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AVNISH SINGH versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Avnish Singh v. State Of U.P. & Others - WRIT - A No. 31107 of 1999 [2007] RD-AH 7061 (18 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.38.

Civil Misc. Writ Petition No.  31107  of  1999.

Avnish Singh ...........Petitioner

Versus

The State of U.P. & others ...........Respondents.

:::::::::::

Hon'ble Ashok Bhushan, J.

Heard Sri B.N. Singh, learned counsel for the petitioner, Sri Vashistha Tiwari for respondents No.3 and 5, Sri A.K. Yadav for respondent No.6 and learned Standing Counsel.

By this writ petition, the petitioner has prayed for quashing the order a writ of certiorari quashing the order of appointment of respondent No.5 on the post of Lecturer (Hindi). A mandamus has also been sought commanding respondents No.2, 3 and 4 to promote the petitioner on the post of Lecturer (Hindi) with effect from 1st July, 1997.

Brief facts necessary for deciding the writ petition are; Inter College Dandia Mai is a recognised institution under the provisions of the U.P. Intermediate Education Act, 1921. After enforcement of the U.P. Secondary Education Services Selection Board Act, 1982 the institution came under the purview of the said 1921 Act. The petitioner was appointed as L.T. Grade Teacher with effect from 8th July, 1987. One Satpal Singh Yadav who was working as Lecturer (Hindi) retired on 30th June, 1996 causing a substantive vacancy on the post of Lecturer (Hindi). Petitioner's case in the writ petition is that the Committee of Management vide letter dated 7th February, 1996 allegedly sent a requisition for the post of Lecturer (Hindi). The petitioner's case further is that he was permitted to perform the duties of Lecturer (Hindi) after retirement of Satpal Singh Yadav. His further case is that Satpal Singh Yadav being a lecturer appointed by promotion, the post of Lecturer (Hindi), which fell vacant due to his retirement, was to be filled up by promotion of L.T. Grade Teacher. The U.P. Secondary Education Services Commission vide its letter dated 3rd January, 1998 sent a panel of selected candidate, i.e., the name of respondent No.5 for appointment as Lecturer (Hindi). In pursuance of the selection made by the Commission of respondent No.5, the Committee of Management issued appointment letter and respondent No.5 submitted his joining on 7th February, 1998. The petitioner after selection of respondent No.5 by the Commission on the post of Lecturer (Hindi) filed this writ petition praying for quashing the selection of respondent No.5.

Counter and rejoinder affidavits have been exchanges between the parties. The petitioner's case in the writ petition is that petitioner having worked as L.T. Grade Grade Teacher and having completed five years of service, he was entitled for promotion on the post of Lecturer (Hindi). The petitioner said to have made requests for promotion on the post of Lecturer (Hindi). Petitioner's case further is that Satpal Singh Yadav having been promoted as Lecturer (Hindi), after his retirement the post will fall under promotion quota. Further the case of the petitioner is that requisition alleged to be sent by the Committee of Management for the post of Lecturer (Hindi) was never sent and the selection of respondent No.5 is illegal. The Committee of Management, District Inspector of Schools as well as the selected candidate have filed their counter affidavits. The case of the respondents in the counter affidavit is that the post of Lecturer (Hindi) did not fall within the promotion quota there being four posts sanctioned and three posts, namely, Lecturer (Economics), Lecturer (Civics) and Lecturer (Hindi) having been filled through promotion. The case of the respondents is that after the post of Lecturer (Hindi) fell vacant, two posts having already been filed through promotion, the post in question was to be filled up by direct recruitment for which requisition was sent by the Management and Commission has rightly made selection of respondent No.5. It has further been submitted that the petitioner was not qualified on the day of occurrence of vacancy since he was simply B.A., B.T.C. on that date.  It has further been pleaded that requisition for the post of Lecturer (Hindi) was sent on 7th February, 1996 and thereafter selection has been made.

Sri B.N. Singh, learned counsel for the petitioner, in support of the writ petition raised following submissions:-

(i) The petitioner though not qualified on 1st July, 2006 he having passed postgraduate in December, 1996, he was fully qualified on the date when respondent No.5 was appointed, i.e., on 7th February, 1998. He submits that qualification has to be looked into on the date when post is filled up and on that date petitioner being qualified, he is fully eligible for promotion. Reliance has been placed on two judgments of this Court, namely, 2000(3) E.S.C. 2060; Harish Chand vs. Joint Director of Education and others and (2003)2 UPLBEC 1570; Nand Kishore vs. Joint Director of Education and others.

(ii) The post of Lecturer (Hindi) was within promotion quota since Satpal Singh Yadav who retired was holding the post as promoted lecturer.

(iii) The Committee of Management has not sent any requisition for the post of Lecturer (Hindi) nor the post was advertised by the Commission, hence the selection made by the Commission is illegal.

