# Dr. Anupma Mehrotra v. The Hon'ble Chancellor, MahatmaJyotibaPhuleRohilkhandUnivers ity,Bareilly&Ors

- **Citation:** (2019) 1 ILRA 762
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-01
- **Case number:** Writ-A No. 17904 of 2018
- **Bench:** Pankaj Mithal, Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anupma-mehrotra-v-the-hon-ble-chancellor-44473
- **Pages:** 12

## Headnote

Sri Neeraj Tripathi, Sri Arvind Srivastava.
C.S.C., Sri Kshitij Shailendra Khare, Sri
Vivek Verma, Sri Manish Tandon

A.
U.P.
Higher
Education
Service
Commission
Act-
Inter-se
seniorityPetitioner appointed on substantive post
of
lecturer-private
respondents
appointed
on
ad-hoc
basis
but
subsequently regularized - Chancellor
held that as under Statute 15.08 (e) of
the University, the respondents are
entitled to seniority from the date of
their initial appointment, they are senior
to the petitioner-representation of the
Petitioner challenging regularization of
the petitioner barred by limitation.

In view of provision of Statute 15.01 (c) the
seniority of the Petitioner has to be reckoned
by the length of her continuous service from
the date of appointment in substantive
capacity- private respondents No. 8 to 11
though appointed earlier to the petitioner,
their
said
appointments
were
not
in
substantive capacity rather on ad-hoc basis
under Section 16 of the Commission Act and
were regularized under Section 31-C (2) of the
Commission Act and hence, their substantive
appointment would be from the date of their
regularization/substantive
appointmentRegularization
of
the
contesting
private
respondents No. 8 to 11 not under Section 31
(3) (b) of the Act but under Section 31-C (2)
of the Commission Act- Clause (e) of Statute
15.08 would not apply for determining the
continuous
length
of
service
of
the
respondents and their seniority- The Statute
15.08 (e) wrongly applied by the Vice
Chancellor to the case of the private
respondents No. 8 to 11 for determining their
seniority- The cause of action for deciding the
matter of seniority is a recurring cause of
action which survives till the person or the
persons with whom a seniority is disputed
retires or leaves the job- Petition allowed.
(Para18,21,22,25,26,27,30,31,39,45,52,54,59)

Case Law discussed/relied upon:-
1.Secretary, Minor Irrigation Department and
R.E.S. vs. Narendra Kumar Tripathi, 2015 (11)
SCC 80

2.Direct Recruit Class-2 Engineering Officers'
Association Vs. State of Maharashtra, AIR
1990 SC1607

## Text

762 INDIAN LAW REPORTS ALLAHABAD SERIES

28.

It
is
clarified
that
the
observations made herein above would
have no bearing in the pending suit
instituted by the sixth and seventh
respondent in respect to the other reliefs
claimed therein.

29. No cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 17904 of 2018

Dr. Anupma Mehrotra ...Petitioner
Versus
The
Hon'ble
Chancellor,
MahatmaJyotibaPhuleRohilkhandUnivers
ity,Bareilly&Ors. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondents:
Sri Neeraj Tripathi, Sri Arvind Srivastava.
C.S.C., Sri Kshitij Shailendra Khare, Sri
Vivek Verma, Sri Manish Tandon

A.
U.P.
Higher
Education
Service
Commission
Act-
Inter-se
seniorityPetitioner appointed on substantive post
of
lecturer-private
respondents
appointed
on
ad-hoc
basis
but
subsequently regularized - Chancellor
held that as under Statute 15.08 (e) of
the University, the respondents are
entitled to seniority from the date of
their initial appointment, they are senior
to the petitioner-representation of the
Petitioner challenging regularization of
the petitioner barred by limitation.

In view of provision of Statute 15.01 (c) the
seniority of the Petitioner has to be reckoned
by the length of her continuous service from
the date of appointment in substantive
capacity- private respondents No. 8 to 11
though appointed earlier to the petitioner,
their
said
appointments
were
not
in
substantive capacity rather on ad-hoc basis
under Section 16 of the Commission Act and
were regularized under Section 31-C (2) of the
Commission Act and hence, their substantive
appointment would be from the date of their
regularization/substantive
appointmentRegularization
of
the
contesting
private
respondents No. 8 to 11 not under Section 31
(3) (b) of the Act but under Section 31-C (2)
of the Commission Act- Clause (e) of Statute
15.08 would not apply for determining the
continuous
length
of
service
of
the
respondents and their seniority- The Statute
15.08 (e) wrongly applied by the Vice
Chancellor to the case of the private
respondents No. 8 to 11 for determining their
seniority- The cause of action for deciding the
matter of seniority is a recurring cause of
action which survives till the person or the
persons with whom a seniority is disputed
retires or leaves the job- Petition allowed.
(Para18,21,22,25,26,27,30,31,39,45,52,54,59)

