# Lal Mani v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-15
- **Case number:** Special Appeal No. 681 of 2023
- **Bench:** Ashwani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-mani-v-state-of-u-p-ors-50905
- **Pages:** 15

## Headnote

Civil Law - Statutory Scheme under U.P.
Secondary Education Service Selection
Board Act, 1982 - The appellant, an L.T.
Grade teacher, claimed seniority as a Lecturer
based on Government Orders granting higher
pay-scale and designation after 10 years of
service - Held, seniority on the post of Lecturer
is governed by Regulation 3 of the U.P.
Intermediate Education Act, 1921, and requires
substantive appointment or promotion under
Section 16 of the Act of 1982; mere grant of
pay-scale or designation under Government
Orders does not confer substantive appointment
or seniority, as per Dr. Rashmi Srivastava Vs
Vikram University. (Paras 7, 9, 15, 17, 19)

Government
Orders
-
Scope
and
Limitation
-
The
appellant
relied
on
Government Orders dated 28.02.1990 and
25.10.2000 to claim Lecturer status - Held,
these orders grant personal benefits of higher
pay-scale and designation to teachers meeting
specific criteria (10 years of teaching higher
classes with requisite qualifications) but do not
constitute substantive promotion under the Act
of 1982; such benefits are ex-cadre and
personal, not affecting cadre seniority, as
clarified in Bharti Roy Vs Deputy Director of
Education-II. (Paras 6, 11, 16, 18, 19)

Substantive Appointment and Promotion -
Mandatory Procedure - The appellant's claim
to Lecturer seniority was based on an order
dated 14.05.2023 granting Lecturer designation
- Held, substantive appointment or promotion
to Lecturer requires adherence to Section 12 of
the Act of 1982 and Rule 14 of the Rules of
1998; non-compliance renders such promotion
void under Section 16(2), and the appellant
remained an L.T. Grade teacher, as supported by
Madan Gopal Agrawal Vs District Inspector of
Schools. (Paras 9, 10, 14, 15, 19)

Inter-se Seniority - Effect of Transfer -
The appellant, transferred in 2016, was placed
at the bottom of seniority in the new institution,
while
the
respondent/writ
petitioner,
a
substantively appointed Lecturer since 2011,
was senior - Held, transfer rules under the Act
1 All. Lal Mani Vs. State of U.P. & Ors.
19
of 1921 place transferred teachers at the
bottom of seniority, and the appellant's personal
promotion did not override the respondent's
substantive appointment, justifying the Single
Judge's decision. (Paras 3, 4, 7, 19)
Protection of Personal Benefits - The Single
Judge set aside the order granting the appellant
Lecturer status but allowed personal benefits to
continue - Held, the court's modification
ensures that pay-scale and designation benefits
under the Government Orders remain personal
to the appellant without affecting cadre seniority
or substantive appointment, aligning with Vipin
Kumar Vs District Inspector of Schools. (Paras
19, 20, 21)

Special Appeal Disposed of.

List of Cases cited:

## Text

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18 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner did not raise the plea of not being
given opportunity to cross-examine the
witnesses or to lead evidence in his reply to
the enquiry report, would not infuse life
into the proceedings which as noted above
were non est in the eyes of law. The
appellants in fact failed to bring home the
charges, in absence of oral enquiry. The
illegality was not a curable one so as to
sustain the plea of 'non-prejudice' and
'waiver'. We are in complete agreement
with the learned Single Judge that the
inherent defects in the enquiry had
rendered the same vulnerable in law. We
also find no good ground to interfere with
the order of learned Single Judge insofar it
declines to remit the matter for fresh
enquiry as the petitioner had died long back
and holding enquiry in his absence at this
distance in time would not only be a futile
but a sham exercise.

26. In view of foregoing discussion,
we find no merit in the instant appeal. It is,
accordingly, dismissed.
----------
(2024) 1 ILRA 18
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Special Appeal No. 681 of 2023

Lal Mani ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Agarwal, Sri Abhishek Kumar
Saroj

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Dwivedi, Sri
Shivendu Ojha, Sri R.K. Ojha (Sr. Advocate)

Civil Law - Statutory Scheme under U.P.
Secondary Education Service Selection
Board Act, 1982 - The appellant, an L.T.
Grade teacher, claimed seniority as a Lecturer
based on Government Orders granting higher
pay-scale and designation after 10 years of
service - Held, seniority on the post of Lecturer
is governed by Regulation 3 of the U.P.
Intermediate Education Act, 1921, and requires
substantive appointment or promotion under
Section 16 of the Act of 1982; mere grant of
pay-scale or designation under Government
Orders does not confer substantive appointment
or seniority, as per Dr. Rashmi Srivastava Vs
Vikram University. (Paras 7, 9, 15, 17, 19)

Government
Orders
-
Scope
and
Limitation
-
The
appellant
relied
on
Government Orders dated 28.02.1990 and
25.10.2000 to claim Lecturer status - Held,
these orders grant personal benefits of higher
pay-scale and designation to teachers meeting
specific criteria (10 years of teaching higher
classes with requisite qualifications) but do not
constitute substantive promotion under the Act
of 1982; such benefits are ex-cadre and
personal, not affecting cadre seniority, as
clarified in Bharti Roy Vs Deputy Director of
Education-II. (Paras 6, 11, 16, 18, 19)

