Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2736 (ALL)

SUNDER SINGH v. STATE OF U. P.

2014-09-05

RAJAN ROY

body2014
JUDGMENT Hon’ble Rajan Roy, J.—Heard Sri Anil Kumar Sharma, learned counsel for the petitioner. 2. By means of this writ petition, the petitioner is challenging the order dated 4.2.2011 passed by the Regional Selection Committee, Agra Region, Agra, by which his claim for promotion to the post of lecturer-Physics has been declined on the ground that on the date of occurrence of vacancy, he did not possess requisite five years qualifying service on the feeder post of Assistant Teacher, as is required under Rule 14 of the relevant Rules of 1998. 3. The petitioner claims to have been appointed as Assistant Teacher, L.T. Grade in Sri Parmeshwari Devi Dhanuka Saraswati Vidhya Mandir, Vrindawan, District Mathura, on a regular substantive post, on 30.10.1996, and worked as such till 31.7.2004, thereafter, the petitioner was selected by the U.P. Secondary Service Selection Board, Allahabad for appointment as Assistant Teacher, L.T. Grade on 23.11.2004 in pursuance to an advertisement issued by it in this regard under the provisions of the Uttar Pradesh Secondary Education [Services Selection Boards] Act, 1982 and the Rules of 1998 made thereunder and was allotted Sri Krishna Uchchatar Madhyamik Vidyalaya, Parlauni, Mathura. Thereafter, the petitioner was transferred on the basis of mutual consent between Sri Krishna Uchchatar Madhyamik Vidyalaya, Parlauni, Mathura and Sri Vrindawan Vidhyapeeth Inter College, Vrindavan, District Mathura and appointed as Assistant Teacher L.T. Grade. He joined in the latter college on 26.5.2006. 4. Prior to this, i.e. on 30.6.2003, the post in question, i.e. the post of lecturer-Physics in Sri Krishna Uchchatar Madhyamik Vidyalaya, Parlauni, Mathura fell vacant on the retirement of the then incumbent Sri Chandra Prakash Dwivedi. The petitioner staked his claim for being eligible for consideration for promotion to the aforesaid post. The claim of the petitioner was not acceded by the authorities, who sent a requisition to the Commission for direct recruitment, as, according to them, no eligible Assistant Teacher L.T. Grade was available for promotion. 5. Being aggrieved, the petitioner filed a writ petition before this Court bearing Writ Petition No. 56559 of 2009, wherein, an interim order was passed that the selection held by the Commission on the post in question shall be subject to the further orders passed by the Court and also that it shall be open to the petitioner to get his promotion matter disposed of by the competent authority. 6. 6. The petitioner filed a writ petition bearing Writ-A No. 1674 of 2011 challenging the select list prepared by the Commission. The said writ petition was disposed of inter alia with the observations that this second writ petition on the same cause of action would not lie, but so far as the promotion of the petitioner on the post of lecturer in Physics is concerned, the Regional Director of Education, Agra Region, Agra may take a final decision in pursuance to the aforesaid order i.e. the order dated 28.10.2009 passed in Writ Petition No. 56559 of 2009. 7. In the meantime, one Raghuwesh Kumar Sharma was selected by the Commission for direct appointment on the post in question and in pursuance thereof, he joined on 30.3.2011. 8. Thereafter, the claim of the petitioner for promotion was considered by the Regional Selection Committee and the same was rejected vide impugned order dated 4.2.2011 on the ground that the services rendered by him prior to his appointment on 23.11.2004 under the Act of 1982 and Rules made thereunder, i.e. the service rendered in Sri Parmeshwari Devi Dhanuka Saraswati Vidhya Mandir, Vrindawan, District Mathura could not be counted for computing the requisite five years regular service under Rule 14, therefore, he was not eligible for consideration for promotion. 9. The submission of the learned counsel for the petitioner is that as the petitioner was employed on regular basis in the earlier institution Sri Parmeshwari Devi Dhanuka Saraswati Vidhya Mandir, Vrindawan, District Mathura w.e.f. 30.10.1996 till 31.7.2004, therefore, the said regular service rendered by him as Assistant Teacher L.T. Grade should be counted under Rule 14 of the Rules of 1998 for the purposes of determining his eligibility for consideration for promotion to the post in question. In this regard, he also relied upon a certificate issued by his erstwhile employer/institution dated 18.7.2007. He relies upon a judgment of this Court dated 15.7.2010 passed in Writ-A No. 2842 of 2010, the judgment of the Supreme Court dated 20.2.2002 in Civil Appeal No. 961-962 of 1999 and the judgment of the Supreme Court dated 28.8.2002 passed in Contempt Petition No. 372 of 2002 in Civil Appeal No. 962 of 1999. 