Case Law discussed/relied upon:-
1.Secretary, Minor Irrigation Department and
R.E.S. vs. Narendra Kumar Tripathi, 2015 (11)
SCC 80

2.Direct Recruit Class-2 Engineering Officers'
Association Vs. State of Maharashtra, AIR
1990 SC1607

3. Keshav Chand Joshi and others vs. Union of
India and others,AIR 1991 SC 284 (E-3)

(Delivered by Hon'ble Pankaj Mithal, J.
Hon'ble Saral Srivastava, J.)

1. Under challenge in this writ
petition is the order of the Chancellor,
Mahatma
Jyotiba
Phule
Rohilkhand
University, Bareilly dated 06.08.2018 by
which the representation of the petitioner
filed under Section 68 of the U.P. State
Universities Act (hereinafter referred to as
"Act")
has
been
rejected.
1 All. Dr. Anupma Mehrotra Vs. The Hon'ble Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareilly & Ors. Ors. 763

2. The dispute which was referred to
the Chancellor under Section 68 of the
Act
was
with
regard
to
the
validity/correctness of the order of the
Vice Chancellor of the University dated
23.09.2016 in context to interse seniority
of the petitioner qua contesting private
respondents No. 8 to 11 who are all
teachers in the Dayanand Arya Kanya
Mahavidyalaya, Moradabad affiliated to
the above university.

3. Admittedly, the petitioner was
duly selected and recommended by the
U.P.
Higher
Education
Service
Commission (hereinafter referred to as
"Commission") on 28.01.1991 as Lecturer
(Home Science) and was allotted the
above
institution.
Consequently,
the
Committee
of
Management
of
the
institution issued appointment letter to her
and the petitioner joined services on
20.06.1991. Thus, she is holding a
substantive post of Lecturer, Home
Science
at
the
institution
w.e.f.
20.06.1991 after due selection by the
Commission.

4. The contesting private respondent
Nos. 8 to 11 were appointed on ad-hoc
basis by the Committee of Management
of the institution on their selection by the
Selection Committee constituted by the
institution and approvals of the University
granted
to
their
appointments
on
10.10.1988,
22.02.1991,
25.02.1991,
11.03.1991 and 22.03.1991 respectively.
All of them except respondent No.10
were subsequently regularized on their
respective posts on different dates in June,
1992 under Section 31-C (2) of the U.P.
Higher Education Service Commission
Act
(hereinafter
referred
to
as
"Commission Act") by the Directorate of
Higher Education, U.P., Allahabad.

5. In view of the above respective
joining of the petitioner and the contesting
private respondents No. 8 to 11, the
Chancellor held that as under Statute
15.08 (e) of the First Statutes of the
University, the respondents are entitle to
seniority from the date of their initial
appointment, they are senior to the
petitioner. Secondly, as the representation
of the petitioner also disputes the
regularization of the contesting private
respondents No. 8 to 11, the challenge to
the same after more than 26 years is not
acceptable and the representation in that
regard is barred by limitation.

6. We have heard Dr. Anupma
Mehrotra, petitioner in person, Sri L.K.
Tripathi, learned counsel for Chancellor,
Sri Rohit Pandey, learned counsel for
University, learned Standing Counsel for
the
State
authorities,
Sri
Kshitij
Shailendra, learned counsel for the
Committee of Management and the
Principal of the institution, Sri Arvind
Srivastava, learned counsel for Dr. Jolly
Garg, respondent No.8 and Sri Ashok
Khare, Senior Counsel on behalf of Dr.
Shobha Gupta and Dr. Shubha Goyal,
respondent Nos. 9 and 10 (wrongly
mentioned as respondent Nos. 8 and 9 in
the writ petition). No one has appeared for
Dr. Vimal Sharma, respondent No.11
(wrongly mentioned as respondent No.10
in the writ petition).

7. The petitioner alleges that she was
shown as senior to the contesting private
respondents No. 8 to 11 in the record of
the institution, but in circulating the
tentative seniority list on 02.04.1996, the
Principal of the institution incorrectly
showed her junior to these persons.
Therefore, she objected to the said
seniority but without considering her
764 INDIAN LAW REPORTS ALLAHABAD SERIES
objections, a final seniority list was
allegedly notified on 27.07.1996 without
any information or copy to her. The
petitioner
when
raised
her
dispute
regarding interse seniority, the Registrar
of the University vide letter dated
05.06.1999 informed that the said dispute
can be raised by her by means of a
representation before the Principal of the
institution.
Accordingly,
petitioner
represented to the Principal for deciding
about her seniority and declaring her to be
senior to the above persons vide letters
dated
21.06.1999,
28.06.1999
and
08.05.2000 but the Principal of the
institution, to the best of her knowledge,
never took any decision thereon and
informed about her seniority, if any
determined thereupon.

