SHITLA PRASAD SHUKLA versus STATE OF U.P. & ORS.

Citation: [1986] 3 S.C.R. 106 · Decided: 19-05-1986 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Dismissed

Judgment (excerpt)

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SHITLA PRASAD SHUKLA 
v. 
STATE OF U.P. & ORS. 
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-
tive exemption being granted-Seniority, who can claim-Court's duty 
to interfere in matters of fu: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 
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 
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. 
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 
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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. 
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Till the exemption is granted the person is not qualified to be appointed. 
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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 
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. 
Even otherwise, it is not sufficient to show that retrospective exemption 
could have been granted. I lllB-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. [llIH; 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 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-
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 
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-EJ 
3. In matters of seniority the Court does not exercise jurisdiction 
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akin to appellate jurisdiction against the determination by the compe-
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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

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