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2017 DIGILAW 523 (ALL)

VIDYA SARAN SAXENA v. STATE OF U. P.

2017-02-14

VIVEK KUMAR BIRLA

body2017
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Dr. H.N. Tripathi, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State respondents and Sri Ankit Saran, learned counsel for the Committee of Management of the Insitution and perused the record. 2. Counter and rejoinder-affidavits have been exchanged between the parties and with their consent, the present petition is being decided finally at the admission stage itself. 3. The present petition has been filed challenging the order dated 21.2.2013 passed by the respondent No. 2 whereby notional promotion that is being claimed with effect from 1.7.2002 the date from which the post of Lecturer (English) fell vacant for the purpose of promotion has been rejected. Further prayer is to issue a writ of mandamus directing the respondents to consider and provide notional promotion to the petitioner on the post of Lecturer (English) w.e.f. 1.7.2002. 4. The facts in brief are that the petitioner was appointed as Assistant Teacher in Manohar Bhushan Inter College, Bareilly (hereinafter referred to as to the ‘institution’), which is a duly recognized Intermediate College and is governed by the provisions of payment of salary, 1972. A vacancy for the post of Lecturer (English) arose on 1.7.2002 due to retirement of one Sri Dharm Prakash Saxena in the institution. The petitioner himself claiming fully qualified for the post claimed promotion to the aforesaid post. Since his claim was not considered despite of several representations, he approached this Court and filed a writ petition No. 10081 of 2004, which was disposed of vide order dated 11.2.2005 and thereafter the writ petition No. 2270 of 2006 was filed, which was withdrawn and thereafter the petitioner filed a writ petition No. 27919 of 2008 alongwith another person, which was disposed of vide order dated 16.11.2011, which is quoted as under as the relevant facts have already been taken note by this Court in the aforesaid judgement: “Heard learned counsel for the petitioners and learned Standing Counsel. At the very outset, learned counsel for the petitioners has confined his argument with respect to the claim of petitioner No. 1 alone as petitioner No. 2 has already been retired from services. 5. At the very outset, learned counsel for the petitioners has confined his argument with respect to the claim of petitioner No. 1 alone as petitioner No. 2 has already been retired from services. 5. Although, counter-affidavits have been filed on behalf of respondent No. 4 i.e. the Committee of Management of the Institution and respondent No. 6 i.e. the Principal of the Institution, but no one appears on their behalf when the case is called out twice in the revised list. 6. It is not in dispute that the petitioners were working as Assistant Teachers in L.T. Grade in the Institution since 1975. It is also not disputed that petitioner No. 1. is working in the Institution since the year 1975 and he is also eligible and qualified to be promoted on the post of lecturer in English as he has secured master degree in English and Sanskrit. The Committee of Management of the Institution, has recommended promotion of the petitioner No. 1 to the Regional Joint Director of Education, Bareilly, Mandal, Bareilly, who has disapproved the promotion of the petitioner No. 1. on the ground that the Principal of the Institution has recorded adverse remark in the character roll of the petitioner No. 1. 7. Learned counsel for the petitioners has submitted that the aforesaid adverse entry in character roll, has never been communicated to the petitioner, therefore, in view of the Chapter III Regulation 72 of the U.P. Intermediate Education Act, the said adverse remark cannot be taken into account, secondly, the Committee of Management of the Institution has also expunged the aforesaid bad entry as is clear from the averment made by the Committee of Management of the Institution in para 4 of the counter-affidavit filed by it, therefore impugned order passed by the regional Joint Director of Education rejecting the claim of promotion of the petitioner is not sustainable. For ready reference, the contents of paragraph 4 of the counter-affidavit are extracted as under: “That in reply to the contents of paragraph Nos. 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the writ petition, it is submitted that the petitioners are fully qualified and have all other requisite qualification for promotion on the post of Lecturer in the subject of Maths and English respectively. 