Substantive Appointment and Promotion -
Mandatory Procedure - The appellant's claim
to Lecturer seniority was based on an order
dated 14.05.2023 granting Lecturer designation
- Held, substantive appointment or promotion
to Lecturer requires adherence to Section 12 of
the Act of 1982 and Rule 14 of the Rules of
1998; non-compliance renders such promotion
void under Section 16(2), and the appellant
remained an L.T. Grade teacher, as supported by
Madan Gopal Agrawal Vs District Inspector of
Schools. (Paras 9, 10, 14, 15, 19)

Inter-se Seniority - Effect of Transfer -
The appellant, transferred in 2016, was placed
at the bottom of seniority in the new institution,
while
the
respondent/writ
petitioner,
a
substantively appointed Lecturer since 2011,
was senior - Held, transfer rules under the Act
1 All. Lal Mani Vs. State of U.P. & Ors.
19
of 1921 place transferred teachers at the
bottom of seniority, and the appellant's personal
promotion did not override the respondent's
substantive appointment, justifying the Single
Judge's decision. (Paras 3, 4, 7, 19)
Protection of Personal Benefits - The Single
Judge set aside the order granting the appellant
Lecturer status but allowed personal benefits to
continue - Held, the court's modification
ensures that pay-scale and designation benefits
under the Government Orders remain personal
to the appellant without affecting cadre seniority
or substantive appointment, aligning with Vipin
Kumar Vs District Inspector of Schools. (Paras
19, 20, 21)

Special Appeal Disposed of.

List of Cases cited:

1. Dr. Rashmi Srivastava Vs Vikram University,
(1995) 3 SCC 653

2. Bharti Roy Vs Deputy Director of EducationII, 2008 (2) ADJ 134

3. Madan Gopal Agrawal Vs District Inspector of
Schools, 1996 (3) ESC 202

4. Vipin Kumar Vs District Inspector of Schools,
(1993) 3 UPLBEC 1900

5. Bal Krishna Agarwal Vs St. of U.P., (1995) 1
SCC 614

6. Narendra Singh Vs Jai Bhagwan, AIR 2005 SC
582

7. Ram Pal Singh Vs Khandey, 1976 RD 162

8. Raj Bahadur Vs Board of Revenue, 1979 RD
50

9. Rati Ram Vs Rajvir, 1991 ALJ 58

10. Ansan Lal Jha Vs District Inspector of
Schools, Writ No. 39731 of 2000 (All HC,
13.02.2006)

(Delivered by Hon'ble Ashwani Kumar
Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. This intra-court appeal is filed by
the appellant, Lal Mani, against the
judgment and order dated 25.08.2023,
passed by the Single Judge in Writ-A
No.10696 of 2023 (Jeet Lal Saroj Vs. The
State of U.P. And 3 Others).

2. The appellant was the respondent
in the writ petition filed before the learned
Single Judge. He was appointed as
'Assistant Teacher' in 'Physical Education'
on 05.10.2006 in L.T. Grade. He sought
transfer
to
Saraswati
Shiksha
Sadan
Intermediate College, Marron, Handia,
District Prayagraj (herinafter referred to as
'Institution') and the same was allowed vide
order dated 07.01.2016. The appellant
consequently joined on 01.02.2016.

3. As against the case of appellant, the
respondent/writ petitioner was appointed as
Lecturer
on
substantive
basis
on
08.12.2010. His appointment was pursuant
to the recruitment exercise undertaken by
the U.P. Secondary Education Service
Selection Board vide Advertisement No.1
of 2009. The respondent/writ petitioner
actually joined on 04.01.2011 in a different
institution. He too sought transfer, which
was allowed on 28.06.2019 and he acutally
joined on 04.07.2019.

4. The substantive post of Principal in
the institution fell vacant. It transpires that
the appellant claimed benefit of two
Government Orders dated 28.02.1990 and
25.10.2000 and asserted that he is entitled
to the post of Lecturer w.e.f. 05.10.2016,
upon completion of ten years' service in the
L.T. Grade. The claim of appellant in that
regard was intially rejected on 26.11.2018.
Certain proceedings were then initiated by
the State Scheduled Castes Commission
20 INDIAN LAW REPORTS ALLAHABAD SERIES
and the Authorities had a change of heart
and a fresh order came to be passed on
14.05.2023, granting the benefit of the
post of Lecturer to the appellant w.e.f.
05.10.2016. Once that was so, the
appellant was treated senior as a
Lecturer
to
the
respondent/writ
petitioner
and
was
consequently
allowed to officiate as Principal. We
may note that under the applicable
provisions upon transfer of a teacher
from one institition to another, he is to
be placed at the bottom of the seniority.

5. Aggrieved by the order of the
District Inspector of Schools, Prayagraj,
the
respondent/writ
petitioner
approached this Court by filing Writ-A
No.10696 of 2023 (Jeet Lal Saroj Vs.
The State of U.P. And 3 Others), which
has been allowed by the learned Single
Judge vide judgement and order dated
25.08.2023.
Thus
aggrieved,
the
respondent in the writ petition has
challenged the judgment and order of
learned Single Judge by filing the
present special appeal.

