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2014 DIGILAW 580 (UTT)

Jaipal Singh v. State of Uttarakhand

2014-12-16

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner before this Court is a Lecturer (Economics) in a private, though grant-in-aid Inter College, namely, K.L.D.A.V. Inter College, Rooorkee, Haridwar. By means of the present writ petition, he has sought a writ of certiorari for quashing the order dated 19.04.2010 (Annexure 9 to the writ petition) and order dated 01.05.2010 (Annexure 9-A) to the writ petition. By order dated 19.04.2010, an earlier order dated 16.06.2008 by which petitioner’s services were regularized as a Lecturer (Economics) w.e.f. 01.07.1996, have been set aside and thereafter vide order dated 01.05.2010 another order has been passed by the Additional Director of Education, Garhwal Region, Pauri by which petitioner has been shown to be appointed as Lecturer (Economics) and the petitioner has been put for probation for a period of one year w.e.f. 22.04.2006. 2. Heard the learned counsel for the petitioner Mr. Tapan Singh, Mr. N.P. Shah, learned Standing Counsel for the State of Uttarakhand/respondent nos. 1 to 3, Mr. Rakesh Thapliyal, Advocate, for respondent no. 5, Mr. I.P. Gairola, Advocate for respondent no. 6 and Mr. Parikshit Saini, Advocate for respondent no.7. Though name of Mr. Pradeep Chamyal has been shown in the cause list for respondent no.4 but no one has put in appearance for respondent no. 4. 3. The petitioner belongs to schedule caste community. He was initially appointed as an Assistant Teacher (L.T. Grade) in Economics subject on the vacancy of Assistant Teacher (L.T. Grade) General. Even at the time of his appointment as Assistant Teacher (L.T. Grade), the petitioner was a postgraduate in Economics. The minimum qualification for appointment as Lecturer is that a candidate should be a postgraduate in the subject in which he is becoming a lecturer. In the present case it would be the Economics and such post of Lecturer which is to be filled by way of promotion from Assistant Teacher (L.T. Grade), the additional qualification should be that a candidate must have been continuously teaching as an Assistant Teacher (L.T. Grade) for at least five years and a post graduate in that subject. 4. While the petitioner was performing his duties as an Assistant Teacher, L.T. Grade, Economics in the College in question, the post of Lecturer (Economics) fell vacant as the incumbent Shri Vidya Sagar Sharma reached the age of superannuation and retired from services on 30.06.1996. 5. 4. While the petitioner was performing his duties as an Assistant Teacher, L.T. Grade, Economics in the College in question, the post of Lecturer (Economics) fell vacant as the incumbent Shri Vidya Sagar Sharma reached the age of superannuation and retired from services on 30.06.1996. 5. Admittedly the post which now fell vacant 30.06.1996, had to be filled by way of promotion and that too from amongst Schedule Caste candidates. On the relevant date i.e. 30.06.1996, the petitioner was the only Schedule Caste Assistant Teacher, L.T. Grade who had five years of experience as Assistant Teacher, L.T. Grade and was postgraduate in Economics subject. Thus, having all the requisite qualifications for appointment by way of promotion to the vacant post of Lecturer (Economics), he was formally given the charge of Lecturer (Economics), though in an ad-hoc capacity on 01.07.1996 and the proposal was sent by the Management Committee for appointment by way of promotion of the petitioner to the post of Lecturer (Economics), a proposal which was duly accepted by the District Inspector of School, Haridwar vide order dated 23.12.1997. 6. Admittedly, the law is that if a vacancy of Lecturer, falls vacant in a School and the post has to be filled by way of promotion from amongst the Assistant Teacher (L.T. Grade), then all such teachers are liable to be considered without any formal application on behalf of such candidates, who are eligible. Thus, in the said event the appointment of petitioner as a Lecturer (Economics) cannot be faulted. It is again an admitted fact that the petitioner has been drawing the salary of Lecturer since 23.12.1997 and the petitioner was continuing as Lecturer (Economics) in the said Institute. 7. The respondent nos.5, 6, 7 and 8 were regularly promoted on 14.05.2002, on 01.05.2003, 13.10.2003 and on 01.07.2004, respectively. The only difference between appointment of petitioner as a Lecturer (Economics) and that of the private respondents nos. 5 to 8 is that whereas initial appointment of petitioner by way of promotion to the post of Lecturer (Economics) was in an Adhoc capacity, the initial appointment of all the private respondents was on a regular basis. The only difference between appointment of petitioner as a Lecturer (Economics) and that of the private respondents nos. 5 to 8 is that whereas initial appointment of petitioner by way of promotion to the post of Lecturer (Economics) was in an Adhoc capacity, the initial appointment of all the private respondents was on a regular basis. Vide order dated 18.06.2007, the Regional Joint Director of Education, Garhwal Region, Pauri also directed for regularization of the petitioner on the post of Lecturer (Economics) which was duly communicated by the District Education Officer, Haridwar vide order dated 16.06.2008 and services of the petitioners were regularized as a Lecturer (Economics) w.e.f. 01.07.1996, he was thereafter shown as senior to the private respondents. 