freedom fighter against one
vacancy, nobody is going to be affected.

42. Accordingly, in view of the
foregoing discussion as also on the basis of
catena of judgments of the Hon'ble
Supreme
Court,
this
writ
petition
succeeds and is allowed to the extent
that the candidature of the petitioner
shall be considered in the light of the
observation made above against one
vacancy of dependents of freedom
fighters quota and in case, she comes
under the category of dependents of
freedom fighters quota, she shall be
given appointment forthwith.
----------
(2023) 7 ILRA 1193
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 7096 of 2020
WITH
Writ-A No. 3608 of 2021 and Other Connected
Cases

C/M, Vaidik Kanya Inter College, Dadri,
Distt: Gautam Buddh Nagar & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Bhem Singh

Counsel for the Respondents:
C.S.C., Sri Jagannath Singh, Sri Sunil
Kumar Srivastava

The core dispute revolved around the seniority
between Smt. Ratan Prabha and Smt. Anupama,
lecturers at Vaidik Kanya Inter College, to
determine who should serve as the officiating
Principal. Committee of Management and
Anupama: Quash the Regional Joint Director's
order and uphold Anupama's appointment as
officiating Principal. Ratan Prabha: Enforce her
seniority, appoint her as officiating Principal,
and grant salary arrears from 26.07.2006.The
court applied actus curiae neminem gravabit,
holding that Ratan Prabha's seniority and pay
protection could not be denied due to litigation
delays. Her status was revived by the Division
Bench, treating her 2006 joining as continuous
for seniority purposes.The absence of a formal
appointment letter was immaterial, as the
Director's order under Regulation 17 and her
joining established her substantive appointment.

Precedents cited:

1. Satish Kumar Vs St. of U.P. (22.09.2006)

2. Odisha Forest Development Corp. Vs M/s
Anupam Traders [(2020) 15 SCC 146]

3. Vijay Narain Sharma Vs District Inspector of
Schools [1985 Law Suits (All) 480]

4. Vir Singh Vs St. of U.P. [2015 (11) ADJ 637
(DB]

5. Ashwin S. Mehta Vs U.O.I. [(2012) 1 SCC 83]

7. Charan Lal Sahu Vs U.O.I. [AIR 1990 SC
1480]
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Bheem Singh, learned
counsel
appearing
for
the
petitioner
Committee of Management Vaidik Kanya
Inter College, Dadri, District Gautam Budh
Nagar in Writ A No. 7096 of 2020 and on
behalf of Smt. Anupama in Writ A No.
3608 of 2021 and Sri Jagannath Singh,
learned counsel appearing for petitioner
Smt.Ratan Prabha in Writ A No. 866 of
2020 and Writ A No. 9586 of 2021. In all
the writ petitions controversy relates to
seniority between one Smt. Ratan Prabha
and Anupama in the institution so as to
hold charge of officiating Principal. Smt.
Anupama has been permitted by the
Committee of Management to officiate as
Principal of the institution. In Writ A No.
7096 of 2020 and in Writ A No. 3608 of
2021, the order passed by the Regional
Joint
Director
of
Education
dated
25.10.2019 holding the petitioner senior
most lecturer is under challenge. In Writ A
No. 866 of 2020, the prayer is to the effect
to direct the Committee of Management to
give effect to the order passed by the
Regional Joint Director of Education i.e.
directing the petitioner to be the senior
most teacher in the institution, whereas in
Writ A No. 9586 of 2021, the officiating
charge given to Smt. Anupama by order
dated 24.8.2019 and attestation of signature
of
Smt.
Anupama
was
given
on
17.10.2019. The case has a checkered
history, and, therefore, needs lucid detail of
facts which are stated as under:

2. The petitioner Ratan Prabha
applied for the post of lecturer (Civics)
pursuant to advertisement being no. 1 of
2004 issued by U.P. Secondary Services
Selection Board (hereinafter referred as
'Board'). In the selection held by the Board,
petitioner Ratan Prabha got selected and
was recommended initially for being
appointed as a lecturer (Civics) in Nagar
Palika Inter College, Badaun. However, in
the absence of vacancy, there at Badaun
she was not permitted to join and
consequently filed writ petition before this
Court being Writ A No. 19955 of 2006.
The said writ petition was disposed of, vide
order dated 10.4.2006, issuing a direction
to the Board to make a recommendation for
adjustment of petitioner in some other
institution where vacancy exists. The order
passed by this Court dated 10.4.2006 is
quoted below:-

"The petitioner is a selected
candidate and was recommended by the
Board to join the institution concerned but
was not allowed to join. The District
Inspector of Schools has intimated that the
post in question has already been filled up
by way of promotion and, therefore there is
no vacancy.

Sri A.K. Yadav, the learned
counsel for the Selection Board, upon
instructions received by him, admits this
fact.

