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2013 DIGILAW 1059 (ALL)

RAM PRATAP PANDEY v. STATE OF U. P.

2013-04-09

S.S.CHAUHAN

body2013
JUDGMENT Hon’ble S.S. Chauhan, J.—Heard learned counsel for the petitioner and learned Standing Counsel as well as learned counsel for opposite party No. 6. The petitioner through this petition has challenged the order dated 7.2.2013 passed by the Director of Education (Madhyamik), U.P. The facts in short to the present dispute are that the petitioner was appointed on the post of Assistant Teacher on 24.12.1974. The petitioner was upgraded and promoted to the post of L.T. grade in the College w.e.f. 1.1.1986. A post of Lecturer (Logic) fell vacant in the College on 1.7.2001 due to retirement of Sri Shiv Prasad Singh. The case of the petitioner for appointment to the post of Lecturer (Logic) was considered by the Committee of Management vide resolution dated 28.1.2002 and the Regional Committee approved the promotion of the petitioner vide order dated 2.8.2006 on the post of Lecturer (Logic). The petitioner feeling aggrieved with the approval of resolution on 2.8.2006 proceeded to file a writ petition before this Court numbering 7329 (SS) of 2008 for his promotion as Lecturer (Logic) w.e.f. 1.7.2001 or at least from the date of resolution of the Committee of Management. The aforesaid writ petition was disposed of by this Court on 25.11.2008 directing the Joint Director of Education, Faizabad Region, Faizabad to decide the controversy. The Joint Director of Education, Faizabad Region, Faizabad considered the matter at length and provided benefit of promotion on the post of Lecturer (Logic) in the College from the date of the resolution of the Committee of Management of the College and settled the dispute finally by means of order dated 4.9.2010. In due course of time seniority list of the Lecturers of the College was prepared and issued in the month of May 2011 and all the Lecturers of the College signed the said seniority list without raising any objection. 2. Opposite party No. 6, Shashi Shekhar has been appointed as Lecturer (Sanskrit) in the College after being recommended by the Selection Board on 11.10.2002 and while entering into the service his qualification was M.A. in Sanskrit and he was not having any training certificate. The post of Principal in the College fell vacant on 30.6.2011 due to retirement of earlier Principal Sri Raj Karan Pandey on 1.7.2011. The petitioner was promoted and appointed as Principal of the College on ad-hoc basis. The post of Principal in the College fell vacant on 30.6.2011 due to retirement of earlier Principal Sri Raj Karan Pandey on 1.7.2011. The petitioner was promoted and appointed as Principal of the College on ad-hoc basis. The petitioner continued to discharge his duties on the post of Principal when opposite party No. 6 filed Writ Petition No. 3316 (SS) of 2011 before this Court claiming promotion on the post of Principal and his writ petition was disposed of vide order dated 31.5.2011 directing the Director of Madhyamik Education, U.P. to decide the representation dated 26.5.2011. Against the order dated 31.5.2011, Special Appeal No. 524 of 2011 was filed by the petitioner, which is still pending consideration. Director of Madhyamik Education vide order dated 7.2.2013 cancelled the order dated 4.9.2010 passed by the Joint Director of Education in pursuance to the direction issued by this Court in Writ Petition No. 7329 (SS) of 2008. The aforesaid order is under challenge in the present writ petition. 3. Submission of learned counsel for the petitioner is that the Director of Madhyamik Education could not have acted as an appellate authority and he ought to have referred the matter to the Regional Committee for deciding the inter se seniority of the parties which is the competent body under the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 (for short “the Rules”). The petitioner was not given any opportunity of hearing before passing the impugned order nor any notice was issued to the petitioner in the writ petition filed by opposite party No. 6 and an ex-parte order was obtained by opposite party No. 6 in which a direction was given to the Director to decide the representation. Learned counsel submits that the Director is not the competent authority to decide the seniority of Lecturers and it is the Committee of Management, which is competent to decide the seniority. The resolution for promoting the petitioner to the post of Lecturer was passed on 28.1.2002 though the post fell vacant on 1.7.2001. Learned counsel submits that the Director is not the competent authority to decide the seniority of Lecturers and it is the Committee of Management, which is competent to decide the seniority. The resolution for promoting the petitioner to the post of Lecturer was passed on 28.1.2002 though the post fell vacant on 1.7.2001. The petitioner cannot be made to suffer for the inaction or omission on the part of the authorities in not processing the promotion of the petitioner within the time stipulated in Rule 14 of the Rules and once the authorities have failed to carry out their duty within the stipulated time, the petitioner is