8. The petitioner ultimately filed
Writ Petition No. 51034 of 2015 raising
her grievance regarding the incorrect
determination of her seniority which was
disposed off vide order dated 12.10.2015
with the direction to the Vice Chancellor
to consider the matter and to decide her
representation in that regard.

9.

The
Vice
Chancellor,
in
pursuance of the above directions of the
Court, considered the matter of interse
seniority of the petitioner with contesting
private respondents No. 8 to 11 vide order
dated 23.09.2016 and held them to be
senior on the basis of their length of
service with effect from the date of their
initial joining as ad-hoc teachers.

10. The aforesaid order was
challenged by the petitioner by making a
representation under Section 68 of the Act
which reference came to be decided by
the Chancellor by the impugned order
dated 06.08.2018 and the representation
of the petitioner has been rejected
upholding the order of Vice Chancellor.

11. The petitioner alleges that she
had raised the issue of her seniority before
the authorities concerned, right from the
Principal to the Vice Chancellor and the
Chancellor
well
within
time.
The
Principal at no point of time determined
her seniority by any speaking order and
communicated it to her. She was never
communicated with the order, if any taken
on her objections filed against the
tentative seniority list or the final
seniority list alleged to have been
finalized on 27.07.1996. The petitioner is
senior to the contesting private respondents
No. 8 to 11 as her date of substantive
appointment is 20.06.1991 and that of the
others is June, 1992. The seniority has to be
determined from the date of substantive
appointment and not from the date of ad-hoc
appointment
even
if
ad-hoc
appointments/services were later regularized.

12. All counsel on behalf of
respondents
contended
that
the
seniority of the petitioner qua the
other
teachers
especially
private
respondents No. 8 to 11 was finally
determined vide seniority list dated
27.07.1996. The said seniority list is
not liable to be disturbed after such a
long gap of more than 20 years. The
reference to the said dispute to Vice
Chancellor in 2014-15 wherein the
order passed on 23.09.2016 by the
Vice Chancellor was assailed before
the Chancellor, was highly belated and
was not maintainable in law. The
petitioner has not challenged the order
of
the
Vice
Chancellor
dated
23.09.2016 and as such is not entitle
to any relief. Since the services of the
contesting private respondents No. 8
1 All. Dr. Anupma Mehrotra Vs. The Hon'ble Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareilly & Ors. Ors. 765
to 11 were regularised, the services
rendered by them on ad-hoc basis are also
to be counted for the purposes of their
seniority.

13. Sri Kshitij Shailendra and Sri
Arvind Srivastava have urged that despite
direction of the University to raise the dispute
of seniority before the Principal who is the
competent authority, the petitioner never
raised any such dispute before him and it was
only in the year 2003 that she made
representation in this regard for the first time
and got the matter reopened by obtaining
directions from the Hon'ble Court. She cannot
be permitted to reopen the stale matter which
had attained finality long before.

14. Sri Rohit Pandey on behalf of
Chancellor additionally submitted that for
the purposes of determining seniority of
the teachers appointed on ad-hoc basis but
subsequently
given
substantive
appointments Statute 15.08 of the Statutes
would apply and the entire length of their
service is to be counted.

15. In the light of the aforesaid
facts
and
circumstances
and
the
submissions
of
the
parties,
the
controversy centers around three points.

16. The first is regarding inter-se
seniority of the petitioner qua contesting
private respondent Nos. 8 to 11. Secondly, if
the seniority list dated 27.07.1996 prepared by
the Principal of the institution is liable to be
disturbed at this stage when a considerable
time has elapsed and the petitioner failed to
raise the same before the Principal who was
the competent authority at the relevant time
despite direction of the University contained
in the letter dated 05.06.1999 of the Registrar.
Lastly, whether the petitioner is entitle to any
relief when she has not challenged the order
dated 23.09.2016 passed by the Vice
Chancellor.