In view of the aforesaid, the writ
petition is allowed and a mandamus is
issued to the Selection Board to pass fresh
orders, recommending the name of the
petitioner in another institution, where a
vacancy exists, within one month from the
date of the production of a certified copy of
this order."

3. In compliance of the orders so
passed above by the Court, the Board made
recommendation on 17.5.2006 adjusting
the petitioner as a lecturer (Civics) in
Vaidik Kanya Inter College, District
Gautam Budh Nagar, the institution been
run by the petitioner in writ petition no.
7096 of 2020. It appears that when the
recommendation was not being put to
7 All. C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr. Vs. State of
 U.P. & Ors.
1195
action at the end of the institution, a clear
directive was issued by the Director
Secondary Education U.P. Lucknow on
20.7.2006 asking the District Inspector of
Schools to ensure joining of the petitioner
Ratan Prabha and in the event of failure on
the part of the Committee of Management
not issuing the appointment order, take
action under Regulation 17 of 1998
Regulations. The letter issued by the
Director of Secondary Education U.P.
Lucknow dated 20.7.2006 for its better
appraisal is reproduced hereinunder:

"प्रेर्क,

 लशक्शा ननदेशक माध्यलमक,

 उत्तर प्रदेश, लखनऊ

सेवा में,

 जजला ववद्यालय ननरीक्शक,

 गौतमबुद्ध नगर

पत्राूंक डी०ई०/708/2006-07
हदनाूंक जुलाई 20, 2006

ववर्यः- सुिी रत्नप्रभा चयनबोडघ
द्वारा चयननत प्रवक्ता नागररक शास्त्र की
वैहदक कन्या इण्टर कालेज दादरी गौतमबुद्ध
नगर में कायघभार ग्रहण कराने के सूंबूंध में।

महोदय,

 कृपया उपयुघक्त ववर्यक अपर
लशक्शा ननदेशक माध्यलमक के पत्राूंक सामान्य
1046/2006-07 हदनाूंक 30-6-2006 का सूंदभघ
ग्रहण करें जजसके द्वारा सुिी रत्नप्रभा को
अववलम्ब कायघभार ग्रहण कराये जाने के ननदेश
हदये गये हैं। इस सूंबूंध में आपका ध्यान आपके
पत्राूंक मा०-2/92-93-06-07 हदनाूंक 17-4-2006
की ओर आकृष्टट फकया जाता है जजसके द्वारा
आपने सधचव, चयनबोडघ को सुिी रत्नप्रभा को
वैहदक कन्या इण्टर कालेज, दादरी गौतमबुद्ध
नगर में अनुस धचत जानत हेतु अधधयाधचक पद
के प्रनत समायोजजत करने की सूंस्तुनत स्वयूं की
है।

 कृपया सुिी रत्नप्रभा को
कायघभार ग्रहण कराये जाने की ननयमानुसार
कायघवाही करें तर्ा ववद्यालय प्रबन्धक द्वारा
ननयुजक्त पत्र ननगघत न करने की जस्र्नत में
धारा 17 के अन्तगघत कायघवाही सुननजश्चत करें।
सूंबूंधधत लशजक्शका सुिी रत्नप्रभा का इस
कायाघलय में प्रातत आवेदन पत्र म लरूप में
सूंलग्न है।
सूंलग्नकः उक्तवत्

भवदीय

 सूंजय मोहन

लशक्शा ननदेशक मा०

उ०प्र०
"

4. It is upon the above order been
passed by the Director of Secondary
Education that petitioner was given joining
directly in the institution by the Principal of
the institution on 1.7.2006. This joining
report is endorsed by the then Principal of
the institution. However, one Kamal
Verma. filed a Writ Petition before this
Court challenging the order of Board being
Writ-A No. 41691 of 2006. The said writ
petition was entertained by this Court and
expressing prima facie view that Board had
no power to make adjustment of an
impaneled candidate against a vacancy not
advertised, granted interim order to the
effect that present petitioner who was
respondent no. 5 in the said petition would
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
not be permitted to join and if already
joined she may be permitted to work but
shall not be paid salary without leave of the
Court. The operative portion of the order of
this Court dated 21.8.2006 is reproduced
hereinunder:

"In the opinion of the Court,
adjustment so made is apparently contrary
to the provisions of U.P. Secondary
Education Services Selection Board Act
and Rules framed therein. A selected
candidate,
in
pursuance
of
an
advertisement if not permitted to join in the
institution for certain reasons in the
institution,
for
which
he
has
been
empanneled, has right to be considered in
accordance with the merit secured in the
selection against other vacancy, which
were subject matter of advertisement qua
the sme selection. Adjustment against
subsequent vacancies, which may be
subject matter of another advertisement, is
not contemplated by the rules.

Petitioner has, therefore, made
out a case for grant on interim order.

Till the next date of listing
respondent no. 5 shall not be permitted to
join at Vaidik Kanya Inter College, Dadri,
Gautam Buddh Nagar. In case she has
already joined, she may be permitted to
work but she shall not be paid salary
without leave of the Court."

