# Sri Ram Swaroop Kainthola v. Director of Education (Secondary) U.P. Allahabad and others

- **Citation:** (2008) 3 ILRA 961
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-11
- **Case number:** Special Appeal No. 80 of 1998
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-ram-swaroop-kainthola-v-director-of-education-secondary-u-p-allahabad-and-41286
- **Pages:** 3

## Headnote

U.P. Intermediate Education Act 192Chapter II Regulation 3 (1)(b)-Senioritydate of appointment of petitioner and
respondent no. 4 in C.T. Grade is sameR-4 promoted in L.T. grade on 26.4.90
while petitioner after completion of 10
years service given the benefit of L.T.
grade salary only on 9.1.95-held-getting
salary in particular pay scale can not be
treated validly appointed-even otherwise
R-4 was treated senior to the petitioner
at every stage-never questioned by the
petitioner-No occasion to claim seniority
against R-4.

Held: Para 7

To the same effect is the view taken in
Virendra Pandey Vs. State of U.P. and
others, 1994(24) ALR 19 and Km. Sheela
Sanyal Vs. State of U.P. and others, 1995
ALJ 589. A Single Judge of this Court
(Hon'ble Dr. B.S. Chauhan, J., as His
Lordship then was) in Madan Gopal
Agrawal Vs. The District Inspector of
Schools, Bijnor and others, 1996 (3) ESC
202 after referring to the relevant
Government Orders said that grant of
L.T.
grade
under
the
aforesaid
Government Orders is personal and it
does not mean holding of a post in L.T.
grade inasmuch as, when such person
would retire it would result in a vacancy
in C.T. grade and not in L.T. grade. The
incumbent cannot be said to hold post of
Assistant Teacher in L.T. grade. Another
Single Judge of this Court (Hon'ble
Ashok Bhushan, J.) in Writ Petition No.
39731 of 2000, Ansal Lal Jha Vs. District
Inspector
of
Schools,
Badaun
and
another, decided on 13.02.2006 has
followed the same. Besides, one of us
(Hon'ble Sudhir Agarwal, J.) has also
taken the same view in Smt. Bharti Roy
Vs. Deputy Director of Education II,
Kanpur and others, 2008(2) ESC 911. We
are in respectfully agreement with the
view taken in the aforesaid judgements.
Since the petitioner was never appointed
in L.T. grade but was only granted said
pay scale as per the Government Order
dated 03.06.1989, it is evident that he
has no occasion to claim seniority over
respondent
no.
4
who
has
been
promoted in L.T. grade and that too on
regular basis w.e.f. 30.06.1996.
Case law discussed:
1993 (2) ESC 456, 1994(24) ALR 19, 1995 ALJ
589, 1996 (3) ESC 202, Writ Petition No.
39731 of 2000, 2008(2) ESC 911

## Text

3 All] Sri Ran Swaroop Kainthola V. Director of Education and others
961
Accordingly, the appeal fails and is
dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 11.09.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 80 of 1998

Sri Ram Swaroop Kainthola ...Appellant
Versus
Director of Education (Secondary) U.P.
Allahabad and others
...Respondents

Counsel for Appellant:
Sri Rakesh Thapliyal
Sri Deepak Jaiswal
Sri Narendra Mohan
Sri Santosh Tripathi

Counsel for the Respondents:
Sri Shrikant Shukla
Sri B.D. Upadhyaya

U.P. Intermediate Education Act 192Chapter II Regulation 3 (1)(b)-Senioritydate of appointment of petitioner and
respondent no. 4 in C.T. Grade is sameR-4 promoted in L.T. grade on 26.4.90
while petitioner after completion of 10
years service given the benefit of L.T.
grade salary only on 9.1.95-held-getting
salary in particular pay scale can not be
treated validly appointed-even otherwise
R-4 was treated senior to the petitioner
at every stage-never questioned by the
petitioner-No occasion to claim seniority
against R-4.

