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2020 DIGILAW 299 (ALL)

Moti Lal Ahirwar v. State of U. P.

2020-01-27

YASHWANT VARMA

body2020
JUDGMENT : Yashwant Varma, J. Order on Civil Misc. Withdrawal Application No. 18 of 2019 Sri S.P. Singh; learned counsel appearing for the respondent No. 7 states that he choose not to press his claim for appointment on the post in question. He refers to the affidavit filed in this respect. The statement so made is recorded. Order on Civil Misc. Impleadment Application No. 15 of 2019 None has appeared to press the application even when the matter is taken up in the revised call. Consequently the application is dismissed. Although, the respondent No. 6 is duly represented by Sri N.K. Mishra, learned counsel, none has appeared on his behalf even when the matter is taken up in the revised call. Order on Writ Petition 1. Heard Sri Rahul Jain, learned counsel for the petitioner and learned Standing Counsel. 2. The instant writ petition challenges the orders passed by the Regional Level Committee and the District Inspector of Schools negativing the claim of the petitioner for promotion on the post of Lecturer in Economics. The substantive appointments of the petitioner and the private respondent in the institution in question are not in dispute. The seventh respondent has already given up his claim to the post in question as was noted by the Court while passing orders on C.M. Withdrawal Application No. 18 of 2019. The sixth respondent has been arrayed in light of the recommendations and appointment made in his favour to the post of Lecturer in Economics. He however, was unable to work on that post in light of the interim order that was passed when the present writ petition was entertained. The interim order encapsulated the essence of the dispute which has arisen and the Court deems it apposite to extract the same below. "This petition seeks the quashing of the order dated 8th December, 2011 passed by the Regional Level Committee granting promotion to respondent No. 6-Jagdish Prakash Pateriya as a Lecturer in Economics. The petitioner has also sought the quashing of the order dated 12th December, 2011 passed by the District Inspector of Schools, Mahoba by which the Committee of Management of the Institution was directed to issue an appointment letter to respondent No. 6. The petitioner has also sought the quashing of the order dated 12th December, 2011 passed by the District Inspector of Schools, Mahoba by which the Committee of Management of the Institution was directed to issue an appointment letter to respondent No. 6. It is stated that the petitioner was also eligible to be considered for promotion but his papers were not sent by the Committee of Management of the Institution even though under Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 'Rules') papers of all the eligible candidates were required to be forwarded by the Committee of Management of the Institution. It is also his submission that even otherwise respondent No. 6 is not eligible for promotion in view of the Full Bench decision of this Court in Surendra Prasad Agnihotri v. State of U.P. and others, (2010) 2 UPLBEC 1171, since he has attained the age of superannuation and is continuing only because of the session benefit. It is also his submission that the petitioner had filed a representation regarding this grievance before the Joint Director of Education on 21st November, 2011 and as it was not decided, he filed Writ Petition No. 68974 of 2011 which was disposed of on 29th November, 2011 with a direction to the Joint Director of Education to decide the matter by a speaking order after affording opportunity to all the concerned parties within a period of one month and though this order was served on the Joint Director of Education on 5th December, 2011 but without deciding the representation, the Regional Level Committee, of which the Joint Director of Education is the Chairman, has proceeded to grant approval to the promotion of respondent No. 6 as a Lecturer in Economics on 8th December, 2011. He, therefore, submits that the decision taken by the Regional Level Committee and the consequential order passed by the District Inspector of Schools deserve to be set aside. Sri N.K. Mishra, learned counsel appearing for respondent No. 6 has stated that respondent No. 6-Jagdish Prakash Pateriya is the senior most teacher and, therefore, has been rightly promoted. Prima facie the submissions advanced by the learned counsel for the petitioner have force. Sri N.K. Mishra, learned counsel appearing for respondent No. 6 has stated that respondent No. 6-Jagdish Prakash Pateriya is the senior most teacher and, therefore, has been rightly promoted. Prima facie the submissions advanced by the learned counsel for the petitioner have force. The Committee of Management of the Institution is required to forward the papers of not only the senior most teacher but all the teachers of the Institution who are eligible for promotion under Rule 14 of the Rules so that a decision can be taken by the Regional Level Committee but in the instant case, as it transpires from the records, papers of only the senior most teacher were forwarded. It is also seen that though the petitioner had placed the decision of this Court by which the Joint Director of Education was required to decide the representation filed by the petitioner, the Regional Level Committee proceeded to grant approval to the promotion of respondent No. 6 without considering the representation. The petitioner is, therefore, entitled for an interim order. Learned Standing Counsel appears for respondent Nos. 1 to 4. Sri N.K. Mishra appears for respondent No. 6. Issue notice to respondent No. 5 by registered post. Steps may be taken within a week. Respondents may file the counter-affidavit within a period of six weeks. Rejoinder-affidavit, if any, may be filed within two weeks thereafter. List this petition for admission/hearing in the week commencing 27th February, 2012. In view of the submissions advanced by the learned counsel for the petitioner, it is ordered that the operation of the order dated dated 8th December, 2011 passed by the Regional Level Committee and the order dated 12th December, 2011 passed by the District Inspector of Schools, Mahoba shall remain stayed till the next date of listing." 