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2019 DIGILAW 1061 (ALL)

Jang Bahadur Singh v. State Of U. P.

2019-04-24

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : 1. An order passed by Joint Director of Education, Varanasi Region, Varanasi, dated 11.2.2015 is assailed in this petition. By this order petitioner's claim for promotion to the post of Lecturer in Sociology has been rejected, although a finding is returned in favour of the petitioner that he possessed requisite eligibility for consideration of his claim for promotion. 2. Facts, which are not in issue, lie in a narrow compass, and therefore would require examination at the outset. Inter College Ranipur, Jaunpur is an institution recognized under the Intermediate Education Act, 1921 and the provisions of the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 are also applicable. Six posts of Lecturer are sanctioned in the institution. Three of these posts are to be filled by promotion. It is admitted that the posts of Lecturer in Sociology, Economics and Hindi are to be filled by promotion. One Om Prakash Khare, Lalchandra Pandey and Faujdar Yadav were promoted and working as Lecturer against these three posts. Regular Principal of the institution Santosh Kumar Srivastava retired on 30th June, 2000. Om Prakash Khare, who was senior most, substantively appointed Lecturer in Sociology was handed over the charge of Officiating Principal. It is admitted that he continued as such and retired on 30th June, 2011. It is not in issue that Om Prakash Khare continued as Principal on officiating basis and he was never appointed substantively as Principal in the institution. The order impugned, therefore, rightly records that post of Lecturer in Sociology has fallen vacant on 30th June, 2011. 3. Even at the time when Om Prakash Khare was given the officiating charge of Principal, at best, a short term vacancy on the post of Lecturer in Sociology had come into existence. Against this short term vacancy a requisition was sent to the Commission for filling up the post of Lecturer in Sociology by direct recruitment on substantive basis. The vacancy that was intimated to the Board was not advertised but respondent no.6, who was duly selected by the Commission against other advertised vacancy, was adjusted in the institution concerned. He has joined as such on 1.6.2009 and has also been receiving salary. 4. The vacancy that was intimated to the Board was not advertised but respondent no.6, who was duly selected by the Commission against other advertised vacancy, was adjusted in the institution concerned. He has joined as such on 1.6.2009 and has also been receiving salary. 4. When the post of Lecturer in Sociology has fallen vacant on substantive basis on 30th June, 2011, the present petitioner staked his claim for promotion to the post of Lecturer in Sociology on the ground that he was the senior most teacher possessing requisite qualification for promotion to the post as such. A finding is returned in the order that petitioner did possess requisite qualification for promotion to the post of Lecturer in Sociology. The order impugned further records a finding that placement of respondent no.6 in the institution was illegal, inasmuch as no substantive vacancy had come into being on 1st June, 2009, against which a substantive appointment by way of direct recruitment could be offered to him. The Joint Director of Education, however, has declined consideration of petitioner's claim for promotion to the post, on the ground that appointment of respondent no.6 had not been challenged in the year 2009, and that it would not be appropriate to interfere with his working after about three years. 5. Before proceeding further, it would be relevant to note that the Committee of Management has apprised the authority concerned that requisition was sent for appointment to the post of Lecturer in Sociology, notwithstanding the fact that the post was actually to be filled by promotion quota only because the authorities were insisting upon filling up of the post of reserved category candidate, and that the reservation quota had remained unfilled for long. It is also submitted that Om Prakash Khare would have been the only person to be prejudiced by sending of requisition to the Board for the post to be filled substantively, but he never raised any objection. The Management, therefore, submitted before the authority that it was in such compelling circumstances that the requisition was sent without any mala fide reason. 6. Learned Senior Counsel for the petitioner submits that the vacancy on the post of Lecturer in Sociology arose in the institution only upon Om Prakash Khare being handed over charge of Officiating Principal. It is submitted that this was a short term vacancy. 