(emphasis added)

5. Ultimately, the said writ petition
came to be allowed by this Court holding
that unadvertised vacancy cannot be filled
up from amongst the candidates who have
been selected in previous selections. The
order was passed on the basis of judgment
of the Division Bench of this Court in the
case of Satish Kumar Vs. State of U.P.
and others. Paragraphs 6, 7, 8, 9 and 10 of
the
said
judgment
is
reproduced
hereinunder:-

"6. The question is whether such
a candidate can be adjusted or appointed
against a post which was not advertised in
a particular selection has been considered
by Division Bench of this Court in Satish
Kumar Vs. State of U.P. & Others, decided
on 22.09.2006 wherein the Division Bench
has held :
"For the reasons and the conclusions
drawn herein above, our answer to
Question No.1 is:

"An unadvertised vacancy cannot
be filled up from amongst the candidate
who has been selected in any previous
selections and to that extent we declare that
the pronouncement of the learned Single
Judge in the case of Savita Gupta Vs. State
of U.P. & Ors; 2004(2) UPLBEC, does not
lay down the law correctly and is hereby
overruled."

and to Question No.2 is:

"The U.P. Secondary Education
Services Selected Board constituted under
the U.P. Act No. 5 of the 1982 cannot, with
the aid of the Government Order dated
12th March has been intimated and notified
but not advertised."

7. Hence the law is now well
settled that the vacancy which was not
advertised in a particular selection, the
candidate selected therein cannot be
adjusted
against
such
unadvertised
vacancy.

8. Learned counsel for the
Commission informed that Rules have been
amended in the year 2007 wherein such
adjustment is permitted and the validity
thereof is under consideration before this
court. Be that as it may, it is evident that
the aforesaid rules having been notified in
January 2007 would not cover the question
involved in the present case because
7 All. C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr. Vs. State of
 U.P. & Ors.
1197
admittedly the rule did not exist at the
relevant time.

9. In view thereof, the writ
petition is accordingly allowed.

10. The impugned order dated
20.07.2006 is hereby quashed. However,
this
order
shall
not
preclude
the
respondents from adjusting respondent no.
5 against any other vacancy which was
part and parcel of the recruitment made in
2004 wherein she (respondent no.5) was
selected."

6. Against the said judgment,
petitioner Ratan Prabha filed Special
Appeal being No. 873 of 2012 and the
Division Bench this time set aside the
judgment of learned Single Judge dated
30.11.2010 in the light of the judgment
passed by the Supreme Court in Civil
Appeal No. 10808 of 2017 wherein it was
held that the Board had the power to make
adjustment against the available vacancies
may or may not be advertised. Operative
portion of the order of the Division Bench
dated
12.1.2018
is
reproduced
hereinunder:-

"Heard learned counsel for the
appellant and Sri A.K.Yadav, learned
counsel for the respondent/Board.

The
appeal
questions
the
correctness of the impugned judgment of
the learned Single Judge dated 30.11.2010
whereby the petition filed by the respondent
no.7/petitioner has been allowed in relation
to the selection and appointment of the
appellant and on the post of Lecturer in
Civics in Vaidik Kanya Inter College,
Dadri, district Gautam Budh Nagar.

The respondent no.7/petitioner is
represented by Sri Anoop Trivedi but it
appears that on account of the fact that the
respondent no.7 Smt. Kamlesh Verma has
already attained the age of superannuation,
the case is not being contested by her and
Sri Trivedi is also not present.

The appellant is aggrieved by the
impugned judgment as her placement after
selection by the Board as Lecturer in Civics
in the institution has been quashed by the
learned Single Judge, who came to the
conclusion that in view of the Division
Bench judgment in the case of Satish
Kumar Vs. State of U.P. and others,
decided on 22.09.2006 and the answer
given by the Division Bench therein since
the vacancy was not advertised for
selection on the post in the institution, the
appellant could not be adjusted against an
unadvertised vacancy.

The very same legal issue was
raised before the Apex Court by the
respondent/Board
in
Civil
Appeal
No.10808 of 2017 and the Apex Court
disposed of the appeal holding that the
Board had the power to make such
adjustments and further indicated that the
accommodation will have to be made either
in available or even in a vacancy arising
further.

The appellant being a selected
candidate by the Board contends that she
deserves to be considered as per the view
expressed by the Apex Court that alters and
modifies the ratio of the judgment in the
case of Satish Kumar Vs. State of U.P. and
others (Supra).

Sri A.K.Yadav, learned counsel
for the respondent/Board could not dispute
the directions issued by the Apex Court to
be available for consideration in the
present case as well. No one else has
opposed the appeal. In the aforesaid
circumstances we allow this appeal and set
aside
the
impugned
judgment
dated
30.11.2010.