3. The dispute itself arose initially as a consequence of the promotion of one Sushil Krishna Tripathi who was promoted as a Lecturer in Economics. The orders of promotion as made in his favour was challenged by the petitioner here by way of Writ-A No. 32387 of 2004. That writ petition came to be disposed of on 14 July 2011. During the pendency of that petition before this Court, Sushil Krishna Tripathi retired on attaining the age of superannuation on 30 June 2010. The orders of promotion as made in his favour was challenged by the petitioner here by way of Writ-A No. 32387 of 2004. That writ petition came to be disposed of on 14 July 2011. During the pendency of that petition before this Court, Sushil Krishna Tripathi retired on attaining the age of superannuation on 30 June 2010. It was in that backdrop that the petitioner here contended that his claim for promotion alongwith other eligible candidates to the post of Lecturer in Economics be considered in accordance with law. The learned Judge disposed of the petition directing the respondents to consider the claim of all eligible persons afresh and bearing in mind the substantive vacancy that had come into existence consequent to the superannuation of Sushil Krishna Tripathi. 4. Pursuant to that order, the process of promotion was commenced afresh. However, the Committee of Management proceeded to forward the papers of the sixth respondent alone asserting that he was the senior most LT Grade teacher and consequently eligible for promotion. Since the name of the petitioner was not forwarded, he approached the Court again by way of Writ-A No. 68474 of 20}}. This petition was disposed of by a learned Judge of the Court on 29 November 2011 directing the Joint Director of Education to consider the representation of the petitioner made aggrieved by the fact that his name had not been forwarded. A copy of that order is stated to have been served upon the respondents on 5 December 2011. The Regional Level Committee, however, on 8 December 2011 proceeded to pass an order recommending the name of the sixth respondent as a Lecturer in Economics. It is thereafter that the instant writ petition came to be filed and on 22 December 2011, the impugned orders were placed in abeyance. 5. Having heard counsels for respective parties, the Court finds substance in the submission addressed by Sri Jain with reference to the provisions made in the U.P. Secondary Education Services Selection Board Rules, 1998 who has rightly contended that the Committee of Management was obliged to send the names of all persons who possessed the requisite qualifications and had completed five years of continuous and regular service on the first day of the year of recruitment. 6. 6. Sri Jain, in the considered view of the Court, rightly submits that the Committee of Management clearly erred in proceeding to forward the papers pertaining to the sixth respondent alone proceeding on the premise that only the name of the senior most LT Grade Teacher was liable to be recommended. The procedure as adopted clearly falls foul of the language as employed in Rule 14 which reads thus. "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." (emphasis supplied) 7. From a bare reading of the text of Rule 14, it is manifest that the right of consideration extends to "all teachers" who possess the requisite qualification and have rendered qualifying service as prescribed. The Rule does not confer any discretion in the matter to the Committee except to the extent of identifying the teachers who otherwise fulfill the stipulations placed by the said Rule. In any case and more importantly, Rule 14 does not envisage a recommendation to be framed based upon the inter se seniority of eligible teachers. In view of the aforesaid, the Court finds itself unable to sustain the validity of the action of the respondents. 8. Sri Jain then submits that the sixth respondent was only continuing on extended service on the date when the recommendation was made and merely on the basis of the provisions made in Regulation 21 falling in Chapter III of the Regulations framed under the U.P. Intermediate Education Act 1921. He places reliance upon the decision rendered by a Division Bench in Hari Om Tatsat Brahma Shukla v. State of U.P., 2006(10) ADJ 767 , to submit that a mere extension in service till the end of the session in terms of the provisions made in Regulation 21 cannot clothe that teacher with a right to seek promotion. He places reliance upon the decision rendered by a Division Bench in Hari Om Tatsat Brahma Shukla v. State of U.P., 2006(10) ADJ 767 , to submit that a mere extension in service till the end of the session in terms of the provisions made in Regulation 21 cannot clothe that teacher with a right to seek promotion. Sri Jain rightly submits that in terms of the provisions made in Regulation 21, a teacher is permitted to continue to hold office till the end of the session essentially in order to ensure that the academic calendar of the institution is not disrupted and the studies of the students not impaired in mid session. The submission addressed clearly is of substance and is also supported by the following observations as made in Hari Om Tatsat: "9. We further add that the purpose and object of Regulation 21 Chapter III is to protect studies of students from disruption during academic session and it is for the benefit of the students during academic calendar of the year. By giving a persuasive interpretation of the said clause, it is amply clear that the said protection is basically for the benefit of the students and the academic calendar of the institution and does not give any vested right to a teacher to claim a promotion." 9. Accordingly and for the reasons aforenoted the Court finds itself unable to sustain the orders impugned. 10. Before parting, it becomes relevant to note that although the learned Judge while disposing of Writ-A No. 32367 of 2004 has noted that the vacancy in question arose consequent to the retirement of Sushil Krishna Tripathi on 30 June 2010, according to. Sri Jain, Sushil Krishna Tripathi continued to work as a LT Grade teacher and also drew all retiral benefits as prescribed for that cadre. In light thereof it was submitted that the vacancy should be treated as having arisen in 2003 itself. This Court deems it unnecessary to deal with this question since the same clearly does not arise out of the orders which are impugned herein. All contentions of respective parties in this respect are consequently left open. 11. The writ petition is allowed. This Court deems it unnecessary to deal with this question since the same clearly does not arise out of the orders which are impugned herein. All contentions of respective parties in this respect are consequently left open. 11. The writ petition is allowed. The impugned orders dated 8 December 2011 and 12 December 2011 are hereby quashed and set aside: The Joint Director of Education shall consequently place the requisite papers of the petitioner as well as other eligible LT Grade teachers working in the institution for being considered for promotion to the post of Lecturer (Economics) before the Regional Level Committee which shall undertake the requisite process of evaluation and take a final decision within a period of three months from the date of presentation of a certified copy of this order.