Holding

Section 16E permits only prospective exemption; consequently, seniority is determined from the date of actual exemption and the appellant cannot claim seniority over the respondents.

Summary

The appellant, a teacher in an upgraded intermediate college, lacked the prescribed Sanskrit degree required for a lecturer post and applied for exemption under Section 16E of the Uttar Pradesh Intermediate Education Act. The Board granted the exemption only on 23 July 1963, but the appellant contended that the exemption should be treated as retrospective to his application date, thereby giving him seniority over two other lecturers appointed earlier. The High Court rejected this claim and the Supreme Court affirmed that decision. The Court held that Section 16E does not permit retrospective exemption; until the exemption is actually granted, a person is not qualified for appointment, and seniority can be claimed only from the date of actual exemption. Accordingly, the appellant could not claim seniority over the respondents and the appeal was dismissed.

Issues considered

Whether Section 16E of the Uttar Pradesh Intermediate Education Act allows an exemption to be granted retrospectively, i.e., to relate back to the date of application.
Whether the appellant can claim inter‑seniority over other lecturers based on a retrospective exemption.
Whether an employee appointed irregularly (without qualification) can claim seniority against regularly appointed employees.
Whether the court can interfere with the seniority determination made by the competent authority.

Legislation cited

Uttar Pradesh Intermediate Education Acts. 16E, s. 16F

Subjects

seniorityexemptionUttar Pradesh Intermediate Education Actretrospective effectappointment qualificationsadministrative law

Judgment

A

SHITLA PRASAD SHUKLA
v.
STATE OF U.P. & ORS.
B
MAY 19, 1986

[E.S. VENKATARAMIAH AND M.P. THAKKAR JJ.]

Uttar Pradesh Intermediate Education Act, Sections 16 E and 16
F, scope of-Construction-Whether section 16£ speaks of retrospec-
c tive exemption being granted-Seniority, who can claim-Court's duty
to interfere in matters offu:ation of inter-se seniority.

The appellant who was initially working as an Assistant Teacher
started teaching Hindi in the Intermediate classes upon the institution
D 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 appoint-
ment date was taken as 23. 7. 1963 and respondents S and 6 were treated
E as Seniors as they joined on 19.12.62 and 1.7.63 respectively. The ap-
pellant challanged it by moving a.writ petition in the Allahabad High
Court with a prayer that the exemption related back to his initial ap-
pointment. The High Court dismissed the Writ Petition and hence the
appeal by special leave.

F 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
G enabling the Board to exercise the power to grant exemption prospec-
tively after considering the report and taking into acconnt the relevant
circnmstances 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.
H Till the exemption is granted the person is not qualified to be appointed.
S.P. SHUKLA v. STATE OF U.P. [THAKKAR, J.J 107

In other words he would be lacking in the basic qualification for being A
appointed. This deficiency cannot be made good with retroactive ex-
emption unless the provision itself expressly or by necessary implication
contemplates such a course of action. Section 16E does not satisfy this
test. Thus it wonld appear that retrospective exemption could not have
been granted and in point of fact was not granted in the present case. B
Even otherwise, it is not sufficient to show that retrospective exemption
could have been granted. IlllB-F]

l 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
c
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. [llIH; 112A-B]
D
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 law-
fully aud 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 be- E
long to a different stream, and cannot claim seniority vis-a-vis those
who have been regularly and properly appointed, till their appoint-
ments became regular or are regularised by the appointing authority as
a result of which their stream joins the regular stream. At that point of
j
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
F

stream cannot steal a march over the early arrivals in the regular
queue. [112C-EJ