We dispose of the writ petition
and appeal with a direction that the claim
of the appellant shall be considered by the
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
Board as expeditiously as possible keeping
in view the nature of the vacancy available
preferably within a period of three months
from the date of production of the certified
copy of this order, in the event her selection
is valid in accordance with the Rules and
the vacancy is available to accommodate
her in view of the directions issued by the
Apex
Court
vide
judgment
dated
23.08.2017."

7. It is after the judgment was passed
in special appeal that the District Inspector
of Schools issued an order dated 12.8.2018
directing the Committee of Management to
ensure joining of the petitioner. It is
relevant here to quote the two last
paragraphs
of
the
order of
District
Inspector of Schools dated 8.2.2018 and the
same is reproduced hereinunder:-

"प्रश्नगत प्रकरण के सन्दभघ में
अनुक्रमाूंक 080531931 रत्न प्रभा पुत्री ववष्टणु
दयाल ई-29/ए लसद्धार्घ नगर पो० जूंगपुरा नई
हदकली-14 प्रवक्ता नागररक शास्त्र वगघ -02 पद
पर आवूंहटत सूंस्र्ा वैहदक कन्या इन्टर काललज
दादरी
गौतमबुद्ध
नगर
के
प्रनत
चयन/समायोजन कायाघलय के पत्राूंक/मा० लश०चबो०/7979-80/हदनाूंक-20-5-2006 के माध्यम से
भेजा गया है। माननीय उच्च न्यायालय में
योजजत ववशेर् अपील सूं०-873/2012 रतन प्रभा
बनाम उ०प्र० राज्य व अन्य में पाररत हदनाूंक12-1-2018 के अनुपालन में कायघभार ग्रहण
करायें।

अतः आपको ननदेलशत फकया जाता है
फक माननीय उच्च न्यायालय में योजजत ववशेर्
अपील सूं०-873/2012 रतन प्रभा बनाम उ०प्र०
राज्य व अन्य में पाररत हदनाूंक-12-1-2018 के
अनुपालन में अनुक्रमाूंक 080531931 रत्न प्रभा
पुत्री ववष्टणु दयाल ई-29/ए लसद्धार्घ नगर पो०
जूंगपुरा नई हदकली-14 प्रवक्ता नागररक शास्त्र
वगघ -02 पद पर कायघभार सुननजश्चत करें।"

8. The petitioner Ratan Prabha in her
claim has taken a plea that at no point of
time any appointment order was issued to
the petitioner and the petitioner was
directly given joining in the year 2006 and
it was the management who was not
permitting him to sign attendance register
on the plea that there was order operating
in the writ petition filed by one Kamal
Verma. It was after the fresh order was
issued by the District Inspector of Schools
as quoted above that the petitioner was
permitted to sign the attendance register
and so started getting salary.

9. In writ petition no. 3608 of 2021
the petitioner Anupama Verma has pleaded
that she was selected and recommended by
the Board pursuant to the advertisement no.
02 of 2010 against the post of lecturer
(Sanskrit) in the institution and so she
submitted her joining pursuant to the letter
of the District Inspector of Schools dated
27.7.2012 and the consequential letter
issued by the Manager of the institution on
7.8.2012. The letter issued by the District
Inspector of Schools dated 27.7.2012 is
reproduced hereinunder:-

"हदनाूंक-27/17/12

ववर्य- ववज्ञापन सूं० 2/2010 प्रवक्ता
पदों के प्रनत उ0प्र0 माध्यलमक लशक्षा सेवा चयन
बोडघ ननयमावली 1998 के ननयम (12) उप ननयम
(a)
तर्ा
(10)
के
अधीन
ननलमघत
वगघ
इण्टरमीडडएट ववर्य सूंस्कृत वगघ 1 व 2 के पद
के ललए उपयुघक्त अधर्घयों के ललए 1 पैनल का
ननयम 12 (11) के अधीन प्रेर्ण।
7 All. C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr. Vs. State of
 U.P. & Ors.
1199

महोदय,

उपयुघक्त ववर्यक सधचव उ० प्र० मा०
लश० सेवा चयन बोडघ इलाहाबाद की ववज्ञजतत
सूं०मा०लश०च०बो० /1044/2012-13 हदनाूंक 7-0812के उपरान्त चयन बोडघ के पत्राूंक /
मा०लश०च० बो० / चयन/ 2605-2666/2012-13
हदनाूंक 08-0-12 में हदये गये ननदेशों के अनुरूप
स धचत फकया जाता है फक आपके ववद्यालय में
मौललक रूप से प्रवक्ता ववर्य सूंस्कृत वगघ 1 व
2 के ररक्त पद पर सधचव उ० प्र० ना० लश०
सेवा चयन बोडघ इलाहाबाद के चयननत अभ्यर्ी
का नाम ननयुजक्त हेत अर्को प्रेवर्त फकया जा
रहा है। सम्बजन्धत अभ्यर्ी को प्रबन्धकीय
सककप के अधीन ननयमानुसार ननयुजक्त पत्र
सूंलग्न प्रारूप पर जारी करें।
क्र०
सूं०
नाम
पता
1
िीमतीअनुपमादेवीपत्नीकु
वरचूंचललसूंहजानत-
अनु०जानत
अनु०-020601871
349/4 बी.
चाँदपुरसले
री
(ओमगाय
त्रीनगर)
पो०
तेललयरगूंज
इलाहाबाद।