10. He relies upon a judgment of this Court dated 15.7.2010 passed in Writ-A No. 2842 of 2010, the judgment of the Supreme Court dated 20.2.2002 in Civil Appeal No. 961-962 of 1999 and the judgment of the Supreme Court dated 28.8.2002 passed in Contempt Petition No. 372 of 2002 in Civil Appeal No. 962 of 1999. 10. The further submission of the learned counsel is that in view of the aforesaid, the requisition sent by the respondents to the Commission, for direct recruitment on the post in question, and the consequent selection, as also, the appointment and joining of Sri Raghuwesh Kumar Sharma, is not sustainable in law and the same is already under challenge in the earlier writ petition filed by the petitioner. 11. For the aforesaid reasons, the impugned order dated 4.2.2011 is liable to be quashed and the petitioner is entitled to be considered for promotion. 12. Except the above, no other argument was advanced by the learned counsel for the petitioner nor any other authority was cited by him. 13. The other writ petitions filed by the petitioner are not before me today, however, if the claim of the petitioner for promotion, as raised in this writ petition is decided, the consequences will follow. If the claim is accepted, then the direct recruit may have to go and if it is not accepted, the direct recruit shall be unaffected. 14. Before proceeding to deal with the submissions of the learned counsel for the petitioner, it is relevant to mention that promotion on the post of Assistant Teacher L.T. Grade as also lecturer grade is to be made as per the provisions contained in the Uttar Pradesh Secondary Education [Services Selection Boards] Act, 1982 and the U.P. Secondary Secondary Education Services Commission Rules, 1998. 15. Rule 14 of the Rules of 1998 reads as under: “14. Procedure for recruitment by promotion : (1) Where any vacancy is to be filled by promotion all teaches working in trained graduates grade or certificate of training grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates grade, as the case may be, without their having applied for the same. Note : For the purposes of this sub-rule, regular service rendered in any other recognized institution shall be counted for eligibility unless interrupted by removal dismissal or reduction to a lower post. (2) The criterion for promotion shall be seniority subject to the rejection of unfit. (3) The Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the pro forma given in Appendix-A (4) Within three weeks of the receipt of the list from the management under sub-rule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director. (5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in sub-section (1) of Section 12 and after the Committee’s recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management. (6) With ten days of the receipt of the panel from the Joint Director under sub-rule(5) the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the proforma given in Appendix ‘’F’ to such candidate.” 16. Rule 14(1) and the note thereto makes it evident that in order to be ineligible for consideration for promotion to the promotional post of lecturer, the candidate/Assistant Teacher L.T. Grade must possess the qualifications prescribed for the post and should have completed five years of continuance service, as such, i.e. as Assistant Teacher L.T. Grade, on the first day of the year of recruitment. It is now settled that the eligibility of a candidate for promotion under Rule 14 is to be seen as on the date of occurrence of vacancy vide Subhash Prasad v. Regional Selection Committee, Gorakhpur and others, 2004 ALJ 3711, which has been followed in various decisions such as Avnish Singh v. State of U.P. and others, 2007(5) ADJ 546 , Vijay Kant Singh v. Joint Director of Education, 2008 (10) ADJ 183 (DB) and Km. Sweta Garg v. State of U.P. and others, 2010 (8) ADJ 325 . 