# Full Bench judgment in Sr. General Manager, Ordnance Factory v. Central Administrative Tribunal

- **Citation:** (2019) 4 ILRA 1118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** Writ-A No. 69714 of 2015
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/full-bench-judgment-in-sr-general-manager-ordnance-factory-v-central-44865
- **Pages:** 10

## Headnote

C.S.C., Sri Anup Dhar Dubey, Sri Arvind
Prabodh Dubey, Sri Pranesh Dutt Tripathi,
Sri Satyendra Kumar Mishra, Sri Sunil
Kumar Singh, Sri Vinay Kumar Rai, Sri
Yogendra Kumar Srivastava

A. Service Law - U.P. Basic Education
(Teachers Service) Rules, 1981- Rule 14,
17, 18, 19, 22 - Seniority - Total 208
candidates were issued appointment
letters
on
the
same
date
-
for
appointment to the post of Assistant
Teacher at junior basic School. They
were given 15 days joining time - none
of them lost seniority - inter se seniority
to be determined from the date of initial
appointment
in
substantive
vacancy
under Rule 18 (4 ) read with R.19 and 22
of the Rules, 1981.

Held:- Under the scheme of the Rules, 1981 as
noted above, it was not open for the District
Basic Education Officer to determine seniority
of teachers from the date of their joining
instead of date of their initial appointment on
a substantive post. (Para 38)

Writ Petition allowed. (E-9)

## Text

1118 INDIAN LAW REPORTS ALLAHABAD SERIES
which had arisen in Jagdish Narain vs.
Union of India (supra).

16. In view thereof it is evident that
Full Bench judgment in Sr. General
Manager,
Ordnance
Factory
vs.
Central
Administrative
Tribunal
(supra) is not applicable in the case in
hand.

17. Instead issue in present writ
petition is squarely covered by earlier
three Division Bench judgments in Ravi
Karan Singh vs. State of U.P. (supra);
Sanjai Kumar vs. Dy. Director General
(NCE), Directorate (supra) and Ram
Chandra vs. State of U.P. (supra) which
were in respect of employment in State
Government and had considered question
of compassionate appointment under
Rules, 1974 and have clearly held that in
case of such appointments, Rules, 1975
are not applicable since compassionate
appointment under Rules, 1974 is of
permanent nature.

18. Here also respondents have
clearly
relied
on
the
fact
that
compassionate appointment of petitioner
was made on temporary basis i.e. on
probation and has been terminated by
taking recourse to Rules, 1975. It may be
noticed that compassionate appointment
of petitioner has not been terminated on
the ground that he could not perform
satisfactorily on probation but it has been
terminated on the ground that he applied
for compassionate appointment after five
years. Though term of five years under
Rules 1974 is not a period of limitation
and instead a compassionate appointment
could have been allowed even after five
years if condition of family member of
deceased
employee
continuing
and
persisting,
penurious,
justifying
compassionate appointment. Herein, it is
not a case of respondents that after five
years family of deceased employee
including petitioner were not facing
penurious
condition
and
therefore,
compassionate
appointment
is
not
justified. Moreover, once compassionate
appointment was made and there was no
fraud, misrepresentation or other fault on
the part of such employee, In my view,
termination
of
compassionate
appointment in such a case is patently
arbitrary, whimsical and erroneous.

19. In the present case, however,
since
respondents
have
terminated
petitioner treating his appointment only as
temporary taking recourse of Rules 1975,
this approach of respondents is clearly in
the teeth of law laid down in above
Division Bench judgments in Ravi Karan
Singh vs. State of U.P. (supra); Sanjai
Kumar vs. Dy. Director General (NCE),
Directorate (supra) and Ram Chandra
vs. State of U.P. (supra).