Held: Para 7

To the same effect is the view taken in
Virendra Pandey Vs. State of U.P. and
others, 1994(24) ALR 19 and Km. Sheela
Sanyal Vs. State of U.P. and others, 1995
ALJ 589. A Single Judge of this Court
(Hon'ble Dr. B.S. Chauhan, J., as His
Lordship then was) in Madan Gopal
Agrawal Vs. The District Inspector of
Schools, Bijnor and others, 1996 (3) ESC
202 after referring to the relevant
Government Orders said that grant of
L.T.
grade
under
the
aforesaid
Government Orders is personal and it
does not mean holding of a post in L.T.
grade inasmuch as, when such person
would retire it would result in a vacancy
in C.T. grade and not in L.T. grade. The
incumbent cannot be said to hold post of
Assistant Teacher in L.T. grade. Another
Single Judge of this Court (Hon'ble
Ashok Bhushan, J.) in Writ Petition No.
39731 of 2000, Ansal Lal Jha Vs. District
Inspector
of
Schools,
Badaun
and
another, decided on 13.02.2006 has
followed the same. Besides, one of us
(Hon'ble Sudhir Agarwal, J.) has also
taken the same view in Smt. Bharti Roy
Vs. Deputy Director of Education II,
Kanpur and others, 2008(2) ESC 911. We
are in respectfully agreement with the
view taken in the aforesaid judgements.
Since the petitioner was never appointed
in L.T. grade but was only granted said
pay scale as per the Government Order
dated 03.06.1989, it is evident that he
has no occasion to claim seniority over
respondent
no.
4
who
has
been
promoted in L.T. grade and that too on
regular basis w.e.f. 30.06.1996.
Case law discussed:
1993 (2) ESC 456, 1994(24) ALR 19, 1995 ALJ
589, 1996 (3) ESC 202, Writ Petition No.
39731 of 2000, 2008(2) ESC 911

(Delivered by Hon'ble S. Rafat Alam, J.)

1. This matter has been listed for
orders
with
the
office
note
dated
10.07.2007. We are of the view that the
notice sent to respondent no. 3 shall be
deemed to have served in view of the
provisions contained under Chapter VIII,
Rule12, Explanation II of the High Court
Rules. However, on the request made by
learned counsel for the parties the appeal
962 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
itself is taken up for hearing on merits and
is being decided at this stage.

2. Heard Sri Deepak Jaiswal learned
counsel
for
the
appellant,
learned
Standing Counsel for respondents no. 1
and 2 and Sri Srikant Shukla, learned
counsel appearing for respondent no. 4.

3. Aggrieved by the judgement
dated
20.11.1997,
whereby
Hon'ble
Single Judge has dismissed the Writ
Petition No. 32056 of 1997 of the
petitioner-appellant (hereinafter referred
to as the "petitioner") disputing his
seniority qua respondent no. 4, the
petitioner has filed this intra Court appeal
under the Rules of the Court.

4. The submission of learned
counsel for the petitioner is that in B.T.C.
grade the petitioner and respondent no. 4
were appointed on the same date i.e.
01.08.1977 and in C.T. Grade also they
were promoted on the same date i.e.
19.01.1985. The respondent no. 4 was
promoted in L.T. grade on ad hoc basis on
26.04.1990 while the petitioner was
promoted in L.T. grade on 09.01.1995
after completion of his 10 years of service
in C.T. Grade as per the Government
Order dated 03.06.1989. But in view of
the Regulation 3(1)(b) of Chapter II of the
Regulations
framed
under
U.P.
Intermediate Education Act, 1921 he
contended that the seniority of teachers in
a grade shall be determined on the basis
of their substantive appointment in that
grade, therefore, the petitioner was
entitled to be treated senior to respondent
no. 4 on the basis of age. He submitted
that the Hon'ble Single Judge has erred in
law in not considering this aspect of the
matter correctly.