6. Shri Rahul Agarwal, learned
counsel for the appellant contends that
the object of the two Government
Orders is to grant benefit of higher payscale to a teacher placed in a Lower
Grade, consequent upon satisfactory
working of specificed length i.e. ten
years, wherein he has taught students of
a higher class. In order to appreciate the
contentions so advanced by learned
counsel for the appellant, it would be
relevant to take note of the two
Government Orders, which are relied
upon by the appellant in support of its
case. The first Government Order in
that
regard
dated
28.02.1990
is
reproduced hereinafter:-

"विषयः- िेतन पुनरीक्षण सविवत,
उत्तर प्रदेश, 1989 की संस्तुवतय ं पर विये गये
वनणणयानुसार अशासकीय सहायताप्राप्त उच्चतर
िाध्यविक विद्यािय ं/इण्टर कािेज ं िे शैवक्षक
पद ं पर पुनरीवक्षत िेतनिान की स्वीकृवत।

िह दय,

उपयुणक्त विषयक शासनादेश संख्या-
4749/15-8-89/3087/89 वदनांक 4 अक्टूबर,
1989 के पैरा-3 के अनुक्रि िें िुझे यह कहने
का वनदेश हुआ है वक किा, व्यायाि, भाषा, गृह
विज्ञान, वशल्प, संगीत, विभाषा, पेंविग, िंकण,
आशुविवपक तथा क्राफ्ट विषय ं क कक्षा 9-10
िें पढाने िािे सी.िी. ग्रेड िें वनर्ाणररत अहणता के
अर्ीन वनयुक्त अध्यापक ं क जब कक्षा 9-10 िें
पढाते हुए 10 पषण पूरे ह जाये त उन्हें एि. िी.
ग्रेड के सार्ारण िेतनिान 1400-40-1800द.र .-50-2300 वदया जाये।

2- उक्त विषय ं के कक्षा 11-12 िें
पढाने िािे एि. िी. ग्रेड के ऐसे अध्यापक ं क ,
वजनकी वनयुक्तक्त वनर्ाणररत अहणता के अर्ीन हुई
है, जब कक्षा 11-12 िें पढाते हुए 10 िषण पूरे ह
जायें त उन्हें प्रिक्ता िेतनिान रू० 1600-502300-द.र .-60-2600 वदया जाये।

3- भविष्य िें उपयुणक्त विषय ं क
पढाने िािे अध्यापक ं की एि. िी. एिं प्रिक्ता
िेतनिान िें वनयुक्तक्त के विए सम्बक्तित व्यिसाय
की अहणता के साथ क्रिशः स्नातक/ स्नातक त्तर
अहणता वनर्ाणररत की जाती है।

4- ये आदश वित्त (िेतन आय ग)
अनुभाग-2 के अशासकीय संख्या-िे.आ. (2)
55/10-90 वदनांक 28 फरिरी, 1990 िें प्राप्त
उनकी सहिवत से जारी वकये जा रहे हैं।"

The Second Government Order,
relied upon dated 25th October, 2000 is
also reproduced hereinafter-

"विषयः
अशासकीय
सहायता
प्राप्त
िाध्यविक
विद्यािय ं
के
किा,
व्यायाि, वशल्प आवद विषय ं के अध्यापक ं
1 All. Lal Mani Vs. State of U.P. & Ors.
21
क प्रिक्ता पद की वनर्ाणररत अहणता रखने
पर प्रिक्ता पद नाि वदये जाने के सम्बि िें।

िह दय,

उपयुणक्त विषयक वनदेशािय के
प्रिांक साख (1)/वश./ 8744/2000-2001
वदनांक 4 वसतम्बर, 2000 के सन्दभण िें िुझे
यह कहने का वनदेश हुआ है वक
अशासकीय सहायता प्राप्त ऐसे िाध्यविक
विद्यािय ं
(इन्टर
कािेज ं),ज
किा,
व्यायाि, भाषा, वशल्प आवद विषय ं से इण्टर
स्तर तक िान्यता प्राप्त है, िै कायणरत उक्त
विषय ं के ऐसे अध्यापक ं ज वनरन्तर 10 िषण
से इण्टर िें पढा रहे हैं तथा प्रिक्ता
िेतनिान प्राप्त कर रहे हैं, क वनम्न शतों एिं
प्रवतबि ं के अर्ीन 'प्रिक्ता' पद नाि वदये
जाने की श्री राज्यपाि सहषण स्वीकृवत प्रदान
करते हैं।

(1) वजन अशासकीय सहायता
प्राप्त िाध्यविक विद्यािय ं (इण्टर कािेज ं)
िे किा, व्यायाि, भाषा, वशल्प, संगीत आवद
विषय ं िें प्रिक्ता के पद सृवजत नहीं है,
उनिें प्रिक्ता िेतनिान िें कायण करने िािे
अध्यापक ं क स्नातक श्रेणी के िूिपद क
सिाप्त करते हुए प्रिक्ता पद िें उच्चीकृत
वकया जायेगा तथा प्रिक्ता िेतनिान प्राप्त
अध्यापक ं क यवद िे प्रिक्ता पद हेतु
वनर्ाणररत अहणता रखते ह ं, उपयुणक्तानुसार
उच्चीकृत पद ं के सापेक्ष वनयुक्त कर वदया
जायेगा।

(2) प्रिक्ता िेतनिान प्राप्त ऐसे
अध्यापक ज प्रिक्ता पद हेतु वनर्ाणररत
अहणता नहीं रखते है, िे पूिणित स्नातक
िेतनक्रि की भांवत वशक्षा प्रदान करते रहेगें
तथा उनकी सेिावनिृवत्त के उपरान्त स्नातक
श्रेणी का पद उसी वतवथ से सिाप्त ह कर
प्रिक्ता पद िें पररिवतणवत ह जायेगा।

(3) उपयुणक्त प्रस्तर-1 एिं 3 िें
िवणणत सुविर्ा केिि उन्हीं अशासकीय
सहायता प्राप्त िाध्यविक विद्यािय ं के
अध्यापक ं की प्राप्त ह गी, वजन्हें संबंवर्त
विषय िें इण्टर स्तर की िान्यता प्राप्त ह ।