20. Considering the totality of the
facts and circumstances of the case, the
writ petition is allowed. Impugned order
dated 10.5.2002 (Anexure No. 9) is
hereby quashed. Petitioner shall be
entitled for all consequential benefits.
----------

(2019)12 ILR A1118

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ-A No. 69714 of 2015

Sunil Kumar Dubey & Ors. ...Petitioners
Versus
4 All. Sunil Kumar Dubey & Ors. Vs. State of U.P. & Ors.
1119
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mukesh Kumar Singh, Sri A. Khare, Sri
Ashok Khare

Counsel for the Respondents:
C.S.C., Sri Anup Dhar Dubey, Sri Arvind
Prabodh Dubey, Sri Pranesh Dutt Tripathi,
Sri Satyendra Kumar Mishra, Sri Sunil
Kumar Singh, Sri Vinay Kumar Rai, Sri
Yogendra Kumar Srivastava

A. Service Law - U.P. Basic Education
(Teachers Service) Rules, 1981- Rule 14,
17, 18, 19, 22 - Seniority - Total 208
candidates were issued appointment
letters
on
the
same
date
-
for
appointment to the post of Assistant
Teacher at junior basic School. They
were given 15 days joining time - none
of them lost seniority - inter se seniority
to be determined from the date of initial
appointment
in
substantive
vacancy
under Rule 18 (4 ) read with R.19 and 22
of the Rules, 1981.

Held:- Under the scheme of the Rules, 1981 as
noted above, it was not open for the District
Basic Education Officer to determine seniority
of teachers from the date of their joining
instead of date of their initial appointment on
a substantive post. (Para 38)

Writ Petition allowed. (E-9)

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri Ashok Khare learned
Senior Advocate assisted by Sri Mukesh
Kumar Singh learned Advocate for the
petitioner, Sri Pranesh Dutt Tripathi
learned Advocate for the respondent no. 4.
Sri Arvind Prabodh Dubey learned
Advocate has put in appearance on behalf
of the respondent no. 5 and Sri Anup Dhar
Dubey
and
Sri
Yogendra
Kumar
Srivastava learned Advocates appear on
behalf of respondent nos. 8 to 11.

2. The present writ petition has been
filed by 47 persons working on the post of
Assistant
Teacher,
Senior
Basic
School/Headmaster, Junior Basic School
(both carrying the same pay scale),
seeking for quashing of the promotion
orders dated 31.7.2015 for granting
promotion to the post of Headmaster,
Senior Basic School to a total number of
437 persons. Further, prayer is to direct
the
respondents
to
redetermine
the
seniority position of the petitioners herein
from the date of their substantive
appointment and not from the date of
joining on the post of Assistant Teacher,
Junior Basic School.

3. The private respondent nos. 5 to
14
are
impleaded
in
representative
capacity to represent the promotees, who
were granted promotion on the post of
Headmaster, Senior Basic School on
31.7.2015.

4. Sri Anup Dhar Dubey and Sri
Yogendra
Kumar
Srivastava
learned
Advocates
appearing
on
behalf
of
respondent nos. 8 to 11 and have filed a
counter
affidavit
on
their
behalf.
Respondent no. 5 is represented by Sri
Arvind Prabodh Dubey learned Advocate
who had filed his Vakalatnama on
15.7.2019.

5. The facts in brief relevant to
decide the controversy at hand are that
total
208
candidates
were
issued
appointment letters in District Kushinagar
on
25.11.1999
for
appointment
as
Assistant Teacher in Junior Basic School
after
completion
of
Special
B.T.C.
Training
Course-1999,
after
getting
certificate dated 25.10.1999 as successful
candidates. There is no dispute about the
date of issuance of the appointment letters
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
to the petitioners herein, which is
25.11.1999 in case of all the candidates
including
the
petitioners
and
the
respondents herein. It is also admitted that
15 days time was provided to the
candidates to join the post of Assistant
Teacher in Junior Basic School.

6. The petitioners being teachers
working in the schools run by Basic
Education Board, their recruitment is
governed by the provisions of U.P. Basic
Education (Teachers Service) Rules 1981
(hereinafter referred to as "the Rules,
1981"). The appointing authority for all
categories of posts under the Rules, 1981
is the Basic Education Officer of the
concerned district.

7. In paragraphs '17' and '18' of the
writ petition, it is contended that total 208
candidates had joined on different dates
after receipt of the appointment letters
dated 25.11.1999. The last batch of the
candidates had joined on 10.12.1999. The
petitioners herein joined the post of
Assistant Teachers in Junior Basic School
of District Kushinagar between 3.12.1999
and 7.12.1999.