17. The dispute of seniority of the
petitioner is with contesting private
respondent Nos. 8 to 11. The respective
joining of all of them in substantive
capacity or ad-hoc basis and the date of
their regularization is as under-:

Sl.
No.
Name
Subj
ect
Date of
Ad-hoc
appoint
ment
Date
of
subst
antiv
e
appoi
ntme
nt
Date of
regulari
zation
1
Dr.
Anupma
Mehrotr
a
Ho
me
Scie
nce-
-
20.06
.1991

2
Dr. Jolly
Garg
Bota
ny
10.10.19
88
-
28.06.1
992
3
Dr.
Shobha
Gupta
Che
mist
ry
22.02.19
91
-
28.06.1
992
4
Dr.
Vimla
Sharma
Zool
ogy
25.02.19
91
-
28.06.1
992
5
Dr.
Shubha
Goyal
Ho
me
Scie
nce
11.03.19
91
-
28.06.1
992
6
Dr. Rita
Jaitley
Psyc
holo
gy
22.03.19
91
-
28.06.1
992

18. In view of the above, it is
evident
that
the
petitioner
was
substantively appointed on 20.06.1991
whereas
the
contesting
private
respondents No. 8 to 11 were appointed
on ad-hoc basis prior to the petitioner but
their services were regularized in June,
766 INDIAN LAW REPORTS ALLAHABAD SERIES
1992 under Section 31-C (2) of the
Commission Act.

19. There is no dispute to the
respective dates of appointments of the
petitioner and the contesting private
respondents No. 8 to 11 as stated above.

20. The seniority of the teachers of
affiliated colleges is required to be
determined in accordance with Chapter 15
of the Statutes. Statute 15.01 is relevant
and material. It reads as under-:

"15.01 - The following rules shall be
followed in determining the seniority of
Principals and other teachers of affiliated
colleges :-

(a) ..........

(b) ..........

(c) the seniority of Principals and
teachers of the affiliated colleges shall be
determined by the length of continuous
service from the date of appointment in
substantive capacity;

(d) service in each capacity (for
example, as Principal or as a teacher),
shall be counted from the date of taking
charge
pursuant
to
substantive
appointment;

(e) service in a substantive capacity
in another University or another degree
or
post-graduate
college
whether
affiliated to or associated with the
University
or
another
University
established by law shall be added to his
length of service."

21. Statute 15.01 (c) specifically
provides that seniority of teachers of the
affiliated colleges shall be determined by
the length of their continuous service
from
the
date
of
appointment
in
substantive capacity. The use of the words
"the date of appointment in substantive
capacity" is very material and relevant.
The said phrase leaves no room for
determining the seniority of the teachers
by adding their past services rendered, if
any, prior to their substantive appointment
in any form.

22. In the case at hand, petitioner was
substantively appointed on 20.06.1991.
Therefore, her seniority has to be reckoned
from the said date. On the other hand,
contesting private respondents No. 8 to 11
though appointed earlier to the petitioner,
their said appointments were not in
substantive capacity rather on ad-hoc basis
under Section 16 of the Commission Act.
Their
services
were
regularized
on
28.06.1992 under Section 31-C (2) of the
Commission Act. This is implicit on the
plain and simple reading of the regularization
order. Therefore, in all fairness, their
substantive appointment would be from the
date
of
their
regularization/substantive
appointment i.e. 28.06.1992.

23. Now comes the Statute 15.08
which also deals with the seniority of the
teachers in general. It provides that the
seniority of a teacher shall be determined
according to length of his continuous
service in his substantive capacity but
clause (e) of Statute 15.08 provides that
continuous service on a temporary post to
which a teacher is appointed after
selection, followed by appointed in a
substantive capacity under Section 31 (3)
(b) of the Act, shall be counted towards
seniority.

24. The said Statute 15.08 (b)
and (e) are reproduced hereinbelow-:

"15.08 - The following rules shall be
followed in determining the seniority of
teachers :-
1 All. Dr. Anupma Mehrotra Vs. The Hon'ble Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareilly & Ors. Ors. 767

(a) .........

(b) In the same cadre, seniority of a
teacher shall be determined according to
the length of his continuous service in a
substantive capacity in such cadre :

Provided that where more than one
appointment to posts in a cadre have been
made at the same time, and an order of
preference or merit was indicated by the
Selection
Committee
or
by
the
Management, the seniority of the persons
so appointed shall be governed by the
order so indicated.

(c) ........

(d) .........

(e)
Continuous
service
in
a
temporary post to which a teacher is
appointed after reference to a Selection
Committee, if followed by his appointment
in a substantive capacity to that post
under Section 31 (3) (b) shall count
towards seniority."

25. A bare reading of the aforesaid
provision would make it crystal clear that
ordinarily the seniority of a teacher is to
be determined on the basis of continuous
service in substantive capacity but where
a teacher is appointed after reference to
selection committed in a temporary
capacity and is followed by regularization
under Section 31 (3) (b) of the Act, the
service rendered prior to his substantive
appointment shall also be counted in his
length of service for the purposes of
determination of seniority.