(4)
सम्बक्तित
अध्यापक
क
शासनादेश संख्या 1121/15-8-90/3087/89,
वदनांक 28 फरिरी 1990 के प्रस्तर-3 के
अर्ीन सम्बक्तित व्यिसाय की अहणता के
साथ स्नातक त्तर उपावर् की अहणता रखना
आिश्यक है।

(5) यह सुविर्ा केिि उन्हीं
अध्यापक ं क अनुिन्य ह गी ज संबंवर्त
विषय ं िें कक्षा-11 एिं 12 क पढाते हुए 10
िषण की वनरन्तर संत षजनक सेिा पूरी करते
हुए प्रिक्ता का िेतनिान 1600-2660
(पुराना) िैयक्तक्तक रूप से प्राप्त कर चुके
ह ।

(6) उक्त विषय ं के केिि उन्हीं
अध्यापक ं क प्रिक्ता पद नाि अनुिन्य
ह गा ज ,इस आदेश के जारी ह ने की वतवथ
तक वनर्ाणररत अहणता पूरी कर चुके ह ।

(7) प्रिक्ता पद पर कायणभार ग्रहण
करने िािे अध्यापक ं की ज्येष्ठता उक्त पद
पर कायणभार ग्रहण करने की वतवथ से ही
वनर्ाणररत की जायेगी। उनकी पूिण सेिायें
स्नातक श्रेणी के रूप िें िानी जायेगी तथा
प्रिक्ता पद का कायणभार ग्रहण करने के
बाद स्नातक श्रेणी की सेिाओं का क ई िाभ
प्रिक्ता के चयन/ प्र न्नत िेतनिान वदये जाने
हेतु अनुिन्य नहीं ह गा।

(8) पदनाि पररिवतणत ह ने के
फिस्वरूप यवद वकसी प्रकार का व्यय भार
उत्पन्न ह गा त उसका बिन राज्य सरकार
अथिा वशक्षा विभाग के िुख्यािय द्वारा नहीं
वकया जायेगा और न ही इस विषय िें वकसी
22 INDIAN LAW REPORTS ALLAHABAD SERIES
प्रकार का अनुदान वकसी भी श्र त से उपब्ध
कराया जायेगा।

(9) उपयुणक्तानुसार प्रिक्ता पद
की अहणता/रखने िािे अध्यापक ं क
पदनाि वदये जाने से पूिण उनके विक्तखत
अण्डर िेवकंग िे िी जायेगी तावक ज्येष्ठता
वनर्ाणररत आवद के संबंर् िें बाद िें क ई
वििाद उत्पन्न न ह ।

2. यह आदेश वित्त (िेतन
आय ग) अनुभाग-2 के अशासकीय संख्या
िे.आ. (2) 1507/दस/2000 वदनांक 25
अक्टूबर 2000 िें प्राप्त उनकी सहिवत से
वनगणत वकये जा रहे है।"

7. The core issue involved in the
case is with regard to the determination
of
inter-se
seniority
between
the
appellant
and
the
respondent/writ
petitioner. The seniority on the post of
Lecturer is to be governed by Regulation
3 framed under Chapter-II of the U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as 'Act of 1921').
Regulation 3 (1) being relevant is
reproduced hereinafter:-

"3(1).
The
Committee
of
Management of every institution shall
cause a seniority list of teachers to be
prepared
in
accordance
with
the
following provisions:-

(a) The seniority list shall be
prepared separately for each grade of
teachers
whether
permanent
or
temporary, on any substantive post;

(b) Seniority of teachers in a
grade shall be determined on the basis
of their substantive appointment in that
grade. If two or more teachers were so
appointed on the same date, seniority
shall be determined on the basis of age;
.............................."

8. The provisions of the Act of 1921
as well as regulations framed thereunder
would continue to govern appointment and
promotion
in
various
recognized
educational institutions, in so far as they
are not inconsistent with the provisions of
the U.P. Secondary Education Services
Selection Board Act, 1982. Section 32 of
the Act of 1982 has cleary pointed out this
position and is reproduced hereinafter:-

"32. Applicability of U.P. Act No.
II of 1921. - The provisions of the
Intermediate Education Act, 1921 and the
Regulations made thereunder in so far as
they are not inconsistent with the provisions
of this Act [or the rules or regulations
made thereunder] shall continue to be in
force for the purposes of selection,
appointment,
promotion,
dismissal,
removal, termination or reduction in rank
of a teacher."

9. It is to be borne in mind that
appointment and promotion on the post of
Assistant Teacher and Lecturer in an
institution
recognized
under
the
Intermediate
Education Act, 1921
is
regulated by the U.P. Secondary Education
Service Selection Board Act, 1982. Section
16 of the Act of 1982 is reproduced
hereinafter:-

"16. Appointment to be made
only on the recommendation of the Board.
- (1) Notwithstanding anything to the
contrary contained in the Intermediate
Education Act, 1921 or the regulations
made thereunder but subject to the
provisions of ["Sections 12, 18, 21-B, 21-C,
21-D, 21-E, 21-F, 21-G, 33, 33-A, 33-B, 33C,
33-D,
33-F
and
33-G"],
every
appointment of a teacher, shall on or after
the date of the commencement of the Uttar
Pradesh Secondary Education Services
1 All. Lal Mani Vs. State of U.P. & Ors.
23
Selection Board (Amendment) Act, 2001 be
made by the Management only on the
recommendation of the Board.