8. It is stated in paragraph '19' of the
writ petition that out of total 208 candidates as
stated above, only 172 persons including the
petitioners herein were in service on the date
of filing of the writ petition.

9. It is then contended that all
Assistant Teachers, Junior Basic School
(including the petitioners herein) who
were appointed by the orders dated
25.11.1999 were promoted to the post of
Headmaster,
Junior
Basic
School/Assistant Teacher, Senior Basic
School. These promotions were made in
two bulk.

10. All teachers who belonged to
Scheduled Castes and Scheduled Tribes
category were granted promotion on
30.6.2004 while the remaining teachers
including the candidates belonging to
Other Backward Classes were granted
promotion on 27.7.2007.

11. Pursuant to the aforesaid
promotion orders, all promotees including
the petitioners herein had joined forthwith
and started working on the promoted post.
There was no dispute with regard to
interse seniority of the Assistant Teachers
in District Kushinagar at that point of
time, since all the persons who were
appointed on 25.11.1999 to the posts of
Assistant
Teachers
in
Junior
Basic
Schools were promoted on the same day
to the post of Headmasters, Junior Basic
School/Assistant Teacher, Senior Basic
School (both posts carrying the same pay
scale) and further for the fact that the said
post is 100% promotional. It is contended
that there exist total number of 565 Senior
Basic Schools in District Kushinagar and
consequently the same number of posts of
the Headmaster.

12. The dispute arose when
promotion exercise to the post of
Headmaster in Senior Basic Schools was
undertaken in the year 2015 with the
circulation of a provisional seniority list
of
Headmasters,
Junior
Basic
School/Assistant Teachers, Senior Basic
School.

13. It is contended that prior to the
year 2015, a provisional seniority list
dated 15.7.2010 was circulated by the
District
Basic
Education
Officer,
Kushinagar. But since the said seniority
list did not include the names of teachers
appointed on 25.11.1999 and was limited
4 All. Sunil Kumar Dubey & Ors. Vs. State of U.P. & Ors.
1121
to the appointees uptil the year 1992,
there was no question of raising any
dispute by the petitioners. No final
seniority list was published, thereafter,
nor any promotion had been done till the
year
2013.
Fresh
proceeding
for
promotion was initiated in the year 2013
with the publication of a provisional
seniority list which included the names of
the petitioners. A copy of the said
seniority list is appended as Annexure '9'
to the writ petition to assert that the said
seniority list referred both the dates of
first appointment and joining separately
under different columns, but seniority had
been fixed from the date of joining of
individual candidates. Objections were
filed but no final seniority list was
published by the District Basic Education
Officer. Certain promotions were made to
the posts of Headmaster, Senior Basic
Schools but since they were limited to the
candidates appointed prior to 25.11.1999
as Assistant Teacher, Junior Basic School
and no teacher appointed on 25.11.1999
was promoted in the year 2013, there was
no question of raising any dispute.

14. It is further contended that the
petitioners sought information under
Right to Information Act in the year 2013
but the same was not properly replied and
copy of district-wise seniority list as
demanded by the petitioners was not
supplied to them at that point of time.

15. Be that as it may, on 12.6.2015,
the District Basic Education Officer,
Kushinagar
circulated
a
provisional
seniority list of Headmaster, Junior Basic
School and Assistant Teacher, Senior
Basic School inviting objections against
the same. A copy of the list has been
appended as Annexure '14' to the writ
petition.

16. The names of appointees on the
post of Assistant Teacher in Junior Basic
School on 25.11.1999 (including the
petitioners herein) are found in the said
list.

17. A perusal of the said list
indicates that the date of joining of
individual candidates has been treated to
be
the
date
of
their
substantive
appointment
while
determining their
interse seniority.

18. The submission is that the
petitioners herein had filed objection
dated 17.6.2015 against the erroneous
determination of interse seniority but
without taking any decision on the said
objections, without publication of final
seniority list, promotion orders dated
31.7.2015 granting promotion to a total
number of 437 persons as Headmaster,
Senior Basic School, had been issued. The
cause of action for filing the present writ
petition arose on account of the said
action of the respondents.