उक्त के सन्दभघ में यह भी स च्य है
फक यहद आपके ववद्यालय में प्रवक्ता सूंस्कृत
वगघ 1 व 2 के ररक्त पद पर मा0 उच्च
न्यायालय इलाहाबाद के आदेश से कायघरत है
अर्वा ववननयलमत है तो कृपया उसके आदेशो
की प्रनत सहहत इस कायाघलय को तत्काल
उपलब्ध कराये ।

आपको चयन बोडघ ननयमावली 1908
के ननयम 13 (1) के खण्ड (क), (दो) तर्ा तीन
के अन्तघगत एूंव 13 के उपननयम (20) के फकया
जाता है फक आप सलग्न पररलशष्टट पर ननयुजक्त
पत्र सम्बधधत अभ्यर्ी को ननयमानुसार भेजते
हुये ननयुजक्त के आदेश की प्रनत इस याघलय एवूं
सम्बजन्धत अधधकारी को तत्काल भेजे कायघभार
ग्रहण कराने से प वघ शैक्षक्षक योग्यता सम्बन्धी
प्रमाण-पत्रों का भलल भानत परीक्षण करने प णघ
उत्तरदानयत्व आपका होगा सार् ही प्रमाण पत्र
तर्ा अभ्यर्ी की अहघताओूं से सम्बजन्धत प्रमाण
पत्रों की प्रनतयाूं अपने स्तर पर एक प्रनत रखते
एक प्रनत अद्योहस्ताक्षरी को प्रातत कराना
सुननजश्चत करे ।

सूंलग्नक- ननधाघररत प्रारूप पत्र

भवदीय

(ज्योनत प्रसाद)

 जजला ववद्यालय ननरीक्शक

गौतमबुद्ध नगर। "

 (emphasis added)

10. Pursuant to the above order of the
District Inspector of Schools, the Manager
issued a letter to the rival petitioner
Anupama Verma on 7.8.2010 which is
reproduced hereinunder:-

"महोदया,

"आप द्वारा अग्रसाररत प्रार्घना पत्र
हदनाूंक 06/08/2012 जो फक िीमनत अनुपमा
देवी का सूंस्कृत ववर्य की प्रवक्ता पद पर
कायघभार ग्रहण करने के सम्बूंध मे है एूंव जजला
ववद्यालय ननरीक्षक गौतम बुद्ध नगर के
कायघलय आदेश पत्राूंक न० पृ० स० / च० वो० /
1796-1800 / 2012-13 हदनाूंक 27/07/12 का
सन्दभघ ग्रहण करते हुये, आपको ननदेलशत फकया
जाता है फक िीमनत अनुपमा देवी का सूंस्कृत
ववर्य की प्रवक्ता पद पर जजनको मा० लश०
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
सेवा चयन बोडघ ने ननयुजक्त प्रदान की है,
कायघभार ग्रहण करा दे। कायघभार ग्रहण एवूं
दैननक उपजस्र्नत पूंजजका में नाम पूंजजकरण से
प वघ इनकी शैक्षक्षक योग्यता सम्बधधत प्रमाण
पत्रो का भलल भानत पररक्षण कर ले। पररक्षण
उपराूंत शैक्षक्षक प्रमाण पत्रो की एक प्रनत
ववद्यालय ररकाडघ में सजोकर रखे। सभी प्रमाण
पत्रों पर आप द्वारा seen कर एक एक प्रनत
जजला ववद्यालय ननरीक्षक गौतम बुद्ध नगर के
कायाघलय को भी उपलब्ध करा दे।"

(emphasis added)

11. This is how the rival petitioner
Anupama Verma has been working in the
institution since 7.8.2012 as lecturer
(Sanskrit) and has been drawing salary. The
petitioner Ratan Prabha took a plea that she
being the senior most having been
recommended and appointed as lecturer
(Civics) in institution way back in the year
2006 should be taken to be the senior most
and raised a seniority issue and so filed a
writ petition before this Court being Writ-A
No. 5797 of 2019 in which a direction was
issued to the Regional Joint Director of
Education to consider the claim of the
petitioner.

12. The Regional Joint Director of
Education after hearing the petitioner and
the Committee of Management, has come
to pass an order dated 25.10.2019 holding
the petitioner to be the senior most lecturer
working in the institution and directed
payment of salary since 26.7.2006 and so
aslo accorded seniority w.e.f. 26.7.2006
and also directed for payment of arrears of
salary accordingly. The payment of arrears
of salary was made subject to the certificate
to be obtained by the Committee of
Management regarding petitioner's working
in the institution during the period in
question.

