RAJ NATH SHARMA Vs. DIRECTOR OF EDUCATION

JUDGEMENT

(1.) D. K. Seth, J. In this case the fixation of seniority of respondent No. S, above that of the petitioner, in service has been challenged. The same dispute was involved in writ petition No. 7659 of 1986, in which the parties appeared in changed position, namely the respondent No. 5 as the petitioner therein and the petitioner herein as respondent No. 2 therein. I shall refer to the said case shortly afterwards.

(2.) THE facts of the present case, in short compass is that the concerned School was established as Junior High School in July 1968 and was subse quently upgraded with effect from the academic session 1971- 72- THE petitioner was appointed as assistant teacher in B. T. C. grade on 1-8-1968 in the said School before upgradation. THE petitioner was then appointed as officiating Head Master of the said School on 19th October 1970, by a resolu tion of the Managing Committee, which is Annexure 1 to the writ petition. THE petitioner continued to function as Head Master till up-gradation. THE petitioner thereafter continued to discharge the function of Head Master even after the up-gradation. Consequently, he is entitled to be appointed as Head Master of the said School in view of Regulation 2 (2) of Chapter II of the Regulations framed under U. P. Intermediate Education Act. Alternatively, according to the petitioner without any break since 1st July, 1971, ha worked as Hindi teacher in L. T. Grade after having been appointed on 1st November, 1970, as has been recorded in his service book.

(3.) THE respondent No. 5 is contesting the case by filing a counter-affidavit, alleging, inter alia, that one Sri Kripa Shanker Srivastava, was functioning as Head Master of the said School since 9th October, 1968, who continued as such, at the time of up-gradation of the School. THE petitioner was temporarily looking after the working of Head Master. He was never appointed permanently. THE said Kripa Shanker Srivastava continued to function as Head Master even after up-gradation till June 1986, which is apparent from the service book of Sri Kripa Shanker Srivastava, copy whereof is Annexure 1 to the counter-affidavit, together with a certificate, issued by the Manager of the School, enclosed as Annexure 2 to the counter-affidavit. THE petitioner was appointed in B. T C. Grade, therefore, he would not be promoted in C. T. Grade in the year 1969 before expiry of five years nor could be promoted from B. T. C. Grade to L. T. Grade in the year 1971. THE petitioner had never applied for being selected as L. T. Grade teacher. At the time of approval the name of respondent No. 6 was shown at serial No. T and the petitioner was shown at serial No. '2'. THE respondent No. 6 was born on 30-10-1939, whereas the petitioner was born on 1-1-1943. Even assuming that the petitioner was actually appointed in L. T. Grade in the year 1973 even then the respondent No. 5 would be senior to the petitioner, by reason of age. No post of L. T. Grade teacher was sanctioned in the Junior High School. THErefore, the petitioner could not have been appointed in L. T. Grade in Junior High School. THE payment of salary unauthorisedly does not confer any benefit on the petitioner.