Provided that in respect of
retrenched employees, the provisions of
Section
16-EE
of
the
Intermediate
Education
Act,
1921,
shall
mutatis
mutandis apply.

Provided
further
that
the
appointment of a teacher by transfer from
one Institution to another, may be made in
accordance with the regulations made
under clause (c) of sub-section (2) of
Section 16-G of the Intermediate Education
Act, 1921.

[Provided
also
that
the
dependent, of a teacher or other employee
of an Institution dying-in-harness who
possesses the qualifications prescribed
under the Intermediate Education Act, 1921
may be appointed as teacher in Trained
Graduate's Grade in accordance with the
regulations made under sub-section (4) of
Section 9 of the said Act.]

(2) Any appointment made in
contravention of the provisions of subsection (1) shall be void."

10. For any appointment to be
lawfully made in an educational insitituon
recognized under the Act of 1921 it would
have to be consistent with the provisions of
the Act of 1982. Appointment under the Act
of 1982 would include promotion for which
separate procedure is prescribed under
Section 12 of the Act of 1982 read with
Rule 14 of the Rules of 1998. The
procedure for promotion specified under
the Act of 1982 read with Rules of 1998
unless
are
followed,
no
substantive
promotion to the post of Lecturer can be
said to have been made. It is to be noticed
that any promotion made in an institution
without following the procedure prescribed
under the Act of 1982 would be void by
virtue of Section 16(2) of the Act of 1982.

11. The above statutory scheme is
specific and has to be borne in mind when
this Court is called upon to interpret the
provisions of the government order issued
by the State Government. Government
Order dated 28.02.1990 provides that the
teacher appointed on the specified post in
C.T. Grade and if has been teaching
students of Classes 9th and 10th , then upon
completion of ten years of such service, he
would become entitled to salary in the payscale of an L.T. Grade Teacher. Similarly,
L.T. Grade teachers possessing requisite
qualification when is teaching students of
Classes 11th and 12th for ten years would
become entitled to salary in the pay-scale
of a Lecturer. The Government Order of
28.02.1990 therefore merely extends the
benefit of a higher pay-scale to a teacher
otherwise having qualification, if he has
been teaching on such higher posts for
more than ten years. Similarly, the
Government Order dated 25.10.2000 states
that such teachers, who have been teaching
for the last ten years in intermediate section
and are receing salary in the Lectureres'
Grade, would be entitled to the benefit of
designation of the post of Lecturer. Clause
6
of
the
Government
Order
dated
28.02.1990 indicates that its benefit was to
be extended to such teachers, who had
requisite qualification on the date of
issuance of the Government Order dated
25.10.2000. It would be worth noticing at
this stage that a subsequent Government
Order has also been issued on 06.10.2015,
which interprets the aforesaid Government
Orders. Paragraph Nos.2 and 4 of this
Government Order is relied upon by
leanred counsel for the appellant, which are
reprouduced hereinafter:-
24 INDIAN LAW REPORTS ALLAHABAD SERIES

"2. प्रश्नगत शासनादेश वदनांक 30
अक्टूबर, 2000 िें प्रािर्ान वकया गया वक
वजन अशासकीय सहायता प्राप्त िाध्यविक
विद्यािय ं (इण्टर कािेज ं िें) किा, व्यायाि,
भाषा, गृहविज्ञान, वशल्प, संगीत, विभाषा,
पेंविग, िंकण, आशुविवपक, क्रांफ्ट आवद
विषय ं िें प्रिक्ता के पद सृवजत नहीं है,
उनके प्रिक्ता िेतनिान िे कायण करने िािे
अध्यापक ं क स्नातक श्रेणी के िूि पद क
सिाप्त करते हुए प्रिक्ता पद िें उच्चीकृत
वकया जाय तथा प्रिक्ता िेतनिान प्राप्त
अध्यापक ं क यवद िे प्रिक्ता पद हेतु
वनर्ाणररत अहणता रखते ह , उपयुणक्तानुसार
उच्चीकृत पद ं के सापेक्ष वनयुक्त वकया
जायेगा। प्रश्नगत शासनादेश िें उल्लेख है वक
यह सुविर्ा केिि उन्हीं सहायक अध्यापक ं
क अनुिन्य ह गी ज सम्बक्तित विषय िें
कक्षा-11 एिं 12 क पढाते हुए 10 िषण की
वनरन्तर संत षजनक सेिा पूरी करते हुए
प्रिक्ता का िेतनिान 1600-2660 (पुराना)
िैयक्तक्तक रूप से प्राप्त कर रहे ह ।

4. उल्लेखनीय है वक कवतपय
जनपद ं के वजिा विद्यािय वनरीक्षक ं द्वारा
िषण 1996 के बाद वनयुक्त एि० िी० ग्रेड के
व्यायाि वशक्षक ं क , उनकी 10 िषण की
सेिा के आर्ार पर वित्त एिं िेखावर्कारी
का परािशण प्राप्त कर, प्रिक्ता पदनाि
अनुिन्य वकया गया है। उपर क्त के
फिस्वरूप प्रिक्ता पद पर िौविक रूप से
चयवनत/पद न्नवत प्राप्त प्रिक्ता, एि० िी०
ग्रेड के उन वशक्षक ं से कवनष्ठ ह रहे हैं,
वजन्हें प्रिक्ता पदनाि अवनयवित रूप से
अनुिन्य वकया गया है।"

12.

