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PETITIONER: SHITLA PRASAD SHUKLA

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT19/05/1986

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR 1859            1986 SCR  (3) 106  1986 SCC  Supl.  185     JT 1986   357  1986 SCALE  (1)1311  CITATOR INFO :  RF         1988 SC 162  (19)

ACT:      Uttar Pradesh Intermediate Education Act, Sections 16 E and 16  F, scope  of-Construction-Whether section 16E speaks of retrospective  exemption being granted-Seniority, who can claim-Court’s duty  to interfere  in matters  of fixation of inter-se seniority.

HEADNOTE:      The appellant who was initially working as an Assistant Teacher started  teaching Hindi  in the Intermediate classes upon the  institution  being  upgraded  though  he  was  not qualified to  be appointed as a Lecturer in Hindi. As he did not possess the requisite qualification of B.A. in Sanakrit, he applied  for  an  exemption  under  section  16E,  though originially refused  was however  sanctioned by  an order of the  Board  dated  23.7.1963.  While  fixing  the  inter-se- seniority, his  appointment date  was taken as 23.7.1963 and respondents 5  and 6  were treated as Seniors as they joined on  19.12.62   and  1.7.63   respectively.   The   appellant challanged it  by moving  a writ  petition in  the Allahabad High Court  with a prayer that the exemption related back to his initial  appointment. The  High Court dismissed the Writ Petition and hence the appeal by special leave.      Dismissing the appeal, the Court ^      HELD: 1.  The Language  of section  16E  of  the  Uttar Pradesh Intermediate  Education Act  does not  admit of  the construction that  the exemption  granted by  the Board must relate back  to the  date of  making the application seeking exemption. Section  16E could  be construed  as enabling the Board to exercise the power to grant exemption prospectively after considering  the report  and taking  into account  the relevant circumstances  which would  by the  very nature  of things be with prospective effect and not with retropsective effect. Otherwise,  it would be to hold that any unqualified person  can   be   appointd   even   without   the   minimum qualifications  subject   to  post  facto  expemption  being granted. Till  the exemption  is granted  the person  is not qualified to be appointed.

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107 In  other   words  he   would  be   lacking  in   the  basic qualification for being appointed. This deficiency cannot be made good  with retroactive  exemption unless  the provision itself expressly  or by  necessary implication  contemplates such a  course of  action. Section 16E does not satisfy this test. Thus  it would  appear  that  retrospective  exemption could not  have been  granted and  in point  of fact was not granted in  the present  case. Even  otherwise,  it  is  not sufficient to  show that  retrospective exemption could have been granted. [111 B-F]      Further though the appellant was working as a lecturer, it was  not under  any authority  of law  for  there  is  no provision  which   empowers  the   college  to   allow   any unqualified person  to teach  or to  appoint him  as such in anticipation  of   his  disqualification  being  removed  in future. Till  the exemption  was granted  appellant was  not even a  teacher in  the eye  of law though he was allowed to teach by  the indulgence  of the  college  authorities.  The disqualification was  removed only on July 23, 1963 when the Board granted the exemption. [111H; 112A-B]      2. An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of  lawfully and  regularly appointed  employees does not have  to contend  with those  who never belonged to that stream, they  having been  appointed in an irregular manner. Those who  have  been  irregularly  appointed  belong  to  a different stream, and cannot claim seniority vis-a-vis those who have  been regularly  and properly appointed, till their appointments  became  regular  or  are  regularised  by  the appointing authority as a result of which their stream joins the regular  stream. At  that point  of confluence  with the regular stream,  from the point of time they join the stream by virtue  of the  regularisation, they  can claim seniority vis-a-vis those  who join  the same  stream later.  The late comers to  the regular  stream cannot steal a march over the early arrivals in the regular queue. [112C-E]      3. In  matters of seniority the Court does not exercise jurisdiction akin  to  appellate  jurisdiction  against  the determination by  the competent  authority, so  long as  the competent  authority   has  acted   bonafide  and  acted  on principles of fairness and fairplay. In a matter where there is no  rule or  regulation governing  the situation or where there is  one, but  is not  violated,  the  Court  will  not overturn the  determination unless it would be unfair not to do so. [112E-F] 108

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2609 of 1984      From the  Judgment and  Order dated 12th April, 1984 of the Allahabad  High Court  in Civil  Misc. Writ Petition No. 713 of 1980.      V.M. Tarkunde and Pramod Swarup for the Appellant.      S.N. Kacker and R.B. Mehrotra for the Respondents.      The Judgment of the Court was delivered by      THAKKAR, J. Seniority is the bone of contention.      The dispute  centres round  the question  as to whether the High  Court was right in affirming the view taken by the District Inspector  of Schools that Respondents Nos. 5 and 6 were senior  to the appellant in the lecturer’s grade in the Kashiraj  Maha   Vidyalaya  Inter  College,  Orai,  District