26. The above benefit of service
rendered prior to substantive appointment
would
be
available
where
the
regularization is under Section 31 (3) (b)
of the Act not where the regularization is
under a different provision or Section 31C (2) of the Commission Act.

27. The provisions of Section 31 (3)
(b) of the Act and Section 31-C (2) of the
Commission Act operates in completely
different situations. Section 31 (3) (b) of
the Act applies where the appointment is
on a temporary post and is subsequently
regularized. On the other hand, Section
31-C (2) of the Commission Act applies
where the appointment is on ad-hoc basis
and not a temporary post.

28. Section 31 (3) (b) of the Act
reads as under-:

"31 - Appointment of Teachers-:

(1) ........

(2) ........

(3) .........

(a) .......

(b) Where before or after the
commencement of this Act, any teacher is
appointed (after reference to a Selection
Committee) to a temporary post likely to
last for more than six months, and such
post is subsequently converted into a
permanent post or to a permanent post in
a vacancy caused by the grant of leave to
an incumbent for a period exceeding ten
months and such post subsequently
becomes permanently vacant or any post
of same cadre and grade is newly created
or falls vacant in the same department,
then unless the Executive Council or the
management, as the case may be, decides
to terminate his services after giving an
opportunity to show cause, it may appoint
such teacher in a substantive capacity to
that post without reference to a Selection
Committee:

Provided that this clause shall not
apply unless the teacher concerned holds
the prescribed qualifications for the post
at
the
time
of
such
substantive
appointment,
and
he
has
served
continuously, for a period of not less than
768 INDIAN LAW REPORTS ALLAHABAD SERIES
one year after his appointment made after
reference to a Selection Committee:

Provided further that appointment is
a substantive capacity under this clause of
a teacher who had served, before such
appointment, continuously for a period of
less thantwo years, shall be on probation
for one year which may be extended for a
period not exceeding one year, and the
provisions of sub-section (2) shall apply
accordingly."

29. Section 31-C of the Commission
Act is as follows-:

"31-C. Regularisation of other ad
hoc appointments. - (1) Any teacher, other
than a principal who -

(a) was appointed on ad hoc basis
after January 3,1984 but not later than
[November 22, 1991] on a post -

(i) which after its due creation was
never filled earlier, or

(ii) which after its due creation was filled
earlier and after its falling vacant, permission
to fill it was obtained from the Director; or

(iii) which came into being in
pursuance of the terms of new affiliation
or recognition granted to the College and
has been continuously serving the College
from the date of such ad hoc appointment
up to the date of commencement of the
Uttar Pradesh Higher Education Services
Commission (Amendment) Act, 1992;

[(b) was appointed on ad hoc basis
under sub-section (1) of Section 16 as it stood
before its omission by the Act referred to in
clause (a), whether or not the vacancy was
notified by the Commission.]

(c) possessed on the date of such
commencement,
the
qualifications
required for regular appointment to the
post [or was given relaxation from such
qualification] under the provisions of the
relevant Statutes in force on the date of
such ad hoc appointment;

(d) [* * *]

(e) has been found suitable for
regular appointment by a Selection
Committee constituted under sub-section
(2);

may be given substantive appointment by
the Management of the College, if any
substantive vacancy of the same cadre and
grade in the same department is available on
the date of commencement of the Act referred
to in clause (a).

(2)
The
Selection
Committee
consisting, the following members namely
-

(i) a member of the Commission
nominated by the Government who shall
be the Chairman;

(ii) an officer not below the rank of
Special Secretary, to be nominated by the
Secretary to the Government of Uttar
Pradesh
in
the
Higher
Education
Department;

(iii) the Director;

shall consider the cases of every such
ad hoc teacher and on being satisfied
about his eligibility in view of the
provisions of sub-section (1), and his
work and conduct on the basis of his
record, recommended his name to the
Management
of
the
College
for
appointment under sub-section (1).

(3) Where a person recommended by
the Commission under Section 13 before
the commencement of the Act referred to
in sub-section (1) does not get an
appointment because of the appointment
of another person under sub-section (1) in
the vacancy for which he was so
recommended, the State Government shall
make suitable order for his appointment
in a suitable vacancy in any College and
the provisions of sub-sections (5) and (6)
1 All. Dr. Anupma Mehrotra Vs. The Hon'ble Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareilly & Ors. Ors. 769
of Section 13 and of Section 14 shall
mutatis mutandis apply.