Sri Vashistha Tiwari, learned counsel appearing for respondents No.3 and 5, refuting the submissions of counsel for the petitioner, contended that the post which fell vacant was not under promotion quota and was to be directly filled up there being two lecturers already functioning through promotion. It is further contended that petitioner was not eligible on the date of occurrence of vacancy i.e., on first day of the year of recruitment he having passed postgraduate only in December, 1997. It is further contended that requisition was very much sent on 7th February, 1996 and thereafter the selection has been made of respondent No.5 by the Commission. Respondent No.5 belongs to Scheduled Caste category and has been selected and appointed. Learned counsel for respondents have placed reliance on the judgment of the Apex Court in (2006)3 S.C.C. 97; Puran Das Vs. Union of India and others and judgment of this Court in 2007(1) A.D.J. 667; Ram Prabhav Singh Vs. District Inspector of Schools, Deoria and others.

I have considered the submissions raised by counsel for the parties and perused the record.

The first question, which comes for consideration is as to whether the petitioner was eligible for promotion on the post of Lecturer (Hindi), which fell vacant on 30th June, 1996. The submission of counsel for the petitioner is that the eligibility for promotion is to be looked into on the date when the post is filled up.

Under Section 55 of the U.P. Secondary Education Services Selection Board Act, 1982 rules have been framed, namely, U.P. Secondary Education Services Commission Rules, 1995 which came into force with effect from 5th August, 1995. The post of Lecturer (Hindi) fell vacant on 30th June, 1996 due to retirement of Satpal Singh Yadav. The 1995 Rules were in operation at the relevant time, hence it is necessary to look into the provisions of the said Rules. Rule 14 of 1995 Rules provides procedure for recruitment by promotion. Rule 14(1) of 1995 Rules are extracted below:-

"14. Procedure for recruit by promotion.-(1) Where any vacancy is to be filed by promotion all Teachers working in Trained Graduate Grade of 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 the the Lecturers Grade or the Trained Graduate Grade, as the case may be, without having applied for the same."

The key words in Rule 14 are "teachers 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". Thus it has to be looked into what is the first date of recruitment to fix the eligibility of the candidates. The year of recruitment has been define in Section 2(l) of the U.P. Secondary Education Service Selection Board Act, 1982, which is extracted below:-

"2(l). 'Year of recruitment' means a period of twelve months commencing from first day of July of a calendar year"

The 1995 Rules provides procedure for intimation of vacancy. The question to be answered is as to what shall be the first day of the year with regard to vacancy which came into existence on 30th June, 1996. There is no dispute that year of recruitment is period of 12 months beginning from 1st July. For answering the above question Rule 11 of 1995 Rules, which provides for determination and notification of vacancy has to be looked into. Rule 11 of 1995 Rules is extracted below:-

"11. Determination and notification of vacancies.-(1) The Management shall determine the number of vacancies in accordance with sub-section (1) of Section 15 of the Act and notify them through the Inspector, to the Commission in the manner hereinafter provided.

(2) The statement of vacancies for each category of post to be filled in by direct recruitment or by promotion, including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent separately in quadruplicate in the proforma given in proforma 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 subject-wise in respect of the vacancies of trained graduates (LT) grade. The consolidate statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Commission by July 31 with a copy thereof to the Deputy Director."

Rule 11(2) of 1995 Rules provides that statement of vacancies of each category to be filled in by direct recruitment or by promotion including the vacancies that are likely to arise due to retirement on the last date of the year of recruitment shall be sent separately  by 15th July of the year of recruitment. Thus in the year of recruitment which is from 1st July to 30th June of the next year all vacancies falling has to be intimated by 15th July. The rule further envisages that vacancies, which are falling on the last date of the year of recruitment are also to be intimated. For example a vacancy, which is to fall vacant on 30th June, 1996, is required to be intimated by 15th July, 1995. The year of recruitment in the said case shall be from 1st July, 1995 to 30th June, 1996. Thus above Rule 22 sub-rule (2) clearly indicates that for a vacancy, which is falling on 30th June, the same is required to be intimated by 15th July of the previous year. Thus in the present case the vacancy which was falling vacant on 30th June, 1996 was required to be intimated by 15th July, 1995. In the present case the year of recruitment shall be from 1st July, 1995 to 30th June, 1996. Thus the qualification of the petitioner has to be looked into on the first day of the year of recruitment.

There is one more aspect which need to be looked into. The 1995 Rules were enforced with effect from 5th August, 1995, thus the existence of possessing qualification on 1st July, 1995 may not be appropriate and hence on 1st July, 1995 the rules holding the field has to be looked into. At the relevant time the rules, namely, U.P. Secondary Education Services Commission Rules, 1983 were holding the field. Rule 9(1) of the 1983 Rules provides procedure for appointment by promotion, which is extracted below:-

"9. Procedure for appointment by promotion.-(1) Where any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. Grade, who possess the minimum qualification and have put in at least 5 years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion to be Lecturer or L.T. Grade, as the case may be, without their having applied for the same."

Thus in the case in hand the eligibility for promotion on the post of Lecturer (Hindi) was to be looked into on 1st of July, 1996, the date when the vacancy was there for promotion. The petitioner having not postgraduate in Hindi on the said date, he cannot be said to be eligible for promotion.