entitled for the promotion from the date of resolution passed by the Committee of Management i.e. 28.1.2002, which has been accepted by the petitioner, after the decision taken by the Regional Committee, which was the competent authority in the matter. The papers of the petitioner were forwarded well within time to the DIOS. The DIOS and the Regional Committee kept sitting tight over the matter but it is to be noted that the petitioner was fully eligible for being promoted to the post of Lecturer (Logic) on the date when the vacancy fell vacant i.e. 1.7.2001. Non-processing of the petitioner’s papers will not hamper the promotion of the petitioner in any manner and the Regional Committee has rightly promoted the petitioner w.e.f. 28.1.2002 i.e. the date of passing of the resolution by the Committee of Management. He has placed reliance upon the judgments rendered in the case of P.N. Premachandran v. State of Kerala and others, (2004) 1 SCC 245 and Santosh Kumar Dubey and another v. State of U.P. and others, 2009 (10) ADJ 495 ]. 4. Learned counsel for opposite party No. 6, on the other hand, has submitted that Rules 15 and 16 have been deleted w.e.f. 7.8.2001 and as such, the benefit of ad-hoc promotion cannot be given to the petitioner. The policy of ad-hoc promotion has been given up and now a person can be promoted on substantive basis and since the petitioner’s appointment was approved on 2.8.2006, therefore, his seniority is to be reckoned from the said date. The policy of ad-hoc promotion has been given up and now a person can be promoted on substantive basis and since the petitioner’s appointment was approved on 2.8.2006, therefore, his seniority is to be reckoned from the said date. Once the ad-hoc promotion has been given up by the State Legislature on the post of Lecturer, no such benefit can be claimed by the petitioner and the case laws relied upon by the learned counsel for the petitioner are not applicable in this case. He has further submitted that seniority is to be counted from the date of induction into the cadre and not from the date of occurrence of vacancy. Rule 14 of the Rules does not contemplate any ad-hoc promotion and therefore, the claim of the petitioner to count his services while he was working on officiating basis on the post of Lecturer cannot be counted towards his seniority. He has relied upon the judgments rendered by the Apex Court in the case of State of Bihar and others v. Akhouri Sachindra Nath and others, 1991 Supp (1) SCC 334 and State of Uttaranchal and another v. Dinesh Kumar Sharma, 2007 (1) ESC 132 (SC) and learned counsel has also relied upon a judgment rendered by this Court in the case of Naveen Chandra Seth and others v. Commissioner, Allahabad Division, Allahabad and others, 2000 (18) LCD 97, to contend that in respect of administrative orders rectification can always be made by the superior officers. 5. I have heard learned counsel for the parties and perused the record. The petitioner was appointed on the post of Assistant Teacher on 24.12.1974. The petitioner was upgraded and promoted to the post of L.T. grade in the College w.e.f. 1.1.1986. A post of Lecturer (Logic) fell vacant in the College on 1.7.2001 due to retirement of Sri Shiv Prasad Singh. The case of the petitioner for appointment to the post of Lecturer (Logic) was considered by the Committee of Management vide resolution dated 28.1.2002 and the Regional Committee approved the promotion of the petitioner vide order dated 2.8.2006 on the post of Lecturer (Logic). The petitioner feeling aggrieved with the approval of resolution on 2.8.2006 proceeded to file a writ petition before this Court numbering 7329 (SS) of 2008 for his promotion as Lecturer (Logic) w.e.f. 1.7.2001 or at least from the date of resolution of the Committee of Management. The petitioner feeling aggrieved with the approval of resolution on 2.8.2006 proceeded to file a writ petition before this Court numbering 7329 (SS) of 2008 for his promotion as Lecturer (Logic) w.e.f. 1.7.2001 or at least from the date of resolution of the Committee of Management. The aforesaid writ petition was disposed of by this Court on 25.11.2008 directing the Joint Director of Education, Faizabad Region, Faizabad to decide the controversy. The Joint Director of Education, Faizabad Region, Faizabad considered the matter at length and provided benefit of promotion on the post of Lecturer (Logic) in the College from the date of the resolution of the Committee of Management of the College and settled the dispute finally by means of order dated 4.9.2010. In due course of time seniority list of the Lecturers of the College was prepared and issued in the month of May 2011 and all the Lecturers of the College signed the said seniority list without raising any objection. Opposite party No. 6, Shashi Shekhar has been appointed as Lecturer (Sanskrit) in the College after being recommended by the Selection Board on 11.10.2002 and while entering into the service his qualification was M.A. in Sanskrit and he was not having any training certificate. The post of Principal in the College fell vacant on 30.6.2011 due to retirement of earlier Principal Sri Raj Karan Pandey on 1.7.2011. The