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JABAR SINGH versus J.D.E., SAHARANPUR & OTHERS

High Court of Judicature at Allahabad

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Jabar Singh v. J.D.E., Saharanpur & Others - WRIT - A No. 13641 of 2001 [2007] RD-AH 7894 (27 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved on 04.04.2007

Delivered on 27.04.2007

Civil Misc. Writ Petition No. 13641 of 2001

Jabar Singh Vs. Joint Director of Education, Saharanpur Region,

Saharanpur and others

&

Civil Misc. Writ Petition No. 29957 of 2001

Jabar Singh Vs. Joint Director of Education, Saharanpur and others

Hon'ble Sudhir Agarwal, J.

Both these writ petitions filed by the same petitioner, Jabar Singh are connected involving similar questions of fact and law and therefore, as agreed by learned counsel for the parties have been heard together and are being decided by this common judgment.

Writ Petition No. 13641 of 2001 has been filed by the petitioner seeking writ of mandamus commanding respondent no. 2 to forward his name for promotion as Lecturer and directing the respondent no. 1 to consider him in view of Rule 14 as interpreted by this Court in Harish Chand Vs. Joint Director of Education and others, 2000(3) ESC 2060 (All.) and a further mandamus has been sought restraining respondents from interfering in his functioning as Lecturer (English) in the institution in question.

The Writ Petition No. 29957 of 2001 has been filed by the petitioner subsequently challenging the order dated 16.6.2001 passed by District Inspector of Schools, Saharanpur (hereinafter referred to as the ''DIOS') declining approval to the petitioner for promotion to the post of Lecturer on the ground that he is not eligible for the said promotion. The petitioner has also sought a writ of certiorari for quashing the resolution dated 9.7.2001 passed by the Committee of Management, Janta Inter College, Jhabiran, District Saharapur (hereinafter referred to as the "College") deciding to promote respondent no. 6 on the post of Lecturer (Hindi). He has also sought a mandamus commanding the respondents not to interfere in his functioning as Lecturer (English) in view of rule 14 and judgment of this Court in Harish Chand (Supra).

The facts in brief giving rise to the present dispute are that the College is a recognised institution governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act") read with U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act"). The petitioner was appointed as Assistant Teacher, L.T. Grade on 21.8.1978 and was also confirmed. A post of Lecturer (English) fell vacant on 2.7.1998 due to transfer of the holder of the post namely Sri Vinod Kumar to another institution i.e. S.D. Inter College, Saharanpur. The qualification provided under the statute for appointment to the post of Lecturer (English) is M.A. (English) and at that time admittedly the petitioner did not posses the said qualification. However, he passed M.A. (English) from Meerut University in the year 2000 vide result dated 22.12.2000 (Annexure-1). The post of Lecturer (English) is liable to be filled in by promotion and no attempt was made by the management to fill in the same despite that it was vacant since 2.7.1998. Consequently principal of the College sent a letter dated 9.2.2001 informing Joint Director of Education, Saharapur that no appointment has been made on the aforesaid post and vacancy is lying since 1998, therefore, steps for promotion of petitioner on the said post are being taken since he is the senior most teacher and possess requisite qualification of M.A. (English). The committee of management also considered the matter in its meeting dated 26.2.2001 and passed resolution promoting petitioner as Lecturer (English). However, when the papers were sent to DIOS, he enquired by letter dated 27.3.2001 as to whether the petitioner was qualified on the date of occurrence of vacancy for promotion to the aforesaid post and also enquired about the status of promotion quota in the institution. The management vide letter dated 28.4.2001 informed the DIOS that there are six sanctioned posts of Lecturer in the College out of which two were filled in by direct recruitment, one by upgradation and two by promotion. Since quota of promotion is 50% and therefore three posts are liable to be filled in by promotion hence petitioner has been sought to be promoted on the post of Lecturer (English). It also informed that presently there is no other teacher eligible for promotion to the post of Lecturer (English) and though the vacancy occurred on 2.7.1998 but the petitioner attained qualification in 2000 and presently he is qualified for promotion to the said post. The DIOS thereafter vide order dated 16.6.2001 impugned in the later writ petition declared petitioner ineligible for promotion and returned his papers. Thereafter another vacancy on the post of Lecturer (Hindi) fell vacant on 30.6.2001 and the respondent no. 6 being Assistant Teacher, L.T. Grade, qualified for promotion to the said post, made representation to consider his case for promotion to the post of Lecturer and thereupon the management considered his matter and resolved to promote him on the post of Lecturer (Hindi) vide resolution dated 9.7.2001. Aggrieved by the aforesaid order of DIOS dated 16.6.2001 and the management's resolution dated 9.7.2001 whereby the promotion quota has been filled in by promotion of respondent no. 6, the petitioner has approached this Court claiming that he was entitled and rightly promoted to the post of Lecturer (English) and therefore, the impugned orders are liable to be set aside.

