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Allahabad High Court · body

2020 DIGILAW 1111 (ALL)

Rama Shanker Prasad v. State Of U. P.

2020-09-03

VIVEK AGARWAL

body2020
JUDGMENT : 1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare for the petitioner and Sri Radha Kant Ojha, learned Senior Advocate assisted by Sri Harish Chandra Dubey for the respondent no.5. 2. Petitioner who is a Assistant Teacher in L.T. Grade, a post on which he was appointed on 03.12.2010 on the recommendations of the U.P. Secondary Education Services Selection Board and was recommended to be appointed in the Balmiki Inter College, Balua, District-Chandauli has filed this petition mentioning therein that he possesses a Post-graduate Degree in physics and is fully qualified for holding the post of Lecturer in Physics. 3. It is submitted that there are 10 sanctioned post of Lecturer in the Balmiki Inter College, Balua. In the year 2019, the U.P. Secondary Services Selection Board (hereinafter referred to as ‘Board’) notified the select list of Principals of privately managed aided Institutions. In the select list published by the Board, two Lecturers of the Balmiki Inter College, Balua namely Virednra Pratap Tiwari, Lecturer in Sanskrit and Ashok Kumar Singh, Lecturer in Physics were selected for appointment as Principal of different Institutions. It is submitted that Sri Ashok Kumar Singh, Lecturer in Physics joined at his place of posting as Principal on 31.08.2019 while Sri Virendra Pratap Tiwari joined at his place of posting as Principal on 20.09.2019. 4. It is submitted that since vacancy in the cadre of Lecturer in the subject of Physics had occurred on 31.08.2019, therefore, petitioner being the senior most Assistant Teacher in L.T. Grade possessing requisite qualifications for promotion to the post of Lecturer in Physics should have been promoted and to this effect petitioner had moved an application before the College-Authority, therefore when the Committee of Management convened its Meeting on 19.01.2020 it passed a Resolution recommending the name of the petitioner for promotion to the post of Lecturer, Physics, copy of such resolution is enclosed as Annexure-2. 5. It is petitioner’s case that when the Resolution passed by the Committee of Management was forwarded to the District Inspector of Schools for onward transmission to Regional Promotion Committee, then vide communication dated 19.05.2020, District Inspector of Schools, Chandauli raised various objections which were duly replied by the Management vide reply dated 29.05.2020. 5. It is petitioner’s case that when the Resolution passed by the Committee of Management was forwarded to the District Inspector of Schools for onward transmission to Regional Promotion Committee, then vide communication dated 19.05.2020, District Inspector of Schools, Chandauli raised various objections which were duly replied by the Management vide reply dated 29.05.2020. Thereafter, according to the petitioner, Joint Direction of Education, Varanasi Region, Varanasi, vide order dated 05.06.2020 approved the proposed promotion of the petitioner as a result of which, the District Inspector of Schools informed the Management of Balmiki Inter College to pass orders of promotion for the petitioner as Lecturer, Physics and accordingly the Management of the College had issued appointment order dated 08.06.2020 in favour of the petitioner and accordingly petitioner had joined on the post of Lecturer, Physics on 08.06.2020. 6. It is submitted that a communication was sent by the former M.L.C. who has been impleaded as respondent no.6 addressed to the Joint Director of Education, 5th Mandal, Varanasi highlighting the irregularities in the promotion process when District Inspector of Schools, taking cognizance of such communication asked the Management of the Inter College to submit its explanation along with all the relevant documents. 7. To this D.O. letter, reply was furnished by the College Management pointing out that Ashok Kumar Singh was appointed on the vacant temporary post on 11.01.1996 and he continued to work upto 31.08.2019. He was paid salary in terms of the orders of the High Court. It is mentioned that on 01.09.2019 when the post of Lecturer, Physics became vacant, then promotion of the petitioner was made under the prescribed 50% quota for promotion. 8. It is petitioner’s contention that thereafter, vide order dated 22.06.2020, it was proposed to cancel the promotion of the petitioner and thereafter vide order dated 23.07.2020, promotion of the petitioner has been set aside. 