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DAYA CHAND versus D.I.O.S. AND OTHERS

High Court of Judicature at Allahabad

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Daya Chand v. D.I.O.S. And Others - WRIT - A No. - 27422 of 1993 [2007] RD-AH 16423 (8 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 26

Civil Misc. Writ Petition No. 27422 of 1993

Daya Chand

Versus

D.I.O.S. Muzaffar Nagar and others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order dated 5.6.1993 (Annexure 7 to the writ petition) passed by the District Inspector of Schools. Further a writ in the nature of mandamus commanding the respondents to approve the petitioner's appointment as Lecturer in Civics under 18% reservation quota of scheduled caste candidates and 50% promotional quota and further a direction to pay the salary to the petitioner of Lecturer's grade with effect from 16.3.1993.

The petitioner was appointed on 16.1.1980 as C.T. grade teacher in the college of the respondent No.2. The qualification of the petitioner is M.A. in Political Science and B.A., B.Ed. The post of L.T. grade fell vacant in the college and the petitioner being duly qualified candidate of reserve quota of scheduled caste was promoted to the post of assistant teacher in L.T. grade and is working since 1.7.1987. The post of Lecturer in Civics fell vacant on account of retirement of one Suresh Chandra Gupta, who was a permanent Lecturer in the department of Civics. The said post of lecturer was to be filled up by promotion of teachers under 50% quota. As there was no representation of reserve quota candidate and the petitioner was the senior most amongst the scheduled caste candidate, therefore, the petitioner was only eligible candidate for promotion to the said post. The government by order dated 12th July, 1978, the post reserved for reserved quota have to be filled up first if they are not properly represented. As the petitioner was belonging to scheduled caste category, was duly qualified, has submitted an application on 6.7.1992 for promotion to the post of Lecturer. The Principal of the institution has also recommended the claim of the petitioner. As there was no representation so the vacancy caused on account of retirement of Sri Suresh Chandra Gupta was to be filled by the scheduled caste candidate according to the Government Order. There were two L.T. grade teachers of scheduled caste, out of them the petitioner was the senior most. The resolution of the Committee of Management as well as the relevant document were sent to the District Inspector of Schools for his approval and necessary action on 22.2.1993.

According to Rule 9(4) of the U.P. Secondary Education Commission Rules, 1983, the District Inspector of Schools was required to forward the list to the Commission within three weeks but no action was taken. As no objection was raised by the competent authority within a period of three weeks, the petitioner was appointed as Lecturer in Civics on ad-hoc basis vide its letter dated 16.3.1993. Since 1993, the petitioner is continuously working on the post of Lecturer. Though the petitioner is continuously working on the post of lecturer, the salary of the lecturer grade has not been paid to the petitioner and only the salary of L.T. grade was being paid. A letter was sent by the District Inspector of Schools on 5.6.1993 to the Manager of the institution refusing to accord approval to the petitioner's appointment as Lecturer in Civics and has directed that under 50 % quota, the respondent No.3 is entitled to be promoted. It has been submitted that while passing the aforesaid order, the competent authority has lost sight of the very important fact that the the post against which the petitioner has been promoted as Lecturer was to be filled by the scheduled caste candidates under the reserved quota not by general quota candidates. Petitioner being a scheduled caste candidate was entitled and qualified for the post and was also senior most amongst the scheduled caste candidates. The District Inspector of Schools has rejected the claim of the petitioner on two grounds. One the petitioner has not completed five years service as L.T. grade against the substantive vacancy and secondly, the petitioner is junior to other teachers working in L.T. grade and is placed at Serial No.15. A submission has been made that the aforesaid grounds taken by the District Inspector of Schools while rejecting the claim of the petitioner is wholly untenable. In Onkar Nath's case while interpreting Rule 4 of U.P. Secondary Education Commission Rules 1983, it has specifically held that five years continuous service does not mean five years continuous substantive service. Admittedly, the petitioner is continuously working as L.T. grade teacher since 1.7.1992, therefore, the petitioner was fully entitled to be promoted on the post of lecturer in Civics. Since the post in question was to be filled by promotion under reserved quota, therefore, the District Inspector of Schools has committed gross illegality in treating the petitioner's candidature along with the general candidates. In view of the fact the reservation quota of 18% scheduled caste is being unrepresented. The respondent No.3 was not at all entitled to be promoted as Lecturer in Civics in the college of the respondent No.2.

In view of the aforesaid fact, the learned counsel for the petitioner submits that a direction be issued to pay salary to the petitioner on the post of lecturer in Civics.

