HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) Court No.2 Case :- WRIT - A No. - 43794 of 2011 Petitioner :- Vijay Bahadur Singh Respondent :- State Of U.P. And Others Petitioner Counsel :- Awadh Narain Mishra,A.N. Rai Respondent Counsel :- C.S.C.,Vinod Kumar Rai Hon. Sudhir Agarwal, J.
1. This writ petition under Article 226 of the Constitution of India is directed against the order dated 10.6.2011, Annexure 14 to the writ petition, passed by the District Inspector of Schools, Saharanpur (hereinafter referred to as 'D.I.O.S.') approving officiating promotion and functioning of Sri Brahmpal Singh, respondent no.5 as Officiating Principal, Kisan Vidya Mandir Inter College, Pansar, Saharanpur (hereinafter referred to as "the College").
2. The factual matrix in brief giving rise to the present dispute is as under:
3. The College is recognized by the Board of High School and Intermediate, U.P. under the provisions of U.P. Intermediate Education Act 1921 (hereinafter referred to as "1921 Act"') and being in grant in aid list, payment of salary of staff of the College is governed by the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (for short "1971 Act"). Recruitment of teaching staff is also governed by U.P. Secondary Education Services Selection Board Act, 1982 (for short "1982 Act"). The post of Principal of the College fell vacant after retirement of Sri Udai Pal Singh on 30.6.2007 who was working on the said post. The petitioner was appointed as Assistant Teacher, L.T. Grade in 1989 and his promotion in Lecturer Grade was approved by Regional Committee by order dated 19.12.2006 which was communicated by the D.I.O.S. by order dated 23.12.2006 pursuant whereto the petitioner is discharging his duty on the post of Lecturer (History) since 23.12.2006. Respondent no.5 was appointed as Assistant Teacher (Physical Training) on 29.1.1991 and pursuant to the Government Order dated 25.10.2000 after completion of ten years service in L.T. Grade he was given pay scale of Lecturer w.e.f. 29.01.2001 and designation of Lecturer by order dated 08.07.2006 issued by D.I.O.S. The committee of management of the college passed a resolution on 23.06.2008 in anticipation of vacancy likely to occur due to retirement of Sri Udai Pal Singh on 30.06.2008 to make officiating arrangement on the post of Principal till regular selection is made by the Commission. In the seniority list one Sri Mukesh Kumar was at serial no. 1 who was Lecturer in Physics but neither he was trained nor had ten years experience of teaching in Intermediate colleges and, therefore, found lacking requisite qualification for the post of Principal. Next is respondent no.5. He has been held to possess requisite qualification and, therefore, proposed for promotion as officiating Principal. Pursuant to the said proposal by letter dated 28.06.2008 out going Principal Udai Pal Singh was requested to hand over charge on the date of retirement to Sri Brahm Pal Singh, respondent no.5. A copy of said proposal was also communicated to D.I.O.S. by management's letter dated 24.06.2008 and the same was approved by D.I.O.S. vide order dated 15.07.2008.
4. The petitioner submitted representations to the management as well as D.I.O.S. contending that respondent no.5 does not possess requisite qualification but having failed therein filed writ petition no. 42423 of 2008 challenging the said order dated 15.7.2008 of D.I.O.S. and 28.6.2008 of the management. During pendency of the above writ petition one Sushil Kumar a candidate selected by the Commission joined the College on 18.1.2010. However, after four months Sri Sushil Kumar was transferred to another College namely, Radhana Inter College and left the college in question on 5.5.2011 causing again a substantive vacancy on the said post.
5. The petitioner then submitted application dated 6.5.2011 to the management requesting to promote him to work as officiating Principal being the only qualified candidate but the management again permitted handing over charge of officiating Principal to respondent no.5 on 6.5.2011 whereagainst the petitioner submitted a representation to the D.I.O.S. contending that respondent no.5 is not liable officiating Principal but the D.I.O.S. has granted approval for officiating Principal to respondent no.5 by order dated 10.6.2011. It is against this order, the present writ petition has been filed.