9. Petitioner’s contention is that since the post of Lecturer, Physics had fallen vacant on 31.08.2019 and that of the Lecturer, Sanskrit on 20th September, 2019, therefore, in terms of the provisions contained in Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as ‘1998’ Rule), case of the petitioner was considered and he was promoted. It is submitted that petitioner’s case is identical to the judgment of Division Bench of this Court in case of Pati Ram Pal Vs. It is submitted that petitioner’s case is identical to the judgment of Division Bench of this Court in case of Pati Ram Pal Vs. District Inspector of Schools and others as reported in 1993 (1) UPLBEC 319 wherein, referring to the provisions contained in U.P. Intermediate Education Act, 1921 and the regulations framed under Chapter 2 and more specifically Regulation 6(1) which provides that if the vacancy of L.T. Grade teacher is caused by promotion and the promoted teacher was teaching Hindi then it is not necessary that the post be filled by promoting only Hindi teachers. 10. Similarly, reliance has been placed on the judgement of Division Bench of this Court in case of B.P. Tripathi Vs. State of U.P. and others as reported in 1985 UPLBEC 669 wherein, it has been held, again in reference to, U.P. Intermediate Education Act, 1921 and Regulation 6(1) and 6(5) that even if the vacancy occurred due to death of teacher teaching English and Hindi, yet for filling the vacancy, all teachers eligible for being promoted may be considered and it is not necessary that teachers teaching that particular subject only be considered. 11. In view of such facts, learned counsel for the petitioner submits that impugned order is arbitrary and discriminatory and in fact, the decision has been taken ex parte. It is also submitted that since the vacancy of Lecturer in Physics came into existence, first in point of time i.e. on 31.08.2019 in contrast to the vacancy of the Lecturer in Sanskrit which arose on 20th September, 2019 i.e. on a subsequent date, therefore, the post of Lecturer falling vacant, 1st in time was required to be filled by promotion. Thus, the decision of the Management Committee to fill that first post through promotion cannot be faulted with. 12. In fact, learned counsel for the petitioner during the course of argument has placed weightage on this argument only that since the vacancy of Lecturer in Physics arose first in time, therefore, the decision of the Management to fill it through promotion cannot be faulted with. 13. 12. In fact, learned counsel for the petitioner during the course of argument has placed weightage on this argument only that since the vacancy of Lecturer in Physics arose first in time, therefore, the decision of the Management to fill it through promotion cannot be faulted with. 13. On the other hand, learned counsel for the respondents has drawn attention of this Court to the definitions mentioned in Section 2, of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 and submits that as per Section 2(l), ‘year of recruitment’, means a period of 12 months commencing from first day of July of a Calendar year. He submits that it is not the date on which a vacancy occurs which is to be given preference but it is the year of recruitment during which a particular vacancy/vacancies arise which are relevant for the purposes of the Act of 1982 and the Rules of 1998. 14. Learned counsel for the respondent, therefore, submits that Rule 10 of the Rules of 1998 in Clause-B provides that vacancies of Lecturer Grade are to be filled, 50% by direct recruitment; and 50% by promotion from amongst substantively appointed teachers of the trained graduate Grade. Thus, there is no illegality in the impugned order dated 23.07.2020. 15. After hearing arguments of learned counsel for respective parties and going through the material available on record, it is evident that the fact of the matter is that Section 2(l) of the Act of 1982, defines ‘year of recruitment’, as a period of 12 months commencing from first day of July of a Calender year, therefore, both the posts that of Lecturer in Physics and Lecturer in Sanskrit which respectively fall vacant on 31.08.2019 and 20.09.2019 actually became available in the same ‘year of recruitment’. Therefore, the first argument that since post of Lecturer, Physics had fallen vacant at an earlier point of time has no meaning in terms of the definition of the ‘year of recruitment’, which is when read with the provisions contained in Rule 14(1), then it is apparent that any vacancy which has occurred during the same recruitment year then, they are to be considered together for being filled up by promotion for which purpose all teachers working in trained graduates Grade or certificate of teaching Grade possessing the prescribed qualification for the post and having completed five years continuous service as such on the first day of the year of recruitment are to be considered for promotion to the Lecturers Grade. 