Allahabad High Court
Kusum Lata vs State Of U.P. & Others on 16 April, 2012
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 33
Case :- WRIT - A No. - 18713 of 2012
Petitioner :- Kusum Lata
Respondent :- State Of U.P. & Others
Petitioner Counsel :- A.K. Mishra,Bulbul Godiyal
Respondent Counsel :- C.S.C.,Ajeet Dube,Durga Prasad Singh
Hon'ble Arun Tandon,J.
Petitioner before this Court was appointed as Assistant Teacher in Parishadiya Vidyalaya on 31.12.2005. According to the petitioner, in 2007 there were 181 backlog posts and against these posts the petitioner claims to have been promoted on 19.11.2007 as Headmaster under an order of the Basic Shiksha Adhikari, Etah dated 19.11.2007. Promotion granted under the orders of the Basic Shiksha Adhikari, Etah dated 19.11.2007 and dated 03.11.2007 were subjected to challenge before the High Court in Civil Misc. Writ Petition No. 65250 of 2007. The High Court by means of the judgment dated 12.12.2007 required the Secretary, Basic Shiksha Parishad, U.P., Allahabad to examine the grievance of the said petitioners. The Secretary, Basic Shiksha Parishad by means of the order dated 15.12.2008 cancelled the promotion made of 99 persons appointed on the post as Headmaster, Senior Basic Schools and 78 persons appointed on the post of Headmaster, Junior Basic Schools. In compliance thereof the Basic Shiksha Adhikari, Etah issued an order dated 31.12.2008 cancelling the promotion which were granted in favour of the petitioner.
It appears that certain other teachers, not being satisfied with the cancellation of promotion, filed Writ Petition No. 1157 of 2009, no. 865 of 2009 wherein the orders of the Secretary was set aside on the ground that it was made in violation of principles of natural justice. The Secretary, Basic Shiksha Parishad was required to pass a fresh order after affording opportunity of hearing to the parties concerned. The Secretary, Basic Shiksha Parishad under the order dated 16.06.2009 held that the promotion granted against the posts was illegal and directions had been issued to the Basic Shiksha Adhikari, Etah to cancel the promotion to that extent.
In the list of appointments which were found to be illegal, the promotion of persons mentioned from Serial No. 5 to Serial No. 104 on the post of Headmaster, Senior Basic School and from Serial No. 105 to 111 on the post of Headmaster, Junior Basic School and Assistant Teacher, Senior Basic School were mentioned. The name of the petitioner was within the serial numbers whose promotion was found to be illegal.
The petitioner is stated to have been transferred to District Agra to District Etah on 20.10.2008. Therefore, despite the orders being passed in the year 2009 as aforesaid by the Secretary, Basic Shiksha Parishad and the Basic Shiksha Adhikari, Etah cancelling his promotion he continued to work as Headmaster in District Agra and has drawn salary as such. It has taken more than three years for authorities to issue the consequential order of cancellation dated 20.03.2012.
The petitioner has, therefore, approached this Court challenging the order dated 20.03.2012 as well as the order dated 03.07.2009 and dated 16.09.2009, annexure 2 and 3 to the present writ petition.
Appointment on the post of teachers in Junior Basic Schools and Senior Basic Schools run by the Basic Shiksha Parishad is regulated by U.P. Basic Education (Teachers Service) Rules, 1981. The essential qualification prescribed for appointment on the post of Headmaster or Headmistress of Junior Basic Schools and Assistant Teacher/Assistant Mistress of Senior Basic Schools is contained in Rule 8 (3) II which provides at least 5 years teaching experience as permanent Assistant Mistress or Assistant Master of Junior Basic School, Assistant Master or Assistant Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School.
Similarly qua post of Headmaster/Headmistress of Senior Basic Schools, the minimum teaching experience required is three years' experience as permanent Headmaster or Headmistress of Junior Basic School or permanent Assistant Master or Assistant Mistress of Senior Basic School as the case may be.
From paragraph 5 of the present writ petition it is an admitted position that the petitioner was appointed as an Assistant Teacher in the Basic School only on 31.12.2005. It is alleged that he was promoted on 19.11.2007 i.e. when he had not even completed two years of service after his appointment. Therefore by no stretch of imagination, the petitioner can be said to be eligible for promotion under Rule 8(2) II/III.
This Court is of the firm opinion that there is only one view possible in the facts of the case namely that the promotion of the petitioner was patently illegal and de hors the statutory provisions applicable. For want of necessary teaching experience, the petitioner could not have been promoted in the year 2007. Therefore, the order cancelling the earlier illegal order of promotion cannot be faulted with.
In the facts and circumstances of the case affording of an opportunity to the petitioner will not result in any change in the decision inasmuch as on admitted facts the petitioner is found to be lacking the essential qualification for promotion by this Court.
Writ petition is dismissed.
The Secretary (Secondary Education) is directed to examine as how the petitioner would continue as Headmaster/Headmistress even after her promotion had been cancelled in the year 2009 under the order of the Secretary, Basic Shiksha Parishad and the consequential order of the Basic Shiksha Adhikari, Etah referred to above for a period nearly three years thereafter. For such illegal continuance of the petitioner the State has been put to loss, therefore, the Secretary shall re-coupe the loss from the officer responsible for promoting the petitioner and officers who permitted the petitioner to continue on the promoted post for three years even after the Secretary had issued orders for cancellation of the promotion. This exercise must be completed within 8 weeks from today. Standing Counsel shall forward a copy of this order to the Respondent no. 1.
Dated :16.04.2012
VR/18713/12
