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Allahabad High Court · body

2009 DIGILAW 3332 (ALL)

NARENDRA SINGH SOLANKI v. STATE OF U. P.

2009-10-24

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Ramesh Upadhyaya learned counsel for the petitioner and the learned Standing Counsel for the respondent Nos. 1, 2 and 3. 2. In view of the nature of the order that is proposed to be passed it is not necessary to issue notice to the respondent No. 4 at this stage. 3. The petitioner, a L.T. grade teacher in an Intermediate College is aggrieved by the communication dated 22.8.2009 Annexure 13 to the writ petition whereby the Manager of the Institution has been informed that the petitioner shall be entitled to the benefit of lecturer in the institution with effect from the date of issuance of the order of the promotion i.e. 19.2.2009. 4. Sri Upadhyaya contends that the proposal for promoting the petitioner had been submitted against the vacancy which came into existence on 30.6.2001 due to the retirement of the permanent incumbent Jitendra Pal Pandey. Against the said post of Lecturer in Geography the petitioner claims promotion under the 50% quota. The said consideration was being delayed and ultimately the Committee of Management passed a resolution on 22.8.2001 proposing to promote the petitioner as Lecturer in Geography. The said proposal was forwarded to the District Inspector of Schools in August,2001 itself after completing necessary formalities but no action was being taken. 5. The petitioner therefore filed Writ Petition No. 9716 of 2003 when the post was sought to be filled up by way of direct recruitment and a direction was issued on 18.9.2008 to consider the claim of the petitioner. The said judgement takes notice in the case of Sunita Bhagat v. State of U.P., 2000(4) ESC (NOC) 5 which has now been subsequently reversed by the Supreme Court. However pursuant to the said directions the matter was examined and the claim of the petitioner was accepted by the Regional Joint Director of Education, Aligarh on 19.2.2009. 6. The petitioner claims benefits with effect from the date of his promotion and for that he approached the District Inspector of Schools who issue a clarification on 8.4.09 to the Management of the Institution to proceed to take action in accordance with the decision dated 19.2.2009. The management approached the Regional Joint Director of Education for a clarification as to the date from which the petitioner would be entitled to the benefit of the lecturer which was clarified by the impugned order dated 22.8.2009. 7. The management approached the Regional Joint Director of Education for a clarification as to the date from which the petitioner would be entitled to the benefit of the lecturer which was clarified by the impugned order dated 22.8.2009. 7. Learned counsel for the petitioner Sri Upadhyaya contends that once the claim of the petitioner has been accepted then it has to relate back to the date on which the petitioner was granted promotion by the management and any procedural delay can not defeat the claim of the petitioner. For this Sri Upadhyaya has relied on the decision of this Court in the case of Santosh Kumar Dubey and another v. State of U.P. and others in Writ Petition No. 36245 of 2004 and other connected writ petitions decided on 13.10.2009. 8. Learned Standing Counsel on the other hand contends that unless and until the promotion is accepted under the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 the petitioner cannot be deemed to have been appointed in substantive capacity and therefore the claim of the petitioner cannot be accepted. He further submits that the impugned communication does not in any way impinge on any of the rights of the petitioner. It is further submitted that the alleged lapse would not enure any benefit to the petitioner unless and until a formal order is passed by the competent authority. In this case the order has been passed on 19.2.2009 and according to the law as prevalent the petitioner would be entitled to the benefit from the said date and not from any prior date. 9. Having considered the submissions it is evident that there are statutory rules for processing the appointment by way of promotion. The said rules have referred to in detail in the decision of Santosh Kumar Dubey (supra) where the said provisions have been narrated threadbare and it has been held that the authorities have to proceed in accordance with the said rules within the time prescribed. It has been further held that in the event there is any delay on the part of the authorities then such delay cannot cause any sufferance to the claimants whose promotions have been made in accordance with rules. 10. Having perused the said judgment, in my opinion also the aforesaid prescribed time under the rules are meant to be obeyed. It has been further held that in the event there is any delay on the part of the authorities then such delay cannot cause any sufferance to the claimants whose promotions have been made in accordance with rules. 10. Having perused the said judgment, in my opinion also the aforesaid prescribed time under the rules are meant to be obeyed. The question as to whether they are mandatory or directory does not allow the respondents not to avoid the rules. Even if on a construction that the provisions are directory,they are not meant to be avoided or disobeyed or implemented so as to proceed in a manner to defeat the rightful claim of the persons. It is a well known principle of law that delay defeats justice. The same principles would apply in such cases where the authorities have been given a reasonable time to act and to proceed to make promotion. Any delay without any fault on the part of the candidates, cannot be of any disadvantage to him. 11. In the instant case, Rule 14 of the 1995 Rules which has been considered and dealt with in the decision of Santosh Kumar Dubey (supra) clearly indicates that the Committee is to propose and the District Inspector of Schools has to intimate after receipt of the proposal within three weeks and the said intimation has to be processed at the level of Regional Level Committee within one month upon receipt of the same. The decision has to be sent to the District Inspector of Schools within two weeks where after the committee of management has to proceed to act upon such communication. According to Appendix E/F where the provision is made for issuance of letter of appointment, the management is to issue appointment letter within 10 days of the receipt of such communication. The aforesaid exercise therefore in law has to be reasonably completed within the aforesaid period which does not travel beyond three months. 12. In the present case the matter has been processed for years together and no default exists or has been pointed out on the part of the petitioner. The aforesaid exercise therefore in law has to be reasonably completed within the aforesaid period which does not travel beyond three months. 12. In the present case the matter has been processed for years together and no default exists or has been pointed out on the part of the petitioner. In this view of the matter and keeping in view the ratio of the decision in the case of Santosh Kumar Dubey (supra) it would be appropriate that the matter relating to the benefits accruing to the petitioner is to be re-examined by the competent authority namely the respondent No. 3 in the light of the observations made herein above. 13. Accordingly this writ petition is disposed of with a direction to the respondent No. 3 to consider the claim of the petitioner in the light of the law laid down in the case of Santosh Kumar Dubey (supra) and the observations made herein above and pass an appropriate order after giving opportunity of hearing to the respondent No. 4 and calling for comments from the District Inspector of Schools within three months from the date of production of a certified copy of this order before him. 14. The writ petition stands disposed of accordingly. ————