13. The Committee of Management
filed writ petition no. 7096 of 2020
questioning the Regional Joint Director of
Education holding petitioner Ratan Prabha
to be the senior most having taken charge
on
26.7.2006.
Subsequently,
Smt.
Anupama the other petitioner also filed a
writ petition before this Court being Writ A
No. 3608 of 2021 assailing the order passed
by
the
Regional
Joint
Director
of
Education, Ist Region, Meerut. Smt.
Anupama has taken the plea that she has
not
been
heard
in
the
matter
of
determination of seniority even though she
was a necessary party. It is further argued
that since the petitioner Ratan Prabha has
been reinstated only in the year 2018 under
the orders of the High Court dated
12.1.2018, there would be break in service
between 2006 and 2018 and therefore, the
petitioner Ratan Prabha would not be
entitled to seniority over and above, the
petitioner Anupama.

14. The two legal questions that arise
for consideration in this case are: (i)
whether petitioner Ratan Prabha who had
been given charge and had been permitted
to join as assistant teacher on 26.7.2006 but
she could not function thereafter on
account of the interim order passed by this
Court, can be denied seniority, over and
above, the teachers appointed during
interregnum period, (between her first
joining and her resuming charge vide order
dated 18.2.2018); and (ii) whether looking
the facts undisputed, an opportunity of
hearing if given to petitioner Anupama
would have changed the order, impugned in
her petition, compelling the authority to
arrive at a different conclusion and so order
7 All. C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr. Vs. State of
 U.P. & Ors.
1201
would be bad for violation of principles of
natural justice.

15. Yet another question arises about
the maintainability of the writ petition at
the instance of Committee of Management
in a seniority dispute between the two
teachers.

16. On the first question, Sri Bheem
Singh, learned counsel appearing for
second petitioner Ms. Anupama Verma has
raised following grounds:-

i. There was no appointment
order issued to the petitioner Ratan
Prabha, so as to entitle her to join
institution and therefore, her joining was
null and void;

ii. The order issued by the
District
Inspector
of
Schools
dated
8.2.2018 as a consequence to the order
passed by Division Bench of this Court
dated 12.1.2018, in Special Appeal No. 873
of 2012 itself, demonstrates that the
Committee of Management was directed to
ensure joining of the petitioner no. 1 on the
post
of
lecturer
(Civics).
Therefore,
according to him petitioner had never been
given joining prior to 8.12.2018;

iii. The third point argued in that
he ought to have been given one
opportunity to represent her case before
Regional Joint Director of Education as
this Court under its order dated 15.4.2019
passed in Writ A No. 5797 of 2019 had
provided that opportunity of hearing was to
be given not only to the Committee of
Management but also any other person
likely to be affected by decision;

17. Thus, it is argued that the order
being in violation of principles of natural
justice as well as the non compliance of the
order of High Court, is liable to be set aside
and matter should be remitted to be decided
as fresh.

18. Per Contra, it is argued by
Learned Counsel appearing for the first
respondent Ratan Prabha that the petitioner
was given joining by the Order of the
Director of Education exercising power
under Section 17 of 1998 Regulations and
it is in consequence to the said order that
petitioner was given joining. He submits
that the order dated 20.07.2006 had been
acted upon 01.07.2006 and the petitioner
was not being paid salary only on account
of the order passed by this Court dated
21.08.2006 in Writ Petition No. 41691 of
2006. However, petitioner's interest was
protected by observing that if she had
joined, she would be permitted to work.

19. It is further argued that in the
event Committee of Management did not
permit the petitioner to work and sign
attendance register, it was in violation to
the interim protection granted under the
said order. As far as the order dated
18.02.2018 is concerned, he submits that
the legal position since has been that the
law declared by constitutional court is to be
taken always to be the law in existence, the
interim order passed by the Court Writ
Petition No. 41691 of 2006 and the final
judgment passed in the said Writ Petition in
which it was held that adjustment of
selected candidates against a non advertised
post was bad, could be taken to be a wrong
view in view of the judgment of the
Supreme Court and thus the interim order
as well as the Judgment of the Leaned
Single Judge merged with the Judgment of
Special Appeal No. 873 of 2012 which held
the adjustment of the petitioner to be valid
in law. According to Learned Counsel, the
order
dated
08.02.2018
for
the
reinstatement was only for the reason that
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
committee
of
Management
did
not
cooperate with the petitioner and did not
permit him to sign attendance register. He
argues that matter since had remained
pending in this court at the instance of a 3rd
Party, the pendency by itself would not
negate the rights of a litigant which he
would have been otherwise entitled to. He
takes the plea of maxim 'actus curiae
neminem gravabit' .