8. Consequently, a complaint was made to the Additional Director of Education, Garhwal Region, Pauri, who vide order dated 19.04.2010, who recalled his order dated 16.06.2008 on the ground that petitioner was not liable to be promoted as Lecturer (Economics) on 01.07.1996, as by that time he had not completed five years of substantive service as an Assistant Teacher (L.T. Grade). In other words, the regularization of the petitioner w.e.f. 1st July, 1996 was effectively set aside. Thereafter, by the impugned order dated 19.04.2010, petitioner’s services have been regularized as a Lecturer (Economics) only w.e.f. 22.04.2006. In case petitioner’s services are regularized w.e.f. 22.04.2006, he then becomes junior to all the private respondents, who according to the petitioner had joined services as Lecturer after the petitioner. He, therefore, challenged both the orders dated 19.04.2010 and 01.05.2010 respectively. What is at stake obviously is the office of the “Principal” on which normally only the senior most Lecturer officiates. 9. The case of the petitioner before this Court is that when he was initially appointed as Assistant Teacher (L.T. Grade) in Ad-hoc capacity, the rules which were applicable at that time are “the U.P. Secondary Education Services Commission Rules, 1995. Rule 14 of the Rules of 1995, reads as under: “14. 9. The case of the petitioner before this Court is that when he was initially appointed as Assistant Teacher (L.T. Grade) in Ad-hoc capacity, the rules which were applicable at that time are “the U.P. Secondary Education Services Commission Rules, 1995. Rule 14 of the Rules of 1995, reads as under: “14. Procedure for recruitment by promotion.- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade or Certificate of Teaching (C.T.) grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous 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 (L.T.) 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 (3), and forward it to the Commission through the Inspector with a copy of seniority, service records, including the character rolls, and a statement in the proforma 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 Commission. (5) The Commission shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call such additional information as it may consider necessary. The Commission shall forward the panel of selected candidates within the one month to the Inspector with a copy thereof to the Deputy Director. (6) Within ten days of the receipt of the panel from the Commission under sub-rule (5), the Inspector shall send the name of the selected candidate to the management of the institution which has notified the vacancy and the management shall accordingly on authorization under its resolution issue the appointment in the proforma given in Appendix ‘E’ to such candidate.” 10. The petitioner would argue that under Rule 14 of the Rules of 1995, all the authorities have to consider was whether the petitioner had put in 05 years of continuous service as Assistant Teacher (L.T. Grade) or not. The requirement was for having completed 05 years of continuous service. The learned counsel for the petitioner has also relied upon the judgment of the learned Single Judge of the Hon’ble Allahabad High Court, rendered in the case of Committee of Management, B.D. Bajoria Inter College, City and District Saharanpur and others Vs. Director of Educations (Secondary), U.P. Lucknow and others, [ (2000) 1 UPLBEC 46 ], wherein the learned Single Judge of the Hon’ble Allahabad High Court held that the requirement of Rule 14 for promotion from Assistant Teacher (L.T. Grade) to the post of Lecturer is five years of continuous services and not that five years of services should be in substantive capacity. 11. The learned counsel for the respondent no. 5 Mr. Rakesh Thapliyal and Mr. Parikshit Saini, however, points out to Rule 10 of the Rules of 1995. Rule 10 of the Rules of 1995 reads as under:- “10. Source of recruitment.- Recruitment to various categories of teachers shall be made from the following sources: (a) Principal of an Intermediate College or Headmaster of a High School by direct recruitment. (b) Teachers of lecturers grade.- (i) 50 percent by direct recruitment; (ii) 50 percent by promotion from amongst substantively appointed teachers of the trained graduates (L.T.) grade; (c) Teachers of trained graduates (L.T.) grade.- (i) 50 percent by direct recruitment; (ii) 50 percent by promotion from amongst the substantively appointed teachers of Certificate of Teaching (C.T.) Grade. Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled by direct recruitment: Provided further that if in calculating respective percentage of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.” 12. They, therefore, would argue that under Rule 10 of the Rules of 1995, there is source of requirement, inter-alia, of Lecturers where it clearly stipulates that “fifty percent” by promotion from amongst the substantively appointed Assistant Teachers of Trained Graduate L.T. Grade. They, therefore, would argue that under Rule 10 of the Rules of 1995, there is source of requirement, inter-alia, of Lecturers where it clearly stipulates that “fifty percent” by promotion from amongst the substantively appointed Assistant Teachers of Trained Graduate L.T. Grade. Hence, the respondents would argue that while passing the order dated 16.06.2008, the District Education Officer had not considered these provisions as only an Assistant Teacher (L.T. Grade) who completed 05 years continuous services in substantive capacity is eligible to be considered for promotion to the post of Lecturer. 