(4) A teacher appointed on ad hoc
basis referred to in sub-section (1) who
does not get a substantive appointment
under that sub-section and a teacher
appointed on ad hoc basis who is not
eligible to get a substantive appointment
under sub-section (1) shall cease to hold
the ad hoc appointment after [June 30,
1992],

[(5) Notwithstanding anything to the
contrary in sub-section (4), the selection
committee constituted under sub-section
(2), shall in view of the amendments made
in clauses (b) to (d) of sub-section (1), of
the Uttar Pradesh Higher Education
Service Commission (Amendment) Act,
1997 reconsider the case of every teacher
who ceased to hold appointment under
sub-section (4) and if as a result of
reconsideration any such teacher is found
suitable for substantive appointment, he
may be given substantive appointment as
provided in sub-section (1), and shall be
deemed never to have ceased to hold
appointment.]"

30. A comparison of the above
provisions reveals that they operate in
different situations. The regularization
under
Section
31-C
(2)
of
the
Commission Act can not be compared
with that under 31 (3) (b) of the Act.
Statute 15.08 (e) of the Statutes is
applicable only where the regularization
is under Section 31 (3) (b) of the Act and
not to cases where the regularization is
done by invoking any other provision of
law.

31. Admittedly, the regularization of
the contesting private respondents No. 8
to 11 is not under Section 31 (3) (b) of the
Act rather the regularization order clearly
spells out that it is under Section 31-C (2)
of the Commission Act. Therefore, clause
(e) of Statute 15.08 would not apply for
determining the continuous length of
service of the respondents and their
seniority. The Chancellor failed to make
out this distinction in according the
benefit of past services rendered by the
contesting private respondents No. 8 to 11
for the purposes of seniority. He simply
applied the general proposition to add the
services rendered prior to the substantive
appointment to their substantive services
as their services were subsequently
regularized ignoring the fact that general
proposition is not applicable where the
statutory rule provides otherwise.

32. Sri Arvind Srivastava has placed
reliance
upon
Secretary,
Minor
Irrigation Department and R.E.S. vs.
Narendra Kumar Tripathi and has
argued that the past services rendered by
ad-hoc appointee before regularization are
to be counted in the length of his service
so as to determine his seniority.

33. The aforesaid case was in
relation to the appointment of an engineer
in the Department of Minor Irrigation of
the State of U.P. His services were
regularized under the U. P. Regularization
of Ad Hoc Appointments (On Posts
Within the Purview of the Public Service
Commission) Rules, 1989, as amended
from time to time. The said Rules
specifically provided that the persons
regularized under the said Rules shall be
entitled to seniority from the date of the
order of appointment. It was in context
with the above Rules that the Hon'ble
Supreme Court held that as the Rule
provides that ad-hoc appointments have to
be regularized and the seniority is to be
counted from the date of the appointment,
770 INDIAN LAW REPORTS ALLAHABAD SERIES
they cannot be deprived of the benefit of
the past service rendered by them before
the date of regularization.

34. The aforesaid decision was
rendered in context with the aforesaid
Rules and not in connection with the
Rules which specifically provides that the
seniority has to be counted as per the date
of substantive appointment as in the
present case. Therefore, in our opinion,
the aforesaid decision in no way helps.

35. No doubt, in Direct Recruit
Class-2
Engineering
Officers'
Association Vs. State of Maharashtra,
the Hon'ble Supreme Court has held that
as a general rule, once a person is
appointed to a post according to Rules, his
seniority has to be counted from the date
of his appointment and not according to
the date of his confirmation, but this again
would not apply where the Statutes
specifically provides otherwise to the
contrary.

36. In Keshav Chand Joshi and
others vs. Union of India and others,
the 3 judges of the Hon'ble Supreme
Court with reference to the U.P. Forest
Service Rules, 1952 in the matter of
seniority held that for the purposes of
computing seniority, the length of service
has to be counted only from the date of
substantive appointment. It was further
held that if ad-hoc appointment is not in
accordance with the Rules and was made
as a "stop gap arrangement", the period of
officiation on such post cannot be
considered for computing seniority.

37. The aforesaid decision is sought
to be distinguished by Sri Khare, Senior
Counsel
on
the
ground
that
the
appointment of all the respondents was
after selection in accordance with the
Rules and as such the criteria laid down in
the above decision would not apply to the
case of the respondents.

