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Sher Singh v. State Of U.P. And Others - WRIT - A No. 35277 of 2004  RD-AH 7948 (27 April 2007)
Court No. 39
Civil Misc. Writ Petition No.35277 of 2004
State of U.P. and others
Hon'ble V.K. Shukla, J.
Petitioner Sher Singh has approached this court questioning the validity of the promotion order dated 16.8.2004 passed by the Regional Joint Director of education, Meerut Region, Meerut according promotion to Dal Chand as Lecturer in History.
Brief background of the case is that in the district of Bulandshahar there is recognized institution known as Inter College Sahkari Nagar, District Bulandshahar. Said institution is imparting education upto Intermediate level. Affairs of the said institution is run and managed by the Managing Committee of the institution in consonance with the provision as contained in Scheme of Administration, framed in exercise of power vested under Section 16-A of U.P. Intermediate Education Act, 1921. Said institution is in grant-in-aid list of the State Government and provisions of U.P. Act No. 24 of 1971 are fully applicable to the said institution. Selection and appointment including promotion on the post of Principal, Lecturer and L.T. Grade is to be made strictly in consonance with the provision as contained in U.P. Secondary Education Service Selection Board, 1982 and U.P. Secondary Education Service Selection Board Rules, 1998 framed by the State Government in exercise of power vested under Section 35 of U.P. act No. 5 of 1982. In the institution concerned, post of History Lecturer fell vacant on account of attaining the age of superannuation of Raghuraj Singh on 30.6.2003. Petitioner has contended that by virtue of being senior most L.T. Grade teacher, and as said post was falling within promotional quota of 50% as such he requested the management for according him promotion on the post of Lecturer in History. Petitioner has contended that Managing Committee of the institution did not consider the claim of petitioner and to the contrary recommended the name of Dal Chand for being promoted on the post of Lecturer in History and thereafter, Regional Joint Director of Education, Meerut Region, Meerut accorded promotion to Dal Chand by treating the said post as reserved for Schedule Caste category candidate. At this juncture present writ petition has been filed.
Counter affidavit has been filed on behalf of the D.I.O.S. and therein plea has been taken that petitioner was not qualified to be appointed on the post of Lecturer on 30.6.2003, as on the said date, his result of Master's Degree in the concerned subject of History had not been declared. It has also been sought to be contended that post in question was meant for Scheduled Caste category candidate and as such petitioner was outside the zone of consideration.
Counter affidavit has been filed on behalf of the contesting respondents Dal Chand and it has been sought to be contended that post in question was reserved for Schedule Caste Category candidate and as post in question fell within the zone of consideration of promotion, as such rightly he has been accorded promotion. It has also been contended that appointment letter had been issued to him in respect of his promotion and as such in the present case seniority has no role to play.
Counter affidavit has been filed on behalf of the Managing Committee and therein stand has been sought to be taken that one post out of five posts of Lecturers sanctioned in the institution, has already been notified to U.P. Secondary Education Service Selection Board and as such any other appointment of Schedule Caste category candidate would clearly exceed 21% quota prescribed, as such promotion accorded is illegal.
Supplementary affidavit had also been sought to be filed appending copy of the order dated 16.8.2004.
Rejoinder affidavit has been filed and therein it has been sought to be reiterated that petitioner has been meted with arbitrary treatment and further emphasis has also been made that out of five posts, two posts cannot be reserved for Scheduled Caste Category candidate.
After pleadings mentioned above, have been exchanged, present writ petition is being taken up for final hearing and disposal with the consent of the parties.
On the matter being taken up, Sri Mohan Yadav, learned Standing Counsel informed the court that in the present case both petitioner as well as Dal Chand did not fulfill requisite qualification and they were not at all eligible to be considered for promotion, as on the first day of year of the recruitment, their result of the Master's degree in History had not at all been declared and the said result had been declared on 1.8.2003 i.e. after first day of the year of the recruitment, consequently both are liable to be declared ineligible.
Sri Ravi Prasad, Advocate as well as Sri Ratnesh Pandey both counsel representing petitioner as well as Dal Chand respectively conceded to this fact and accepted that on the first day of year of the recruitment result of Masters' Degree in the subject of History had not been declared qua both and they were awaiting their result. Said result even as per them had been declared on 1.8.2003.
In order to appreciate respective argument, Rule 14 of 1998 Rules is being extracted below.
14. Procedure for recruitment by promotion:- (1) Where any vacancy is to be filled by promotion all teaches working in trained graduates grade or certificate of training grade, if any, who possess the qualification 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 recognized 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 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)With 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 authorization under its resolution issue the appointment order in the proforma given in Appendix ''F' to such candidate.
On the touchstone of the provisions quoted above, qualification has to be seen in context of first day of the year of recruitment. First day of the year of the recruitment in the fact of present case would be 1.7.2003. Neither petitioner nor contesting respondent Dal Chand on the said date i.e. first day of the year of the recruitment i.e.1.7.2003 possessed Masters' Degree in the subject of History and reason for not possessing this eligibility criteria was that on the first day of the year of recruitment their result of Masters' Examination had not been declared and result came to be declared on 1.8.2003. Once this is the position that neither petitioner nor contesting respondents Dal Chand were eligible and entitled to be considered for promotion, then according promotion to Dal chand, is clearly unsustainable.
Consequently promotion accorded to Dal Chand on the post of Lecturer in History vide order dated 16.8.2004 passed by the Joint Director of Education, Meerut Region, Meerut is quashed and set aside.
With these observations, writ petition is allowed.
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