Surya Prakash Kesarwani, J. - Heard Sri R. K. Ojha, learned Senior Advocate assisted by Sri Arvind Kumar Upadhyay, learned counsel for the petitioner, Sri S. K. Singh, learned Senior Advocate assisted by Sri Om Prakash Tripathi, learned counsel for respondent No.5 and learned Standing Counsel for State-respondent Nos.1, 2 and 3.

2. The petitioner was engaged for some time as Assistant Teacher (Subject Expert) for a fixed term on honorarium basis. Subsequently, he was regularly appointed in view of the provisions of Section 21-E of the U.P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as the Act, 1982). There arose dispute between the petitioner and the respondent No.5 with respect to seniority. It is undisputed that the respondent No.5 was regularly appointed on a date prior to the date of regularly appointment of the petitioner. The case of the petitioner is that his services rendered as Assistant Teacher (Subject Expert) for fixed term on honorarium basis, is liable to be included for the purpose of computing the seniority in view of the provisions of Section 21-G of the Act, 1982.

3. Learned counsel for the petitioner submits that earlier an order dated 22.11.2014 was passed by the Joint Director of Education, Azamgarh Divison, Azamgarh whereby the petitioner was held to be senior and promotion was accordingly given to him on the post of Lecturer.

4. Submission is that by the impugned order amounts to review of the earlier order dated 22.11.2014 it is impermissible particularly in the situation when a Writ Petition No.65224 of 2014 (Anil Kumar Singh vs. Regional Committee and others) filed by the respondent No.5 to challenge the order dated 22.11.2014, is still pending before this Court. He further submits that the Regional Level Committee who pass the impugned order dated 18.07.2018 has no power of review to pass the impugned order particularly at the instance of one Sri Indrasan Singh, General Secretary of the U.P. Madhyamik Shikshak Sangh. The order dated 22.11.2014 could not be review since there was no allegation of any suppression of facts or fraud.

5. Sri G. K. Singh, learned Senior Advocate submits that the sole question involved in the present writ petition is as to whether the period of service rendered by an Assistant Teacher as Subject Expert on contractual basis for a fixed term on honorarium, is liable to be included in his regular service for the purposes of determination of seniority. He submits that this question is concluded by a judgment of this Court dated 29.01.2018 in Writ-A No.39965 of 2017 (Sumitra Singh vs. State of U.P. and 5 others) in which it has been held that if the provisions of Section 21-G of the Act, 1982 is treated to be in respect of giving notional seniority then it will be arbitrary in manner and would be violative of Articles 14 and 16 of the Constitution of India. He further submits that this Court could not exercise its discretionary jurisdiction under Article 226 of the Constitution of India where the setting aside of the impugned order would result in restoration of an illegal order. In support of his submission he relied upon a judgment in Bhartiya Seva Samaj Trust and another vs. Yogeshbhai Ambalal Patel and another, (2012) 9 SCC, 310 [LQ/SC/2005/293] (para 14).

6. I have carefully considered the submissions of learned counsel for the parties.

7. In rejoinder Sri R. K. Ojha, learned Senior Advocate submits that till the provisions of Section 21-G of the Act, 1982 is declared, ultra vires, the benefit thereof cannot be denied to the petitioner and therefore, the judgment in the case of Sumitra Singh (supra) does not laid down the correct law.

8. I have carefully considered the submissions of learned counsel for the parties.

9. Undoubtedly, the petitioner was engaged on contractual basis for a fixed term as Assistant Teacher (Subject Expert) on honorarium basis and he worked in that position for the period from 05.01.2002 to 26.12.2007. He was absorbed and appointed as regular Assistant Teacher in terms of the provisions of Section 21-E of the Act, 1982. The petitioner was regularly appointed on 26.12.2007. The respondent No.5 was appointed on 02.08.2007 on the post of Assistant Teacher in the institution in question. Thus, there is no dispute that the appointment of respondent No.5 is on a date prior to the petitioner. The only dispute is as to whether the period of service rendered by the petitioner during his contractual engagement as Subject Expert on honorarium basis, is liable to be included while determining the inter se seniority.

10. The provisions of Section 21-G of the Act, 1982 was extensively considered by another Bench of this Court in Writ-A No.39965 of 2017 (Sumitra Singh vs. State of U.P. and 5 others) decided on 20.01.2018 held as under:

"9. Procedure for determination of the seniority has been provided under Regulation-3 of Chapter-II. There is no provision under the Act, to determine the seniority as such in view of Section 32 of the Act, the seniority has to be decided according to the provisions of Regulation-3 of Chapter-II. Now it has to be considered as to whether Section 21-G of the Act, provides the provision for determination of seniority and has an overriding effect. Section 21-G of Uttar Pradesh Secondary Education Services Selection Board, Act, 1982 is quoted below:-

Section-21-G- Reckoning of services rendered as subject expert in certain cases:-The services rendered as subject expert in private aided Secondary Schools shall be added to the services after adjustment on substantive vacancy to be filled up by direct recruitment in notional way (without any financial gains) for administrative interest. Services rendered by subject expert on contractual basis shall in no way be reckoned as qualifying service for retirement benefit.

Section 21-G does not provide any provisions for determination of seniority of teachers appointed in different grade under different process. At the most, the teachers appointed by way of absorption under Section 21-E of the Act, can claim that while determining their seniority provisions of Section 21-G has to be taken into account. In view of Section 32 of the Act, seniority of the teachers has to be determine according to provisions of Regulation-3 of Chapter-II. Supreme Court in Sudama singh vs. Nath Saransingh, (1988) 1 SCC 57 [LQ/SC/1987/766] held that under Regulation-3 of Chapter-II, seniority has to be determine on the basis of date of substantive appointment in a particular cadre.