A counter affidavit has been filed on behalf of the respondent No.3. It has been stated in the counter affidavit that the order passed by the District Inspector of Schools is correct and has rightly held that the petitioner is not at all promoted to the post of Lecturer in civics. As the petitioner was appointed as L.T. grade teacher on substantive basis with effect from 6.4.1991 and vacancy occurred on 30.6.1992, as such , the petitioner was not eligible on the date of occurrence of vacancy. Further submission has been made on behalf of the respondents that petitioner cannot claim benefit of reservation again and again. Mr. Suresh Chandra Gupta was a permanent lecturer in Civics on 30.6.1992 and there was no dispute that the said post was to be filled up by way of promotion amongst the eligible teachers working in L.T. grade. As the Committee of Management was illegally siding the petitioner, therefore, the competent authority has passed the order to that effect. The petitioner's appointment/ promotion was never approved by the District Inspector of Schools and he was never permitted to discharge the duties of Lecturer in Civics. It has further been submitted that the petitioner was never appointed and joined the post in question. The joining report is alleged to have been issued by one Dr. Bhola Nath Sharma, who is lecturer placed at Serial No.5 of the seniority list maintained in the institution. The U.P. Secondary Education Service Commission Rules, Rule 9 does not provide for any reservation and the only obligation is that each and every eligible candidates name should be sent to the District Inspector of Schools, Muzaffarnagar, to be forwarded to the Commission and the candidature of those recommendees has to be considered subject to seniority, unless rejected of unfit. The post in question is not at all reserved, therefore, the petitioner was eligible to be promoted on the said post. In the order the District Inspector of Schools, Muzaffarnagar has given a cogent reason in rejecting the candidature of the petitioner and has rightly asked for the candidature of the respondent no.3 for the post in question in strict compliance of Rule 9(2) of the U.P. Secondary Education Service Commission Rules.

In view of the aforesaid fact, the learned counsel for the respondents submits that the present writ petition is liable to be dismissed.

A counter affidavit has also been filed on behalf of the District Inspector of Schools. It has been stated that in view of the U.P. Education Act, 1921, Section 16(D) and 16 (Gha) and in view of the Regulation 6(1) of Chapter II, in case, amongst the L.T. grade teacher promotion is to be made on the post of Lecturer, then on the date of occurrence of vacancy minimum five years of service is the essential qualification. Admittedly, the petitioner on the date of vacancy had not completed five years of service , therefore, he shall not be entitled to be promoted. The petitioner filed a writ petition after the promotion of the respondent No.3 and this Court vide order dated 30th September, 1993 had directed to maintain status-quo. According to the Regulation 5 Chapter II of the Intermediate Education Act, the promotion on the post of Lecture is to be filled on the basis of senior most teacher working in L.T. grade. The promotion made by the Committee of Management was not in accordance with law and it was never approved, therefore, there is no question of payment of salary.

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

From the record it is clear that the petitioner, was initially appointed as C.T. grade teacher in the year 1980 and as the C.T. grade was declared as Dying Cadre in 1989, and it was provided that a teacher working under the C.T. grade if he complete 10 years of service in C.T. Grade, will automatically be given L.T. grade after completion of 10 years of service. If the contention of the petitioner to that effect is accepted then the petitioner can only be treated to be L.T. grade teacher in the year 1991 and admittedly the vacancy has occurred on 30.6.1992, therefore, the petitioner had not completed five years of continuous service either on ad-hoc or on substantive basis on the date of occurrence of vacancy. The promotion of the petitioner has never been approved by the competent authority. Admittedly, the promotion of the respondent No.3 was approved and he is working on the post of lecturer. From the perusal of Rule 9(2) of U.P. Secondary Education Service Commission Rules, 1983, it is clear that criteria for promotion is seniority subject to rejection of unfit. From the perusal of Section 32 of the U.P. Secondary Education Service Selection Board 1982, it goes to show that provision of Intermediate Education Act, 1921 and Regulations made thereunder in so far as they are not inconsistent with the provision of this act or Rules made thereunder shall continue to be in force for the purposes of Selection, appointment, promotion, dismissal, removal, termination or reduction in rank. It clearly goes to show that promotion on the post of lecturer is to be in consonance of Rule 9 of the Rules, which clearly states the criteria for promotion shall be seniority subject to rejection of unfit. Admittedly, the petitioner was not senior most, therefore, in my opinion, he is not entitled for promotion.

In view of the aforesaid fact, the writ petition is devoid of merits and is hereby dismissed.

No order as to costs.

DT. 8.10.2007

SKD


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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