19. The submission of learned
Senior Counsel for the petitioners is that
the
determination
of
seniority
of
candidates under Rule 22 of the Rules,
1981 has to be made from the date of their
appointment in a substantive vacancy. As
all candidates who were appointed on the
post of Assistant Teachers in Junior Basic
School on 25.11.1999 were promoted on
the same date to the post of Assistant
Teacher
in
Senior
Basic
School/Headmaster, Junior Basic School,
there cannot be any change in their interse
seniority, which has to be determined
from the date of their initial appointment
in service on substantive post. That means
interse seniority of all such appointees has
to be determined from the date of their
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
initial appointment i.e. 25.11.1999. The
entire exercise of promotion in question,
therefore, is contrary to the Rules, 1981.

20. These submissions are repelled
by Sri Pranesh Dutt Tripathi learned
Advocate for the respondent no. 4 from
the averments made in the counter
affidavit filed on behalf of the District
Basic Education Officer.

21. Reference has been made to
paragraphs '6' to '8' of the counter
affidavit to state that seniority of Assistant
Teachers in District Kushinagar had been
determined on the basis of date of their
joining and based on the said seniority
list, promotions were granted to the post
of
Headmaster,
Junior
Basic
School/Assistant Teacher, Senior Basic
School in the years 2004 and 2007, when
all the petitioners were also promoted. No
objection
had
been
raised
by
the
petitioners against the said seniority list
prepared on the basis of date of their
joining. In the year 2015, the seniority list
of Headmaster, Junior Basic School and
Assistant Teacher, Senior Basic School
was again circulated in all 14 blocks of
District Kushinagar and objections were
invited.

22. After decision on all objections,
final seniority list was published and,
thereafter, 626 Assistant Teachers had
been called for counselling held between
11.2.2015 and 14.7.2015. The petitioners
herein had also participated in the
counselling process. They cannot be
allowed to turn around to challenge the
seniority list or the promotion orders,
once they acquiesced with the fact of
interse seniority of the Assistant Teachers
in District Kushinagar. All teachers from
serial no. 1 to 473 from the said seniority
list promoted to the post of Headmaster in
Senior Basic School are senior to the
petitioners and there is no infirmity in
consideration of the date of the joining
and date of birth of the respective
candidates
for
the
purpose
of
determination of their interse seniority.

23. As the petitioners did not
challenge
the
promotion
exercise
conducted in the years 2004 and 2007 and
participated in the promotion exercise
held in the year 2015, the challenge to the
seniority list published in the year 2015
cannot be entertained.

24. Having heard learned counsel
for the parties and perused the record,
before entering into the controversy at
hand, it would be appropriate to go
through the scheme of the Rules, 1981,
which
provides
for
recruitment,
promotion, seniority of Assistant Teachers
in Basic Schools run by Basic Education
Board.

25. The U.P. Basic Education
(Teachers) Service Rules, 1981 (Rules
1981) have been framed by the Governor
in exercise of powers under sub-section
(1) of Section 19 of the Uttar Pradesh
Basic Education Act, 1972 (hereinafter
referred to as "the Act, 1972").

26. The 'Basic School' as defined in
Rule 2(c) of the Rules, 1981 means a
school where instructions from class I to
VIII are imparted. 'Junior Basic School' as
per Rule 2(h) means a Basic School
where instructions from Classe I to V are
imparted. 'Nursery School' as per Rule
2(j) means a school in which children
ordinarily of the age up to six years and
taught in classes lower than class I.
'Senior Basic School' means a Basic
4 All. Sunil Kumar Dubey & Ors. Vs. State of U.P. & Ors.
1123
School where instructions from Class VI
to VIII are imparted. As per Rule 2(o),
'Teacher' means a person employed for
imparting instructions in Nursery Schools,
Basic Schools, Junior Basic Schools, or
Senior Basic Schools.

27. Part II of the Rules, 1981
provides for 'cadre and strength' of the
service.

Rule 4 as contained in Part II of
the Rules, 1981 reads as under:-

"4. Strength of the Service. -
(1) There shall be separate cadres of
service under these rules for each local
area.