The
thrust
of
appellant's
submission is that once benefit of pay-scale
and designation of the post of Lecturer is
accorded to the teacher by virtue of his
having taught in intermidiate section for ten
years, the concerned teacher would be
entitled
to
become
a
Lecturer
and
consequently would be entitled to seniority
on the post of Lecturer.

13. The argument advanced on behalf
of the appellant is strongly opposed by Shri
R. K. Ojha, learned Senior Counsel assisted
by Shri Shivendu Ojha, learned counsel for
the respondent/writ petitioner and Shri
Ramesh Chandra Dwivedi, learned counsel
for the Committee of Management. The
respondent/writ petitioner contendes that
merely on acccount of grant of higher payscale or designation, the appointment of
appellant would not be converted into a
substantive appointment on the post of
Lecturer, which alone would confer benefit
of seniority on such teacher.

14. We have already indicated that the
aforesaid Government Orders would have
to be read in the context of the statutory
scheme, which specifies the manner and
mode of appointment of a teacher as well
as the promotion to a higher post. The Act
of 1982 as well as Rules framed thereunder
specifies the procedure for such substantive
appointment and promotion. It is admitted
that
the
appellant
has
not
been
substantively promoted to the post of
Lecturer for which specific provision has
been laid down in Rule 14 of the Rules of
1998, which is reprouduced hereinafter:-

"14. Procedure for recruitment
by promotion. - (1) Where any vacancy is
to be filled by promotion, all teachers
working in Trained graduates grade or
Certificate of Teaching grade, if any, who
possess the qualifications prescribed for the
post and have completed five years
1 All. Lal Mani Vs. State of U.P. & Ors.
25
continuous regular service as such on the
first day of the year of recruitment shall be
considered for promotion to the Lecturers
grade or the Trained graduates grade, as the
case may be, without their having applied
for the same.

Note.- For the purposes of this
sub-rule, regular service rendered in any
other
recognised
institution
shall
be
counted for eligibility, unless interrupted by
removal, dismissal or reduction to a lower
post.

(2) The criterion for promotion
shall be seniority subject to the rejection of
unfit.

(3)
The
Management
shall
prepare a list of teachers referred to in subrule (1), and forward it to the Inspector
with a copy of seniority list, service
records, including the character rolls, and a
statement in the pro forma given in
Appendix 'A'.

(4) Within three weeks of the
receipt of the list from the Management
under sub-rule (3), the Inspector shall
verify the facts from die record of his office
and forward the list to the Joint Director.

(5) The Joint Director shall
consider the cases of the candidates on the
basis of the records referred to in sub-rule
(3) and may call for such additional
information as it may consider necessary.
The Joint Director shall place the records
before the Selection Committee referred to
in sub-section (1) of Section 12 and after
the Committee's recommendation, shall
forward the panel of selected candidates
within one month to the Inspector with a
copy thereof to the Management.

(6) Within ten days of the receipt
of the panel from the Joint Director under
sub-rule (5), the Inspector shall send the
name of the selected candidates to the
Management of the institution which has
notified the vacancy and the Management
shall accordingly on authorisation under its
resolution issue the appointment order in
the proforma given in Appendix 'F' to such
candidate."

15. In view of Section 16 of the Act
of 1982, any substantive appointment or
promotion unless is made in accordance
with the provisions of the Act of 1982 or
the
Rules
framed
thereunder,
such
appointment or promotion would be void
by virtue of Section 16 of the Act of
1982. The Government Orders therefore
will have to be treated as granting
benefit, which is personal to the teacher
concerned.

16. The Government Order of 25th
October, 2000 upgrades the post of L.T.
Grade teacher in specified circumstances
and also grants benefit of designation on
the post of Lecturer as also seniority from
the date a person joins on the post of
Lecturer. The benefit in that regard is
personal
to
the
teacher
concerned
inasmuch as the post of L.T. Grade
teacher would be treated to have been
abolished. Such promotion cannot be
treated to be a substantive promotion in
the grade and cadre of Lecturer since the
procedure for appointment to the post of
Lecturer as per the Act of 1982 is not
followed. Such promotion at best can be
treated personal in nature to the teacher
concerned against an ex-cadre post or
else the Government Order itself would
become inconsistent with the Act of
1982. The seniority of teacher who is
granted the benefit of personal promotion
under the Government Order dated 25th
October, 2000 therefore would have to be
separately maintained. The benefit of
seniority in the cadre of Lecturer
therefore
cannot
be
granted
under
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Regulation 3 framed under Chapter-II to
the Act of 1921.

17. In Dr. Rashmi Srivastava Vs.
Vikram University and others, 1995(3)
SCC 653 a similar issue came up for
consideration before the Apex Court. Claim
of seniority between direct recruits and
those promoted under the merit promotion
scheme was examined. In paras 37 and 38
of the judgment, the Apex Court observed
as under:-