The next submission of the petitioner is that no requisition was sent by the Management to the District Inspector of Schools. The petitioner himself has annexed letter dated 7th February, 1996 as Annexure-1 to the writ petition, which is a letter sent by the Management to the District Inspector of Schools sending requisition, which is said to be received by the office of District Inspector of Schools on 20th February, 1996. The Committee of Management in its counter affidavit (paragraph 3(ii)) as well as in paragraph 14 has categorically stated that requisition was sent by the Committee of Management for the post of Lecturer (Hindi). The District Inspector of Schools in his counter affidavit has also accepted the sending of requisition. Thus the case of the petitioner that no requisition was sent for the post of Lecturer (Hindi) cannot be accepted.

Learned counsel for the petitioner has also emphasised that selection of respondent No.5 was illegal since the vacancy in question was never advertised. In the entire writ petition there is no pleading that vacancy of Lecturer (Hindi) was not advertised by the Commission. Although learned counsel for the petitioner sought to argue that respondent No.5 was selected in pursuance of some notification of 1995 or 1996 but there are no material in support of the said pleading. The Commission has recommended the name of respondent No.5 for appointment and the letter of the Secretary of the Commission dated 3.2.1998 has been filed as Annexure-13 to the writ petition. The name of the respondent No.5 was sent in accordance with Rule 12(6) of 1995 Rules. The panel having been sent in accordance with 1995 Rules it shall be presumed that all procedure for selection duly followed. Although the counsel for the petitioner contended that post of Lecturer (Hindi), which fell vacant on 30th June, 1996 was under promotion quota, but it is not necessary to decide this question in view of the fact that petitioner was not qualified and respondent No.5 was duly selected.

Now comes the judgments relied by counsel for the petitioner. Learned counsel for the petitioner has placed much reliance on two judgments, namely, in Harish Chand's case (supra) and in Nand Kishore's case (supra). In Harish Chand's case (supra) the vacancy occurred on 30th June, 1991 due to retirement of incumbent. The 1995 Rules were enforced by which criteria from date of occurrence of vacancy was changed by Rule 9 as first day of the year of recruitment. The learned Single Judge in the said case held that it is open for the Legislature to change the criteria of eligibility. The learned Single Judge in the said case, however, held that right of a L.T. Grade teacher to be considered for promotion to lecturer grade under the Act and the Rules arises only after a vacancy of permanent nature is notified under Section 10 of the Act to be filled up by promotion and until it is so done the right of promotion in relation to the vacancy remains an indeterminate right. Following was laid down in paragraph 10 of the said judgment:-

"10. Conclusion deducible from the above discussion may be summed up as under:-

..........

..........

In Nand Kishore's case (supra), the learned Single Judge took the view that the date on which proposal for promotion was being considered is the relevant year of recruitment. This Court had occasion to considered the relevant date of eligibility for considering promotion on the post lecturer under the 1982 Act and the rules framed thereunder in 2004 A.L.J. 3711; Subhash Prasad vs. Regional Selection Committee, Gorakhpur and others. In the case before the Division Bench the vacancy came into existence on 1st July 1997, the Management send the resolution of promotion on 24.5.1998 in favour of Subhash Prasad. It was contended before the Division Bench that though appellant was not eligible on 1.7.1997 but was eligible on the date of consideration of promotion by Management, i.e., 24.5.1998. The Division Bench repelled the contention and held that first day of the year of recruitment has to be taken on 1.7.1997. Following was laid down in paragraph 27 of the said judgment:-

In the case reported in (2005)2 UPLBEC 1713; Brahm Dutt Tripathi vs. State of U.P. and others, I had occasion to consider the same question and following the division Bench in Subhash Prasad's case (supra) following was laid down in paragraph 27:-

"27. In view of the foregoing discussions, it is clear that petitioner was not eligible for promotion either on the date of occurrence of vacancy or on the first day of year of recruitment, hence he is not entitled for any direction to the respondent to consider the petitioner for promotion on the post of Lecturer (Commerce) which fell vacant on 30.6.1995."

In view of clear pronouncement of Division Bench in Subhash Prasad's case (supra), the view taken in Nand Kishore's case (supra) and Harish Chand's case (supra) cannot be preferred. Following the Division Bench, the relevant date for determining the eligibility of the petitioner for promotion is the date of occurrence of vacancy/first day of the year of recruitment. On both these dates, the petitioner did not possess the postgraduate degree and was not qualified. The judgment relied by counsel for the respondents in Ram Prabhav's case (supra) also considered the same question and following the Division Bench judgment in Subhash Prasad's case (supra) has held that eligibility has to be looked into on the date of occurrence of vacancy. The judgment of the Apex Court in Pooran Dass's case (supra) also do support the contention of respondents' counsel.

In view of the foregoing discussions, none of the relief claimed by the petitioner can be granted. The writ petition lacks merit and is dismissed.

Date: 18.4.2007.

Rakesh


Copyright

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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