Smt. Lata Kumari W/O Shri Jaybind ... vs State Of U.P. Through ...
2013 Latest Caselaw 4257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 10
 

 
Case :- SERVICE SINGLE No. - 6154 of 2008
 

 
Petitioner :- Smt. Lata Kumari W/O Shri Jaybind Kumar,
 
Respondent :- State Of U.P. Through Secretary,Department Of Secondary Educ
 
Counsel for Petitioner :- Vimol Kumar,Km. Vishwa Mohini
 
Counsel for Respondent :- C.S.C.,S P Tiwari,Vishal Singh
 
and 
 

 
Case :- SERVICE SINGLE No. - 3014 of 2009
 

 
Petitioner :- Smt.Indirawati Devi
 
Respondent :- State Of U P Thr.Secy Secon. Education Govt.Of U P Civil
 
Counsel for Petitioner :- S P Tiwari
 
Counsel for Respondent :- C.S.C.,Km.Vishwa Mohini
 

 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Learned counsel for respective parties agree that since both the petitions raise common questions of law and facts, as such they may be heard and decided together. The Court, thus, proceeds to decide the same by the following common judgement and order.

Heard Ms.Vishwa Mohini, learned counsel for petitioner-Smt Lata Kumari in Writ Petition No. 6154 (S/S) of 2008, learned Additional Chief Standing Counsel appearing for State and Sri S.P.Mishra, learned counsel for the petitioner-Smt Indirawati Devi in Writ Petition No. 3014 (S/S) of 2009.

Smt Lata Kumari and Smt Indirawati Devi both are working as Assistant Teachers in Navyug Kanya Vidyalaya Inter College, Rajendra Nagar, Lucknow, which is imparting education upto intermediate level and is a duly recognized institution under the relevant provisions of U.P. Intermediate Education Act, 1921.

It is the post of Lecturer in Hindi in the Institution, which is the bone of contention between the rival petitioners in both the petitions.

Smt Lata Kumari was appointed as a regular Assistant Teacher in the institution on 01.05.1997 whereas Smt Indirawati Devi was appointed as Assistant Teacher in the Institution on 16.01.2003. As regards the seniority position, admittedly, Smt Lata Kumari is senior to Smt Indirawati Devi as her name figures at serial no. 23 whereas name of Smt Indirawati figures at serial no. 28 in seniority list maintained by the Institution. This factual aspect regarding seniority is not being disputed by the respective parties.

On retirement of one Ms. Shanti Nigam from the services of the Institution on 30.06.2008, a vacancy of Lecturer in Hindi fell vacant. Promotion to the post of Lecturer in an intermediate Institution recognized under the U.P. Intermediate Education Act, 1921 is governed by the provisions contained in Section 12 of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 (hereinafter referred to as 'Boards Act'), according to which, for each region, Selection Committee comprising of Regional Joint Director of Education as its Chairman, Senior most Principal of Government Inter College in the region as its member and concerned District Inspector of Schools is constituted. Sub-clause 2 of Section 12 provides that the procedure of selection of candidates for promotion to the post of a teacher shall be such as may be prescribed.

For the purposes of prescribing procedure for selection of candidates for promotion, Rules have been framed, known as U.P. Secondary Education Services Selection Board, Rules, 1998 (hereinafter referred to as 'Rules, 1998'). The said Rules have been framed by the State Government in exercise of its powers conferred on it by Section 35 of Boards Act, 1982, as such Rules, 1998 are statutory in nature and hence, the same are binding. As per prescription contained in Rule 14 of the Rules, 1998, in case of occurrence of any vacancy to be filled in by promotion, all teachers working in L.T. or C.T. Grade who possess the qualification prescribed for the post and have completed five years continuous regular service shall be considered for promotion to the lecturers grade or trained graduate grade, as the case may be, without their having applied for the same.

Sub rule 2 of Rule 14 of the Board Rules, 1998 provides that criterian for promotion shall be seniority subject to rejection of unfit. Sub-clauses of Rule 14 further prescribe the procedure to be adopted by Committee of Management and the action to be followed by departmental authorities and Selection Committee. According to the Scheme of Rule 14, the Management is required to prepare a list of eligible teachers and to forward the same to the District Inspector of Schools along with relevant records. The District Inspector of Schools, after verifying the facts from the record of his office, is required to forward the list sent by the Management to Joint Director and thereafter Joint Director is required to consider the cases of candidates on the basis of records available to him. While doing so, Joint Director is at liberty to call any additional information as may be considered by him necessary. The Joint Director, thereafter is required to place the records before the Selection Committee constituted under sub-clause 2 of Section 12 of Boards Act. The recommendation of the Selection Committee is thereafter required to be forwarded to the District Inspector of Schools, who is further required to sent the name of selected candidate to the Committee of Management of the Institution. The Committee of Management is thereafter required to issue appointment order on a resolution of the said effect being passed by it.

