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2017 DIGILAW 250 (ALL)

Shri Ram Niwas Kushwaha v. State of U. P.

2017-01-18

MANOJ KUMAR GUPTA

body2017
JUDGMENT Manoj Kumar Gupta,J. Heard counsel for the petitioner and the learned standing counsel for respondent Nos. 1 to 3. In view of the nature of controversy raised in the petition, this Court dispenses with the requirement of serving notice on the fourth respondent, which is stated to be a formal party only. By means of this petition, the petitioner has questioned the correctness of the view taken by the Committee headed by the Joint Director of Education, Basti Region, Basti, in rejecting the claim of the petitioner for promotion to the post of Lecturer in Hindi in Tapanath Saraswati Inter College, Dhamaura, Siddharth Nagar. The facts, in brief, are that the petitioner was appointed an Assistant Teacher in Tapanath Saraswati Inter College, Dhamaura, Siddharth Nagar on 11.10.2007. The said Institution is a recognised Institution under the provisions of the U.P. Intermediate Education Act, 1921 and the provisions of the U.P. Act No. 5 of 1982 and the Rules framed thereunder are also applicable. A substantive vacancy on the post of Lecturer in Hindi arose on 30.6.2009, consequent to the incumbent working on the said post having retired. The management by a resolution dated 11.6.2016 recommended for the promotion of the petitioner to the said post. The Committee visualised by section 12 of U.P. Act No. 5 of 1982 did not accord approval to the said resolution by order dated 31.12.2016 on the ground that the vacancy having come into existence on 30.6.2009, the petitioner had not completed 5 years of continuous service as an Assistant Teacher on the said date and was thus ineligible in view of the provisions of Rule 14(1). Learned counsel for the petitioner submitted that the process for recruitment was initiated by the Committee of Management in the year 2015-16 and thus, the year of recruitment would be the period starting from 1 July 2015 and ending on 30 June 2016. It is urged that on the first day of the recruitment year, the petitioner had already completed 5 years of continuous service as an Assistant Teacher and consequently, he fulfilled the prescribed eligibility for the post of Lecturer in Chemistry. It is urged that on the first day of the recruitment year, the petitioner had already completed 5 years of continuous service as an Assistant Teacher and consequently, he fulfilled the prescribed eligibility for the post of Lecturer in Chemistry. In support of his contention, he has placed reliance on a Full Bench decision of this Court in the case of Raeesul Hasan Versus State of U.P. and others1, wherein, this Court has considered the issue as to whether a candidate has to fulfill the eligibility criteria for promotion on the date of occurrence of vacancy or on the first day of the year of recruitment. The Full Bench, after considering the relevant provisions of the Act and the Rules, has held that the eligibility qualification for promotion has to be fulfilled by a candidate on the first day of the year of recruitment and not on the date of occurrence of the vacancy. It has further been held that the year of recruitment would not be the year in which the vacancy had come into existence. For convenience of reference, the relevant portion of the said judgment is extracted below : - "31. We are unable to subscribe to the correctness of the view which has been expressed in the decision in Km. Poonam and in the earlier decisions which it followed. The duty of the Court, while interpreting any legislation, is to give effect to the plain meaning of the words used by the legislature. In the course of interpretation, it is not open to the Court, to re-write the words of the statute. Section 2 (l) of the Act specifically defines the 'year of recruitment' to mean a period of twelve months commencing from the first day of July of a calendar year. Rule 14 contains an express provision by which, where any vacancy is to be filled in by promotion, all teachers working in the trained graduates grade or Certificate of Teaching grade who possess the qualifications prescribed and have completed five years' continuous regular service on the first day of the year of recruitment shall be considered for promotion. The expression 'all' must be given its plain and natural meaning. Every teacher who fulfills the norm of eligibility on the first day of the year of recruitment has to be considered for promotion. The expression 'all' must be given its plain and natural meaning. Every teacher who fulfills the norm of eligibility on the first day of the year of recruitment has to be considered for promotion. A teacher who fulfills the prescribed norm cannot be excluded on the ground that