17. The Note to Rule 14(1) further provides that regular service rendered in other recognised institution shall be counted unless interrupted by removal dismissal or revision to a lesser post. The words ‘recognised institution’ have to be understood in the light of the definition of ‘Institution’ contained in Section 2(c) of the Act of 1982 as meaning ‘an Intermediate College or a Higher Secondary School or a High School under the Intermediate Education Act, 1921, and includes institution maintained by a local authority but does not include an institution maintained by the State Government. The term ‘Recognition’ as defined in Section 2(d) of the Intermediate Education Act, 1921 means recognition for for the purpose of preparing candidates for admission in the Boards Examination. ‘Board’ is defined under Section 2(a) of the Act, 1921 as the Board of High School and Intermediate Education which in this case is Madhyamik Shiksha Parishad. Sri Parmeshwari Devi Dhanuka Saraswati Vidhya Mandir, Vrindawan, District Mathura was recognised by C.B.S.E. It was not recognised by the ‘Board’ under the Intermediate Education Act, 1921 nor was it an institution as per Section 2(e) of the Act, 1982, therefore services rendered under it could not be counted for purposes of Rule 14. 18. The term ‘regular service’ has not been defined in Rule 14, however, Rule 2(d) of the said Rules, 1998 defines substantive appointment to mean as as under: “(d) ‘Substantive appointment’ means an appointment, not being an ad hoc appointment on the post of a teacher made in accordance with the provisions in the Act and the rules made thereunder and includes the appointments regularised under Section 33-A or 33-B or 33-C.” 19. The definition of substantive appointment excludes ad hoc appointment and means an appointment, in accordance with the provisions in the Act and the Rules made thereunder and includes the appointments regularised under Section 33-A or 33-B of the Act. The terms ‘Act and Rules’, referred therein, mean the Uttar Pradesh Secondary Education [Services Selection Boards] Act, 1982 and the Rules of 1998 made thereunder in view of Rule 2(a) therein. The use of the word ‘regularisation and exclusion of Ad Hoc appointment’ therein clearly indicates that substantive appointment in fact refers to regular appointment. 20. Indisputably, the appointment and service prior to 23.11.2004 was not in accordance with the Rules of 1998 made thereunder. The substantive appointment of the petitioner as Assistant Teacher L.T. Grade as per the Act of 1982 and the Rules of 1998 was made only on 23.11.2004 and thereafter he rendered regular service in Sri Krishna Uchchatar Madhyamik Vidyalaya, Parlauni, Mathura and then after transfer, in Sri Vrindawan Vidhyapeeth Inter College, Vrindavan, District Mathura and it is only these services, which could be counted for purposes of Rule 14. As the legal position is that the eligibility condition should be satisfied on the date of occurrence of vacancy and in this case the vacancy occurred on 30.6.2003, i.e. prior to petitioner’s appointment on 23.11.2004, he was clearly ineligible for consideration for this vacancy. 21. In view of the above, it is not possible to accept the contention of the learned counsel for the petitioner that services rendered from 30.10.1996 to 31.7.2004 should be counted for determining his eligibility for the promotion in question. The petitioner not having been appointed nor in service as per the Act of 1982, as on the date of occurrence of vacancy, i.e. 30.6.2003, he was not eligible for consideration. It being so, I do not find any error in the impugned order dated 4.2.2011. The claim of the petitioner is misconceived. The respondents have rightly judged the eligibility of the petitioner with effect from the date of his substantive appointment under the Act of 1982 and the Rules made thereunder, i.e. w.e.f. 23.11.2004 and not from a prior date. 22. The claim of the petitioner is misconceived. The respondents have rightly judged the eligibility of the petitioner with effect from the date of his substantive appointment under the Act of 1982 and the Rules made thereunder, i.e. w.e.f. 23.11.2004 and not from a prior date. 22. The judgments relied upon by the petitioner, copies of which are annexed with the writ petition, relate to direct recruitment and are not based on the provisions of Rule 14 read with Rule 2(c) of the Rules of 1998, therefore, the same have no application in the facts and circumstances of the case as the entitlement/eligibility of the petitioner for promotion has to be considered, in this case, in the light of the aforesaid provisions and not independent of them. 23. The writ petition is accordingly dismissed. ——————