From a perusal of the provisions contained in Section 12 of the Boards Act and Rule 14 of the Rules, 1998, it is clear that criteria for promotion to the post of Lecturer is seniority subject to rejection of unfit. The criteria of seniority subject to rejection of unfit would mean that senior most teacher is to be promoted on the vacant post provided he is found suitable or fit for the said post. The basic ingredient for consideration for making promotion to the post of Lecturer is seniority.

On occurrence of vacancy on 30.06.2008 in the post of Lecturer in Hindi on account of retirement of earlier regular incumbent Ms. Shanti Nigam, the Committee of Management and the authorities of education department were required to act in accordance with the provisions contained in Section 12 of Boards Act read with provisions contained in Rule 14 of the Rules, 1998. However, despite the fact that Smt Lata Kumari was senior to Smt Indirawati Devi, promotion of Smt Indirawati Devi was made on the post of Lecturer in Hindi which was also approved by the District Inspector of Schools by means of order dated 12.09.2008, which is under challenge in Writ Petition No. 6154 (S/S) of 2008 filed by petitioner-Smt Lata Kumari. The other Writ Petition No. 3014 (S/S) of 2009 has been filed by Smt Indirawati Devi with the prayer to issue a direction to the respondents to make payment of salary to her for the post of Lecturer in Hindi w.e.f. 08.08.2008.

During pendency of these writ petitions, another development took place which is worth noticing at this juncture and it is that yet another post of Lecturer in Hindi fell vacant in the year 2010 on retirement of one Smt Vinodni Trivedi, a regular incumbent working on the post of Lecturer in Hindi. Against the said post falling vacant on account of retirement of Smt Vinodni Trivedi, Smt Lata Kumari was promoted on 14.12.2010 and since then she has been discharging her duties and functions on the said post. It is also not disputed that Smt Lata Kumari is also being paid salary for the said post from the date of her promotion w.e.f. 14.12.2010.

As regards Smt Indirawati Devi, though her promotion stands approved by the District Inspector of Schools by means of order dated 12.09.2008 and since then she has been discharging her duties and functions on the post of Lecturer in Hindi but she has not been paid her salary for the said post.

On a close scrutiny of the documents and materials available on record as also on hearing the submissions made by learned counsels appearing for respective parties, the question which emanates for determination by the Court is as to whether against the vacancy in the post of Lecturer in Hindi which fell vacant on account of retirement of Ms. Shanti Nigam in the year 2008, denial of appointment to Smt Lata Kumari is justified and further as to whether on account of non consideration of senior most Assistant Teacher eligible for promotion to the post of Lecturer in Hindi, appointment of Smt Indirawati Devi can be said to be lawful.

There is no dispute that Smt Lata Kumari having been appointed on the post of Assistant Teacher in the year 1997 is senior to Smt Indirawati Devi, who was appointed on the post of Assistant Teacher in the Institution in the year 2003.

The said fact is clear from the seniority position maintained by the Institution wherein admittedly Smt Lata Kumari is placed at serial no. 23 whereas Smt Indirawati Devi is placed at serial no.28. There is also no dispute that on the date of occurrence of vacancy on 30.06.2008 in the post of Lecturer in Hindi on account of retirement of Ms. Shanti Nigam, Smt Lata Kumari was fulfilling the eligibility for consideration of her case for promotion to the post of Lecturer in Hindi. Thus, the claim of Smt Lata Kumari for consideration of her case for promotion to the post of Lecturer in Hindi against the post which fell vacant in the year 2008, in my considered opinion, is justified.

While examining the reasons given by the departmental authorities for not considering the case of Smt Lata Kumari for her promotion to the post of Lecturer in Hindi against the post which fell vacant in the year 2008, the Court finds itself unable to agree with the same. The reasons for non consideration of the case of petitioner-Smt Lata Kumari for promotion in the year 2008 are mentioned in the order dated 12.09.2008 which is under challenge in Writ Petition No. 6154 (S/S) of 2008.