he/she did not fulfill the condition of eligibility when the vacancy occurred at an anterior point in time. The Court cannot substitute the words "year in which the vacancy occurred" for the words "year of recruitment". That is not the function of the Court. The year of recruitment must mean what the legislature has defined it to mean. This must particularly hold good in the context of the history of the subordinate legislation. As we have noted, Rule 9 of the Rules of 1983 which related to promotion, defined 'eligibility' with reference to the date of the occurrence of a vacancy. Those words were specifically substituted when the Rules of 1995 were framed. In the Rules of 1998 as well, Rule 14, as we have noted, refers to the year of recruitment and not to the year in which the vacancy has occurred. There is no basis in the contention that the first proviso to Rule 10 would indicate a different interpretation. All that the proviso lays down, is that if in any year of recruitment, suitable and eligible candidates are not available for recruitment by promotion, the post may be filled in by direct recruitment. This proviso means that a post can be filled in by direct recruitment, if suitable and eligible candidates are not available in the year of recruitment for promotion. This does not indicate that the eligibility of candidates has to be determined not with reference to the year of recruitment, but with reference to the year in which the vacancy occurred. Such a construction would also be plainly contrary to the law laid down in the judgment of the Supreme Court in Balbir Kaur (supra). The Supreme Court has specifically held that the Rules of 1998 do not mandate that the selection or determination of vacancies must be year-wise. All vacancies which exist or are likely to fall vacant, during the year of recruitment, can be clubbed irrespective of the year of the occurrence of vacancies. The submission that the management can arbitrarily widen the zone of consideration, if this construction is adopted does not commend itself. All vacancies which exist or are likely to fall vacant, during the year of recruitment, can be clubbed irrespective of the year of the occurrence of vacancies. The submission that the management can arbitrarily widen the zone of consideration, if this construction is adopted does not commend itself. The criterion for promotion under Rule 14 (2) is seniority subject to the rejection of the unfit. The position of a senior employee is adequately safeguarded by Rule 14 (2) subject to satisfaction of fitness. The authorities have sufficient powers to ensure that vacancies in the promotional stream are not kept unfilled to the detriment of the educational requirements of students. 32. For these reasons, we answer the reference by holding that it is not the date on which the vacancy has occurred, but the year of recruitment which is relevant for the determination of eligibility for promotion to the Lecturers' grade under the Rules of 1998. The reference is answered in the aforesaid terms. All the writ petitions shall now be placed before the regular Bench according to roster for disposal in the light of the present judgment." Learned standing counsel appearing on behalf of the State respondents pointed out that a Division Bench of this Court, disagreeing with the law laid down by the Full Bench, has referred the matter to a larger Bench and a five Judge Bench of this Court is considering the issue. However, he does not dispute that as on date, the law laid down by this Court in the case of Raeesul Hasan (supra) holds the field. In such view of the matter, this Court is of the opinion that the impugned decision of the Committee headed by the Joint Director of Education cannot be sustained and is hereby quashed. The writ petition is allowed. The Committee headed by the Joint Director of Education is directed to reconsider the proposal submitted by the management for promotion of the petitioner on the post of Lecturer in Hindi in accordance with the law laid down by the Full Bench in the case of Raeesul Hasan Versus State of U.P. and others (supra). The writ petition is allowed. The Committee headed by the Joint Director of Education is directed to reconsider the proposal submitted by the management for promotion of the petitioner on the post of Lecturer in Hindi in accordance with the law laid down by the Full Bench in the case of Raeesul Hasan Versus State of U.P. and others (supra). It is made clear that this Court has not expressed any opinion that the petitioner is otherwise eligible for promotion with reference to the year of recruitment, which aspect shall be determined strictly in accordance with law after verifying the facts from the record and after giving opportunity of hearing to the parties concerned.