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2024 DIGILAW 296 (ALL)

Seema Nagar v. State of U. P.

2024-01-29

AJIT KUMAR

body2024
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Gulrez Khan, learned counsel for the petitioner, Sri Bheem Singh, learned counsel appearing on behalf of Committee of Management and learned Standing Counsel for the State-respondents. 2. Petitioner before this Court is working as Assistant Teacher in L.T. grade in the institution and claims that she is entitled to be promoted as lecturer Economics within 50% quota as prescribed for under Rule-10 of the U.P. Secondary Education Services Selection Board Rules, 1998 (for short 1998 rules') read with relevant regulations as contained under Chapter-II of Intermediate Education Act, 1921. 3. Learned counsel for the petitioner submits that there are five sanctioned posts of lecturer in the institution in the subject of Home Science, Hindi, English, Political Science and Economics. He further submits that there are two lecturers working in the institution on direct recruitment basis as lecturer Home Science and lecturer Hindi. The post in question, i.e., lecturer Economics fell vacant on 16.7.2019 and, accordingly, in view of Rule 10 of the 1998 rules, petitioner deserved to be considered for promotion. However, within three days, the Committee of Management made a requisition online to the Board and forwarded the papers to the District Inspector of Schools for direct recruitment against the post in question. The petitioner also made an objection before the District Inspector of Schools and in such circumstances, the District Inspector of Schools directed the Management of the institution vide letter dated 16.10.2019 to clarify the position. In reply to the said letter, the Committee of Management wrote a letter stating therein that the character roll of the petitioner for the year 2010-11 to 2016-17 remained uncertified and, therefore, on the date of occurrence of vacancy, her candidature could not have been considered. The other plea taken was that one Smt. Rekha Rani and Smt. Reena other Assistant Teachers in L.T. grade had set up a claim for promotion and since the case of Smt. Rekha Rani was sub judice before the Court, the post of lecturer (Economics) could not have been filled up by promotion. The other plea taken was that one Smt. Rekha Rani and Smt. Reena other Assistant Teachers in L.T. grade had set up a claim for promotion and since the case of Smt. Rekha Rani was sub judice before the Court, the post of lecturer (Economics) could not have been filled up by promotion. It is further argued on behalf of the petitioner that even if, the post of lecturer Political Science is to be given to Smt. Rekha Rani by promotion and Smt. Reena is to be promoted on other vacant post of lecturer English, the petitioner's claim still survives for the post of lecturer Economics, which falls within 50% quota. He has placed relinace upon Rule-10 of 1998 Rules. In the circumstances, the petitioner has challenged the requisition dated 19th July, 2019 ad 5.10.2019, sent by the Committee of Management for the post in question, i.e., lecturer Economics for direct recruitment. 4. Per contra, it is argued by Sri Bheem Singh, learned counsel appearing on behalf of Committee of Management that once the requisition has been made for direct recruitment, no Ad hoc promotion can be made, inasmuch as, according to him, reservation rule would apply and the post in question would not fall in the open category to which the petitioner belongs. He has further tried to defend the action of the Committee of Management but could not dispute that the matter would ultimately be resolved by the Regional Committee as contemplated under the 1998 Rules. 5. Having heard learned counsel for the parties and having perused the records, I find there to be no dispute between the parties that out of five sanctioned posts, three posts of lecturer including the post of lecturer Economics is lying vacant. The management's own case is that Smt. Rekha Rani and Smt. Reena have also set up their claim for promotion as lecturer in Political Science and English. In the circumstances, the other post that is lying vacant, remains to be of lecturer Economics. Out of five sanctioned posts as per rule 10 of 1998 Rules, 50% posts in the lecturer's grade are to be filled up from amongst substantively appointed teachers of Trained Graduate Grade. Relevant provisions as contained under Rule10 are reproduce hereunder: “10. In the circumstances, the other post that is lying vacant, remains to be of lecturer Economics. Out of five sanctioned posts as per rule 10 of 1998 Rules, 50% posts in the lecturer's grade are to be filled up from amongst substantively appointed teachers of Trained Graduate Grade. Relevant provisions as contained under Rule10 are reproduce hereunder: “10. Source of recruitment - Teachers will be recruited in different categories through following sources: (a) Principal of an Intermediate College or Headmaster of a High School: (i) By direct recruitment: (b) Teachers of lecturers grade: (i) 50 per cent by direct recruitment. (ii) 50 per cent by promotion from amongst substantively appointed teachers of the trained graduate grade. (c) Teachers of Trained Graduate category by direct recruitment: Provided that such intermediate