HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 28.5.2015 Judgment delivered on 28.7.2015 Case :- WRIT - A No. - 72555 of 2005 Petitioner :- Sri Prakash Tiwari Respondent :- D.I.O.S., Kushinagar And Others Counsel for Petitioner :- Chandra Narayan Tripathi Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
1.Heard Shri M.C. Chaturvedi, Senior Advocate assisted by Shri Indrasen Singh Tomar for the petitioner and learned Standing Counsel for State respondents. Shri R.C. Dwivedi appears for respondent no.3.
2.By means of this writ petition, the petitioner has prayed for direction in the nature of mandamus commanding the respondents to give promotion to him in L.T. Grade and pay scale from relevant time and period i.e. 1995 and pay his balance amount of arrears from the same year.
3. Brief facts giving rise to the present case are that there is an Intermediate College in the name of "Ashoka Vidyapith Inter College Naktaha-Mishra, District Kushinagar at Padrauna" with attached Primary School (hereinafter referred as institution). The Primary School is an integral part of the institution. Both the Intermediate College and the Primary Section/School are run in the same premises by the same Committee of Management. There is no Head Master in the Primary School. The grant-in-aid is reimbursed by the State Government for the whole institution. The institution is thus governed by the provisions of U.P. Intermediate Education Act, 1921 and U.P. Act No.24 of 1971.
4. The petitioner was initially appointed as Assistant Teacher in Primary Section of the institution on 15.12.1986. He was teaching in the said institution peacefully and honestly as trained teacher with basic salary Rs.1280/-. The then District Inspector of Schools, Deoria issued a letter for exemption of training for five teachers of the institution and granted financial approval from 01.9.1994. After issuance of the said letter, the Committee of Management of the institution recommended the name of one teacher namely Shri Prabhu Nath Rai of the same primary section of the institution for promotion on the vacant post of L.T. Grade instead of petitioner, who was qualified and getting more salary than all others. The petitioner approached the then District Inspector of Schools through his representation dated 1.3.1996. The petitioner applied for and was issued appointment certificate on 8.3.1997. After considering the representation of the petitioner the District Inspector of Schools, Kushinagar asked the Manager/Principal of the College to provide details of total posts, list of teachers according to their salary, list of working teachers under 50% promotion quota, vacant posts etc. but neither the Committee of Management nor Principal provided the required details. Shri Prabhu Nath Rai filed a Writ Petition No.34682 of 1995 in which an interim order was passed on 4.12.1995. In compliance of the said interim order, the District Inspector of Schools directed the Committee of Management of the institution to produce the records but the Committee of Management did not produce any papers. On 30.1.1997 the District Inspector of Schools rejected the proposal of promotion of Shri Prabhu Nath Rai, which was approved by the then District Inspector of Schools on 10.10.1995. Again on 14.12.1999 the District Inspector of Schools, Kushinagar approved the appointment of Shri Prabhu Nath Rai, who had simply passed Intermediate and was exempted from training as L.T. Grade teacher. The petitioner is post graduate in Political Science and trained graduate (B.Ed). Aggrieved with the decision of the District Inspector of Schools, the petitioner approached to the Joint Director of Education, VII Region, Gorakhpur through representation dated 29.1.1997 and reminder dated 12.1.2000 but no action had been taken on the representation. In the month of July, 2005 the petitioner came to know that the Committee of Management of the College was further taking steps to promote some of the teachers from Primary Section to Assistant Teacher (L.T. Grade). The petitioner moved an application before the District Inspector of Schools, Kushinagar on 7th July, 2005 and requested him to see the matter of petitioner's promotion and thereafter sent a copy of the same application to the Joint Director of Education, VIIth Region, Gorakhpur on 14.7.2005.