16. For ready reference Rule 14 of the Rules of 1998 is reproduced here-in-under:- Rule 14 of the Rules of 1998 provides a procedure for recruitment by promotion and Rule 14(1)(2)&(3) reads as under:- “14. Procedure for recruitment by promotion. - (1) Where any vacancy is to be filled by promotion, all teachers working in Trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers grade or the Trained graduates grade, as the case may be, without their having applied for the same. Note. - For the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted for eligibility, unless interrupted by removal, dismissal or reduction to a lower post. (2) The criterion for promotion shall be seniority subject to the rejection of unfit. (3) The Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the pro forma given in Appendix 'A'.” 17. This when sub-rule 2 of Rule 14 is read, it implies that a list of all the Lecturers in different subjects working in the College is to be prepared in the order of seniority and promotion is to be granted on the basis of seniority in the feeder cadre subject to the rejection of unfit. 18. This when sub-rule 2 of Rule 14 is read, it implies that a list of all the Lecturers in different subjects working in the College is to be prepared in the order of seniority and promotion is to be granted on the basis of seniority in the feeder cadre subject to the rejection of unfit. 18. As is evident from the order dated 23.07.2020 that Sri Mahtab Ahmad is senior to the petitioner and, therefore his name should have been recommended for promotion to the post of Lecturer, Sanskrit so to fill the vacancy of a Lecturer under 50% quota prescribed for promotion, then the petitioner has no case in the light of the provisions contained in Rule 14 of 1998 Rules when, they are read in the light of the definition of the ‘recruitment year’, as provided under Section 2(l) of the Act of 1982. 19. It is not the case of the petitioner that in the cadre of Assistant Teacher, L.T. Grade, he is senior to said Sri Mahtab Ahmad i.e. respondent no.5. 20. In absence of any challenge to the seniority of Sri Mahtab Ahmad in the feeder cadre of Assistant Teacher, L.T. Grade over the petitioner, when Scheme of Promotion is examined as contained in Rule 14 then it is evident that the Management of the College acted illegally and arbitrarily in forwarding the name of the petitioner for promotion to the post of Lecturer, Physics in preference to the respondent no.5 who is admittedly senior to the petitioner in the feeder cadre. 21. Therefore, the ratio of the law laid down in case of B.P. Tripathi (supra) and Pati Ram Pal (supra) in fact are against the petitioner and have no application to his benefit. Thus, the impugned order dated 23.07.2020 cannot be faulted with. 22. Other grounds like violation of principles of natural justice and not providing complete opportunity of hearing to the petitioner is not germane in cases where there is clear infraction of the statutory provisions. 23. In this regard, law laid down by Hon’ble Supreme Court in case of U.P. Junior Doctors’ Action Committee Vs. 22. Other grounds like violation of principles of natural justice and not providing complete opportunity of hearing to the petitioner is not germane in cases where there is clear infraction of the statutory provisions. 23. In this regard, law laid down by Hon’ble Supreme Court in case of U.P. Junior Doctors’ Action Committee Vs. B. Sheetal Nandwani (Dr.) as reported in AIR 1991 SC 909 is relevant wherein, it has been held that where a benefit is obtained by committing fraud, the Authorities are not obliged to comply with the principles of natural justice before cancelling the advantage obtained by such fraud. 24. Similarly, in the case of Union of IndiaVs. O.Chakradhar as reported in 2002 (3) SCC 146 , it has been held that where because of widespread illegalities and irregularities committed in conducting a selection, the process is cancelled, the same cannot be faulted on the ground of violation of principles of natural justice because individuals in the select list were not given an opportunity of being heard before such cancellation. 25. In the present case, it is apparent that the benefit of promotion was obtained by committing fraud in collusion with the Management Committee and in violation of the statutory rules and regulations. The act of the Management Committee in favouing the petitioner is fraught with illegalities and irregularities, therefore, cancellation of such promotion order cannot be faulted on the ground of violations of principles of natural justice saying that petitioner was not given full opportunity of hearing before passing of the impugned order. 26. Thus, the petition fails and is, accordingly, dismissed.