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the writ petition, it is submitted that the petitioners are fully qualified and have all other requisite qualification for promotion on the post of Lecturer in the subject of Maths and English respectively. It is further submitted that on 20.3.2005 vide resolution No. 2 adverse entry against the petitioners were expunged and now there is no adverse entry against the petitioner. It is further submitted that vide resolution No. 6 dated 21.7.2007 promotion was granted to the petitioners by the Committee of Management of the Institution and the petitioners were asked to withdraw their Writ Petition No. 38817 of 2006. As such the petitioners withdrew writ petition on 16.11.2007. That after request was made by the petitioners before the respondent No. 2 to grant approval to the recommendation of the Committee of Management for promotion on the post of lecturer in the subject of Maths and English in the institution, the remaining assertions made in paragraph under reply are based on record so need no reply.” From perusal of averments contained in paragraph No. 4 of the counter-affidavit filed by the Committee of Management of the Institution, it is clear that adverse entry recorded in the character roll of the petitioners has already been expunged by the Committee of Management of the Institution. Besides, the same was never communicated to the petitioners, thus the aforesaid adverse entry cannot be taken into account while considering the case of promotion of the petitioner and in my view, the promotion of the petitioner could not have been rejected. Secondly, observation made in para 9 of the impugned order also appears to be strange enough as no L.T. Grade teacher working in any institution would say by his own that he his not teaching the class of High School, therefore, observations made by the Joint Director also appears to be absurd and cannot be accepted. In my view the impugned order dated 24.5.2005 passed by the Regional Joint Director of Education, Bareilly Mandal, Bareilly, cannot be sustained and is hereby quashed in so far it relates to petitioner No. 1. The Regional Joint Director of Education, Bareilly Mandal, Bareilly, is directed to reconsider the claim of promotion of the petitioner No. 1. In my view the impugned order dated 24.5.2005 passed by the Regional Joint Director of Education, Bareilly Mandal, Bareilly, cannot be sustained and is hereby quashed in so far it relates to petitioner No. 1. The Regional Joint Director of Education, Bareilly Mandal, Bareilly, is directed to reconsider the claim of promotion of the petitioner No. 1. on the post of lecturer in English in accordance with law, and observation made hereinbefore within a period of six weeks from the date of production of a certified copy of this order before him. In the result, the writ petition succeeds and is allowed to the extent indicated above.” 8. Pursuant to the aforesaid order, the claim of the petitioner was considered by the Joint Director of Education, Bareilly Division, Bareilly who accorded promotion to the petitioner vide order dated 11.1.2012 from the date of actual joining of the petitioner. The petitioner however was not satisfied with the same and continued to raise his grievance claiming notional promotion w.e.f. 1.7.2002. For this purpose, he again approached this Court and filed a writ petition No. 48437 of 2012 (Vidya Saran Saxena v. State of U.P. and others), which was disposed of vide order dated 20.9.2012 directing the District Inspector of Schools, Bareilly to consider the claim of the petitioner for being accorded notional promotion w.e.f. 1.7.2002 (wrongly mentioned as 2000) be directed to be considered. In pursuance whereof, the present order dated 21.2.2013, which is under challenge was passed by the District Inspector of Schools on the ground that vide order dated 11.1.2012 the petitioner was granted promotion w.e.f. his joining on the post of Lecturer (English) and that there is no provision for notional promotion in the Intermediate Education Act, 1941. 9. Submission of the learned counsel for the petitioner is that the petitioner was fully eligible for promotion w.e.f. 1.7.2002, the date on which the post of Lecturer (English) fell vacant and for no fault of the petitioner, the petitioner was denied promotion, which was ultimately granted to him in the year 2012. 9. Submission of the learned counsel for the petitioner is that the petitioner was fully eligible for promotion w.e.f. 1.7.2002, the date on which the post of Lecturer (English) fell vacant and for no fault of the petitioner, the petitioner was denied promotion, which was ultimately granted to him in the year 2012. Submission therefore, is that the petitioner is entitled for promotion from the date on which the post of Lecturer (English) fell vacant and not from the date of order granting promotion and for this purpose he has placed reliance on a judgement rendered in the case of Subhash Chandra Verma v. State of U.P. and others, 2012(11) ADJ 118 . 