3. In matters of seniority the Court does not exercise jurisdiction
akin to appellate jurisdiction against the determination by the compe- G
tent 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 wonld be unfair notto do so. I112E-F]
H
108 SUPREME COURT REPORTS [1986] 3 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal No.
2609of 1984
From the Judgment and Order dated 12th April, 1984 of the
Allahabad High Court in Civil Misc. Writ Petition No. 713 of 1980.
B 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.
c
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 !titer College,
Orai, District Varanasi.
D
The dispute regarding inter-se seniority having arisen amongst
the aforesaid three persons, the District Inspector of Schools exa·
mined 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
E 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 Dis·
trict Inspector of Schools and dismissed the Writ Petition. Thereupon
the Writ Petitioner in the High Court has approached this Court by \
F )
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
G institution being upgraded, though he was not qualified to be appoin·
ted as a lecturer in Hindi as per the relevant regulations' which en·
1 Under Regulation 3( l)(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
H section 16E of the Act,
S.P. SHUKlA v. STAIB OF U.P. [THAKKAR, J.] 109

joined that the minimum educational qualification for being appointed A
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 there-
fore not entitled to be appointed in the lecturer's grade as lecturer B
(Hindi) having regard to the prohibition contained in Section 16-F of

l
the Intermediate Education Act'. The appellant however could have
been appointed as a lecturer in Hindi if he was exempted from posses-
sing such qualifications, in exercise of powers under sub-section (i) of
Section 16-E of the Act'. The appellant made an application for ex-
emption as envisaged by Section 16-E of the Act. This application was
granted by the Board of High School and Intermediate Education, c
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 D
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 unten-
able 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 dat'e of the grant of exemption on July 23, 1963 and that E
he cannot be treated as having been granted exemption with retrospec-
tive effect. ln this view of the matter the appellant's seniority vis-a-vis
Respondents 5 and 6 has been computed on the basis that the appel-
lant was appointed on July 23, 1963 when he became qualified for
I being appointed to the lecturers' grade. The appellant has contended
\ that the High Court has committed an error in not accep.ting his plea F
and has reiterated the same submissions before this Court.

The first question which must be answered is as to whether the

3. Sec. !6F. "Subject to the provisions hereinafter specified, no person shall be ap-
pointed as a Principal, Head Master or teacher in a recognized institution unless he
(a) possesses the prescribed qualifications or has -been exempted under sub- G
section(l)ofSection 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
reguiati6ns: Provided that the Board may after considering the report of-the Director
exempt any person from the requirements of minimum qualifications having regard to
hts experience education and other attainments." H
110 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 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.
B
Developments in regard to the application for exemption took the fol- \
lowing coursf?:

c
4-11-1960: The appellant filed an application for exemption before the
Board of High School and Intermediate Education, UP
(Board).
J
6-1-1962: The Board had informed the appellant that his applica- .~
1
tion for exemption was not in the proper form and that he -~
should submit his application in the proper form.
D
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.
E
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. \
)
F
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
G
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
H the appellant in the Rejoinder affidavit (p. 73 of the Appeal Paper-book).
S.P. SHUKLA v. STATE OF U.P. [THAKKAR, J.[ 111

r 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
A

exemption with restropective effect or 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 B
exemption with retrospective effect. It is in terms provided that the
l exemption may be granted by the Board only after considering the

l 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 re-
port and taking into account the relevant circumstances which would c
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 post-
facto exemption being granted. Till the exemption is granted the D
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 E
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
I that the Board had not granted retrospective exemption. In fact the
\ Board was not inclined to grant the exemption at all and was insisting F
that the appellant should obtain the requisite qualification. And the
-r 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 G
perfectly justified in repelling the contention urged on behalf of the
t-. 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 H
112 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 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
B
respondents nos. 5 and 6 who possessd the requisite qualifications and
became regularly and lawfully appointed teachers much prior thereto? \

c
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
J
appointed in an irregular manner. Those who have been irregular-
ly 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 regularized by the appointing
authority as a result of which their stream jams the regular stream. At
D
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 arri-
vals in the regular queue. On principle the appellant cannot therefore
succeed. What is more in matters of seniroty the Court does not exer-
E
cise jurisdiction akin to appellate jurisdiction against the determina-
tion 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 J
F
matter the appellant who did not even belong to the stream of regu-
larly (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.
G
. This appeal must accordingly fail and be dismissed with no order
as to costs.

S.R. Appeal dismissed.

H