20. On the question that other
petitioner Smt. Anupama Verma had not
been heard, learned counsel for first
petitioner Ratan Prabha, has argued that the
matter should not be remanded just for the
sake of opportunity of hearing if otherwise
facts are admitted to the parties. He submits
that the opportunity of hearing cannot be
put into a straight jacket formula to be
applied in every case more especially in
cases where even after the remand the
result is bound to be same as per the legal
position. He argues that the petitioner no. 2
has not been able to demonstrate as to how
petitioner's initial appointment was bad and
could not be able to dispute that the
petitioner was a duly selected candidate by
the Board when she was permitted to join
the institution and Petitioner Anupama was
nowhere in scene.

21. On the point of locus of the
Committee of Management to file writ
petition to question the decision, it is
argued by the learned counsel for petitioner
Ratan
Prabha
that
Committee
of
Management can have no grievance in the
matter of seniority inter se amongst the
lecturers. As far as question of payment of
arrears of salary is concerned, it is argued
that order permits the Committee of
Management to verify the period but state
being the paying authority, Management
should not have any technical objection.

22. Having heard learned counsel for
respective parties and having perused the
records, pleadings raised, as well as the
order impugned, I find that basic issue to be
whether petitioner should be taken to be
validly selected and appointed lecturer in
the institution way back in the year 2006. It
is a case and so also the admitted position
on record that petitioner after having been
selected by the Board, and an impaneled
candidate to be appointed in a particular
institution in the name of Nagar Palika
Inter College, Badaun was not being
permitted joining so he filed a writ petition
before this Court being Writ No. 19955 of
2006 in which a judicial order was passed
issuing a writ of mandamus to the Selection
Board to pass fresh order recommending
the name of the petitioner for another
institution. This was a judicial order passed
on 10.4.2006 which was never appealed
against. It was in compliance of this Order
that a fresh panel was issued on 20.5.2006
directing adjustment of the petitioner in the
institution in question and so, when the
petitioner was not being issued any
appointment and not permitted joining, the
then
the
Director
of
Education
on
20.7.2006 passed an order directing the
District Inspector of Schools to ensure
joining even in the event no appointment
order was issued by the management,
taking recourse to Regulation 17 of 1998
Regulations. Pursuant to this direction, the
District Inspector of Schools immediately
ensured joining of petitioner in the
institution in question and the petitioner
was given joining on 1.7.2006. In the
meanwhile, the writ petition no. 41691 of
2006 was filed in which interim order was
passed only on 21.8.2006 which provided
that the respondent if had already joined,
she would be permitted to work. Ratan
Prabha was respondent in said case who
had already joined. Thus, she was to be
7 All. C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr. Vs. State of
 U.P. & Ors.
1203
permitted to work but she was not to be
paid salary. It is in these circumstances that
the petitioner Ratan Prabha continued to
report in the institution continuously and
yet she was not permitted to sign in the
attendance register and obviously was not
paid salary. Her joining was held bad by
the learned Single Judge of this Court while
allowing writ petition no. 41691 of 2006
but that order got reversed in the order of
Special Appeal filed by Ratan Prabha
wherein adjustment of the appellant was
held to be in accordance with law as had
been held by the Supreme Court. It is worth
noticing here that after the Division Bench
passed the order on 12.1.2018, no fresh
appointment order was issued and the
District Inspector of Schools only directed
the management under its order dated
8.2.2018 to ensure joining to the petitioner.

23. Thus, in the total circumspect of the
facts that emerge it is clear that interim order
passed by Court in writ petition no. 4169 of
2006 being subsequent to the joining of the
petitioner would be taken to have protected
the interest of the petitioner Ratan Prabha and
thus, it would be absolutely wrong to hold
now that though she was lawfully selected
but wrongly permitted joining without there
being any appointment order. It is well settled
legal position that mere pendency of a
litigation cannot deny a rightful claim which
otherwise vests in a party. The interim order
would be taken to have partially eclipsed
Ratan Prabha's status and even if final
judgment upset her status, it got revived in
the final order of special appeal as it is well
settled that appeal is continuation of original
proceedings. So, it will be taken that
petitioner was lawfully adjusted against the
vacancy and in my considered view, status
would not be lost for mere pendency of the
writ
petition,
which
ultimately
stood
dismissed in appeal.