6. Sri A.N. Rai learned counsel for the petitioner submitted that respondent no.5 was an Assistant Teacher (Physical Training) and there was no sanctioned post of Lecturer (Physical Training), hence he had no occasion at any point of time to impart education to students of Class XI and XII or IX to XII.
7. It is also contended that there are ten sanctioned posts of Lecturer in the College which do not include the post of Lecturer (Physical Training). The Government Order dated 25.10.2000 whereby benefit of higher scale or designation has been given to Assistant Teacher, (L.T. Grade) working for ten years in certain circumstances would not mean to presume qualification prescribed for filling the post of Principal by incumbents who are given the benefit of pay scale or designation of Lecturer, pursuant to Government Order dated 25.10.2000.
8. The petitioner claims to possess academic qualification of M.A., B.T.C. working in L.T. Grade since 1989 and as Lecturer since 23.12.2006 and as such he claims to possess requisite qualification. Hence, it is submitted that ad hoc promotion of respondent no.5 is illegal and contrary to the statute.
9. Respondent no.5 himself has filed counter affidavit through his Advocate, Sri Vinod Kumar Rai. The basic facts are not disputed. He has stated that petitioner was appointed as Assistant Teacher, C.T. Grade on 31.10.1977 and L.T. Grade on 1.7.1989. He has disputed and challenged promotion of petitioner as Lecturer (History) on the ground that the vacancy would be deemed to have occurred on 30.01.1988 when petitioner was not eligible at all. Regarding his own qualification, it is said, he is functioning as Assistant Teacher (LT Grade), (Physical Training Instructor) since 29.01.1991 and in view of the Government Order dated 25th October 2000 was given Lecturer's Grade with effect from 29th January 2001 vide D.I.O.S.'s dated 8.5.2001. He has also been given designation of Lecturer by order dated 8.7.2006 passed by D.I.O.S. He has ten years of teaching experience to class XI and XII and the then Principal has issued certificate to this effect on 21.07. 2008. He, however, has not disputed that selection and appointment of petitioner on the post of Assistant Teacher(LT Grade) on 1.7.1989. Educational qualification of respondent no.5 is M.A. (Sociology) and B.P.Ed. In order to claim ten years experience of imparting education to the students of class XI and XII he has placed reliance on letter dated 8.5.2001 issued by D.I.O.S. stating that since the date of his appointment as Assistant Teacher (LT Grade), he is imparting education as Physical Training Instructor to class XI and XII students and, therefore, possess requisite qualification for giving pay scale of Lecturer with effect from 5.8.1996 in the light of Government Order dated 28.2.1990 but in view of Government Orders dated 28.2.1990 and 18.11.1996, Lecturers Grade was allowed on completion of ten years service with effect from 29.1.2001.
10. A separate counter affidavit has been filed by respondent no.4 also in which it has justified officiating promotion of respondent no.5 for the same reasons as stated by respondent no.5. In Paragraph 17 it is said that respondent no.5 in any case is imparting education to Intermediate classes with effect from 29.1.2001 and, therefore, he has rightly been given charge of the post of officiating Principal. It is also said that the petitioner himself does not possess requisite qualification for promotion as officiating Principal since he was promoted as Lecturer only on 23.12.2006 and, therefore, is not entitled for any relief.
11. The petitioner has also filed rejoinder affidavit. Relying on a decision of this Court in Virendra Kumar Massey Vs State of U.P. and Others(Civil Misc. Writ Petition No.43419 of 2004) decided on 11.12.2007, he contended that working as Physical Training Instructor does amount to teaching experience so as to confer requisite qualification upon respondent no.5.
12. I have heard learned counsel for the parties and perused the record.
13. The only question up for consideration is whether respondent no.5 possesses requisite qualification for promotion so as to be promoted as officiating Principal of the College.
14. Eligibility for appointment to the post of principally provided in Appendix-A, Chapter-II of the Regulations which reads as under:
Sr.
