RAM JIYAWAN DEV Vs. STATE OF U P

JUDGEMENT

(1.) EARLIER Rama Kant Tripathi, respondent No. 5, had filed writ petition No.4100 of 2008, wherein this Court on 21.01.2008 had passed following order: "No interference is required in the impugned order, even though the dispute with regard to inter se seniority between the petitioner and respondent nos. and 6 is pending consideration before the Joint Director of Education. Nonetheless, the post of Principal at the time could only be filled up by the senior most Teacher. In the present case, admittedly, respondent no.5 is the senior most. Till such time as the dispute is not decided by the Joint Director of Education, as an interim measure the authority was justified in directing respondent no.5 to officiate as the Principal of the institution. I do not find any error in the impugned order. Writ petition fails and is dismissed. However, I direct the Joint Director of Education, Varanasi Region, Varanasi to decide the inter se seniority after hearing all the concerned parties within four weeks from the date of the production of a certified copy of this order. Sri A.K. Ojha, appears for respondent no.5." Pursuant to aforesaid order, the Joint Director of Education took up the matter, and thereafter respective representations had been filed by the parties concerned and then on 25.03.2009, the Joint Director of Education proceeded to pass order accepting the seniority status. At this juncture present writ petition has been filed. Sri Ashok Khare, Senior Advocate, assisted by Sri Kripa Kant Pandey, Advocate, contended with vehemence that in the present case, Joint Director of Education has transgressed and overstepped his jurisdiction, inasmuch as seniority dispute was to be determined within the parameter of Chapter II Regulation 3 of U.P. Act No. 2 of 1921 and while determining the seniority dispute validity of the appointment was not liable to be looked into, as such writ petition deserves to be allowed. Countering the said submission, learned Standing Counsel and Sri N.K. Pandey, Advocate, on the other hand, contended that rightful view has been taken in the matter, appointment of the petitioner is nullity, as such no interference be made. After respective arguments have been advanced, the factual position which emerges in the present case is that the Joint Director of Education, Varanasi has proceeded to note the fact of making representation, factum of supply of copy of representation, and thereafter has noted down the order passed by this Court, and then has proceeded to note down the respective parties who were called upon. Thereafter, Joint Director of Education has proceeded to note down the documents filed on behalf of the parties and the comments submitted by the District Inspector of Schools, and then has proceeded to note down the analysis part. The Joint Director of Education qua petitioner has proceeded to mention that appointment of petitioner has not been made against any post and he is lacking eligibility criteria, as such claim of seniority is meritless, whereas appointment of Rama Kant Tripathi has been made against sanctioned post and same has been approved. The Joint Director of Education has not at all proceeded to decide the dispute in terms of Chapter II Regulation 3 of U.P. Act No. 2 of 1921. To the contrary, the Joint Director of Education has proceeded to examine the validity of appointment , for which this Court in the cases of Vijai N. Sharma vs. District Inspector of Schools, 1986 UPLBEC page 44, and Manju Kesh Dixit vs. State of U.P., 2005 (1) LBESR page 452 has taken the view that at the time of determination of seniority dispute, seniority has to be determined as per Chapter II Regulation 3 of U.P. Act No. 2 of 1921, collateral examination of validity of appointment is not permissible. Sri N.K. Pandey, Advocate placing reliance on a decision of Hon'ble Apex Court in the case of District Basic Education Officer and another vs. Dhanajay Kumar Shukla and another, (2008) 3 SCC 481, has contended that petitioner's appointment is nullity and same can be challenged. Said case was not the matter dealing with seniority dispute, rather therein validity of the appointment itself was in issue and in the said background, such issue had been decided. Each case is decided on its own peculiar characteristic. Here tenor of the order is clearly reflective of the situation that much stress has been laid down on the validity of appointment which was made 32 years back instead of proceeding to decide the dispute on the basis of the provisions as contained under Chapter II Regulation 3 of U.P. Act No. 2 of 1921. In the facts of the case order impugned is not sustainable in law. Consequently, writ petition succeeds and the same is allowed. Order dated 25.03.2009 is hereby quashed and set aside, and the matter is remitted back to the Joint Director of Education, Varanasi to be decided seniority dispute afresh in accordance with law, by means of reasoned and speaking order, on the basis of the material on record produced by the parties strictly inconsonance with Chapter II Regulation 3 of U.P. Act No. 2 of 1921, within eight weeks from the date of receipt of certified copy of this order.