"37.
A
resume
of
relevant
provisions of the merit promotion scheme
and the relevant provisions of the Vikram
University Act (sic M.P. Vishwavidyalaya
Adhiniyam, 1973) to which we have made
reference earlier clearly shows that when
the Act was enacted in 1973 the State
Legislature had not contemplated any
promotion of a Lecturer as Reader or
Reader as Professor as the case may be. All
the relevant ordinances and statutes will
therefore have to be read in that light. It is
not possible to agree with the contention of
the learned counsel for appellants that
Section 49 as enacted can take in its sweep
even departmental promotees. A mere look
at Section 49 shows that the Members of
the
Committee
of
Selection
as
contemplated by sub-section (4) of Section
49 have to investigate the merits of the
various candidates and to recommend to
the Executive Council the names if any, of
persons whom they consider suitable for
the posts, arranged in order of merit. Subsection (5) mentions that out of the names
so recommended under sub-section (4) the
Executive Council shall appoint persons in
order of merit. This clearly contemplates an
open market recruitment procedure by way
of
direct
recruitment
and
candidates
selected will have to be appointed in order
of merit. It is obvious that there would be
no occasion to consider the question of
inter se merit of a departmental promotee
and a direct recruit. It is also pertinent to
note that in the year 1973 the subsequent
merit promotion scheme of 1982 would
never have been under contemplation of the
Legislature. It must therefore be held on a
conjoint reading of the relevant provisions
of the Act that only one source of
recruitment of University teachers namely,
Professors and Readers and even of
Lecturers is contemplated and that source is
by way of direct recruitment. If that is so
and if under merit promotion scheme as
recommended by the Commission which
was adopted by Respondent 1 University,
any departmental candidate is to be
promoted, he would be so promoted dehors
Section 49 and would obviously be an ex
cadre Reader or Professor as the case may
be. Once that happens it would be obvious
that there would be no occasion to fix the
inter se seniority of directly recruited
Readers and Professors who are holding
cadre posts and ex cadre merit promoted
Readers and Professors who would stand
outside the cadre. The first respondent by
its impugned decision which was quashed
by the High Court in the judgment under
appeal tried to fuse the inter se seniority of
both these classes of employees. And that
itself amounted to treating unequals as
equals. It clearly offended the provisions of
Articles 14 and 16(1) of the Constitution of
India. Unless Section 49 is suitably
amended
and
a
separate
source
of
recruitment by way of internal promotion is
contemplated by the Act there would
remain no occasion of undertaking any
exercise of fixing inter se seniority between
ex cadre employees and cadre employees.
It is not in dispute between the parties that
neither the Act nor any ordinances or
statutes of Respondent 1 University even
remotely whisper about creation of a
1 All. Lal Mani Vs. State of U.P. & Ors.
27
separate recognised source of recruitment
of Professors and Readers by way of
departmental promotions. It is of course
true as indicated by Dr Dhavan appearing
for the intervenors that in some of the
Universities even ordinances have been
issued accepting such new source of
promotion of University teachers under the
merit promotion scheme. But even if it is so
that would make no difference as it is the
parent
Act,
namely,
University
Act
concerned
which
should
contemplate
creation of new source of recruitment by
way
of
departmental
promotions
of
University teachers. Unless that is done
mere issuance of ordinances or statutes to
that effect which to that extent would
conflict with the parent Act would be of no
avail and would be an exercise in futility.
They would also be ultra vires the Act. It
must therefore be held that unless the
University Acts concerned under which the
Universities are functioning, by suitable
amendments provided for an additional
source of recruitment of Readers and
Professors
by
way
of
departmental
promotions,
mere
adoption
of
merit
promotion scheme recommended by the
Commission or mere decision of the
Coordination Committee or Executive
Committee not to discriminate between
merit
promotees
and
direct
recruit
University teachers and even issuance of
ordinances or statutes to that effect would
be of no avail and will not have any legal
effect
nor
would
they
permit
the
Universities concerned to fuse the cadre
employees with ex cadre employees and to
prepare a combined seniority list on that
basis.