5. Learned counsel for the petitioner submits that the petitioner being Master of Arts in Political Science and trained Graduate (B.Ed) was appointed by the Committee of Management of the institution as trained Assistant Teacher in its Primary Section on 15.12.1986. The respondent no.1 granted approval to the petitioner's appointment on 5.11.1993 in trained grade since October, 1989 with the condition that the trained pay scale shall only be given after getting the budget from the Directorate. In the Primary Section of the institution, there were five untrained teachers namely Prabhu Nath Rai, Habibullah, Vijay Bahadur Rai, Smt. Nirmal Chaturvedi and Brahma Prasad, though they were appointed prior to the petitioner but were untrained. These teachers were granted exemption from B.T.C. Training with effect from 01.9.1994 by the Deputy Director of Education, Gorakhpur Region, Gorakhpur on 01.3.1995. After exemption from BTC training, these five teachers were granted approval in trained grade by the respondent no.1 on 21.3.1995 with effect from 1.9.1994.
6. Learned counsel for the petitioner further submits that the petitioner is much senior Assistant Teacher in trained grade to the aforesaid five teachers, who were exempted from BTC training vide order of the Deputy Director of Education, Gorakhpur dated 2.3.1995 and accorded approval by the order of respondent no.1 dated 21.3.1995 with effect from 1.9.1994. The petitioner was trained teacher since the time of his appointment and was accorded approval in trained grade by order dated 5.11.1993 with effect from October, 1989. He was granted trained pay scale of Rs.1280/- (Basic Pay) much prior to the aforesaid five Assistant Teachers, who were only getting basic salary in trained grade of Rs.1130/-.
7. Learned counsel for the petitioner submits that the petitioner's appointment as Assistant Teacher in Primary Section of the institution became substantive since October, 1989 while the services of aforesaid five persons became substantive only from 1.9.1994. Further, as is evident from the salary bill of October, 1995, the petitioner was getting higher basic salary in trained grade amounting to Rs.1280/- than the aforesaid five persons, who were only getting Rs.1130/- as basic salary in trained grade. Ignoring the seniority of the petitioner as Assistant Teacher in the institution, the Committee of Management passed resolution promoting Prabhu Nath Rai, who is junior to the petitioner, on the post of Assistant Teacher in L.T. Grade in the institution and forwarded the relevant papers for approval before the respondent no.1 along with covering letter dated 8.9.1995. The respondent no.1 vide his letter dated 10.10.1995 rejected the proposal of promotion of Prabhu Nath Rai on the ground that there is no provision of making such promotion. Thereafter, Prabhu Nath Rai filed a Writ Petition No.34682 of 1995 in which an interim order was passed on 4.12.1995. Pursuant to the interim order dated 4.12.1995, the District Inspector of Schools did not accord approval to the promotion of Shri Prabhu Nath Rai on 22.1.1997 but this order was reviewed by the respondent no.1 himself. Again on the letter of the Principal of the institution, the respondent no.1 vide his order dated 25.7.1998 again disapproved his promotion. The aforesaid Writ Petition No.34682 of 1995 was allowed on 27.12.1998 and pursuant to the judgment of this Court dated 27.12.1998 the respondent no.1 accorded approval to the promotion of Prabhu Nath Rai on 14.12.1999 without providing opportunity of hearing to the petitioner.
8. Learned counsel for the petitioner submits that the respondent no.1 had passed the order dated 14.12.1999 without taking into account the required period of teaching experience of Prabhu Nath Rai, whose appointment became substantive only from 1.9.1994. For promotion to the LT Grade, the candidate must have at least five years experience of teaching in Primary Section in substantive capacity. The petitioner, having more than the required experience of teaching in Primary Section and getting higher trained grade, was entitled to be promoted in LT grade in the institution. Thereafter, in the month of July, 2005, the Committee of Management again promoted Smt. Nirmal Chaturvedi in LT grade in the institution ignoring the eligibility of the petitioner. Her promotion was made effective from back date since 1.9.1995 in collusion with respondent no.1 for making her Principal of the institution as she was relative of the Manager of the institution. During the pendency of the aforesaid writ petition, other Junior Assistant Teachers of Primary Section of the institution namely (1) Smt. Nirmal Chaturvedi, (2) Sri Prahari Rai, (3) Sri O.P. Tiwari, (4) Sri Harendra Prasad Kushwaha, (5) Sri Rama Shankar Pandey and some others were given promotion ignoring the petitioner without any reason. The petitioner has been wrongly and illegally deprived of his promotion in LT grade in the institution by the Committee of Management and consequent benefits without assigning any reason as well as without providing any opportunity of hearing.