(2) The strength of the cadre of
the teaching staff pertaining to a local
area and the number of the posts in the
cadre shall be such as may be determined
by the Board from time to time with the
previous
approval
of
the
State
Government :

Provided that the appointing
authority may leave unfilled or the Board
may hold in abeyance and post or class of
posts without thereby entitling any person
to compensation :

Provided further that the Board
may, with the previous approval of the
State Government, create from lime to
time such number of temporary posts as it
may deem fit."

Rule 5 in Part III of the Rules,
1981
provides
for
the
'Source
of
Recruitment' and reads as under:-

"5. Sources of recruitment. -
The mode of recruitment to the various
categories of posts mentioned below shall
be as follows :

(a) (i) Mistresses of Nursery
Schools By
direct
recruitment
as
provided in Rules 14 and 15;

(ii)
Assistant
Masters
and
Assistant

Mistresses
of
Junior
Basic
Schools

(b)
(i)
Headmistresses
of
Nursery By promotion as provided in

Schools

Rule
18;

(ii) Head Masters and Head
Mistresses
By promotion as provided
in
of Junior Basic Schools

Rule 18;

(iii) Assistant Masters of Senior
Basic
By promotion as provided in

Schools

Rule
18;

(iv) Assistant
Mistresses
of
Senior
By promotion as provided in

Basic Schools

Rule
18;

(v) Head Masters of Senior
Basic
By promotion as provided in

Schools

Rule
18;

(vi) Head Mistresses of Senior
Basic
By promotion as provided in

Schools

Rule
18;

Provided
that
if
suitable
candidates
are
not
available
for
promotion to the posts mentioned at (iii)
and (iv) above, appointment may be made
by direct recruitment in the manner laid
down in Rule 15."

28. A careful reading of Rules 4 and
5 together shows that there is one cadre of
service which is Basic Education Teacher
local area-wise. Meaning thereby, in one
local area there is only one cadre.
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
Different categories of posts i.e. Assistant
Teacher (Junior Basic School), Assistant
Teacher (Senior Basic School), Head
Master
(Junior
Basic
School)
and
Headmaster (Senior Basic School) are
kept in one cadre of the local area in
which they are appointed. The hierarchy
of posts, however, is relevant for the
purpose of promotion to the posts of
Headmaster,
Junior
Basic
School/Assistant Teacher, Senior Basic
School and Headmaster of Senior Basic
School as they are 100% promotional
posts.

29. The essential qualifications for
promotion to the aforesaid posts as per
clause (b) of Rule 5 of the Rules, 1981 as
provided in sub-rule (3) of Rule 8 of the
Rules, 1981.

Relevant
Rule
8(3)
is
reproduced as under:-

 "8(3) The minimum experience
of candidates for promotion to a post
referred to in clause (b) of Rule 5 shall by
as shown below against each-

Post

Experience

(i) Head mistresses of Nursery
School
At least five years' teaching

experience
as permanent

Mistress of Nursery School;

(ii)
Head
master
or
Headmistress of
 At least five years'
teaching

Junior
Basic
Schools
and
Assistant experience as permanent

Master or Assistant Mistress of
Senior
Assistant Mistress or Assistant

Basic School

Master of Junior Basic School;

(iii)
Head
master
or
Headmistress for At least three years'
experience

Senior Basic School

as permanent Headmaster
or

Headmistress of Junior Basic

School
or
Assistant Master or

Assistant Mistress of Senior

Basic
School, as the case may

be:
Provided
that
if
sufficient

number of suitable or eligible

candidates
are not available for

promotion to the posts

mentioned at serial numbers (ii)

or (in), the
field of eligibility

may be extended by the Board

by
giving relaxation in the

period of experience.

Rule 18 provides for 'Procedure
for Recruitment by Promotion' which
reads as under:-

"18. Procedure for recruitment
by promotion. - (1) Recruitment by
promotion to the posts referred to in
clause (b) of Rule 5 shall be made on the
basis of seniority subject to rejection of
unfit through the Selection Committee
constituted under Rule 16.