colleges and high schools where attached primary teachers are receiving salary under provisions of the Uttar Pradesh High School and Intermediate Colleges (payment of Salaries of Teachers and other employees) Act, 1971, 75 per cent of the posts will be filled by direct recruitment and the rest of the 25 per cent of the posts will be filled through promotion of those trained graduate teachers of attached primary section who have completed satisfactory services of five years: Provided further that where there is no eligible candidate available for recruitment through promotion in any recruitment year, the posts may be filled through direct recruitment: Provided also that while calculating the percentage of different posts under the same recruitment, if a fraction occurs, the fraction of direct recruitment will be excluded and the fraction of posts to be filled through promotion will be increased by one to create one post. (d) Teachers of attached primary section cent per cent by direct recruitment. Note - For the recruitment of the teachers of attached primary section, the minimum qualification shall be in accordance with National Council for Teacher Education. Recruitment will be excluded and the fraction of posts to be filled through promotion will be increased by one to create one post.” (Emphasis added) 6. Rule-11 of the Rules, provides for determination and notification of vacancies. The intimation/requisition that is to be sent to the Board, according to Rule 2(a) of Rule-11 of 1998 Rules, is to be only in respect of direct recruitment whether the posts are vacant or likely to be vacant by the last date of year of recruitment. Rule-11 of the Rules, provides for determination and notification of vacancies. The intimation/requisition that is to be sent to the Board, according to Rule 2(a) of Rule-11 of 1998 Rules, is to be only in respect of direct recruitment whether the posts are vacant or likely to be vacant by the last date of year of recruitment. Rule-11 (2) (a), which is relevant for the purpose is reproduced hereunder: “11. Determination and notification of vacancies: (1) ----------- (2) (a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the pro forma given in Appendix “A” by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subjectwise in respect of the vacancies of lecturer grade, and group wise in respect of vacancies of Trained graduates grade. The consolidated statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director: Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment: Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998.” (Emphasis added) 7. Rule-12 of the 1998 Rules, provides procedure for direct recruitment and Rule-14 provides procedure for recruitment by promotion. Rule-14 is reproduce hereunder: “14. Rule-12 of the 1998 Rules, provides procedure for direct recruitment and Rule-14 provides procedure for recruitment by promotion. Rule-14 is reproduce hereunder: “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'. (4) Within three weeks of the receipt of the list from the Management under sub-rule (3), the Inspector shall verify the facts from die record of his office and forward the list to the Joint Director. (5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in sub-section (1) of Section 12 and after the Committee's recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management. (6) Within ten days of the receipt of the panel from the Joint Director under sub-rule (5), the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorisation under its resolution issue the appointment order in the pro forma given in Appendix 'F' to such candidate.” (Emphasis added) 8. Upon bare reading of rules one can very safely conclude that criterion for promotion is seniority subject to rejection of unfit and the management is required to prepare a list of teachers working in substantive vacancy in trained graduate grade and then forward the same to the District Inspector of Schools, who in his turn shall forward the same to the Joint Director of Education. The Joint Director thereafter shall place the record before the Selection Committee, which is to be constituted under Sub-section 1 of Section 12 of the U.P. Secondary Education Service Selection Act, 1982, which consists of Regional Joint Director of Education, senior most Principal of Government intermediate college and the concerned District Inspector of Schools as member Secretary and it is thereafter that recommendations shall be made to the Regional Selection Committee with its advance copy to the management and then the management would adopt a resolution to make such appointment then in all circumstances, it is the Regional Selection Committee, which is lawfully entitled to consider the candidature of the candidates from amongst the list forwarded of eligible candidates for promotion on the post of lecturer in the order of seniority but subject to rejection of unfit and the management is to identify the vacancy as per Rule-1 of Section 10 and then to notify the vacancy, which deserves to be filled up by direct recruitment. It is the rule that in the matter of fraction, in order to assess 50% of the vacancy, the division falling in fraction to be taken as a whole number and, therefore, one vacancy will be taken to be in promotion quota and direct recruitment shall be ignored. The proviso of Rule-10 clears this position. 