9. Learned Standing Counsel, on the other hand, submits that at the time of appointment, the petitioner had not submitted the certificates of M.A. and B.Ed degree. The letter of approval of grant of salary of 12 teachers dated 28.8.1990, in which the petitioner's name was mentioned at serial no.8, shows that the qualification of the petitioner is Intermediate and not M.A & B.Ed. The petitioner was appointed on the post of Assistant Teacher and was paid salary from 28.8.1990. In compliance of the order dated 27.12.1998 passed by this Court in Writ Petition No.34682 of 1995, Prabhu Nath Rai was promoted and same was approved by order dated 14.12.1999.
10.Shri R.C. Dwivedi, learned counsel appearing for respondent no.3 submits that the petitioner was appointed as Assistant Teacher in the Primary Section of the institution and the District Inspector of Schools, Deoria accorded approval to the appointment of 12 teachers along with the petitioner on 28.8.1990. The petitioner has not pointed out under what provision he wants to be promoted in the primary section to the post of Assistant Teacher in LT grade. Merely asking his promotion on the post of Assistant Teacher in LT grade does not confer any right to be promoted as Assistant Teacher in LT grade. The petitioner is unable to disclose any provision for making his promotion on the post of Assistant Teacher in LT grade. In fact, the provision for making 25% promotion among the teachers of primary section to LT grade came into force in the year 2008 while the writ petition was filed much earlier, therefore, no relief can be granted to the petitioner. He further submits that the quota of 25% has already been filled up and the promotion of the petitioner on the post of Assistant Teacher in LT grade cannot be made. In compliance of the order passed by this Court, Shri Prabhu Nath Rai was provided LT Grade and subsequently the approval was stayed, against which the writ petition was filed and an interim order was granted. The writ petition is pending. The Committee of Management has not complied with the order of the District Inspector of Schools, Deoria. The promotion as LT Grade among the teachers of primary section shall be made according to the vacancy arises subject-wise. It is incorrect that anybody, who is working as Assistant Teacher in primary section can be promoted even as Assistant Teacher in LT grade Science while he does not possess the qualification for the post of Assistant Teacher in LT grade.
11.One Shri Prabhu Nath Rai filed a Writ Petition No.34682 of 1995 and this Court vide order dated 27.10.1998 had disposed of the writ petition with following observations:-
"A reading of the said observations indicates that promotion from B.T.C. or J.T.C. grade could be made to C.T Grade even in High School Section. Therefore, it cannot be said that the petitioner does not possess the requisite qualification because he is not B.Ed or L.T., but B.T.C. only. Since the Primary Section is a part of the same institution it is not open to the respondents to say that the teacher employed in the Primary Section cannot be promoted to the High School, if he is possessed of the requisite qualification.
In that view of the matter, the order dated 25.7.98 passed by the District Inspector of Schools, Kushi Nagar is, hereby, quashed.
Let a writ of certiorari be issued accordingly.
The District Inspector of Schools, Kushi Nagar shall re-consider the case of the petitioner afresh in the light of the observations made having regard to the decision cited by Mr. A.B. Sinha, learned counsel for petitioner referred to in this judgment and pass appropriate order in accordance with law as early as possible preferably within three months from the date of communication of this order.
The writ petition is, accordingly, disposed of.
There shall, however, be no order as to costs."
