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Allahabad High Court · body

2009 DIGILAW 3704 (ALL)

PUNNI LAL v. STATE OF U. P.

2009-12-10

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Ranjit Saxena for the petitioner, learned Standing Counsel for respondents No. 1, 3, 4 and 5 and Sri H.N. Pandey for respondent No. 7 in Writ Petition No. 15550 of 2006 filed by the petitioner, Punni Lal, challenging the order dated 7.11.2005 (Annexure 8 to the writ petition) whereby the District Inspector of Schools (hereinafter referred to as “DIOS”) has directed the Committee of Management, Janta Inter College, Mau Aima, Allahabad (hereinafter referred to as the “College”) to fill in the post of Lecturer (Hindi) by promotion treating the same to be reserved and consider for promotion respondent No. 7, Shri Asharfi Lal, Assistant Teacher (L.T. Grade). 2. It is not in dispute that in the College, there were 12 sanctioned posts of Lecturers out of which six were to be filled in by direct recruitment and six by promotion. The post in question fell vacant on 1.7.2001 due to retirement of one Sri Gopinath Mishra, Lecturer in History on 30.6.2001. The petitioner and respondent No. 7, both were working as Assistant Teacher (L.T. Grade). The petitioner having passed M.A. in History in the year 1978 claimed to fulfil qualification for promotion to the post of Lecturer in Lecturer (History). The Management considered the same and passed resolution recommending his promotion on the post of Lecturer (History) but the same continued to await approval of DIOS since it did not pass any order thereon. In the circumstances, the petitioner filed writ petition No. 41155 of 2005 which was disposed of on 20.5.2005 directing DIOS to pass appropriate order in the matter. The respondents No. 2, thereafter, rejected the claim of the petitioner and allowed promotion of respondent No. 7 on the post of Lecturer (History) whereagainst the petitioner filed writ petition No. 72448 of 2005 wherein an interim order was passed on 1.12.2005. In the above writ petition, the petitioner challenged the order dated 27.10.2005 passed by Regional Committee declining to approve the proposal of petitioner’s promotion on the post of Lecturer (History). Since, immediately, thereafter the impugned order dated 7.11.2005 was passed by DIOS directing the College to make promotion of respondent No. 7 on the post of Lecturer (History), the present writ petition has been filed challenging the said order. 3. Since, immediately, thereafter the impugned order dated 7.11.2005 was passed by DIOS directing the College to make promotion of respondent No. 7 on the post of Lecturer (History), the present writ petition has been filed challenging the said order. 3. Basicly, only two questions have been raised which are to be adjudicated in this case, namely : (1) Whether the petitioner was eligible and could have claimed promotion on the post in question. (2) Whether the respondents are justified in treating the vacancy in question reserved and to consider respondent No. 7 suitable for promotion on the said post. 4. Coming to the first question, disputing the claim of the petitioner, Sri H.N. Pandey submitted that the petitioner was never appointed on the post of Assistant Teacher (L.T. Grade), therefore, could not have been promoted to the post of Lecturer (History). It is not in dispute that the petitioner was appointed as Assistant teacher by appointment order dated 9.8.1974 in the pay scale of Rs. 250-425 in the College. The said appointment was on the post of Assistant Teacher (C.T. Grade). After completion of 10 years service, it appears that the petitioner was granted L.T. Grade with effect from 1.1.1986. Sri Saxena drew my attention to Section 33-D of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as “1982 Act”), which reads as under : “33-D. Special provision for certificate of Training grade teacher.—Every teacher in the Certificate of Teaching grade, who is a trained graduate and,— (a) has completed ten years’ continuous satisfactory service in the said grade on or before January 1, 1986 shall, with effect from January 1, 1986; or (b) completes the said service of then years after January 1, 1986 shall, with effect from the date of completion of the said service of ten years; be deemed to have been appointed in the Trained Graduate Grade.” 5. The above section was inserted in 1982 Act by U.P. Act No. 25 of 1998 with effect from 20.4.1998. He submitted that in view of the deeming provision in 1982 Act, the petitioner is liable to be treated as appointed on the post of Assistant Teacher (L.T. Grade) with effect from 1.1.1986 and, therefore, was eligible and entitled to be considered for promotion to the post of Lecturer (History) against a vacancy which occurred on 1.7.2001. I find substance in the submission. 6. I find substance in the submission. 6. Section 33-D provides for deemed appointment of a person who has completed 10 years successful service in C.T. Grade to be deemed appointed as Assistant teacher (L.T. Grade). In view thereof, the petitioner must be deemed to have been appointed on the post of Assistant Teacher (L.T. Grade) with effect from 1.1.1986. He was, therefore, eligible and entitled to be considered for promotion to the post of Lecturer (History). 