9. So far the plea of reservation as taken by the respondents is concerned, I find the legal position to be very clear that reservation is applicable to the post falling in a particular category like direct recruitment or promotion. The posts falling in both the categories cannot be clubbed together to apply rule of reservation. 9. So far the plea of reservation as taken by the respondents is concerned, I find the legal position to be very clear that reservation is applicable to the post falling in a particular category like direct recruitment or promotion. The posts falling in both the categories cannot be clubbed together to apply rule of reservation. Relying upon the judgment of Division Bench of this Court in the case of Smt. Pholpati Devi v. Smt. Asha Jaiswal and others, 2009 (2) ADJ 90 (DB), a Co-ordinate Bench of this Court in the case of Tejveer Singh v. State of U.P. and others, has held that clubbing of vacancies, which were to be filled by promotion alongwith the vacancies to be filled up by direct recruitment was impermissible in law. In the case of Smt. Pholpati Devi (Supra), the Division Bench of this Court has considered the direct recruitment and promotion quota separately for the purposes of application of rule of reservation. Relying upon the authority of Supreme Court in the case of R.S. Garg v. State of U.P. and others, (2006) 6 SCC 430 , vide paragraphs-7 and 8, the Court has held thus: “7. In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at the best four posts would have been available for one source of recruitment, ie., direct recruitment or promotion. The reservation for scheduled castes is 21%. If we treat one of the vacancies in either of the source of recruitment in the institution as reserved for scheduled caste, it would be more than 21%. The Apex Court in R.S. Garg v. State of U.P. and others, 2006 (6) SCC 430 , has held as under: “40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements.” 8. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements.” 8. Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it cannot be exceeded thereto. In the case in hand, one of the vacancy if treated to be reserved for scheduled caste candidate out of four vacancies, the reservation would come to 25%, which would exceed the maximum extent of reservation prescribed for scheduled caste candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent No. 1 treating one post of lecturer reserved for scheduled castes in promotion quota, therefore, was illegal and has rightly been set aside by Hon'ble Single Judge.” 10. Thus, there can be no reservation in respect of the vacancy in question which falls in promotion quota and the total number of vacancies in promotion are only three. 11. Nothing has been pleaded in the entire counter-affidavit as to in what circumstances, out of five vacancies of lecturer sanctioned in the institution, the management came to determine that the post of lecturer Economics to be falling under direct recruitment quota. It is not the case that eligible candidate was not available, inasmuch as, the management on its own could not have ignored the candidature of the petitioner except forwarding the same to the District Inspector of Schools for onward transmission to the Regional Selection Committee as prescribed for under Section 12 (1) of the Act No. 5 of 1982, complying the procedure as prescribed under Rule-14 of the 1998 Rules. In the circumstances, therefore, the requisition sent by the Committee of Management impugned herein this petition is held null and void. Accordingly, the requisition sent by the Committee of Management and uploaded on the official website of the Board for direct recruitment on the post of lecturer Economics dated 9.7.2019 and 5.10.2019, Annexures 1 and 6 to the writ petition, are hereby quashed. Accordingly, the requisition sent by the Committee of Management and uploaded on the official website of the Board for direct recruitment on the post of lecturer Economics dated 9.7.2019 and 5.10.2019, Annexures 1 and 6 to the writ petition, are hereby quashed. The Committee of Management is directed to forward the papers of the petitioner and entire record in relation to his service career as Assistant Teacher L.T. grade, to the District Inspector of Schools within a period of three weeks from today, who shall in his turn forward the same to the Regional Joint Director of Education within a week thereafter. The Regional Joint shall make queries, if necessary, otherwise place the papers before the Regional Selection Committee, who shall do the needful in the matter as per Rule 14 of 1998 Rules. In any case, final decision shall be taken by the Regional Selection Committee within six weeks from the date of receipt of papers in the Office of Regional Joint Director of Education from the District Inspector of Schools. It is further provided that in case, the Management does not comply with the directions issued hereinabove in forwarding the papers of the petitioner for promotion, it will remain open for the District Inspector of Schools to take appropriate measure in the matter to ensure that the papers are forwarded within the time to the Regional Joint Director of Education. 12. With the aforesaid observations and directions, the petition stands allowed.