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2017 DIGILAW 536 (UTT)

Hemant Kumar Dungrakoti v. State of Uttarakhand

2017-10-10

SUDHANSHU DHULIA

body2017
JUDGMENT : Sudhanshu Dhulia, J. All the petitioners before this Court are Lecturers working in various Government Colleges in the State of Uttarakhand. They have challenged the promotional exercise being undertaken by the Government for filling of the posts of Head Masters in Higher Secondary Schools. Under the Rules, which are presently in force in the State of Uttarakhand, namely, the U.P. Educational Teaching (Subordinate Gazetted) Service Rules, 1993, 45 per cent of posts of Head Masters in Higher Secondary Schools are to be filled by way of promotion from amongst substantively appointed men’s branch (i) who have completed three years service as such on the first day of the year of recruitment and 55 per cent of the posts of Head Masters are to be filled by way of promotion from amongst Assistant Teachers (L.T. Grade) who have completed twelve years service as such on the first day of the year of recruitment. 2. The plain case of the petitioners before this Court is that in the promotional exercise the preliminary list which has been published by the Government, there are such names as well of Assistant Teachers (L.T. Grade) who have been promoted meanwhile to the post of Lecturers. On the post of Lecturers, all such persons i.e. from private respondent nos. 3 to 137 are junior to the present petitioners. In other words, these private respondents are junior to the petitioners as Lecturers. 3. The case of the petitioners is that since there is a clear cut demarcation of 45 per cent promotion from the Lecturers and remaining 55 per cent from the Assistant Teachers (L.T. Grade), the private respondents could only have been considered under the 45 per cent quota of Lecturers and they are being wrongly considered under 55 per cent quota of Assistant Teachers. Being admittedly junior to the petitioners as Lecturers, they can never be considered for the post of Head Master, ahead of the petitioners. Hence, they have challenged the entire promotional exercise. 4. Apart from the State Government, counter affidavit has also been filed by some of the private respondents being represented by Mr. K.C. Tiwari, Advocate. Petitioners have also filed their rejoinder affidavit. 5. Hence, they have challenged the entire promotional exercise. 4. Apart from the State Government, counter affidavit has also been filed by some of the private respondents being represented by Mr. K.C. Tiwari, Advocate. Petitioners have also filed their rejoinder affidavit. 5. Under the Rules, which are presently applicable in the State of Uttarakhand for appointment and promotion of teachers, namely, the U.P. Educational Teaching (Subordiante Gazetted) Service Rules, 1993, one has to put in five years substantive service as Assistant Teacher (L.T. Grade) in order to become eligible as a Lecturer. There may be cases where a person after putting in five years of service as Assistant Teacher (L.T. Grade) could not have been promoted as Lecturer, however, these cases are few and far between. In any case, such a person who has put in five years substantive service as an Assistant Teacher (L.T. Grade) and thereafter has become a Lecturer can never be considered under the 55 per cent quota for Assistant Teachers (L.T. Grade), as he would not be qualified for the simple reason that he has not put in twelve years of substantive service as an Assistant Teacher. 6. In almost all the cases, the private respondents, who are being considered are the ones who have put in more than twelve years of substantive service as Assistant Teacher (L.T. Grade). Meanwhile, however, they have been promoted to the post of Lecturer and are working in different Government Colleges in capacity of Lecturer. 7. For the posts of Lecturers as well, in Government Schools, there are two methods for recruitment. 50 per cent posts of Lecturers are to be filled by way of direct recruitment and remaining 50 per cent posts are to be filled by way of promotion from amongst substantively appointed Assistant Teachers (L.T. Grade), which is done on the basis of seniority subject to rejection of unfit. Therefore, in the present pool of Lecturers in the State of Uttarakhand, there are direct appointees as well as such Lecturers who were promoted from the post of Assistant Teacher (L.T. Grade). All the present petitioners are directly appointed Lecturers. 8. Therefore, in the present pool of Lecturers in the State of Uttarakhand, there are direct appointees as well as such Lecturers who were promoted from the post of Assistant Teacher (L.T. Grade). All the present petitioners are directly appointed Lecturers. 