13. Indeed there are two provisions under the Rules of 1995. Whereas Rule 10 speaks of substantively appointed Assistant Teachers (L.T. Grade), Rule 14 only speaks of continuous services as Assistant Teacher (L.T. Grade). 14. In view of this Court, under these circumstances the provisions of Rule 10(b), which speaks of promotion from amongst substantively appointed teachers should be seen, as one who has been working continuously for five years on a substantive post. It is an admitted case that petitioner, prior to his promotion to the post of Lecturer (Economics), had been continuously working as Assistant Teacher (L.T. Grade) on a substantive post. 15. Moreover, another objection taken by the learned counsel for the private respondents as well as the State is that the regularization of the petitioner by the District Education Officer, Haridwar dated 16.06.2008 is an order totally without jurisdiction as the powers of regularization vests with the Regional Director of Education and the District Education Officer has no authority to regularize the services of the petitioner. 16. Though the powers have been given to the Regional Additional Director of Education under Section 40 (7) of the Uttaranchal School Education Act, 2006 and such regularization can only be made by a Selection Committee, which will consist of Regional Additional Director of Education as the Chairman of the Committee, Senior Regional Joint Director of Education and District Education Officer of the concerned District as the members. In the present case, however, the order has been passed only by the District Education Officer. 17. The learned counsel for the petitioner on the other hand contends that in his regularization order dated 16.06.2008, the District Education Officer has referred to letter dated 18.06.2007, issued by the Regional Joint Director of Education, Garhwal Region, Pauri which has also been annexed with rejoinder affidavit. The order has been perused. 17. The learned counsel for the petitioner on the other hand contends that in his regularization order dated 16.06.2008, the District Education Officer has referred to letter dated 18.06.2007, issued by the Regional Joint Director of Education, Garhwal Region, Pauri which has also been annexed with rejoinder affidavit. The order has been perused. The order of Regional Joint Director of Education directs the District Education Officer, Haridwar that 50% posts are to be filled by way of promotion from amongst the Assistant Teacher (L.T. Grade) and this should be done by the District Education Officer on his own level. Therefore, in the present case the District Education Officer, Haridwar was directed by the Regional Joint Director of Education, Garhwal Region, Pauri to pass such orders and therefore it cannot be said that the order dated 16.06.2008 is without jurisdiction. 18. Learned counsel for the petitioner, therefore, would argue that by the impugned orders dated 19.04.2010 (Annexure No.9 to the writ petition), what is actually happened is that a benefit which was given to the petitioner way back in the year 1997 is now called illegal and the promotion which was made in the year 1997 has now been practically set aside by the impugned orders dated 19.04.2010 and order dated 01.05.2010 (Annexure No.9 and Annexure No.9-A). It has been contended that when petitioner was promoted to the post of Lecturer (Economics) in Adhoc capacity in the year 1997, it was not due to any misrepresentation or fraud on the part of the petitioner but promotion was made in normal consideration due to the fact that except the petitioner there was no other eligible Assistant Teacher (L.T. Grade) who could have been promoted to the post of Lecturer (Economics). The petitioner relies on the law laid down by the Hon’ble Apex Court in the case of Kusheswar Nath Pandey Vs. State of Bihar and others, (2013) 12 SCC 580 , where belated corrections in earlier order is held to be bad. The relevant paragraph of the judgment reads as under:- “9. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. The relevant paragraph of the judgment reads as under:- “9. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time-bound promotion which was given to him and some eleven years thereafter, the authorities of the Bihar Government woke up and according to them the time-bound promotion was wrongly given and that the relevant rules are being relied upon and that too after the appellant had passed the required examination.” 19. This Court is also of the view that it is too late in the day for raising these issues. There is undoubtly an anomaly which is in the nature of an irregularity, which is in the matter is of the regularization of the petitioner, as it has not been made by the Selection Committee or by the Regional Additional Director of Education. But the fact remains that it was passed by the District Education Officer, Haridwar on the instructions of the Regional Joint Director of Education. 20. In view thereof, the writ petition is allowed. The order dated 19.04.2010, passed by the Additional Director of Education, Garhwal Region, Pauri is hereby quashed. The order dated 01.05.2010, issued by the Additional Director of Education, Garhwal Region, Pauri is hereby modified and it shall now be read that the services of the petitioner on the post of Lecturer (Economics) are regularized from the date of his initial appointment on the post of Lecturer (Economics) i.e.23.12.1997. 21. No order as to costs.