The respondent no. 6 has filed its counter affidavit stating that the petitioner was unqualified for appointment to the post of Lecturer (English) and therefore has rightly been declined approval by DIOS.

The question up for consideration in these writ petitions is whether qualification for promotion liable to be considered under Rule 14 of U.P. Secondary Education Service Commission Rules, 1995 (hereinafter referred to as "1995 Rules") or U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as "1998 Rules") should be on the date of occurrence of vacancy or when the management decided to make recruitment/appointment on the said post.

Sri S.P. Singh, learned counsel for the petitioner vehemently contended that the qualification of the candidate shall be considered on the date when the management decided to fill in vacancy and placed reliance on the judgment of this Court in Harish Chand (Supra), Dr. Ashok Kumar Kalia Vs. Chancellor, Lucknow University and others, 1995 AWC 832 and Chandra Bhushan Dwivedi (Dr.) Vs. Rajyapal, Uttar Pradesh, Lucknow and others, 2005 (1) UPLBEC 77 (DB).

On the contrary Sri K. Ajit, learned counsel appearing for respondent no. 6 contended that from a bare reading of Rule 14 read with Rule 11 it is evident that the year of recruitment means the year in which vacancy occurred and the qualification of the candidate has to be considered on the said date and placed reliance on Ram Saran Singh Vs. Committee of Management, Adarsh Gramin Inter College, Bijnor and others, 2002 (3) UPLBEC 2121, Sunil Kumar Mishra Vs. Regional Selection Committee and others, 2004 (2) UPLBEC 1520, Subhash Prasad Vs. Regional Selection Committee and others, 2004 AWC 4755 (DB), Brahm Dutt Tripathi Vs. State of U.P. and others, 2005 (2) UPLBEC 1713 and Gupteswar Tiwari Vs. Joint Director of Education, Azamgarh and others, 2005 (4) AWC 3893.

Having considered the rival submissions I find that Rule 14 of 1995 Rules as well as 1998 Rules both have already been considered and the issue is no more res integra, therefore, it would not be necessary to burden this judgment with lengthy arguments advanced by learned counsel of the parties in support of rival submissions as to whether the qualification has to be considered on the date of occurrence of the vacancy or when the management decided to fill in the vacancy. In case the Court finds that the vacancy ought to have been filled as soon as it occurred, the Rules as applicable on 2.7.1998 when the vacancy occurred obviously the matter would be governed by 1995 Rules.

Section 2(L) of 1982 Act defines year of recruitment as under:-

"Years of recruitment means a period of twelve months commending from first day of calendar year."

Further Section 12 of 1982 Act relates to procedure for promotion and reads as under:-

"12. Procedure of selection by promotion-(1) For each region, there shall be a Selection Committee, for making selection of candidates for promotion to the post of a teacher, comprising-

(i) Regional Joint Director of Education   ... Chairman

(ii) Senior-most Principal of Government

Inter College in the region ...  Member

(iii) Concerned District Inspector of School ...

Member Secretary

(2) The procedure of selection of candidates for promotion to the post of a teacher shall be such as may be prescribed."

Rules 10, 11 and 14 of 1995 Rules provides for source of recruitment, determination and notification of vacancies and procedure for recruitment by promotion and reads as under:-

"10. Source of recruitment-Recruitment to various categories of teachers shall be made from the following source:

(a). Principal of an Intermediate College or Head Master of a High School By direct recruitment.

