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2016 DIGILAW 83 (UTT)

Khyali Ram Kapil v. State of Uttarakhand

2016-02-29

SUDHANSHU DHULIA

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JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Brief facts of the case are that the petitioner was appointed as an Assistant Teacher C.T. Grade in the year 1982 and thereafter he was promoted on the post of L.T. Grade on ad-hoc basis. He was formerly inducted in the cadre of Assistant Teachers L.T. Grade w.e.f., 19.02.1991. On 19.09.2007, the petitioner was promoted to the post of Lecturer (Economics) and joined his duties as a Lecturer (Economics) in Government Inter College Dhela, District Nainital. 2. The Lecturers are the qualified teachers who impart education to Class 11th and Class 12th in their particular subject, the subject on which the petitioner has these qualifications is Master of Economics. 3. The Rules which are applicable in this matter were earlier known as the Uttar Pradesh Special Subordinate Educational (Lecturer’s Cadre) Service Rules, 1992. All the same, in the State of Uttarakhand new Rules have been framed which is known as the Uttarakhand Special Subordinate Education (Lecturer’s Cadre) Service Rules, 2008 (from hereinafter referred to as “the Rules, 2008”). In both the Rules, the provisions, by and large are same and we would, therefore, refer to the Rules, 2008 and unless there is a contradiction between the two, we would proceed accordingly. 4. The source of recruitment is given under Rule 5 of the Rules, 2008, which reads as under:- “5. Source of recruitment:- Recruitment to the service shall be made from the following sources:- (a) Lecturer (General Branch) (i) 50 percent by direct recruitment through the Commission. (ii) 50 percent by promotion from amongst substantively appointed Uttarakhand Subordinate Education (Trained Graduate Grade) teachers (General Branch) who have completed five years’ service on the first day of the year of the recruitment, and who possess the requisite qualification prescribed for the post under rule 8. (b) Lecturer (Women’s Branch) (i) 50 percent by direct recruitment through the Commission. (ii) 50 percent by promotion from amongst substantively appointed Uttarakhand Subordinate Education (Trained Graduate Grade) teachers (Women’s Branch) who have completed five years’ service on the first day of the year of the recruitment, and who possess the requisite qualification prescribed for the post under rule 8.” 5. Rule 16 of the Rules, 2008 further says that the promotion of Assistant Teacher L.T. Grade to the post of Lecturer shall be made on the basis of seniority subject to the rejection of unfit. Rule 16 of the Rules, 2008 further says that the promotion of Assistant Teacher L.T. Grade to the post of Lecturer shall be made on the basis of seniority subject to the rejection of unfit. Thereafter, the seniority of the Lecturers has to be calculated as per the Rule 21 of the Rules, 2008. Rule 21 of the Rules, 2008, reads as under:- “21. Seniority:- (1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined according to the Uttarakhand Government Servants Seniority Rules, 2002. The seniority of persons in any category of post shall be determined from the date of the orders of substantive appointment and if two or more persons are appointed together, by such order in which their names are arranged in the appointment order: Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of the order: Provided also that if after a selection, more than one appointment orders are issued in relation to a selection, the seniority shall be such as is mentioned in the combined appointment order issued under rule 18(3). (2) The inter-se seniority of persons, appointed directly on the result of anyone selection, shall be the same as determined by the Commission or the Selection Committee. Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him.” (3) ………… (4) ………… 6. Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002 reads as under:- “6. Seniority where appointment by promotion only from a singly feeding cadre- Where according to the service rules, appointments are to be made only by promotion from a singly feeding cadre, the seniority inter se of persons so appointed shall be same as it was in the feeding cadre. Explanation- A person senior in the feeding cadre shall even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.” 7. Explanation- A person senior in the feeding cadre shall even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.” 7. The case of the petitioner before this Court is that with his qualifications he was eligible for being promoted to the post of Lecturer (Economics) but since the vacancy (i.e. of Lecturer Economics) came up only in the year 2007, the candidature of the petitioner was only considered in 2007, and as per the Rules he was then promoted as a Lecturer. Purely due to fortuitous circumstances there were other Assistant Teachers L.T. Grade who were also eligible for being promoted in other respective subjects such as English, Social Science, Civics, etc, were promoted earlier as in their subjects the vacancy of Lecturer came up earlier and hence although they were junior to the petitioner in the feeding cadre of Assistant Teacher L.T. Grade were promoted to the next higher post of Lecturer earlier than the petitioner. 8. The petitioner, however, relies upon Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002 and says that after his promotion to the post of Lecturer, the petitioner being senior to L.T. Grade teachers in the feeding cadre of Assistant Teachers (L.T. Grade) would regain his seniority on the basis of Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002 and also on the basis of the general principle of “catching up”. This in short is his argument. 9. Admittedly, the petitioner has not impleaded any of these Lecturers in the present writ petition who have been promoted prior to the petitioner. The reason given by the learned Senior counsel for the petitioner is that such persons would be very large in number and it would be practically impossible for the petitioner to implead all such persons as respondents. Meanwhile, there is an on going exercise for promotion to the post of Head Master from amongst the senior Lecturers in accordance with their seniority. Meanwhile, there is an on going exercise for promotion to the post of Head Master from amongst the senior Lecturers in accordance with their seniority. Since the seniority in the feeding cadre of Lecturer has not been fixed as yet, the petitioner and apparently many other Assistant Teachers who are junior to the petitioner have been promoted as Lecturers prior to the petitioner, would be considered in absence of combined seniority list of lecturers and hence they will be considered for the post of Head Master before the petitioner. 10. No adverse orders can be passed against the already promoted Lecturers since such persons are not a party in the present writ petition, but nevertheless as far as appreciation of pure question of law is concerned, it has been fairly admitted by the learned Standing Counsel for the State Mr. N.P. Sah that such a provision exists in law (i.e. the seniority Rules referred above) and seniority has to be fixed in accordance with the provisions of Rule 21 of the Rules, 2008. 11. Therefore, the writ petition stands disposed with the direction to the Director of Education that before initiating the exercise for the promotion to the post of Head Master, he shall re-fix the seniority of the Lecturers in accordance with law particularly in view of Rule 21 of the Rules, 2008 read with the Uttaranchal Government Servants Seniority Rules, 2002 but only inviting objections from all concerned Lecturers particularly those who were promoted prior to the petitioner. Thereafter, the inter se seniority list of Lecturers be prepared and promotions be made to the post of Head Master in accordance with law.