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Smt. Sushma Shukla v. Joint Director Of Education & Others - WRIT - A No. 21878 of 2002 [2006] RD-AH 5324 (6 March 2006)


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Smt. Sushma Shukla  v. The Joint Director of Education & others

Hon'ble D.P. Singh, J.

Heard learned counsel for the parties.

This petition is directed against an order dated 15.3.2002 by which the respondent no.4 has been appointed as a lecturer in Sanskrit by promotion and also the consequential order dated 21.3.2002.

Surendra Nath Sen Balika Vidyalaya Inter College is a duly recognized and aided Intermediate institution. The petitioner was granted adhoc appointment as L.T. grade teacher on 5.10.1990 and subsequently her services were regularized on the said post w.e.f. 7th August, 1993 under section 33-B of the U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as the Act). The contesting respondent no.4 was appointed as Assistant teacher in the C.T. grade on 8th November 1982, however, in view of Section 33-D of the Act she claims deemed appointment in the L.T. grade with effect from 7.11.1992. A vacancy on the post of lecturer arose in the institution on 2.4.2000 on account of death of the incumbent Smt. Bandana Tripathi. This vacancy, admittedly, fell within the promotional quota. The respondent no.4 has been appointed and approved on the said post, which has led to the filing of the present petition.

Learned counsel for the petitioner has urged that the petitioner had been shown senior to the respondent no.4 throughout in the institution and even assuming her deemed appointment in the L.T. grade, if it relates back to 1992, she could not be promoted, as on the date of vacancy she did not have five years teaching experience as a regular teacher in that grade.

The procedure and eligibility for appointment by promotion is provided under the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998, which came into force from 8th August, 1998. Rule 14 sub-clause (2) provides that the criteria for promotion shall be seniority subject to the rejection of unfit. Sub-rule (1) stipulates that all incumbent for promotion who possess the qualifications prescribed for the post and have completed five years continuous regular service on the first day of the year of recruitment, even though they may not have applied for such promotion would be considered. Under sub-rule (3), the management is obliged to send a list of such qualified and eligible teachers with a copy of the seniority list and other documents to the Inspector who, after verification, has to forward it to the Joint director Education, who is further obliged to place the same before the Regional Selection Committee which would recommend the name of the incumbent to the management. It is undisputed that the petitioner was initially appointed on adhoc basis on 1st. of October, 1990 and was granted substantial appointment under section 33-B of the Act w.e.f. 7th. August, 1993. It is also undisputed that the contesting respondent was appointed in the C.T. grade on 8th November, 1982 and by legal fiction under section 33-B of the Act, she is deemed to be appointed in the L.T. grade on 7.11.1992 having put in more than ten years of continuous regular service in the C.T. grade. Inter se seniority between teachers in a institution is governed by regulation 3 of Chapter II. Clause (b) of rule 3 sub-clause (1) mandates that seniority of teachers in a grade is to be determined on the basis of their substantive appointment in that grade. Since the respondent no.4 was granted the benefit of section 33 D of the Act, her deemed appointment in the L.T. grade relates back to 7th November, 1992 while the petitioner was granted substantive appointment in the L.T. grade only on 7th August, 1993 by virtue of section 33 B. Thus, it is apparent that the respondent no.4 was senior to the petitioner in L.T. grade. Even though, the petitioner was shown senior to respondent no.4 in the earlier years but that would be immaterial in view of the fact that section 33 D was brought in the Statute book only w.e.f. 20th April, 1998.

The contention that the respondent no.4 did not have five years teaching experience in L.T. grade, cannot be sustained. Rule 14 provides that "those candidates, who have completed five years continuous regular service as such......" which plainly means five years of continuous service but it nowhere specifies that such continuous service should be in that grade or teaching experience in that grade. The note appended to sub-clause (1) makes the position further clear that the five years continuous service would be inclusive of even service rendered in another institution but it no where provides for five years teaching experience in that grade.

It is then urged that since there was no voluntary proposal by the management in favour of respondent no.4, she could not be considered. From the record it is clear that earlier the proposal was sent in her favour. Assuming it was forced, it would be immaterial even if the management had not sent a proposal in favour of respondent no.4 because sub-rule (1) itself says that the management is under obligation to send names of all teachers who hold requisite qualifications and have five years regular service. Under the scheme of the Rule, it would always be open for the selection committee to consider the cases of even those incumbents who qualify to be considered, irrespective of the recommendation of the management.

Lastly, it is urged that once the petitioner was granted the benefit of L.T. grade pay scale, she cannot be given the benefit of Section 33 D. It is not denied that the respondent no.4 was granted the pay scale in 1995, but not the post. Grant of pay scale and appointment on a post are two entirely different. No doubt the petitioner was given the pay scale of  L.T. grade teacher from 12th June, 1995 in view of the Government order dated 4th October, 1989 but that would not deprive her of the benefits extended for being deemed promoted to L.T. grade in view of Section 33 D. There is no such bar placed in the statute.

For the reasons given above, I do not find that this is a fit case for interference under Article 226 of the Constitution of India. Rejected.




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