Harish Chandra Pal vs State Of U.P. And Others
2012 Latest Caselaw 4806 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 28
 

 
Case :- WRIT - A No. - 24536 of 2007
 

 
Petitioner :- Harish Chandra Pal
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- R.P. Mishra
 
Respondent Counsel :- C.S.C.,G.D.Mishra,R.K.Mishra,R.P. Dubey
 

 
Hon'ble Arvind Kumar Tripathi,J.

1. List revised.  Heard learned counsel for the parties and perused the record.

2. The present writ petition was initially filed for quashing of the order dated 23.2.2007 passed by the respondent no.4, Regional Joint Director of Education, Basti Region, Basti (annexure 16 to the writ petition) by which the representation of the petitioner for promotion on the post of lecturer (Sociology), was rejected. Subsequently, during pendency of the writ petition the respondent no.8 was promoted by order dated 8.8.2008 on the post of lecturer hence writ petition was amended and the prayer was made for quashing of aforesaid order dated 8.8.2008, copy of which has been annexed as annexure 16-A to the writ petition.

3. The brief facts of the present case are that the petitioner was appointed as Assistant Teacher on 16.7.1973 and joined service on 17.7.1973 in Vijay Pratap Inter College Mahso, district Basti (hereinafter referred as 'institution'). Thereafter, he was promoted to L.T. Grade on 10.5.1984 and selection grade was given on 10.5.1994, which was approved by the D.I.O.S., Basti by letter/order dated 4.8.1995 (annexure 2 to the writ petition). After completing 12 years of service proposal was sent by the committee of management on 25.5.2006 to the D.I.O.S., Basti for awarding and approving the promotional grade to the petitioner w.e.f. 10.5.2006. The institution is recognized intermediate college, which was recognised in the year 1983. As per information the institution is already in list of grant-in-aid. There are four post of lecturer in Sociology, Hindi, Geography and English. Four lecturers were working. Mr. Paramhansh was a backward candidate, who was promoted on the post of lecturer in Hindi. Mr. Ram Daras Singh as a general candidate was promoted  to the post of lecturer in Sociology. Mr. Lal Kesh Singh in a general category was direct appointee in Geography. However, for appointment as lecturer in English, of SC candidate, the requisition was sent to the selection board. The requisition was sent and the post was advertised in December 1998. Since there was a delay in selection of English Lecturer, then Mr. Dhrub Chandra Pathak was appointed as ad-hoc Lecturer. Subsequently, Mr. Drub Chandra Pathak, who was ad-hoc lecturer in English, was appointed as Principal in a different institution, hence he left the institution on 25.2.2003. Mr. Ram Darash Singh, who was lecturer in sociology retired on 30.6.2006. The petitioner was M.A. in sociology subject. Hence being senior most teacher in the college he was claiming for promotion. The post of lecturer in sociology was for general candidate under promotional quota.

4. According to counsel for the petitioner he was promoted to teach the class of intermediate since 1.7.2006. However, no resolution was sent for promotion of the petitioner by the committee of management. The petitioner being senior most and qualified teacher was to be promoted hence being aggrieved the Civil Misc. Writ Petition No.58603 of 2006 was filed, which was disposed off on 19.10.2006 with the direction for consideration of representation by the Regional Joint Director of Education, Basti Region, Basti. The Regional Joint Director of Education, Basti Region, Basti rejected the representation by order dated 23.2.2007 (annexure 16 to the writ petition) hence the present writ petition has been filed against the impugned order.

5. According to case of the respondent the resolution passed by the committee of management on 27.7.2003 after Mr. Dhrub Chandra Pathak lecturer in English left the institution on 25.2.2003 and recommended to convert the post of lecturer in English as a promotional post with the recommendation for promotion of Mr. Chandra Prakash Singh.