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Varanasi.      The dispute  regarding inter-se seniority having arisen amongst the  aforesaid three persons, the District Inspector of Schools  examined the issue and rendered a decision dated January 8,  holding that Respondent Nos. 5 and 6 were senior to the  appellant in  the lecturer’s  Grade having regard to the  fact   that  their  appointment  in  the  grade  became effective from 19-12-62, 1-7-63 and 23-7-1963 respectively.      The appellant  challanged the decision by way of a Writ Petition to  the High  Court. The  High Court  affirmed  the decision of  the District Inspector of Schools and dismissed the Writ Petition. Thereupon the Writ Petitioner in the High Court has approached this Court by way of the present appeal by special leave.      The appellant  was initially  working as  an  Assistant Teacher in the aforesaid institution which was upgraded into an  Intermediate   College  under   the  provisions  of  the Intermediate Education  Act. The  appellant started teaching Hindi in the Intermediate classes upon the institution being upgraded, though  he was  not qualified to be appointed as a lecturer in Hindi as per the relevant regulations which en- 1.   Under  Regulation   3(1)(f)  of   Chapter  II   of  the      Regulations framed  under the UP Intermediate Education      Act. 2.   Vide  Appendix   ’A’  to   the  Regulations  read  with      Regulation 1 of Chapter II read with section 16E of the      Act, 109 joined that  the minimum educational qualification for being appointed as a lecuturer in Hindi was M.A. in Hindi and B.A. with Sanskrit  whereas the  appellant did  not  possess  the requisite qualification  of B.A.  in Sanskrit.  It is not in dispute that  the appellant  did not  possess the  requisite qualification viz. B.A. degree in Sanskrit and was therefore not entitled  to be  appointed in  the lecturer’s  grade  as lecturer (Hindi)  having regard to the prohibition contained in Section  16-F of  the  Intermediate  Education  Act.  The appellant however could have been appointed as a lecturer in Hindi   if    he   was   exempted   from   possessing   such qualifications, in  exercise of powers under sub-section (i) of  Section   16-E  of   the  Act.  The  appellant  made  an application for  exemption as  envisaged by  Section 16-E of the Act.  This application  was granted by the Board of High School and  Intermediate Education,  U.P. by its order dated July 23,  1963. The  contention of  the  appellant  is  that though the Board had actually granted exemption only on July 23, 1963,  he must  be deemed  to have  been  exempted  from November 4,  1960, the date on which he made the application for exemption.  If the  appellant is right in his submission that although he was factually exempted by the order of July 23, 1963  he must  be deemed  to  have  been  exempted  with retrospective effect  from November  4, 1960,  the appellant must  succeed.  If  this  contention  is  considered  to  be untenable the  appellant must fail. The High Court has taken the view  that the  appellant is  entitled to  be treated as having become  duly qualified  with the  actual date  of the grant of  exemption on  July 23,  1963 and that he cannot be treated as  having been granted exemption with retrospective effect. In this view of the matter the appellant’s seniority vis-a-vis Respondents 5 and 6 has been computed on the basis that the  appellant was  appointed on  July 23, 1963 when he became qualified  for  being  appointed  to  the  lecturers’ grade. The  appellant has  contended that the High Court has committed an  error  in  not  accepting  his  plea  and  has reiterated the same submissions before this Court.

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    The first  question which  must be  answered is  as  to whether the 3.   Sec.  16F.   "Subject  to  the  provisions  hereinafter      specified, no person shall be appointed as a Principal,      Head Master  or teacher  in  a  recognized  institution      unless he  (a) possesses  the prescribed qualifications      or has  been exempted  under sub-section(1)  of Section      16-E" 4.   Section 16-E."  (1) Qualifications  for appointment  as      Principals, Head  Masters  and  teachers  of  different      subjects at  different stage  of the course shall be as      prescribed by  regulations: Provided that the Board may      after considering the report of the Director exempt any      person from  the requirements of minimum qualifications      having regard  to his  experience education  and  other      attainments." 110 plea of the appellant that he must be treated as having been exempted   from    possessing   the    qualification    with retrospective effect  is well founded. We are of the opinion that the  District Inspector  of Schools was right in taking the view  that the appellant was absorbed as a lecturer with effect from  the date  on which  the appellant  had actually secured the exemption. Developments in regard to the application for exemption took the following course: 4-11-1960:     The  appellant   filed  an   application  for                exemption before the Board of High School and                Intermediate Education, UP (Board). 6-1-1962:      The Board had informed the appellant that his                application for  exemption  was  not  in  the                proper form  and that  he should  submit  his                application in the proper form. 15-1-1962:     The appellant  filed the  application in  the                proper form. 10-4-1962:     The Deputy  Director of  Education  requested                the   appellant   to   obtain   the   minimum                educational  qualification  (B.A.  Degree  in                Sanskrit) by  appearing in examination either                from  Varanasi  Sanskrit  Vishwavidyalaya  or                from Gorakhpur University. 12-9-1962:     The appellant  replied to  this communication                and stated  therein that  he  was  not  in  a                position to  pass  the  B.A.  Examination  in                Sanskrit in  the University  mentioned by the                Board. 23-7-1963:     After  prolonged  correspondence,  the  Board                granted the exemption.      Thus it  is clear  that the  Board was  not inclined to grant the exemption to the appellant and had insisted on the appellant securing  the requisite qualification by appearing in an  examination, from  an  appropriate  institution.  The Board was  disinclined to  grant the request till late 1962. When this  is the  factual position,  how can  the appellant contend that  the Board  must be  deemed to have granted the exemp- 5. As  per facts  stated on  oath by Respondent No. 5 in his counter-affidavit of  July, 1984 (p. 50 of the Appeal Paper- book) which  have not  been specifically controverted by the appellant in  the Rejoinder  affidavit (p.  73 of the Appeal Paper-book). 111 tion from the date of his application i.e. November 4, 1960? In this  factual backdrop  it is  futile to contend that the Board had  granted exemption  with restropective  effect  or