6. Learned Senior Counsel for the petitioner submits that the vacancy on the post of Lecturer in Sociology arose in the institution only upon Om Prakash Khare being handed over charge of Officiating Principal. It is submitted that this was a short term vacancy. According to petitioner such short term vacancy could not have been filled by way of direct recruitment of respondent no.6. It is also submitted that once the post of Lecturer in Sociology fell within the promotion quota, it otherwise could not have been filled by way of direct recruitment. It is also submitted that substantive vacancy has arisen on the post of Lecturer in Sociology only on 30th June, 2011 and the petitioner could stake his claim for promotion at that stage only. It is submitted that merely because respondents had illegally allowed respondent no.6 to join in the institution would not be a relevant consideration nor such illegal act would constitute any equity in favour of respondent no.6 for his appointment to be protected. Learned counsel further submits that petitioner's rights to be considered for promotion is being violated in process, which is clearly impermissible. It is also urged that though respondent no.6 can be adjusted elsewhere but petitioner would have no other career option, inasmuch as his claim can only be considered against the vacancy in question. 7. Sri M.D. Singh 'Shekhar', learned Senior Counsel appearing for the respondent no.6, on the other hand, submits that initial appointment of petitioner itself was illegal as there was no vacancy in existence, inasmuch as the District Inspector of Schools, Jaunpur had passed an order on 13.2.1981, as per which promotion was granted to two persons in L.T. Grade with a clear rider that upon promotion of those persons the post of C.T. Grade teacher itself would be treated to have been abolished. It is stated that since appointment of petitioner was made on 10.1.1987, against this vacancy, therefore, his initial induction into service itself is bad in law. It is also submitted that respondent no.6 is a duly selected candidate from the Board and once the petitioner did not object to his joining in the institution in the year 2009, it would not be open for the petitioner to raise a claim for promotion against the post held by respondent no.6. 8. It is also submitted that respondent no.6 is a duly selected candidate from the Board and once the petitioner did not object to his joining in the institution in the year 2009, it would not be open for the petitioner to raise a claim for promotion against the post held by respondent no.6. 8. I have heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri S.B. Singh for the petitioner, Sri M.D. Singh 'Shekhar', learned Senior Counsel assisted by Sri Ashwani Kumar Srivastava for the respondent no.6 and Sri Amar Nath Singh learned Standing Counsel for the State. 9. Facts, which are relevant for the present controversy, have already been noticed, and therefore requires no reiteration. It is admitted on record that there exists six posts of Lecturer in the institution and three posts would fall in promotion quota under the 50% promotional quota. Post of Lecturer in Sociology admittedly fell within promotion quota. It is not in issue that Om Prakash Khare was continuing as Lecturer in Sociology and has superannuated on 30th June, 2011. A substantive vacancy on the post of Lecturer in Sociology came into being on 30th June, 2011. The vacancy, which arose on account of Om Prakash Khare having been appointed as Officiating Principal would, at best, be a short term vacancy. Such short term vacancy could not have been filled by way of direct recruitment of respondent no.6. Sending of requisition by the Managing Committee as well as appointment of respondent no.6 against such short term vacancy is, therefore, found to be wholly impermissible in law. The Joint Director of Education has also returned a finding in that regard holding the appointment of respondent no.6 to be impermissible in law. The only ground taken to non-suit the petitioner is that no claim was raised at that stage and after about three years it would not be appropriate to interfere with the working of respondent no.6. This observation and finding in the order of Joint Director of Education is wholly fallacious and cannot be sustained. In the year 2009, there was no substantive post of Lecturer in Sociology. In case respondent no.6 was adjusted illegally, there would have no occasion for the petitioner to object, inasmuch as his right to be considered for promotion would come into existence only when the post substantively fell vacant in the year 2011. In the year 2009, there was no substantive post of Lecturer in Sociology. In case respondent no.6 was adjusted illegally, there would have no occasion for the petitioner to object, inasmuch as his right to be considered for promotion would come into existence only when the post substantively fell vacant in the year 2011. A timely claim has been raised by petitioner for promotion to the post of Lecturer in Sociology, after the post fell vacant on 30th June, 2011. Petitioner, therefore, could not have been non-suited for the reasons set out in the order itself. 