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Subhash Chandra Msira v. State Of U.P. & Others - WRIT - A No. 28544 of 1991 [2004] RD-AH 916 (27 September 2004)


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Hon'ble Rakesh Tiwari, J

This writ petition is directed against an order dated 14.8.1991 passed by respondent no. 1 refusing  to accord financial approval to the petitioner's promotion to the post of Lecturer in Civics on ad hoc basis under Section 18 of the U.P.Secondary Education Services Commission Act on the basis that the post on which the petitioner has been promoted is meant for direct recruitment.  Learned counsel for the petitioner placed reliance on U.P. Secondary Education (Removal of Difficulties) (First) Order and urged that under paragraph 3 of the said Order, which was subsequently substituted by U.P. Secondary Education (Removal of Difficulties) (Third) Order, 1982, the petitioner is entitled to continue in service. This contention of the learned counsel for the petitioner has been vehemently opposed by the learned counsel for the respondents who contended that the promotion of the petitioner was not approved as it was in clear contravention of Regulations framed under the Act and as such neither First nor Third Order would be attracted. He further submitted that in case the approval for appointment of the petitioner by promotion had already been granted by the District Inspector of Schools and the petitioner had been working as such on the basis of such approval, only in that event,  First or Third Order would have come into play.

Learned counsel for the petitioner has no answer to this.

A perusal of record indicates that two posts of Lecturer were created in Nagar Palika Inter College, Auraiya, district Etawah, which is a recognized institution under  the U.P. Intermediate Education Act, 1951 (hereinafter referred to as ''the Act').  The institution also receives grants-in-aid from the State Government.  One Ajai Kumar Gupta was promoted as Lecturer in English and the other post of Lecturer in Civic was filled in by promotion of the petitioner in contravention of the provision of Regulation 5 contained in Chapter II of the Regulations framed under the Act.  For the purposes of this case, sub clause (2) of Regulation 5 is relevant, which is quoted as under :-

"5.(1)  ...

   (2) (a) Fifty  per cent of the total number of sanctioned posts in lecturer's grade or in the L.T. grade shall only be filled by promotion from amongst the teachers working in the institution in the L.T and the C.T grades respectively and promotions shall be made subject to availability and eligibility of such teachers for promotion.

(b) If more than fifty per sent of the total number of the sanctioned posts in the lecturer's grade or as the case may be, in the L.T. grade have already been filled by promotion, the persons already promoted shall not be reverted.

(c) In computing fifty per cent of the post under clause (a) fraction of less than one half shall be ignored while fraction of one half or more shall be reckoned as one.

Explanation (1)  The expression ''sanctioned post' means any post not being a post created temporarily for a specified period, which is created by an order of the authority competent to create such post and includes a post on which appointment has been made with the approval of the inspector."

A perusal of the impugned order shows that the District Inspector of Schools did not accord approval only on the ground that the post can be filled up by direct recruitment and the same cannot be filled up by promotion.  He also directed that the papers for filling up the post be forwarded by the Management. From the record of the case, it is apparent that the promotion of the petitioner was not made in accordance with the Regulations framed under the Act and it was inconsistent to Regulation 5(2), quoted above.  

A bare perusal of the impugned order reveals that the District Inspector of Schools not only refused to accord approval to the illegal appointment of the petitioner as Lecturer in Civics but also directed to send requisite papers for filling up the post in accordance with law by direct recruitment.  There is no illegality or infirmity in the impugned order.

That being the position, the interim order dated 1.10.1991 is vacated.  However, if the services of the petitioner have been regularized during the pendency of this writ petition, they will not be disturbed.  With this direction, the writ petition is disposed of without any order as to costs.




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