(b) Teachers of Lecturers grade. (i) 50 per cent by direct recruitment. (ii) 50 per cent by promotion from amongst the substantively appointed teachers of the trained graduates (LT) grade.

(c) Teachers of trained graduates (LT grade) (i) 50 per cent by direct recruitment. (ii) 50 per cent by promotion from amongst the substantively appointed teachers of Certificate of Teaching (CT) grade:

Provided that if any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment.

Provided further that if in calculating respective percentages of posts under this Rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the inaction of the posts to be filled by promotion shall be increased to make it one post."

"11. Determination and notification of vacancies-(1) The Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 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 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 lecturers grade, and group-wise in respect of vacancies of trained graduates (L.T.) grade. The consolidated 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.

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 Commission 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, 1995 the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by June 15, 1995 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Commission by June 30, 1995.

(3) If, after the vacancies have been notified under sub-rule (2), any vacancy in the post of a teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him and it to the Commission.

(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with sub-section (1) of Section 15 of the Act and notify them to the Commission in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Commission under this sub-rule shall be deemed to be notified by the Management of such institution."

"14. Procedure for recruitment by promotion- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade or Certificate of Teaching (C.T.) grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous 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 (L.T.) grade, as the case may be, without their having applied for the same.

(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 Commission through 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 the record of his office and forward the list to the Commission.

(5) The Commission 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 Commission shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Deputy Director.

(6) Within ten days of the receipt of the panel from the Commission under sub-rule (5), the Inspector shall send the name of selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the pro forma given in Appendix ''F' to such candidate. "

The aforesaid Rules of 1995 came up for consideration before a Division Bench of this Court in Subhash Prasad (Supra) and it was held as under:-

"We are clearly of the opinion that taking into consideration the scheme underlying the U.P. Secondary Education Services Selection Board Act, 1982 and the Rules of 1995 framed thereunder, it was obligatory to compute the five years' continuous service ending on the first day of the year of recruitment which had to be taken to be that year of recruitment in which the vacancy was ascertained for being forwarded to the Commission through the Inspector ensuring that it reached the Inspector by 15th of July. The zone of consideration or the field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the whim of the Committee of Management or get enlarged on account of its failure to either ascertain the vacancy or send it to the Inspector in the manner prescribed or delay the action contemplated under Rule 14(3) of the Rules of 1995."

It has been followed in Brahm Dutt Tripathi (Supra), Gupteswar Tiwari (Supra) and Sunil Kumar Mishra (Supra). In view of the law laid down in the above, this Court is bound by the Division Bench judgment and therefore it cannot be said that the qualification as on the date when the vacancy sought to be filled in by management is to be taken but it is to be governed by the state of affairs as prevailed on the date of occurrence of vacancy.

It is also worthy to mention that 1995 Rules were substituted by a new set of Rules on 13.7.1998 i.e. 1998 rules and there also Rule 14 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.

(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 the 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 selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the pro forma given in Appendix ''F' to such candidate. "

1998 Rules also came up for consideration before this Court in Ram Sharan Singh (Supra) and after considering Rule 14 of 1998 Rules this Court held as under:-

"The necessary implication is that at the time the list is sent under Rule 14(3) the 1st day of the year of recruitment is already over. Year of recruitment in the context of Rule 14 is not with reference to the year in which the selection is actually made. The cases cited by the learned counsel for the respondent do not advance the interpretation placed by him in the context of the language of Rule 14."

The judgments cited by learned counsel for the petitioner are in different context pertaining to different sets of Rules and therefore, have no application and do not support the contention advanced by him.

In view of the aforesaid discussion, it cannot be said that the petitioner was eligible for promotion to the post of Lecturer (English) on the date when the vacancy occurred and therefore, the DIOS rightly held that he could not have been promoted on the vacancy which occurred on 2.7.1998. The writ petitions, therefore, lack merit and are accordingly dismissed. No order as to costs.

Dt/-27.04.2007

Avy


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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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