The District Inspector of Schools while passing the aforesaid order has stated that since Smt Lata Kumari had laid her claim for promotion on the post of Lecturer in History regarding which she had already preferred writ petition bearing No.10723 (S/S) of 2006 before this Court and the same is pending, as such, case of Smt Lata Kumari has rightly not been considered.

The impugned order dated 12.09.2008 further states that on account of pendency of claim in the form of pendency of writ petition No.10723 (S/S) of 2006 filed by the petitioner-Smt Lata Kumari, name of Smt Indirawati Devi has been proposed for her promotion to the post of Lecturer in Hindi. The order further states that the Committee of Management has proposed to promote Smt Indirawati Devi with the condition that in case judgement in Writ Petition No.10723 (S/S) of 2006 filed by Smt Lata Kumari in any way affects the post of Lecturer in Hindi which fell vacant on account of retirement of Smt Shanti Nigam, her promotion shall be subject to outcome of the decision.

The reasons for non promotion of Smt Lata Kumari on the post of Lecturer in Hindi which fell vacant in the year 2008 can also be found in the order dated 02.02.2009 passed by the District Inspector of Schools, Lucknow, in compliance of the order dated 29.09.2008 passed by this Court in Writ Petition No.6154 (S/S) of 2008 whereby District Inspector of Schools was directed to decide the representation of Smt Lata Kumari. The District Inspector of Schools while passing the order dated 02.02.2009 has reiterated the reasons indicated in the order dated 12.09.2008. It has been stated in the order dated 02.02.2009 that since Smt Lata Kumari had laid her claim for promotion against the post of Lecturer in History which fell vacant prior to 30.06.2008, regarding which she has filed a writ petition before this Court, the question of promotion of Smt Lata Kumari against the post of Lecturer in Hindi shall be considered only after the decision in Writ Petition No. 10723 (S/S) of 2006 filed by her and also Writ Petition No. 8967 (S/S) of 2006 filed by one Ms Anshu Chaudhary. The District Inspector of Schools, while passing the order dated 02.02.2009, thus appears to have denied the claim of petitioner-Smt Lata Kumari for her promotion to the post of Lecturer in Hindi on account of the fact that since her claim for promotion on the post of Lecturer in History was pending consideration before the Court in Writ Petition No. 10723 (S/S) of 2006, as such it would be appropriate to approve promotion of Smt Indirawati Devi and thereafter the case of Smt Lata Kumari would be considered after decision in writ petition filed by her laying her claim for promotion against the post of Lecturer in History.

The reasons indicated by the District Inspector of Schools in the order dated 12.09.2008 and 02.02.2009 are akin to each other. However, in the considered opinion of the Court, the said reasons given by the District Inspector of Schools for denying the right of consideration for promotion of Smt Lata Kumari against the post of Lecturer in Hindi on the vacancy which occurred in the year 2008 are not tenable.

In this regard, it may be observed that Smt Lata Kumari was eligible for her promotion to the post of Lecturer in History and she might have claimed her right to be promoted against the post of Lecturer in History, however her right of consideration on the post of Lecturer in Hindi, where in the vacancy occurred subsequent to occurrence of vacancy on the post of Lecturer in History, cannot altogether be ignored for the reason that admittedly she possesses the requisite qualification and also fulfills the requirement of five years regular service as Assistant Teacher in the Institution.

For the reason that Smt Lata Kumari fulfills the conditions as prescribed under Rule 14 of the Rules 1998, in my considered opinion, it was incumbent on the part of authorities of the education department and the Committee of Management to have considered her case as well for promotion to the post of Lecturer in Hindi against the vacancy which occurred on 30.06.2008, along with all other eligible candidates.

At this juncture, a reference to Rule 14 of the Rules 1998 will be significant. Rule 14, in unambiguous terms, provides that all teachers working in L.T. Grade, who possess the qualification prescribed for the post and fulfill the eligibility criteria shall be considered for promotion to the Lecturer's grade, without their having applied for the same. Thus, as per provisions of Rule 14 of the Rules, 1998, the eligible candidates working in the Institution in L.T. Grade need not even apply for their promotion. The Scheme of Rule 14 of the Rules, 1998 does not put any embargo of any kind. The only embargo is that the candidates seeking promotion to the post of Lecturer in Hindi should possess the qualification prescribed for the post and should have completed five years continuous regular service in L.T. Grade. Rules, 1998 nowhere provide that in case L.T. Grade Teacher has laid his/her claim for promotion against one post of Lecturer and even if he/she is eligible for being promoted to the post falling vacant subsequently, he/she shall not be considered for promotion to the vacancy occurring subsequently. So far as educational qualification and fulfillment of eligibility conditions as prescribed under Rule 14 of the Rules, 1998 are concerned, learned counsel appearing for petitioner-Smt Indirawati Devi and learned Standing Counsel do not dispute the fact that Smt Lata Kumari fulfilled the educational qualification and eligibility criteria. Thus, the impugned action on the part of Committee of Management and that of the departmental authorities in not considering the case of Smt Lata Kumari for her promotion to the post of Lecturer in Hindi against the post which fell vacant on 30.06.2008 cannot in any manner be approved. As a matter of fact by not considering the case of the petitioner-Smt Lata Kumari, respondents have denied her rightful claim for consideration of promotion.