petitioner was promoted and appointed as Principal of the College on ad-hoc basis. The petitioner continued to discharge his duties on the post of Principal when opposite party No. 6 filed Writ Petition No. 3316 (SS) of 2011 before this Court claiming promotion on the post of Principal and his writ petition was disposed of vide order dated 31.5.2011 directing the Director of Madhyamik Education, U.P. to decide the representation dated 26.5.2011. Against the order dated 31.5.2011, Special Appeal No. 524 of 2011 was filed by the petitioner, which is still pending consideration. Director of Madhyamik Education vide order dated 7.2.2013 cancelled the order dated 4.9.2010 passed by the Joint Director of Education in pursuance to the direction issued by this Court in Writ Petition No. 7329 (SS) of 2008. 6. The post of Lecturer (Logic) fell vacant and the Committee of Management passed a resolution on 28.1.2002 promoting the petitioner w.e.f. 1.7.2001. Director of Madhyamik Education vide order dated 7.2.2013 cancelled the order dated 4.9.2010 passed by the Joint Director of Education in pursuance to the direction issued by this Court in Writ Petition No. 7329 (SS) of 2008. 6. The post of Lecturer (Logic) fell vacant and the Committee of Management passed a resolution on 28.1.2002 promoting the petitioner w.e.f. 1.7.2001. The aforesaid promotion of the petitioner was not given effect to from the due date, therefore, the petitioner filed Writ Petition No. 7329 (SS) of 2008 for considering his promotion from the date the vacancy had fallen vacant. This Court passed an order directing the Joint Director of Education to decide the representation of the petitioner. The Joint Director of Education referred the matter to the Regional Committee and the Regional Committee decided the controversy by means of order dated 4.9.2010 and the petitioner was given promotion w.e.f. 28.1.2002 i.e. the date of passing the resolution. The petitioner contended himself with the aforesaid order but opposite party No. 6 filed Writ Petition No. 3316 (SS) of 2011 praying therein that the Director of Education may be directed to decide his representation as he was senior to the petitioner. The Director of Education passed the impugned order dated 7.2.2013 by means of which he unsettled the position of seniority and set aside the order of the Regional Committee dated 4.9.2010. Against the order passed in Writ Petition No. 3316 (SS) of 2011 dated 31.5.2011, Special Appeal No. 524 of 2011 has been preferred by the petitioner and the same is pending consideration. 7. The Director of Madhyamik Education in pursuance to the direction of this Court has proceeded to decide the matter and thereby set aside the order passed by the Regional Committee. No notice was given to the petitioner by the Director of Education while adjudicating the said dispute though the seniority of the petitioner was unsettled and the order passed by the Regional Committee was set aside. The order on the face of it suffers from violation of principles of natural justice as the petitioner was not given any opportunity to put forward his case before the Director. 8. It is to be noted that the Director does not happen to be the appellate authority in respect of the order passed by the Regional Committee. The said order is amenable to writ jurisdiction. 8. It is to be noted that the Director does not happen to be the appellate authority in respect of the order passed by the Regional Committee. The said order is amenable to writ jurisdiction. Opposite party No. 6 got an order from this Court directing the Director to decide the representation. While deciding the representation of opposite party No. 6, the Director could have adjudicated in respect of the claim of opposite party No. 6 utmost, it was not within his power to set aside the order passed by the Regional Committee dated 4.9.2010. The petitioner, who was initially appointed on the post of Assistant Teacher in the year 1974 and was upgraded and promoted to the post of L.T. grade cadre on 1.1.1986, was fully qualified to be promoted on the post of Lecturer (Logic) which fell vacant on 1.7.2001. The petitioner has been working all along on the said post in pursuance to the resolution passed by the Committee of Management. The post was existing and the petitioner has been working continuously, therefore, to say that seniority will be available to the petitioner from 2.8.2006 when the matter was approved by the Regional Committee is without any merit as mere non-approval or non-processing of the papers by the educational authorities within the time limit prescribed in Rule 14 of the Rules cannot come to the rescue of opposite party No. 6. The ad-hoc promotion whether was available to the petitioner or not is of no consequence. If the papers of the petitioner would have been scrutinized and appropriate decision would have been taken within the time frame, the petitioner would be senior in all respect. Question of ad-hoc promotion as argued by the counsel for opposite party No. 6 having been given away by the Legislature will make no difference in the facts and circumstances of the present case where the petitioner was not at fault at any