24. In the present case and looking to
the facts as discussed above, the interim
order was passed by the Court in the earlier
petition to the effect that fifth petitioner
namely Ratan Prabha herein would not be
permitted to join and if already joined
would not be paid salary. Petitioner has
established the case of joining and nonpayment of salary to her was only for the
interim order passed by this Court.
Ultimately when the interim order resulted
in the final order allowing the writ petition
and when came to be reversed in Special
Appeal, then obviously a plea cannot be
permitted to be taken by either the State or
the private respondent that since petitioner
did not work or was not paid salary for
certain period because of pendency of the
case, said period cannot be taken into
account even for the purposes of pay
protection and seniority. Thus, the maxim
actus curiae neminem gravabit' would be
applicable very much to this case. The
maxim means no party should suffer due to
the act of the Court. In this case, once the
petitioner had been directed to be given
joining under the order passed by the
authorities, but the orders came to be
challenged before this Court and which
remained pending adjudication for number
of years and even though the orders
ultimately were set aside but since they
have been upheld in the Special Appeal,
petitioner cannot be permitted to run the
risk of being given joining. It is the
respondent State authorities who were
required to balance the equity by not only
giving notional pay protection but also
seniority. In the case of Odisha Foresh
Development
Corporation
Vs.
M/s
Anupam Traders (2020) 15 SCC 146, it
has bee held that interim order was passed
for protection and the subsequent auction
for Kendu leaves was deferred for such
interim order and if the Court directed to
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
make certain deposits to the petitioner
towards agreement and the writ petitioner
himself withdrew the writ petition then
department cannot be made to suffer.
Whether a writ petition is dismissed as
withdrawn or is dismissed, the result was
bound to be the same. In the present case
also petitioner was not permitted to pay
salary and so the management did not
permitted her to sign the attendance register
but for the interim order. Vide paragraph
20, the Supreme Court has held thus:-

"20. As
noticed
above,
the
Appellant in any event would have the right
to detrmine the loss suffered and recover
the same in accordance with law as the
process to re-tender, was at the '......cost
and risk' of the private Respondent as
stated in the notice of termination. In that
circumstance, when it is prima-facie
indicated that due to the delay caused at
the instance of the privatye Respondents
the value of the Kendu leaves had reduced,
thereby, causing loss, in view of legal
proceedings
initiated
by
the
private
Respondents, the Court will have to bear in
mind the maxim actus curiae neminem
gravabit, namely, no party should suffer
due to the act of Court. In such event, since
the opinion be permitted to retain the
amount and complete the process by
providing opportunity
to
the
private
Respondents."

25. I may also observe here that it is
not the seniority as such in dispute for any
fact there being that both were selected and
appointed under the same advertisement
but one could join earlier than the other
one. Questioning the joining of the
petitioner, in the light of the interim order
passed earlier by this Court would be
questioning the very appointment of the
petitioner which in my considered view,
another teacher claiming seniority does not
have the locus. It has been held time and
again that while examining the matter of
inter se seniority the authority cannot go
into question of legality of appointment.

26. In the case of Vijay Narain
Sharma v. District Inspector of Schools
and Others, 1985 Law Suits (All) 480 it
has been held that in the matters of
adjudication of seniority dispute on the
question of right to promotion in preference
to the other teachers, it is not open for such
a teacher claiming seniority to challenge
validity of selection and appointment of
another colleague teacher. Vide para 18 &
19, the Court took judicial notice of
growing tendency amongst the teachers to
question
validity
of
appointment
of
colleagues while issue of inter-se seniority
crops up to occupy the position of
officiating Principal. Thus, vide paras 25,
26, 27, 28 & 29 the Court held that
appointment of a teacher who has acquired
substantive position, cannot be questioned
while
adjudicating
inter-se
seniority.
Paragraph nos. 18, 19, 20, 23, 24, 25, 26,
27 & 28 of the judgment are reproduced
hereunder:-

"'18. Judicial notice can be taken
of the fact that in this State, in every
College, there are series of litigation
amongst the teachers challenging the
seniority list prepared by the various
colleges. The question of seniority has
assumed great importance because of the
provisions in the Act and the Regulations
framed
thereunder
governing
these
colleges. It has been Laid down that; the
senior-most teacher in the college shall
officiate as Principal of the college in the
absence of the Principal. As a result of
these litigations inter se, fighting and
groupism amongst the teachers has taken
7 All. C/M, Vaidik Kanya Inter College, Dadri, Distt: Gautam Buddh Nagar & Anr. Vs. State of
 U.P. & Ors.
1205
the upper hand which has completely
shattered the discipline in the college. It
has come to my notice that in cases relating
to seniority, it has almost become a
practice to challenge the appointments and
promotion of all the teachers creating a
state of uncertainty and making a sword of
democles hang on every teacher. This
creates great dissatisfaction and aggressive
teachers take an upper hand. This also
results in the lack of proper teaching
because most of the time the teachers are
involved in maintaining the validity of their
appointments and promotion rather than
concentrating on the teaching which is
their primary duty.

19. It has been often found that
appointments
and
promotion
are
challenged after more than one or two
decades. The position of the records is that
neither the Managing Committees maintain
proper records in a regular manner nor the
records are available with the District
Inspector of Schools. In fact, the Managing
Committees change so often and they are
also litigating so frequently that a decision
by one Managing Committee is not
supported by a succeeding Managing
Committee. The post of the District
Inspector of Schools is also transferable
and it often transpires that the District
Inspector of Schools, who had earlier
passed the order, is not available to justify
the approval given by him to the
appointment or promotion made of a
teacher.