10. Per contra, Sri Ankit Saran, learned counsel appearing for the Committee of Management of the Institution has submitted that there is no provision of notional promotion in the Intermediate Education Act. It is only after the direction of this Court for being considered the promotion was granted by the Joint Director of Education, Bareilly Division, Bareilly vide order dated 11.1.2012 and that earlier the petitioner had approached this Court in the year 2008 regarding claim for promotion, the direction was issued in the year 2011 and therefore, no such notional promotion from the back date can be granted to the petitioner particularly in absence of any provision for the same. 11. Learned Standing Counsel appearing for the State respondent has also advanced his argument to the same effect. I have considered the rival submissions and perused the record. 12. From perusal of the judgement dated 16.11.2011, which is quoted above, it is clear that in the aforesaid petition in paragraph 4 of the counter-affidavit filed by the Committee of Management, it was admitted that the adverse entry against the petitioners including the present petitioner were expunged vide resolution dated 20.3.2005 and vide resolution No. 6 dated 21.7.2007 promotion was granted to the petitioner by the Committee of Management of the Institution and in this light the petitioner was asked to withdraw the writ petition No. 38817 of 2006, which is accordingly withdrawn on 16.11.2007. The aforesaid judgement has clearly noticed this fact that the adverse entry has already been expunged by the Committee of Management and the same were never communicated to the petitioner and therefore, the promotion of the petitioner could not have been rejected. The aforesaid judgement has clearly noticed this fact that the adverse entry has already been expunged by the Committee of Management and the same were never communicated to the petitioner and therefore, the promotion of the petitioner could not have been rejected. In this light, it appears that the stand taken by the respondents that the petitioner was not teaching class of High School, also did not find favour by this Court, therefore, the direction was issued to re-consider the claim of the petitioner for promotion on the post of Lecturer (English) in accordance with law. Consequently, the order dated 11.1.2012 passed by the Joint Director of Education, Bareilly granting promotion from the date of joining, was passed. 13. A perusal of the order dated 20.9.2012 passed in writ petition No. 48437 of 2012, it is very much clear that prima facie being satisfied with the claim of the petitioner that his claim for notional promotion with back date be considered, direction was issued. The District Inspector of Schools, who is an authority subordinate to the Joint Director of Education, who had passed the order dated 11.1.2012, has passed the order that in view of the order of the Joint Director of Education, the date of joining shall be taken to be the date of promotion and that there is no provision of notional promotion, hence the claim of the petitioner was rejected. From the facts as reflected from the order dated 16.11.2011 as quoted above, it is clear that the Committee of Management had also passed the resolution No. 6 dated 21.7.2007 granting promotion to the petitioner. Since the Court by itself has not granted relief of notional promotion from the date when the post fell vacant and only directed to consider the claim of the petitioner for granting notional promotion and the record also reflects that the petitioner is litigating since long but no positive direction was given by this Court accepting claim of the petitoner and only the authorities were directed to consider the claim of the promotion, more so, when the petitioner has admittedly already retired from service and Dr. H.N. Tripathi, learned counsel for the petitioner has fairly submitted that the petitioner will not claim any arrears of salary for the period of notional promotion and only the service of the petitioner may be counted for the purpose of revising his pensionary benefits and therefore, in all fitness of the case, it would be appropriate that the petitioner be accorded notional promotion from the date of passing of the resolution No. 6 dated 21.7.2007 by the Committee of Management as admitted in paragraph 4 of the counter-affidavit filed by the Committee of Management in Writ Petition No. 27919 of 2008 as already quoted above. The pensionary benefits of the petitioner shall be revised on that basis. It is made clear that the petitioner shall not be entitled for arrears of salary because of notional promotion. The said exercise may be done by the respondent No. 2 (District Inspector of Schools, Bareilly), preferably within a period of four months from the date of production of certified copy of this order. 14. The present writ petition stands partly allowed with the aforesaid observations/directions. No order as to costs.