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Allahabad High Court · body

2005 DIGILAW 2096 (ALL)

Santosh Kumar v. State Of U. P.

2005-10-24

N.K.MEHROTRA

body2005
JUDGMENT : N.K. MEHROTRA, J. This is a petition for issuing a writ of certiorari to quash the decision of the selection committee dated 20.1.2004 as communicated by the Joint Director of Education, Lucknow, vide his letter dated 9.2.2004 to the Petitioner by which the promotion of the Petitioner was rejected, as contained in Annexure-1 and for a writ of mandamus commanding the opposite parties to reconsider the case of the Petitioner for promotion on the post of lecturer in Education/Psychology under reserved category quota and in terms of Rule 14 of the U.P. Secondary Education and Service Selection Board Rules, 1998. The Petitioner has also sought and writ of mandamus commanding the opposite parties not to fill up the post of lecturer, Education/Psychology in Navjeevan Inter College, Mohanlal Ganj, Lucknow by any other mode till the case of the Petitioner is reconsidered and to make the payment of salary of the post of Lecturer, to the Petitioner with effect from July, 2003. 2. Admittedly, the post of Lecturer, Education/Psychology fell vacant in the college in substantive capacity on the retirement of Shri Ram Krishna Swaroop on 1.7.2002. It is admitted case of the parties that this post is to be filled up out of 50% quota for promotion. It is also established from the letter of the Joint Director of Education dated 16.9.2003, Annexure-RA 2 that the proposal for promotion of one general category candidate Shri Durga Prasad Awasthi was turned down by the Joint Director of Education by saying that the quota of the Scheduled Caste category is not filled up and a reference for not completing the scheduled caste quota in the college was pending before the Scheduled Castes and Scheduled Tribes Commission and therefore, the selection committee had turned down the proposal for promotion of general category candidate. It is also not denied that the Petitioner belongs to scheduled caste category candidate. It is also not denied that the qualification for the post of lecturer is Post Graduate and trained. It is also admitted case of the parties that the Petitioner appeared in M. Ed. Examination of Punjab University in April, 2002 and he was awarded degree on 18.3.2003. This fact is established from Annexure-6 to the writ petition that the Petitioner had appeared in the M. Ed. Examination in April, 2002 but he was awarded the degree on 18.3.2003. It is also admitted case of the parties that the Petitioner appeared in M. Ed. Examination of Punjab University in April, 2002 and he was awarded degree on 18.3.2003. This fact is established from Annexure-6 to the writ petition that the Petitioner had appeared in the M. Ed. Examination in April, 2002 but he was awarded the degree on 18.3.2003. Since the vacancy occurred on 1.7.2002, the Petitioner was not possessing the required qualification on the date of vacancy. 3. A perusal of the impugned order dated 9.2.2004, Annexure-1 goes to show that the Petitioner was not having the requisite qualification on the date of the vacancy and therefore the Regional Selection Committee did not approve the promotion of the Petitioner. 4. It is to be noted that the Joint Director has referred Regulation 6 (1) of Chapter II of Intermediate Education Act, 1921 and Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998. The provisions contained under Regulation 6 (1) of Chapter II of the Intermediate Education Act and Rule 14 of the U.P. Service Selection Board Rules, 1998 are contrary to the extent that whereas under Regulation 6 (1), it is provided that ‘five years continuous substantive service on the date of the vacancy’ in L.T. or C.T. grade is to be seen for the purpose of eligibility while under Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998 ‘five years continuous regular service on the first day of the year of recruitment’ shall be considered for the purpose of eligibility. Question is which provision out of the aforesaid two provisions shall be applicable. Answer to this question is given u/s 32 of the U.P. Secondary Education Service Selection Board Act, 1982 which is as follows: 32. Applicability of U.P. Act 11 of 1921.-The provision of the Intermediate Education Act, 1921 and the Regulations made hereunder in so far as they are not inconsistent with the provisions of this Act or the Rules or Regulations made there under shall continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in a rank of a teacher. 5. 5. In view of the aforesaid provisions, it is established that the provisions under Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998 shall prevail over the provisions under Regulation 6 (1) of Chapter II of Intermediate Education Act, 1921. The effect of this finding is that five years continuous regular service in the L.T. or C.T. grade shall be seen ‘on the first date of the year of recruitment’. 6. Therefore, the basis on which the candidature of Santosh Kumar, the Petitioner, for promotion in the lecturer grade has been cancelled is not in accordance with law and it is liable to be set aside. 7. At the time of admission of the writ petition, this Court has granted an interim order for not giving appointment on the post of lecturer in Education/Psychology till further orders and therefore, this post must be still lying vacant. The Regional Selection Committee is required to hold fresh selection on the post of lecturer in Education/Psychology in Navjeevan Inter College, Mohanlal Ganj afresh after taking into consideration the eligibility of the Petitioner in accordance with the provisions under Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998. 8. It is to be made clear that the year of recruitment is defined in U.P. Secondary Education Service Selection Board Act, 1982. In Section 2 (1), year of recruitment is defined as follows: The year of recruitment means a period of 12 months commencing from first day of a calendar year. 9. It means the eligibility criteria shall be considered on the first day of a calendar year in which the recruitment is made. It will not be out of place to mention here that Uttar Pradesh Public Service (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Rules, 1994 (hereinafter referred to as the ‘Reservation Rules, 1994’) is applicable in the cadre of teachers in a recognized aided educational institutions in U.P. 10. Section 3 (3B) of the aforesaid Act provides that in respect of any year of recruitment, any vacancy reserved for any category of persons under Sub-section (1) remains unfilled even after recruitment made under Sub-section (3) or Sub-section (3A), special recruitment may be made for such number of times as may be considered necessary to fill such vacancy from amongst the persons belonging to that category. There is no provision under this Act that if the scheduled caste candidate is not available, the vacancy reserved for scheduled caste can be filled by any other category. Therefore, if the Joint Director decides that the vacancy is reserved for scheduled caste promotion quota, then it is to be filled only by scheduled caste candidate. The decision whether the vacancy is reserved for scheduled caste is to be taken by the Joint Director after taking into consideration the position of reservation in the institution without being affected by any observation in this judgment. 11. Since the vacancy of lecturer in Education/Psychology is still available for being filled up, therefore the matter is to be reconsidered by the Regional Selection Committee in accordance with the provision of the Reservation Act, 1994 referred to above and the U.P. Secondary Education Service Selection Board Act, 1982 and the Rules made there under after taking into consideration the eligibility of the Petitioner on the first day of the year of recruitment. 12. Petitioner has made prayer for issuing a mandamus commanding the opposite parties to make the payment of salary to the Petitioner in lecturer grade with effect from July, 2003. The Petitioner has not been promoted so far in accordance with the relevant rules, therefore, he cannot claim the salary in the lecturer grade because the institution is on grant-in-aid and the entire salary is paid under the grants-in-aid scheme. A person without being selected for the lecturer grade cannot claim the salary. The interim order for the payment of salary shall not remain operative and the Petitioner shall be entitled to the salary in the lecturer grade only after being duly selected. 13. With the aforesaid observations, the writ petition is allowed. The impugned order dated 9.2.2004, Annexure-1 is quashed with the direction to the Joint Director of Education, v. Ith Region, Lucknow to reconsider the proposal of the promotion of the Petitioner against the vacancy of lecturer in Education/ Psychology in Navjeevan Inter College, Mohanlal Ganj, Lucknow, afresh in accordance with law and rules referred to above within a period of three months from the date a certified copy of this judgment is presented before him by the Petitioner.