6. Learned counsel for the petitioner submitted that there is no dispute that the petitioner was senior most lecturer but the management with ulterior motive passed the alleged resolution in February, 2003 converting the post of lecturer in English for promotional quota. The recommendation was made, however, already two lecturers were working under the promotional quota and there was no vacancy under the promotional quota. The vacancy in proportional quota arose after retirement of Mr. Ram Daras Singh on 30.6.2006 from the post of lecturer in Sociology. There was no resolution in favour of the petitioner after retirement of lecturer in Sociology though he was directed to take class from 1.7.2006. Hence writ petition was filed, which was disposed off on 19.10.2006 with the direction for consideration of representation. Further by impugned order the aforesaid representation was rejected on the ground that the proposal had already been sent for promotion on the post of lecturer in English and there were only two posts of lecturer in promotional quota. Hence petitioner was not entitled for promotion under the 50% of promotion quota. Counsel for the petitioner further submitted that in fact the resolution by the committee of management to fill up the post in English by promotion and impugned order are illegal and against the fact and law because on the relevant date when the proposal was made there was no vacancy of promotional quota. The requisition for appointment of lecturer in English was already sent in the year 1988 and even the post was advertised. Since there was delay hence there was ah-hoc appointment. Subsequently, post fell vacant after Mr. Harish Chandra Pathak left the institution on 25.2.2003.  The committee of management was required to sent the fresh requisition for direct recruitment because there was no vacancy in promotional quota. Hence the impugned orders are liable to be set aside and direction be issued to consider the promotion of petitioner on the post of lecturer in Sociology. Counsel for the petitioner has relied the decision of Division Bench of this Court in case of Maheshwar Prasad Tiwari Vs. Joint Director of Education, Gorakhpur, Region Gorakhpur and others 2000(1) ESC 701 (Alld.) Para 7 of the aforesaid judgment is reproduced hereinbelow:-

"7. Accordingly we are of the view that the decisions aforestated are not of much avail to the appellant for the purpose of construction of the provisions contained in Rules 15 and 16 of the Rules. Appointments of teachers in recognised High Schools and intermediate Colleges are governed by the Act. Earlier the field was occupied by intermediate Education Act, 1921. Section 16 (1) of the Act as it stands amended upto date envisages that every appointment of a teacher, shall, on or after the date of commencement of the Uttar Pradesh Secondary Education Services Selection Boards (Amendment) Act. 1995. be made by the management only on the recommendation of the Commission. This is, however, subject to certain exceptions, e.g., ad hoc appointment under Section 18 ; absorption of 'reserve pool teachers' under Chapter IV-A ; appointments under the provisions to sub-section (1) of Section 16, etc. "Any appointment", in contravention of the Act, it is provided in sub-section (2) of Section 16, shall be void. By amendment vide U. P. Act No. 25 of 1998, the word 'Commission' has been substituted by the word 'Board', Section 18 (1) provides that where the Management has notified a vacancy to the Board in accordance with Section 10 (1) and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided. Sub-Sections (2) and (3) of Section 18 read as under :

"(2) A teacher other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in Sub-Section (8).

(3) A teacher other than a Principal or Headmaster, who is to be appointed by promotion, may in the prescribed manner be appointed by promoting the seniormost teacher, possessing prescribed qualifications-

(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in the lecturer's grade ;

(b) in the Certificate of Teaching grade, as teacher in the trained graduates grade, in the case of a vacancy in the Trained graduate's grade."

It would be evident from the provisions quoted above that ad hoc appointment by direct recruitment may be made only on the recommendation of the Selection Committee referred to in sub-section (8) while appointment provisions in the Lecturer grade is required to be made in 'prescribed manner' by promoting the seniormost teacher in the L.T. grade possessing prescribed qualifications. The manner is prescribed in the Rules. Rule 15 of the Rules provides the procedure for ad hoc appointment by direct recruitment under Section 18 of the Act "in respect of vacancies to be filled in by direct recruitment'. Rule 16 provides the procedure for ad hoc appointment under Section 18 of the Act by promotion "in respect of the vacancies to be filled in by promotion". It is not disputed that 50% of the posts in the Lecturer's grade are to be filled by promotion and 50% by direct recruitment vide Rule 10 of the Rules. The expressions "in respect of the vacancies to be filled in by direct recruitment" and "in respect of the vacancies to be filled in by promotion" occurring in Rules 15 (1) and 16 (1) respectively are significant. These expressions in our opinion have reference to vacancies as determined and notified in accordance with Section 10 read with Rules 10 and 11 of the Rules. The notification of vacancies to the Board contains statement of vacancies for each category of posts to be filled in by direct recruitment or by promotion. Ad hoc appointment under Section 18 is permissible only on fulfilment of the twin conditions precedent : firstly the vacancy had been notified, and secondly ; the post remained vacant for two months. If the vacancy determined in the aforesaid manner falls in the quota of promotion and the conditions precedent as visualised in Section 18 (1) are satisfied, it can be filled in on ad hoc basis only in the manner prescribed by Rule 16 of the Rules as prescribed in Section 18 (3) and not by direct recruitment under subsection (2) read with sub-section (8) of Section 18 and Rule 15 of the Rules except on pains of invalidation of appointment in terms of Section 16 (2) of the Act. In our opinion. therefore, if the vacancy falls in the quota of direct recruit, then the same cannot be filled by ad hoc promotion under Rule 16 of the Rules which provides procedure for ad hoc appointment by promotion where such appointments are to be made under Section 18 of the Act "in respect of the vacancies to be filled in by promotion". It may be observed that the U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 has since been rescinded and the procedure laid down in the Rules holds the field of ad hoc appointment. The view taken by the learned single Judge warrants no interference."