point of time but rather the authorities kept on lingering the matter for long and thereby took decision on 2.8.2006. The Apex Court in the case of P.N. Premachandran (supra) has held in paragraph-7 as under : “7. It is not in dispute that the posts were to be filled up by promotion. The Apex Court in the case of P.N. Premachandran (supra) has held in paragraph-7 as under : “7. It is not in dispute that the posts were to be filled up by promotion. We fail to understand how the appellant, keeping in view the facts and circumstances of this case, could question the retrospective promotion granted to the private respondents herein. It is not disputed that in view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the part of the State of Kerala for no fault on their part. It is also not disputed, that in ordinary course they were entitled to be promoted to the post of Assistant Directors, in the event, a Departmental Promotion Committee had been constituted in due time. In that view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time, although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect.” 9. The aforesaid case has been relied upon by this Court in the case of Santosh Kumar Dubey (supra) wherein it was found that the petitioners were promoted on ad-hoc basis and they were continuing on the post in question and therefore, they were entitled for the seniority w.e.f. the date they were promoted. This Court further relied upon the Constitution Bench judgment of the Apex Court rendered in the case of The Direct Recruit Class-II Engineering Officers’ Association and others v. State of Maharashtra and others, AIR 1990 SC 1607 , apart from P.N. Premachandran case. 10. The argument of opposite party No. 6 that the ad-hoc services must be there to claim benefit cannot be accepted as neither the contingency arose in P.N. Premachandran (supra) nor in the case of The Direct Recruit Class-II Engineering Officers’ Association (supra) and further that the principle of seniority from the date of officiating has also been accepted subject to the condition that the substantive vacancy was there and the petitioner was qualified for the said post. According to the aforesaid proposition, there is no dispute in the present case. 11. Reliance placed by the counsel for opposite party No. 6 upon the case of Akhouri Sachindra Nath (supra) was in respect of the controversy where the direct recruits were appointed when the promotees were not born in the cadre and so, in very peculiar circumstances it was held that the seniority was to be reckoned on the basis of length of service. It was held that retrospective promotion cannot be given and it should not relate back to the period when the promotees were not born in the cadre. 12. Learned counsel for opposite party No. 6 has placed reliance upon the case of Naveen Chandra Seth (supra) to contend that the order passed by the inferior authority can be rectified by the superior authority. Where specific forum has been provided, consent of the parties cannot create jurisdiction upon a particular authority for which he is not vested with jurisdiction otherwise under law. The appropriate forum after the order of the Regional Committee is before this Court and therefore, the question of correction of mistake did not arise on the part of the superior authority, who was otherwise not vested with the said power under the Act or the Rules. 13. In the case of Dinesh Kumar Sharma (supra), it was held that even if the candidate was eligible for promotion when promotional post fell vacant at earlier point of time, his seniority is to be reckoned only from the date of his substantive appointment to the said vacant post under the Rules and not retrospectively from the date of occurrence of vacancy. 14. In the aforesaid case law persons were not officiating on the post in question and neither any time frame has been prescribed under the Rules whereas in the present case time frame has been provided and it was incumbent upon the authorities to have taken a decision within the aforesaid prescribed time and once it is found that the petitioner was not at fault and neither he could have played any role in processing the matter, it was incumbent upon the opposite parties to have accorded seniority to the petitioner from the date the Committee of Management passed the resolution when the petitioner started functioning on the post in question. The petitioner’s claim, therefore, is substantiated under law and he is entitled for promotion w.e.f. the date the Committee of Management passed the resolution. A person cannot be made to suffer for the inaction or for the fault of the Government or the authorities. The doctrine of impossibility comes to the rescue of the petitioner. A person cannot be compelled to do impossible. The case of the petitioner is squarely covered by the aforesaid doctrine. Theretofore, in these circumstances, the order impugned cannot be sustained in law and is liable to be quashed. The writ petition is accordingly allowed. The order dated 7.2.2013 passed by the Director of Education (Madhyamik), U.P. is hereby quashed and the petitioner would be entitled for the consequential benefits. —————