No Name of the post Educational Training Experience Age Desirable qualification 1 2 3 4 5
1. Head of the Institution (1) Should be a trained M.A. or M.SC. or M.Com or M.Sc. (Ag) or any equivalent post-graduate or other degree which is conferred by any body as referred to in above mentioned para and should possess teaching experience from any training institution recognised by the department or any degree college affiliated with any University or institution or any degree college affiliated with such institution as referred to in above mentioned first para, or at least four years teaching experience in classes 9-12 in any institution recognised by Board or in any institution affiliated with the Boards of other States or alike institutions, whose examinations are recognised by Board, or should possess at least four years' experience as trained graduate Headmaster in any Junior High School recognised by Deptt:
Provided that he/she should not be less than thirty years of age or (2) Teaching experience of Ten years in intermediate classes of any recognized institution with first or second class post graduate degree, or third class post graduate degree with 15 years' teaching experience or (3) Post graduate diploma holder in Science, Provided that he has passed this diploma course in first or second class and has served meritoriously for 15 or 20 years respectively in any recognised institution after passing such diploma course.
Note - (1) At least second class post graduate degree and on special teaching experience of 10 years in intermediate classes of recognized institutions, training eligibility of Asstt. Teachers may be relaxed (As per the provisions in the Act).
(2) Teaching prior to training or after training or both, are included in teaching experience.
(3) Higher classes mean classes 9-12 and teaching experience of these classes is admissible for the post of principal in Intermediate College.
30 years Trained
15. The above qualification prescribed in the Regulations would show that the only issue need to be adjudicated in this case is whether respondent no.5 possesses requisite qualification and teaching experience to become eligible to function as officiating Principal of the College. This imply a further inquiry into respondent no.5's capacity to function as Lecturer for the reason that there is no sanctioned post of Lecturer (Physical Training) in the College but respondent no.5 has been treated to be Lecturer in the light of Government Order dated 25.10.2000 read with Government Orders dated 18.11.1996 and 28.2.1990.
16. Government Order dated 25.10.2000 states that in all those non Government aided colleges where Lecturers posts in the subject of Arts, Physical Training, Language, Music etc. has not been created(LT Grade) post shall be upgraded as Lecturer's post and those Teachers who possess requisite qualification for the post of Lecturer shall be appointed on such upgraded post. However, this benefit would be available only to such Teachers who have been imparting education in Class XI and XII for the last ten years, had completed satisfactory services and, have also been granted Lecturer's pay scale personally. Further the aforesaid benefit has been confined to only those Teachers who have completed requisite eligibility on the date of issuance of Government Order dated 25.10.2000. It also provides that seniority of such Teachers would count only from the date on which person so promoted as Lecturer joins a promoted post. His previous service shall be treated to be a service rendered as LT Grade Teacher and no benefit shall be accorded for the purpose of selection and promotional pay scale on Lecturer's post.
17. Even if what is said by respondent no.5 is treated to be correct, it is evident that on the date of issuance of Government Order dated 25.10.2000 he had not completed ten years of service even as Assistant Teacher(LT Grade) (P.T.I.) and, therefore, para 6 of Government Order dated 25.10.2000 makes him ineligible for claiming any benefit under the said Government Order . Para 6 reads as under :
^^6- mDr fo"k;ksa ds dsoy mUgha v/;kidksa dks izoDrk in uke vuqeU; gksxk] tks bl vkns'k ds tkjh gksus dh frfFk rd fu/kkZfjr vgZrk iwjh dj pqds gksaA** " The designation of Lecturer shall be admissible only to those Teachers of the said subjects who have acquired the prescribed eligibility/qualification by the date of issuance of this Order." (English Translation by Court)
