Research › Search › Judgment

Allahabad High Court · body

2000 DIGILAW 1561 (ALL)

KASHI PRASAD SHARMA v. STATE OF UTTAR PRADESH

2000-12-19

JAGDISH BHALLA, S.K.SEN

body2000
S. K. SEN, CJ. ( 1 ) WE have heard Sri H. G. S. Parihar, learned counsel for the appellant and learned standing counsel for the respondents. ( 2 ) THIS appeal is directed against the judgment and order dated 5th July. 1999 passed by the learned single Judge whereby the learned single Judge dismissed the writ petition holding that when the vacancy occurred the petitioner was not eligible for the appointment. ( 3 ) SHORT facts involved in this appeal inter alia are that the petitioner was working as assistant teacher in C. T. Grade and he worked for more than five years. According to him, the vacancy has not yet been filled up and as such he is eligible to be promoted to the post of lecturer in mathematics. Since the promotion was not granted to him, he filed writ petition being Writ petition No. 5492 of 1998 (SS ). The writ petition was finally disposed of by the order dated 20. 2. 1999, which reads as under : "the learned counsel for the petitioner submits that the grievance of the petitioner is not being considered for promotion despite he being eligible for promotion and there is a clear vacancy, on which he can be promoted. The learned counsel for the petitioner prays that the respondents be directed to consider the candidature of the petitioner for promotion. The prayer of the petitioner is innocuous and it is needless to keep the petition pending, hence the respondent Nos. 2 to 4 are directed to consider the candidature of the petitioner for promotion, if he is eligible and there exists a vacancy under the existing Rules of 1998. The case of the petitioner shall be considered within the month from the date of production of a certified copy of this order. Writ petition is disposed of finally. " ( 4 ) IT appears that the learned single Judge took into account the U. P. Secondary Education services Commission Rules, 1998 (hereinafter referred to as the Rules, 1998) relating to promotion and in fact directed to consider the candidature of the petitioner for promotion, if he is eligible and there exists a vacancy under the existing Rules, 1998. Pursuant to the said order dated 20. 2. 1999, the Joint Director of Education decided the case of the writ petitioner for promotion. Pursuant to the said order dated 20. 2. 1999, the Joint Director of Education decided the case of the writ petitioner for promotion. The Joint Director of Education, however, rejected the contention of the writ petitioner on the ground that on the date of occurrence of vacancy, he was not eligible. Feeling aggrieved, petitioner filed another writ petition, in which the learned single Judge while disposing of the writ petition on 5th July, 1999 took into account the U. P. Secondary Education services Commission Rules, 1983 (hereinafter referred to as the Rules. 1983) and accepted the findings of the Joint Director of Education. It may be noted here that after the said Rules, 1983, there are the Rules, 1995 and the Rules, 1998. Rule 10 of the Rules 1983 and the proviso thereof provides that as and when any vacancy occurs and if the suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment. There is significant departure in subsequent Rules. 1995 as well as in the Rules, 1998. It is clear that there is a change which was brought out in the Rules, 1995. The proviso of Rule 10-C of the Rules, 1995 makes it very clear that if under any year of recruitment, suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment. Therefore, if suitable eligible candidates are not available for recruitment in the year by promotion, only then process of direct recruitment shall be adopted. The learned single Judge did not consider the subsequent Rules, 1995 and the Rules, 1998 and decided the matter on the rules, 1983, although he himself directed the Joint Director of Education to consider the candidature of the petitioner for promotion, if he is eligible and there exists a vacancy under the existing Rules. 1998. In view of this, we are of the view the view that learned single Judge was not correct in arriving at his conclusion and accordingly the order passed by the learned single Judge stands set aside. ( 5 ) LEARNED standing counsel relied upon a Division Bench decision of this Court rendered in the case of Nand Kishore v. U. P. Secondary Education Services Commission, Allahabad and others, (1993) 1 UPLBEC 201, which was delivered on the basis of the Rules, 1983. ( 5 ) LEARNED standing counsel relied upon a Division Bench decision of this Court rendered in the case of Nand Kishore v. U. P. Secondary Education Services Commission, Allahabad and others, (1993) 1 UPLBEC 201, which was delivered on the basis of the Rules, 1983. As we have noted above, the Rules, 1995 and Rules, 1998 have come into force and they have adverse effect from the Rules, 1983, in our view, this decision has no application in the facts and circumstances of this case. ( 6 ) IT is submitted by the learned counsel for the appellant that up till now, no recruitment has taken place, in such circumstances, we are of the view that the Joint Director of Education shall consider the appointment of the appellant/ petitioner in the light of this judgment and take appropriate decision in accordance with law within one month from the date of communication of this order. ( 7 ) IN the result the special appeal succeeds and is allowed accordingly. The order of the learned single Judge dated 5. 7. 1999 is set aside. .