5. However, we do not find any
force in the submission. From the record
it is evident that in B.T.C. grade and in
C.T. Grade both petitioner and respondent
no. 4 were appointed and promoted on the
same date but throughout, respondent no.
4 was treated senior to the petitioner and
that was never challenged by him. The
respondent no. 4 being senior in C.T.
Grade was granted promotion on ad hoc
basis in L.T. grade on 26.04.1990 and was
regularised on 30.06.1996 when the post
fell substantially vacant due to the
retirement
of
the
incumbent.
That
promotion of respondent no. 4 was also
not challenged by petitioner at any point
of time. As his own case the petitioner
was given L.T. grade on 09.01.1995. That
being so, the respondent no. 4 in all
circumstances is senior to the petitioner in
L.T. grade having been appointed in the
said grade much earlier to the petitioner.
Moreover,
the
petitioner
was
not
promoted in L.T. grade on 09.01.1995 but
was allowed the said scale pursuant to the
Government Order dated 03.06.1989 after
having been completed his 10 years in
C.T. grade. This Court in Vipin Kumar
Vs. D.I.O.S. and others, 1993 (2) ESC
456, held that mere grant of pay scale in a
particular grade is not equivalent to
holding of substantial cadre in a particular
grade. In para 9 of the judgement the
Division Bench has said:

"A Teacher who is working in L.T.
grade is to be promoted to the post of
Lecturer's grade in the sense that he is to
be promoted to the post of Lecturer in an
institution. A teacher may be given
Lecturer's pay scale but he may not be
given the post. Unless he is given a post
the mere fact that he has been given
Lecturer's pay scale will not be taken as
to have given him the post of Lecturer
3 All] New India Assurance Co. Ltd. V. Smt. Prabhawati Devi and others
963
unless he is duly promoted to the said post
in accordance with the provisions of a
Statute."

6. In the present case here is a matter
where it is the grant of L.T. grade after
rendering 10 years service in C.T. grade
but the law laid down in Vipin Kumar
(supra) would ipso facto apply with full
force.

7. To the same effect is the view
taken in Virendra Pandey Vs. State of
U.P. and others, 1994(24) ALR 19 and
Km. Sheela Sanyal Vs. State of U.P.
and others, 1995 ALJ 589. A Single
Judge of this Court (Hon'ble Dr. B.S.
Chauhan, J., as His Lordship then was) in
Madan Gopal Agrawal Vs. The District
Inspector of Schools, Bijnor and others,
1996 (3) ESC 202 after referring to the
relevant Government Orders said that
grant of L.T. grade under the aforesaid
Government Orders is personal and it
does not mean holding of a post in L.T.
grade inasmuch as, when such person
would retire it would result in a vacancy
in C.T. grade and not in L.T. grade. The
incumbent cannot be said to hold post of
Assistant Teacher in L.T. grade. Another
Single Judge of this Court (Hon'ble Ashok
Bhushan, J.) in Writ Petition No. 39731
of 2000, Ansal Lal Jha Vs. District
Inspector of Schools, Badaun and
another, decided on 13.02.2006 has
followed the same. Besides, one of us
(Hon'ble Sudhir Agarwal, J.) has also
taken the same view in Smt. Bharti Roy
Vs. Deputy Director of Education II,
Kanpur and others, 2008(2) ESC 911.
We are in respectfully agreement with the
view taken in the aforesaid judgements.
Since the petitioner was never appointed
in L.T. grade but was only granted said
pay scale as per the Government Order
dated 03.06.1989, it is evident that he has
no occasion to claim seniority over
respondent no. 4 who has been promoted
in L.T. grade and that too on regular basis
w.e.f. 30.06.1996.

8. In the circumstances, we do not
find any error legal or factual in the
judgement under appeal. The appeal lacks
merit and is accordingly dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

First Appeal From Order No. 991 of 2008

New India Assurance Co. Ltd.

 ...Defendant/Appellant
Versus
Smt. Prabhawati Devi and others

...Respondents

Counsel for the Appellant:
Sri Arvind Kumar

Counsel for the respondents:

(A)
Words
and
Phrases-"Gratuitous
Passengers" explained as per dictionary
of law of Laxcan-as a passenger carried
out on account of grace.

Held: Para 4

According to us, "gratuitous passenger"
is neither authorised passenger nor
unauthorised passenger. A "gratuitous
passenger" is a passenger who has been
carried out on account of grace.

(B) Motor Vehicle Act, 1988-Section 147-
Gratuitous
Passengers-whether
the
owner of goods travelling in cabin of