10. The matter requires consideration from a different aspect also. It is admitted that post of Lecturer in Sociology fell within the promotion. Such a post, therefore, could not have been filled by way of direct recruitment. The appointment of respondent no.6 against a post meant for promotion is, therefore, not liable to be sustained, particularly when no vacancy had otherwise come into existence. 11. So far as the legality of petitioner's appointment is concerned, this Court is not inclined to entertain questions raised by respondent no.6, while filing the counter affidavit, inasmuch as appointment of petitioner in the year 1987 has otherwise not been questioned at any stage. After expiry of more than 30 years, this Court would not be inclined to entertain an issue with regard to legality of petitioner's appointment. Prima facie, such a challenge is otherwise found to be baseless, inasmuch as the post of C.T. Grade teacher came to be abolished only in 1989 and merely for any order passed by the Inspector on 13.2.1981, the post otherwise substantively created under the order of the Director of Education would not stand abolished under an order of Inspector, at his own level. Law is otherwise settled that while determining the inter-se right of parties to be considered for promotion or seniority ordinarily, the legality of appointment ought not to be questioned. In the facts of the present case, this is moreso when the appointment of petitioner is otherwise not challenged. 12. In view of the deliberations and discussions aforesaid, this Court finds that post of Lecturer in Sociology having come into existence on 30th June, 2011 was required to be filled by way of promotion alone. It could not have been offered to respondent no.6 by way of direct recruitment. 12. In view of the deliberations and discussions aforesaid, this Court finds that post of Lecturer in Sociology having come into existence on 30th June, 2011 was required to be filled by way of promotion alone. It could not have been offered to respondent no.6 by way of direct recruitment. Respondent no.6 otherwise could not have been placed in the institution against a short term vacancy. The authority, therefore, has erred in rejecting petitioner's claim for being considered for promotion against the vacancy caused on the post of Lecturer in Sociology, vide order impugned. Consequently, order impugned dated 11.2.2015 cannot be sustained and is, accordingly, quashed. 13. Equity, however, would have to be adjusted in the facts of the present case. Respondent no.6 is duly a selected candidate from the Board, and is entitled to be placed in an appropriate institution. Even if this Court has come to the conclusion that no post exists against which respondent no.6 could have been placed in the institution concerned, the Director would be required to consider placement of respondent no.6 in any other institution. This would be clearly permissible in view of the Rule 13(5) of the Rules of 1998, keeping in view the observation of the Hon'ble Supreme Court in Civil Appeal No.10808 of 2017 (U.P. Secondary Education Services Selection Board, U.P. Vs. State of U.P.), decided on 23rd August, 2017. An appropriate order in that regard would be passed by the Director, within a period of two months from the date of presentation of certified copy of this order. The claim of petitioner for being considered for promotion would also be considered by the Regional Promotion Commission, in accordance with the provisions of Rule 14 of the Rules of 1998, within a period of two months. It is, however, provided that authorities shall ensure that there is no break in service for respondent no.6, and all service benefits, which are otherwise due to respondent no.6, would be extended to him. Till the claim of adjustment for respondent no.6 is considered, he would be allowed to work in the present institution. In case petitioner's claim for promotion is accepted, he would be entitled to grant of promotional pay scale from the date of his actual promotion but his claim for grant of notional promotion and seniority would be reckoned from the date the post fell vacant i.e. 30.6.2011. 14. In case petitioner's claim for promotion is accepted, he would be entitled to grant of promotional pay scale from the date of his actual promotion but his claim for grant of notional promotion and seniority would be reckoned from the date the post fell vacant i.e. 30.6.2011. 14. Writ petition, accordingly, stands allowed.