12.A bare perusal of the order dated 27.10.1998 would show that the promotion from B.T.C. or J.T.C. grade could be made to C.T grade even in High School section. Since the primary section is a part of the said institution, it was not open to the respondents to say that the teachers employed in the primary section cannot be promoted to the High School, if he is possessed all the requisite qualifications. In the present matter, an objection has also been raised regarding qualification of the petitioner, whereas the Principal of the institution had given a certificate dated 8.3.1997, which clearly indicates that the petitioner was having M.A and B.Ed and is working from 15.12.1986. The said certificate has been brought on record as Annexure RA-2 to the rejoinder affidavit. The details have also been brought on regard, which clearly give an impression to the Court that the petitioner was getting higher salary from five teachers and had been given the salary in trained grade since October, 1989 in terms of the order dated 5.11.1993 passed by the District Inspector of Schools, whereas the other five teachers were given trained grade w.e.f. 01.9.1994 by the then District Inspector of Schools. In the case of Prabhu Nath Rai, the District Inspector of Schools vide his order dated 10.10.1995 rejected his promotion made by the Committee of Management vide resolution dated 8.9.1995. Against the order dated 10.10.1995, Sri Prabhu Nath Rai filed the aforesaid Writ Petition No.34682 of 1995 and this Court directed the respondents to re-consider the petitioner's promotion. Again the promotion of Prabhu Nath Rai was disapproved by the District Inspector of Schools vide order dated 22.1.1997. The said writ petition was finally disposed of as indicated above on 27.10.1998, which clearly gives an impression that at no point of time the Court had observed regarding any approval to the promotion of Prabhu Nath Rai. The Court had only indicated that the case of Prabhu Nath Rai could be considered by the respondents. Even though, if a teacher employed in the attached primary section can be promoted to the High School section. At the same time the petitioner had approached the Joint Director of Education, Gorakhpur against the promotion of Prabhu Nath Rai. The said representations dated 29.1.1997 and 6.1.2000 have also been brought on record as Annexure RA-3 and 4 to the rejoinder affidavit.
13. As per the records and on the basis of certificate issued by the Principal of the institution, it is apparent that the petitioner had M.A. & B.Ed qualifications at the time of his initial appointment and to that extent, he had also made various representations to the Regional Joint Director of Education, Gorakhpur and other authorities but the case of the petitioner had never been considered for promotion and also indicated that he was better place than Shri Prabhu Nath Rai and other juniors, namely Smt. Nirmala Chaturvedi, Sri Pauhari Rai, Sri O.P. Tiwari, Sri Harendra Prasad Kushwaha and Sri Rama Shankier Pandey, who were accorded promotion. It has also been contended that mere mention of Inter in column qualification against the name of petitioner in the approval letter dated 28.8.1990 does not certify that the petitioner had neither disclosed nor submitted the certificates of his M.A and B.Ed. Since the petitioner's appointment was approved in untrained grade, the petitioner approached to the then District Inspector of Schools, Deoria for granting him trained pay scale since the time of bringing the institution into grant-in-aid degree.
14. Learned counsel for the petitioner has also placed his reliance on a judgment and order dated 28.1.2009 passed in Special Appeal No.950 of 2005 (Jata Shankar Sharma and another vs. Narendra Singh and others), in which the Division Bench had considered that so far as the rights of the teachers working in the Primary Section of the College to be promoted to the LT grade in the College is concerned, that became available to them only when Rule 10 (c) of the U.P. Secondary Education Services Selection Board Rules, 1998 was amended on 25th November, 2005. Prior to the said amendment, Rule 10 (c) of 1998 Rules provided that promotion to the LT Grade will be made 50% by direct recruitment and 50% by promotion from amongst the substantively appointed teachers of C.T Grade. After the amendment 75% of the posts are to be filled up by direct recruitment and 25% of the posts are to be filled up by promotion of the primary section teachers, who have completed five years of satisfactory service where the Intermediate College is also having a primary section and as such the teachers are receiving salary under the Payment of Salaries Act, 1971. The relevant paragraphs 7 to 14 are reproduced hereinafter:-
"7. Mr. Ashok Khare appearing for Narendra Singh and others and Mr. P.N. Saxena appearing for Jata Shanker and another have made their submissions but both of them accept that as far as the rights of the teachers working in the primary section of the College to be promoted to the LT Grade in the College is concerned, that became available to them only when Rule 10(c) of the U.P. Secondary Education Services Selection Board Rules, 1998 ( hereinafter referred to as the '1998 Rules') was amended on 25th November, 2005. Prior to the said amendment, Rule 10(c) of 1998 Rules provided that promotion to the LT Grade will be made 50% by direct recruitment and 50% by promotion from amongst the substantively appointed teachers of C.T. Grade. After the amendment 75% of the posts are to be filled by direct recruitment and 25% of the posts are to be filled by promotion of the primary section teachers who have completed five years of satisfactory service where the Intermediate College is also having a primary section and such teachers are receiving salary under the Payment of Salaries Act, 1971. Thus, in 2003 the promotion of teachers working in the primary section of the College could not have been made to the L.T. Grade.