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that the  exemption must  relate back  to the  date  of  the making of  the application. Besides, the language of Section 16-E of the Act does not admit of the construction canvassed on behalf  of the  appellant viz.  that the  Board can grant exemption with retrospective effect. It is in terms provided that the  exemption may  be granted  by the Board only after considering the  report of the Director having regard to the experience, education  and other  attainments of  the person sought to  be appointed.  It would be reasonable to construe the Section  as enabling  the Board to exercise the power to grant exemption  prospectively after  considering the report and taking  into account  the relevant  circumstances  which would by  the very  nature of  things  be  with  prospective effect and  not with  retrospective effect. To accede to the construction canvassed  on behalf  of the appellant would be to hold  that any  unqualified person  can be appointed even without the  minimum  qualifications  subject  to  postfacto exemption being  granted. Till  the exemption is granted the person is  not qualified  to be appointed. In other words he would be  lacking  in  the  basic  qualification  for  being appointed.  This   deficiency  cannot   be  made  good  with retroactive exemption  unless the provision itself expressly or by  necessary implication  contemplates such  a course of action. Section  16-E does  not satisfy  this test.  Thus it would appear  that retrospective  exemption could  not  have been granted  and in  point of  fact was  not granted in the present case.  Even otherwise,  it is not sufficient to show that retropective exemption could have been granted. It must also be  shown that  retrospective  exemption  was  in  fact granted. In  the present case the factual background clearly shows  that   the  Board   had  not   granted  retrospective exemption. In  fact the  Board was not inclined to grant the exemption at all and was insisting that the appellant should obtain the  requisite qualification.  And the  Board finally made up  its mind  to grant exemption only on July 23, 1963. Unless the  view is taken that whenever exemption is granted it must be treated as having been granted with retrospective effect,  if  there  is  such  power,  the  appellant  cannot succeed. There is no warrant in law or logic for taking such a view.  The High Court was therefore perfectly justified in repelling the  contention urged  on behalf  of the appellant and in dismissing the Writ Petition.      There is  also one more dimension of the matter. Though the appellant  was working  as a  lecturer, it was not under any authority  of  law  for  there  is  no  provision  which empowers the college to allow any 112 unqualified person  to teach  or to  appoint him  as such in anticipation  of   his  disqualification  being  removed  in future. Till  the exemption  was granted  appellant was  not even a  teacher in  the eye  of law though he was allowed to teach by  the indulgence  of the  college  authorities.  The disqualification was  removed only on July 23, 1963 when the Board granted  the exemption.  How  could  he  have  claimed seniority vis-a-vis  respondents nos.  5 and  6 who possessd the  requisite   qualifications  and  became  regularly  and lawfully appointed teachers much prior thereto?      An employee  must belong  to the  same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of  lawfully and  regularly appointed  employees does not have  to contend  with those  who never belonged to that stream, they  having been  appointed in an irregular manner. Those who  have  been  irregularly  appointed  belong  to  a different stream, and cannot claim seniority vis-a-vis those who have  been regularly  and properly appointed, till their

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appointments  became  regular  or  are  regularized  by  the appointing authority as a result of which their stream joins the regular  stream. At  that point  of confluence  with the regular stream,  from the point of time they join the stream by virtue  of the  regularization, they  can claim seniority vis-a-vis those  who join  the same  stream later.  The late comers to  the regular  stream cannot steal a march over the early arrivals  in  the  regular  queue.  On  principle  the appellant cannot  therefore succeed. What is more in matters of seniroty the Court does not exercise jurisdiction akin to appellate jurisdiction  against  the  determination  by  the competent authority,  so long as the competent authority has acted bonafide  and acted  on  principles  of  fairness  and fairplay. In  a matter  where there is no rule or regulation governing the  situation or  where there  is one, but is not violated, the  Court will  not  overturn  the  determination unless it  would be  unfair not to do so. In any view of the matter the  appellant who  did not even belong to the stream of regularly  (he was  allowed to teach only in an irregular and unauthorized  manner) and  lawfully appointed  lecturers cannot claim seniority against any one already in the stream before he  joined the  stream himself. The view taken by the High Court is unexceptionable.      .This appeal  must accordingly  fail and  be  dismissed with no order as to costs. S.R.                                       Appeal dismissed. 113