As regards the submission made by Sri S.P.Mishra that Smt Indirawati Devi, since fulfilled the eligibility criteria and educational qualification, was promoted by the respondents, as such no fault can be attributed to Smt Indirawati Devi for denial of right of Smt Lata Kumari for being considered for promotion and hence, for the fault or mistake of departmental authorities or the Committee of Management, Smt Indirawati Devi should neither be reverted nor her promotion to the post of Lecturer in Hindi should be cancelled, it would suffice to say that the aforesaid argument of Sri Mishra is wholly misconceived. Any exercise of promotion undertaken by the authorities in flagrant violation of Rules governing the promotion would be illegal and on the basis of illegal exercise conducted by the respondents, if any appointment order etc. has been issued to Smt Indirawati Devi, the same shall have no legal and lawful consequence at all.

As observed above, in the instant case the procedure adopted by the Committee of Management and the authorities of the department, while considering the promotion on the post of Lecturer in Hindi against the vacancy which occurred on 30.06.2008 is in clear violation of the provisions contained in Rule 14 of the Rules, 1998, inasmuch as the cases of all eligible and qualified candidates, including that of Smt Lata Kumari were not considered.

It is also to be seen at this juncture that Smt Indirawati Devi does not dispute the fact that Smt Lata Kumari is senior to her. It is a case where entire exercise for making promotion of Smt Indirawati Devi has been undertaken in direct conflict with the provisions of Rule 14 of the Rules, 1998 which are statutory in nature and binding. Any violation thereof would make the promotion of Smt Indirawati Devi unlawful.

Reliance placed by Sri S.P.Mishra, learned counsel appearing for petitioner-Smt Indirawati Devi on the case of Balbir Singh vs State of H.P. and others, reported in (2000) 10 SCC 166 does not come to rescue of Smt Indirawati Devi and on the basis of said judgement promotion of Smt Indirawati made in the year 2008 against the vacancy which occurred on 30.06.2008 cannot be saved for the reason that the said judgement was delivered in the peculiar facts and circumstances of the case and hence, it cannot be said that the same would act as a binding precedent.

In the case of Balbir Singh (supra), the promotee officer was reverted on the lower post by the employer on the ground that he was promoted under the mistaken belief that he was entitled to be given benefit of reservation available to Scheduled Tribe candidate. Subsequent to promotion, it was allegedly found that benefit of reservation was not permissible. In these circumstances, Hon'ble Supreme Court observed that it was not open to the employer to blow hot and cold in the same breath and thus reversion was found to be erroneous.

In the instant case, claim of promotion of Smt Lata Kumari was illegally not considered by the authorities, though she is admittedly senior to Smt Indirawati Devi. It cannot be said to be a case of mistaken belief as under Rule 14 of the Rules, 1998, the Committee of Management and the authorities of education department were under statutory mandate to consider her case as she was also eligible and the senior most candidate. It is the non consideration of the case of Smt Lata Kumari which has resulted in unlawful promotion of Smt Indirawati Devi. Thus, the judgement in the case of Balbir Sigh (supra) does not have any application to the facts of the present case.

In view of discussions made above, the Court has no hesitation to hold that promotion of Smt Indirawati Devi as approved by the District Inspector of Schools by means of order dated 12.09.2008 having been made in complete derogation of statutory provisions contained in Rule 14 of the Rules 1998, is not only illegal but has, in fact, resulted in denial of fundamental right of Smt Lata Kumari for consideration of her case for promotion to the post in question i.e. the post of Lecturer in Hindi which fell vacant on 30.06.2008 on retirement of Ms. Shanti Nigam. The order dated 12.09.2008 approving the promotion of Smt Indirawati Devi on the post of Lecturer in Hindi as contained in annexure no.18 to Writ Petition No. 6154 (S/S) of 2008 thus, deserved to be quashed.

