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Dinesh Kumar Srivastava v. State Of U.P. And Others - WRIT - A No. 69086 of 2005 [2005] RD-AH 5604 (11 November 2005)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court NO. 18

Civil Misc.Writ petition no.69086 of 2005

Dinesh Kumar  Srivastava Vs. State of U.P. and others,

Hon'ble A.P.Sahi,J.

Heard Sri K.C.Shukla ,learned counsel for the petitioner and  learned standing counsel for the respondents no.1,2 and 3.

Petitioner Dinesh Kumar Srivastava claims promotion  on the post of the lecturer in Hindi, which has fallen vacant on 30.6.2002. The petitioner has been appointed by the U.P. Secondary Services Commission on 6.10.1997. The petitioner completed five years experience in the year 2002. It is evident that the petitioner was not qualified on the date of occurrence of vacancy.

However,  the controversy in the present writ petition  centres round the fact that the petitioner's claim for promotion was considered in the year 2003.The Committee of Management is stated to have  passed a resolution  on 1.7.2003 for promoting the petitioner as lecturer in Hindi in the Institution as the post fell within 50%  quota. The aforesaid resolution  was forwarded to the Distt. Inspector of Schools. who turned  it down vide order dated 7.11.2003. The petitioner  feeling aggrieved, approached this court by filing writ petition no. 7206 of 2004, which was allowed on 23.2.2004 and the order of the Distt. Inspector of Schools was set aside by recording a categorical finding that the qualification/ eligibility has to be seen in the year of recruitment which is  2003 and the first day  of recruitment  Ist July, 2003. The matter was remitted back  to the respondent for decision afresh. The Distt Inspector of Schools appears to have sent the matter to the Regional Level Committee headed by the Joint Director of Education and matter has been deliberated, whereupon  the impugned order dated 13.9.2005 has been passed by the Regional Level Committee headed by the Joint Director of Education, rejecting the claim of the petitioner on the same ground on which the Distt. Inspector of Schools  had earlier rejected the claim of the petitioner.

The Regional Level Committee headed by the Joint Director of Education interpreted the words year of recruitment to be the date on which the vacancy arose.  The aforesaid interpretation is clearly in the teeth of the judgment of this court rendered  inter parties on 23.2.2004. Even otherwise the interpretation  given by the respondent  is untenable  in the eyes of law, inasmuch as, the year in which the vacancy arose cannot always  be  the year of recruitment and a situation may arise as in the present case that the post, which falls  vacant cannot be claimed by any person in the Institution on account of being deficient  in qualification. It is quite possible  that a qualification may be  acquired by passage of time and as such, such persons may become entitled for claiming promotion as has  happended in the present case. There is no evidence atleast in the present controversy to indicate that there is some other claimant, whose claim was being defeated in order to extend the benefit to the petitioner. The interpretation  given would, therefore render the provisions of Rule 14 nugatory. In such situations, this Court has already interpretal  the year of recruitment, in the case of the petitioner specifically, by stating  that the first date of the year of  recruitment in the present case would be 1.7.2003.In these circumstances, it would not be open to the Regional Level Committee to issue contrary to Rule 14.

In view of the aforesaid reasons, this court  is of the considered opinion that the impugned order is contrary to law and is, therefore, liable to be set aside.

The order dated 13.9.2005 is quashed and the respondent Joint Director of Education is directed to consider the claim of the petitioner and pass   appropriate order treating the petitioner to have acquired the qualification  as on 2.7.2003 and to keep in mind  the inter parties judgment delivered  by this court  on 23.2.2004 as well.

Accordingly the writ petition succeeds and is allowed with no order as to costs.




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