38. Even if the above criteria is not
applied or that the appointment of the contest
private respondents No. 1 to 8 on ad-hoc
basis is treated to be in accordance with the
Rules, their working as ad-hoc teachers
would not be counted for determining their
seniority for the simple reason that it cannot
be determined contrary to the statutory
provision. The Statute 15.01 (c) and 15.08
(b) clearly provides that the seniority of the
teachers has to be determined from the date
of their substantive appointment, meaning
thereby services rendered by any teacher on
ad-hoc basis whether irregularly appointed or
appointed in accordance with the Rules
would not be counted except in cases
covered by Statute 15.08 (e) of the Statutes.

39. The Statute 15.08 (e) as applied
by the Vice Chancellor is not applicable
to the case of the contesting private
respondents No. 8 to 11 for determining
their seniority as their services were never
regularized under Section 31 (3) (b) of the
Act rather their regularization was under
Section 31-C (2) of the Commission Act.

40. The submission of the petitioner
that initially she was shown senior to the
contesting private respondents No. 8 to 11
and that it was only for the first time by
the
tentative
seniority
list
dated
02.04.1996 circulated by the Principal
that she was shown junior to the
contesting private respondents No. 8 to 11
does not stand established from the record
of the writ petition.

41. There is no material or document
on record which may show that the
1 All. Dr. Anupma Mehrotra Vs. The Hon'ble Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareilly & Ors. Ors. 771
petitioner was ever shown senior to the
contesting private respondents No. 8 to
11. The letter of the Principal of the
institution dated 04.03.1997 reveals that
on account of the dispute of the
Committee
of
Management
of
the
institution, the entire records of the
institution have been misplaced and are
not available. The submission that the
said record is presently available has no
bearing inasmuch as despite it nothing has
been brought on record to establish that
the petitioner was ever shown senior to
the contesting private respondents No. 8
to 11 prior to the circulation of the
tentative seniority list dated 02.04.1996 or
the final seniority list dated 27.07.1996.

42. There is no dispute to the fact
that against this tentative seniority list
dated 02.04.1996, petitioner had raised
objections on 04.06.1996 in writing
before the Principal whereupon she was
required to submit certain documents vide
letter dated 24.06.1996. The record
reveals that as the petitioner kept on
taking time, the Principal proceeded and
finalized the seniority list on 06.05.1996
whereupon final seniority list dated
27.07.1996 was issued. There is no
material on record to show that the order
finalizing the interse seniority or the final
seniority list of the teachers was supplied
to the petitioner. The said order and the
seniority list was sent to the Vice
Chancellor/University and not to the
petitioner at any point of time.

43. As far as the copy of the order
finalizing the seniority list is said to have
been endorsed to the petitioner in the
absence of any document or averment that
it was sent to the petitioner, it does not
mean that it was actually served upon her
to enable her to dispute it.

44. Even if it is accepted that the
seniority was finally determined as per the
aforesaid
list,
the
petitioner
had
represented to the Principal who is the
competent authority under Statute 15.05
to
reconsider
the
same
vide
her
representations
dated
21.06.1999,
28.06.1999 and 08.05.2000, copies of
which are on record as enclosures to the
rejoinder
affidavit.
All
these
representations were submitted by the
petitioner pursuant to the reply of the
University dated 05.06.1999 to the
seniority dispute raised by her before the
Vice Chancellor. The University had
informed the petitioner to raise the dispute
before the competent authority i.e. the
Principal. There is no denial at any stage
that such representations were not made
by the petitioner or that they were not
received by the Principal.

45. In view of the above, it can
hardly be said that the petitioner had not
raised the dispute of her seniority before
the competent authority within time.
Thus, the dispute of seniority was raised
by her but it was not decided and if
decided
no
order
thereof
was
communicated to her.

46. None of the respondents have
brought on the record any material to
show that subsequent to the direction of
the
University
and
the
petitioner's
representations
to
redetermine
her
seniority, the Principal ever took any
decision in the matter and communicated
it to the petitioner.

47. The cause of action for the
petitioner to file this petition arose with
the decision taken by the Chancellor on
16.08.2018 rejecting her representation
under Section 68 of the Act.
772 INDIAN LAW REPORTS ALLAHABAD SERIES

48. The said representation of the
petitioner was directed against the order
of the Vice Chancellor dated 23.09.2016.
The representation under Section 68 was
made promptly within 3 months of the
said order and as such was not beyond
time as prescribed under Section 68 of the
Act.

49. There is no averment or material
that the representation under Section 68 of
the petitioner regarding
her interse
seniority was not made by her within 3
months from the date of the decision of
the Vice Chancellor.

50. In view of the aforesaid facts
and circumstances, the cause of action
regarding the seniority of the petitioner
was surviving and was alive all through
till the decision of the Vice Chancellor
and the Chancellor.