8. The case of the petitioners is that all the private respondents who are under the zone of consideration for the post of Head Master are the ones who have been promoted as Lecturers and once they stand promoted as a Lecturer, they lose all their rights for being considered under the 55 per cent quota for the post of Head Masters in the Higher Secondary Schools and they can only be considered under the 45 per cent quota which is reserved for the Lecturers since they are now under the cadre of Lecturer. According to the petitioners, as the private respondents are admittedly junior to the petitioners under the cadre of Lecturer, they are not liable to be considered for promotion to the post of Head Master under the 55 per cent quota. 9. This stand has been opposed not only by the private respondents but also by the State. The case of the private respondents is that many of the Assistant Teachers (L.T. Grade), who are under the zone of consideration are on the verge of retirement. They have put in service as Assistant Teacher between 20-30 years and their only chance of being considered for promotion to the post of Head Master in Higher Secondary School is by way of their consideration under 55 per cent quota, as their chances are extremely low as in the Lecturer quota they would be at the extremely low place and the consideration is almost negligible presently or in the near future. 10. What is, however, important is the language which the present Rules have used for promotion. The Rule on which all the petitioners rely upon is Rule 5 of 1993 Rules, which is source of Recruitment. 10. What is, however, important is the language which the present Rules have used for promotion. The Rule on which all the petitioners rely upon is Rule 5 of 1993 Rules, which is source of Recruitment. Under Rule 5, which is for recruitment to the post of Head Master, Government Higher Secondary School, Head Master, Government Normal School including the Vice-Principal, Government Inter College, the criteria is by promotion through the Selection Committee in the ratio of 45 per cent and 55 per cent respectively from amongst substantively appointed men’s branch (i) Lecturers who have completed three years service as such on the first day of the year of the recruitment; and (ii) Assistant Masters (L.T. Grade) who have completed twelve years service as such on the first day of the year of recruitment. 11. As regarding 45 per cent of ratio is concerned, there is absolutely no room for doubt as only such Lecturers are liable to be considered under that zone who have put in atleast three years of service as substantively appointed Lecturers. The dispute is only regarding the second, which is 55 per cent ratio for the Assistant Masters (L.T. Grade), “who have completed twelve years service as such on the first day of the year of recruitment”. The condition clearly stipulates that a person is liable to be considered under 55 per cent ratio in case he has put in 12 years of substantive service as an Assistant Teacher (L.T. Grade). It does not contemplate that in case such a person after completing twelve years of service has been promoted to the post of Lecturer, he will come outside the zone of consideration of the 55 per cent quota. The only purposive interpretation of this provision would be that even an Assistant Teacher (L.T. Grade), after completing twelve years of substantive service, as an Assistant Teacher (L.T. Grade) if one has been promoted to the post of Lecturer, he is still liable to be considered under the 55 per cent quota, as long as he fulfils the requirement of twelve years of service as an Assistant Teacher (L.T. Grade). The reason is that in case he is now to be considered only under the 45 per cent ratio of Lecturer, his chances of promotion are extremely low because in that category he would be very low down the seniority list of Lecturers, and this could not have been the intention of the Legislature to deprive an Assistant Teacher his chance of promotion. Moreover, in this manner he is no way eating away any portion which is reserved for substantially appointed Lecturer. Their quota remains 45%. 12. The flip side of this would, however, be that an Assistant Teacher (L.T. Grade) who has become Lecturer by way of promotion from the 55 % quota is not liable to be considered under the 45% quota of Lecturer. 13. All the same, However, this Court has been informed that in the past many such cases have already happened. There are also cases where such persons after putting in a substantial length of service as Lecturer has been promoted and their promotion is presently not under challenge. It is, therefore, made clear that this order shall not affect such case, nor any person who is presently not made a respondent in this petition shall be adversely affected. 14. In view of the observations made above, writ petition stands disposed. 15. Interim order dated 31.08.2017 is hereby vacated. Let the promotional exercise take place in the light of the observations made above. 16. It is also made clear that the amount which was deposited by the petitioners by order of this Court dated 31.08.2017 with the Registry shall be returned to the petitioners as the mistake in impleading the respondents, seems to be bona fide.