Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 813 (UTT)

BABU RAM v. STATE OF UTTARAKHAND

2013-12-20

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. Undisputedly, in K.V. Inter College Laksar, Haridwar, petitioner was appointed as Assistant Teacher in the year 1974. Petitioner was having post graduate degree in Sociology as well as B.T.C. Undisputedly, Mr. Bhagat Ram Mittal was working as Lecturer (Sociology) in the same college. On account of retirement of Bhagat Ram Mittal in the year 1992, post of Lecturer (Sociology) has fallen vacant. Undisputedly, 50% post of lecturers were required to be filled up by promotion and 50% by direct recruitments. Undisputedly, one Shri Mahendra Pal was promoted on the post of Lecturer (Sociology). Later on promotion of Shri Mahendra Pal to the post of Lecturer (Sociology) was found to be illegal, therefore, vide order dated 17.03.1992, promotion in favour of Shri Mahendra Pal was revoked and he was demoted to the post of Assistant Teacher in the same college. Mahendra Pal challenged the cancellation/revocation of his promotion and continued to work on the promotional post under the interim stay. Ultimately, Mahendra Pal lost legal battle and post of Lecturer (Sociology) again has fallen vacant on 13.05.2010. On 13.05.2010 itself Manager of the College issued no objection to the Education Department for appointment on the post of Lecturer (Sociology) by transfer of Shri Ashvani Kumar, respondent No. 9 who at the relevant time was posted as Lecturer in Girls Inter College Khanpur. 2. Petitioner, being senior most Assistant Teacher, applied for the promotional post of Lecturer (Sociology). His candidature was not considered, therefore, he preferred writ petition before this Court, being writ petition No. 703 of 2010 (S/S), which was disposed of by this Court vide order dated 16th August, 2010 directing the authorities to consider the representation of the petitioner seeking promotion on the post of Lecturer (Sociology). Representation so moved by the petitioner came to be rejected vide order dated 9th October, 2010 on two grounds namely; (i) Requisite qualification for the post of Lecturer (Sociology) was post graduate degree in the subject alongwith B.Ed. While, petitioner was having only qualification of M.A. and B.T.C. and was not B.Ed. (ii) Petitioner applied for promotion on 14.05.2010 while Manager had already issued no objection on 13.05.2010 in favour of Ashvani Kumar, respondent No. 9 herein for appointment by transfer in the college under the direct recruitment quota on the post of Lecturer (Sociology). Therefore, when petitioner moved application seeking promotion, post was not available. 3. (ii) Petitioner applied for promotion on 14.05.2010 while Manager had already issued no objection on 13.05.2010 in favour of Ashvani Kumar, respondent No. 9 herein for appointment by transfer in the college under the direct recruitment quota on the post of Lecturer (Sociology). Therefore, when petitioner moved application seeking promotion, post was not available. 3. I have heard Mr. Sudhir Singh, learned counsel for the petitioner, Mr. Subhash Upadhyaya, learned Standing Counsel for respondent Nos. 1 to 5, Mr. Ajay Veer Pundir, Advocate for respondent No. 8 and Mr. Shashi Kant Shandilya, Advocate for respondent No. 9 and have carefully perused the record. 4. Mr. Ajay Veer Pundir, Advocate contends that although he had earlier filed his vakalatnama on behalf of respondent Nos. 6, 7 and 8, however, as on day Committee of Management is not working and Authorised Controller has already been appointed, therefore, he is appearing on behalf of respondent No. 8 only. 5. Undisputedly, Mahendra Pal was promoted on the post of Lecturer (Sociology) on account of retirement of Shri Bhagat Ram Mittal, the then Lecturer (Sociology) under the promotion quota. Undisputedly, promotion of Mahendra Pal was revoked. Ultimately, on 13.05.2010, post of Lecturer (Sociology) has fallen vacant under the promotion quota. Undisputedly, on account of demotion of Mahendra Pal, no exercise was undertaken to promote eligible Assistant Teacher for the post of Lecturer (Sociology) and without there being any exercise to find out the suitable candidate to be appointed as Lecturer (Sociology) by way of promotion, no objection was issued by the Manager of the College to appoint Shri Ashvani Kumar respondent No. 9, therefore, Shri Ashvani Kumar was appointed under the direct recruitment quota on the post of Lecturer (Sociology) by way of transfer from Girls Inter College Khanpur. 6. Mr. Subhash Upadhayay, learned Standing Counsel fairly submits that if post of Lecturer (Sociology) was available under the promotion quota on account of demotion of Shri Mahendra Pal who was also appointed on the post of Lecturer (Sociology) under the promotion quota, it was not open to the Manager to issue no objection for the appointment of Shri Ashvani Kumar under the direct recruitment quota by way of transfer without undertaking the exercise to find out suitable Assistant teacher for promotion. 7. I find force in the submission made by Mr. Subhash Upadhyaya, learned Standing Counsel. 7. I find force in the submission made by Mr. Subhash Upadhyaya, learned Standing Counsel. Therefore, issuance of no objection in favour of Shri Ashvani Kumar seems to be outcome of ulterior motive and cannot be said to be legal. Moreover, post of Lecturer in question was to be filled up by promotion only and was not available for the direct recruitment. Therefore, appointment of Shri Ashvani Kumar, Lecturer on transfer from Khanpur is illegal and does not sustain in the eyes of law. 8. Undisputedly, State of Uttarakhand on 31st December, 2010 carried out amendment in Uttarakhand Special Subordinate Education (Lecturer grade) Rules thereby prescribing that requisite qualification for the promotion on the post of Lecturer would be post graduate degree in the subject in question. 9. In view of the fact that this Court has held appointment of respondent No. 9 Shri Ashvani Kumar on transfer illegal and without jurisdiction, therefore, respondent No. 9 has to go back to his parent school and once again post of Lecturer (Sociology) has fallen vacant and as on day after the amendment in the Rules by way of amendment 31st December, 2010, petitioner is having requisite qualification of M.A. (Sociology). 5 10. Therefore, writ petition thus stands disposed of with the following directions :- (a) Appointment on transfer of respondent No. 9 Shri Ashvani Kumar is hereby quashed. Respondent No. 9 shall be allowed to give joining on his parent College, i.e. Girls Inter College Khanpur. (b) Impugned order rejecting the representation of the petitioner dated 9th October, 2013 is hereby quashed. (c) Candidature of the petitioner shall be considered by the respondents afresh, in any case, within six weeks from today. If petitioner is otherwise found eligible shall be granted promotion. 11. CLMA No. 12157 of 2013 stands disposed of accordingly.