(2) The appointing authority
shall prepare an eligibility list of
candidates in order of seniority and place
it
before
the
Selection
Committee
alongwith their character rolls and such
other records pertaining to them as may
be considered proper.

(3) The Selection Committee
shall consider the cases of the candidates
4 All. Sunil Kumar Dubey & Ors. Vs. State of U.P. & Ors.
1125
on the basis of the records referred to in
sub-rule (2).

(4) The Selection Committee
shall prepare a list of selected candidates
in order of seniority as disclosed from the
eligibility list referred to in sub-rule (2)
and forward the same to the appointing
authority."

Rule
19
provides
for
Appointment after selection, which reads
as under:-

"19. Appointment. - (1) The
appointing
authority
shall
make
appointment to any post referred to in
Rule 5 by taking the names of the
candidates in the order in which they
stand in the list prepared under Rule 17
or 17-A or 18, as the case may be.]

(2) The appointing authority
may make appointments in the temporary
and officiating vacancies also from the
lists referred to in sub-rule (1).

(3) No appointment shall be
made except on the recommendation of
the Selection Committee, and, in the case
of direct recruitment except on production
of residence certificate issued by the
Tahsildar.

Rule
22
provides
for
determination of seniority of teachers
which is reproduced as under:-

"22.
Seniority.
-
(1)
The
seniority of a teacher in a cadre shall be
determined by the date of his appointment
in a substantive capacity :

Provided that, if two or more
persons are appointed on the same date
their seniority shall be determined in
which their names appear in the list
referred to in Rule 17 or 17-A or 18, as
the case may be.

Note. - A candidate selected by
direct recruitment may lose his seniority,
if he fails to join without valid reasons
when a vacancy is offered to him whether
the reasons in any particular case are
valid or not shall be decided by the
appointing authority.]

(2) The seniority of a teacher
who has been transferred from one local
area to another in accordance with the
provisions of Rule 21 shall be placed at
the bottom of the list of teachers of the
corresponding
class
or
category
pertaining to the local area to which he
has been transferred, as on the date of
orders for transfer are passed, such a
persons shall not be entitled to any
compensation.

30. A careful and conjoined reading
of the Rules 8(3), 18, 19 and 22 of the
Rules,
1981
shows
that
all
such
candidates who are eligible for promotion
to the post of Headmaster, Junior Basic
School and Assistant Teacher, Senior
Basic School have to be kept in one
eligibility list in order of their seniority by
the appointing authority in terms of Rule
18(2)
of
the
Rules,
1981,
for
consideration of their candidature by the
Selection Committee constituted under
Rule 16 alongwith their character rolls
and other relevant records. Under Rule
18(4), the list of selected candidates is to
be prepared by the Selection Committee
in the same order of seniority as disclosed
from the eligibility list referred to in subrule (2) of Rule 18, for forwarding the
same to the appointing authority.

31. Rule 19 further states that
appointing
authority
shall
make
appointment to the post referred to in
Rule 5 by taking the names of the
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
candidates in the same order as they stand
in the list prepared under Rule 18.

32. Meaning thereby, the interse
seniority of the candidates found eligible
and suitable for promotion by the
Selection Committee would remain the
same on their appointment to the
promoted post.

33. The interse seniority of directly
recruited candidates at the entry level post
i.e. the post of Assistant Teacher, Junior
Basic School is determined as per Rule 17
at the time of their direct recruitment.

34. Rule 22 (1) readwith proviso
appended to it further states that interse
seniority of teachers in a cadre has to be
determined according to the same order in
which their names appear in the list
referred to in Rule 17 or 18.

35. Only exception to the said
position is by a 'Note' appended to the
proviso to sub-rule (1) of Rule 22 which
states that a candidate selected by direct
recruitment may lose his seniority, if he
fails to join within time given by the
appointing authority without any valid
reason.

36. Sub-rule (2) of Rule 22 further
provides that a teacher would lose his
seniority on transfer from one local area
to another local area on his request or
with his consent.