7. However, this is not sufficient to conclude the matter for the reason that the post in question was held to be reserved for scheduled caste since six posts of Lecturer were to be filled in by promotion and out of six posts, one could have been reserved for scheduled caste. In absence of any candidate belong to scheduled caste category, the DIOS, in my view, rightly held that the post in question can be filled in by direct recruitment keeping the post reserved for scheduled caste. 8. However, on 1.7.2001, the respondent No. 7 did not possess the requisite qualification for appointment to the post of Lecturer (History) inasmuch it is admitted case of both the parties that he obtained the qualification of M.A. (History) in the year 2004, and, therefore, on 1.7.2001, admittedly, he was not qualified to be appointed on the post of Lecturer (History). In Ram Saran Singh v. Committee of Management, (2002) 3 UPLBEC 2121 ; Sunil Kumar Misra v. Regional Selection Committee and others, 2004(1) ESC 424 (All); Subhash Prasad v. Regional Selection Committee, Gorakhpur and others, 2004(3) ESC 1385 (All); Brahm Dutt Tripathi v. State of U.P. and others, 2005(4) ESC 2327 (All), Gupteswar Tiwari v. Joint Director of Education, Azamgarh and others, 2005(4) ESC 2594 (All), Jabar Singh v. Joind Director of Education, 2007(6) ADJ 160 , this Court has clearly held that the eligibility for promotion has to be considered on the date of occurrence of vacancy i.e. the year of recruitment and not on the date when the Management decided to fill in the same. 9. 9. It appears that even though the post in question, which fell in promotion quota, could have been reserved for scheduled caste candidate but since the respondent No. 7 did not possess the requisite qualification on the prescribed date, i.e. 1st of July of the year in which the vacancy arose, he could not have been considered suitable for promotion on the basis of the qualification possessed later on. In the circumstances, the vacancy has to be filled in otherwise then by considering respondent No. 7 as suitable for promotion to the said post. Sri Saxena suggested that in Smt. Sunita Bhagat v. State of U.P., 2005(4) ESC 5 (All)(DB), a Division Bench of this Court held that if a reserved category eligible candidate in promotion quota is not available, such vacancy can be filled in by a general category candidate by promoting him if he is otherwise suitable and eligible. Sri Pandey submitted that the judgment of the Division Bench in Sunita Bhagat (supra) cannot be relied since it has already been set aside by the Apex Court. He, placing reliance on Government Order dated 10.10.1994 (Annexure 1 to the counter affidavit) submitted that the post reserved for scheduled caste had to be kept vacant and could not have been made available to a general category candidate. He placed reliance on the Apex Court Decision in Civil Appeal No. 5679 of 2006 (Rachna Rani v. State of U.P.) decided on 8.12.2006 whereby the Division Bench judgment of this Court in Smt. Sunita Bhagat (supra) was set aside. The Apex Court held that under Rule 10 read with Rule 14 of U.P. Secondary Education Service Selection Board Rules, 1998, if an eligible and suitable candidate for promotion is not available and the post is reserved for a particular category, the same cannot be filled in by a general category candidate but direct recruitment has to be made confining it to the category for which the post was kept reserved meaning thereby that the post in question, in absence of any suitable candidate for promotion of scheduled caste candidate, could have been filled in by direct recruitment but keeping it reserved for scheduled caste. In this view of the matter, I do not find as to how the above Government Order helps the respondent No. 7. 10. In this view of the matter, I do not find as to how the above Government Order helps the respondent No. 7. 10. Sri Pandey, however, submits that the petitioner not being himself a candidate for the post in question, as the same was kept reserved for scheduled caste, has no locus standi to challenge the same as it does not affect him in any manner. I find no substance in the submission for the reason that the petitioner and respondent No. 7 both constitute members of the same cadre namely Assistant Teacher (L.T. Grade) but if in an illegal manner, the respondent No. 7 is sought to be promoted to the post of Lecturer (History) he would score a march over the petitioner in the matter of seniority and status etc. and when the occasion for giving further benefit would arise, it is respondent No. 7 who will be considered and not the petitioner. Had these benefits given to respondent No. 7 in accordance with law, no valid objection could have been raised but it cannot be said that if the same is done in an illegal manner, that would not affect the petitioner adversely in any manner and he cannot challenge the same. 11. I, therefore, partly allow both the writ petitions. The impugned order dated 7.11.2005 (Annexure 8 to Writ Petition No. 15550 of 2006) is hereby quashed. However, since the post in question has rightly been kept reserved for scheduled caste, I direct the respondents to fill in the same by direct recruitment in accordance with law from a candidate belong to scheduled caste. The respondent No. 7 shall not be entitled to claim any benefit merely on the basis that he was promoted pursuant to the impugned order dated 7.11.2005 since the same has been quashed herewith. 12. No order as to costs. ————