The question which now arises for consideration is as to whether Smt Indirawati Devi is entitled to be paid salary for the post of Lecturer w.e.f 12.09.2008. In this regard, it may be noticed that at the time of filing of Writ Petition No. 6154 (S/S) of 2008 by Smt Lata Kumari whereby the order approving promotion of Smt Indirawati Devi dated 12.09.2008 was challenged, this Court had passed interim order on 29.09.2008 whereby the said order dated 12.09.2008 passed by the District Inspector of Schools was stayed and the matter was directed to be reconsidered by the District Inspector of Schools.

It has been submitted by learned counsel appearing for petitioner-Smt Lata Kumari that in flagrant violation of the interim order dated 29.09.2008, Smt Indirawati Devi was allowed to join on the post. This fact is being vehemently disputed by Sri S.P.Misha, learned counsel appearing for petitioner-Smt Indirawati Devi who submitted that joining of Smt Indirawati Devi against the post of Lecturer in Hindi was accepted by the Institution concerned prior to passing of the interim order dated 29.09.2008.

Be that as it may, since the very initial appointment by way of promotion of Smt Indirawati Devi against the post of Lecturer in Hindi has been held to be unlawful by this judgement, on the strength of the order dated 12.09.2008, she cannot be said to be entitled for any salary for the post of Lecturer in Hindi.

As noted above, there are certain developments which have taken place after filing of both the writ petitions which need to be taken into account while finally disposing of the matter at hand.

Admittedly, in the year 2010, vacancy in the post of Lecturer in Hindi fell vacant on account of retirement of Smt Vinodani Trivedi and against the aforesaid vacancy Smt Lata Kumari has been promoted by means of order dated 14.12.2010 and since then she has been discharging her duties on the said post and has also been paid salary.

Thus, so far as the suitability and fitness of both petitioners i.e. Smt Lata Kumari and Smt Indirawati Devi for appointment on the post of Lecturer in Hindi is concerned, the same has been adjudged by the Committee constituted under Section 12 (1) of Boards Act, 1982. It is also noticeable that if the authorities of education department and Committee of Management had acted in lawful manner as they are mandated to act under the provisions of Boards Act 1982 and Rules 1998, since there was nothing adverse against Smt Lata Kumari, she would have been promoted against the vacancy which occurred on 30.06.2008 itself and so far as the subsequent vacancy is concerned which occurred in the year 2010, Smt Indirawati Devi would have been promoted against the said vacancy for the reason that nothing adverse was available or reported against her as well.

Keeping in view the entire facts and circumstances of the case, it would be appropriate to issue following directions:-

1.The order dated 12.09.2008 approving promotion of Smt Indirawati Devi against the vacancy in the post of Lecturer in Hindi which occurred on 30.06.2008 stands quashed.

2.Since suitability and fitness of Smt Indirawati Devi have already been adjudged by the statutory Committee constituted under Section 12 (1) of Rules, 1998, though she shall not be entitled to hold the post of Lecturer against the vacancy which occurred on 30.06.2008 but she shall be entitled to hold the post w.e.f. 14.12.2010 i.e. the date on which promotion of Smt Lata Kumari was made against the post of Lecturer in Hindi which occurred subsequently i.e. in the year 2010. Smt Indirawati Devi shall also be entitled to be paid salary on the post of Lecturer w.e.f 14.12.2010.

So far as Smt Lata Kumari is concerned, she stands promoted w.e.f. 14.12.2010 and she is also getting salary on the said post. Since her right of consideration for promotion was denied against the vacancy which occurred on 30.06.2008, she shall be entitled to the seniority of the post of Lecturer in Hindi w.e.f. 30.06.2008.

However, since Smt Lata Kumari has not worked and discharged the functions on the post of Lecturer in Hindi with effect from the date of occurrence of vacancy in the year 2008, she shall not be entitled to be paid salary w.e.f. 30.06.2008.

In the facts and circumstances of the case, it is held that Smt Lata Kumari is entitled to be paid cost of Rs. 30,000/- (Rs. Thirty Thousand only) by the Committee of Management. The cost to Smt Lata Kumari shall be paid within a month from the date a certified copy of this judgement and order is produced before the Committee of Management of the Institution.

With the aforesaid observations and directions, the writ petitions are finally disposed of.

Order Date :- 18.7.2013							   Renu/-