7. Learned Standing Counsel and counsel for the committee of management opposed aforesaid prayer and submitted that the committee of management has power to convert the post of any promotional quota into direct recruitment and any post of direct recruitment to promotional quota. The lecturer in sociology was going to retire on 30.6.2004. However, since age was enhanced to 60 years from 58 years, hence Mr. Ram Daras Singh retired on 30.6.2006. Since the post was expected to fall vacant after retirement on 30.6.2004 hence the resolution was sent in February, 2003 to convert the post in promotional quota as in near future after retirement the vacancy of promotional quota was to fell vacant. The requisition was sent for promotion and subsequently, after retirement of Sri Ram Daras Singh the requisition has been sent in the month of December, 2005 for direct recruitment as lecturer Sociology and respondent no.8 has already been promoted to the post of lecturer in English regarding which the order was passed on 8.8.2008.

8. Considered the submission of counsel for the parties. These facts are not dispute that there were four posts of lecturer and only 50% post are to be filled by promotion, and that the petitioner was senior most teacher, who was eligible for promotion as lecturer in Sociology. The resolution by the committee of management was passed and it was recommended in month of February, 2003 to convert the direct recruit post of lecturer in English and to fill the same by promotion. At that time there was no vacancy in promotional quota as already two lecturers were working in promotional quota. If the vacancy occurred for the post of lecturer in English the committee of management was required to send the requisition to the selection board for direct recruitment on the post of lecturer (English). However, instead of sending the requisition for direct appointment it appears that purposely the recommendation was made to fill the post of lecturer in English by promotion though there was no such vacancy. Under section 10 of Act No.5 of 1982, for the appointment of a teacher, by direct recruitment, the manager shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and notify to the Selection Board through the authority concerned (D.I.O.S.). When post of Lecturer (English) fell vacant on 25.2.2003, of direct recruitment, the management was required to send requisition for direct recruitment. When the vacancy occurred for the post of lecturer (Sociology) on 30.6.2006, after retirement of Mr. Ram Daras Singh lecturer in Sociology, by that date there was no recommendation for any appointment of any person as lecturer in English. Had the requisition been sent for direct recruitment after the post of lecturer in English fell vacant in February, 2003 then the petitioner was entitled and eligible to be promoted on the post of Lecturer in Sociology, being senior most Assistant Teacher in L.T. Grade. The right of the senior most teacher to be promoted on lecturer grade cannot be taken away if otherewise he was eligible for promotion. The committee of management has no power to convert the post of direct recruitment to the promotional category, purposely only to deny the promotion to the petitioner, because at that time, when the proposal was sent there was no vacancy in promotional quota. These aspects have not been examined by the Joint Director, Education in the impugned order. However, during pendency of the writ petition without waiting for the result of the petition even the appointment has been made on 8.8.2008 on the post of lecturer in English.

9. The question for consideration in case of Maheshwar Prasad Tiwari was, whether Ad-hoc appointment of a Lecturer in a recognised institution can be made by promotion under Section 18 of the Act No.V of 1982, which was ultimately to be filled by direct recruitment. In that case it was held "In our opinion, therefore, if the vacancy falls in the quota of direct recruit then the same cannot be filled by ad-hoc promotion under rule 16 of the Rules, which provides procedure for ad-hoc appointment by promotion where such appointments are to be made under Section 18 of the Act in respect of vacancies to be filled in by promotion."

10. When the vacancy of Lecturer falls in the quota of direct recruitment the committee of management is required to notify the vacancy under Section 10 and 16 of Act No. 5 of 1982 to the Selection Board through D.I.O.S. If the vacancy remain vacant for more than two months then in view of Section 18 of Act No.5 of 1982, the committee of management can appoint the Lecturer, in the manner prescribed under Rule 15 of Rules 1998, purely on Ad-hoc Basis.

11. Rules 10, 11(1), 15(1) and 16(1) of Rules 1998 are quoted hereinbelwo:-

10. Source of recruitment- Recruitment to various categories of teachers shall be made from the following sources :

 
(a) Principal of an Intermediate College		By direct recruitment
 
or Headmaster of a High School             
 
(b) Teachers of lecturer's grade     (i) 50 per cent by direct recruitment;
 
					  (ii) 50 per cent by promotion from 					   amongst substantively appointed 					   teachers of the trained graduates 					    grade.
 