37. In the instant case, admitted
position is that total number of 208
candidates
were
issued
appointment
letters on the same date i.e. 25.11.1999 for
appointment to the post of Assistant
Teacher in Junior Basic School in District
Kushinagar, which is the entry level post.
They were given 15 days of joining time
and had joined within the said period.
There is nothing on record which would
indicate that any of such candidate had
lost his seniority for the fact of nonjoining within the joining time granted by
the appointing authority. The 'Note'
appended to the proviso to sub-rule (1) of
Rule 22, therefore, is not attracted. None
of them would lose their seniority and their
interse seniority has to be determined from the
date
of
their
initial
appointment
i.e.
25.11.1999 as per rule 14 readwith rule 17 of
the Rules, 1981. On promotion to the post of
Assistant
Teacher
in
Senior
Basic
School/Headmaster, Junior Basic School, their
interse seniority would remain unchanged for
the admitted fact that all of them were
promoted on the same date. Their seniority
has to be determined as per Rule 18(4)
readwith Rules 19 and 22 taking into
consideration the date of their initial
appointment in substantive vacancy on the
post of Assistant Teacher in Junior Basic
School, which is 25.11.1999 for all such
appointees.

38. Under the scheme of the Rules,
1981 as noted above, it was not open for
the District Basic Education Officer to
determine seniority of teachers from the
date of their joining instead of date of
their initial appointment on a substantive
post. The said flaw in determination of
seniority is evident from the averments
made by the District Basic Education
Officer,
Kushinagar
in
his
counter
affidavit. His defence only is that the
petitioners cannot be allowed to agitate
the dispute pertaining to their interse
seniority as promotions were made in the
years 2004 and 2007 and they participated
in the exercise, result of which is under
challenge. The said argument is wholly
unsustainable.
4 All. Sunil Kumar Dubey & Ors. Vs. State of U.P. & Ors.
1127

39. The obvious reason is that there
was no occasion for the petitioners to
raise any dispute as all teachers appointed
on 25.11.1999 were promoted to the post
of Headmaster in Junior Basic School and
Assistant Teacher in Senior Basic School.

40. This fact is also admitted to the
District
Basic
Education
Officer,
Kushinagar and private respondents in
their counter affidavits.

41. In fact, the dispute with respect
to the interse seniority petitioners and
private respondents arose in the year 2015
when provisional seniority list was
published
on
12.6.2015
determining
seniority of the Assistant Teachers from
the date of their joining instead of the date
of
their
initial
appointment.
The
petitioners raised objections and filed the
instant writ petition, immediately after
receipt
of
the
information
of
the
promotion order. There is no latches on
the part of the petitioners in challenging
the wrong determination of their seniority
vis-a-vis promotees. The entire exercise
of promotion to the post in question on
the basis of the said seniority list is,
therefore, illegal.

42. In the facts and circumstances of
the present case, it cannot be said that
interse seniority of the teachers in the
Basic Schools of District Kushinagar was
settled and cannot be reopened.

43. For the above discussions, the
promotion orders dated 31.7.2015 are
liable to be set aside.

44. The District Basic Education
Officer, Kushinagar is hereby directed to
prepare
a
fresh
seniority
list
by
determining interse seniority of the
candidates appointed on 25.11.1999 from
the date of their initial appointment as per
the Rules, 1981. After re-determination of
the seniority of all such persons, their
candidature for promotion to the post of
Headmaster in Senior Basic School,
District Kushinagar shall be considered
afresh. The orders of promotion shall,
accordingly, be issued and implemented
immediately after determination of their
seniority.

45. It is further directed that in
case,
in
the
fresh
exercise,
the
petitioners
are
found
eligible
for
promotion and are selected as per their
seniority
against the
vacancies
of
Headmaster, Senior Basic School filled
by promotion on 31.7.2015, they shall
be given notional promotion w.e.f. that
date till actual promotion orders are
issued.

46. It is further made clear that in
case of reshuffling of the list of promotees
and reversion of the respondents, no
recovery shall be made from them.

47. The entire exercise shall be
completed within a period of two months
from the date of submission of certified
copy of this order.

48.

In
view
of
the
above
observations and directions, the writ
petition is allowed.
----------
(2019)12 ILR A1127

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2019
BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 543 of 2017