18. Para 6 refers to the subjects mentioned in Government Order , namely Arts, Physical Training, Language, Craft etc. Respondent no.5 having been appointed on 29.1.1991, even in LT Grade had not completed ten years of service, hence question of imparting education for ten years to Class XI and XII on 25.10.2000 does not arise at all. This aspect, it appears, has not at all been considered by respondents No. 3 and 4 while extending giving benefit of the said Government Order to respondent no.5. Moreover respondent no.5 was Assistant Teacher (LT Grade) and, therefore, could not have imparted education to the students of Class XI and XII. The very first paragraph of Government Order dated 25.10.2000 shows that it is applicable to those teachers who are imparting education to Intermediate students for the last ten years and are already in Lecturer's pay scale only. They have been given the benefit of designation of Lecturer with certain conditions and restrictions mentioned therein. On the date of issuance of Government Order dated 25.10.2000 neither respondent no.5 was discharging duties as Teacher imparting education to Intermediate class students for ten years nor was working in Lecturer's pay scale. The very opening paragraph of Government Order dated 25.8.2000 reads as under :
^^mi;qZDr fo"k;d funs'kky; ds i=kad la[;k&¼1½@f'[email protected]@2000&2001] fnukad 4 flrEcj] 2000 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd v'kkldh; lgk;rk izkIr ,sls ek/;fed fo|ky;ksa ¼b.Vj dkystksa½] tks dyk] O;k;ke] Hkk"kk] f'kYi vkfn fo"k;ksa ls b.Vj Lrj rd ekU;rk izkIr gSa esa dk;Zjr mDr fo"k;ksa ds ,sls v/;kidksa] tks fujUrj 10 o"kZ ls b.Vj esa i "In context of letter No. (1)/Shi./8744/2000-2001, dated 4th September 2000, I am directed to say that His Excellency the Governor is pleased to accord the designation of 'Lecturer', subject to the following terms and restrictions, to those Teachers who have constantly been teaching Arts, Physical Training, Language, Craft etc. in Intermediate Classes for ten years in Non-Governmental aided Secondary Schools (Inter Colleges) recognized upto Intermediate level with such subjects and are drawing pay scale of Lecturer as such." (emphasis added) (English Translation by Court)
19. Respondent no.5 in para 10 of counter affidavit has admitted that he was appointed as LT Grade Teacher on 29.01.1991. On 25.10.2000 he was not getting Lecturer's grade at all. This Government Order thus did not and could not have been resorted to confer any benefit on respondent no.5 i.e. to grant Lecturer's Grade at all. Hence, the entire exercise on the part of respondent authorities in granting Lecturer's scale to respondent no.5 with reference to Government Order dated 25.10.2000 vide order dated 8.7.2006 was beyond the aforesaid Government Order. Even assuming that after order dated 08.07.2006 passed by D.I.O.S. Saharanpur permitting petitioner to work in Lecturer's pay scale prospectively with effect from 29.01.2001, but for the purpose of Appendix-A Chapter II of the Regulations, the actual functioning of respondent no.5 to impart education to Intermediate Classes while getting Lecturer's pay scale would commence from the date of the said order, namely, 08.07.2006, even then he did not and could not possess experience of ten years as provided in the aforesaid Regulation so as to become eligible for officiating Principal.
20. Evidently respondents No. 3 and 4 in the present case have acted wholly illegally. It appears that they have grossly misconstrued and misapplied Government Orders aforesaid, in order to confer certain benefit on respondent no.5 which in law were not applicable to him. The action of respondents No.3 and 4, therefore, is wholly unjust, illegal and travelled in the realm of malice in law, i.e., for collateral purpose, to grant undue and illegal advantage to respondent no.5. While passing the impugned order respondent no.3 ought to have considered and looked into all these aspects of the matter. Unfortunately it has committed a patent error in simply approving officiating promotion of respondent no.5 on the post of officiating Principal without looking into these aspects of the of the matter relating to eligibility, etc. of the incumbents concerned.
21. So far as dispute relating to eligibility of petitioner for officiating promotion on the post of Principal is concerned, since this aspect has not been considered by educational authorities, therefore, I do not propose to look into the same at this stage but leave this matter to be considered by the appropriate educational authorities.
22. In the result, writ petition is allowed and the impugned order is quashed. The matter is remanded for being reconsidered by the competent educational authority in the light of observations made above and in accordance with law. It shall pass appropriate reasoned order within three months from the date of production of the certified copy of this order before it after affording due opportunity of hearing to all concerned parties.
23. The petitioner shall be entitled to cost which I quantify to Rupees Ten Thousand against respondent no.3 and another same amount against respondent no.4.
Dated: 14.12.2011 Akn Hon'ble Sudhir Agarwal, J.
Allowed with costs.
For details see my order of date passed on separate sheets of paper (11 Sheets in number).
Dated:14.12.2011 Akn wp 43794/2011