51. The contention that the direction
of the High Court dated 12.10.2015
disposing off writ petition No. 51034 of
2015 would not confer any right upon the
Vice Chancellor to revive the stale matter
of seniority is neither here nor there as no
time limit is provided for raising such a
claim before the Vice Chancellor.

52. Moreover, the cause of action
for deciding the matter of seniority is a
recurring cause of action which survives
till the person or the persons with whom a
seniority is disputed retires or leaves the
job.

53. This apart, the Vice Chancellor
took the decision on the representation of
the petitioner on the directions of the
Court and once he has so passed the order
it means that the authorities were alive to
the controversy and have not allowed it to
have died down otherwise the Vice
Chancellor would have rejected it as
barred by limitation. The said order of
Vice Chancellor had certainly revived the
cause of action of the petitioner regarding
her seniority even if it had become stale.

54. In view of the aforesaid facts
and circumstances, in our opinion, the
claim of the petitioner to seniority would
not stand defeated and it would be too
harsh not to disturb the seniority list if it
is not otherwise legally tenable in law.

55. The last aspect for our
consideration is the relief to which the
petitioner is entitle as she has not
specifically challenged the order dated
23.09.2016
passed
by
the
Vice
Chancellor.

56. The Vice Chancellor by the
order dated 23.09.2016 has decided the
inter-se dispute of seniority of the
petitioner
qua
contesting
private
respondents No. 8 to 11. The petitioner
was not satisfied by the said order and as
such has preferred a reference under
Section 68 of the Act before the
Chancellor. The Chancellor answered the
reference against the petitioner.

57. The order of the Vice Chancellor
as such stood merged in the order of the
Chancellor. Therefore, the challenge to
the order of the Chancellor is sufficient
and it is not legally necessary to challenge
the
order
of
the
Vice
Chancellor
independently.

58. The submission of Sri Khare,
Senior Counsel that the doctrine of
merger would not apply with regard to
administrative orders is bereft of merits
for the reason that the decision of the Vice
1 All. Santosh Singh & Ors. Vs. State of U.P. & Ors.
773
Chancellor and the Chancellor are not
orders of administrative nature but quasijudicial
orders
adjudicating
valuable
rights of the parties.

59. In view of the aforesaid facts
and circumstances, in our opinion, the
order of the Chancellor as well as that of
the Vice Chancellor are unsustainable in
law and the petitioner is entitle to her
seniority from the date of her substantive
appointment i.e. 20.06.1991 whereas the
contesting private respondents No. 8 to 11
are entitle to their seniority from the date
of the regularization of their services i.e.
28.06.1992 and not with any other interior
date as their regularization was not under
Section 31 (3) (b) of the Act so as to
attract Statute 15.08 (e) of the Statute.

60. All the respondents are accordingly
directed to amend the seniority list qua the
petitioner and contesting private respondents No.
8 to 11 only and to proceed accordingly for the
purposes of seniority and for ancillary purposes.

61. The writ petition is allowed with
no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-A No. 1513 of 2019
with Writ-A No. 6048 of 2019

Santosh Singh &Ors. ...Petitioners
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioners:
Sri Arun Kumar Singh, Sri Vinod Kumar
Singh Parmar
Counsel for the Respondents:
C.S.C., Sri Satya Prakash Mishra

A. Refusal by the D.I.O.S, Azamgarh to
grant approval to the appointment of
petitioners on Class IV Posts.

Held:-In Writ A No.12642 of 2007 the matter
was remanded to the District Inspector of
Schools for reconsideration only on the issue of
verification of the records in order to verify the
exact sanctioned strength of Group D employees
in the Institution and in case of sufficient
vacancies, the DIOS was directed to consider the
question of granting of approval to the
petitioners. The DIOS while considering the
above-mentioned issue has travelled beyond the
direction of this Court and taken note of the
other issues such as pendency of another writ
petition, appointment by outsourcing only and
Janshakti 2013 in order to reject the claim of the
petitioners.

 The DIOS vide impugned order has come to
the conclusion that there are five vacant posts
of Class IV in the Institution. Therefore,
substantial justice will be done to five
petitioners out of total seven petitioners, who
are raising their cause since 2004, if they are
adjusted against the said five vacant posts.
Petition partly allowed to that extent. (E-3)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Petitioners in the present writ
petition have earlier approached this
Court by way of filing Writ A No.12642
of 2007 (Santosh Singh and others Vs.
State of UP), challenging the order dated
13.12.2006
whereby
the
financial
approval to the selection of the petitioners
as Class-IV employees at the respondent's
college was declined. The said writ
petition was disposed of with the
following observation and directions :-

"I further find from the discussion
part coming in the impugned order that