38. It is true as submitted by
learned counsel for appellants that for
avoiding stagnation and heart burning
promotional avenues should be made
available in any service as laid down by
this Court in number of decisions to which
our attention was invited by them. However
the short question for our consideration is
whether the University Act concerned has
made such a provision. If a provision is
made then there would be no difficulty in
the way of the appellants but in the absence
of such a provision mere availability of
merit promotion scheme cannot elevate the
merit promoted Reader or Professor to the
cadre of such Readers or Professors as the
case may be. They would remain ex cadre
employees who cannot claim any inter se
seniority with direct recruits forming the
cadre concerned. It is not possible to agree
with the contention of Shri Bobde and Dr
Dhavan that under the merit promotion
scheme though the promotions were
personal, to that extent there was a
temporary extension of the cadre of Reader
or Professor as the case may be or that they
were special promotees as Dr Dhavan
would like to have it. The very guidelines
of the scheme suggest that a merit
promoted Reader or Professor will be
treated to have a personal promotion. It will
not create any addition to the cadre nor will
it create any vacancy in the lower cadre
from which he or she was promoted. The
workload has to be so distributed as not to
require any additional staff. Dr Dhavan said
that this was only because of the financial
crunch. That may be so. But ultimately the
effect thereof would be that once a merit
promoted Reader or Professor goes out of
service there will be no post which will fall
vacant
in
the
promotional
avenue.
Consequently, it cannot be said that there
was any temporary addition to the cadre
strength of Reader or Professor as the case
may be. We entirely concur with the
reasoning adopted by the High Court while
considering the relevant clauses of the
merit promotion scheme when it took the
view that Readers and Professors promoted
28 INDIAN LAW REPORTS ALLAHABAD SERIES
under the scheme were not entitled to be
included in the seniority list of directly
recruited Readers and Professors. Reliance
placed by learned counsel for appellants on
Statute 16 is also of no avail to the
appellants for the simple reason that Statute
16 deals with seniority of teachers of the
University. This statute is promulgated
under Section 35(o) of the Act. Section
35(o) of the Vikram University Act (sic
M.P. Vishwavidyalaya Adhiniyam, 1973)
deals with the mode of determining
seniority for the purpose of the Act.
Consequently it will have to be read with
Section 49 meaning thereby when a
Professor, Reader or Lecturer is recruited
under Section 49 how his seniority is to be
determined can be decided in the light of
the relevant statute framed under Section
35(o). When we turn to Statute 16 we find
that as per clause (2) thereof the seniority
of Professors, College Professors, Readers,
Associate Professors or Lecturers shall be
determined in accordance with the length
of continuous service of such person in the
cadre concerned taken together with length
of continuous service which is equivalent
to or superior to the cadre concerned. It was
submitted by learned counsel for the
appellants that the word cadre as employed
by Statute 16(2) is used in a loose sense. It
is difficult to agree. Statute 16(2) read with
Section 35(o) and Section 49 leaves no
room for doubt, that all those Readers and
Professors who were recruited under
Section 49 as direct recruits and who enter
the cadres of Professors and Readers as the
case may be shall have their seniority
determined in accordance with length of
service in their cadres concerned. As merit
promotee Reader or Professor is outside the
cadre there is no question of Statute 16(2)
operating in his case. It is also pertinent to
note that merit promotee Professors or
Readers form a separate distinct class as
compared to directly recruited Professors or
Readers. It is true that as decided by
Respondent
1
University,
the
same
Selection
Committee
which
directly
recruits Professors and Readers under
Section 49(2) deals with the question of
granting merit promotions to the Lecturers
concerned as Readers and Readers as
Professors. But to that extent the machinery
or infrastructure available under Section
49(2) for directly recruiting teachers was
made available for deciding the eligibility
of departmental candidates for merit
promotion but that would not by itself
create a new source of recruitment for
promotee Readers and Professors unless
Section 49 was suitably amended. That has
not been done till now. In this connection,
we can profitably refer to the decision of
this Court in the case of Bal Krishna
Agarwal (Dr) v. State of U.P. [(1995) 1
SCC 614 : 1995 SCC (L&S) 356 : JT
(1995) 1 SC 471] In that case a Division
Bench of this Court was concerned with the
question whether Professors promoted by
Allahabad University governed under Uttar
Pradesh State University Act, 1973 could
claim seniority vis-à-vis directly recruited
Professors. Under Section 31 a merit
promotion scheme adopted by Allahabad
University was promulgated by State of
Uttar Pradesh. By inserting Section 31-A in
the University Act with effect from 10-101984 a distinct source of recruitment by
way of merit promotion for Lecturers and
Readers in the University was created by
State Legislature. But that section which
created a distinct source of recruitment by
promotion was effectively brought into
force from 10-10-1994. The appellant
before this Court was directly appointed as
Professor
on
9-11-1984
while
the
contesting Respondents 4 and 5 were
promoted as Professors under the scheme
by Government Orders dated 12-12-1983
1 All. Lal Mani Vs. State of U.P. & Ors.
29
and 25-2-1984. These respondents were
treated as senior to the appellant before this
Court. He unsuccessfully challenged the
said fixation of inter se seniority before the
High Court, as the High Court took the
view that the appellant had to be relegated
to the alternative remedy available under
Section 68 of the Act. In appeal pursuant to
leave granted by this Court, S.C. Agrawal,
J. speaking for the Division Bench took the
view that the appellant was entitled to be
treated as senior to the promotee Professor
as Section 31-A was not on the statute book
when Respondents 4 and 5 were promoted
and therefore their promotions could be
treated as valid only from 21-2-1985 when
Section 31-A was enforced. Before that
date the appellant had already entered the
cadre of Professors on 11-11-1984 and
therefore he had to be treated as senior to
Respondents 4 and 5. In para 13 of the
report the following observations were
made in this connection: (SCC pp. 621-22)

"We are of the opinion that in
view of the provisions contained in Section
31-A and Section 2(14) of the Act there is
no escape from the conclusion that
Respondents 4 and 5 could not be given
promotion under the Personal Promotion
Scheme till the necessary provisions
prescribing the length of service and the
qualifications for such promotion were
made in the Statutes and since this was
done by Notification dated 21-2-1985,
promotion under the Personal Promotion
Scheme could not be made prior to 21-21985. The Executive Council in its
Resolution No. 198 dated 8-11-1984 had
accepted the recommendations of the
Selection Committee for promotion of
Respondents 4 and 5 on the basis of
Government Orders dated 12-12-1983 and
25-2-1984. At that time Section 31 of the
Act provided for appointment of teachers
by direct recruitment and did not envisage
promotion from a lower teaching post to a
higher teaching post. The orders of the
Government aforementioned could not be
given effect till necessary amendment was
made in the Act making provision for
personal promotion. This was done by
introducing Section 31-A by U.P. Act No. 9
of 1985 with effect from 10-10-1984. But
Section 31-A could be given effect only
after the necessary provision was made in
the Statutes prescribing the length of
service and the qualifications for personal
promotion.
This
was
done
by
the
notification
dated
21-2-1985.
The
promotion of Respondents 4 and 5 to the
grade of Professor under the Personal
Promotion Scheme could, therefore, not be
made prior to 21-2-1985 and it has to be
treated to have been made with effect from
21-2-1985. The inter se seniority of the
appellant and Respondents 4 and 5 has to
be determined on that basis."

In our view the aforesaid decision
of this Court is squarely applicable to the
facts of the present case. As seen above in
the Uttar Pradesh Act there is already an
amendment by insertion of Section 31-A
which provided for a distinct source of
promotion. In the Vikram University Act
with which we are concerned, there is no
such provision.