8. The procedure for effecting this promotion is provided under Rule 14 of the 1998 Rules whereunder the Management has to prepare a list as contemplated under sub-Rule (1) and forward it to the District Inspector of Schools alongwith seniority list, service record and character roll. The District Inspector of Schools thereafter has to forward it to the Joint Director who after verification has to send it to the Selection Committee constituted under Section 12(1) of the U.P. Secondary Education Services Selection Boards Act, 1982 which has to forward its recommendations to the District Inspector of Schools with copy to the Management.
9. The learned Single Judge has not gone into and could not have gone into the amended provisions of Rule 10(c) of 1998 Rules inasmuch as it came into effect on 25th November, 2005. In the circumstances we will have to give the directions to the Management to act in accordance with the amended provisions of Rule 10(c) of 1998 Rules which is now available after 25th November, 2005 where under the right o be promoted to L.T. Grade became available to the teachers in the primary section of an Intermediate College for the first time.
10. In the facts of this case, the Committee of Management of the concerned institution will, therefore, prepare a list in accordance with the provisions of Rule 14 of the 1998 Rules and forward the same to the District Inspector of Schools. Mr. Saxena points out that out of his two clients, one Jata Shanker has been in the institution in a permanent position since 28th November, 1977, while Yogendra Kumar Sharma is in the institution from 23rd July, 1985. As far as this date of Yogendra Kumar Sharma is concerned, Mr. Khare has stated that he was infact appointed on substantive basis in the institution on 28th July, 1988 though he has not shown any document in this connection. As far as Mr. Khare's client Mukesh Kumar is concerned, he has been in a regularly position from 11th July, 1987 whereas the other three are from 11th December, 1988.
11. It is not disputed that there are 14 post available in the L.T.Grade in the College. On the basis of the amended Rule 10(c) of 1988 Rules four vacancies will be available for promotion of the primary section to L.T. Grade.
12. Inasmuch as this matter has been pending for a quite sometime, we direct the Management to prepare the list and forward it within four weeks to the District Inspector of Schools from the date a certified copy of the order is filed by either of the parties before it. On receiving the list, the District Inspector of Schools will proceed further and necessary and subsequent action should be taken within eight weeks thereafter.
13. Though we are passing this order we cannot ignore that by virtue of the stay granted by the Appeal Court on 10th August, 2005, Mr. Khare's clients have been working as L.T.Grade teachers and drawing salary. Mr. Saxena does not dispute that at least two of them will be accommodated in these four posts inasmuch as his claim is only for two posts. In the circumstances for this period of 12 weeks, the teachers represented by Mr. Khare shall continue to work as they have been working under the interim order in this Special Appeal, though at the end of it, whoever is recommended by the Selection committee will be promoted to the L.T.Grade and the others will remain in the primary section of the College.
14. With these modifications the Special Appeals stand disposed of."
15. In the case of Smt. Samantika Chatterjee v. Regional Inspectress of Girl's Schools, Allahabad and Ors., (1990) 1 UPLBEC 239 this Court has held that the provisions of Regulation 7(2) of Chapter-II of the Regulation framed under the U.,P. Intermediate Education Act, 1921, is also applicable to a case of teachers working in B.T.C. grade in a primary Section attached to an Intermediate College.
16. The Court has perused the records pertaining to the aforesaid five persons but they are not parties in the writ petition. Therefore, at this stage the Court is not making any observations with regard to their promotion or their claim.
17. In view of law laid down as above, there is no such impediment for the promotion of a primary school teacher (under 25% of the post), who have completed five years of satisfactory service where the Intermediate College is also having a primary section and such teachers are receiving salary under the Payment of Salaries Act, 1971.
18. In view of the aforesaid facts, the writ petition is allowed. A direction is issued to the respondents to consider the claim of the petitioner for promotion in accordance with the rules and regulations and in case, he is found suitable and eligible, give him all consequential benefits from the date his Juniors were given promotion. The said exercise may be completed as expeditiously as possible and preferably within three months from the date of production of a certified copy of the order before them.
(Mahesh Chandra Tripathi,J.) Order Date :- 28.7.2015 RKP