10. Section 21-G provides for adding the period of services rendered as Subject Expert before absorption in notional way for administrative interest. It actually does not talk for adding services rendered as Subject Expert before absorption for counting seniority. Supreme Court in Devdutta vs. State of M.P., 1991 Supp (2) SCC 553, held that the term "absorbed" in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post where after he becomes a holder of that post in his own right and loses his lien on his parent post.

11. Constitution Bench of Supreme Court in Direct Recruit Class II Engg. Officers Assn. vs. State of Maharashtra, (1990) 2 SCC 715 [LQ/SC/1990/294] , summed up the legal position for determination of seniority as follows:-

"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly." The essence of direction in Clause (A) is that the seniority of an appointee has to be counted from the date of his appointment and not according to the date of his confirmation once a recruitee is appointed to a post according to the rules. In other words, where initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The writ petitioners appointment as an ad hoc Additional District Judge is not traceable to the 1963 Rules. The simple reason leading to this consequence is that there was no vacancy available which was to be filled up by promotion on that date in the Superior Judicial Service (Senior Branch).

12. Supreme Court in Pushpa Vishnu Kumar Gurtu (Dr) vs. State of Maharashtra, 1995 Supp (2) SCC 276, [LQ/SC/1995/235] held that we do not, therefore, understand how any notional seniority could have been conferred by the State Government with reference to the date of eligibility, although such person was not holding any such post either by direct recruitment or by promotion. In the present case, there is no dispute that respondent never held the post of Registrar in the Department of Obstetrics and Gynaecology any time prior to 2-7-1979 when the college was under the management of the Corporation. Hence her mere eligibility on 19-1-1977 to be appointed as Registrar cannot be a ground to antedate her promotion as a Reader so as to affect seniority of the appellant, who had been appointed as a Reader in the Department of Obstetrics and Gynaecology at Government Medical College, Nagpur, by the Government Order dated 6- 10-1977 which post she had joined on 11-10-1977. The object of changing the date of seniority as Reader, so far as respondent is concerned, appears to be to make her senior to the appellant. This benefit could not have been conferred on her, even if she was from the very beginning in any of the Government Colleges. In the process of absorption, she cannot affect the seniority of those, who were already in the cadre of the State Government as Readers.

13. In Pawan Pratap Singh vs. Reevan Singh, (2011) 3 SCC 267 [LQ/SC/2011/236] , following principle has been provided:-"(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."This judgment has been followed in P. Sudhakar Rao vs. U. Govinda Rao, (2013) 8 SCC 693 [LQ/SC/2013/689] .

14. Supreme Court in State of U.P. vs. Ashok Kumar Srivastava, (2014) 14 SCC 720 [LQ/SC/2013/910] , held that the thrust of the matter is how the seniority is to be determined in such circumstances. The seniority of a person is to be determined according to the seniority rule applicable on the date of appointment. It has also been observed that weight-age in seniority cannot be given retrospective effect unless it is specifically provided in the rule in force at the material time.

15. In view of aforesaid discussions, it is clear that Act and Rules framed under the Act do not provide any provision for determination of seniority nor any material relating to seniority. Thus in view of Section 32 of the Act, the provisions of Regulation 3 of Chapter-II framed under UP Intermediate Education Act, 1921 will remain applicable. Under Regulation 3, seniority list of grade-wise has to be maintained in respect of different employees.

16. Teacher in the higher grade shall be deemed to be senior to a teacher in lower grade. The petitioner is claiming to be absorbed by the order dated 13.11.2007. The vacancy in which the petitioner has been absorbed, itself came in existence on 30.6.2007. Thus in view of Regulation 3 as aforesaid , seniority to the petitioner cannot be given from the date prior to her substantive appointment on 13.11.2007. If the provisions of Section 21 G of the Act is treated to be in respect of giving notional seniority then it will be arbitrary in manner. Thus service of the petitioner as Subject Expert on the honorarium of Rs. 5000/- per month and working period was for 11 month in a academic session, if added for counting her seniority, over regularly selected Lecturer would be violative of Article 14 and 16 of the Constitution. The writ petition has no merit and is dismissed."

12. I do not find any good reason to take a different view than the view taken by the coordinate Bench of this Court in the case of Sumitra Singh (supra). Therefore, I hold that the period of engagement of the petitioner on contractual basis for a fixed term as Subject Expert on honorarium basis is not liable to be added in his regular service for the purposes of determination of his seniority. Thus, I do not find any error of law in the impugned order dated 18.07.2018 passed by the respondent No.2, i.e., Regional Level Selection Committee which consist of three members and is headed by the Joint Director of Education of the concerned region.

13. The submission of Sri Ojha that the impugned order amounts to review of the order dated 14.11.2014 and therefore, it deserves to be quashed, does not merit consideration for the reason that the impugned order dated 18.07.2018 does not suffer from any legal infirmity. Further, I do not find the present case to be a fit case for exercising the discretionary jurisdiction under Article 226 of the Constitution of India. Interference with the impugned order dated 18.07.2018 would result in revival of an illegal order. Illegality cannot be allowed to perpetuate. Jurisdiction under Article 226 of the Constitution of India cannot be invoked for perpetuating illegality or to direct an authority to do a wrong consciously because he has earlier committed a wrong unconsciously. It was said by Lord Jackson in his dissenting opinion in Massachusetts vs. United States, (1947) 333 U.S. 611 "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday" which has been quoted with approval by a Constitution Bench of Honble Supreme Court in the judgment in the case of Distributors (Baroda) Pvt. Ltd. vs. Union of India and others, AIR 1985 SC 1585 [LQ/SC/1985/208] (para 19).

14. In view of the above discussion, the writ petition is dismissed.