(c) Teachers of trained        	 (i) 100 per cent by direct recruitment
 
    graduates grade 			   except the category of institutions 					    mentioned below in 2(ii) ;
 

(ii) Those Intermediate colleges and High Schools in which teachers of attached primary section are getting salary under provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, 75 per cent posts shall be filled by direct recruitment and the remaining 25 per cent posts shall be filled by promotion from amongst those trained graduate teachers of attached primary section who have completed 5 years of satisfactory service:

Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts, may be filled in by direct recruitment:

Provided further that if in calculating respective percentages of posts under this rule, there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.

11. Determination and notification of vacancies.-(1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided.

15. Provided for ad hoc appointment by direct recruitment.- (1) (a) Where ad hoc appointments of the teachers in respect of the vacancies to be filed in by direct recruitment are to be made under Section 18 of the Act, the Joint Director shall advertise the vacancies subject-wise, for lecturers grade and group-wise for trained graduates grade, along with the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other backwards classes of citizens in at least two newspapers, one of which having wide circulation in the district and the other in the State, and invite applications for ad hoc appointment in the proforma given in Appendix 'G'. Such advertisement shall, inter alia, mention the pay and allowances admissible to the posts, minimum academic qualifications for appointment and such other things as may be considered necessary. The candidates shall be required to given the choice of not more than three districts in order of preference, where, if selected, he may wish, to be appointed. Where a candidate wishes to be considered for any particular district and for no other district, he may mention the fact in his application.

(b) The application referred to in clause (a) shall be sent by registered post, to the Joint Director within fifteen days from the date of publication of advertisement in the newspapers so as to reach the office of the Joint Director on or before the last date of receipt of application mentioned in the advertisement.

(c) The application referred to in clause (a) shall be accompanied with--

(i) a fee of twenty repees in the form of crossed postal order payable to the concerned Joint Director:

Provided that such fee shall, in the case of candidates belonging to Scheduled Castes and Scheduled Tribes, be seven rupees;

(ii) a self-addressed envelope; and

(iii) other documents as may be required.

(d) No application, not sent in accordance with clause (b) or (c), shall be taken into consideration.

16. Procedure for ad hoc appointment by promotion.- (1) Where ad hoc appointments of teachers, in respect of the vacancies to be filled in by promotion, are to be made under Section 18 of the Act, the Management shall consider the cases of such teachers who are working in trained graduates or Certificate of Teaching grades and possess the qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder and have put in at least five years continuous service as such on the date of occurrence of vacancy for promotion to the lecturer's or trained graduates grade, as the case may be, on the basis of seniority subjection to rejection of unfit without their having applied for the same.

12.In view of the aforestated provision and discussion, the committee of management and D.I.O.S. were required to follow the rules and the procedure for selection of Lecturer. However, in the present case, instead of notifying the vacancy of direct recruit, the recommendation was made by the Committee of Management to fill the post of direct recruitment by promotion. Subsequently, for the post of promotional category the recommendation was made to fill the post by direct recruitment. Vide Rule 10 of the U.P. Secondary Education Selection Board Rule 1998, the 50% post of the teachers of lecturer grade to be filled by promotion from amongst the substantively appointed teachers of the trained graduates grade. Further provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, then the posts, may be filled in, by direct recruitment. In the present case, there is no dispute that petitioner was senior most teacher and he was eligible for promotion on the relevant date. However, when proposal was to convert the post of direct recruitment in promotional quota, there was no vacant post for promotional quota as two Lecturer were already working and if on the relevant date, the proposal is accepted then the promotional category would reach to 75%, which is against the provisions of Rule 10 of Rules 1998 and as such same was not permissible. Hence in view of the statutory provision of Rule 10 of the U.P. S.E.S.B. Rule 1998 right vested in with the petitioner for promotion as Lecturer being senior most L.T. Grade teacher. The right which cannot be withdrawn directly, the same can not be withdrawn indirectly by converting the post of direct recruit to the promotional post specially when there was no vacancy in promotion quota.

13. In view of the aforesaid discussion, the petitioner was entitled for promotion when post of promotional quota fell vacant and the right accrued in his favour, who was qualified and eligible. Hence the orders dated 23.2.2007 and 8.8.2008 passed by Regional Joint Director of Education, Basti Region, Basti, respondent no.4, are hereby quashed. The respondents are directed to consider the case of the petitioner, as expeditiously as possible, preferably within two months after filing of the certified copy of this order in accordance with law, under the said Rule 10 of the Rule 1998 and section 12 of The Act No.5 of 1982.

14. Accordingly, present writ petition is hereby allowed. No order as to cost.

Order Date :- 5.10.2012

Pramod